Abstract
Nigel Stone, Visiting Fellow in the School of Psychology, University of East Anglia, reviews recent appeal judgments and other judicial developments that inform sentencing and early release.
General sentencing issues
Requirement for a PSR sidestepped: Money laundering
A sentencer has a statutory duty to consider a PSR before passing a custodial sentence but the limited strength of that obligation in practice is illustrated as follows. In the course of running a second-hand car sales business (of which J., a long-term associate, was a sleeping director) A. induced the victim to make him payments exceeding £77,000 on the strength of false representations that if she invested in the business she would share the profits. She had taken out a second mortgage on her home to fund her ‘investment’. Nearly £48,000 was placed in a bank account in J.’s name. J. permitted A. to access this account freely to facilitate this fraud, much of the proceeds being dissipated through casino gambling in which J. had participated. On arrest J. had claimed that he had allowed A. to use the bank account simply as a favour because A. had a poor credit record and could not open an account himself and that the account had been entirely controlled by A. He said that he had known nothing of any fraud and had received no money. Aged 45 and a naturalized British citizen who had come to the United Kingdom in 1993 as a civil war refugee, he had no prior criminal record and worked as a waiter in a restaurant.
On J.’s conviction of possessing criminal property (contrary to the Proceeds of Crime Act 2002 s329), the defence applied for his case to be adjourned for a PSR, on the basis that, having regard to his previous good character and ‘limited role’ in the crime, the Crown Court could consider an alternative to immediate custody. The judge refused, indicating that in his view such a report would not assist. Applying the relevant sentencing guidelines in respect of money laundering it was accepted that J.’s offence fell into category A (‘high’) in respect of harm, given the sum involved, but the judge indicated that he was prepared to accept that J. fell into Category B (‘medium’) as regards his level of culpability, on the basis that he believed that J. had suspected rather than known that the money represented proceeds of criminal conduct. The starting point for such a categorization is 18 months’ custody with a range of 26 weeks to three years imprisonment.
On J.’s appeal against 15 months’ imprisonment (A. incurring 42 months), it was argued on his behalf that as his sentence could be lawfully suspended, it was wrong in principle for the judge to have sentenced him to immediate custody without first obtaining a PSR. Though a probation officer would be unlikely to tell the judge anything about J. that counsel could not, what counsel could not do was to give a probation officer’s opinion on the defendant's suitability for a non-custodial sentence and recommend the requirements to be attached to a community order or a suspended sentence. The Court of Appeal reminded itself of the relevant statutory provisions within CJA 2003. Under s156(3)(a) and (4) a court must obtain and consider a pre-sentence report before forming any opinion mentioned in s152(2) and s153(2) 1 as regards passing a custodial sentence, unless ‘in the circumstances of the case the court is of the opinion it is unnecessary to do so’. No custodial sentence is invalidated by the failure of a court to obtain and consider such a pre-sentence report (s156(6)).
The Appeal Court found it difficult to conclude that the judge was wrong to say that a pre-sentence report was unnecessary. A pre-appeal report by a probation officer had since been obtained and added little or nothing to any assessment of J.’s role in the offence, repeating, in effect, what had been put before the judge on J.’s behalf, although the author of the report had gained the impression that J. might have been more aware of what was going on than he was willing to disclose. As regards J.’s personal circumstances the report added little to what was known at the Crown Court, albeit assessing J. to pose a low risk of serious harm to the public at this time, and as suitable for an unpaid work requirement if the Court was to consider that a community penalty was appropriate. In the Court’s view, by lending his bank account to the co-accused, J. had facilitated extensive fraud and, by actively allowing withdrawals, he facilitated the dissipation of those funds fraudulently obtained. He may not have been involved in the fraud itself but he had suspected that the monies he was receiving into his account were criminal proceeds. Further, it could not be said that J. had not been motivated by any personal gain: ‘His gambling may have been to a lesser extent than that of the co-accused, but on the evidence he was prepared to gamble, in part, with suspected proceeds of crime’. It could not be said that the sentence passed was manifestly excessive or wrong in principle. Nor could it be said that this was a sentence which was bound to be suspended. ‘Any decision on suspension is very much an exercise of discretion of a sentencing court with which this Court will rarely interfere.’ 2
R v JAMOUS [2016] Crim LR 223.
Notes
Under s152(2) the court must not pass a custodial sentence unless it is of the opinion that the offence is so serious that neither a fine nor community sentence can be justified. Under s153(2) any custodial sentence must be for the shortest term that in the opinion of the court is commensurate with the seriousness of the offence.
The Sentencing Council is proposing to issue a new definitive guideline for the imposition of community and custodial sentences and has issued (January 2016) a draft for consultation that includes guidance on determining when to impose a suspended sentence.
Firearms minimum term: Holistic approach
On learning that a drug dealer, a friend of her son, had been arrested, G., aged 54, went to the address where the dealer lived with his mother with whom G. was on friendly terms. Though G. later claimed that she called there simply to inform the mother of her son’s arrest and provide emotional support, the trial judge later concluded that she went to warn the mother of the imminent arrival of the police and to assist in the disposal of items relating to drugs (the former seemed to the judge to be the most likely). Officers attending the address soon after G.’s arrival there saw her standing at the front door, holding a plastic bag. She was also seen being handed a small object which she put into her trouser pocket. On walking away, she saw the officers and discarded the bag behind a car. After she had been stopped the bag was recovered and found to contain just over 50 grams of herbal cannabis in self-sealed bags. On being searched she was found in possession of a small revolver wrapped in a brown sock and claimed: ‘I didn’t know what it was’. The gun was old and unloaded but had been modified to fire conventional cartridges and was in working order. No ammunition was recovered.
At trial G. pleaded guilty to possessing a prohibited firearm (contrary to the Firearms Act 1968 s5(1)) but not guilty to drug possession with intent to supply, being acquitted. Though the firearms offence carries a mandatory minimum sentence of five years’ imprisonment in the absence of ‘exceptional circumstances relating to the offence or to the offender’, the Crown Court concluded that there were such circumstances and imposed two years’ imprisonment suspended for two years, with a ‘structured supervision for women’ requirement. The judge made findings of fact that G. did not know that there was a firearm at the mother’s address when she went there and that there was a doubt as to whether she knew that she had been given a gun. The judge had thus felt obliged to sentence on the basis that G. did not know at the time the gun was given to her that it was a prohibited weapon. Though the firearm was doubtless intended to facilitate criminal activity there was no evidence that it had been used for that purpose.
On reference by the Attorney General on grounds of undue lenience the Court of Appeal observed that, in light of the findings of fact, including the reason why G. had gone to the address, some of what G. had told the PSR author must have been untrue. However, the probation officer reported that she evidenced ‘deep remorse for her actions’ and had shown an understanding of the impact a prohibited firearm can have on members of the public, her son having been the victim of a shooting four years earlier, sustaining life-changing injuries both physically and psychologically, so that he now rarely left the house and had become totally dependent on his mother, his sole carer. His GP had expressed real concerns as to what would happen to him if G. was no longer able to care for him. Further, she had experienced a very unpleasant and abusive childhood and had gone on to form abusive relationships with men. The PSR described her as having very low self-confidence and fearing confrontation with men. Nevertheless she had attended college in her early-30s in an attempt to gain a health and social care qualification but her ambition to become a social worker had been thwarted by her own ill-health. She had suffered from cancer requiring chemotherapy, major surgery and radiotherapy and had had a colostomy, leaving her with significant functional problems. Although now in remission, she has endured scares as to a possible resurgence of the cancer, and she has undergone further surgery to excise malignant tissue, including the removal of three ribs. She also suffered from clinical depression and panic attacks. She was assessed as likely to find it difficult, albeit not impossible, to manage physically in prison where she might well need outside treatment and care, including further surgery. She had two previous convictions dating back to 1992, for possession of drugs with intent to supply and possession of controlled drugs, attracting a suspended sentence of six months’ imprisonment. Character references described her as a quiet, kind and caring person who would go out of her way to help others less fortunate than herself.
The Appeal Court concluded that this ‘was not a straightforward sentencing exercise’. Parliament’s intention was clear: to deter those who might be tempted to possess and/or use firearms from doing so and thereby reduce the number of firearms on the street. The courts had no option but to interpret the words ‘exceptional circumstances’ strictly; ‘to be more generous to the offender would lead to the real risk that those with unfortunate personal circumstances would be recruited by those who wish to move firearms around the country’. G. had ‘very powerful mitigation’. She was ‘on the periphery of the firearms offence, having the gun in her possession for a matter of minutes at most and not knowing what it was’. ‘Her actions were a misguided attempt to help her friend. Those much more heavily involved in the firearms offence and involved in drug dealing received sentences at about the same level as the Attorney General argues was appropriate for her.’ She had pleaded guilty, her health was very poor and she has primary caring responsibility for her sick son. On the other hand, when she went to the dealer’s home, intent on warning her friend, ‘she took a chance that she might be involved in thwarting a police investigation and clearing the house of incriminating items. One of those items might have been, and indeed was, a gun.’
Adopting a ‘holistic approach’ and recognizing that a deterrent sentence will have no deterrent effect upon offenders who do not know that they are in possession of prohibited guns, the Appeal Court rejected the submission that the judge was plainly wrong to find exceptional circumstances. ‘It was a decision open to her on the basis of the cumulative effect of the offender’s plea of guilty, the circumstances of the offence, and the compelling personal circumstances of the offender’. As regards the sentence imposed the Court considered that ‘a sentence of two years may have been merciful but would not have been unduly lenient; it was, however, unduly lenient to suspend it’. ‘We might have been persuaded to intervene and remove the suspension had it not been for information received’ during the appeal hearing, namely that G. had been subject to 445 days on a qualifying curfew while remanded on bail and thus was entitled to credit for 223 days towards any immediate custodial sentence to be served. She also deserved some credit for the fact she has been responding positively to the demands of her supervision requirement. On that basis the Court was persuaded that, ‘although this sentence was in principle unduly lenient, it would be wrong to interfere with it’.
ATTORNEY GENERAL’S REFERENCE No. 91 of 2015 (R v GOLDEN), January 2016 (not reported at time of writing).
Relationship violence: Lessons from an ‘unhappy history’
Having embarked on a relationship with a serving police officer, M. soon moved in with her and the relationship rapidly became turbulent, involving violence from time to time. Over the following four months he assaulted and abused her on several occasions, by punching, kicking and biting her, by forcibly cutting her fringe before threatening to pour nail polish remover over her dog and set fire to the animal and, in one instance, trapping her arm in her car window when she sought to remove the keys to prevent him from driving uninsured. The latter incident prompted her to report this abuse to the police, making a full statement of complaint which resulted in his arrest, charge and remand in custody. Later she retracted that statement and said that she did not want to give evidence against him. Aged in his late-20s M. had a criminal history that included previous convictions involving relationship violence, including harassment (in one instance attracting a restraining order), cruelty to a child and inflicting grievous bodily harm, the latter attracting two years’ imprisonment.
M. ultimately pleaded guilty to four offences of common assault, allegations of harassment being left on file. A PSR reported that he minimized his responsibility for his behaviour and had little awareness of the risk that he posed. The report writer considered that these assaults formed part of an ongoing pattern of domestic violence behaviour and that M. posed a serious and imminent risk of serious harm to partners and children which was said to be very high. The report recommended the imposition of a suspended sentence. By the date of sentencing M. had been in custody for something over five months. The victim, who by then had left the police service, had written a letter to the judge stating that she wished to resume her relationship with M. Having determined that the assaults, although not causing serious harm, crossed the custody threshold the Crown Court judge imposed consecutive terms of three months’ imprisonment for each offence, totalling 12 months, suspending sentence for 18 months.
On M.’s appeal against sentence the Court of Appeal noted at the outset that though his offending merited imprisonment, common assault is a summary only offence and the maximum aggregate term a magistrates’ court may impose on any one occasion for more than one summary offence is six months; the sentence imposed had therefore been unlawful. Referring to the relevant sentencing guidance (Domestic Violence Overarching Principles, Sentencing Guideline Council, 2006) the Court cited passages dealing with the views of the victim that sentencing should be determined by the seriousness of the offence, not by the expressed wishes of the victim, not least because ‘it is undesirable that a victim should feel a responsibility for the sentence imposed’ and ‘there is a risk that a plea for mercy made by a victim will be induced by threats made by, or by a fear of, the offender’. However: … there may be circumstances in which the court can properly mitigate a sentence to give effect to the expressed wish of the victim that the relationship be permitted to continue. The court must, however, be confident that such a wish is genuine, and that giving effect to it will not expose the victim to a real risk of further violence. Critical conditions are likely to be the seriousness of the offence and the history of the relationship. (Domestic Violence Overarching Principles: para 4.3) … this guideline should not be read as an encouragement to take this course too readily. Rather, it can be read as emphasising the need to exercise real care before imposing a more lenient sentence than would otherwise be the case because of representations on behalf of the victim. Such care is clearly necessary and such a course should not be lightly taken.
‘With no enthusiasm at all’ the Appeal Court was obliged to quash the unlawful sentences and imposed instead a concurrent term of four months’ imprisonment on each, suspended for 18 months, with effect from the date when they were imposed at the Crown Court, observing that ‘justice may not have been achieved in this case. No doubt the Crown Prosecution Service will consider at an appropriate level what lessons may be learned from this unhappy history.’
R v MOORE [2016] Crim LR 223.
Cannabis production: Mother’s immediate custody
Mother and primary carer of two children aged three and 18 months, V. had joined with her partner G. in growing cannabis plants at his parents’ home. When the police searched that address, 20 plants were found at a mature stage of their growth cycle, with a potential yield of approximately 2.65 kilograms and a street value of £26,500. The set up was described as fairly sophisticated, involving heat lights, extractor fans, fertilisers, hydroponics systems and the usual paraphernalia. Their basis of plea to producing a controlled Class B drug asserted that they had started to produce cannabis on a small scale as a means of repaying a debt but that their creditor (who they declined to name) started to exert increasing pressure upon them to repay the debt so that the last crop of cannabis grown was significantly more than had been involved before. The electricity meter had been bypassed by somebody else. The sentencing judge drew a distinction between the two defendants on the basis that G. had been responsible for initiating V. into the scheme. Further, she had no previous convictions and was otherwise of good character. The PSR writer recommended that she should be considered for a suspended sentence with attached requirements (SSO).
On V.’s appeal against 10 months’ immediate imprisonment (G. incurring 18 months’ imprisonment) it was argued on her behalf that an SSO would have been adequate to reflect her criminality and personal mitigation. The Court of Appeal acknowledged that 15 months could be described as a ‘severe sentence’ but not manifestly excessive. Further, the judge had not been wrong in principle in refusing to consider suspension of sentence to reflect V.’s domestic circumstances, given that the children would be adequately cared for by their grandparents. Her appeal was refused (G’s sentence was reduced to 12 months).
R v VANDERGRYP and GREEN, November 2015 (not reported at time of writing).
Mentally disordered offenders
Bi-polar disorder: Preserving special accommodation
O. went to a Mental Health Centre to recover a mobile phone and £30 that he felt was owed to him by a former fellow patient, telling a member of staff that ‘I’m going to find her, I’m going to kill her, I’m going to stab her’. The staff member believed his threat and called the police. He pleaded guilty to making a threat to kill. He had one previous conviction, for sexual assault, attracting two years’ imprisonment six years previously and had received a caution for arson a year prior to the current offence. A psychiatric report indicated that O. had a well-established diagnosis of Bipolar Affective Disorder, though not such as to warrant detention or treatment under the Mental Health Act. The psychiatrist considered that a custodial sentence would not be desirable because it would disrupt O.'s fragile social integration and community rehabilitation, recommending a community disposal with a condition of treatment. A PSR made a similar proposal, adding that although O.’s bipolar condition was kept under control as long as he took his medication he had admitted not taking medication at the time when he committed this offence. The Crown Court judge concluded that O. was a perfectly fit and able-bodied man who had committed a serious offence. Furthermore, the PSR had assessed him to pose a real risk of further offending. In the circumstances some protection for the general public was required.
On O.’s appeal against sentence of six months’ immediate imprisonment the Court of Appeal was informed that his accommodation, provided to him by a charity, and offering regular supervision, would no longer be available to him after the end of the month in which his appeal was heard and that it would take many months to find alternative housing of that nature. As regards the argument that a community order should have been imposed, the Court observed that other judges might not have taken the line adopted in this instance but it did not think it could be said that the judge erred in principle in considering that a custodial sentence was appropriate, given not only the nature of the offending but the fact that there had been acts of aggression in the past. As to the claim on O.’s behalf that the judge ought not to have paid any attention to the finding in the PSR that there was a high risk of future offending and of causing harm to the general public, the Court considered that that was a factor that a judge was plainly entitled to take into consideration when deciding whether or not to impose a custodial sentence or to take the alternative line of a community sentence.
Finally, the judge had commented in passing sentence that part of the threat to kill uttered by O. had included a statement that he intended to burn down a particular ward at the hospital. The defence claimed that as O. had never admitted making that comment the judge ought not to have taken it into account. The Appeal Court saw some force in that submission, though whether at the end of the day it would justify reducing the admittedly severe sentence imposed for this offending was another question. However, the Court was persuaded that, having regard to that factor, and the risk, unless he was released, that O. would lose his supervised accommodation, some reduction should be made, as that loss would not be in the interests either of him or the general public. Accordingly, sentence was reduced to four months to ensure that he left prison speedily and resumed the accommodation still open to him.
R v OSMAN, November 2015 (not reported at time of writing).
Personality disordered and alcohol-dependent: Flawed assessment of dangerousness
O. had long standing alcohol and drug related problems and had sought assistance from various outreach centres. On the date of his current offending episode, while he was on bail for separate allegations of assault on two police officers and also upon his former girlfriend, with bail conditions prohibiting him from contacting his girlfriend or going near her address, he had attended one outreach centre and had been abusive to staff when he did not receive the response he sought. Later that day he attended at another centre. He was due to be assessed for a residential admission but when he was breathalysed it was shown that he had a significant quantity of alcohol in his breath and was certainly over the legal limit for driving. He was told he would not be offered a placement whilst he was under the influence of alcohol, whereupon he became tearful, aggressive, arrogant, intimidating and abusive and it took over an hour for staff to persuade him to leave. That night after he had consumed much more drink he drove a vehicle through red traffic lights and struck another car. He failed to stop and continued driving dangerously before crashing. When police officers attended the scene they called for him to stop as he was leaving on foot. Having initially ignored them he then turned to face them, producing a silver handgun which he pointed towards one of the officers’ heads, saying: ‘I’ll fucking kill you. Back off’. The other officer lunged towards him in order to push the gun away and as he did so he received a gunshot wound to his hand. A struggle ensued and O. was arrested, 29 live cartridges being found in his pocket. At this point O. said: ‘Fuck knows what I was going to do with them. I’m a psycho. I’m off my nut. I’ve tried every mental health agency. I just go to extremes’. He accepted that he had ‘fucked up’ and said that he had never meant to hurt anyone, also stating that he had thought that the gun was a toy and he did not think it was a real one. He refused to name the person who had provided the weapon. Expert evidence indicated that it would not have been possible for the gun to have been fired accidentally; it would have taken an effort to pull the trigger and therefore the injury to the police officer’s hand was deliberately caused. Fortunately the injury to the officer’s hand was not of long-lasting physical effect. Both officers had experienced a significant psychological impact, suffering loss of sleep as well as partial loss of hearing caused by close proximity to the firing of the gun.
After O.’s guilty pleas to offences of causing grievous bodily harm with intent, dangerous driving, possessing a firearm with intent to endanger life and possessing ammunition with intent to endanger life, having conceded only on day of sentence that he had known that the gun and the ammunition were real, the Crown Court received a psychiatric report and a PSR, neither of which assessed O. to be ‘dangerous’ within the ambit of CJA 2003. The psychiatrist considered that the future risk was likely to be ‘situational’ in nature and that it was only when alcohol and/or interpersonal stresses combined, such as did occur at the material time, that there was a risk to others; otherwise O. was not considered to be a person of mental instability who at liberty would similarly re-offend and present a grave danger to the public. The PSR author noted that there appeared to have been an escalation in O.’s offending, since one of his previous convictions, in the year before the current crime episode, had concerned an assault upon a member of staff in an outreach centre which indicated that there was an emerging pattern of violent offences against public service staff. However, relying upon the psychiatric opinion, the probation officer concluded that O. had shown himself able to abstain from his previous self-destructive behaviour and concluded that his risk was manageable. The judge had considered both opinions flawed in that neither author had reached their view on the correct basis that O. had had with him a handgun capable of firing and a quantity of live ammunition, and appeared to have been making his way in breach of his bail conditions towards the residence of his estranged girlfriend. Instead they had accepted O.’s account that he had been told that the gun was ‘a boy’s toy’ and believed that the bullets were ‘£1 coins’.
On O.’s appeal against an extended sentence of 16 years’ imprisonment (comprising a custodial element of 12 years and extended licence period of four years), it was argued on his behalf that the judge had erred in determining that O. satisfied the dangerousness criteria. It was claimed that if the sentencing judge considered the psychiatric report and PSR to be founded on a false account of the facts, he should have sought further reports. Further, the judge should also have ignored O.’s previous convictions because these were historical and therefore of no assistance in assessing whether he presented a significant risk of causing serious harm by the commission of specified offences in the future.
The Court of Appeal concurred with the judge that the reports had been grounded on a false premise and were thus flawed. Neither of the authors seemed to acknowledge the fact that the management of O.’s behaviour corresponded to him being in custody. Further, O.’s past contact with psychiatric services in the community had been documented as ‘being rather chaotic and related to crisis rather than sustained planned contact’. He had been assessed under the Mental Health Act 1983 s136 on multiple occasions, generally in the context of intoxication and suicidal ideation or overdoses, and also been admitted for in-patient alcohol detoxification. He has been diagnosed with alcohol dependence and emotionally unstable personality disorder (PD). He had continued to externalize his problems and avoid responsibility, being dismissive of help and interventions. Because of his PD he had a tendency to act impulsively without consideration of the consequences, to experience unpredictable and capricious moods with a liability to outbursts of emotion and incapacity to control behavioural explosions, to engage in quarrelsome behaviour and conflicts with others, especially when impulsive acts are thwarted or censored. In addition it was clear that O. also suffered from alcohol dependency syndrome and a strong desire to drink despite harmful consequences.
In conclusion, the Appeal Court considered that the judge had been amply justified in rejecting the conclusions in the reports. He had had sufficient information from them and other information upon which to legitimately draw his own conclusions. In the circumstances he had not been obliged to seek other reports. Though some of O.’s convictions had been historic he had incurred a more recent conviction for violence and was on bail at the time for alleged offences of domestic violence against his estranged partner. He had driven a motorcar whilst drunk, while in possession of a handgun when drunk and able to fire it. There is still no reasonable explanation apparent to us why he was in possession of a loaded gun at all. The fact that he used that gun in public to threaten a police officer, to hold a gun against his head and thereafter to use it when another police officer tried to disarm him, indicated that he was a dangerous offender. ‘These facts, seen in the context of the borderline PD and the alcohol dependency, were more than sufficient to cross the Rubicon.’ O.’s ‘unmanaged mental health problems and his ‘situational’ behaviour indicated that the public should be protected by an extended licence period’. However, to honour fully the credit due for guilty plea, the custodial term was reduced to ten years.
R v OLSEN, November 2015 (not reported at time of writing)
Sexual offending
‘Consensual’ sexual activity with a child
R. lived in the same village as C. and they hung around together with a common group of friends. When R. was aged 20 and she was aged just 15 they had sexual intercourse on eight occasions on what the Court of Appeal later described as an ‘entirely consensual’ basis. Their sexual relationship came to light after C.’s parents installed software on her mobile phone to enable them to intercept and download her messages. Meantime C. had texted R. that she wanted the relationship to end as she believed that he was not interested in her but only in sex. He texted back pleading with her not to end the relationship but there was no more sex. On R.’s prosecution for an offence of sexual activity with a child, C. opted not to give evidence and guilt was established by indirect evidence.
On R.’s appeal against three years’ imprisonment the Court of Appeal noted that the relevant Sentencing Guideline identified for a ‘Category A’ version of the offence a starting point of five years’ imprisonment with a range of four to 10 years. For ‘Category B’ the guideline identifies a starting point of one year and a range of a high level community order to two years’ imprisonment. The Appeal Court considered that this case fell clearly into Category B but had two features which took it beyond the 12 month starting point: there were eight occasions of sexual intercourse in circumstances where R. was well aware that what he was doing was unlawful. Secondly, there were aggravating factors which the judge had identified: the pressure put upon C. to continue with the sexual relationship and C.’s vulnerability, in that she had personal problems and R. knew she had made previous allegations of sexual abuse against a relative. However, the judge had rightly regarded their age disparity as not significant. Among the mitigating factors: R. ‘was of good character, he was young, he was relatively immature, he did not lie to his victim about his age, and he had a job, was in a stable relationship and had a small child’. Another feature of the case was that after the trial but before sentencing R.’s brother had died.
The Appeal Court concluded that the starting point before reduction for personal mitigation should be one of 18 months’ imprisonment. The personal mitigation was ‘strong’ and in consequence this offending merited a sentence of 12 months’ imprisonment but this was not an appropriate case for suspension of sentence.
R v RICHARDSON [2016] 1 Cr App R(S) 20.
Distributing indecent photograph to groom youth
Using a fake name B. made contact over the internet with J., a youth aged 17 who, by reason of his form of autism, functioned as a 12 year-old. During their internet conversations B. showed J. what he pretended to be a live sex scene, which was actually a video showing an adult male engaging in sexual activity with a female child. When J. expressed disgust and asked how old the child was, B. told him that she was seven and invited J. to show the female child his penis. This exchange came to light when J.’s father came across their messages on the home computer. On prosecution for an offence of distributing an indecent photograph of a child B. changed his plea to guilty only on the day set for trial.
The PSR writer reported that B. had experienced shame and embarrassment. His relationship with his partner had ended due to the offence and he had lost contact with friends and family. At the time of the offence he had been employed supporting vulnerable families. He was assessed to pose a medium risk of serious harm to children and the PSR proposed a community order.
On B.’s appeal against 16 months’ imprisonment it was common ground that as the sexual activity in the video was non-penetrative sex the offence attracted a starting point of one year’s custody with a range between 26 weeks and two years, applying the relevant Sentencing Guidelines. However, the judge had placed emphasis upon the potential effect of B.’s conduct, in distributing ‘this sort of filth to a complete stranger’ in a way that would outrage the public, also identifying the inevitable planning that must have gone into his initiative: ‘You’d set all of this up; you had to make sure that you were communicating with someone who might be receptive to this type of pornography, you had to obtain the appropriate video. If you had just wanted to observe another man masturbating there would be no need … for you to have used a video of a pre-pubescent child.’
The Court of Appeal agreed: ‘This was not just the distribution of the image, it was distribution for a particular purpose. It was to be carried out so as to engage J. in sexual activity ‘. Though the end result was a severe sentence it was not manifestly excessive. Turning to the Sexual Harm Prevention Order imposed at time of sentence, the Court noted that ‘the question for the judge was whether such an order was necessary for the purpose of protecting the public, or any particular members of the public, from sexual harm’. Not every case of distribution will warrant the making of such an order. Similarly, distribution to a 17 year-old will not necessarily demonstrate a risk to children of a younger age, but it all depends on the facts of the particular case. ‘In this instance this was not just a case of simple distribution: it was distribution to a young person, a stranger, for a particular purpose,… to entice the boy to expose his penis’. There was ample evidence to satisfy the requirement of necessity on the facts of this case.
R v BINGHAM [2016] 1 Cr App R(S) 3.