Turner, R. v Mark [2006] EWCA Crim 63

Case No 200504927/A8[2006] EWCA Crim 63
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 18th January 2006
Strand
London, WC2
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE CRANE
MRS JUSTICE RAFFERTY DBE
Between
R E G I N ACrown-v-
Between
MARK TURNER
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)
MISS S AHYA appeared for APPELLANT
J U D G M E N T
[1]MR JUSTICE CRANE: Having pleaded guilty before the Magistrates Court on 8th July 2005, this appellant was committed for sentence in respect of three offences of voyeurism, contrary to section 67 of the Sexual Offences Act 2003. He asked for one further offence of the same kind to be taken into consideration. On 24th August, at the Crown Court at Derby, he was sentenced by His Honour Judge Wait to 14 months' imprisonment on the first offence, the other offences being taken into consideration but no separate penalty in fact imposed in respect of them. There was an order for the forfeiture and destruction of the relevant film and photographs. He appeals against sentence by leave of the Single Judge. We remind the media that the names of victims in this case cannot be reported.[2]The facts were that the appellant was employed as a manager at a sports centre. On 11th May 2005 a woman used the gym at the sports centre. After her workout she went to the female changing rooms and took a shower. During the time she was taking her shower she noticed that a roof tile above her was dislodged that there was a camera lens in that gap. She shouted. The lens moved. She ran out of the shower. Having covered herself with a towel, she ran to the reception area and reported the matter. She was very upset. The appellant came out of the male changing rooms, saying that he had been up a step ladder in those rooms when he heard a shout. He purported to take details of her complaint. He said to her, when she said that she wanted to involve the police:
"This is going to make me look bad because I told you I'd been up there."
The woman was persuaded to call the police.[3]The police searched the sports centre. They found a video camera in one of the lockers. They searched the appellant's office and his home address and recovered a number of video cassettes and other matters including computer equipment.[4]When he was arrested, he initially denied the offence but then admitted using the step ladder to climb up into the roof space of the male changing rooms, then leaning over the separating wall and moving a tile and filming the woman in the shower. He admitted filming other women to whom he was sexually attracted at the sports centre, either in the shower, or while they were using the sun beds 6 months earlier. Two more women were identified from the material seized. They were the subject of second and third offences. There was a fourth unidentified woman who was subject of the offence to be taken into consideration.[5]The women who had been identified provided victim impact statements. One of them said that she saw the manager as a friend and that the whole incident had left her feeling sick and unable to sleep. She was off work with a stress related skin complaint, the worsening of which she attributed to the incident. Another in her victim impact statement said that she recalled being offered by the appellant free tokens to use the sun bed and she described herself as feeling violated.[6]This appellant is 30 years old. He has no previous convictions. There was a pre-sentence report before the sentencing judge. He accepted that he had exploited his position of trust for his own sexual gratification. He expressed remorse. The writer of the report considered that he had a good awareness of the impact of the offences on the victims and that he was motivated to address his offending behaviour. He had contacted a community mental health team to gain further insight into his behaviour. It was said by the writer of the report that he posed a risk of sexual abuse to adult females, although it is unclear from the report whether that was simply a reference to this particular kind of behaviour. It was said that he was motivated to engage in intervention that would reduce the risk of re-offending and a community order with a requirement to attend a sex offender group work program was recommended.[7]There is now a psychiatric report before the court, which was not before the sentencing judge. The psychiatrist found that the sexual relationships of the appellant were unremarkable and concluded that there were no psychosexual problems.[8]There were before the sentencing judge 13 character references from friends and other members of the appellant's church. They all spoke highly of him.[9]In passing sentence the learned judge indicated that he took into account the plea of guilty at the very earliest possible opportunity. He accepted the expressions of regret by the appellant as real, but described the offence as grave. He noted that there was a breach of trust towards the people using the facilities. He pointed out that although he accepted that there was no distribution of copies in this case, there was an understandable fear on the part of victims that that is what would happen.[10]The submission in the grounds of appeal is that the sentence was too long. We have had regard to the case of R v IP [2004] EWCA Crim 2646 in which this Court considered an offence of this kind. The facts of that case were that a video camera had been installed in a loft above a bathroom in that appellant's home, where he could view his 24 year old stepdaughter in the shower. That video camera was connected to a screen in his bedroom, enabling him to watch. There was a plea of guilty and a recorder passed a sentence of 8 months' imprisonment concurrent on each count of the indictment.[11]It was pointed out by this Court, in the judgment delivered by Bean J that the case did not have the aggravating feature that the recordings were circulated to others. The appellant in that case was a previous good character and had of course pleaded guilty. The court said this:
"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, the recommendation of the probation service, for a community rehabilitation order should have been followed. We shall follow it."
[12]There were plainly factual similarities between the case of IP and the present case but there are also differences in that there are four victims in the present case and the abuse of the appellant's position as manager. We also note that the effect on the victim of such an offence as this can quite plainly be traumatic and may be as traumatic in some cases as some kinds of sexual assault.[13]In the view of this Court, the abuse of the appellant's position, despite the absence of any circulation of the images, takes the case over the custody threshold.[14]In our view, however, it did not justify a sentence as long as that which in fact was passed. The conclusion that we come to is that a custodial sentence cannot possibly be said to be wrong in principle but it is possible to allow the appeal and to substitute a shorter sentence.[15]This Court does not wish to be taken to indicate that even in a case where there is an abuse of a person's position, there should necessarily be a custodial sentence in each case, particularly if treatment in the community is in the particular circumstances of this case an appropriate course.[16]We do not criticise the passing of a custodial sentence. As we have indicated the custodial sentence was not wrong in principle. We quash the sentence of 14 months and substitute a sentence of 9 months. To that extent, this appeal is allowed.