Practice and Procedure


PUBLISHED April 15, 2003

A total sentence of 21 months imprisonment for offences of indecent assault on a 15 year old male and possession of indecent photos of children was, in all the circumstances manifestly excessive. A total sentence of 15 months was appropriate.Appeal against sentence with leave of the single judge. On 2 December 2002 at Warwick Crown Court the defendant ('S') pleaded guilty and was sentenced to nine months for indecent assault on a 15 year old male and 12 months for possession of indecent photos of children, the sentences were to be served consecutively. S was a bus driver and had knowledge of public toilets where he could meet male prostitutes. He met a boy ('B'), who was 15 years old, had sex with him and paid him. S met B again and noticed he was wearing a curfew tag. They did not have sex and B left but he stole S's mobile phone. S reported the matter to the police and B was arrested. As a result of police interviews with B, S's home was searched and large amounts of pornographic photographs and videos of children were found. Downloaded images of male children having sex with adult males were found on this computer. S was arrested and admitted the offences. He stated that he thought B was over the age of consent. When sentencing the judge accepted S had not taken the photos himself and did not distribute them. They were used to fuel his sexual fantasies. The judge ordered an extended licence period of three years and expressed a hope that a condition would be to attend a sex offenders programme. He further made an indeterminate restraining order, pursuant to s.5(a) Sex Offences Act 1977, not to engage in any occupation likely to bring him into contact with children under 16 years of age. S appealed sentence on the grounds that it was manifestly excessive given the following mitigating factors: (i) his good character; (ii) he contributed to the local community as a councillor and was a member of the Methodist Church; (iii) he was gay and attempted not to carry out his fantasies of sex with youths and used computer images for that reason; (iv) it was not the first time B had had sex, it was consensual and S believed him to be over the age of consent; (v) he had not been involved in any corruption of children.HELD: (1) Sexual contact with any 15 year old was always serious. S was attracted to youth. Access to child porn on the internet was a cancer on society and S showed very little understanding of the harm it does. (2) A balancing act had to be performed taking into account the effect of a sentence on a defendant, consideration of any victims, and public concerns. From S's point of view he had lost his reputation and had never been in prison before and his time in prison was likely to be harsh. From the victims' view point was the damage caused to them. Children had the right to grow up and develop their own sexuality and that had been stolen from them. Public revulsion of these types of crime had to be reflected in the sentence. (3) The court could adopt a merciful approach to the sentence S deserved. An overall sentence of 15 months was appropriate. The court was not persuaded to fiddle with the sentence so as to secure immediate release but recognised S would not remain in prison for many more days. The sentence of nine months would be quashed and three months substituted to run consecutively with the 12 months, which was not excessive. (5) The judge was entitled to make the restraining order, however, it should not have been indeterminate but until further order. That was the appropriate course where the judge had in mind that it would continue for a long period of time. If, for example, as a result of attending the sex offenders programme, it became plain that S was no longer a threat the order could be modified.Appeal allowed.