IP, R v [2004] EWCA Crim 2646

Case No 200404538/A3[2004] EWCA Crim 2646
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 5th October 2004
Strand
London, WC2
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE RICHARDS
MR JUSTICE BEAN
Between
R E G I N ACrown-v-
Between
IP
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR D MCDOWELL appeared for APPELLANTMR C SUTTON appeared for CROWN
J U D G M E N T
[1]MR JUSTICE BEAN: The Sexual Offences Act 2003 came into force on 1st May 2004. Section 67 of the Act creates the offence of voyeurism. Section 67(1) provides as follows:
"A person commits an offence if- (a) for the purposes of sexual gratification, he observes another person doing a private act, and (b) he knows that the other person does not consent to being observed for his sexual gratification. Section 67(4) provides: (4) A person commits an offence if he installs equipment, constructs or adapts a structure or part of a structure, with the intention of enabling himself or another person to commit an offence under subsection (1)."
This application by the applicant for leave to appeal against sentence is, so far as the Criminal Appeal Office are aware, the first case under the Act and certainly under section 67 to come before this Court. We grant leave to appeal and refer to the applicant as the appellant.[2]The facts are that the appellant installed a video camera in a loft above the bathroom in his home so that he could view his 24 year old stepdaughter in the shower. She became suspicious of him. On 15th May 2004, while he was out of the house, she, her mother and sister searched the house and found that he had connected a camera from the loft to a screen in the bedroom and the shower could be seen on the screen.[3]The appellant was subsequently arrested. When interviewed he admitted installing the camera with a view to watching the complainant in the shower and that he had also installed a cable so that he could view the images on the screen in his bedroom. He said he had done it three or four times. It is implicit in his plea of guilty that at least one of these observations by him took place after the Act came into force.[4]On 6th July 2004, in the Magistrates' Court, he indicated a plea of guilty to both charges and was committed to the Crown Court for sentence. On 6th August, in the Crown Court at Northampton, he came before Mr Recorder Redgrave QC who sentenced him to 8 months' imprisonment concurrent on each count. We have some sympathy with the learned Recorder in having to pass sentence on what may have been the first occasion under a new statute.[5]What the appellant did was, in the complainant's own words, "disgusting". The fact that he made recordings of the complainant having a shower makes the case somewhat worse than if he had simply spied on her. On the other hand, the case did not have the aggravating feature of the voyeur showing the recordings to other people, still less circulating copies, posting pictures on the Internet or selling the recordings for gain. Moreover, the victim was not a child.[6]The appellant was of previous good character and he is entitled to credit for his early admissions followed by early pleas of guilty. We should add that he moved out of the family home after the offences were revealed and his wife has made it clear that she does not wish him to return.[7]In our view, the facts of this case did not justify a custodial sentence. The appellant is plainly in need of therapy and in our view is that the recommendation of the probation service for a community rehabilitation order should have been followed. We shall follow it.[8]We allow the appeal. We set aside the sentences of imprisonment and substitute on each count, concurrently, a community rehabilitation order for 1 year, with a condition under Schedule 2 to the Powers of Criminal Courts (Sentencing) Act 2000 that the appellant must participate in a Community Sex Offender Group Work Programme as directed by the supervising officer of the Probation Service throughout the 1 year period in so far as the officer so directs. The requirement of notification under the Sex Offenders Act 1997 registration provisions is reduced consequentially on our principal order to one of 5 years from the date of sentencing by the learned judge.[9]THE VICE PRESIDENT: Will you just stand up because I have to explain to you what that means. First of all, the effect of the order which we have made is that for 12 months you must comply with the directions of the supervising officer and, in particular, there is the condition that you will attend the Community Sex Offender Group Work Programme as he or she directs. The consequences, if you do not do as the supervising officer tells you, in that and in every other respect are that you can be brought back to court and you can be sentenced by the court in any way which it had power to sentence you originally. The court has power to review the 12 month community rehabilitation order which we now make, either on your application or the application of the supervising officer. Do you understand all that? This gentleman here, who I was speaking to earlier on, will come and see you before you go and he will clarify a number of details about where you are going to live and in relation to the Magistrates' Court which will have supervision over you. Do you understand? Go from the dock; do not leave before this gentleman has seen you.

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