POSSESSION OF EXTREME PORNOGRAPHIC IMAGES

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.

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.

An extended sentence of 39 years, with a custodial term of 33 years, imposed in respect of a very large number of serious sexual offences against young girls was manifestly excessive; the appropriate custodial term was 30 years. The judge had also erred in adding up the consecutive sentences to reach the overall custodial term before imposing an extension period on the total: it was the overall extended determinate sentences that had to be consecutive, not just the custodial terms.

A total sentence of five years’ imprisonment imposed following guilty pleas to making indecent images of children, distributing indecent images of children, possessing extreme pornographic images and causing a child to engage in sexual activity was reduced to four years. The sentencing judge had failed to categorise properly the nature of the defendant’s activity relating to the imagery in accordance with the relevant sentencing guidelines, in particular that he had simply downloaded the majority of the indecent photographs rather than participating in their production.

The purpose of the legislation making it a crime punishable with imprisonment to have sexual relations with those under 16 years was to protect those under 16. A reduction of punishment on the basis that the victim encouraged the commission of the offence was wrong. The victim’s vulnerability was an aggravating rather than a mitigating feature.

In calculating the time to be served pursuant to an order under the Powers of Criminal Courts (Sentencing) Act 2000 s.116, justice required account to be taken of time spent in prison between recall to custody to serve the balance of a licence period for a previous offence and sentencing for a new offence committed while on licence.

When sentencing an offender for making and distributing indecent images of children, a judge had been entitled to take a high starting point above the sentencing guidelines to reflect the scale, gravity and grotesqueness of the material before him. However, extended sentences relating to possession of such images had to be corrected as they exceeded the maximum sentences allowable.