Paul Graham Archer V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Drummond Young |
| Neutral Citation | [2013] HCJAC 162 |
| Published date | 12 December 2013 |
| Docket Number | XC348/13 |
| Court | High Court of Justiciary |
| Date | 12 December 2013 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| [2013] HCJAC 162 | |
| Lady Paton Lord Drummond Young | Appeal No: XC348/13 OPINION OF THE COURT delivered by LORD DRUMMOND YOUNG in APPEAL AGAINST SENTENCE by PAUL GRAHAM ARCHER Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Paterson, Solicitor Advocate; Beltrami & Co Ltd
Respondent: Small, AD; Crown Agent
12 December 2013
[1] The appellant tendered a plea of guilty in Kilmarnock Sheriff Court at a diet fixed in terms of section 76 of the Criminal Procedure (Scotland) Act 1995 in the following terms:
"between 16 May 2010 and 12 May 2012, both dates inclusive, at [the appellant's home] [the appellant] did take or permit to be taken, or make indecent photographs or pseudo-photographs of children: CONTRARY to the Civic Government (Scotland) Act 1982, section 52(1)(a)".
On 19 February 2013 the sheriff imposed a sentence of 36 months' imprisonment in respect of that charge. The appellant has now appealed against that sentence.
[2] The facts of the case, as set out in the sheriff's report, are as follows. On 16 May 2012 police officers in possession of a sheriff court search warrant attended at the appellant's home and carried out a search of the property in his presence. A laptop computer was found on the floor of the living room. It was removed and subjected to an analysis. The appellant was interviewed by the police, and admitted using the computer to download images of female children over a two-year period and storing them on the hard drive. He was of opinion that the ages of the children ranged from 1 to 15 years. He stated that circumstances had led him to become curious about images of children being abused, and that matters escalated from there. He agreed that child abuse was not a "victimless crime". He stated that, while he enjoyed looking at the images, he did not obtain any sexual gratification from viewing them. He further stated to the police that "what started as a wee bit of innocent kind of research ... turned into a habit really ... so I knew that I had to get help of some sort". He stated that he did not know how to seek such help as that would mean admitting to another person that he had a problem viewing images of this type. He was then arrested, cautioned and charged.
[3] The appellant's computer was analyzed by the digital forensics unit of Strathclyde Police. It had four user profiles, one of which was password protected. Within this profile, thousands of still and moving images of child pornography, ranging from levels 1 to 5, were discovered. A sophisticated folder structure was found; this included hundreds of folders and subfolders, some of which were named to indicate the content, such as "4YO" and "babytodd".
[4] The images recovered were summarized by the sheriff as follows:
Level 1: still 7834; moving 33; total 7867;
Level 2: still 614; moving 22; total 636;
Level 3: still 1897; moving 37; total 1934;
Level 4: still 937; moving 70; total 1007;
Level 5: still 50; moving four; total 54.
This was a total of 11,332 still images and 166 moving images. The total number of images was 11,498.
[5] The sheriff ordered a criminal justice social work report; the appellant had no previous convictions. A number of noteworthy points arise from the report. The appellant accepted full responsibility for his actions, but he minimized this by effectively denying that there was any sexual element in his offending behaviour. The reporter observed that the offences involved a high degree of planning, as the appellant selected times when his partner and children were in bed asleep or his partner was in hospital to view the images. The account that he used was password protected. The appellant was adamant that he did not gain any sexual gratification but used the images as a means of "coping with stress". He stated that he began viewing the images as research as he did not believe that media stories regarding child sexual abuse were true. He regularly viewed the images for several hours at a time and claimed that they were so disgusting and graphic that they enabled him to forget about the stresses of his life. The social worker who compiled the report observed that she found this statement difficult to believe and that she could not lend this explanation any credibility. The appellant recognized that he contributed to the harm of victims and that his behaviour exacerbated and perpetuated the sexual abuse of children. The reporter reviewed a range of possible disposals, including custody and participation on the Community Sex Offender Group-Work Programme. She observed that the appellant's statement that he continued to view the images as a way of managing stress and life problems might create a problem with the programme, although he met the criteria for inclusion.
[6] Two further documents were available. First, a letter was available to the sheriff from the appellant's partner's GP, in which he indicated that she suffered from a serious illness, Hodgkin's lymphoma, involving persistent lethargy and recurrent respiratory infections. She also suffered from a number of other complaints. Hodgkin's lymphoma is a very serious condition, and its effects placed a significant burden on the appellant of looking after the house and the children. A letter was also available from the programme coordinator of a charity known as Stop it Now!, which undertakes a national programme for the prevention of child sexual abuse. This body runs group work programmes, which would be available for the appellant. The appellant initially contacted Stop it Now!'s English helpline on 7 January 2013, although the initial police operation occurred in May 2012. The appellant has stated that the delay was caused because he was told by Stop it Now!'s helpline that the nearest service that he could obtain was in Sheffield and that no services available in Scotland. Stop it Now! are unable to confirm whether this is correct.
[7] The appellant was, however, interviewed by the national manager of Stop it Now!, who reported in a letter dated 20 August 2013. In this, the manager indicated that he found the appellant's movement into on-line offending to be a familiar one. He appeared to have found himself in a situation of sudden and continuous overwhelming stress in which he was unsupported and seriously socially and emotionally isolated. He seemed to be somewhat "delayed" in his sexual and emotional development, with the result that he had communication difficulties and rather sparse resources to apply when he came to confront serious adversity and uncertainty in his adult life for the first time. He was unable to self-regulate on-line behaviour and immersed himself indiscriminately in pornographic material. This behaviour subsequently became compulsive. The degree to which this reflected a pre-existing or prevailing sexual interest in children was not immediately apparent and therefore could not be assumed.
[8] In his report, the sheriff referred in some detail to the social work report. He records that the appellant's agent stressed that the appellant did not minimize his involvement in the offences, but only sought to show that he had obtained no sexual gratification. It was accepted that there must appear to have been a degree of planning involved. The appellant had no material previous convictions. In the social work report it had been suggested that the appellant had refused to participate in Child Protection Court Group meetings and was hostile towards certain social workers. The appellant's solicitor stated that the appellant had been surprised at that, and had been seeking help from the "Stop it Now!" organization; nevertheless, he acknowledged that the social worker who supervises the appellant's family is of the view that the family did not engage well with social services. The appellant's solicitor further acknowledged that, given the number of images across all ranges, the court would have to consider a custodial sentence. He nevertheless suggested a community payback order as an alternative.
[9] The sheriff stated that he considered alternatives to...
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