INDECENT PHOTOGRAPHS OF CHILDREN

Total sentences of six years and nine months’ imprisonment and six years’ imprisonment imposed on a male and female offender respectively following guilty pleas to child sex offences were lenient, but not unduly lenient. The female offender had sent the male offender images of her and her daughter, aged between two and six, engaging in sexual activity. The offending had been rightly categorised in Category 2A of the relevant guideline and the judge’s approach to sentencing was not flawed.

A judge had been entitled to refuse severance of an indictment, meaning that an offender was tried for historic and recent counts of child sexual offences at the same time. The Criminal Procedure Rules 2015 r.3.21(4)(a) had removed the technical barriers to joinder in appropriate cases: where evidence on one count would be properly admissible on the other as evidence of bad character it was hard to argue that the offender would be prejudiced in his defence by having both counts on the same indictment. In the instant case, the recent counts would have been admissible as bad character evidence at the offender’s trial on the historic counts and vice versa.

The terms of a sexual offences prevention order imposed on an offender who had been sentenced for voyeurism, which included an almost blanket ban on using the internet, were changed where its terms did not conform to the guidance given in R. v Smith (Steven) [2011] EWCA Crim 1772 with the result that it was unworkable and disproportionate.

The court upheld a sexual harm prevention order, imposed for an indefinite duration, where an offender had received concurrent suspended prison sentences of 18 months after pleading guilty to three offences of possession of indecent photographs of a child and one offence of possessing an extreme pornographic image. Although the order had been imposed in circumstances which were far from satisfactory because the judge had not given explicit reasons to support the making of an indefinite order, the offender had given no indication whatsoever that he would address his offending behaviour and its causes. An order for an indefinite duration was necessary and proportionate.

Following the appellant’s retrial for sexual offences, the judge had been correct to impose a special sentence of custody for offenders of particular concern. However, the term imposed, namely a custodial term of 16 years and an extended licence period of one year, contravened the Criminal Appeal Act 1968 Sch.2 para.2(1) because it was “of greater severity” than the 17-year sentence imposed at the original trial. That was because of the release regime applicable to offenders who were subject to a special sentence of custody for offenders of particular concern.

A judge had had insufficient regard to totality when imposing consecutive extended sentences totalling 38 years on a prolific sex offender who had pleaded guilty to committing 137 offences over the course of 10 years. A large number of the offences involved the deliberate targeting of vulnerable children on the internet, persuading them to provide him with naked images of themselves and blackmailing them to provide increasingly graphic and humiliating images of them taking part in degrading acts. An extended sentence of 25 years’ custody, with an extension period of eight years, was substituted for the original sentence.

To establish “possession” for the purposes of the offences of possessing indecent images of children or extreme pornographic images, the prosecution had to establish (a) that the images were within the accused’s custody or control so that he was capable of accessing them, and (b) that he had known that he possessed images. Where unsolicited images were sent to the accused by the messaging application “WhatsApp” and automatically downloaded to his phone’s memory, it was highly likely that (a) would be made out; whether (b) was made out would depend on whether he knew he had received images.

Where an offender had distributed an indecent photograph of a girl under the age of 18 contrary to the Protection of Children Act 1978 s.1(1)(b), but it was unclear if the girl was under 16, a notification requirement should not have been imposed on him. He had not been convicted of an offence listed within the Sexual Offences Act 2003 Sch.3, which was necessary to impose a notification requirement. There was a clear discrepancy between those provisions, and the court would have to be alive to that discrepancy when discharging its duty under the Criminal Procedure Rules and, if necessary, decide whether a child’s exact age could be resolved.

Six convictions for making indecent images of children were inconsistent with not guilty verdicts reached on eight similar counts. Although the defendant had viewed the relevant images, that was true in respect of the counts on which he had been acquitted and there was clear evidence that when he saw indecent material, he deleted it.