Barber R. v [2009] EWCA Crim 774

[2009] EWCA Crim 774Case No 200806631/A6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 18th March 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE DYSON
MRS JUSTICE RAFFERTY DBE
MR JUSTICE SWEENEY
Between
R E G I N ACrownv
Between
PETER JOHN BARBER
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)
Miss R Hamid appeared for AppellantMiss C Matthews appeared for Crown
J U D G M E N T
[1]MRS JUSTICE RAFFERTY: On 1st October 2008 in the Magistrates' Court in Peterborough, this 56-year-old Appellant pleaded guilty and was committed for sentence to the Crown Court sitting at Peterborough in respect of offences as follows: for five distributions of an indecent photograph or pseudo photograph of a child, for nine offences of making an indecent photograph or pseudo photograph of a child and for one offence of possession of an indecent photograph or pseudo photograph of a child, on 11th November he was sentenced to imprisonment for public protection, a minimum term fixed at 15 months, and 90 days spent on remand deducted. Consequential orders were made.[2]As to the possession of an indecent photograph contrary to section 160 of the Criminal Justice Act 1988, the maximum sentence is one of 5 years' imprisonment if, as here, the offence were committed on or after 11th January 2001. The effect of that is that the offence, albeit specified, is not a serious specified offence for the purposes of schedule 15 of the Criminal Justice Act 2003, and imprisonment for public protection cannot lie. By leave of the single judge the length and type of the sentence is appealed.[3]The Belgian police contacted the Cambridgeshire police service about an image at level 3 on the Oliver scale which had been uploaded, that is distributed, onto a Belgian website on 22nd June 2007 by the Appellant, a registered sex offender. On 12th August 2007 a warrant was executed at the Appellant's home. He was arrested and a computer, digital versatile discs and compact discs seized. In interview he conceded distribution of a number of images on peer-to-peer sites. He conceded downloading. He identified his original interest as in boys but it had developed into one predominantly in girls between 9 and 12. His use of the Internet for that purpose had meant that the age range which caught his attention dropped to as low as 4. He never contested that he derived sexual gratification from viewing whatever images were laid at his door. He accepted that whilst looking at them he would masturbate and he accepted that he had started his current activities when, some 18 months before arrest, he had downloaded a video. He had thought it to be of adult sexual imagery but when, as he claimed, he discovered that it contained images of children aged about 12, his latent interests were reignited. He finally conceded that he had loaded onto compact discs indecent images of children, the images varying from the moving to the still.[4]Investigation revealed that stills on his computer were of approximately 58,000 images of children, 100 or so viewable, the total 6,753 at level 4, 705 at level 5; 80 moving images of which approximately 18 were viewable, four at level 4, three at level 5; on computer or digital versatile disc and organised into folders, 12,687 still images including 804 at level 4 and 92 at level 5, 180 moving images at level 4 and 12 at level 5. There had also been distribution of indecent images of children, a total of 585 stills, this occurring on 13 separate occasions to 11 different addresses, 128 at level 4, three at level 5.[5]On the Appellant's computer were thousands of images of children, many of which fell shy of a level 1 category. In total the age range seemed to be as young as 12 months and up to about 15 years, the majority in the range of 3 to 10 years.[6]The first five counts on the indictment pleaded distribution (five images), two at level 5, two at level 4 and one at level 3. The next nine counts pleaded downloaded images, one at level 5, three at level 4, two at level 3, two at level 2 and one at level 1. The fifteenth count pleaded more than 13,000 indecent images.[7]Born on 30th January 1953 the Appellant has seven previous convictions comprising 19 offences between 1971 and 2003. They include nine of indecent exposure and, in 2005, five of taking indecent photographs of children, this latter in the Magistrates' Court resulting in a Community Rehabilitation Order for 3 years.[8]A pre-sentence report rehearsed a good deal of the factual basis with which we have already dealt, remarked on the Appellant's previous indecent exposure being targeted at girls of school age, 11 and 12, and on his 2003 offence, the making of indecent images by use of a video camera. The author felt the indicted offences an escalation of his behaviour, in that the number of images here was massive and their level mainly 4 and 5. They should be seen as part of a pattern of sexual offending which began when the Appellant was about 18. He seemed motivated to confront his behaviour and had a record of co-operation in community sentences which included his completion of a sex offender treatment programme. The risk of sexual recidivism was high. He re-offended within 2 years of participation in the sex offender treatment programme. He had no family contact. For a decade he had not been in an adult relationship. Although during his 35 years of sexual offending behaviour he had kept clear of contact offences, the author did not feel able to say that his risk of direct harm to children was low, it might be medium to high.[9]The judge gave full credit for his pleas of guilty at an early opportunity and for his candour. There was distribution only to gain access to higher levels of pornography, peer-to-peer. There was no suggestion of financial gain, nor of commerce. The previous sex offender programme had not been a success, his re-offending within 2 years of it an aggravating feature, as was the age of the girl within the images, the time scale of his offences, and the offences themselves. However, this would be the Appellant's first sentence of imprisonment. The Appellant posed a high risk of sexual recidivism and an indeterminate sentence for public protection was appropriate. The starting point would have been 4 years before credit.[10]In Grounds of Appeal composed and orally developed today by Miss Hamid, the complaint is that the indeterminate sentence was wrong in law, based, as it was, on information insufficient to allow a conclusion of significant risk that the Appellant would commit contact offence with a child, that any such offence would cause harm and that future re-offending of a similar nature to that pleaded would cause serious harm.[11]She reminds us that R v Terrell [2007] EWCA Crim 3079 is of relevance. There, in a strong court, the judgment given by Ouseley J contained this extract:
"The link between the offending act of downloading these indecent images and the possible harm which might be done to children is too remote to satisfy the requirement that it be this Appellant's re-offending which causes the serious harm. At worst there would be an indirect and small contribution to a harm which might or might not occur, depending on whether further photographs were taken in part as a result of the Appellant's contribution to the market, or depending on whether a child found out about the uses to which they were put as a result."
Later:
"The imprisonment for public protection provisions of the CJA do not apply in the circumstances here, where simply as a matter of generalisation, a small, uncertain and indirect contribution to harm may be made by a repeat of this offender's offending."
[12]Miss Hamid submits that the uploading in a peer-to-peer website cannot be labelled as playing a part analogous to the Terrell downloading. There is however no logical difference in reasoning where, as here, activity is absent commerce or gain. For this Appellant a determinate sentence would not only suffice but would have been, and remains, appropriate.[13]We are grateful to her and to Miss Claire Matthews, both of whom appeared below, for their assistance not only in our task today but in explaining those matters which the Bar ventilated with the learned sentencing judge before sentence was imposed. They included reference to the appropriate part of the work of the Sentencing Guidelines Council which we can take in short order. For this type of activity, where level 4 or 5 images have been shown or distributed, the range is 2 to 5 years custody, the starting point 3 years. Additionally, we were taken to two potential aggravating features listed by the Sentencing Guidelines Council as A28 and A29. A28 is the images being shown or distributed to others, especially children, and A29 is a collection systematically stored or organised, indicating a sophisticated approach to trading or a high level of personal interest. As we have remarked, this Appellant had shown carefully and exhaustively organised some of his images into labelled folders.[14]Miss Hamid cautions against doublecounting. She argues that the very positioning of this Appellant into this level has computed in A29.[15]The Single Judge remarked, first, that the judge when passing sentence appeared to have concluded that imprisonment for public protection was to be passed under the old law. In shorthand terms, the old law would have set up the presumption of dangerousness. In truth, because the new statute had taken effect, the judge was not obliged to assume dangerousness. What matters is whether the judge, whether or not he applied a presumption, came to the correct conclusion when assessing the appropriate sentencing regime. The Single Judge thought it arguable that the Appellant, although an obvious risk of further specified offences, might not present a significant risk of serious harm. That being so, whether imprisonment for public protection were wrong in principle he felt must be arguable?[16]These are notoriously difficult sentencing exercises. There is however, in our view, force in Miss Hamid's submissions s that although this Appellant finds himself within the level identified by the Sentencing Guidelines Council and at the higher end, he is not at the top of the level because the number of images is not what those experienced in these types of cases commonly expect to find. The sentencing judge fixed a notional determinate sentence as 4 years. Miss Hamid urges us to make an appropriate discount for his plea of guilty.[17]We are, first, confident that imprisonment for public protection, whether under the old or the new law was not necessary here in the interests of justice for all those reasons which this judgment has rehearsed. This required a determinate sentence of some length. Sentencing guidelines are guidelines and no more. This was not an Appellant coming naive to court, this was a man with significant previous relevant offending, whose success on a sexual offenders treatment programme had not been long lasting. These were offences committed in number. Finally, they were offences committed over a not insignificant period of time. That prompts us to the view that the appropriate determinate sentence is one of 4 years. We have every sympathy for the sentencing judge, dealing with the competing demands of the welfare of the individual defendant and the interests of the general public.[18]The sentence of imprisonment for public protection will be quashed. For it, on all matters comparable, there will be substituted a determinate term of 4 years. It is incumbent upon us, because we have changed the nature of the loss of liberty to make clear that 90 days served will be deducted. All other consequential orders remain unchanged.