Phoenix Constantine-Rees [2018] EWCA Crim 3089

The appellant pleaded guilty to making indecent images of a child in categories A, B and C. He was sentenced to a total of 16 months’ imprisonment and a Sexual Harm Prevention Order was imposed for 10 years.

The appellant had previous convictions for possessing indecent images of children and received an 8-week term of imprisonment; he also had convictions for manslaughter and robbery. Indecent images had been found on two earlier occasions, but no prosecution had followed.

The contentious paragraph of the SHPO was argued to amount to a “blanket ban” on computer use in circumstances that were not truly exceptional. The length of the sentence was also submitted to be manifestly excessive, considering the small number of images in category A and the fact that most of the images were category C.

Held: although there were only 2 of 23 images at category A there were significant aggravating features and a custodial sentence was inevitable. The starting point, however, was too high, with an upward adjustment for aggravating factors but allowing for personal mitigation, including his personality disorder, this would produce a sentence of 12 months after trial. A reduction for a late guilty plea brought the sentence down to 10 months’ imprisonment.

The prosecution agreed a proposed amendment to the contentious paragraph in the SHPO. A less onerous prohibition, modelled on that favoured by the Court in Parson and Morgan, was substituted.