R v Peter Stanley [2024] EWCA Crim 1647

[2024] EWCA Crim 1647Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Tuesday, 10 December 2024
Before
LORD JUSTICE WILLIAM DAVISMRS JUSTICE McGOWAN DBESIR ROBIN SPENCER
Between
REXCrownV
Between
PETER STANLEY__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR C LANDER appeared for ApplicantMR C TAYLOR appeared for Crown_________APPROVED JUDGMENT

SIR ROBIN SPENCER:

[1]This application for leave to appeal against sentence has been referred to the Full Court by the Registrar.[2]On 25 September 2024 in the Crown Court at Liverpool the applicant, Peter Stanley, aged 42, was sentenced by His Honour Judge Ian Harris to a total of 20 months' imprisonment for three offences of publishing an obscene article, contrary to section 2(1) of the Obscene Publications Act 1959. That was the concurrent sentence imposed for each charge. The applicant had pleaded guilty to the offences in the magistrates' court and had been committed to the Crown Court for sentence. The applicant was afforded full credit of one-third for his guilty pleas. The maximum sentence for each offence was five years' imprisonment.[3]The charge in each case alleged that between April and June 2023 the applicant published an obscene article, namely videos of baby monkey torture. The publication in each case was on the internet to a Facebook group of which the applicant was a member. In referring this application to the Full Court the Registrar observed:
"It appears that the use of media to post appalling videos such as those in this case has escalated in recent years. There are no offence specific guidelines and no relevant authorities."
[4]In short, the grounds of appeal are that the judge took too high a starting point, that he allowed insufficient credit for the applicant's personal mitigation and that the sentence should have been suspended.[5]We are grateful to Mr Lander on behalf of the applicant and Mr Taylor on behalf of the Crown for their submissions. The facts[6]The offences came to light when they were reported to the police through a UK based project called "Action for Primates", the objective of which is to end the abuse and killing of monkeys for social media and online entertainment. Such abuse and the posting of such videos on social media has been increasing in recent years and the degree of cruelty carried out and depicted has also escalated. The judge had evidence of this in a statement from Sarah Kite, one of the managers of the project, who has worked in animal protection for over 30 years in this country and in the United States.[7]She explains that material of this kind had formerly been confined mainly to encrypted social media channels such as Telegram but more recently it has begun to appear on public social media platforms such as Facebook, potentially accessible to everyone, including children. Sarah Kite took part in an investigation by the BBC into online monkey torture groups broadcast in a documentary programme shown in June 2023.[8]Sarah Kite makes the following observation in her witness statement:
"One danger of allowing the circulation of these extreme graphic videos on social media is that it normalises violence towards animals. Social media companies are providing a space for individuals to get together and share graphic videos depicting highly sadistic behaviour. It is out there, and it is alarming to see that it has escalated to such extreme levels."
[9]Much of the monkey torture in question takes place and is filmed in Indonesia. It seems that the filming is supported financially by money sent there by online enthusiasts who describe what kinds of torture they would like to see inflicted. We stress that there is no suggestion that the applicant did that.[10]The applicant became a member of a Facebook group called “Monkey Sauce”. That group no longer exists. It has been taken down by Facebook. Later he became a member of an online monkey torture group which portrayed bestiality, pornography and images of tortured monkeys.[11]In order to convey the seriousness of these offences it is necessary for us to describe in some detail the content of the three videos which the applicant uploaded and the comments which he uploaded with them. We adopt from the judge's sentencing remarks his descriptions of the torture, noting that even these descriptions are not as explicit and detailed as the evidence itself. In each of the videos the baby monkeys appear to be no more than a few weeks old.[12]The first is a 15-minute video in which a monkey is tied to a tree and tortured by adult humans. It is attacked and whipped with a stick. Needles and a knife are used. It is mutilated and has its fingers cut off. Needles are inserted into its genitalia. The monkey's fingers are put in its mouth and then a long sword is also put into the animal's mouth. The comment posted by the applicant with this video was:
"Now do as you're told."
[13]The second video is seven minutes long. It shows a heated nail being driven into a baby monkey's anus. The monkey is then hit with tools to its head and slammed against a wall. It dies and is flung into undergrowth from a balcony. The comment posted by the applicant with this video was:
"A fave of mine this one."
[14]The third video is nine minutes long. A man is filmed using pliers on a baby monkey's genitals. He swings the monkey around, crushing its genitals. The man then breaks the monkey's bones by attacking it with a hatchet and a knife and smashes the monkey's head before cutting off its ears and forcing the blade of an axe into its mouth. The comment posted by the applicant with this video was: "The rat has nailed it".[15]The name "tree rat" is apparently a derogatory term for long tailed macaque monkeys such as this. Examination of the applicant's Facebook account page showed other monkey torture groups of which he was or had been a member, including the description "former member of tree rat crazy normal". That particular group had 344 members at the time. He posted that he had joined the group because he hated monkeys. In one of his emails to another group member the applicant was asking for a video showing baby monkeys being "chopped up". There was a message from someone in the group called "rat" or "mental" advising that there was a UK investigation into monkey torture and the advice was to hide location and personal information.[16]Having received information about the applicant's activities, the police obtained a warrant to search the applicant's home which was executed on 26 March 2024. Examination of his phone revealed 26 images of monkey torture as well as these three videos. In interview the applicant said he had been watching videos of monkeys in the wild and wondered how bad the torture videos could be. He found a Facebook group and was advised that to prove that he would not report them, he had to share videos. He accepted sharing videos from one Facebook group to another in order to get access to the private group. He said he viewed about 70 videos between June and October 2023 and that he was a member of several groups relating to the torture of monkeys. He said he did not know why he made the comments he did when he shared the videos. He had stopped voluntarily after watching one particularly extreme torture video.[17]The applicant had no previous convictions. There was a pre-sentence report. He told the probation officer that he had been “morbidly curious” about what such videos might depict. He found that the videos were "horrifying but addictive". He acknowledged that his engagement with this material only sought to encourage it. The applicant was assessed as posing a low risk of serious harm. The report put forward proposals for a community order, the requirements of which could alternatively be imposed as part of a suspended sentence order if immediate custody was not necessary. The judge's sentencing remarks[18]In his carefully considered sentencing remarks, the judge said this: 19. We respectfully agree entirely with those observations.[19]The judge outlined the applicant's personal mitigation. He was of previous good character and there were also two positive character references. As a result of these offences he had lost his job and a longstanding relationship with his partner had broken down. The applicant was assessed as having low self-esteem and difficulty forming relationships. The probation officer considered that the applicant would benefit from rehabilitation activity requirements and a mental health treatment requirement to address the psychological issue of his low self-esteem.[20]The judge acknowledged that there was no Sentencing Council guideline for the offence of publishing an obscene article. Although prosecuting counsel had referred him to the guideline on Animal Cruelty offences, the judge described it as an imperfect analogy. He was satisfied that the custody threshold was passed and that the twin sentencing principles of punishment and deterrence outweighed any personal mitigation. After a trial he would have started at 33 months' imprisonment but the personal mitigation brought this down to 30 months which he then further reduced by one-third for the early guilty pleas. The custodial term was therefore 20 months.[21]The judge referred expressly to the Sentencing Council Guideline on the Imposition of Community and Custodial Sentences which sets out relevant factors for and against the suspension of any term of imprisonment. The judge was satisfied that appropriate punishment could only be achieved by immediate custody. Mindful of totality, he made each of the sentences for the three separate offences concurrent. A deprivation order was made in respect of the applicant's mobile phone. The applicant's submissions[22]On behalf of the applicant, Mr Lander submits that 33 months as the judge's starting point was simply too high. He submits that although the judge said it was an imperfect analogy he may nevertheless have been influenced by the prosecution's reference to the Animal Cruelty guideline with its suggested starting point of two years' custody for the most serious offences of prolonged, sadistic cruelty where the animal is killed or very seriously injured.[23]In his oral submissions, Mr Lander added that even if the judge was not actually influenced by that guideline, instinctively he may have pitched the sentence too high because of the dreadful nature of the abuse.[24]Mr Lander submits that there was no sophistication to the applicant's criminality, the sentence failed to reflect the fact that the material had been uploaded to a private Facebook group, that there was no commercial element to the offences, and that the applicant had voluntarily removed himself from the Facebook groups. He submits the judge has given insufficient credit for the applicant's personal mitigation.[25]Mr Lander also submits that any sentence of imprisonment should have been suspended with appropriate requirements as outlined in the pre-sentence report. He submits that the judge was wrong to conclude that appropriate punishment could only be achieved by immediate custody. The other two factors in the guideline militating against suspension were not present, whereas two of the three guideline factors in favour of suspension were present: a realistic prospect of rehabilitation and strong personal mitigation.[26]Finally, Mr Lander submits that the factor of the high prison population and its impact on the conditions in which the applicant is having to serve his sentence should have led the judge to suspend the sentence. He relies on the well-known recent case of Ali (Arie) [2023] EWCA Crim 232. The resondent's submissions[27]In written submissions on behalf of the Crown in the respondent's notice, Mr Taylor submits that the judge's starting point was not excessive. The material was highly obscene in that it showed "complicated, calculated, determined and fatal cruelty to sentient beings". The fact that the applicant had uploaded the material to a private group afforded no real mitigation because such cruelty could be furthered only by such private groups. Mr Taylor submits that the absence of a commercial element to the applicant's offending is of limited relevance: by analogy with offenders who download large quantities of indecent images of children without paying for them, a global trade is nevertheless thereby created. Discussion and conclusion[28]We have given all these submissions careful consideration. In the absence of any offence-specific guideline from the Sentencing Council, or any guidance from this Court previously in similar cases, we follow the general Sentencing Council guideline Overarching Principles and focus on the test in section 63 of the Sentencing Act 2020 for assessing seriousness: The court is required to consider:
“…the offender's culpability in committing the offence and any harm which the offence caused or was intended to cause or which might foreseeably have caused”
. In a case of this kind, on the evidence before the judge of the growing prevalence of such offending, deterrence also has a significant part to play in sentencing, as Mr Lander accepts.[29]Here, the applicant's culpability was high. He had deliberately sought out this kind of material on the internet and endorsed it enthusiastically when he shared it, as his own comments uploaded with these three appalling videos clearly demonstrate.[30]The harm caused by such offences is very considerable. Although the applicant did not make any payment to the perpetrators of this sadistic cruelty, its proliferation depends on the enthusiastic support of those who access and share it on the internet. The judge rightly identified this at the end of the passage we have quoted from his sentencing remarks. Conduct such as the applicant's stimulates and creates the market for such material, thereby encouraging those who make and supply it. We note that Mr Lander in his grounds of appeal very properly accepted the correctness of this analysis by the judge[31]In this regard at least, an analogy may properly be drawn with the sentencing principles applicable to the making and possession of the worst kind of indecent images and films of children being abused. It has often been said by this Court that those who download such images of children being abused clearly contribute to the market in them and to the harm done to children: see, e.g.,Richardson [2016] EWCA Crim 146, at [7].[32]The sharing of this information on Facebook, albeit to a private group, was an aggravating factor and a worrying development for the reasons explained by Sarah Kite in the passage we have quoted from her witness statement. There is far less effective control on the further dissemination of such material than on an encrypted channel, although that is in no way to condone such publication there either. The one often leads to the other, as history has shown.[33]We do not accept that the judge was influenced by the Crown's reference to the Animal Cruelty guideline. It is indeed an imperfect analogy, as the judge said. That guideline is for offences committed by the perpetrator of the cruelty. In any event, the actual perpetrator of such excessive cruelty of this kind on multiple occasions would face a much higher sentence than the starting point of two years’ custody.[34]We do not propose to attempt to give any general guidance on the level of sentence appropriate for offences of this kind. Each case will be fact-specific. We think the judge was fully entitled to take 33 months as his starting point. It was for the judge to assess the weight of the applicant's personal mitigation. Some judges might have allowed a slightly greater reduction than three months for the applicant’s personal mitigation but that in no way leads to the conclusion that 30 months was even arguably manifestly excessive.[35]Accordingly, we are satisfied that a sentence of 20 months' imprisonment, after one-third credit for plea, was fully justified. The judge made it clear that he was imposing the shortest term of imprisonment equal to the seriousness of the applicant's offending.[36]That leaves the question of suspension. We do not think that the guidance in Ali (Arie)can assist the applicant in the circumstances of the present case. That guidance is so well-known that this experienced judge must have been well aware of it, as Mr Lander accepts, although he explained to us that he had not in fact cited that authority to the judge. In Ali (Arie) there was a combination of exceptional factors including long delays in charging and sentencing, and the custodial term was very short, six months only. The impact of prison conditions was only one final additional exceptional factor.[37]The judge had the relevant guideline on the imposition of custodial sentences firmly in mind. He was well aware of the two positive factors the applicant could rely upon in the guideline: a realistic prospect of rehabilitation and strong personal mitigation. He rehearsed the material relevant to those factors in his sentencing remarks. In the end however it was for the judge and the judge alone to weigh the factors for and against suspension, as the guideline requires. It is not a question of numbers. The judge was quite entitled to conclude that the overwhelming factor, given the seriousness of the case, was that appropriate punishment could only be achieved by immediate custody. It is not arguable that the judge's conclusion was wrong. Indeed we think it was plainly correct.[38]For all these reasons, the application for leave to appeal is refused.