APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Mackay of Drumadoon
Lord Drummond Young
 HCJAC 63
Appeal No: XC4/13
OPINION OF THE COURT
delivered by LORD DRUMMOND YOUNG
APPEAL AGAINST SENTENCE
HER MAJESTY'S ADVOCATE
Appellant: Paterson, Solicitor Advocate; Paterson Bell
Respondent: Wade QC, AD; Crown Agent
18 April 2013
 The appellant appeared on indictment at Dundee Sheriff Court on four charges alleging contraventions of the Civic Government (Scotland) Act 1982, sections 51A, 52A(1), 52(1)(a) and 52(1)(c). Initially he pled not guilty to all charges, but on 5 November 2012 he tendered pleas of guilty to two of the charges and not guilty to the other two charges. Those pleas were accepted by the Crown. The two charges to which the appellant pled guilty were in the following terms:
"(2) between 11th of June 2002 and 1 April 2011, both dates inclusive, at... 23 Ogilvie Street, Dundee, you STEVEN RYDER did take or permit to be taken or make indecent photographs or pseudo-photographs of children;
CONTRARY to the Civic Government (Scotland) Act 1982 section 52(1)(a) as amended; and
(4) between 2nd February 2000 and 19th March 2011, both dates inclusive, at... 23 Ogilvie Street, Dundee, you STEVEN RYDER did have in your possession extreme pornographic images of bestiality;
CONTRARY to the Civic Government (Scotland) Act 1982 section 51A".
The sheriff deferred sentence and in due course obtained a criminal justice social work report and a psychological assessment. On 11 December 2012 he imposed a cumulo sentence in respect of both charges, having taken the view that they disclosed a course of conduct. The sentence imposed was an extended sentence of imprisonment; this comprised a custodial term of 20 months, discounted from 24 months on account of the guilty plea, and an extension period of three years. The sheriff certified in terms of section 92(2) of the Sexual Offences Act 2003 that the offences committed were sexual offences to which Part 2 of that Act applied. The appellant was placed on the register for a period of 10 years from 5 January 2012.
 In relation to charge 4, the sheriff observes that when preparing his report he became aware that section 51A of the Civic Government (Scotland) Act 1982 only came into force for the first time on 28 March 2011. It was accordingly not in force during any part of the period specified in the charge. The sheriff states that he could not see any other basis on which viewing or possessing images of bestiality could constitute an offence prior to the commencement of that section. Consequently the appellant could neither be convicted nor sentenced for the commission of an offence which had not yet come into being. The result was, the sheriff observes, that the sentence that he had passed could not be competent. That sentence proceeded on the basis that charge 4 was competent. It was based on a sentence of imprisonment of 24 months and, to reflect a small utilitarian value in the early plea, a reduction to 20 months, followed by the extension period of three years. The sheriff observed that he considered that the appellant's conduct, which had extended over a period of more than 10 years, was entrenched, and that such a lengthy period of extension was necessary in order to give the professionals that he envisaged would be involved in the appellant's treatment an opportunity to make some inroads upon his behaviour.
 The sheriff further states that if he had appreciated that charge 4 was not competent, and he had only been imposing sentence on charge 2, it was unlikely that he would have sent the appellant to prison, in view of the fact that most of the images of children were at level 1 of the definitive scale that is used in such cases to measure the seriousness of the material concerned. The sheriff would, however, almost certainly have placed the appellant on a community payback order with a condition that he should attend the Tay Project, the local project for sex offenders in Dundee. That would have been imposed for a period of three years. The period of registration as a sex offender would also have been affected.
 The facts of the case are narrated at length in the very full report prepared by the sheriff. It is unnecessary for present purposes to go into the details of what was involved. Very substantial amounts of indecent material were recovered from computers and computer equipment found in the appellant's home. These involved a large number of images of children aged from 3 to 16 years. Of these images, 4,176 were at level 1, 26 were at level 2, 28 were at level 3, 63 were at level 4 and 16 were at level 5 (level 1 being the least serious and level 5 the most serious). Indecent video clips involving children were also recovered; of these, three were at level 1, six were at level 4 and two were at level 5. In addition, a significant amount of extreme pornography involving sexual activity with animals was recovered. More than 2,100 images of bestiality were recovered along with 561 video clips. The sheriff viewed some of the material involved. In relation to the material involving children, he states in his report that it is difficult to understand how any human being can derive any pleasure from viewing such material; the children were depicted suffering from gross sexual abuse. They appeared to be of Indian or Eastern European extraction, and the sheriff notes that one could not help but be struck by the level of misery on their faces. Regardless of where the children came from, everyone had a responsibility to protect them from this form of abuse. Consequently those who provided a market for such material must suffer denunciation and a penalty which would act as a deterrent. We agree entirely with those sentiments.
 The sheriff obtained a criminal justice social work report and a psychological assessment. The author of the social work report stated that the appellant tried to minimize his actions, particularly where indecent images of children were involved, but it was considered that he had been deeply immersed in the world of virtual reality and that he had been involved to a high degree in planning the downloading and use of offending material over an 11 year period. The appellant's educational and work history is also noted. He obtained reasonably good results at school, and for a time attended Abertay University and subsequently Dundee College. He did not complete his courses, however, and had taken up employment on the assembly line at NCR from 1996 to 2007. Thereafter he had undertaken further training at college but was currently unemployed. His main interest now appeared to be playing war games with other internet users. He was not in any current relationship, and appeared to be particularly isolated and immersed in his own virtual world. He was regarded as constituting a medium risk of reoffending and a medium risk of reconviction. He was not thought to constitute an immediate danger to the public, and was considered suitable to undertake the community sex offenders' group work programme.
 The forensic psychologist who examined the appellant stated that he was within the average range of intelligence, but appeared to show a lack of self‑care which in turn indicated a mental disorder. He appeared to suffer from low mood with signs of anxiety. He claimed to find paedophilia disgusting but had repeatedly accessed it and downloaded it over a 10 year period. He had in the past had relationships with two women, but appeared to have made very extensive use of pornography over a prolonged period. He had also suffered from depression for a considerable period. It was thought that, given the length of time during which the appellant had accessed pornography, it would be difficult to engage him in any process of change. Nevertheless, he was considered to be sufficiently intelligent and articulate to engage in work that might effect change. The appellant had indicated that he was prepared to commit to psychological therapy to deal with his mental health difficulties. He was considered to be at major risk of future offending, in particular of accessing indecent images on-line or through other means.
 In sentencing the appellant, the sheriff had regard to the guidance for sentencing in cases involving child pornography found in HM Advocate v Graham,  HCJAC 50. That case involved more than 127,000 indecent images, which had to some extent been distributed to other persons. It is thus plainly more serious than the present case. Nevertheless, the guidance given in the opinion of the then Lord Justice Clerk applies to child pornography generally, and is thus clearly relevant to the present case. The Lord Justice Clerk reviews the development of sentencing guidelines in England and Wales at some length, together with the so‑called definitive guideline found in those sentencing guidelines. He expresses the view (at paragraphs -) that the conduct involved in Scotland and in England and Wales is the same, and that consequently the definitive guideline, applied in a flexible manner, is helpful in Scottish sentencing practice.
 The definitive guideline used in England and Wales classifies indecent images on a scale of five levels (those referred to previously). The guidance given varies according to the quantity of indecent images found and the level of those images on the definitive guideline. It also varies according to whether the offence involves the commissioning, production, distribution or sale of indecent images or whether it involves only the possession of such images. In Graham the Lord Justice Clerk observes (at paragraph ) that
"Viewing, downloading and distributing indecent images of children is part of the process of child sexual abuse. Each photograph represents the serious abuse of the child depicted. Those who access this material through the Internet bear responsibility for the abuse by creating a demand for the material.... Such offences can properly be said to contribute to the pain, discomfort and fear suffered by children who are physically abused, and to the psychological harm that the children concerned would suffer from knowing that others would get perverted pleasure from looking at the material...".
We would entirely endorse that view. The Lord Justice Clerk goes on (at paragraph ) to consider the approach to the quantity of images involved. He indicates that what is a small or large quantity of material must be, to an extent, a matter of judgment in each particular case. Nevertheless, general benchmarks are given. The view is expressed that a quantity of indecent images numbered in the low hundreds can properly be said to be a small number, whereas quantities of images numbered in the high hundreds or in thousands can properly be said to be large. On that basis, in the present case a large number of images was recovered at level 1 but only a small number at higher levels.
 In Graham it is further indicated that moving images will not always be more serious than still images, but allowance should be made for the fact that a moving image may be more vivid and corrupting than a still image. Aggravating and mitigating factors are also considered. Aggravating factors include the showing or distribution of images to others and the systematic storing and organisation of the offender's collection, indicating a high level of personal interest. The good character of the accused is not entirely irrelevant, but a sentencing judge or sheriff is not obliged to attach much weight to it. The fact that an offender has come from a stable family may be relevant, but can be double edged in that the fall from grace is greater in such a case. Conversely, where the offender's own background has been disturbed, that cannot be a powerful consideration in mitigation; the predominant considerations must be the nature and effects of the offences and the need to impose a sentence that will mark the court's view of the gravity of the case. As to the discount for a guilty plea, because much of the material involved originates in Asia, Russia and Eastern Europe, there will usually be no question of saving vulnerable witnesses, and thus an early plea of guilty will not normally have all the merits that would attract a discount of one third.
 It is clear, as the sheriff accepts, that charge 4 was not competent; section 51A of the Civic Government (Scotland) Act 1982 had not come into effect during the period covered by the charge, and there was no other basis on which the viewing of the type of pornography covered by that section could be criminal. Consequently the cumulo sentence that the sheriff imposed could not have been competent either. For that reason the sentence must be reconsidered as a whole, and must proceed entirely on the basis of the guilty plea to charge 2.
 The sheriff indicates that, if he had realized that charge 4 was not competent, and had only sentenced on charge 2, it is unlikely that he would have sent the appellant to prison, as most of the images were at level 1. Instead, he would almost certainly have placed the appellant on a community payback order with a condition that he attend the Tay Project for three years. The relevant provisions in the English guidelines are as follows. Under guideline (g), where an offender possesses a large amount of level 1 material and no more than a small amount at level 2, and the material is for personal use and has not been distributed or shown to others, the starting point should be a community service order, with probation or a fine as possible alternatives. Under guideline (f), where an offender possesses a small amount of material at level 3, the starting point should be three months' imprisonment, with a possible range from one month to 26 weeks. Under guideline (e), where an offender possesses a small number of images at levels 4 or 5, the starting point should be 26 weeks' imprisonment, with a possible range from one month to 18 months. The appellant possessed a large number of images at level 1 and also a small amount of material at levels 2, 3, 4 and 5. On that basis, the English guidelines indicate that a sentence of imprisonment would be appropriate, in the range from one month to 18 months; guideline (e) clearly applies.
 Despite this, we are of opinion that the sheriff's view is correct and that a community payback order combined with attendance at the Tay Project would be appropriate. The appellant has not previously been sentenced to imprisonment or detention. Consequently section 204(2) of the Criminal Procedure (Scotland) Act 1995 applies, and the court should not pass a sentence of imprisonment unless it considers that no other method of dealing with the case is appropriate. We are of opinion that in this case the most important consideration is that the appellant should receive professional treatment for his entrenched habit of viewing large amounts of internet pornography. This is clearly a very serious problem, but the reports that are available indicate that appropriate treatment is available. We have accordingly decided that the appropriate sentence is as follows. The appellant will be subject to a community payback order for a period of three years. This is subject to the requirement, imposed under section 227P of the Criminal Procedure (Scotland) Act, that he should attend and participate in offence‑focused work in the Community Sex Offenders Group Work Programme (the Tay Project). This will comprise a 50 hour induction programme running for one week and weekly sessions of 2 1/2 hours each until the programme is completed; the latter will form part of either the core programme or the relapse prevention programme, which run for a total of 190 hours and 50 hours respectively. Regular reviews will be made, and the Tay Project will remain involved with the appellant until all identified work to address his sexual offending behaviour has been completed.
 It is a condition of the community payback order that the appellant should be of good behaviour and refrain from further offending throughout the duration of the order. In addition, he will be subject to a number of other conditions. These are as follows:
1. The appellant should not approach, speak to or communicate in any way, directly or indirectly, with a child under the age of 17 without prior approval from his supervising officer.
2. The appellant should not have means to access any computer or internet equipment at home or any other location without prior approval from his supervising officer, and should not have access to a mobile telephone or other equipment capable of accessing the Internet.
3. The appellant should allow police officers and social workers involved in his supervision, or others acting on their instructions, to inspect any electronic equipment or mobile telephone used by him and capable of accessing the Internet when requested to do so, with or without advance notice.
4. The appellant should inform his supervising officer of any new relationships that he enters into with any females, and in particular those who have supervisory responsibility for children under the age of 17.
5. The appellant should not undertake employment, training, or paid or unpaid or voluntary work without the prior approval of his supervising officer.
6. The appellant should not approach, speak to or communicate in any way, directly or indirectly, with any known sex offender.
7. The appellant should not travel outside Great Britain without prior permission of his supervising officer.
8. The appellant should participate fully in any recommended offence-focused work, and fully engage in any assessment in connection with the Tay Project programme, as directed by his supervising officer.
9. The appellant should reside only in accommodation approved by his supervising officer.
10. The appellant should not own or look after any animals without the prior approval of his supervising officer.
In addition, the appellant should attend a specified clinic for outpatient treatment for his mental health and other psychological issues.
 It is on the basis of the community payback order with the foregoing, stringent, conditions that we consider that a sentence of imprisonment is not appropriate in this case. Nevertheless, our sentence should not be regarded as diminishing in any way the seriousness of the offence of accessing child pornography.