Attorney General's Reference No. 36 of 2013 [2013] EWCA Crim 2574

[2013] EWCA Crim 2574

No. 2013/03341/A3 & 2013/02224/B1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Between

R E G I N ACrown

The Strand

London WC2

Wednesday 9 October 2013

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(Lord Thomas of Cwmgiedd)

MR JUSTICE HENRIQUES

and

MR JUSTICE BLAKE

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ATTORNEY GENERAL'S REFERENCE No. 36 of 2013

UNDER SECTION 36 OF

THE CRIMINAL JUSTICE ACT 1988

_______________

- v -

Between

GRAHAM STUART OVENDEN

__________________

Computer Aided Transcription by

Wordwave International Ltd (a Merrill Communications Company)

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__________________

Mr D Penny appeared for Attorney General

Mr S Heptonstall appeared for Crown

Mr C Quinlan QC appeared for Offender/Applicant

__________________

J U D G M E N T

(As Approved by the Court)

__________________

Date 2013-10-09

[1]On 2 April 2013 in the Crown Court at Truro before His Honour Judge Cottle and a jury the applicant was convicted of six counts of indecency with a child contrary to section 1(1) of the Indecency with Children Act 1960 and one count of indecent assault (count 9) contrary to section 14 of the Sexual Offences Act 1956. He was acquitted on other counts for reasons to which we will refer later.

[2]On 4 June 2013 he was sentenced to twelve months' imprisonment on each of the counts, suspended for two years.

[3]The court has before it two applications. The first is by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer the sentence to the court as unduly lenient. The second is an application by the applicant for leave to appeal against conviction which has been referred to the Full Court by the Registrar.

The factual background

[4]The applicant is an artist and photographer. He is well-known for landscape work, both painting and photographic, and for the photographing of children. Until the beginning of the 1970s he lived in London. In 1972 he moved to Barley Splatt, Cornwall, a house on Bodmin Moor, where he continued his career.

[5]The allegations against him at trial related to matters said to have occurred between 1972 and 1987. In 1993 the police had investigated the applicant and searched Barley Splatt. Statements were taken from one of the complainants in the trial before Judge Cottle which supported the applicant's view of his own conduct. At that stage he was not charged.

[6]In November 2006 a search warrant was again executed at Barley Splatt. The applicant's computer was seized. A number of "pseudo images" were recovered. We shall have to refer to these in due course. On that material he was charged with making or possessing indecent images of children.

[7]A trial commenced before His Honour Judge Elwen in October 2009. The jury were discharged because of the way in which the Crown had conducted disclosure. A new trial began in May 2010. Some of the witnesses did not attend. The judge stayed the indictment for an abuse of process.

[8]It is important to refer to those previous matters, partly because the material found on the execution of the search warrant became highly material in the trial before Judge Cottle; and secondly, because at one stage it was submitted to Judge Cottle that the fact that the Crown had acted in the way in which it had amounted to an abuse of process. That allegation is no longer pursued.

[9]The trial at Truro before His Honour Judge Cottle began on 26 March 2013. The Crown relied on the evidence of witnesses who had been children during the relevant period. That evidence can be summarised in relation to each of the counts in the indictment as follows. It is necessary to refer to it in some detail as it is relevant to both of the applications before us.

[10]Counts 1 and 2 involved offences of indecency with a child, SM, when she was about 10 years of age. Count 1 alleged that the applicant had taken photographs of her at a time when he still lived in London. The photographs were taken in a studio in an empty bedroom of his house. Her evidence was that the applicant told her that he wanted to create a story about a blind girl. She sat on the floor, naked. The applicant put white sticky tape over her eyes. As a result she could not see, but she heard him breathing as if he was holding his breath and exhaling. No such photograph was produced at the trial.

[11]Count 2 related to another photograph of SM, when she had visited the applicant's house on Bodmin Moor with her family. On that occasion he photographed her out of doors, naked. Her evidence was that she recalled lying on her backs across rocks, stretched out in certain poses and feeling vulnerable. Again, there was no photograph of that before the court. SM made no complaint at the time. She was approached by the police in March 2009. She had been identified by a photograph in the applicant's possession.

[12]Two further photographs of SM were produced during the trial. They did not form the basis of any charge. One was adduced by the Crown and the other was adduced by the defence.

[13]The second series of counts, two of indecency with a child and one of indecent assault, related to another child, JB. JB's mother had been friendly with the applicant's wife. During her childhood they would visit the applicant's home address. JB gave evidence that on one occasion in 1980 or 1981, when she was about 6 years old, she was having a bath with the applicant's daughter who was about 5 years of age. The applicant entered the bathroom, naked. He got into the bath. His penis was erect. He kept asking them to wash his penis. The applicant's daughter wanted to wash his beard, but he kept saying that he wanted her to wash his penis. JB recalled feeling uncomfortable at his daughter washing his penis. He then got out of the bath and left the bathroom. He returned with a camera and photographed JB and his daughter wrapped in a green towel. He was charged with gross indecency with a child. He was convicted on this count, which stands apart from the other counts as it involved conduct quite different to that charged on counts 1 and 2 (taking a photograph) and on the other counts of gross indecency, which also involved taking photographs.

[14]The second matter involving JB occurred in 1984/1985 when she was about 10 years old. She had been sitting on the landing at the applicant's home. The applicant approached her from behind and cupped her breasts in his hands. He said to her, "Come on, come on, let's have a feel". JB elbowed the applicant by moving both her arms back, kicked him in the shin, and told him to get off. This was charged as indecent assault. He was convicted of that count.

[15]The third count involving JB (count 8) has assumed some importance on this application. It related to what was referred to at the trial as the "tasting game". It was said by JB that the applicant had asked her to taste various things. He then placed his penis into her mouth. He was acquitted of that offence. We shall return to the reasons why that is important.

[16]JB contacted the police in 2008. She made a formal complaint in October of that year and provided a formal statement in 2009.

[17]Counts 10, 11 and 12 charged indecency with a child, all of which related to the taking of photographs. Between the years 1979 and 1987 the applicant took photographs of another child, EE, both clothed and naked. EE gave evidence that she would dress up in Victorian clothes and the applicant would pose her. He would either move a garment off her shoulder, or tell her to move it or take it down. Most of the sessions ended with her naked. On occasions the applicant would direct EE to move her knee or her leg in a certain way, or he would physically move them so that her genitalia would be exposed.

[18]Three particular occasions were charged in the indictment: one, an occasion between 1979 and 1985 when she was aged between 6 and 8; one between 1985 and 1986, when she was aged between 9 and 11; and one between 1986 and 1988, when she was aged between 11 and 14. Two of those photographs were before the jury. They showed her sitting with her legs apart. These were originally charged as indecent assault (counts 4, 5 and 6 of the indictment). It must have been evident at an early stage, in the light of the authorities, that charges of indecent assault were unlikely to succeed. Nonetheless, the Crown persisted in them. When Mr Quinlan QC, who represented the applicant, made a submission of no case to answer, he was successful.

[19]The Crown then applied to amend the indictment so that the very same matters were charged as counts 10, 11 and 12, gross indecency, in the same way as counts 1 and 2 had been charged in respect of SM. The way in which those amendments were made is relied upon as one of the grounds of appeal.

[20]It is clear that EE made no complaint at the time. She did not think that there was anything wrong with what the applicant was doing. As we have said, she made a statement earlier in which she took that position. It was only later that she changed her mind. In 2009 the police contacted her, having identified her from a photograph in the applicant's possession.

[21]The fourth child was CM. The applicant was acquitted on count 3 in relation to her. This count arose out of the evidence that she gave. She had visited a house within the grounds of Barley Splatt on Bodmin Moor. CM's mother had given the applicant permission to photograph her. She said that he made her change into a nightdress and covered her eyes. In the course of a "tasting game" he placed his penis into her mother. He was acquitted of that charge. We shall return in a moment to the circumstances of the acquittal, which is one of the grounds of appeal.

[22]The Crown also called evidence from the mothers of both CM and JB, and from a police officer about the making of the complaints and the taking of the statements.

[23]More important was the evidence before the court in relation to the pseudo-photographs to which we have already referred. There were a very substantial number of such images. They numbered 138. It appears that they had been created by use of a computer software programme which enabled photographs to be manipulated or to be brought together to create images. A schedule was put before the jury which described them. Two were shown in photographic form to the jury. In view of their importance it is necessary to read out the agreed description as illustrative of these matters. The first, number 23, is described as follows:

"Depiction of a girl. Naked. Partially bending forwards, legs parted, exposing her vagina and anus which appears open. An erect adult penis is next to her bottom. There is semen dripping from her anus over her vagina. Girl's mouth is open wide."

Image 52 is described in this way: 24. "Depiction of a girl, naked, lying on her back on a bed. Legs apart with an erect adult penis inserted into her vagina. There is semen on her vagina. Legs are held apart by a male adult hand. There is another penis near to and above her head being squeezed tightly by another adult hand."

Image 52 is described in this way:

[24]Both of those images were before the jury. We set out their detail for two reasons. First, from the descriptions that we have given it is plain that they were highly prejudicial. Secondly, they were relied on by the Crown as evidence to show that the applicant's interest in young girls was not artistic, but sexual.

[25]The defence case was that the applicant had a great interest in photography. His house on Bodmin Moor was an open environment with lots of visitors, including adults, children, artists, musicians and writers. He accepted that he had taken photographs of naked children but he denied that he had any sexual interest in them. When asked why he took photographs of naked children, he said:

"A child in a state of grace is a thing of beauty. There is no shame in oneself as one is. We are born naked into the world. It is abhorrent to me that a naked child is something to be frowned upon."

He added that he abhorred the witch hunt, as he saw it, surrounding photographs of naked children. He described the children in the photographs (other than the pseudo-images) as "beautiful", "lovable" or "elegant".

[26]The applicant's explanation as to the pseudo-images which we have described is that they were made to show the state of moral corruption to which children could be subjected, in contrast to the "state of grace" in which he had photographed the children. He explained that he had created the pseudo-images in 2006 for the purposes of a forthcoming publication. They were all sketches; nothing more was intended. They were part of his artistic purpose. They had been intended for a book, but nothing had gone forward. He denied having any sexual interest in children. He denied the count that related to the bath incident and to the counts where it was said that he had put his penis into the mouths of CM and JB.

[27]Poweerful evidence was called on the applicant's behalf from witnesses who attested to his good character and reputation in the artistic world.

The issues

[28]In the applications before us we have to consider two matters: first, whether we should grant the Attorney General leave to refer the sentence as unduly lenient to this court; and secondly, whether we should allow the appeal against conviction. We put the applications in that order because the operation of the statutory provisions provide that if we were to order a retrial, the sentence available on retrial would be the sentence imposed at the original trial. If that sentence had been unduly lenient, at any subsequent trial the judge would be bound by the original sentence unless this court had increased it.

[29]For the reasons we shall give, we grant the Attorney General leave to refer the sentence and we refuse the applicant's application for leave to appeal against conviction.

APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION

[30]We deal first with the application for leave to appeal against conviction. At the outset we would like to pay tribute to the careful way in which Mr Quinlan has prepared the papers for this court and for the restrained yet eloquent way in which he has put the points before us. We take each in turn. (1). Ingredients of the offence of indecency with children

[31]The first ground which was argued before us (the second in the grounds of appeal) relates to the question whether the actions in taking photographs amounted to indecency with children (counts 1, 2, 10, 11 and 12). There is no dispute, nor could there be, that the incident in the bath, if the jury accepted the evidence of JB, amounted to gross indecency with a child. Mr Quinlan submits that the judge should not have permitted counts 10, 11 and 12 to be added to the indictment; that there was no evidence in respect of those counts (or in respect of counts 1 and 2) that enabled the Crown to satisfy the statutory offence set out in section 1 of the Indecency with Children Act 1960. Reliance was placed on the decision of this court in R v Colin Leslie Francis

(1989) 88 Cr App R 127

[32]The offence of indecency with children is defined in the Act as follows:

"Any person who commits an act of gross indecency with or towards a child under the age of 14, or who incites a child under that age to such an act, with him or another, shall be liable on conviction ...."

[33]It is clear from the decision of this court in Director of Public Prosecutions v Burgess

[1971] QB 432

that the offence under the Act was one of committing an act of gross indecency involving a child, that is to say, that the words "with or towards a child" must be read as one phrase. That case was considered in Colin Leslie Francis in which the Court of Appeal had to decide whether the judge had properly directed the jury in relation to the Act. As the court clearly pointed out, the issue was whether the children were involved in the gross indecency. That case involved masturbation in a public changing room. The court observed that, if a man masturbated in the presence of children in circumstances where he believed they were not observing what he was doing, there would be no question that his actions involved the children, or that he acted with or towards them. On the other hand, there could be circumstances where a man who masturbated in the presence of children, knowing that they were watching him, could truly be said to be have committed an act of gross indecency towards the children as he would have involved them. Various statements made by the court in that case were relied upon by Mr Quinlan in his submissions.

[34]In R v Sutton

(1977) 66 Cr App R 21

, the court had to consider whether the appellant, who had taken photographs of young boys in his home, partially clothed or naked, had committed an offence of indecent assault under the Sexual Offences Act 1956. The court concluded that he had not. The court added:

"The proper course, where there is an act which no one in their right mind could call an assault, but which takes place in an indecent situation, is to prosecute under the Indecency with Children Act 1960."

[35]It was argued before us that we should approach the matter on the basis of the observations of the court in Francis. There are a number of ways in which we would examine that submission. First, it seems clear that what the court was concerned with in that case were the particular circumstances we have outlined.

[36]Second, after hearing argument from counsel,

Judge Cottle directed the jury as follows:

"To convict the [applicant] of the allegation in this count you will have to be sure that such an event occurred, and secondly, that the act of taking a nude photograph of her in those circumstances was an act that right-minded people would regard as an obviously indecent act towards her."

The judge added nothing to that direction. It seems to us, first of all, that the Act requires the proving of an act of gross indecency; and secondly, that it involved the child. As the judge's direction in his summing-up encapsulated those two points, there is every reason to say that the judge was correct.

[37]However, it is necessary for us to consider two alternative submissions on the facts of this case. Following the receipt of a note from the jury, the judge went on to say that the offence had one additional ingredient. He answered the jury's question as to what was necessary to be proved in this way:

"To prove the offence, the prosecution must prove (1) that the [applicant] committed an act with, or towards, a child that right-minded persons would regard as obviously indecent; and secondly, that the [applicant] did the act intending to derive sexual satisfaction from the knowledge that the child was watching him."

It seems to us that if the second direction given by the judge, was the correct direction to be given, then there was plainly evidence before the jury from which they could have inferred that the act was one from which the applicant intended to derive sexual satisfaction from the knowledge that the children were watching. Although in our judgment it was sufficient for the judge to have directed the jury in the terms in which he originally dealt with the matter, it seems to us that if this second direction was one that the law required, there was plainly evidence for it. There was no misdirection.

[38]It has been submitted by Mr Quinlan that what the judge said in his second direction was not correct; that what the Crown had to prove was not merely that the applicant did the act intending to derive sexual satisfaction, but that he actually obtained sexual satisfaction.

[39]It was submitted on behalf of the Crown Prosecution Service that if that was the law, there was sufficient evidence in this case on which the jury could have come to that conclusion. We agree with that submission. We have already referred to some of the evidence that was available to the jury. Although there was plainly evidence that would have satisfied that further requirement, we do not consider that that was a necessary further ingredient of the offence. (2). The addition of the further counts to the indictment

[40]We turn, under the head of this first submission, to one further point. The circumstances as we have described them in which the Crown had originally charged these matters were plainly unsatisfactory. However, it is clear from the transcripts that the judge took steps to ensure that the Crown understood the way in which the case should be put when he ruled that there was no case to answer. The complaint is, first, that the judge had to steer the Crown to the right charge; and secondly, that the Crown had hitherto nailed its colours to the mast of a charge of indecent assault.

[41]It is regrettable that the judge had to intervene as he did. However, a judge's task in a matter such as this is to ensure that justice is done. Plainly, if any prejudice had resulted from the way in which the Crown had conducted its case, the judge should not, and we are sure he would not, have allowed the amendment, given the very careful way in which the judge conducted the trial.

[42]We have examined afresh whether there was any prejudice. We cannot find any. First of all, it is suggested that the complainant concerned (an adult lady when she gave her evidence) could have been asked about her attitude at the time. We cannot see how that could have been relevant. Secondly, it seems to us that any prejudice in that respect was cured by the ability to re-examine. We understand why that was not extensively taken up.

[43]We conclude, first, that there was ample evidence of the acts which amounted to the offence under section 1 of the 1960 Act; secondly, that the judge correctly directed the jury; and thirdly, that there is nothing in the point that the judge should not have allowed the amendment. (3). The pseudo images: bad character

[44]We turn to the second matter argued before us (the third ground of appeal). We have already set out in sufficient detail the evidence in relation to the pseudo-images. They were put before the court as evidence of bad character. As we have already observed, there can be no doubt that this evidence was highly prejudicial. That is no doubt why the judge took the step of saying that, apart from the two images to which we have referred, the other images should be described in the schedule of 138 such images. If the evidence was relevant, it seems to us that the judge took every proper step to limit the prejudice in accordance with the suggestions of this court. But it is argued, first of all, that the evidence was not relevant because it went to show only that the applicant had an interest in the naked form of the child and not to a sexual interest in children; and secondly, that as the images had been created in 2006, they could not be relevant to matters that had taken place in the period that ended nineteen years earlier.

[45]It seems to us that neither of those points can properly be argued in this court. First, bearing in mind the issues as we have already outlined them, the pseudo-images were plainly relevant to the question whether the applicant had a sexual interest in children for the purposes of the photographs at the time the evidence was admitted and, bearing in mind the depictions in the pseudo-images, were plainly relevant to what are described in the vernacular as the "tasting" counts. Secondly, as regards the time, the recent decision of this court in R v B

[2011] EWCA Crim 1630

shows that images that were created afterwards can be relevant. It is, as the court pointed out, clear that the fact that someone has an interest in pornography some years later is relevant because it would be unreal to suggest that such an interest did not exist earlier. The extent and weight to be attached to it is a matter for the jury, but it seems to us that it is relevant.

[46]For those reasons, therefore, we consider that the judge was right to admit the evidence. He took every step possible to reduce what undoubtedly was their highly prejudicial effect. Furthermore, it is said that the judge misdirected the jury. We have carefully considered his direction in this respect. We can see no fault in it. (4). Other grounds

[47]The fourth ground of appeal relates to the photograph of SM, which we have already described, which was adduced into evidence but did not form the basis of counts 1 or 2. As is accepted, in the light of our decision on the third ground of the appeal (the second argued in this court), that matter falls away.

[48]We turn to the fifth and sixth grounds of appeal which relate to the good character direction that was given. The good character direction contained three limbs. It is accepted that no criticism could be made on the first and second limbs. However, it is suggested that the third limb was put in restricted terms.

The judge said:

"You must also have regard to the fact that it is not alleged that [the applicant] has committed any offence, let alone a sexual offence, since the period covered by this indictment."

Complaint is also made that, after the judge had given that direction, he went on to dilute it by saying that, in assessing good character, the jury should take into account the admitted fact that the applicant had created the indecent pseudo-images of young girls on his computer prior to his arrest. It is suggested that the judge did not tell the jury how to do this and that in the circumstances it was unfair to have watered down the direction.

[49]It seems to us, from a reading of the summing-up as a whole, that it was perfectly obvious how the jury were to take into account the finding of the pseudo-images on the computer. There can be no criticism whatsoever of the judge's watering down. The creation of those images, depending on whether the jury accepted the explanation given by the applicant, could plainly amount to evidence of reprehensible conduct which plainly affected his otherwise good character.

[50]The final ground of appeal relates to the suggestion that there were inconsistent verdicts. We have already set out the fact that the applicant was not convicted in respect of the "tasting" counts. The position in respect of those is as follows. When JB gave her evidence she said that she was blindfolded. She could not therefore be sure that the applicant had put his penis into her mouth. As that was her evidence, it is hardly surprising that, as the jury were told they must be sure, they acquitted him on that count in relation to JB. We cannot therefore see how that verdict can be inconsistent with the other verdicts in relation to JB.

[51]As regards the inconsistency that is said to arise in respect of the applicant's acquittal in relation to CM on the "tasting" count, her evidence was much more definite. However, she was a different child. The jury may have taken a different view of her. The more likely explanation is that she asserted that she, as an adult, was sure that a penis had placed into her mouth. The jury would have to ask themselves the question: could that amount to evidence all those years later when CM could not remember or did not know what it was at the time? We can see no inconsistency in the verdicts.

[52]We have, as is our duty, considered all of the voluminous evidence in this case. We have examined the photographs and the schedule. We have considered all the matters that were before the jury. We have concluded that the jury had ample opportunity to assess the victims and assess the applicant. They were properly directed in respect of all the matters which they had to consider. They had to decide whether the applicant was lying in respect of the counts, or whether he was telling the truth. They had to assess whether his actions were grossly indecent. There was ample evidence to support their conclusions which they reflected in their verdicts. These convictions are safe. Accordingly, the application for leave to appeal against conviction is refused.

THE REFERENCE BY THE ATTORNEY GENERAL

[53]We therefore turn to consider the appropriate sentence. At the sentencing hearing the court had before it victim impact statements from SM, EE and JB. It is important to refer to them.

[54]SM said that giving evidence had been the worst experience of her life. She had struggled with a vague feeling throughout her life that she had been taken advantage of. Throughout her life she had felt loneliness and isolation. She felt alone in her relationships.

[55]JB said that since the matter had been brought to her attention she had suffered from sleepless nights. She also had found that giving evidence at court had been the worst experience of her life.

[56]EE stated that the handing round of nude and explicit photographs of her had deprived her of her dignity. She had also suffered significant financial loss.

[57]There was before the court no pre-sentence report as it was decided that one was not necessary. The judge had before him the very strong good character evidence that had been given in respect of the applicant at the trial.

[58]Having heard submissions from counsel, the judge took the view that the offence of indecent assault (the touching of the breasts) was in terms of culpability at the lower end of the scale. However, he expressed the view that the incident in the bath (count 7) was a serious offence. He pointed out that if that had occurred now, it might well have been charged as inciting a child to engage in sexual activity - an offence that carries a maximum sentence of fourteen years' imprisonment.

[59]In relation to the other offences, the following is clear:(1) The girls had at the time the acts were committed no understanding of the true purpose behind what the applicant did.

(2) There was no doubt that his purpose was sexual.

(3) There was no doubt that he had a sexual interest in children. The jury had disbelieved his assertion that he had an artistic interest in naked children.

(4) The judge described the collage as "truly disgusting". It involved young female children and adult males engaged in sexual activity. He expressed the view that the account that the applicant had given was transparently false.

[60]However, the judge took into account a number of matters: the applicant was over 70; the offences were committed between 25 and 40 years ago; he had no previous convictions; he had a reputation as an eminent landscape artist; others had spoken highly of him, not only of his artistic ability, but of his kindness and generosity. The issue was whether the custodial sentence that the judge considered appropriate could be suspended. There were four bases on which he considered it could be: first, the age of the applicant; second, the age of the offences; third, the applicant's considerable artistic reputation and the fact that he had suffered punishment from the loss of that reputation; and fourth, that he did not now pose a risk to children. He considered, therefore, that the appropriate sentence on each count was twelve months' imprisonment, but that it could be suspended.

[61]Her Majesty's Attorney General has submitted that the sentence was unduly lenient. The judge failed to have regard to the terms of the statute in that exceptional circumstances were required before a sentence could be suspended. The judge had also failed to have regard to the extent and scope of the offending, the number of victims, the impact of the offending upon them, and the aggravating factors that were present. As the applicant had justified the photographic posing as being part of his artistic endeavours, it was wrong to suspend the sentence on grounds connected with his loss of reputation as an artist.

[62]We have carefully considered those submission, as we have the submissions of Mr Quinlan who has essentially said that the judge was in the best position to have judged the applicant; that he had been right to take into account his age and the fact that these offences were committed such a long time ago; and the fact that the applicant no longer posed a risk to children.

[63]In considering what is the appropriate sentence, we have regard, first, to the fact that the only mitigation that the applicant has were his former good character and his age. As against that, there are a large number of aggravating factors: first, there was the contrast in age between the victims and the applicant at the time the offences were committed; secondly, the number of victims who were involved; thirdly, the serious abuse of the position of trust that he had occupied in relation to the victims - his reputation as a landscape artist enabled those who were close to the children to trust him; and finally, the serious impact on the victims, magnified by the way in which he had grossly manipulated and degraded them by the photography in which he had engaged.

[64]It is right that we should add that we have before us a report in which the applicant claims that he has done nothing wrong. He maintains that he is an artist who seeks to "capture the innocence of children in a state of grace before the biblical fall". That is exactly what he told the jury. They disbelieved him. There was ample evidence for that conclusion.

[65]There can be no explanation for the incident in the bath, other than a perverted sexual interest in children. The jury's verdict is clear: that his claim that he did what he did for the sake of art was not only a lie, but a cover to induce parents to trust their children to him. It enabled him to take advantage of that trust and to abuse the children in the way described.

[66]In our view the applicant's position seriously aggravates the offending. He shows no contrition at all, but claims that he is the victim of a "global witch hunt" against artists, which includes agencies, Child Exploitation & Online Protection Centre (CEOP), the police, and the British press. He seeks to blame others and asserts conspiracies against him. It is self-evident that he has no understanding of the very serious harm he has caused to the victims by his grave criminal misconduct. He still asserts that it is art that is being put on trial. Such an assertion is nonsensical, bearing in mind the facts as we have set them out.

[67]It appears that he has some mobility difficulties. He suffers from age-related illnesses. We take those into account.

[68]Against that background we come to the following conclusions. The judge rightly identified that count 7 (the incident in the bath) was a very serious offence. The maximum penalty for that offence was, as for all offences of gross indecency with children, two years' imprisonment. The photographs which formed the basis for the other counts of indecency were taken for purely sexual and not artistic purposes, but must fall into a less serious category of offence than the bath incident.

[69]In the result, we consider that the seriousness of count 7 should be marked by a sentence of 18 months' imprisonment, and that the offences of taking photographs should be marked with a consecutive sentence. However, having regard to the principle of totality, the applicant's age and condition, and the other matters, we consider that the sentence on each of those counts should be nine months' imprisonment, concurrent with each other but consecutive to the sentence of 18 months' imprisonment. We consider that the count of indecent assault should be subject to a term of six months' imprisonment, but that will be made to run concurrently with the other sentences.

[70]In the result, therefore, we consider that the sentence should not have been suspended and that, in place of the suspended sentence of twelve months' imprisonment, the applicant must serve a total sentence of two years and three months' imprisonment. There is no basis, and there was no basis, for suspending the sentence.

[71]It follows from what we have said that the sentence imposed was unduly lenient. It will be quashed and the sentences we have set out will be substituted. _____________________________