Phoenix Constantine-Rees [2018] EWCA Crim 3089
Summary
R v Phoenix Constantine-Rees [2018] EWCA Crim 3089 was an appeal to the Court of Appeal, Criminal Division, which allowed the appeal in part, reducing both the custodial sentence and amending the terms of a Sexual Harm Prevention Order.
The appellant pleaded guilty on 25 April 2018 in the Crown Court at Blackfriars to three offences of making indecent photographs of children, contrary to section 1(1)(a) of the Protection of Children Act 1978: one count in Category A, one in Category B, and one in Category C. On 25 May 2018 His Honour Judge Clarke QC sentenced him to 16 months’ imprisonment on count 1, one month concurrent on count 2, and one month concurrent on count 3, making a total of 16 months. The judge also made a ten-year Sexual Harm Prevention Order under section 103 of the Sexual Offences Act 2003 and a forfeiture order for computers and equipment under section 25 of the Public Order Act 1986. The appellant was required to notify the police for ten years under Part 2 of the 2003 Act and would be included in the relevant safeguarding list.
The offending came to light when in December 2016, as part of the supervision of the appellant, the police installed monitoring software on his computer with his consent. At the end of February 2017 the police discovered a number of search terms indicating that someone had been looking for indecent images of children. The appellant had accessed 23 indecent images between 24 January and 1 February 2017. Upon arrest, the appellant denied having looked for or downloaded any indecent images, claiming that other people had used his computer and that he had allowed someone else to access it remotely. The police enquiries disproved these claims. Of the 23 images, two were in Category A, four were in Category B, and 17 were in Category C. The appellant had previous convictions for manslaughter and robbery in 2006, and in June 2015 he had pleaded guilty to 13 offences of possessing indecent images of children, contrary to section 160 of the Criminal Justice Act 1988, for which he received eight weeks’ imprisonment concurrent. No Sexual Harm Prevention Order had been made on that occasion. While awaiting trial for the present offences, he was recalled to prison to serve the remainder of his licence period for manslaughter.
A pre-sentence report noted the appellant’s history of mental illness and described the current offences as part of an established pattern of offending, particularly significant because he was on licence when he committed them. The probation officer assessed him as presenting a medium risk of reconviction for similar offending and did not consider that risk manageable in the community. A psychiatric report by Dr Stephen Ginn dated 16 January 2018 diagnosed borderline personality disorder with markedly disharmonious attitudes and behaviour. The sentencing judge acknowledged the appellant’s troubled life but emphasised his previous conviction for similar offending and his knowledge that he was not allowed to view such material. The judge indicated that one month concurrent on each of counts 2 and 3 was appropriate, and that the sentence on count 1 would reflect the whole of the indictment. He took 18 months’ imprisonment as his starting point, reduced to 16 months for the guilty plea, which was entered only on the day of trial. The Sexual Harm Prevention Order included a prohibition in paragraph 4 which amounted to a near-total ban on owning, using or possessing any device capable of accessing the internet, save for use in a public library or at a place of employment.
Ms Catherine Purnell, on behalf of the appellant, advanced two main grounds. First, she submitted that the sentence of 16 months was manifestly excessive given that there were only two Category A images and most were Category C, and that the judge had focused too heavily on the Category A material. She relied on R v Dixon (unreported, 29 July 2015), in which the Court of Appeal had substituted an 18-month determinate sentence for a defendant with previous convictions who had downloaded 44,000 indecent images, most in Category C but a large number in Category A. The relevant sentencing ranges were 26 weeks to three years’ custody with a starting point of one year for Category A, a high level community order to 18 months’ custody with a starting point of 26 weeks for Category B, and a medium level community order to 26 weeks’ custody with a starting point of a high level community order for Category C. Ms Purnell submitted that the judge should have taken the starting point for Category B offences, and given the relatively small number of images, most in Category C, the sentence ought to have been materially less than 18 months. Second, she submitted that paragraph 4 of the Sexual Harm Prevention Order was disproportionate and oppressive, amounting to a blanket ban where no truly exceptional circumstances existed. She proposed an alternative, less onerous prohibition, modelled on that approved in R v Parsons and R v Morgan [2018] 1 Cr App R (S) 43, which would require notification, retention of internet history, and availability of devices for inspection, but would not deny ordinary internet use. This alternative was not opposed by the prosecution, represented by Mr Edward Connell.
Mr Connell referred to the aggravating features the judge was obliged to take into account, namely the appellant’s previous convictions for similar offending, the commission of offences while on licence, and evidence that he had been seeking images of young children. He observed that the offending spanned all three categories. The Court of Appeal noted the observation of the single judge when granting leave that cases of this type inevitably turn on their own facts and that, whilst there were only two Category A images, there were significant aggravating features making custody inevitable. The single judge had considered that the sentence imposed by the judge was not arguably wrong in principle.
The Court of Appeal held, however, that the notional total sentence after trial of 18 months’ imprisonment was too long and manifestly excessive. Lord Justice Lindblom, giving the judgment of the court, observed that given the sentencing guidelines and in particular the preponderance of images in Category B and Category C, with 17 of the 23 in Category C, the judge’s starting point of 18 months was too high. The appropriate starting point was one of 12 months. With an upward adjustment for aggravating factors, particularly the appellant’s previous convictions for similar offending, but also allowing for his personal mitigation including his personality disorder, this produced a sentence of 12 months’ imprisonment after a trial. Making an appropriate reduction for the belated guilty plea brought the sentence down to 10 months’ imprisonment on count 1. The concurrent sentences of one month on each of counts 2 and 3 were not disturbed. Accordingly, the court quashed the sentence of 16 months on count 1 and substituted a sentence of 10 months’ imprisonment, for a total of 10 months.
Turning to the Sexual Harm Prevention Order, the court accepted Ms Purnell’s submissions. The prohibition in paragraph 4 was disproportionate and unduly oppressive, denying the appellant much of everyday legitimate living. Referring to previous authority including R v Smith [2011] EWCA Crim 1772, R v Bingham [2015] EWCA Crim 1342, and Parsons and Morgan, the court held that there was no particular feature of the appellant’s offending nor any other circumstance in this case that could be said to warrant such a prohibition. The formulation suggested by the appellant was appropriate, as the prosecution properly accepted. The court therefore quashed the prohibition in paragraph 4 of the Sexual Harm Prevention Order and substituted the prohibition put forward on behalf of the appellant, leaving the other prohibitions undisturbed.
In short, the appeal was allowed in part; the sentence was reduced from 16 months to 10 months’ imprisonment, and the terms of the Sexual Harm Prevention Order were amended to replace a blanket internet ban with a proportionate regime of notification, monitoring, and inspection.
The appellant pleaded guilty on 25 April 2018 in the Crown Court at Blackfriars to three offences of making indecent photographs of children, contrary to section 1(1)(a) of the Protection of Children Act 1978: one count in Category A, one in Category B, and one in Category C. On 25 May 2018 His Honour Judge Clarke QC sentenced him to 16 months’ imprisonment on count 1, one month concurrent on count 2, and one month concurrent on count 3, making a total of 16 months. The judge also made a ten-year Sexual Harm Prevention Order under section 103 of the Sexual Offences Act 2003 and a forfeiture order for computers and equipment under section 25 of the Public Order Act 1986. The appellant was required to notify the police for ten years under Part 2 of the 2003 Act and would be included in the relevant safeguarding list.
The offending came to light when in December 2016, as part of the supervision of the appellant, the police installed monitoring software on his computer with his consent. At the end of February 2017 the police discovered a number of search terms indicating that someone had been looking for indecent images of children. The appellant had accessed 23 indecent images between 24 January and 1 February 2017. Upon arrest, the appellant denied having looked for or downloaded any indecent images, claiming that other people had used his computer and that he had allowed someone else to access it remotely. The police enquiries disproved these claims. Of the 23 images, two were in Category A, four were in Category B, and 17 were in Category C. The appellant had previous convictions for manslaughter and robbery in 2006, and in June 2015 he had pleaded guilty to 13 offences of possessing indecent images of children, contrary to section 160 of the Criminal Justice Act 1988, for which he received eight weeks’ imprisonment concurrent. No Sexual Harm Prevention Order had been made on that occasion. While awaiting trial for the present offences, he was recalled to prison to serve the remainder of his licence period for manslaughter.
A pre-sentence report noted the appellant’s history of mental illness and described the current offences as part of an established pattern of offending, particularly significant because he was on licence when he committed them. The probation officer assessed him as presenting a medium risk of reconviction for similar offending and did not consider that risk manageable in the community. A psychiatric report by Dr Stephen Ginn dated 16 January 2018 diagnosed borderline personality disorder with markedly disharmonious attitudes and behaviour. The sentencing judge acknowledged the appellant’s troubled life but emphasised his previous conviction for similar offending and his knowledge that he was not allowed to view such material. The judge indicated that one month concurrent on each of counts 2 and 3 was appropriate, and that the sentence on count 1 would reflect the whole of the indictment. He took 18 months’ imprisonment as his starting point, reduced to 16 months for the guilty plea, which was entered only on the day of trial. The Sexual Harm Prevention Order included a prohibition in paragraph 4 which amounted to a near-total ban on owning, using or possessing any device capable of accessing the internet, save for use in a public library or at a place of employment.
Ms Catherine Purnell, on behalf of the appellant, advanced two main grounds. First, she submitted that the sentence of 16 months was manifestly excessive given that there were only two Category A images and most were Category C, and that the judge had focused too heavily on the Category A material. She relied on R v Dixon (unreported, 29 July 2015), in which the Court of Appeal had substituted an 18-month determinate sentence for a defendant with previous convictions who had downloaded 44,000 indecent images, most in Category C but a large number in Category A. The relevant sentencing ranges were 26 weeks to three years’ custody with a starting point of one year for Category A, a high level community order to 18 months’ custody with a starting point of 26 weeks for Category B, and a medium level community order to 26 weeks’ custody with a starting point of a high level community order for Category C. Ms Purnell submitted that the judge should have taken the starting point for Category B offences, and given the relatively small number of images, most in Category C, the sentence ought to have been materially less than 18 months. Second, she submitted that paragraph 4 of the Sexual Harm Prevention Order was disproportionate and oppressive, amounting to a blanket ban where no truly exceptional circumstances existed. She proposed an alternative, less onerous prohibition, modelled on that approved in R v Parsons and R v Morgan [2018] 1 Cr App R (S) 43, which would require notification, retention of internet history, and availability of devices for inspection, but would not deny ordinary internet use. This alternative was not opposed by the prosecution, represented by Mr Edward Connell.
Mr Connell referred to the aggravating features the judge was obliged to take into account, namely the appellant’s previous convictions for similar offending, the commission of offences while on licence, and evidence that he had been seeking images of young children. He observed that the offending spanned all three categories. The Court of Appeal noted the observation of the single judge when granting leave that cases of this type inevitably turn on their own facts and that, whilst there were only two Category A images, there were significant aggravating features making custody inevitable. The single judge had considered that the sentence imposed by the judge was not arguably wrong in principle.
The Court of Appeal held, however, that the notional total sentence after trial of 18 months’ imprisonment was too long and manifestly excessive. Lord Justice Lindblom, giving the judgment of the court, observed that given the sentencing guidelines and in particular the preponderance of images in Category B and Category C, with 17 of the 23 in Category C, the judge’s starting point of 18 months was too high. The appropriate starting point was one of 12 months. With an upward adjustment for aggravating factors, particularly the appellant’s previous convictions for similar offending, but also allowing for his personal mitigation including his personality disorder, this produced a sentence of 12 months’ imprisonment after a trial. Making an appropriate reduction for the belated guilty plea brought the sentence down to 10 months’ imprisonment on count 1. The concurrent sentences of one month on each of counts 2 and 3 were not disturbed. Accordingly, the court quashed the sentence of 16 months on count 1 and substituted a sentence of 10 months’ imprisonment, for a total of 10 months.
Turning to the Sexual Harm Prevention Order, the court accepted Ms Purnell’s submissions. The prohibition in paragraph 4 was disproportionate and unduly oppressive, denying the appellant much of everyday legitimate living. Referring to previous authority including R v Smith [2011] EWCA Crim 1772, R v Bingham [2015] EWCA Crim 1342, and Parsons and Morgan, the court held that there was no particular feature of the appellant’s offending nor any other circumstance in this case that could be said to warrant such a prohibition. The formulation suggested by the appellant was appropriate, as the prosecution properly accepted. The court therefore quashed the prohibition in paragraph 4 of the Sexual Harm Prevention Order and substituted the prohibition put forward on behalf of the appellant, leaving the other prohibitions undisturbed.
In short, the appeal was allowed in part; the sentence was reduced from 16 months to 10 months’ imprisonment, and the terms of the Sexual Harm Prevention Order were amended to replace a blanket internet ban with a proportionate regime of notification, monitoring, and inspection.
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.