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Sentences for Offences Relating to Indecent Photographs

Document Cited authorities 11 Cited in Related
AuthorAlisdair A. Gillespie
DOI10.1350/jcla.2010.74.6.664
Published date01 December 2010
Date01 December 2010
JCL 74(6) dockie..JCL664 High Ct of Judiciary .. Page510 High Court of Justiciary
Sentences for Offences relating to Indecent Photographs
HM Advocate v Graham [2010] HCJAC 50
Keywords
Indecent photographs; Sentencing Guidelines; Aggravation;
Mitigation
The defendant pleaded guilty to a number of offences relating to the
sexual abuse of children but, for these purposes, also pleaded guilty to
two offences under s. 52 of Civil Government (Scotland) Act 1982,
namely that he made indecent photographs of children and that he
distributed indecent photographs of children.
An analysis of his computer identified that he had 127,269 indecent
images of children on his computer, of which 80,205 were unique (the
rest being duplicates). Of these unique images, 79,011 were still images
and 1,194 images were moving images. The images were categorised
according to the English Definitive Sentencing Guideline (see commen-
tary below) and it was shown that the offender had 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 judge sentenced the offender to six months’ imprisonment (dis-
counted from nine months because of a plea of guilty) for the offences
relating to indecent photographs of children. The Crown sought to
appeal the sentence as unduly lenient and invited the court to issue
sentencing guidance on these matters under s. 118(7) of the Criminal
Procedure (Scotland) Act 1995.
HELD, INCREASING THE SENTENCE, the court agreed to issue guidance
under s. 118(7) of the 1995 Act (the details of which are included within
the commentary). The sentence was unduly lenient and would be
quashed. A sentence of six years and four months’ imprisonment was
substituted.
COMMENTARY
This is an important case as the High Court of Justiciary has issued
specific guidance on the correct sentencing approach to offences relating
to indecent photographs of children. The court has previously passed
guideline cases (Ogilvie v HM Advocate 2002 JC 74 and McGaffney v HM
Advocate 2004 SCCR 384), but this was the first time that they received
the authority under s. 118(7) of the 1995 Act.
The general approach of the court has been to follow broadly the
guidance in England and Wales issued by the Sentencing Guidelines
Council in April 2007 (Sexual Offences Act 2003: Definitive Guideline (Sen-
tencing Guidelines Council: London, 2007). This replaced earlier guid-
ance produced by the Sentencing Advisory Panel and given judicial
recognition in R v Oliver, Hartrey and Baldwin [2002] EWCA Crim 2766,
[2003] 1 Cr App R 28. An interesting statement is given towards the end
510
The Journal of Criminal Law (2010) 74 JCL 510–515
doi:10.1350/jcla.2010.74.6.664
Sentences for Offences relating to Indecent Photographs
of the judgment, which is that the advocate depute did not fully appre-
ciate the status of this guideline or its operation (at [60]). This is perhaps
not surprising and reference continues to be made in both England and
Scotland to the Oliver scale or COPINE scale, and yet the Definitive
Sentencing Guideline altered the scale and this is the only reference that
should be included.
The remainder...

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