COURT OF APPEAL Criminal Division

Published December 6, 2002

Regina v Oliver
Regina v Hartrey
Regina v Baldwin

Before Lord Justice Rose, Mr Justice Gibbs and Mr Justice Davis

Judgment November 21, 2002
Law Report, The Times, 6 December 2002, p. 37.

Sentencing those having indecent pictures of children

For the purposes of sentencing those convicted of offences involving indecent photographs or pseudo-photographs of children, the two primary factors determinative of the seriousness of a particular offence were the nature of the indecent material and the extent of the offender's involvement in it.

As to the material, pornographic images were to be categorised by the following levels of seriousness:
(i)
images depicting erotic posing with no sexual activity;
(ii)
sexual activity between children, or solo masturbation by a child;
(iii)
non-penetrative sexual activity between adults and children;
(iv)
penetrative sexual activity between children and adults, and
(v)
sadism or bestiality.

As to the nature of the offender's activity, the seriousness of an individual offence increased with the offender's proximity to, and responsibility for the original abuse.

The Court of Appeal, Criminal Division, so held in refusing an application for leave to appeal against sentence by Mark Oliver who pleaded guilty before magistrates in May 2002 to six offences of making indecent photographs or pseudo-photographs of a child and was sentenced at Kingston upon Thames Crown Court on July 5, 2002, by Judge Binning to an extended sentence under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000, consisting of a custodial term of eight months and an extended licence period of 28 months.

The court also refused the application for leave to appeal against sentence by Michael Hartrey, who pleaded guilty before magistrates in April 2002 to one charge of distributing an indecent photograph or pseudo-photograph of a child, and one charge of making an indecent photograph or pseudo-photograph of a child and was sentenced at Oxford Crown Court on June 7, 2002, by Judge Morton-Jack and two justices to concurrent terms of three one years imprisonment respectively.

The court dismissed the appeal against sentence by Leslie Baldwin who pleaded guilty in July 2001 at the Central Criminal Court to four counts of indecent assault on a female, four counts of taking indecent photographs of a child and two counts of distributing indecent photographs of a child for which he was sentenced to a total of three years imprisonment.

Miss Rachel Drake, assigned by the Registrar of Criminal Appeals, for Hartrey;
Mr G. A. J. Hooper, assigned by the Registrar of Criminal Appeals, for Baldwin;
Mr Mark Dennis for the Crown;
Oliver did not appear and was not represented.

LORD JUSTICE ROSE, delivering the judgment of the court, gave guidelines in relation to offences under section 1(1) of the Protection of Children Act 1978 and section 160(1) of the Criminal Justice Act 1988 involving indecent photographs and pseudo-photographs of children, particularly in relation to the question as to when the custody threshold should be regarded as having been passed.

The maximum penalty for those offences had been increased, by virtue of section 41(1) and (3) of the Criminal Justice and Court Services Act 2000, in relation to offences under the 1978 Act, to ten years imprisonment and, in relation to offences under the 1988 Act, to five years imprisonment. The new provisions applied to offences committed on or after January 11, 2001.

In their Lordships' judgment a fine would normally be appropriate in a case where the offender was merely in possession of material solely for his own use, including cases where material was downloaded from the Internet but was not further distributed, and either the material consisted entirely of pseudo-photographs, the making of which had involved no abuse or exploitation of children, or there was no more than a small quantity of material at level (i).

A conditional discharge might be appropriate in such a case if the defendant pleaded guilty and had no previous convictions. Possession, including downloading, of artificially created pseudo-photographs and the making of such images, should generally be treated as being at a lower level of seriousness than possessing or making photographic images of real children.

But there might be exceptional cases in which the possession of a pseudo-photograph was as serious as the possession of a photograph of a real child: for example, where the pseudo-photograph provided a particularly grotesque image generally beyond the scope of a photograph.

It was also to be borne in mind that, although pseudo-photographs lacked the historical element of likely corruption of real children depicted in photographs, pseudo-photographs might be as likely as real photographs to fall into the hands of, or to be shown to the vulnerable and there to have equally corrupting effect.

Their Lordships agreed with the Sentencing Advisory Panel that a community sentence might be appropriate in a case where the offender was in possession of a large amount of material at level (i) and/or no more than a small number of images at level (ii), provided the material had not been distributed or shown to others.

For an offender with the necessary level of motivation and co-operation, the appropriate sentence would be a community rehabilitation order with a sex offender programme.

Their Lordships also agreed with the panel that the custody threshold would usually be passed where any of the material had been shown or distributed to others, or, in cases of possession, where there was a large amount of material at level (ii), or a small amount at level (iii) or above.

A custodial sentence of up to six months would generally be appropriate in a case where
(a)
the offender was in possession of a large amount of material at level (ii) or a small amount at level (iii); or
(b)
the offender had shown, distributed, or exchanged indecent material at level (i) or (ii) on a limited scale, without financial gain.

A custodial sentence of between six and 12 months would generally be appropriate for
(a)
showing or distributing a large number of images at level (ii) or (iii); or
(b)
possessing a small number of images at levels (iv) or (v).

In relation to more serious offences, a custodial sentence between twelve months and three years would generally be appropriate for
(a)
possessing a large quantity of material at levels (iv) or (v), even if there was no showing or distribution of it to others; or
(b)
showing or distributing a large number of images at level (iii); or (c) producing or trading in material at levels (i) to (iii).

Sentences longer than three years should be reserved for cases where
(a)
images at levels (iv) or (v) had been shown or distributed; or
(b)
the offender was actively involved in the production of images at levels (iv) or (v), especially where that involvement included a breach of trust, and whether or not there was an element of commercial gain; or
(c)
the offender had commissioned or encouraged the production of such images.

An offender whose conduct merited more than three years would merit a higher sentence if his conduct was within more than one of categories (a), (b) and (c) than one where conduct was within only one such category.

Sentences approaching the ten-year maximum would be appropriate in very serious cases where the defendant had a previous conviction either for dealing in child pornography, or for abusing children sexually or with violence.

Previous such convictions in less serious cases might result in the custody threshold being passed and would be likely to give rise to a higher sentence where the custody threshold had been passed. An extended sentence might be appropriate in some cases, even where the custodial term was quite short: see R v Nelson ((2002) 1 Cr App R(S) 565).

The levels of sentence indicated were appropriate for adult offenders after a contested trial and without previous convictions.

There were specific factors which were capable of aggravating the seriousness of an offence, such as:
1
If the images had been shown or distributed to a child.
2
If there were a large number of images.
3
The way in which a collection of images was organised on a computer might indicate a more or less sophisticated approach on the part of the offender to trading, or a higher level of personal interest in the material. An offence would be less serious if images had been viewed but not stored.
4
Images posted on a public area of the Internet, or distributed in a way making it more likely they would be found accidentally by computer users not looking for pornographic material, would aggravate the seriousness of the offence.
5
The offence would be aggravated if the offender was responsible for the original production of the images, particularly if the child or children involved were members of the offender's own family, or were drawn from particularly vulnerable groups, such as those who had left or had been taken from their home or normal environment, whether for the purposes of exploitation or otherwise, or if the offender had abused a position of trust, as in the case of a teacher, friend of the family, social worker, or youth group leader;
6
The age of the children involved might be an aggravating feature. In many cases it would be difficult to quantify the effect of age by reference to the impact on the child. But in some cases that impact might be apparent. For example, assaults on babies or very young children attracted particular repugnance and might by the conduct depicted in the image, indicate the likelihood of physical injury to the private parts of the victim. Some conduct might manifestly, that was to say, apparently from the image, have induced fear or distress in the victim, and some conduct which might not cause fear or distress to an adolescent child, might cause fear or distress to a child of, say, six or seven.

So far as mitigation was concerned, their Lordships agreed with the panel that some, but not much weight should be attached to good character.

Such offences very rarely resulted in the prosecution or cautioning of offenders under the age of 18. When such a person had to be sentenced, the appropriate sentence was likely to be a supervision order with a relevant treatment programme.

Their Lordships drew attention, however, as did the panel, to the apparent present shortage of adequate treatment programmes for young sex offenders.

Solicitors: Crown Prosecution Service, Headquarters.