Connor Machin [2019] EWCA Crim 1538

Connor Machin [2019] EWCA Crim 1538 concerned an appeal by a 24-year-old man against an immediate custodial sentence imposed by His Honour Judge Daly at Oxford Crown Court for offences involving indecent images of children.

The appellant had pleaded guilty on 29 March 2019 to six offences. On 2 July 2019 he was sentenced as follows: on count 1, making indecent photographs of children contrary to section 1(1)(a) of the Protection of Children Act 1978, eight months’ imprisonment; on count 2, making indecent photographs of children contrary to the same provision, two months’ imprisonment concurrent; on counts 3 and 4, distributing indecent photographs of children contrary to section 1(1)(b) of the 1978 Act, 16 months’ imprisonment concurrent on each count; on count 5, distributing indecent photographs of children contrary to section 1(1)(b) of the 1978 Act, two months’ imprisonment concurrent; and on count 6, possessing an extreme pornographic image contrary to section 63(1) of the Criminal Justice and Immigration Act 2008, two months’ imprisonment concurrent. The total sentence was 16 months’ imprisonment. The single judge granted leave to appeal.

The appellant was of previous good character and had a good employment record. He worked on a building site where colleagues would send indecent images and videos to one another for what was described as the “shock factor”. The judge accepted that Mr Machin did not have a sexual interest in the material or an unhealthy interest in children. He had not searched for such images and there was no evidence he had done so. He received material from others and on three occasions sent an image or video to a workmate. He indicated his intention to plead guilty at the earliest opportunity and did so. None of his workmates who had sent material to him or to whom he distributed it were prosecuted.

Count 1 was based on nine still and three video images in category A on the appellant’s phone. The still images were inaccessible even to the police and it could not be determined whether they were multiple copies of one image or several different images. The videos were three copies of one video. Count 2 concerned four category C images, which were four copies of the same image. The distributions forming counts 3 and 4 were the sending of the category A video to two separate friends. Count 5 related to the sending of the category C image to one friend. Count 6 concerned 19 extreme pornographic images on the phone.

There was significant personal mitigation. References from his father, step-grandfather and a previous employer described the offending as completely out of character and almost unbelievable. Mr Machin had struggled with and overcome post-traumatic stress disorder and depression after a friend was hit by a drunk driver and died in his arms some years earlier. He was providing important care and financial support for his mother, who had suffered from breast cancer and a breakdown that led to her being sectioned as an inpatient. There were continuing care needs because these difficulties had led to the breakdown of his parents’ marriage. A letter to the Court of Appeal from his mother stated that she was worried his imprisonment would mean she could not access her continuing treatment once a sister became unavailable to help on the expected birth of a child. As a consequence of the loss of the appellant’s income, she was now homeless. In April 2019, shortly after his plea, Mr Machin suffered a serious accident when he fell from a ladder onto scaffolding. He fractured two vertebrae and suffered a deep soft tissue injury to his thigh which became infected and would cause a permanent limp.

The pre-sentence report noted that he had shown some victim empathy in interview and could recognise the harm caused to victims of abuse by the circulation of such material. It assessed there to be a low likelihood of reconviction. Use of the Thornton’s Risk Matrix led to an assessment of medium risk of reconviction for a sexual crime, with the most recent figures indicating that two per cent of such offenders were reconvicted of a sexual crime within two years and three per cent within three years. The pre-sentence report noted that a custodial sentence would lead to the loss of his employment and loss of support for his mother. It suggested that his previous emotional problems might cause difficulties such that he should be monitored for the risk of self-harm or suicide. It pointed out that a short immediate custodial sentence might not give sufficient time for work required to explore and address his offending behaviour. In light of these observations, the pre-sentence report proposed a three-year community sentence with an unpaid work requirement and attendance on courses to address his thinking.

The judge’s sentencing remarks were short but clear. Having largely accepted that the appellant was not attracted to young children, he correctly pointed out that other people were, that photographs and images were produced to meet their demand, and that young children suffered as a result. He made clear that distribution, even to a limited group of workmates, was more serious than possession because the image was then out of the appellant’s control. The judge correctly identified that counts 3 and 4 fell within category A of the guideline for possession and distribution of indecent images of children, which indicated a starting point of three years and a range of two to five years. He assessed the case as being towards the bottom of the range. It was apparent, though the judge did not expressly say so, that he reached a sentence of two years before reducing it by one third for the appellant’s plea of guilty, leading to sentences of 16 months concurrent on counts 3 and 4. Adopting the same implicit reasoning, he reached sentences before discount for plea of 12 months on count 1 and three months on counts 2, 5 and 6, which were then reduced for plea. The judge did not refer to the definitive guideline for the imposition of community and custodial sentences. He did not state or explain that only an immediate custodial sentence was appropriate or why a non-immediate custodial sentence could not be justified. He merely said that he was afraid the resulting sentence was one of immediate imprisonment.

Mr Justice Stuart-Smith, delivering the judgment of the Court with Lord Justice Gross, accepted that these were significant offences. That said, the scale of possession was comparatively limited in the context of other cases and the distribution offences were, as the judge correctly recognised, towards or at the bottom of the relevant category. Perhaps most importantly, the offences were the result of extreme stupidity rather than any paedophile tendencies. In light of the background and mitigation, close consideration needed to be given to whether a suspended sentence or community order could provide sufficient restriction on the offender’s liberty by way of punishment and, if the case was on the cusp of custody, whether there would be an impact on dependants that would make a custodial sentence disproportionate to achieving the aims of sentencing.

The Court of Appeal held that the most material factors when deciding whether an immediate custodial sentence was necessary were the judge’s acceptance that the appellant was not acting pursuant to an unhealthy interest in children and the relatively limited circumstances of his possession and distribution. Approaching the case by reference to the factors identified at page 8 of the definitive guideline on the imposition of community and custodial sentences, the appellant did not pose a substantial risk or danger to the public. The information provided by the pre-sentence report indicated a small statistical risk and there was no reason to suppose that the appellant would fall within the category of those who reoffend rather than those who do not. His belated recognition of the impact of his offending was at least a hopeful sign. Second, there was no history of poor compliance with court orders as the appellant was of previous good character. Third, the personal mitigation was strong, even if not overwhelming. Fourth, immediate custody was, and is, likely to have a significant harmful effect on his mother and on the information provided to the court might already have done so. Fifth, the proposal put forward in the pre-sentence report for a sentence other than an immediate custodial sentence was appropriate, albeit that the judge’s findings meant that the proposed requirements would be of limited relevance.

For these reasons, the Court considered that on the specific and unusual facts of this case it was not necessary to impose an immediate custodial sentence and that the sentence imposed, though apparently in accordance with the letter of the sexual offences guideline, was wrong in principle because it failed adequately to consider or implement the features the Court had identified. The Court quashed the sentence imposed below and substituted a suspended sentence of the same length suspended for two years. Taking into account the period already spent in prison and the unusual features of the case, the Court did not consider it appropriate to impose the conditions suggested by the pre-sentence report. They would have been relevant had there been evidence of an unhealthy interest in children, which on the judge’s findings was lacking. The Court noted that if the appellant were to be convicted of any other offence during the two-year period of suspension, the overwhelming likelihood was that the suspended sentence would be reactivated.

In short, the appeal was allowed and the immediate custodial sentence replaced with a suspended sentence of the same length on the basis that, on the unusual facts, immediate custody was not necessary and the sentencing judge had failed adequately to consider the guideline for the imposition of community and custodial sentences.