David Brown V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Wheatley,Lord Reed |
| Judgment Date | 05 February 2010 |
| Neutral Citation | [2010] HCJAC 24 |
| Published date | 23 February 2010 |
| Court | High Court of Justiciary |
| Docket Number | XC711/09 |
| Date | 05 February 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Wheatley Lord Reed | [2010] HCJAC 24 Appeal No: XC711/09 OPINION OF THE COURT delivered by LORD WHEATLEY in APPEAL AGAINST SENTENCE by DAVID SAMUEL BROWN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Moll; Barony Law Practice; Edinburgh
Respondent: Hughes AD; Crown Agent
5 February 2010
[1] The appellant pled guilty on 28 August 2009 at the High Court in Edinburgh to an indictment under section 76 of the Criminal Procedure (Scotland) Act 1995 which contained two charges under section 52 of the Civic Government (Scotland) Act 1982. The charges were in the following terms:-
"(1) between 10 April 2005 and 10 March 2007, both dates inclusive, at 38 Broomhill Road, Aberdeen, you David Samuel Brown 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) as amended;
and
(2) between 29 January 2006 and 10 March 2007, both dates inclusive, at 38 Broomhill Road, Aberdeen, you David Samuel Brown did distribute or show indecent photographs or pseudo-photographs of children; contrary to the Civic Government (Scotland) Act 1982, section 52(1)(b) as amended"
[2] The sentencing judge imposed an extended sentence of 10 years, of which the custody part was 6 years. He explains in his report that he considered that, so far as the custodial part of the sentence was concerned, he had started with a figure of 9 years imprisonment, but reduced that by one third to a period of 6 years to take account of the early plea tendered by the appellant. He then added an extended sentence of 4 years.
[3] The agreed facts of the case can be summarised as follows. In January 2007, police in England arrested a male (not the appellant) on suspicion of serious sexual offences against children. At that time his computer equipment was seized and subsequent examination revealed that he was abusing a child to order and distributing images of that and other child abuse to persons using a variety of internet communication techniques. The computer equipment was subjected to forensic examination and this showed that the male arrested was communicating with persons through a number of internet based chat channels. During the course of these conversations he would direct them to a computer server under his control in which various indecent photographs and videos of children could be downloaded. Further examination showed that on 17 December 2006 a connection to this server was made from a specified internet address and that a particular file had been downloaded by the username "dyggid". This was later confirmed as a username employed by the appellant. Following further enquiry, Grampian Police obtained a search warrant in respect of a flat at 38 Broomhill Road, Aberdeen, occupied by the appellant.
[4] On 13 March 2007 police officers attended at the address and executed the search warrant. The appellant was found to be alone in the house. He was cautioned and advised of the circumstances and shown the search warrant. He agreed to attend voluntarily at the local police headquarters where he was interviewed by police officers. During this interview he admitted being in conversation with other unknown persons on internet chat rooms and to viewing and downloading a large number of indecent images and video clips of children of various age groups. He admitted saving and cataloguing these items onto his computer and allowing others to view and download them from his computer as well. He admitted that the children involved were in all of the age groups, the youngest being infants. He described the activities shown on the photographs and videos and indicated that he was known as "a good trader", allowing access to a substantial amount of indecent material relating to children and providing passwords to those who sought access. He confirmed that there were "extreme" images in his possession.
[5] His laptop and an external hard disk were recovered and examined by Grampian Police forensic computer analysts. They found that a total of 4,542 images of children were found. 759 of these were video films, and 3747 were photographs. Most of the indecent images featured girls between the age of 2 and 13 years of age. A particular feature of the case was the large number of images showing horrific abuse, which included penetrative activity, especially oral sex, between adults and children less than 5 years of age. Most of the video footage involved girls, particularly under the age of 10 years old, performing penetrative sexual activities with adult males, but there were also some images of boys. Of the photographs and video images, 2,463 were on level 1 of the Copine Scale, 193 at level 2, 502 at level 3, 1354 at level 4, and 30 at level 5. Many of the videos showing these extreme examples of sexual abuse demonstrated that the children involved were obviously in distress and pain. The sentencing judge noted that the specialist unit set up to investigate such cases in Grampian described the images as among the most disturbing recovered in the area. Further examination of the equipment demonstrated that the appellant had allowed a select number of users to download files of these indecent images and encouraged them to trade them in return. It is clear that the appellant initiated a large number of these...
To continue reading
Request your trial
-
Her Majesty's Advocate V. David Graham
...was an aggravating factor but he pointed out that there is an apparent conflict between McGaffney v HM Adv (supra) and Brown v HM Adv ([2010] HCJAC 24) as to what constitutes commercial distribution. He suggested that it would be unnecessary for the sentencer to view the material if the Cro......
-
Gemmell, Robertson, Gibson and McCourt v HM Advocate
...Crim LR 436 Balgowan v HM AdvocateSCUNK [2011] HCJAC 2; 2012 JC 5; 2011 SLT 285; 2011 SCCR 143; 2011 SCL 418 Brown v HM AdvocateSCUNK [2010] HCJAC 24; 2010 JC 148; 2010 SLT 964; 2010 SCCR 393; 2010 SCL 899 Cameron v RUNKUNKUNKUNK [2002] HCA 6; (2002) 209 CLR 339; 187 ALR 65; 76 ALJR 382 Cha......
-
Paul Graham Archer V. Her Majesty's Advocate
... ... The court referred with approval to two earlier cases, Brown v HM Advocate, 2010 SCCR 393, and Jordan v HM Advocate, 2008 SCCR 618. In Brown, the appellant had ... ...
-
Sentences for Offences Relating to Indecent Photographs
...in the present case that this should not be the position inScotland and approved of the previous decision in Brown v HM Advocate[2010] HCJAC 24 where the court had stated that a full discount shouldnot be awarded where there was no choice but to plead guilty. This, it Sentences for Offences......
-
Sentences Involving Child Pornography in Guernsey
...in Scotland where it has been held that the inevitability of aconviction is something that can be taken into account (Brown v HMAdvocate [2010] HCJAC 24).The guidance set out by the Court of Appeal in Guernsey is to bewelcomed. The court has carefully considered the appropriate approachto s......