When sentencing an offender who had pleaded guilty to 17 charges of making a total of 28 indecent images of children, the judge could not take into consideration the whole of the offending revealed by the investigation where the offender had not both admitted the remainder and asked them to be taken into consideration.Appeal against sentence. The appellant ('P'), a 41-year-old bachelor of previous good character, had pleaded guilty at the first opportunity to 17 charges of making a total of 28 indecent photographs of children contrary to s.1(1)(a) Protection of Children Act 1978. Police had seized over 100 printed images of children from P's bedroom as well as the hard disk drive of his computer, on which was stored, as admitted in interview, over 1000 images of children. The images had featured children who appeared to be aged between 6 and 13, posing naked, engaging in masturbation, oral sex with adult males and adult penile penetration of the vagina and anus. HH Judge Williams had reminded herself of the guidelines in R v Oliver & Ors (2002) EWCA Crim 2766 and had placed the images into levels 1 to 4. She had sentenced P to 15 months' imprisonment on each charge to run concurrently on what appeared to be the basis of all the images recovered, not just the 28 expressly identified in the 17 charges. P submitted, relying on R v Kidd & Ors (1998) 1 CAR 79, that: (i) he should have been sentenced on the basis that he was only concerned in making by downloading or printing the 28 images that were the subject of the 17 charges; (ii) following the guidelines in R v Oliver & Ors (supra), the number of images at level 4 was small; and (iii) therefore the sentencing bracket after trial was 6 to 12 months.HELD: Although P admitted making over 100 printed images and storing over 1000 images, only 17 offences relating to 28 images were proved against him by his plea and he did not both admit the remainder and ask them to be taken into consideration. If the judge was minded to take into account the whole of the offending revealed by the papers she could have invited P to ask formally for those offences to be taken into consideration. Being constrained to sentence him only for the 28 images, she could not realistically have considered that the number of level 4 images was large. The offending for which he could be sentenced therefore fell within the 6 to 12 month sentencing bracket after a trial, as identified in R v Oliver. P had pleaded guilty at the first opportunity so he was entitled to some discount; however, he had little choice but to plead guilty so the discount had to be at the lower end of the range. A sentence of ten months' imprisonment was substituted.Appeal allowed.

[2003] EWCA Crim 1562

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