Matthew Andrews [2019] EWCA Crim 1871
Summary
R v Matthew Andrews [2019] EWCA Crim 1871 concerned an appeal to the Court of Appeal (Criminal Division) against a finding of dangerousness made by the sentencing judge, which the court allowed.
Mr Andrews pleaded guilty on 12 October 2018 to distributing indecent photographs of children contrary to section 1(1)(b) of the Protection of Children Act 1978 and to breach of a Sexual Offences Prevention Order. He had a previous conviction in 2015 for nine offences relating to possession and distribution of indecent images, for which he had received 26 months’ imprisonment suspended for two years. On 18 February 2019 the judge found him dangerous within the meaning of section 229 of the Criminal Justice Act 2003 and imposed an extended sentence of five years’ imprisonment (three years’ custody with a two‑year extended licence period) on count one. She initially passed a like sentence on count two, which was unlawful because the breach offence did not fall within Schedule 15 to the 2003 Act. The sentence was corrected under the slip rule on 12 April 2019 to a determinate term of three years’ imprisonment.
The facts of the offending were that Mr Andrews, pretending to be a female named Amy on the dating website Badoo and later on WhatsApp using an unregistered mobile phone, sent another male (referred to as X) thirteen indecent images and videos of female children: six Category A, three Category B and four Category C. The SOPO prohibited him from creating a false online persona. He pretended that Amy was the mother of girls who liked to walk around the house naked and suggested that X should take photographs of Amy and her daughters naked. He sent a photograph of Amy and her supposed four-year-old daughter sitting in a bath with their faces covered. When X made clear that he was interested in Amy, not the child, Mr Andrews sent an indecent photograph of a little girl, supposedly Amy’s daughter at a younger age. He told X that the daughter had lost her virginity at the age of one and sent increasingly indecent material in support of that assertion. The videos showed the supposed daughter being abused by a woman, then a man and finally by two men. Mr Andrews asked X more than once whether X wanted to have sex with the child. X was deeply shocked and reported the matter to the police, who subsequently identified Mr Andrews as the offender. He was arrested on 21 August 2018 and seized the mobile phone used to send the images, but he refused to give the police the PIN number (in breach of the SOPO) or to cooperate with their enquiries.
The judge had before her a pre-sentence report and a psychiatric report. Mr Andrews gave very different accounts of his offending to the two authors. He told the probation officer that he had no recollection of his conversation online with X, attributing this to his level of intoxication through alcohol consumption. He tried to minimise his offending behaviour. The author of the report found the supposed amnesia implausible. Mr Andrews continued to deny any sexual attraction towards children or that his offences were sexually motivated. However, the report referred to a disclosure that he made previously to probation that he had been interested in paedophilia and wanted to be part of the dark web. His behaviour was assessed as escalating. He was seeking more excitement from more extreme conversation, interaction and images. The author of the pre-sentence report assessed him as posing a medium risk of committing further offences of a similar nature and a high risk of serious harm towards female children. Whilst the nature of that risk was said to be around Mr Andrews accessing and distributing further abusive images of children for his own sexual gratification, in addition to that of others to whom he sent the images through the internet, the author expressed the opinion that the index offence highlighted an increase in the likelihood of a contact sexual offence being committed by Mr Andrews. Despite this, the author did not consider that Mr Andrews was dangerous within the meaning of the 2003 Act.
The consultant forensic psychiatrist who examined Mr Andrews recorded a different explanation for his offending behaviour, namely that someone else had asked him or told him to send the images and that getting the images for a more dominant person was the form of any gratification he obtained. He claimed that he had never viewed the images and only noted the verbal description of them. The psychiatrist said that he was unable to comment on what Mr Andrews had said about that. Addressing the question of whether Mr Andrews was likely to broaden his offending in the future so as to include contact offences, the psychiatrist recorded Mr Andrews’s outright denial of this. The psychiatrist said that on the basis of what he was told by Mr Andrews and the nature of the charges, he believed there was no significant evidence to suggest that Mr Andrews was yet seeking out any ability to form contact offences or to find children to groom himself. In addressing the question of dangerousness, the psychiatrist set out the correct legal test and addressed various factors pertaining to risk, including the fact that Mr Andrews had claimed to be the victim of historic sexual abuse himself when he was a child. The psychiatrist concluded that overall, he believed the court might consider Mr Andrews to be dangerous, but he did not really explain why. He said that this was the second similar offence and there appeared to have been efforts to conceal his offending from those who were monitoring him. There was no significant or relevant mental disorder. Whilst there was no clear evidence to suggest that he appeared interested in committing contact offences, the psychiatrist felt that he minimised his role in his current reoffending and would benefit from a sex offender treatment programme.
In her sentencing remarks, the judge made reference to the detailed skeleton argument from counsel for Mr Andrews, Mr Volz, addressing the issue of dangerousness. She set out the correct legal test. She correctly pointed out that Mr Andrews already had one previous qualifying offence. Mr Volz agreed with the judge that there was a significant risk of Mr Andrews committing further specified offences. The area of disagreement was whether there was a significant risk of serious harm to members of the public caused by the commission of such further offences. The judge said that she had formed the view on the basis of the psychiatric report, X’s witness statement and the different accounts given by Mr Andrews of his offending behaviour that there was such a risk. She accepted that what she was going to do was not the norm, but having regard to everything she had read, she considered that the test had been made out.
On appeal, Mr Volz drew attention to the provisions of the Dangerous Offenders Guide for Sentencers and Practitioners. He relied especially on paragraph 6.4.1 of the Guide in which it is pointed out that even serious offences can be committed in ways which do not give rise to a significant risk of serious harm. He submitted that in the instant case it was wrong in principle to conclude that Mr Andrews was likely to cause serious harm because (a) the risk of a contact offence involving a child was negligible and no one had suggested that such an offence was likely, (b) although a contact offence was not a necessary precursor to a finding of dangerousness, in this case no children were contacted or sought to be contacted and (c) unlike those involved in production of indecent material, a distributor did not create the risk of causing serious harm but rather perpetuates the harm caused by others. Although he realistically acknowledged the argument that those who download or distribute such material encourage the market for abusing children online, he submitted that there needed to be something more than that for a finding of dangerousness in the instant case.
Mrs Justice Andrews, giving the judgment of the court, said that where a sentencing judge has applied the correct test and has taken into account all the relevant material, as the judge did in the present case, the court will be very slow to interfere with his or her assessment of dangerousness. Each case must turn on its own facts. However, in this case the court was persuaded by Mr Volz that despite the careful approach that she took, the evidence before the learned judge fell short of establishing the requisite risk of serious harm. Despite the acknowledged risk of an escalation in Mr Andrews’s behaviour, he had neither contacted nor sought to make contact with any child and there was no clear evidence that he would be likely to do so. All the offending communications had been with X and other adults. This was only the second incident of distribution offending. Read as a whole, despite the concerns expressed by the doctor, the psychiatric report did not support a finding of dangerousness, nor did the circumstances of the offending described by X. Mr Andrews’s attempt to minimise his behaviour and to conceal his activities, though matters of concern, would not be enough in themselves to demonstrate the necessary risk of causing serious physical or psychological harm.
It was rightly accepted by Mr Volz that no complaint could be made about the length of the determinate sentence that the judge passed after giving credit for the guilty plea. The court therefore allowed the appeal. It quashed the extended sentence passed on count one and substituted for it a period of three years’ imprisonment. Mr Volz also contended that the current sentence passed on count two should have been further adjusted to take account of Mr Andrews’s guilty plea because the maximum sentence available after trial for that offence would have been five years. However, the court was satisfied that the judge did not start with a five-year notional sentence after trial. If she had done so she would have reached a determinate sentence of four years. She took a notional sentence of four years and the 20 per cent discount was rounded up in Mr Andrews’s favour to get down to three years. The court was not satisfied that there was any error in principle in the sentence imposed for count two, nor was it manifestly excessive. Accordingly, that sentence as corrected by the judge under the slip rule stood.
In short, the Court of Appeal allowed the appeal against the finding of dangerousness and substituted a determinate sentence of three years’ imprisonment on count one, but upheld the three-year concurrent sentence on count two.
Mr Andrews pleaded guilty on 12 October 2018 to distributing indecent photographs of children contrary to section 1(1)(b) of the Protection of Children Act 1978 and to breach of a Sexual Offences Prevention Order. He had a previous conviction in 2015 for nine offences relating to possession and distribution of indecent images, for which he had received 26 months’ imprisonment suspended for two years. On 18 February 2019 the judge found him dangerous within the meaning of section 229 of the Criminal Justice Act 2003 and imposed an extended sentence of five years’ imprisonment (three years’ custody with a two‑year extended licence period) on count one. She initially passed a like sentence on count two, which was unlawful because the breach offence did not fall within Schedule 15 to the 2003 Act. The sentence was corrected under the slip rule on 12 April 2019 to a determinate term of three years’ imprisonment.
The facts of the offending were that Mr Andrews, pretending to be a female named Amy on the dating website Badoo and later on WhatsApp using an unregistered mobile phone, sent another male (referred to as X) thirteen indecent images and videos of female children: six Category A, three Category B and four Category C. The SOPO prohibited him from creating a false online persona. He pretended that Amy was the mother of girls who liked to walk around the house naked and suggested that X should take photographs of Amy and her daughters naked. He sent a photograph of Amy and her supposed four-year-old daughter sitting in a bath with their faces covered. When X made clear that he was interested in Amy, not the child, Mr Andrews sent an indecent photograph of a little girl, supposedly Amy’s daughter at a younger age. He told X that the daughter had lost her virginity at the age of one and sent increasingly indecent material in support of that assertion. The videos showed the supposed daughter being abused by a woman, then a man and finally by two men. Mr Andrews asked X more than once whether X wanted to have sex with the child. X was deeply shocked and reported the matter to the police, who subsequently identified Mr Andrews as the offender. He was arrested on 21 August 2018 and seized the mobile phone used to send the images, but he refused to give the police the PIN number (in breach of the SOPO) or to cooperate with their enquiries.
The judge had before her a pre-sentence report and a psychiatric report. Mr Andrews gave very different accounts of his offending to the two authors. He told the probation officer that he had no recollection of his conversation online with X, attributing this to his level of intoxication through alcohol consumption. He tried to minimise his offending behaviour. The author of the report found the supposed amnesia implausible. Mr Andrews continued to deny any sexual attraction towards children or that his offences were sexually motivated. However, the report referred to a disclosure that he made previously to probation that he had been interested in paedophilia and wanted to be part of the dark web. His behaviour was assessed as escalating. He was seeking more excitement from more extreme conversation, interaction and images. The author of the pre-sentence report assessed him as posing a medium risk of committing further offences of a similar nature and a high risk of serious harm towards female children. Whilst the nature of that risk was said to be around Mr Andrews accessing and distributing further abusive images of children for his own sexual gratification, in addition to that of others to whom he sent the images through the internet, the author expressed the opinion that the index offence highlighted an increase in the likelihood of a contact sexual offence being committed by Mr Andrews. Despite this, the author did not consider that Mr Andrews was dangerous within the meaning of the 2003 Act.
The consultant forensic psychiatrist who examined Mr Andrews recorded a different explanation for his offending behaviour, namely that someone else had asked him or told him to send the images and that getting the images for a more dominant person was the form of any gratification he obtained. He claimed that he had never viewed the images and only noted the verbal description of them. The psychiatrist said that he was unable to comment on what Mr Andrews had said about that. Addressing the question of whether Mr Andrews was likely to broaden his offending in the future so as to include contact offences, the psychiatrist recorded Mr Andrews’s outright denial of this. The psychiatrist said that on the basis of what he was told by Mr Andrews and the nature of the charges, he believed there was no significant evidence to suggest that Mr Andrews was yet seeking out any ability to form contact offences or to find children to groom himself. In addressing the question of dangerousness, the psychiatrist set out the correct legal test and addressed various factors pertaining to risk, including the fact that Mr Andrews had claimed to be the victim of historic sexual abuse himself when he was a child. The psychiatrist concluded that overall, he believed the court might consider Mr Andrews to be dangerous, but he did not really explain why. He said that this was the second similar offence and there appeared to have been efforts to conceal his offending from those who were monitoring him. There was no significant or relevant mental disorder. Whilst there was no clear evidence to suggest that he appeared interested in committing contact offences, the psychiatrist felt that he minimised his role in his current reoffending and would benefit from a sex offender treatment programme.
In her sentencing remarks, the judge made reference to the detailed skeleton argument from counsel for Mr Andrews, Mr Volz, addressing the issue of dangerousness. She set out the correct legal test. She correctly pointed out that Mr Andrews already had one previous qualifying offence. Mr Volz agreed with the judge that there was a significant risk of Mr Andrews committing further specified offences. The area of disagreement was whether there was a significant risk of serious harm to members of the public caused by the commission of such further offences. The judge said that she had formed the view on the basis of the psychiatric report, X’s witness statement and the different accounts given by Mr Andrews of his offending behaviour that there was such a risk. She accepted that what she was going to do was not the norm, but having regard to everything she had read, she considered that the test had been made out.
On appeal, Mr Volz drew attention to the provisions of the Dangerous Offenders Guide for Sentencers and Practitioners. He relied especially on paragraph 6.4.1 of the Guide in which it is pointed out that even serious offences can be committed in ways which do not give rise to a significant risk of serious harm. He submitted that in the instant case it was wrong in principle to conclude that Mr Andrews was likely to cause serious harm because (a) the risk of a contact offence involving a child was negligible and no one had suggested that such an offence was likely, (b) although a contact offence was not a necessary precursor to a finding of dangerousness, in this case no children were contacted or sought to be contacted and (c) unlike those involved in production of indecent material, a distributor did not create the risk of causing serious harm but rather perpetuates the harm caused by others. Although he realistically acknowledged the argument that those who download or distribute such material encourage the market for abusing children online, he submitted that there needed to be something more than that for a finding of dangerousness in the instant case.
Mrs Justice Andrews, giving the judgment of the court, said that where a sentencing judge has applied the correct test and has taken into account all the relevant material, as the judge did in the present case, the court will be very slow to interfere with his or her assessment of dangerousness. Each case must turn on its own facts. However, in this case the court was persuaded by Mr Volz that despite the careful approach that she took, the evidence before the learned judge fell short of establishing the requisite risk of serious harm. Despite the acknowledged risk of an escalation in Mr Andrews’s behaviour, he had neither contacted nor sought to make contact with any child and there was no clear evidence that he would be likely to do so. All the offending communications had been with X and other adults. This was only the second incident of distribution offending. Read as a whole, despite the concerns expressed by the doctor, the psychiatric report did not support a finding of dangerousness, nor did the circumstances of the offending described by X. Mr Andrews’s attempt to minimise his behaviour and to conceal his activities, though matters of concern, would not be enough in themselves to demonstrate the necessary risk of causing serious physical or psychological harm.
It was rightly accepted by Mr Volz that no complaint could be made about the length of the determinate sentence that the judge passed after giving credit for the guilty plea. The court therefore allowed the appeal. It quashed the extended sentence passed on count one and substituted for it a period of three years’ imprisonment. Mr Volz also contended that the current sentence passed on count two should have been further adjusted to take account of Mr Andrews’s guilty plea because the maximum sentence available after trial for that offence would have been five years. However, the court was satisfied that the judge did not start with a five-year notional sentence after trial. If she had done so she would have reached a determinate sentence of four years. She took a notional sentence of four years and the 20 per cent discount was rounded up in Mr Andrews’s favour to get down to three years. The court was not satisfied that there was any error in principle in the sentence imposed for count two, nor was it manifestly excessive. Accordingly, that sentence as corrected by the judge under the slip rule stood.
In short, the Court of Appeal allowed the appeal against the finding of dangerousness and substituted a determinate sentence of three years’ imprisonment on count one, but upheld the three-year concurrent sentence on count two.
The appellant pleaded guilty to distributing indecent photos of children and breaching a Sexual Offences Prevention Order. An extended sentence of 5 years was imposed, comprising a custodial term of 3 years.
The sentencing judge found the appellant to be dangerous, having been required to make an assessment as this was his second specified sexual offence. He appealed the finding of dangerousness on the basis there was no evidence upon which to base a finding that he posed a significant risk of causing serious physical or psychological harm to members of the public by the commission of further specified offences.
Held: where the sentencing judge has applied the correct test and taken into account all relevant material, as the sentencing judge did, the Court will be very slow to interfere. The Court was persuaded, however, that the evidence fell short of establishing the requisite risk of serious harm. Despite the escalation in the appellant’s behaviour, he had not contacted nor sought to make contact with any child, and there was no clear evidence he would be likely to do so.
The extended sentence was quashed and substituted with 3 years’ imprisonment.