Wakeling, R. v [2010] EWCA Crim 2210

[2010] EWCA Crim 2210Case No 201002915 A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 15 September 2010
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LAWS
MR JUSTICE BEATSON
MR JUSTICE SUPPERSTONE
Between
R E G I N ACrownv
Between
DEREK ARNOLD WAKELING
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss R Ramez appeared for appellant
J U D G M E N T

LORD JUSTICE LAWS:

[1]I will ask Beatson J to give the judgment.[2]MR JUSTICE BEATSON: On 15 March this year, at City of Westminster Magistrates' Court, the appellant pleaded guilty to 11 offences of making indecent photographs of a child, four offences of having indecent photographs of a child, and one offence of possessing extreme pornographic images, contrary to section 63 of the Criminal Justice and Immigration Act 2008. He was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000.[3]He was sentenced at the Crown Court at Southwark by HHJ Robbins on 7 May to a total sentence of 14 months' imprisonment. In respect of the possession of extreme pornographic images, he was sentenced to nine months' imprisonment. In respect of the offences of making indecent photographs of children, he was sentenced to three months in respect of two of the offences, four months in respect of another two, six months in respect of a further two, nine months in respect of yet another two, and 12 months in respect of three offences. In respect of the offences of having indecent photographs he was sentenced to 14 months' imprisonment on each. The sentences were concurrent to each other so the total sentence was of fourteen months' imprisonment. He appeals against sentence by leave of the Single Judge.[4]The facts of this case are that as a result of intelligence received by the police's paedophile unit, on 28 July 2009, officers executed a search warrant at the appellant's home. They seized his computers and arrested him. The computers and associated equipment were subsequently examined. The officers found a total of 453 indecent images of children aged between 2 and 14, comprising 347 at Level 1, that is erotic posing with no sexual activity, 18 at Level 2, that is non-penetrative sexual activity between children or solo masturbation by a child, 33 at Level 3, non-penetrative sexual activity between adults and children, 44 at Level 4, penetrative sexual activity involving a child or children, or both children and adults, and 11 at Level 5, which involves sadism or penetration of, or by, an animal.[5]They also found a total of 48 indecent movies of children of which three were at Level 1, eight at Level 2, eight at Level 3, 21 at Level 4 and eight at Level 5, and eight extreme pornographic movies, four of which were in fact of the same movie. These movies depicted a person having intercourse with horses or dogs. In an email from the appellant to another person, he described his sexual preferences for young females.[6]When interviewed the appellant said he was addicted to adult pornography and that intrigue had taken him from that to child pornography. He stated he had downloaded the images over a long period of time.[7]During the prosecution's opening of the case, when prosecution counsel said that in its view the case substantially related to possession of a large amount of level 1 images, the judge referred to the Level 4 and 5 material and said the court had to consider the "extreme pornography that is here, including the remarkable amount of bestiality of the most extreme nature."[8]The appellant is, as is not unusual in these cases, of previous good character. He is now aged 53. A pre-sentence report recommended a suspended sentence order with requirements of supervision and attendance on the Sex Offenders Treatment Programme. There was a medium risk of him re-offending in a similar manner. The report stated that he took responsibility for downloading the images and movies, but tended to minimise his offending.[9]In mitigation counsel relied on the fact that he was a self-employed commercial manager with his good character, the main earner for his family, and pointed to the hardship to the family if he faced an immediate custodial sentence.[10]In sentencing the appellant the judge said that account was taken of his guilty pleas, his age and good character, and the sentencing guidelines and the guideline case of R v Oliver [2003] 2 Cr App R (S) 15. A custodial sentence was, however, inevitable. The sentences would run concurrently.[11]Miss Ramez in her grounds of appeal, and before us today, accepts that the custody threshold was passed, as it manifestly was, but submits that the sentence was manifestly excessive. The judge adopted too high a starting point and failed to take account of some of the particular circumstances of this case, the sentencing guidelines, the appellant's previous good character, family background, employment record, and the financial hardship his family would face if a custodial sentence was imposed. As far as the guidelines and the starting point, she submitted that the judge should have started at the lower of the two levels in the guidelines that deal with Levels 4 and 5: a starting point of 26 weeks with a range of between four weeks and 18 months.[12]We do not agree that the appropriate starting point was the 26 weeks in the lower of the two levels of the guidelines which deal with Level 4 and 5 images. We start by reiterating the point made many times by this court that these guidelines are not to be approached in a mechanical way. They are not straitjackets. The overall context of the offending behaviour must be considered. In this case, for example, as well as the indecent images and the indecent movies there was the extreme pornography in the movies depicting bestiality. There are, as prosecuting counsel observed when opening the case to the judge, no sentencing guidelines about this category of offence which was introduced by section 63 of the Criminal Justice and Immigration Act 2008. Sentencing judges must reflect the new offence when considering the overall level of criminality and the starting point in a particular case.[13]Secondly, the category with a 26-week starting point applies where the case is one of possession of a "small number of images at Level 4 or 5 for personal use only". Where the case is one of possession of "a large quantity of Level 4 or 5 material for personal use only" the 12 months' starting point applies. In this case there were many more images at Level 1: 347 out of 453 images, but there were also 44 images at Level 4 and 11 at Level 5: a total of 55 images, some 12 per cent of the total.[14]There were also 29 indecent movies at Level 4 or 5 and the extreme pornographic material, the statutory definition of which puts it into Level 5. That is because section 63(6) and (7) of the 2008 Act defines an extreme image as one which portrays in an explicit and realistic way:
"(a)an act which threatens a person's life, (b) an act which results, or is likely to result, in serious injury to a person's anus, breasts or genitals, (c) an act which involves sexual interference with a human corpse, or, (d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive)."
Parliament also provided in section 63(6)(b)that it must be: "grossly offensive, disgusting or otherwise of an obscene character".[15]There are also no guidelines as to what constitute a "large quantity" or a "small number". In the case of Oliver, to which we have referred, this court stated that was a matter for determination by the sentencing judge. Contrary to the way the prosecution initially put the matter in opening the case, when it said that the case was substantially about possession of a large number of Level 1 images, what is clear is that the category into which a case falls does not depend on the proportions of the images in the particular category. Nor does it depend (cf paragraph 25 of the advice) on the time over which they were downloaded.[16]We consider that a total of 55 Level 4 and 5 images or 92, if one includes the videos and extreme pornographic material, is a large quantity. It was a quantity which justified a starting point of 12 months. The presence of the extreme pornographic material, and what the judge described as a remarkable amount of bestiality of the most extreme nature, are serious aggravating factors.[17]Despite the undoubted seriousness of the offending and the aggravating factors which we have described, we have concluded that a totality of 12 months on a plea for this offending by a person of previous good character is too long. Assuming the guideline 12-month starting point, and the need for an uplift to reflect the aggravating factors we have discussed, a notional starting point of 21 months' custody, from which a deduction only in respect of the early plea was made, was too high. The appellant, subject to the qualifications in his pre-sentence report about minimisation, had accepted responsibility for his offending, although he denied his sexual interest in children. The officer in the case had accepted that there was no evidence to challenge the appellant's account that he had downloaded the images a long time ago, and had erased all the still images almost immediately.[18]In those circumstances we consider that the correct sentence was a total of 10 months' imprisonment. Accordingly we shall set aside the sentences of 12 and 14 months in respect of offences 6, 11, 12, 13, 14, 15 and 16, which are for 12 and 14 months respectively, and substitute for them a sentence of 10 months. The sentences are to be concurrent to each other and concurrent to the other sentences. To that extent this appeal is allowed.[19]MISS RAMEZ: I am grateful.