The King v Jacek Pacyno
| Jurisdiction | Northern Ireland |
| Judge | Keegan LCJ |
| Judgment Date | 12 January 2024 |
| Neutral Citation | [2024] NICA 3 |
| Date | 12 January 2024 |
| Court | Court of Appeal (Northern Ireland) |
1
Neutral Citation No: [2024] NICA 3
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: KEE12378
ICOS No: 23/030961
Delivered: 12/01/2024
IN HIS MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
___________
THE KING
v
JACEK PACYNO
___________
REFERENCE UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988
(AS AMENDED BY SECTION 41 OF THE JUSTICE (NORTHERN IRELAND)
___________
Mr David McNeill (instructed by the PPS) for the Applicant
Mr Blaine Nugent (instructed by PA Duffy Solicitors) for the Respondent
___________
Before: Keegan LCJ, Treacy LJ and McFarland J
___________
KEEGAN LCJ (delivering the judgment of the court)
Introduction
[1] This is an application by the Director of the Public Prosecution Service (“the
DPP”) for leave to make a reference to the Court of Appeal under section 36 of the
Criminal Justice Act 1988 as amended to review a three-year probation order
imposed on the respondent on 19 September 2023 by Her Honour Judge McColgan
KC (“the judge”).
[2] The sentence was imposed following pleas of guilty in respect of seven counts
of engaging in sexual activity in the presence of a child aged between 13 and 16
years, contrary to Article 18 of the Sexual Offences (NI) Order 2008 (“the 2008
Order), one count of causing or inciting a child aged between 13 and 16 years to
engage in sexual activity, contrary to Article 17 of the 2008 Order, two counts of
engaging in sexual activity in the presence of a child under 13 years old, contrary to
Article 18 of the 2008 Order, 18 counts of making indecent photographs of children,
contrary to Article 3(1)(a) of the Protection of Children (NI) Order 1978, three counts
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Coroners and Justice Act 2009 and six counts of possession of an extreme
pornographic image contrary to section 63 of the Criminal Justice and Immigration
Act 2008.
[3] The DPP now submits by way of a reference to this court that the sentence of
three years’ probation was unduly lenient in this case. Several ancillary orders were
also imposed including a five-year Sexual Offences Prevention Order. No
application is raised in relation to these orders.
Factual Background
[4] On 16 January 2019 police (“the PSNI”) searched the respondent’s home in
Belfast and seized 13 devices. Seven devices were examined as part of a
proportionate approach adopted by the PSNI. Six devices contained indecent
images of children of all three classifications and nine live stream recordings of the
respondent masturbating while female children watched on the live streams. The
number of children on the live streams varies between one and three each time and
there are a total of 17 children involved. In two of the live streams at least one of the
children is very young.
[5] Counts 1–10 cover the offending on the live streams and are the primary focus
of this reference. By virtue of counts 1, 2, 3, 4, 5, 8 and 9 the respondent was charged
with engaging in sexual activity in the presence of a child between 13 and 16 years,
contrary to Article 8 of the 2008 Order. This is a serious and specified offence under
the legislation for which the maximum sentence is 10 years’ imprisonment. By count
6 the respondent was charged with the offence of an adult causing or inciting a child
aged between 13 and 16 years to engage in sexual activity, contrary to Article 17 of
the 2008 Order. This is a serious and specified offence under the legislation for
which the maximum sentence is 10 years’ imprisonment. By virtue of counts 7 and
10 the respondent was charged with the offence of an adult engaging in sexual
activity in the presence of a child aged under 13 years, contrary to Article 18 of the
2008 Order. This is a serious and specified offence under the legislation for which
the maximum sentence is 14 years’ imprisonment.
[6] The broad background of the above offending is a prolonged period of
engagement with young children over livestream during which the respondent
exposed himself and masturbated. Also, on one occasion the respondent typed
something into his computer and a female child on the live stream responded by
exposing her breasts. This recording has been classified as an indecent video of
Category C and is the subject of count 6 – causing or inciting sexual activity with a
child.
[7] In addition, the respondent was charged with the making and the possession
of indecent images as follows. The number and classification of the indecent images
of children found on the analysed devices is set out below:
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