Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 2
HCA/2016/382/XC, HCA/2016/499/XC and HCA/2016/473/XC

Lord Justice General
Lord Bracadale
Lord Malcolm

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

NOTES OF APPEAL AGAINST SENTENCE

by

(FIRST) KENNETH WOOD; (SECOND) THOMAS TENNANT; and
(THIRD) DARRYL McLEAN

Appellants

against

HER MAJESTY’S ADVOCATE

Respondent

First Appellant: Mackintosh, Lunny; John Pryde & Co (for Russells Gibson McCaffrey, Glasgow)
Second Appellant: MacKintosh; John Pryde & Co
Third Appellant: CM Mitchell, Findlater; Beltrami & Co, Glasgow
Respondent: Erroch AD; the Crown Agent

17 January 2017

Introduction
[1]        These three appeals relate to charges involving the making and possession of indecent images of children.  They have been heard together in order to consider whether the guidelines, which were issued in HM Advocate v Graham 2011 JC 1, require to be amended or updated in light of the Definitive Guideline on Sexual Offences, issued by the Sentencing Council for England and Wales in December 2013.

Facts
First appellant
[2]        On 14 April 2016, at Glasgow Sheriff Court, the first appellant pled guilty, under the procedure authorised by section 76 of the Criminal Procedure (Scotland) Act 1995, to two charges.  The first was of making indecent images of children at his home in Glasgow, between February 2013 and September 2015, contrary to section 52(1)(a) of the Civic Government (Scotland) Act 1982.  The second was of possessing indecent images of children at his home on 4 September 2015.  On 7 July 2016, the sheriff (Crozier) imposed an extended sentence of 3 years and 4 months, with a custodial element of 16 months, discounted for the early plea from 24 months. 

[3]        The circumstances of the offences are straightforward.  The police called at the appellant’s home on 4 September 2015, with a warrant to search for indecent images of children.  Such images are classified in terms of the English Guideline (infra) into three categories.  Category A involves penetrative sexual activity, sexual activity with an animal or sadism.  Category B involves non-penetrative sexual activity.  Category C involves other indecent images, not falling into the other two categories.  On the appellant’s computer there were 158 still images, 38 falling into each of categories A and B and 82 into Category C.  There were 31 moving images, 13 of which fell into Category A, 8 into Category B and 10 into Category C.  On a number of discs there were 1,685 still images; 421 at Category A, 361 at Category B and 903 at Category C.  There were also 205 moving images; 132 at Category A, 43 at Category B and 30 at Category C.  All of these images depicted children of both sexes, although mainly girls, ranging from 3 to 14 years of age.  The images had been downloaded from websites, including file-sharing applications. 

[4]        The appellant was aged 65 and had retired from work in supermarket bakeries.  He had no previous convictions.  He lived with his partner, who had multiple health problems, including severe asthma.  He acted as a carer for her.  The appellant offered no explanation for his possession of the images, other than his own sexual gratification.  The Criminal Justice Social Work Report noted that he had little or no victim empathy in that he seemed to consider that: the children depicted were enjoying the activity because they were smiling; they were actors rather than real; and the images were from 20 years ago and the activity was thus “not happening now”.  He was assessed as at low risk of general offending in terms of the LS/CCM1 risk assessment tool and at low risk of further sexual offending, using the Risk Matrix 2000.  The CJSWR specifically stated that “Public protection issues appear to be minimal.  The appellant was deemed suitable for a community based disposal.  It reported that in the event of a custodial sentence he would be assessed for suitability for the Moving Forward Making Changes Programme (MFMC), which was run within the Scottish Prison Service and in the community.  If he did not complete such a programme in custody, he could be referred to the Clyde Quay Project (part of CJSW) as part of extended sentence licence conditions.  A Community Payback Order could also provide that he attend the Project. 

[5]        The sheriff had regard to HM Advocate v Graham (supra), LJC (Gill) at para [28]; Archer v HM Advocate 2014 SCCR 206 and Ryder v HM Advocate [2013] HCJAC 63.  He took note of the terms of the 2013 Definitive Guideline (infra).  He concluded that a non-custodial disposal would not reflect the gravity of the offences.  It would not meet the requirements of punishment, denunciation and general deterrence.  He noted the large number of prosecutions for this type of offence in the sheriffdom and the continuing “quite dreadful and appalling exploitation of children”.  Although the CJSWR had assessed the appellant as being at low risk of sexual offending, the sheriff took the view that “standing the nature of the offending and the terms of the CJSWR” an extended sentence was necessary to protect the public from serious harm.  The reporting requirements under the Sexual Offences Act 2003 were noted.  However, the sheriff was of the view that the period of licence involved in a conventional sentence coupled with any work carried out in custody would be insufficient in which to carry out the work, notably that of the Clyde Quay Project, necessary to protect the public from serious harm.  Significant input was needed to protect the public from serious harm.

[6]        The appellant had set out on a pre-planned course of conduct for his own sexual gratification.  He had showed no concern for the children in the images.  He had attempted to minimise, justify and excuse his offending behaviour.  Any remorse related to the consequences to him, rather than compassion for his victims.  In all the circumstances, the sheriff reached the conclusion that, notwithstanding the appellant’s previous good character, an extended sentence was appropriate and necessary. 

Second appellant
[7]        On 14 July 2016, at the Sheriff Court at Glasgow, the second appellant pled guilty, under the section 76 procedure, to one charge of making indecent images over a period of almost 6 years, contrary to section 52(1)(a) of the 1982 Act.  On 18 August 2016, the sheriff (Cathcart) imposed an extended sentence of 3 years and 8 months, with the custodial element being 8 months, reduced from 11 for the early plea.

[8]        On 3 December 2015, the police had conducted a search of the appellant’s home for indecent images under a warrant.  On two hard drives and a computer base unit, there were 101 images, 46 in Category A of which 26 were moving, 13 in Category B and 42 in Category C.  These featured girls between the ages of 8 and 16.  They had been downloaded from the internet, including file-sharing applications. 

[9]        The appellant was aged 65.  He had retired from a career in accounts management.  He was married, but had separated from his wife after his arrest.  He had been given a brochure concerning, and had since then attended, a 10 week “Stop it Now” course, that being the National Programme for the Prevention of Child Abuse.  The CJSWR recorded that he was assessed as at medium risk of further offending in terms of the LS/CCM1 programme.  He was at low risk of sexual recidivism under Risk Matrix 2000.  The report explained that the appellant had attempted to justify and excuse his offending under reference to being de-sensitised to “mainstream pornography”.  He had a tendency to blame his difficulties on his personal life, including his having to care for a father with dementia.  Any empathy that he had for the children in the images, was superficial.  Prior to the appellant’s release from prison, a robust risk management plan would be required “to uphold public protection” when managing the appellant in the community. 

[10]      The sheriff had regard to HM Advocate v Graham (supra) and considered that a custodial sentence was the only appropriate one having regard to the category of image and the time over which the offence was committed.  He noted the need for a robust management plan and concluded that steps required to be taken to protect the public upon his release from custody, namely an extended sentence.  The extended period was fixed, having regard to the time required to complete the appropriate work with the Clyde Quay Project. 

Third appellant
[11]      On 14 July 2016, at Glasgow Sheriff Court, the appellant pled guilty at a first diet to making indecent photographs of children, during the period 8 October 2013 to 2 September 2015, contrary to section 52(1)(a) of the 1982 Act.  On 18 August 2016, the sheriff (Cathcart) imposed an extended sentence of 3 years and 9 months, with the custodial element being set at 9 months and discounted from 12 months for the early plea.

[12]      On 2 September 2015, the police had attended the appellant’s home, in possession of a warrant to search for indecent images.  They located two laptops.  A total of 540 moving images were recovered, of which 342 were accessible.  332 of these were in Category A, 137 in Category B and 71 in Category C.  There were also 188 still images of which 8 were accessible, 6 at Category A, 10 at Category B and 172 at Category C.  These had been downloaded from websites.  Considerable planning would have been required by way of searching for particular types of images.  The images were of boys aged between 3 and 11 and girls from a few months old to 7 years. 

[13]      The appellant was aged 30 and in full time employment as a haulage scheduler.  He lived with a girlfriend, who had a 10 year old daughter.  He had convictions for theft and road traffic offending.  The CJSWR stated that the appellant lacked insight into his offending and had attempted to justify it.  Risk Matrix 2000 assessed him as at low risk of general offending but at medium risk of sexual offending.  Work required to be done to raise the appellant’s awareness of the impact of his offending and to develop a “relapse prevention plan”.  Under the heading “Serious Harm/Imminence” the report said “n/a”.  If imprisoned, post-release supervision would be required.

[14]      The sheriff again considered that only a custodial sentence was appropriate and the extended period was to enable the appellant to attend the Clyde Quay Project for a period of 3 years. 

The Definitive Guidelines
[15]      The original (2007) Definitive Guideline from the Sentencing Council of England and Wales referred to numerical levels of seriousness in relation to indecent images of children (pp 109 and 113).  Level 4 involved images depicting penetrative sexual activity involving a child and level 5, sadism or penetration of or by an animal.  Possession of a large quantity of material at level 4 or 5 for personal use carried with it a starting point of 12 months custody and a range of 26 weeks to 2 years.  There then followed a number of aggravating and mitigating factors which would be taken into account in selecting a sentence within the range. 

[16]      The 2013 Guideline is different, in that it commences with the determination of an offence category as “Step One”, defined by the letters A, B and C, reflecting the nature of the indecent images.  Possession of images involving penetrative sexual activity, or those involving an animal or sadism, fall into Category A, where the starting point determined by “Step Two” for possession is set at the same level as the original Guideline, that being one year’s custody and the range at 26 weeks to 3 years; the latter being one year longer than before.  Step Two provides that, having determined the starting point, further adjustment is required according to certain aggravating or mitigating features.  At this point there is a statement, which repeats one which was present in the earlier consultation document, that:

“Where there is sufficient prospect of rehabilitation, a community order with a sex treatment programme ... can be a proper alternative to a short or moderate length custodial sentence”.

[17]      There follow the aggravating factors, which include a high volume of images, a lengthy period of possession, the existence of moving images, deliberate searching for images and a large number of different victims.  Mitigating factors include a lack of previous convictions, remorse, previous good character and steps taken to address the offending.  Thereafter, a number of further steps are required before a court arrives at a final sentence. 

Submissions
First appellant
[18]      The first appellant lodged a Note of Appeal containing three grounds.  Only two of these have been granted leave to appeal.  The first is that the imposition of an extended sentence was excessive.  The second is that, if that is correct, the sheriff had erred in holding that a non-custodial sentence was not appropriate.  Leave was refused in relation to the length of the custodial sentence. 

[19]      An extended sentence was only competent where the court could be satisfied that the period, during which the appellant would otherwise be subject to a licence, would be inadequate for the purposes of protecting the public from serious harm (1995 Act, s 210A).  An extended sentence had a considerable penal effect, given the power to revoke the licence and recall the offender to prison (Robertson v HM Advocate 2004 JC 155, Lady Cosgrove at para [30]).  Although 8 months may not be sufficient for the appellant to complete the work contemplated in the “MFMC programme organised by the Clyde Quay Project, the CJSWR had stated that the appellant was at low risk of sexual offending.  The statutory test had not been met.  An extended sentence could not be used to ensure that a low risk offender underwent a sex offender programme.

[20]      In HM Advocate v Graham 2011 JC 1, the Lord Justice Clerk (Gill) had stated that the Definitive Guideline, which had been published in 2007, should be used in all cases, as long as it remained the pre-eminent classification of the relevant offences in the United Kingdom.  Graham had been a guideline judgment in terms of sections 197 and 118(7) of the 1995 Act.  It had been stated recently in Scottish Power Generation v HM Advocate [2016] HCJAC 99 that the appropriate guidelines to look at were the current ones.  If these were applied in this case, although Step One would have classified the appellant as having committed a Category A possession offence, with a starting point of one year and a range of 6 months to 3 years, the starting point selected by the sheriff had been 2 years imprisonment. 

[21]      There was now a clear provision in the 2013 Guideline to allow for the imposition of a community order, with a sex offender treatment programme requirement, as an alternative to a short or moderate length custodial sentence, where there was sufficient prospect of rehabilitation.  The appellant’s sentence fell within this definition.  However, the possibility of a non-custodial disposal had not been discussed in HM Advocate v Graham (supra).  Thus a Community Payback Order, with a supervision requirement under section 227A of the 1995 Act, would have been appropriate.  At present, the appellant’s earliest release date was March 2017.

Second appellant
[22]      The first ground of appeal for the second appellant was that the sheriff had erred in imposing an extended sentence.  The arguments followed a similar course to that of the first appellant.  The appellant had been assessed in the CJSWR as being at low risk of sexual recidivism.  There was therefore no material upon which it could be held in terms of section 210A that the period for which he would otherwise be subject to a licence, but for the extended sentence, would not be adequate for the purposes of protecting the public from serious harm. 

[23]      The second ground was that the imposition of a custodial sentence was excessive.  Again, the argument followed the lines developed by the first appellant, relative to the 2013 Definitive Guideline.  A Community Payback Order would have been appropriate.  This appellant was on interim liberation.

Third appellant
[24]      The Note of Appeal stated simply that the sheriff had failed to have regard to a number of material factors in determining whether to impose a custodial sentence, notably, the minor record of the appellant, his plea of guilty and remorse.  An alternative to custody had been available.  This ground was refused at first sift, but granted following the lodging of an Opinion of Counsel before the second sift.  In both written and oral argument the ground was expanded upon.  It was said that the guidelines in Graham v HM Advocate (supra) were being applied in a rigid and mechanistic fashion (cf paras [21 – 22]).  The sheriff had simply applied Graham (para [27(e)]) in this way.  In the appellant’s case, the number of images had been relatively small.  He had a minor non-analogous record.  He was entitled to the protection of section 204(2) of the 1995 Act.  The CJSWR had been in positive terms.  He was suitable for a Community Payback Order involving a condition that he attend the Clyde Quay Project.

[25]      The sheriff had made no attempt to fit the appellant’s circumstances, notably the risk which he posed, into section 210A of the 1995 Act.  He had just thought that an extended sentence would be a good idea to enable him to complete the Project’s sex offender programme.  The sheriff had, in effect, imposed two separate sentences.  He had considered the appellant suitable for a CPO.

[26]      The new Definitive Guideline had stated that, if there was a sufficient prospect of rehabilitation, a community order with a sex offender treatment programme requirement was an alternative to a short or moderate length custodial sentence.  This was such a sentence.  The appellant’s circumstances were similar to those of the appellant in Ryder v HM Advocate (supra).  He was due for release on 30 December 2016.

Decision
[27]      The reasoning behind the decisions to impose extended sentences in each case is understandable in that the sheriffs considered that, whereas a period in custody was the only appropriate sentence in terms of the guidelines in HM Advocate v Graham 2011 JC 1, a custodial term would not be sufficient to enable the offender to attend the Clyde Quay Project which was designed to reduce the risk of re-offending.  However, that is not a legitimate use of an extended sentence.  Section 210 of the Criminal Procedure (Scotland) Act 1995 makes it clear that such a sentence is only to be imposed where the court is satisfied that the period for which the offender would otherwise be subject to a licence would “not be adequate for the purpose of protecting the public from serious harm”.  Although the sheriffs have attempted to justify the sentences in terms of the section, it is simply not possible to classify these appellants as posing a risk of “serious harm” to the public were they to be released during the course of, or at the end of, the period of custody imposed.  In order to reach a contrary conclusion, a somewhat convoluted course of reasoning would require to be adopted, whereby a connection would be established between accessing the pornographic images and the risk to those who might appear in similar images in the future.  Such a connection does exist in general terms, but to classify it as involving a risk of “serious harm” to the public in the sense intended in the legislation is an error (see eg Taylor v HM Advocate 2002 GWD 20-675, Barron v HM Advocate, 17 July 2007, Morrison: Sentencing Practice N17.0007; see for England and Wales R v Dixon, Court of Appeal, 29 July 2015, unreported).  It follows that, in each appeal, the extended element of the sentences must be quashed.

[28]      The issue then becomes one of whether the imposition of a custodial sentence in each case was excessive.  The starting point is the Opinion of the Lord Justice Clerk (Gill), with which the other members of the court agreed, in HM Advocate v Graham (supra).  This makes it clear (at para [29]) that regard should be had to the Definitive Guideline produced by the Sentencing Council of England and Wales “so long as it remains the pre-eminent classification of these offences in the United Kingdom”.  The Guideline, which is now that dated 2013 (see Scottish Power Generation v HM Advocate [2016] HCJAC 99), should be used as a framework, but one which should not be applied too rigidly (ibid at paras [21-22]).  Sentencing remains a matter of judgment and discretion in the particular circumstances of the case.

[29]      The difference founded upon between the Guideline current at the time of Graham and that applicable now is the specific reference to the possibility, and it is no more than that, of a community disposal aimed at rehabilitation as an alternative to a short or moderate sentence.  This is consistent with the long-standing position in Scotland, of which the court in Graham would have been aware, that a custodial sentence should not be imposed upon a person who has not previously been in custody, unless no other method of dealing with him is appropriate (1995 Act, s 204(2)).  Returning to the use of an extended sentence, what is not currently an option is a custodial term combined with a community disposal. 

[30]      It is important to recognise that, notwithstanding the existence of an alternative, the Definitive Guideline has, as a starting point for the possession of Category A images, a custodial period of one year and a range of 6 months to 3 years.  In the normal case, therefore, having regard to the Definitive Guideline, but not employing it in a mechanistic way, the starting point in each of the cases presently under consideration would be a significant custodial disposal.  This is the sentence which ought to be imposed for the possession of a significant amount of Category A images, which is the position of each of the appellants.  In order to justify a community based disposal, there would require to be some particular circumstance, such as a relatively fleeting possession, or particularly compelling personal circumstances, such as extreme old age. 

[31]      This appears to be the approach in England (see eg the custodial sentences in R v Handley [2016] EWCA Crim 1634, R v Crowther [2014] EWCA Crim 2238, and R v Horn [2014] EWCA Crim 653; cf the non-custodial disposals in R v Brynes [2016] EWCA Crim 1442, R v Colgate [2016] EWCA 1598, R v McDonald [2016] 1 Cr App R (S) 48, R v Young [2015] EWCA Crim 2512, and R v Jones [2015] 1 Cr App R (S) 9).  It is also consistent with past practice in Scotland (eg Taylor v HM Advocate (supra), and Barron v HM Advocate, (supra) both involving the High Court acknowledging time already spent in custody as relevant).

[32]      Ryder v HM Advocate 2013 SCL 724 may be seen as an exception (cf Archer v HM Advocate 2014 SCCR 206), but the appeal there turned on an acknowledged error by the sheriff and a statement that, but for that error, a non-custodial disposal would have been imposed at first instance.  The court considered (at para [12]) that the “most important consideration is that the appellant should receive professional treatment for his entrenched habit of viewing large amounts of internet pornography”.  In the present appeals, whilst recognising that rehabilitation may be an important factor in certain cases, the element of deterrence is a significant factor.

[33]      As the Lord Justice Clerk (Gill) said in HM Advocate v Graham (supra at para [28]):

“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…”. 

Although there was no distribution in the current appeals, the general statement remains relevant.  In cases such as this, as the Lord Justice Clerk continued (at para [53]), “the requirements of punishment, denunciation and general deterrence are paramount”.  The court would expect the custodial sentences to act as a sufficient discouragement to the particular appellants from accessing such images in the future.

[34]      The appeals are therefore, except in so far as relating to the extended elements of the sentences, refused.

[35]      The court would add first that, although it was not an issue for consideration in the appeal, the custodial sentence in relation to the third appellant would appear to be lenient, if not unduly so, for such a large amount of Category A moving images.  Secondly, the utility of using a deterrent custodial sentence combined with a period of extended supervision thereafter would, in cases such as those under consideration, seem clear, even if the current statutory tests for doing so are not met.  This is a matter which the Scottish Government and/or the Scottish Sentencing Council may wish to consider in due course. 

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 2
HCA/2016/382/XC, HCA/2016/499/XC and HCA/2016/473/XC

Lord Justice General
Lord Bracadale
Lord Malcolm

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

NOTES OF APPEAL AGAINST SENTENCE

by

(FIRST) KENNETH WOOD; (SECOND) THOMAS TENNANT; and
(THIRD) DARRYL McLEAN

Appellants

against

HER MAJESTY’S ADVOCATE

Respondent

First Appellant: Mackintosh, Lunny; John Pryde & Co (for Russells Gibson McCaffrey, Glasgow)
Second Appellant: MacKintosh; John Pryde & Co
Third Appellant: CM Mitchell, Findlater; Beltrami & Co, Glasgow
Respondent: Erroch AD; the Crown Agent

17 January 2017

Introduction
[1]        These three appeals relate to charges involving the making and possession of indecent images of children.  They have been heard together in order to consider whether the guidelines, which were issued in HM Advocate v Graham 2011 JC 1, require to be amended or updated in light of the Definitive Guideline on Sexual Offences, issued by the Sentencing Council for England and Wales in December 2013.

Facts
First appellant
[2]        On 14 April 2016, at Glasgow Sheriff Court, the first appellant pled guilty, under the procedure authorised by section 76 of the Criminal Procedure (Scotland) Act 1995, to two charges.  The first was of making indecent images of children at his home in Glasgow, between February 2013 and September 2015, contrary to section 52(1)(a) of the Civic Government (Scotland) Act 1982.  The second was of possessing indecent images of children at his home on 4 September 2015.  On 7 July 2016, the sheriff (Crozier) imposed an extended sentence of 3 years and 4 months, with a custodial element of 16 months, discounted for the early plea from 24 months. 

[3]        The circumstances of the offences are straightforward.  The police called at the appellant’s home on 4 September 2015, with a warrant to search for indecent images of children.  Such images are classified in terms of the English Guideline (infra) into three categories.  Category A involves penetrative sexual activity, sexual activity with an animal or sadism.  Category B involves non-penetrative sexual activity.  Category C involves other indecent images, not falling into the other two categories.  On the appellant’s computer there were 158 still images, 38 falling into each of categories A and B and 82 into Category C.  There were 31 moving images, 13 of which fell into Category A, 8 into Category B and 10 into Category C.  On a number of discs there were 1,685 still images; 421 at Category A, 361 at Category B and 903 at Category C.  There were also 205 moving images; 132 at Category A, 43 at Category B and 30 at Category C.  All of these images depicted children of both sexes, although mainly girls, ranging from 3 to 14 years of age.  The images had been downloaded from websites, including file-sharing applications. 

[4]        The appellant was aged 65 and had retired from work in supermarket bakeries.  He had no previous convictions.  He lived with his partner, who had multiple health problems, including severe asthma.  He acted as a carer for her.  The appellant offered no explanation for his possession of the images, other than his own sexual gratification.  The Criminal Justice Social Work Report noted that he had little or no victim empathy in that he seemed to consider that: the children depicted were enjoying the activity because they were smiling; they were actors rather than real; and the images were from 20 years ago and the activity was thus “not happening now”.  He was assessed as at low risk of general offending in terms of the LS/CCM1 risk assessment tool and at low risk of further sexual offending, using the Risk Matrix 2000.  The CJSWR specifically stated that “Public protection issues appear to be minimal.  The appellant was deemed suitable for a community based disposal.  It reported that in the event of a custodial sentence he would be assessed for suitability for the Moving Forward Making Changes Programme (MFMC), which was run within the Scottish Prison Service and in the community.  If he did not complete such a programme in custody, he could be referred to the Clyde Quay Project (part of CJSW) as part of extended sentence licence conditions.  A Community Payback Order could also provide that he attend the Project. 

[5]        The sheriff had regard to HM Advocate v Graham (supra), LJC (Gill) at para [28]; Archer v HM Advocate 2014 SCCR 206 and Ryder v HM Advocate [2013] HCJAC 63.  He took note of the terms of the 2013 Definitive Guideline (infra).  He concluded that a non-custodial disposal would not reflect the gravity of the offences.  It would not meet the requirements of punishment, denunciation and general deterrence.  He noted the large number of prosecutions for this type of offence in the sheriffdom and the continuing “quite dreadful and appalling exploitation of children”.  Although the CJSWR had assessed the appellant as being at low risk of sexual offending, the sheriff took the view that “standing the nature of the offending and the terms of the CJSWR” an extended sentence was necessary to protect the public from serious harm.  The reporting requirements under the Sexual Offences Act 2003 were noted.  However, the sheriff was of the view that the period of licence involved in a conventional sentence coupled with any work carried out in custody would be insufficient in which to carry out the work, notably that of the Clyde Quay Project, necessary to protect the public from serious harm.  Significant input was needed to protect the public from serious harm.

[6]        The appellant had set out on a pre-planned course of conduct for his own sexual gratification.  He had showed no concern for the children in the images.  He had attempted to minimise, justify and excuse his offending behaviour.  Any remorse related to the consequences to him, rather than compassion for his victims.  In all the circumstances, the sheriff reached the conclusion that, notwithstanding the appellant’s previous good character, an extended sentence was appropriate and necessary. 

Second appellant
[7]        On 14 July 2016, at the Sheriff Court at Glasgow, the second appellant pled guilty, under the section 76 procedure, to one charge of making indecent images over a period of almost 6 years, contrary to section 52(1)(a) of the 1982 Act.  On 18 August 2016, the sheriff (Cathcart) imposed an extended sentence of 3 years and 8 months, with the custodial element being 8 months, reduced from 11 for the early plea.

[8]        On 3 December 2015, the police had conducted a search of the appellant’s home for indecent images under a warrant.  On two hard drives and a computer base unit, there were 101 images, 46 in Category A of which 26 were moving, 13 in Category B and 42 in Category C.  These featured girls between the ages of 8 and 16.  They had been downloaded from the internet, including file-sharing applications. 

[9]        The appellant was aged 65.  He had retired from a career in accounts management.  He was married, but had separated from his wife after his arrest.  He had been given a brochure concerning, and had since then attended, a 10 week “Stop it Now” course, that being the National Programme for the Prevention of Child Abuse.  The CJSWR recorded that he was assessed as at medium risk of further offending in terms of the LS/CCM1 programme.  He was at low risk of sexual recidivism under Risk Matrix 2000.  The report explained that the appellant had attempted to justify and excuse his offending under reference to being de-sensitised to “mainstream pornography”.  He had a tendency to blame his difficulties on his personal life, including his having to care for a father with dementia.  Any empathy that he had for the children in the images, was superficial.  Prior to the appellant’s release from prison, a robust risk management plan would be required “to uphold public protection” when managing the appellant in the community. 

[10]      The sheriff had regard to HM Advocate v Graham (supra) and considered that a custodial sentence was the only appropriate one having regard to the category of image and the time over which the offence was committed.  He noted the need for a robust management plan and concluded that steps required to be taken to protect the public upon his release from custody, namely an extended sentence.  The extended period was fixed, having regard to the time required to complete the appropriate work with the Clyde Quay Project. 

Third appellant
[11]      On 14 July 2016, at Glasgow Sheriff Court, the appellant pled guilty at a first diet to making indecent photographs of children, during the period 8 October 2013 to 2 September 2015, contrary to section 52(1)(a) of the 1982 Act.  On 18 August 2016, the sheriff (Cathcart) imposed an extended sentence of 3 years and 9 months, with the custodial element being set at 9 months and discounted from 12 months for the early plea.

[12]      On 2 September 2015, the police had attended the appellant’s home, in possession of a warrant to search for indecent images.  They located two laptops.  A total of 540 moving images were recovered, of which 342 were accessible.  332 of these were in Category A, 137 in Category B and 71 in Category C.  There were also 188 still images of which 8 were accessible, 6 at Category A, 10 at Category B and 172 at Category C.  These had been downloaded from websites.  Considerable planning would have been required by way of searching for particular types of images.  The images were of boys aged between 3 and 11 and girls from a few months old to 7 years. 

[13]      The appellant was aged 30 and in full time employment as a haulage scheduler.  He lived with a girlfriend, who had a 10 year old daughter.  He had convictions for theft and road traffic offending.  The CJSWR stated that the appellant lacked insight into his offending and had attempted to justify it.  Risk Matrix 2000 assessed him as at low risk of general offending but at medium risk of sexual offending.  Work required to be done to raise the appellant’s awareness of the impact of his offending and to develop a “relapse prevention plan”.  Under the heading “Serious Harm/Imminence” the report said “n/a”.  If imprisoned, post-release supervision would be required.

[14]      The sheriff again considered that only a custodial sentence was appropriate and the extended period was to enable the appellant to attend the Clyde Quay Project for a period of 3 years. 

The Definitive Guidelines
[15]      The original (2007) Definitive Guideline from the Sentencing Council of England and Wales referred to numerical levels of seriousness in relation to indecent images of children (pp 109 and 113).  Level 4 involved images depicting penetrative sexual activity involving a child and level 5, sadism or penetration of or by an animal.  Possession of a large quantity of material at level 4 or 5 for personal use carried with it a starting point of 12 months custody and a range of 26 weeks to 2 years.  There then followed a number of aggravating and mitigating factors which would be taken into account in selecting a sentence within the range. 

[16]      The 2013 Guideline is different, in that it commences with the determination of an offence category as “Step One”, defined by the letters A, B and C, reflecting the nature of the indecent images.  Possession of images involving penetrative sexual activity, or those involving an animal or sadism, fall into Category A, where the starting point determined by “Step Two” for possession is set at the same level as the original Guideline, that being one year’s custody and the range at 26 weeks to 3 years; the latter being one year longer than before.  Step Two provides that, having determined the starting point, further adjustment is required according to certain aggravating or mitigating features.  At this point there is a statement, which repeats one which was present in the earlier consultation document, that:

“Where there is sufficient prospect of rehabilitation, a community order with a sex treatment programme ... can be a proper alternative to a short or moderate length custodial sentence”.

[17]      There follow the aggravating factors, which include a high volume of images, a lengthy period of possession, the existence of moving images, deliberate searching for images and a large number of different victims.  Mitigating factors include a lack of previous convictions, remorse, previous good character and steps taken to address the offending.  Thereafter, a number of further steps are required before a court arrives at a final sentence. 

Submissions
First appellant
[18]      The first appellant lodged a Note of Appeal containing three grounds.  Only two of these have been granted leave to appeal.  The first is that the imposition of an extended sentence was excessive.  The second is that, if that is correct, the sheriff had erred in holding that a non-custodial sentence was not appropriate.  Leave was refused in relation to the length of the custodial sentence. 

[19]      An extended sentence was only competent where the court could be satisfied that the period, during which the appellant would otherwise be subject to a licence, would be inadequate for the purposes of protecting the public from serious harm (1995 Act, s 210A).  An extended sentence had a considerable penal effect, given the power to revoke the licence and recall the offender to prison (Robertson v HM Advocate 2004 JC 155, Lady Cosgrove at para [30]).  Although 8 months may not be sufficient for the appellant to complete the work contemplated in the “MFMC programme organised by the Clyde Quay Project, the CJSWR had stated that the appellant was at low risk of sexual offending.  The statutory test had not been met.  An extended sentence could not be used to ensure that a low risk offender underwent a sex offender programme.

[20]      In HM Advocate v Graham 2011 JC 1, the Lord Justice Clerk (Gill) had stated that the Definitive Guideline, which had been published in 2007, should be used in all cases, as long as it remained the pre-eminent classification of the relevant offences in the United Kingdom.  Graham had been a guideline judgment in terms of sections 197 and 118(7) of the 1995 Act.  It had been stated recently in Scottish Power Generation v HM Advocate [2016] HCJAC 99 that the appropriate guidelines to look at were the current ones.  If these were applied in this case, although Step One would have classified the appellant as having committed a Category A possession offence, with a starting point of one year and a range of 6 months to 3 years, the starting point selected by the sheriff had been 2 years imprisonment. 

[21]      There was now a clear provision in the 2013 Guideline to allow for the imposition of a community order, with a sex offender treatment programme requirement, as an alternative to a short or moderate length custodial sentence, where there was sufficient prospect of rehabilitation.  The appellant’s sentence fell within this definition.  However, the possibility of a non-custodial disposal had not been discussed in HM Advocate v Graham (supra).  Thus a Community Payback Order, with a supervision requirement under section 227A of the 1995 Act, would have been appropriate.  At present, the appellant’s earliest release date was March 2017.

Second appellant
[22]      The first ground of appeal for the second appellant was that the sheriff had erred in imposing an extended sentence.  The arguments followed a similar course to that of the first appellant.  The appellant had been assessed in the CJSWR as being at low risk of sexual recidivism.  There was therefore no material upon which it could be held in terms of section 210A that the period for which he would otherwise be subject to a licence, but for the extended sentence, would not be adequate for the purposes of protecting the public from serious harm. 

[23]      The second ground was that the imposition of a custodial sentence was excessive.  Again, the argument followed the lines developed by the first appellant, relative to the 2013 Definitive Guideline.  A Community Payback Order would have been appropriate.  This appellant was on interim liberation.

Third appellant
[24]      The Note of Appeal stated simply that the sheriff had failed to have regard to a number of material factors in determining whether to impose a custodial sentence, notably, the minor record of the appellant, his plea of guilty and remorse.  An alternative to custody had been available.  This ground was refused at first sift, but granted following the lodging of an Opinion of Counsel before the second sift.  In both written and oral argument the ground was expanded upon.  It was said that the guidelines in Graham v HM Advocate (supra) were being applied in a rigid and mechanistic fashion (cf paras [21 – 22]).  The sheriff had simply applied Graham (para [27(e)]) in this way.  In the appellant’s case, the number of images had been relatively small.  He had a minor non-analogous record.  He was entitled to the protection of section 204(2) of the 1995 Act.  The CJSWR had been in positive terms.  He was suitable for a Community Payback Order involving a condition that he attend the Clyde Quay Project.

[25]      The sheriff had made no attempt to fit the appellant’s circumstances, notably the risk which he posed, into section 210A of the 1995 Act.  He had just thought that an extended sentence would be a good idea to enable him to complete the Project’s sex offender programme.  The sheriff had, in effect, imposed two separate sentences.  He had considered the appellant suitable for a CPO.

[26]      The new Definitive Guideline had stated that, if there was a sufficient prospect of rehabilitation, a community order with a sex offender treatment programme requirement was an alternative to a short or moderate length custodial sentence.  This was such a sentence.  The appellant’s circumstances were similar to those of the appellant in Ryder v HM Advocate (supra).  He was due for release on 30 December 2016.

Decision
[27]      The reasoning behind the decisions to impose extended sentences in each case is understandable in that the sheriffs considered that, whereas a period in custody was the only appropriate sentence in terms of the guidelines in HM Advocate v Graham 2011 JC 1, a custodial term would not be sufficient to enable the offender to attend the Clyde Quay Project which was designed to reduce the risk of re-offending.  However, that is not a legitimate use of an extended sentence.  Section 210 of the Criminal Procedure (Scotland) Act 1995 makes it clear that such a sentence is only to be imposed where the court is satisfied that the period for which the offender would otherwise be subject to a licence would “not be adequate for the purpose of protecting the public from serious harm”.  Although the sheriffs have attempted to justify the sentences in terms of the section, it is simply not possible to classify these appellants as posing a risk of “serious harm” to the public were they to be released during the course of, or at the end of, the period of custody imposed.  In order to reach a contrary conclusion, a somewhat convoluted course of reasoning would require to be adopted, whereby a connection would be established between accessing the pornographic images and the risk to those who might appear in similar images in the future.  Such a connection does exist in general terms, but to classify it as involving a risk of “serious harm” to the public in the sense intended in the legislation is an error (see eg Taylor v HM Advocate 2002 GWD 20-675, Barron v HM Advocate, 17 July 2007, Morrison: Sentencing Practice N17.0007; see for England and Wales R v Dixon, Court of Appeal, 29 July 2015, unreported).  It follows that, in each appeal, the extended element of the sentences must be quashed.

[28]      The issue then becomes one of whether the imposition of a custodial sentence in each case was excessive.  The starting point is the Opinion of the Lord Justice Clerk (Gill), with which the other members of the court agreed, in HM Advocate v Graham (supra).  This makes it clear (at para [29]) that regard should be had to the Definitive Guideline produced by the Sentencing Council of England and Wales “so long as it remains the pre-eminent classification of these offences in the United Kingdom”.  The Guideline, which is now that dated 2013 (see Scottish Power Generation v HM Advocate [2016] HCJAC 99), should be used as a framework, but one which should not be applied too rigidly (ibid at paras [21-22]).  Sentencing remains a matter of judgment and discretion in the particular circumstances of the case.

[29]      The difference founded upon between the Guideline current at the time of Graham and that applicable now is the specific reference to the possibility, and it is no more than that, of a community disposal aimed at rehabilitation as an alternative to a short or moderate sentence.  This is consistent with the long-standing position in Scotland, of which the court in Graham would have been aware, that a custodial sentence should not be imposed upon a person who has not previously been in custody, unless no other method of dealing with him is appropriate (1995 Act, s 204(2)).  Returning to the use of an extended sentence, what is not currently an option is a custodial term combined with a community disposal. 

[30]      It is important to recognise that, notwithstanding the existence of an alternative, the Definitive Guideline has, as a starting point for the possession of Category A images, a custodial period of one year and a range of 6 months to 3 years.  In the normal case, therefore, having regard to the Definitive Guideline, but not employing it in a mechanistic way, the starting point in each of the cases presently under consideration would be a significant custodial disposal.  This is the sentence which ought to be imposed for the possession of a significant amount of Category A images, which is the position of each of the appellants.  In order to justify a community based disposal, there would require to be some particular circumstance, such as a relatively fleeting possession, or particularly compelling personal circumstances, such as extreme old age. 

[31]      This appears to be the approach in England (see eg the custodial sentences in R v Handley [2016] EWCA Crim 1634, R v Crowther [2014] EWCA Crim 2238, and R v Horn [2014] EWCA Crim 653; cf the non-custodial disposals in R v Brynes [2016] EWCA Crim 1442, R v Colgate [2016] EWCA 1598, R v McDonald [2016] 1 Cr App R (S) 48, R v Young [2015] EWCA Crim 2512, and R v Jones [2015] 1 Cr App R (S) 9).  It is also consistent with past practice in Scotland (eg Taylor v HM Advocate (supra), and Barron v HM Advocate, (supra) both involving the High Court acknowledging time already spent in custody as relevant).

[32]      Ryder v HM Advocate 2013 SCL 724 may be seen as an exception (cf Archer v HM Advocate 2014 SCCR 206), but the appeal there turned on an acknowledged error by the sheriff and a statement that, but for that error, a non-custodial disposal would have been imposed at first instance.  The court considered (at para [12]) that the “most important consideration is that the appellant should receive professional treatment for his entrenched habit of viewing large amounts of internet pornography”.  In the present appeals, whilst recognising that rehabilitation may be an important factor in certain cases, the element of deterrence is a significant factor.

[33]      As the Lord Justice Clerk (Gill) said in HM Advocate v Graham (supra at para [28]):

“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…”. 

Although there was no distribution in the current appeals, the general statement remains relevant.  In cases such as this, as the Lord Justice Clerk continued (at para [53]), “the requirements of punishment, denunciation and general deterrence are paramount”.  The court would expect the custodial sentences to act as a sufficient discouragement to the particular appellants from accessing such images in the future.

[34]      The appeals are therefore, except in so far as relating to the extended elements of the sentences, refused.

[35]      The court would add first that, although it was not an issue for consideration in the appeal, the custodial sentence in relation to the third appellant would appear to be lenient, if not unduly so, for such a large amount of Category A moving images.  Secondly, the utility of using a deterrent custodial sentence combined with a period of extended supervision thereafter would, in cases such as those under consideration, seem clear, even if the current statutory tests for doing so are not met.  This is a matter which the Scottish Government and/or the Scottish Sentencing Council may wish to consider in due course.