Her Majesty's Advocate V. David Graham
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Hardie,Lord Justice Clerk |
| Judgment Date | 27 May 2010 |
| Neutral Citation | [2010] HCJAC 50 |
| Court | High Court of Justiciary |
| Published date | 27 May 2010 |
| Docket Number | XC698/09 |
| Date | 27 May 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lady Paton Lord Hardie | [2010] HCJAC 50 Appeal No:XC698/09 OPINION OF THE LORD JUSTICE CLERK IN CROWN APPEAL AGAINST SENTENCE by HER MAJESTY'S ADVOCATE Appellant; against DAVID WILLIAM GRAHAM Respondent: _______ |
For the Crown: Prentice, solicitor QC, AD; Crown Agent
For the respondent: Taylor, sol adv; MFY Partnership, Airdrie
27 May 2010
Introduction
[1] On 14 August 2009 at Glasgow High Court, the respondent pled guilty to a charge of lewd, indecent and libidinous conduct against boys; to two charges of grooming under section 1 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 Act, and to two charges under section 52 of the Civic Government (Scotland) Act 1982 (the 1982 Act). The latter charges were in the following terms:
"(9) between 4 August 2004 and 20 February 2009, both dates inclusive, at [the locus] you DAVID WILLIAM GRAHAM 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;
(10) between 1 January 2005 and 20 February 2009, both dates inclusive, at [the locus] you DAVID WILLIAM GRAHAM 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] On 30 September 2009 the sentencing judge imposed an extended sentence in terms of section 210A of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) of five years and nine months on the charge of lewd and libidinous practices. This sentence comprised a custodial term of nine months, discounted from 12 months, and an extension period of five years. He imposed a cumulo sentence of nine months' imprisonment, discounted from 12 months, for the two grooming offences, this sentence to run consecutively to the sentence imposed on the charge of lewd and libidinous practices.
[3] On charges (9) and (10) the sentencing judge also imposed a cumulo sentence of six months' imprisonment, discounted from nine months because of the plea of guilty, this sentence to run consecutively to the sentences imposed on the other charges. The Lord Advocate appeals against the sentence imposed on these charges on the ground that it is unduly lenient.
The facts
[4] The respondent is aged 22. In late 2008 Strathclyde Police became aware that he had subscribed to a website displaying indecent images of young boys. They seized items of computer equipment at his home. When interviewed under caution, the respondent admitted that he had been downloading indecent images of children since he was about 17.
[5] The respondent admitted to searching on the internet for indecent images of children; to paying by credit card for subscription-only websites; and to storing the images and categorising them under various headings on his computers. He said that his preference was for images of naked boys aged between five and 13. He admitted that he had downloaded images of acts of penetrative sexual abuse of young boys and of children younger than five, including babies, but said that he did not necessarily see all of the images that he downloaded. He said that he wished to maintain a collection of images that did not necessarily appeal to him so that he could trade them on the internet for images that did.
[6] 127,269 indecent images were recovered from the respondent's computers, 80,205 of which were unique. Of these, 79,011 were still images and 1,194 were moving image files.
[7] In his Report the sentencing judge has followed the approach taken by the Crown at the sentencing diet in categorising the images by reference to their rating on the COPINE scale. I shall discuss this later. For the moment I mention that the sentencing judge describes the COPINE scale as categorising offences of this nature in five levels of ascending severity. His categorisation of the images using this measure is as follows: 56,897 images at level 1; 4,293 images at level 2; 8,162 images at level 3; 9,218 images at level 4, and 1,635 images at level 5.
The sentencing judge's reasons
[8] The sentencing judge had a social enquiry report, a report from the Clyde Quay Project, a social work services project for the help of sex offenders, and two reports from a forensic clinical psychologist instructed on behalf of the respondent. The reports suggest that the respondent is of average intelligence, but is immature; that he has an inappropriate sexual interest in young children, particularly boys; that although strategies may be available to help him, his interest is likely to remain, and that he represents a significant risk to children. The reports recommend that he should be subject to supervision in terms of an appropriately structured regime.
[9] The sentencing judge says that he understood Ogilvie v HM Adv (2002 JC 74) to be the guideline judgment on sentencing for contraventions of section 52 of the 1982 Act and was unaware of the decision in McGaffney v HM Adv (2004 SCCR 384) in which this court held inter alia that distribution of indecent images by exchange or barter is more serious than downloading for personal use. He says that if he had had that decision in mind, and had focused on questions of retribution and deterrence, he might well have imposed a significantly longer sentence on these charges. He explains why he imposed the sentences appealed against as follows:
"In imposing what I would accept was a modest additional custodial period in respect of charges (9) and (10) I was attempting to produce a composite sentence which achieved my objectives while remaining proportionate because I saw there to be significant mitigating factors which had to be had regard to. The respondent was relatively young, certainly immature, and a first offender. It is commonplace for it to be suggested that an offender is remorseful. Here that case was very powerfully and convincingly made under reference to the co-operation the respondent had given the police; his expressions of self-disgust, both reported and expressed directly in his and his parents' letters; and his early plea. I gave him credit for that plea in allowing a discount of a third in the custodial elements of his sentence but in my opinion it remained relevant to have regard to that remorse and the associated willingness to co-operate with interventions which may minimise the risk of re-offending. It seemed to me at least possible that an overly punitive sentence might have an adverse impact on the prospects for risk minimization."
Submissions for the Crown
[10] The advocate depute contended that the cumulo sentence of six months' imprisonment imposed on charges (9) and (10) failed adequately to reflect the seriousness of the offences, given the quantity and nature of the images. A sentence of this length was within summary limits. The sentencing judge had failed to take into account that users such as the respondent maintained the market for material of this kind. The sentence failed to have a sufficient deterrent effect. Punishment and the protection of the public, and particularly of young children, required that there should be a substantial custodial sentence.
[11] The advocate depute invited us to issue guidance in terms of section 118(7) of the 1995 Act on the sentences that are appropriate for offences under section 52 of the 1982 Act. In particular, he invited us to adopt the sentencing guidelines followed in England and Wales under the Sentencing Guidelines Council's Definitive Guideline on the Sexual Offences Act 2003. He also invited us to give general guidance on the question whether it was necessary for a sentencer to view all or a sample of the productions in every case.
Submissions for the respondent
[12] The solicitor advocate for the respondent accepted that, looked at in isolation, the sentence appealed against might at first sight appear to be unduly lenient. The question, however, was whether the disposal in relation to all charges taken together was to be regarded as unduly lenient. The sentencing judge had been fully aware of the facts. In looking at the respondent's conduct as a whole, he had sought to impose a carefully structured sentence that took account of all relevant factors. The five years extension period imposed for the lewd and libidinous practices charge applied across the board. The sentence appealed against was inextricably bound up with those imposed on the other charges. Charges (9) and (10) were serious, but if the appeal succeeded it would have the incongruous result that a longer custodial sentence would be imposed on these charges than on the contact offences of lewd and libidinous practices and grooming. The respondent had served the custodial term of his sentence and had been released on strict licence conditions. He was young. He fully accepted his guilt and was genuinely remorseful. We should not interfere with the sentencing judge's decision (HM Adv v Bell 1995 SCCR 244).
[13] On the wider questions of sentencing policy the solicitor advocate for the respondent accepted that commercial distribution of indecent images 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 Crown provided an agreed description of it or if the sentencer had experience of such cases.
The statutory provisions and previous judicial guidance
[14] Sections 52 and 52A of the Civic Government (Scotland) Act 1982 (as amended) (the 1982 Act) provide, inter alia, as follows:
"52 - Indecent photographs etc. of children
(1) Any person who-
(a) takes, or permits to be taken, or makes any indecent photograph or pseudophotograph of a child;
(b) distributes or shows...
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