Paul Davies [2019] EWCA Crim 920

Regina v Paul Davies [2019] EWCA Crim 920 concerned an appeal by leave against a sentence of nine months’ imprisonment imposed by the Crown Court at Wolverhampton for one offence of making indecent images of a child contrary to sections 1(1)(a) and 6 of the Protection of Children Act 1978. The appeal was heard by Mr Justice Jeremy Baker and Sir Kenneth Parker and was dismissed.

Mr Davies had pleaded guilty in the magistrates’ court and been committed for sentence. At the time of the offence he was a 57-year-old serving police officer with West Midlands Police, having completed some 25 years of service. In 2018 he had been working as a Young Persons Officer for approximately two years and maintained a police Twitter account to promote his work with young people. On 5 February 2018 Mr Davies attended a local college following a report of a suspicious male in an alleyway. He spoke to two 17-year-old female students, one of whom became the complainant, and recorded their details including dates of birth. He was therefore aware that the complainant had just turned 17. Mr Davies encouraged both students to follow his police Twitter account and later met them at a meeting intended to help young people stop smoking. At some stage Mr Davies provided the complainant with his personal telephone number and the two began exchanging regular messages via WhatsApp and Snapchat. Mr Davies’ tone became flirtatious and then sexual, and the complainant responded in kind. This progressed to Mr Davies sending naked images of himself to the complainant and encouraging her to do the same. She sent him naked images of herself on five occasions, including images of her breasts and vagina. Although these images were sent via Snapchat and designed to disappear after being viewed twice, Mr Davies had taken screenshots and thereby saved them to his telephone. The contact between Mr Davies and the complainant subsequently dwindled. In May 2018 the complainant was reported missing from home and police enquiries revealed that she had been in communication with a police officer. When she returned home the complainant disclosed her contact with Mr Davies. He was arrested on 20 June 2018 and declined to comment in interview. Forensic examination of his telephone revealed that the five indecent images of the complainant, although no longer available to the normal user, were recoverable using specialist software.

At the sentencing hearing there was a consensus that under the Sentencing Council definitive guideline, notwithstanding that simple downloading of an image would normally be treated as possession, Mr Davies’ conduct should be treated as production for sentencing purposes because he had encouraged the complainant to take and send the indecent images of herself and had then screenshotted them to retain them. The appropriate starting point was therefore eighteen months’ custody with a category range of one to three years. The sentencing judge acknowledged that the guideline covered images relating to children of all ages and in normal circumstances the seriousness of the offending might depend in part upon the age of the child concerned. He also acknowledged that Mr Davies was not only a man of good character but that his otherwise exemplary police career had been brought to an end by his offending. However, the judge pointed out that there was a significant age disparity between Mr Davies and the complainant. Mr Davies had abused his position as a police officer to facilitate the offending and had effectively groomed the complainant. The custody threshold had been passed and after providing a full one-third discount for the early guilty plea the sentence would be nine months’ imprisonment. The judge considered whether the sentence could be suspended but determined that appropriate punishment could only be achieved by immediate custody because Mr Davies had abused his position as a police officer to facilitate the offence, there had been an element of grooming, and there was the wide disparity in age between Mr Davies and the complainant.

On appeal Mr Hunka, who appeared for Mr Davies, submitted that the period of custody was excessive and should in any event have been suspended. He pointed out that the complainant was 17 years of age rather than a very much younger child and that there was powerful mitigation arising from Mr Davies’ positive good character, as attested by references, and his otherwise exemplary police career which had now been lost due to his offending. The pre-sentence report assessed Mr Davies as presenting a low risk of reoffending and this, together with his strong personal mitigation, indicated that it was appropriate to suspend any period of custody.

The Court of Appeal considered that the judge was correct to determine that in the particular circumstances of the case Mr Davies’ actions should be considered to have amounted to production rather than possession of the indecent images for sentencing purposes, such that the appropriate starting point was eighteen months’ custody. The court accepted that in normal circumstances, and in the present case there was no evidence that the offending had had an unusually detrimental effect upon the complainant, the seriousness of the offending might depend in part upon the age of the child concerned. The definitive guideline stated that age and vulnerability of the child should be given significant weight. However, the court held that the seriousness of the offence was very significantly aggravated by the fact that at the time of the offending Mr Davies was not only a police officer working with young people and therefore particularly cognisant of the significant long-term harm such offending might have upon its victims, but he had actively abused his position as a police officer working with young people in order to facilitate the offence. There was no evidence that but for Mr Davies’ active encouragement the complainant would ever have become involved in this type of activity. It was Mr Davies who had instigated the offence, having spent some period of time initially befriending the complainant and then encouraging her to become involved in this type of activity. Undoubtedly Mr Davies did have what would normally be classified as strong personal mitigation arising out of his hitherto positive good character. However, as the definitive guideline pointed out, where previous good character or exemplary conduct had been used to facilitate the offence, this mitigation should not normally be allowed and such conduct might constitute an aggravating factor.

The court considered whether the custody threshold had been passed and whether any custodial sentence could be suspended. Despite the age of the complainant and such mitigation as was available to Mr Davies, the serious nature of the offence determined that the custody threshold had been passed and that it was unavoidable that a custodial sentence be imposed to mark the gravity of the offending. As to suspension, the court noted that although the pre-sentence report assessed Mr Davies as presenting a low risk of reoffending, the author also considered that he presented a medium risk of sexual harm to children and young people. Although Mr Davies’ good character and otherwise exemplary career would normally have amounted to strong personal mitigation, this had to be tempered by his utilisation of it to facilitate the offence for which he was being sentenced. The court acknowledged that as a result of the offence Mr Davies had lost the remaining part of his career in the police force.

The Court of Appeal was satisfied that the judge was entitled to determine that appropriate punishment for the offence, given the circumstances in which it was carried out, could only be achieved by the imposition of an immediate custodial sentence and that the period of nine months, after a full one-third reduction to take into account the timing of the early guilty plea, was not manifestly excessive. In short, the appeal against a nine-month immediate custodial sentence for making indecent images was dismissed, the court emphasising the serious aggravating feature of abuse of position by a serving police officer working with young people.