In court

Custody threshold illustrations

Low value HSG An undercover police officer offered to sell H., the 33 year-old proprietor of a second-hand shop, four packs of supposedly stolen tobacco worth about £24. She accepted, thus committing the offence of attempted handling of stolen goods. Lightly convicted, her record comprising two instances of simple possession of controlled drugs; she had more recently incurred a caution for obtaining property by deception. On her appeal against six months’ imprisonment suspended for two years (SSO) with an unpaid work requirement, the Court of Appeal acknowledged that the offence had been rendered more serious than otherwise by the fact that H. ran a secondhand business. ‘Temptation necessarily comes the way of such persons and succumbing to such temptation does have to be deterred.’ However, this was a small scale purchase of goods not for resale. ‘Her shop was simply the background and she had not proposed it to be used as a vehicle for the realization of the value of the goods.’ In such circumstances the offence did not merit a custodial sentence. She had previously been cautioned for a more serious matter. ‘The limited deterrence justified by the small scale of her offending could be achieved by a community order, with a requirement for unpaid work’ and this was substituted.

R v HALL, October 2012 (not reported at time of writing).

Flagrant breach of SSO Aged 27, H. had incurred an SSO sentence of 20 weeks imprisonment suspended for two years with drug rehabilitation (DRR) and unpaid work requirements, on conviction of possessing cannabis with intent to supply. He had numerous previous convictions, mainly for offences of dishonesty, and had previously served a custodial sentence for theft, but also including several for the possession or possession with intent to supply of cannabis, all being dealt with by non-custodial sentences. His response to those community orders had been ‘poor’. Less than six months into the operational period of his SSO police officers who knew H. saw him smoking a cannabis cigarette in the street. He had thrown the cigarette away when he saw the officers but admitted that he had been smoking cannabis and pleaded guilty at the first opportunity to possessing the drug. By that stage he had performed only 30 hours of unpaid work, justifying his failure to work more hours by reference to his ill-health and to protracted difficulties which he and his partner were having in relation to the care of their young child. Those explanations had been accepted by the probation service, at least to the extent that no breach proceedings had been brought. In mitigation in respect of his new offence it was asserted that he had been particularly stressed that day because of family court proceedings in relation to his child and had succumbed to the temptation to smoke cannabis.

On his appeal against a total of 30 weeks' immediate imprisonment (comprising the implementation of 12 weeks of his suspended sentence term coupled with 18 weeks for the further offence), the Court of Appeal acknowledged that there was no evidence that he had committed any other offence in the 16 months since committing the SSO offence. Further, a PSR indicated that some progress was discernible and proposed that the DRR should be permitted to continue. However, the Crown Court had had proper regard to H.’s numerous prior convictions, his poor record of compliance with community orders and ‘the brazen nature of this further offence’ committed whilst subject to the suspended sentence. The Court considered that H.’s further offence called for a sentence of imprisonment. However, in relation to the further offence the judge had adopted too high a starting point before giving credit for a guilty plea. Though upholding an immediate custodial sentence in principle, the term for the street offence was reduced to eight weeks, making an aggregate of 20 weeks.

R v HENDREN, January 2013 (not reported at time of writing).

Persistent theft: Relevance of record

On leaving a shop without making a purchase, telling the assistant that he had no money, S. was found to have taken six bottles of wine, value around £30. Aged around 40 (he had given varying dates of birth and adopted various alias names) and originating from Italy, S. had accumulated a substantial record of convictions in the preceding nine years, mostly for theft and deception, attracting a range of non-custodial and short custodial sentences which had had little or no discernible impact on his offending, and he had frequently failed to comply with court orders. At the time of the latest offence S. had been subject to SSOs in respect of three other opportunistic theft matters: taking a woman's i-Phone, purse and credit cards in a nightclub, along with £35 cash; stealing a handbag from a couple sitting on a beach; theft of a rucksack from a train with contents worth £900. The probation service reported that he had failed to keep several supervision appointments, deemed ‘unacceptable’ absences. He had been tested frequently for the presence of cocaine and had been ‘positive’ on many occasions.

On S.’s appeal against sentence of nine months’ immediate imprisonment for shop theft following guilty plea, to run consecutively to three sentences of four months' imprisonment in respect of the earlier thefts, making 21 months in aggregate, it was argued on his behalf that nine months had been way beyond the guidelines for theft from shops as set out in the Sentencing Guidelines Council's Guideline on Theft. If it had been dealt with at magistrates’ court the maximum punishment would have been six months, subject to discount for plea. In response the Court of Appeal quoted approvingly the view of the sentencing judge that S. was ‘an inherently dishonest recidivist … self-indulgent, (with) a complete and stunning indifference to orders of the court and people's property… You are allegedly a pickpocket, a thief, a shoplifter. You have no moral scruples whatsoever’. In weighing offence seriousness, a court is required to have careful regard to the provisions of CJA 2003 s143 specifying record and non-compliance as an aggravating factor. In this instance neither community intervention nor short sharp sentences had had any impact and S. had always re-offended within a very short time. He could have no complaint at all that on this occasion the judge rightly decided that enough was enough and that a substantial sentence needed to follow this catalogue of recent offending. His appeal was dismissed.

R v SEROSI, February 2013 (not reported at time of writing).

Street violence: Offender-centred mitigation

In the course of a prolonged if sporadic late night hostile encounter between two young men, the victims, and an opposing group of five young men, including H., when all concerned had been drinking quite heavily and one of the five sought to pursue a grievance regarding one of the victims allegedly having bullied a young woman known to them, H. joined in assaulting the victims. He struck one in the face more than once, causing bruising to both eyes and swelling to the left cheek bone, prompting hospital treatment for a suspected fracture. On H.’s conviction of ABH assault, following contested trial, the Crown Court judge assessed the offence to fall within Category 1 of the definitive guideline for assault, namely ‘greater harm and higher culpability’, with a starting point of 18 months' detention and a range of 12 to 36 months. Aged in his late-teens at the relevant time, H. was of previous positive good character, with the benefit of very favourable references. During the 15 months between the date of the offence and the date of sentencing he had kept out of further trouble. The youngest of five siblings, he lived at home with his parents, his mother being in the final stages of progressive multiple sclerosis from which she had been suffering for many years but which latterly had deteriorated rapidly.

On H.’s appeal against 24 months’ YOI detention the Court of Appeal agreed that, strictly speaking, this had not been a Category One offence because it could not be properly regarded as an instance of serious harm, even in the context of an offence of causing actual bodily harm. It was, however, a Category 2 offence with a high degree of culpability and significant aggravating factors − a premeditated group attack on the streets late at the night under the influence of alcohol – with a starting point of 26 weeks’ custody. It was open to question whether the victims should be regarded as ‘vulnerable’, as the judge had deemed them, though they had been targeted and out-numbered. The crime plainly called for immediate custody; nothing else could properly be contemplated for an offence of street violence of this sort. H.’s counsel had submitted that sentence should nevertheless be suspended because there were exceptional circumstances, in particular the very recent death of his mother, since that would enable him to attend her funeral, due to take place shortly. Though clear that a shorter sentence was appropriate the Court was not persuaded that those family factors amounted to sufficiently exceptional circumstances to justify suspending sentence on compassionate grounds. However, the Court expressed a firm hope that the prison authorities would give very careful consideration to allowing H. to attend his mother's funeral. A 12 month immediate term was substituted.

R v HEFFER, February 2013 (not reported at time of writing).

Untypical nightclub assault: Offence and offender mitigation

Two men who knew each other as members of the same gym encountered each other at a nightclub, exchanging banter about their body sizes, one calling B. ‘fat’ and making a gesture simulating masturbation. B.’s elbow then made contact with the other man's cheek, B. later claiming that he believed he was coming under attack and his instinctive reaction had been to throw a clumsy punch in self-defence. The incident ended when both men were asked to leave and did so without fuss. The victim later discovered that he had sustained a fracture to the left cheek bone requiring surgery involving insertion of small plates to his jaw. An ensuing infection required a second operation. In addition to undergoing unpleasant and painful treatment he had been left with clicking of the jaw, plus residual pain in the jaw and his eye. Aged 31, B. had three previous summary convictions, none indicating a violent disposition and two being of no consequence because of their age.

On B.’s appeal against 18 months’ imprisonment following conviction of s20 GBH after contested trial, it was argued on his behalf that the sentence length should have been shorter and suspended, given the significant mitigation which was available and the lack of aggravating features. The incident had been isolated and brief, featuring a single blow that was hardly noticed by others present and was over very quickly. B. was very sorry for injuring the victim and had offered him compensation. An aviation engineer working for the past four years at a Search and Rescue Unit, he had made considerable efforts to reach that position and was one of a small team responsible for ensuring that helicopters were available at any time. His employers described him as highly trained, skilled, valued and not easy to replace. The company concerned was currently holding B.'s position open but could not maintain that offer longer-term. The Court of Appeal concluded that his sentence had not sufficiently reflected the mitigating features and substituted an immediate term of 12 months.

R v BATHGATE, February 2013 (not reported at time of writing).

Intoxicated racial aggravation: Giving weight to record

‘What does one do with a man who becomes so disinhibited as a result of his dependence on alcohol and drugs that he commits criminal offences whenever he feels like it?’ So inquired the Court of Appeal when considering appeal against sentence in respect of I., aged in his mid-30s, who had launched a completely gratuitous tirade of racist abuse and associated threats in the waiting room of a GP’s surgery, directed at a man of Bangladeshi origin who had brought his daughter aged five for treatment, including: ‘You fucking cunt. What are you going to do, you fucking Paki? I'm going to slice you up. I'll go to prison for you, you bastard’. He also grabbed the man’s shoulder. He purported to make a call on his mobile phone arranging for others to join him in pursuing those threats. When the victim called the police, I. again tried to grab him before staff intervened. When a police officer arrived, I. raised his fist as if to punch him. In the period immediately preceding this incident I. had incurred a community order with an activity requirement for an offence of theft. When this proved not viable a further community order was substituted with an alcohol treatment requirement. That order was subsequently revoked on I.’s conviction of assaulting his mother and he was made subject of a suspended sentence order (12 weeks suspended for 12 months) for that assault and the earlier theft. Having breached that order by committing the latest offence less than two months later he was sentenced to 14 months’ imprisonment for racially aggravated common assault, following guilty plea, concurrent terms of four weeks being implemented in place of the SSO. His criminal record from age 15 indicated over 130 convictions attracting a range of custodial and non-custodial sentences, including community orders with drug and alcohol treatment requirements. The majority of his convictions have been for acquisitive offences, but his record also featured several instances of common assault, ABH, affray and public disorder. Two previous offences had been racially aggravated. The pre-sentence report noted his long history of involvement with the probation service and his sporadic engagement with attempts which had been made to get him to address his deep-rooted drug and alcohol misuse, which he attributed to an unsettled childhood and becoming involved with the wrong crowd.

The Court of Appeal agreed with I.’s counsel that, but for the racial aggravation, this would have been a category 2 offence within the Sentencing Guideline for Assault, with a starting point of a medium level community order and a sentencing range of a band A fine to a high level community order. However, I.'s record and breach of previous orders, coupled with the location of the offence, the presence of the victim’s young daughter and his bid to induce greater fear, were all very significant aggravating factors. Even if I.’s prior convictions were not taken into account, the offence had significantly crossed the custody threshold. Though the victim was not injured in any way, ‘the appellant's appalling record justifies longer and longer sentences’. His appeal was dismissed.

R v ISITT, February 2013 (not reported at time of writing).

‘Paedophile’ provocation: Statutory aggravation?

When B.’s step-granddaughter complained that a man working in the shop at the caravan site where he and his family were staying had indecently assaulted her and had done so on previous occasions during their stay at the site, the police were informed. Not satisfied, B. confronted the shop worker who denied doing anything improper. B. nevertheless repeatedly punched him in the face and ribs, shouting ‘paedophile’, until an off-duty police officer intervened. Following arrest, B. admitted the attack, showing no remorse for what he had done, and said he would have continued attacking the complainant if the officer had not stopped him. He persisted in that stance when interviewed for a PSR, justifying his actions and stating that he would do the same again. He presented himself to the PSR writer as a man with a highly strung disposition. Though B. had previous convictions for dishonesty, he had no previous convictions for violence. He was regarded as a low risk of reconviction but a medium risk of causing harm if he did re-offend. The PSR proposed a community order.

On B.’s appeal against 12 months’ imprisonment following guilty plea to ABH, the defence sought to challenge the sentencing judge’s interpretation that B. had evidenced higher culpability because: (a) the attack had been motivated by, or there was a demonstration of hostility towards, his victim's sexual orientation (a statutory aggravating factor by reason of CJA 2003 s146), namely B.'s belief that the victim was a paedophile; and (b) B. had intended to commit more serious harm than actually resulted from the offence because he would have continued the attack if the officer had not intervened. In dealing with the first contention the Court of Appeal noted that s146 does not define ‘sexual orientation’ but noted a Ministry of Justice Circular (2010/05) stating that ‘hatred on the grounds of sexual orientation’ does not extend to ‘orientation based on, for example, a preference for particular sex acts or practices. It therefore covers only groups of people who are gay, lesbian, bisexual or heterosexual’. Further, the CPS in this instance had not sought to argue that this case fell within the statutory provisions. The Court was satisfied that the judge had misapplied s.146. However, the Court was equally satisfied that B. had evidenced an intention to commit more serious harm than actually resulted from the offence – taking account of the number of blows, the admitted strength of the blows and the admissions that the violence would have continued had the officer not intervened – and that was a significant factor indicating higher culpability.

As regards the further defence contentions that B. had experienced a greater degree of provocation than would normally be expected, coupled with a lack of premeditation, the Court observed that ‘any provocation which existed in a complaint of sexual assault did not justify the extent of violence that was used in taking the law into B.’s own hands, still less an intention to cause more serious injury by acting even more violently than the circumstances permitted’. Similarly, B. had deliberately sought to confront the complainant. Further, the judge had been entitled to have regard to the fact that though B. had not been drunk, there was an element of drink involved and he subsequently showed no remorse for what he had done. Balancing the aggravating and mitigating factors, the judge had properly applied the relevant Sentencing Guideline and the sentence had not been manifestly excessive.

R v BARMBY, February 2013 (not reported at time of writing).

Stalking obsession and breach of court orders

Having become obsessively interested in a long-running television drama series and one of its female characters, for example attending the studios to be photographed with the actor who played that role, R. began harassing the woman concerned, using internet social networking sites to spread rumours about her and, using the e-mail identity of a man that R. had fallen out with, to issue threats that the victim would be raped and murdered. After the matter had been referred to the police, the man she had impersonated was interviewed under caution until he was cleared of suspicion. Having received a police warning R. continued to stalk her victim, creating false e-mail accounts in the names of her victim’s sister and husband to pursue this hostile obsession. Following arrest, R. was bailed with a condition not to contact the complainant and she initially complied before attending the studios again, claiming that the actor had asked to meet her and had sent her presents. When told that the actor wanted nothing whatsoever to do with her, R. broke down and had to be restrained. Thereafter the threats became more persistent and sinister. When finally re-arrested and prosecuted for harassment, R. was remanded in custody where she remained for 11 months, the stalking conduct duly ceasing. Shortly before her trial, R. belatedly changed her plea to guilty and was bailed for pre-sentence assessment, being made subject of a stringent interim restraining order. This prohibited her from having any type of contact with the complainant, her sister or husband. A psychiatric report assessed her to be neither delusional nor psychotic and to appear genuine when she said she would not contact the complainant again. While further reports for an Asperger's assessment were awaited, R. repeatedly breached her restraining order by continuing her campaign of harassment until remanded again into custody. A combined psychiatric and psychologist's report concluded that R. suffered from ADHD and Asperger's Syndrome. She told the authors that it was not worth the aggravation to contact the complainant again and that she was keen to put the past two years behind her. They were of the view that custody would hinder the treatment interventions that were being offered to her, and in the longer term custody might increase the likelihood of her committing further offences. All report writers stated that R. was motivated to comply with a community order and recommended a 12 months’ suspended sentence, with a supervision requirement and a mental health treatment requirement.

Rejecting that recommendation, the Crown Court judge acknowledged that R. had psychological difficulties which explained why she had offended. However, in his view, it did not reduce her responsibility for what she had done. She had dragged an innocent man into an investigation. She had threatened a young woman in the public eye. She had continued with her behaviour despite warnings, bail conditions and a restraining order, all of which was an indication of lack of true remorse. She incurred an immediate custodial sentence totaling 30 months, comprising 12 months for harassment (section 4) and a further 18 months for breaching the interim restraining order. On her appeal it was argued on R.’s behalf that her sentence was manifestly excessive and wrong in principle for a 21 year-old with no previous convictions who had an acknowledged need for medical treatment. The Court of Appeal received a further probation report indicating that R.’s mental health has not been fully addressed since she has been in custody because no offence-focused work has yet been undertaken with her. However, since her recent transfer to a women’s training prison there appeared to have been a marked improvement in her general attitude. She had expressed a willingness to engage with mental health treatment requirements in the community, acknowledging that she ‘needed boundaries with people’.

The Appeal Court began by observing that ‘in circumstances where a defendant persists in pursuing harassment activities over a long period causing serious psychological harm to a victim, and does so ignoring warnings, arrests, bail conditions and court orders, it is hardly surprising when a sentencing judge comes to a conclusion that the only sentence that can be imposed is a custodial sentence of some significant length’. Further, the Sentencing Guideline Council’s definitive guideline (2006) on cases involving breach of a protective order states that even in cases where there has been no violent conduct in the breaches of an order, a case may cross the custody threshold where a high degree of harm and anxiety has been caused to the victim. However, the guideline also identifies that in circumstances where a court is satisfied that an offender intends to reform his or her behaviour, and where there is a real prospect of rehabilitation, the court may consider it appropriate to impose a sentence that will allow this to happen. The Court was satisfied that that was the situation here. The sentence imposed, although understandable, must be regarded as being manifestly excessive and a long community order with the recommended additional requirements was substituted, enabling R. to receive treatment for her ADHD and Asperger's Syndrome needs.

R v RUMBELOW, December 2012 (not reported at time of writing).

Prison contraband: Merciful response to vulnerability

On arrival at a men’s prison as a ‘domestic’ visitor, C.’s anxious demeanour attracted staff attention and she readily admitted that she was in possession of seven Subutex tablets that she had been asked to pass to another visitor once she had gained entry. She said that she had not wanted to do so and was not being paid for her role but she was unwilling to name either the person who had asked her to bring the drugs in or the other visitor. Now aged 20 she had a previous conviction at age 17 for an unrelated offence but was otherwise of prior good character. The pre-sentence report described a turbulent childhood which had left her, in the opinion of the report writer, susceptible to manipulation. Further, she had been subjected to a serious sexual assault some two and a half months before the current offence. Since that offence she had become pregnant, having previously experienced seven miscarriages.

On her appeal against an immediate 12 month custodial sentence, following guilty plea to conveying a List A article into prison contrary to the Prison Act 1952, the Court of Appeal was informed that although she had hoped to continue her relationship with the father of her unborn child he had now broken off that relationship. Though concern remained that this pregnancy too could end in miscarriage, to date it was proceeding without complications. Though it was conceded on C.’s behalf that her sentence had been, if anything, a lenient one it was submitted that it should have been suspended rather than immediate, in light of the personal mitigation. While noting that there could not be any criticism of the sentence imposed, bearing in mind the seriousness of the offence, the Appeal Court considered C.’s circumstances to be such that, as an act of mercy, a suspended sentence should be substituted, with both a supervision and a curfew requirement.

R v COOPER, December 2012 (not reported at time of writing).

Post-marriage distress: Flouting non-molestation order

Following the breakdown of her 12 year marriage to G., father of her three children, his wife sought a non-molestation order because he had bombarded her with telephone calls and text messages. Soon thereafter she was granted an occupation order of the former matrimonial home and a residence order in respect of the children. Less than two weeks later G. sent her two texts, each in broad terms indicating that he hoped she was now happy, that he was now out of her life, though sorry that it had to end this way, that he still loved the children and wishing her ‘all the best’. There was evidence that at the time G. had been suffering from a depressive episode and receiving appropriate medication. He was subsequently diagnosed as suffering from an adjustment disorder. Though his conduct generally at the end of the relationship had been upsetting for the children, there was no evidence that they had seen the offending texts. Now aged 52, his previous convictions were largely historic and a more recent offence of battery in 2007 had not involved domestic violence.

On G.’s appeal against sentence of a 12 month community order, the only requirement being a 28-day electronically monitored curfew, following guilty plea to breach of the non-molestation order, it was argued on his behalf that this disposal had been manifestly excessive, given the absence of direct contact. The Court of Appeal noted the sentencing judge’s view that G. had deliberately flouted the order of a court. She had taken into account his mental condition and plea at the earliest opportunity. She had referred to the sentencing guidelines, which suggested a starting point of a community order. She also took into account the fact that the appellant had spent four days in custody on remand and three days prior to that in police custody. In the Court’s view, given the nature of the offence and G.’s unemployment, a fine was simply not appropriate, and a conditional discharge would have no element of penalty which this offence required, the sentence had been entirely appropriate. Appeal was dismissed.

R v GRAVETT, February 2013 (not reported at time of writing).

Extreme pornography: Inadvertent possession

A film lasting 148 seconds was found stored on S.’s computer, depicting a woman engaged in sexual activity with a dog. On pleading guilty to possessing an extreme pornographic image S.’s basis of plea, accepted by the prosecution, indicated that the image had been sent to his mobile phone five years previously by a friend as a joke. He informed the PSR writer that he had opened the file without knowing what it was, had continued watching it only out of curiosity, had thought it was gross and had never viewed it again. He thought mistakenly that he had deleted it. As to how it came to be on his computer, S. explained that he used to download music files onto his mobile, and periodically he would transfer the files from his mobile onto his computer, to free up space on his mobile. In that way he had inadvertently transferred the pornographic file. That assertion was consistent with the findings of the forensic examiner who had investigated S.’s computer but did not afford him a statutory defence to the allegation. Aged 39 years and a taxi driver, S. was living with his parents. He has one previous conviction, for harassment of his former partner 11 years previously for which he was conditionally discharged. That harassment occurred when they were in dispute over his contact with their daughter. He saw his daughter regularly, and his contact with his daughter was unsupervised. The PSR author appeared not to have doubted his account of how he got the film in the first place or how it got onto his computer. She did not regard him as posing anything other than a low risk of reconviction. Invited by the defence to impose a further conditional discharge, the Crown Court judge declined to do so, indicating that although he was prepared to accept that S. had not solicited the film in any way, he was sceptical of his assertions that he had thought that he had deleted the film and that it had been transferred to his computer inadvertently.

On S.’s appeal against imposition of a community order with an unpaid work requirement for 100 hours, the Court of Appeal observed that there had not been any real basis for the judge to have doubted S.'s claim that he thought he had deleted the film. The judge had said that it was ‘rather difficult to imagine how someone with an image like that on a mobile should not make abundantly sure that it was deleted’. While that may be so, that did not mean that S. did not think that he had deleted the film. If he really had thought that he had deleted the film, any transfer of the film onto his computer would by definition have been inadvertent. If the judge had not been prepared to deal with S. on his basis of plea it had been open to him to hear evidence to determine the proper basis for sentence. The Court concluded that ‘the only culpability on S.’s part was that he did not check his mobile to ensure that he had in fact deleted the film’. ‘We do not think that so low a level of culpability could have justified the making of a community order.’ A six month conditional discharge was substituted.

R v SHARPLES, December 2012 (not reported at time of writing).

Flagrant public indecency

On a Sunday afternoon in September V. and a woman had consensual sexual intercourse in a public park, both being heavily intoxicated. They made no attempt to conceal their activity and were visible to other persons in the park including young children who were playing there. They had removed their lower clothing. They stopped only when spoken to by police officers. Aged 30, V. had previously been convicted of numerous offences, mainly involving dishonestly and none involving any form of sexual activity. His record indicated repeated disregard for court orders. In particular he had incurred a community order ten months prior to his current offence, failing to comply with the requirements, causing the order to be revoked and a 28 day term of imprisonment substituted. The present offence had been committed within a very short time of his release. On his appeal against six months’ imprisonment following guilty plea to the common law offence of outraging public decency, it was argued on his behalf that other persons had been some distance away in the park, that the genitals of V and his companion had not been deliberately exposed to view and that the offence did not involve any element of exhibitionism or even knowledge that others might see the sexual activity.

Noting that there are no sentencing guidelines directly applicable to this offence, the Court of Appeal considered other possibly relevant guidelines but concluded that these too provided little assistance. V.’s conduct had evidenced obvious aggravating factors, notably his complete disregard for the shock or distress that it was likely to cause anyone who witnessed this blatant and public sexual activity and the presence nearby of young children. The Crown Court had been entitled to conclude that the offence passed the custody threshold and that only an immediate sentence of imprisonment would suffice. Further the judge might well have been justified in limiting the credit to be given for guilty plea, given the circumstances in which V. was apprehended. However, the Court was persuaded that the sentence was manifestly excessive in all the circumstances and substituted a three month term.

R v VAICULEVICIUS, January 2013 (not reported at time of writing).

Predatory internet grooming

Becoming suspicious about the amount of time her younger sister aged 11 was spending on her mobile phone and her laptop computer, a young woman managed to gain access to the computer and discovered that she had been having sexualized conversations with a man and that they had arranged to meet for sex. The man had sent photographs of himself naked and masturbating. In return the girl had sent him indecent photographs of herself. The girl told the police that the man had contacted her via the internet, messaging her repeatedly, sexualizing their conversations and telling her what he wanted to do with her, including anal intercourse, while seeking to persuade her that he was interested in a relationship, not just sex. She had told him she was aged 13 and it was accepted that he had believed her. Further investigation led police to K. aged 23 who had used a website to contact and exchange sexual images with girls around the country aged between 13 and 15, as a prelude to seeking to meet them. He had turned up at arranged meetings with three, having intercourse with two (in one instance filming the abuse on his mobile phone) and sexually touching the third. Of previous good character, K. made ready admissions in interview.

Following guilty pleas, K. incurred an aggregate of 10 years’ imprisonment for offences including inciting a child to be involved in pornography, making indecent photographs of a child, activity with a child, taking indecent photographs of a child, causing a child to watch a sexual act and meeting a child following sexual grooming. Though having regard to what was characterized as ‘powerful mitigation’, based upon the offender’s age and the assessment that he was a man of low self-esteem who has been bullied most of his life, the Court of Appeal also characterized his offending as ‘in effect a campaign which lasted some 18 months, carried out by an older man, to meet on the Internet and then groom young girls whom he had specifically targeted because of their young ages. He was in effect a sexual predator’. Though the sentence had been severe, it could not be considered manifestly excessive. The appeal was thus dismissed.

R v KENNEDY, February 2013 (not reported at time of writing).

Child pornography: Offence aggravation v. personal mitigation

When K.’s partner discovered that he had an album of images of young girls, included four photographs of her deceased daughter in a state of undress, she informed the police. When his computer was investigated he was also found in possession of indecent images of young girls aged between two and 15, obtained via the internet, the overwhelming majority of the material being classifiable as ‘Level 1’. He made immediate admissions. Aged in his early 40s he had no prior convictions of a similar nature, having a single unrelated conviction attracting a community order some six years previously. The PSR assessed him as posing a low risk of committing further offences but considered that any such offending would involve a high risk of serious harm to children by reason of their exploitation in the production of indecent images. He had informed the report writer that he had been accessing child pornography two or three times a week over a four year period and that his interest was in under 13 year-old girls The report proposed a three year community order with requirements including participation in a sex offender programme.

On K.s appeal against an aggregate sentence of 24 months for possessing and making indecent images of children, the Court of Appeal noted that the images had been accumulated for personal use, there being no evidence of distribution to others or pursuit of commercial gain. As regards the photographs of his partner’s daughter, these were at Level One and would have been ‘completely innocent when taken by a parent in an ordinary domestic setting’ but this was not the case in this instance, given that K. had never met the young girl in question. His partner had shown the photographs to him and he had misappropriated them without permission, thus acting in gross breach of trust. Whilst an immediate term of custody was entirely justified in this case, in light of K.’s large-scale downloading of images of children, focusing on girls under 13, a well recognized aggravating feature, the terms should have been concurrent, not consecutive. Further, even had the original sentence been maintained, there would have been insufficient time for K. to undertake an Internet Sex Offender Treatment Programme in prison. On his release, K. would be subject to a ten year sexual offences prevention order. However, the Court was concerned that he would not have had the benefit of any work focusing on his abhorrent use of the Internet. It is clear from reports that K. was well motivated to participate in such work. The Court concluded that ‘the community will now be best protected by an order which enables some constructive work to be done with him in the community’ that could serve to prevent repetition. Accordingly, the appeal was upheld, a community order as proposed in the PSR being substituted.

R v KING, February 2013 (not reported at time of writing).