Joy R. v [2007] EWCA Crim 3281

[2007] EWCA Crim 3281Case No 2007/4797/A6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 11 December 2007
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LONGMORE
MR JUSTICE BLAKE
SIR CHRISTOPHER HOLLAND
Between
R E G I N ACrownv
Between
DAVID JOY
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr G Purcell appeared for AppellantMr J Eley appeared for Crown
J U D G M E N T
[1]MR JUSTICE BLAKE: On 30th April 2007 at the Crown Court at Leicester this applicant pleaded guilty to 11 counts of offences connected with indecent photographs of children. Counts 2 to 5 alleged making indecent photographs of children. The other counts were of possession. On 13th August 2007 he was sentenced to two years' imprisonment concurrent on each of the counts of possession and a sentence of imprisonment for public protection on the counts of making indecent photographs. Those sentences were imposed by His Honour Judge Pert QC.[2]There are problems with that sentence. If the applicant is a dangerous offender and therefore liable to a sentence of imprisonment for public protection, then the sentence for the offences of possession should have been an extended sentence with a custodial term and an extended licence period. However, the first question that now arises before this court is what should the sentence have been for counts 2 to 5?[3]We are told that there were 1,130 images discovered when this applicant's premises were visited by the police in January 2006. However, we have been told this morning that a somewhat smaller total formed the counts that were before the court, namely some 744. In any event, only a small number of this total were at Levels 4 and 5 -- two at Level 4 and fifteen at Level 5 applying the classification approved by this court in the case of Oliver [2003] 2 Cr.App.R (S).[4]The allegations were personal possession or use of such images and there was no allegation that this appellant was connected to the production of the images in the sense of taking the photographs of the children or distributing them or indeed storing them in a manner that could be available for other people. We will return to the sentencing guidelines of this class of case in one moment.[5]The learned judge was led to believe that a number of the offences had been committed after the coming into force of the Criminal Justice Act 2003 in April 2005. However, there was no clear basis for that conclusion revealed in the indictments which allege an offence between 1st January 2000 and 24th January 2006, the latter date being the date when the applicant's premises were visited by the police. Again the opening remarks of prosecuting counsel did not help the learned judge. They were to the effect that the Crown could not say how the images got onto the computer, let alone when, and a generic statement that some can probably be shown to be made after the relevant date seemed to have been considered sufficient to give the court jurisdiction to consider the dangerousness provisions under the Criminal Justice Act 2003. Such an approach is no longer permissible as this court has made plain in Harries [2007] Crim LR 820, [2007] EWCA Crim. 1622 at paragraph 11.[6]Before this court we have been assisted by the agreement between counsel for the applicant and counsel for the prosecution that of the five counts of making an indecent photographs of a child. Only count 3 was committed after 4th April 2005. It is only the counts which allege making that are scheduled offences that are serious. Thus the court is faced with one count of making indecent photographs of a child after the coming into force of the Criminal Justice Act 2003 and the particulars of that count are a large number of photographs at Level 1 and 29 at Level 3. That, however, means that section 225 of that Act has to be considered. That provides:
"(1) This section applies where— (a) a person aged under 18 is convicted of a serious offence committed after the commencement of this section, and (b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences."
Serious harm is defined in section 224(3) as meaning death or serious personal injury, whether physical or psychological. As indicated, making indecent images is a specified offence and a serious offence because it is punishable with up to 10 years' imprisonment.[7]So much for the offending behaviour itself. This applicant has previous convictions for sexual activity. They are summarised in the advice of his counsel appearing before this court today. In 1980 there were five counts of indecent assault on a female. In November 1984 there were counts of publishing an obscene article and sending an obscene article through the post. In 1996 there were two counts of indecent assault on a male under 14, two counts of indecent assault on a male under 16 and a count of showing indecent photographs or pseudo photographs of children, for which he was sent to prison. It is pointed out by the applicant and his counsel that those indecent assault offences for which he was sent to prison in 1996 had occurred in 1983 and that does mean that when he fell to be sentenced for the present offence, there was some period of 24 years when he had not been found guilty of any offences of indecent assault on children.[8]It is apparent from what the applicant told those who were charged with making reports for the assistance of the court who sentenced him that in the 1980s the applicant was involved in a paedophile group and those offences were conducted in the light of his beliefs about sexual behaviour of young people, behaviour and activities of that range of people. He had expressed his views to those who interviewed him, which the judge rightly regarded as many would regard as abhorrent. However, in fairness to the applicant it is right to say that he expressed those views to those making the reports by way of a full and frank engagement of his sexual history, sexual behaviour and sexual activity and in order to make the point that his sentences for his past sexual offences had led him to undergo successfully sexual offender courses which he had completed and that he had come away with a changed perception about sexual activity with children that deal with indecent assaults.[9]Nevertheless, those past offences do mean that the court has to treat the question of whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences in the light of a statutory presumption contained in section 229(3) because he is over eighteen and he had been convicted of one or more relevant offences. The court therefore must assume that there is the risk unless after taking account of all information about the nature of the offences and the behaviour of the individual and the information about the offender, it considers it to be unreasonable to conclude that there is such a risk.[10]Therefore the court is faced with the difficult task of only one offence of downloading an image from the computer, at Level 1 and Level 3, which engages the imprisonment for public protection provisions of the Criminal Justice Act. Otherwise this would be purely personal conduct for which the Sentencing Guidelines Council, following Oliver, indicate that the starting point for possession of a small number of images at Levels 4 and 5, and possession of a large quantity at Level 3 for personal use, in the case of a contested trial and an offender without significant previous convictions, would be 26 weeks' custody. Four weeks to 18 months would be the range of sentencing. Even if it was a large quantity of material that had been retained for personal use, the starting point would still be 12 months' custody and the range 26 weeks to two years' custody.[11]We appreciate that there has been some difficulty and some controversy in other cases in linking the question of future dangerousness and any reoffending by this offender to causing harm to others simply by looking at images, rather than a breach of trust in the way they are made, distributed or used. However, in our judgment applying the statutory test, we do not consider it would be reasonable on the facts known to us about this offence and this offender to draw the conclusion that there is a significant risk of this offender causing serious harm in the form of personal injury, whether physical or psychological, to other persons. Such a causative link must be established as well as any risk of general reoffending as this court has made plain in the case of Lang [2005] EWCA Crim. 2864.[12]We therefore conclude that it is not possible and not necessary to impose a sentence of imprisonment for public protection on count 3 and this applicant falls to be sentenced to a determinate sentence of imprisonment for his wrongdoing.[13]We then take account of the guidance of the Sentencing Guidelines Council about this class of offence, published in April 2007, recognising that by reason of his previous convictions in the past for interest in indecent photographs of children, as well as other sexual offences connected with children, that a significantly higher starting point than 26 weeks custody is appropriate. Even imposing the top end of the range of 18 months on a contested case and giving full credit to the applicant for his plea of guilty at the earliest opportunity, we conclude that the appropriate sentence in this case should be one of 12 months' imprisonment.[14]This application is therefore allowed. We treat the hearing of the application as the hearing of the appeal. We set aside the sentences imposed below and on each of the counts we impose a sentence of 12 months' imprisonment concurrent.[15]MR PURCELL: My Lord, that gives rise to one ancillary matter with regard to the notification requirements under the Sexual Offences Act. I believe being sentenced to a term of imprisonment of less than 30 months, from memory the period to which the appellant is to comply with the notification requirements would be five years. I may be wrong. It may be seven year. Can I please check.

LORD JUSTICE LONGMORE: We are told 10 years. What was the existing notification?

[17]MR PURCELL: Previously it was for life, my Lord.[18]MR JUSTICE BLAKE: In the light of the variation of sentence we have just made we will vary the notification requirement from life to one of 10 years.