John Hogg [2019] EWCA Crim 1234

John Hogg [2019] EWCA Crim 1234 was an appeal against sentence heard by the Court of Appeal (Lord Justice Leggatt, Mr Justice Nicol and Mr Justice Butcher), which allowed the appeal and suspended the custodial term.

Mr Hogg had pleaded guilty before the magistrates and was committed for sentence to the Crown Court. On 10 May 2019 Mr Recorder Doig sentenced him to 16 months’ imprisonment for making Category A indecent photographs of a child, with concurrent sentences of six months for a Category B offence and three months for a Category C offence. The Recorder also imposed a victim surcharge. The appellant appealed against the custodial sentence with leave of the single judge.

On 16 October 2018 police officers executed a warrant at the appellant’s address and seized a laptop. Examination revealed 67 Category A indecent images of children, of which 11 were moving images, 27 Category B images including two moving images, and 28 Category C images including one moving image. There was evidence of searches for indecent material which had been deleted, along with access to videos with paedophilic titles, also deleted. Live and accessible images were available to view, some created using peer to peer software. A warning video from European police used as a deterrent for those using peer to peer software was date stamped the day before the appellant’s arrest. Sample images showed male and female children aged between five and 12 being penetrated by adult males and sex toys. One child was in distress and another was bound. The Category A moving images totalled one hour and 13 minutes. In interview the appellant accepted viewing indecent images and obtaining sexual gratification from them. He said he had started viewing such images whilst living in Dubai in 2012 and was ashamed of his behaviour.

The Recorder noted that the appellant was aged 69 and had been using internet images of children for approximately six years. He took account of the appellant’s age and good character. He stated that the starting point was one year’s custody for possession of Category A images, noting that there were images in all three categories. The Recorder identified a number of aggravating features including the age and vulnerability of the children, that they included children bound and distressed, the length of the offending, the involvement of different children, and the use of peer to peer software. He accepted that the appellant was extremely remorseful and noted the content of the pre-sentence report, including that the appellant had had a good career and had caring responsibilities for his son and stepdaughter. The Recorder concluded that the offending passed the custody threshold and that the starting point should be two years, reduced after credit for plea to the sentences imposed.

Mr Kerr submitted on appeal that although the length of the sentence could not be complained about, it should have been suspended. The Recorder had given little consideration to suspension or at least no detailed consideration of that issue appeared from the sentencing remarks.

The court held that the sentence ought to have been suspended. Mr Justice Butcher, giving the judgment of the court, stated that the appellant could not complain about the length of the term imposed. The Recorder was sentencing for three offences concurrently and had correctly identified various aggravating factors and taken into account the mitigating factors. However, the court had regard to the appellant’s age, his previous good character and the assessment in the pre-sentence report that he had a low risk of reoffending and a low risk of sexual re-conviction. Applying the guideline as to the circumstances when a sentence of imprisonment may be suspended, the court considered that this was not a case in which it could be said that the appellant posed a risk to the public, especially as there would be a Sexual Harm Prevention Order in place. He had no record of poor compliance with court orders, there was strong personal mitigation, and his being in custody would have an adverse effect on others. The court did not consider that appropriate punishment could only be achieved by immediate custody and the Recorder had not given any reasons why that was so. The court varied the sentence to one of 16 months’ imprisonment suspended for two years with a rehabilitation activity requirement of 30 days to be performed in the next 12 months.

The court also dealt with an error identified by the Registrar of Criminal Appeals. No victim surcharge order should have been made, as in relation to offences committed between 1 April 2007 and 30 September 2012 a surcharge was to be imposed only if the sentence included a fine. The regime under the Criminal Justice Act 2003 Surcharge Order 2012 only applied when all the offending was committed after 1 October 2012, which was not the case here. The victim surcharge was therefore quashed.

In short, the appeal was allowed, the immediate custodial sentence was suspended for two years with a rehabilitation activity requirement, and the victim surcharge was removed.