Criminal

Sentence - Imprisonment - Length of sentence

R v Wilson: Court of Appeal, Criminal Division (Lord Judge, Mr Justice Silber and Maddison): 14 February 2012

In January 2011, as part of an investigation into online sexual activity involving children, the police executed an early morning search warrant at the defendant's home (the search). During the course of the search, the police seized a mobile telephone, a computer tower, a laptop computer and a number of computer storage devices. In October 2009, the defendant had started full-time work at a nursery, in which he had been predominantly based in the toddler section with the care of children aged between 18 months and two years.

The first complainant had started at the nursery in September 2008. During the course of the search, two movie files were found. The first movie showed the defendant place his penis in the first complainant's mouth for approximately six seconds. He then removed his penis from her mouth, brushed it up and down between her lips and continued to masturbate whilst holding his penis against her lips (count 1). The second movie showed the first complainant, in a classroom at the nursery, looking at the camera. It further showed the defendant, whose face and upper body were out of camera, placing his penis into the first complainant's mouth and moving it in and out (count 2). At the time of the incident the subject of count 1, the first complainant was three years and three months old and, at the time of the incident the subject of count 2, she was three years and nine months old.

From about 2008, the defendant had targeted and communicated with 22 complainants over the internet. Those complainants varied between 12 and 16 years old and it was known to the defendant that they were under the age of consent. The defendant recorded a large number of webcam sessions with the complainants and the resulting movie files showed them in various states of undress in which they exposed their breasts and vaginas and in which they masturbated. The defendant persuaded a 13-year-old girl to perform sexual acts with her own 16-year-old sister, following which, he allowed another internet user to access the images of the sisters in real time when they were engaged in sexual activity.

Counts 43 to 45 concerned the distribution of indecent images. On three separate occasions the defendant communicated with unknown men via an internet messaging service. On one occasion, the defendant sent a man 16 indecent images of girls who appeared to be between 11 and 14 years old and a movie file showing a young girl masturbating. The defendant further provided a man with the email addresses of girls who would 'do stuff on cam'. A total of 755 still images and 139 movies were recovered from the defendant's computer. The youngest child who featured in the images was estimated to be 18 months old.

The defendant pleaded guilty to 46 sexual offences against 23 complainants aged from 39 months up to 16 years. He was sentenced in relation to counts 1 and 2 to life imprisonment with a minimum term of 15 years on each count (the minimum term). That sentence was erroneous because the defendant was just under 21 when he pleaded guilty. It ought to have been, and would be recorded thereafter, as a sentence of custody for life.

In reaching the minimum term and the conclusion that a sentence of custody for life was appropriate, the judge had also to take account of a separate indictment which included: (i) 16 counts of causing or inciting a child to engage in sexual activity (inciting offences); (ii) 25 counts of making indecent photographs of a child (the photograph offences); and (iii) three counts of distributing indecent photographs of a child (the distribution offences). The sentences imposed for those offences were: (i) 10 years' detention in a young offender institution for the inciting offences; (ii) five years' detention for the photograph offences; and (iii) four years' detention for the distribution offences. All of those sentences were ordered to run concurrently with each other and were taken account of when the judge came to assess the determinate term on which the ultimate minimum term was based.

In relation to all counts, save for counts 1 and 2, the judge acknowledged and was prepared to make allowance for the fact that the defendant had pleaded guilty and had indicated that intention at an early opportunity. In relation to counts 1 and 2, the judge stated that the defendant had had no option but to plead guilty (the statement) and that, in those circumstances, no credit for his plea would be given. The final sentence was custody for life. On the basis of a 30-year determinate sentence, the minimum term of 15 years was ordered. The defendant appealed against the sentence.

He submitted that the determinate sentence of 30 years, with the consequent minimum term of 15 years, was excessive, not least because of his comparative youth at the time of the offences and when he was sentenced and, in any event, because the judge had misdirected herself by withholding any credit for his guilty pleas in respect of counts 1 and 2. Consideration was given, inter alia, to the relevant sentencing guidelines and the possibility of withholding a reduction in sentence for a guilty plea where the prosecution case was overwhelming. The appeal would be allowed.

It was established law that, even in the context of an overwhelming prosecution case, the starting point recommended by the relevant sentencing guidelines in relation to the discount for a guilty plea was the full reduction. Where a lesser reduction was considered appropriate, the recommendation was 20% where the guilty plea had been indicated at the first reasonable opportunity (see [27] of the judgment). Even in an overwhelming case, the guilty plea had a distinct public benefit. The earlier that it was indicated, the better for everyone (see [28] of the judgment).

On the facts, it had been inappropriate for the judge totally to disregard the guilty pleas on counts 1 and 2. Some allowance ought to have been made. Whilst there had been an 'overwhelming case' as described in the relevant sentencing guidelines, it had not been overwhelming in the sense that the movies had not identified the face of the man whose penis had been placed into or against the first complainant's mouth. As to the statement, the plea was for the defendant. It was important to underline that the defendant would have received advice, part of which would have been, in accordance with the relevant sentencing guidelines, that a guilty plea, even in such an extreme case, would be followed by some discount in the sentence.

No specific feature of the case could be discerned which had led the judge to the conclusion that the interests of justice in the instant case required the guideline to be disapplied. Although the judge's view was understandable, it would have been productive of uncertainty and would have ultimately caused chaos if the court were to have suggested that an existing definitive guideline could have been disregarded or ignored in the instant case, unless it had been able to find a specific reason to conclude that the interests of justice required it to do so.

The judge had not found any, beyond the assertion that the defendant had had no choice but to plead guilty. If the guilty plea were to have been ignored altogether, that would have been to undermine the crucial contribution to the sentencing process of consistency of approach throughout the country, and in the particular context, the value to the victims of crime and the administration of justice of an early indication that the defendant did not require the issues to be tried (see [28], [30]-[33] of the judgment).

The allowance that would be made would be to reduce the notional 20 years to 17 years on counts 1 and 2, with the remaining years to be added to that for the remaining counts, making a notional determinate term of 27 years. The figure of 13.5 years would replace the 15-year term. The sentence of custody for life would remain (see [33] of the judgment).

Alan Parker (instructed by R McVeighty) for the defendant; Shenaz Muzzafer (instructed by the Crown Prosecution Service) for the Crown.

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