Robin Warnes [2019] EWCA Crim 1563

R v Robin Raymond Warnes [2019] EWCA Crim 1563 concerned an appeal against sentence by a man convicted of making indecent photographs of children, in which the Court of Appeal (Lord Justice Gross, Mr Justice Stuart-Smith and the Common Serjeant) dismissed the appeal and upheld immediate custody.

Mr Warnes pleaded guilty on the morning of his trial at Ipswich Crown Court on 27 June 2019 to five counts of making indecent images of children contrary to section 1(1)(a) of the Protection of Children Act 1978. He was sentenced by His Honour Judge Overbury to sixteen months’ imprisonment on counts 1 to 4 and sixteen months’ imprisonment concurrent on count 5. He was aged 67, retired and of previous good character. He appealed against sentence with leave of the single judge.

Police executed a search warrant at the appellant’s home in Ipswich on 26 April 2018 following intelligence that the user of his internet connection had been downloading indecent images of children. When officers allowed him to go upstairs to change out of his pyjamas he twice attempted to take his wallet with him, claiming he needed medication from it. An officer examined the wallet and found a small plastic case containing three memory cards, each of which contained indecent images of children. Police also seized a Toshiba laptop and an Acer desktop computer. The appellant was interviewed under caution and answered questions freely about his background and preferences for lawful pornography, but replied “No comment” to all questions relating to the offences, including whether he had searched for or would be found to have indecent images of children on his devices.

Forensic examination revealed that the three memory cards had all been formatted very recently, between 19 and 21 April, and that images had then been transferred from the Acer desktop to those cards, some accessed as recently as the day before his arrest. The Acer computer showed evidence of the appellant watching and downloading material using BitTorrent software, the usual means of obtaining such material. He would select what he wished to keep, transfer it to a memory card and then use secure forensic software to delete remnants from his computer, though those attempts at deletion were not entirely successful. In a second interview he again answered “No comment” when asked about the images and how they came to be on his devices.

The agreed totals were as follows. Count 1, the first memory card, contained 33 category A, 3 category B and 20 category C images. Count 2, the second memory card, contained 29 category A, 9 category B and 120 category C images. Count 3, the third memory card, contained 97 category A, 32 category B and 52 category C images. Count 4, the Toshiba laptop, contained 10 category A, 27 category B and 7 category C images. Count 5, the Acer desktop, contained 44 category A, 30 category B and 77 category C images. Many file names were graphic and explicit; it was obvious they could not have been and were not downloaded by mistake. Forensic evidence showed the Acer had been used to source, download and move illegal images since 2014 until the day before arrest.

The judge sentenced without a pre-sentence report, though he was informed that the appellant would be suitable for the Horizon Programme designed to re-educate internet sex offenders and that the programme was available to those serving custodial sentences. He treated count 5 as the lead count and correctly identified category A as applicable, giving a starting point of twelve months and a range of six months to three years under the guideline. He explained that the custody threshold was passed because of the period of offending, the nature of the images and movies, the methodology adopted to cover his tracks and his attempts to frustrate the investigation when police arrived. He found that the aggravating features escalated the case so that custody was the only sentence. He did not accept that the wife’s health or the son returning home were sufficient reasons to suspend the sentence. He found the appellant had a very unhealthy sexual interest in young girls, particularly pre-teen and as young as two, though mainly between seven and twelve, and that he had trawled the internet for images and movies of the most serious kind involving incest and abuse.

The judge aggregated the aggravating features, balanced them against mitigation and gave ten per cent credit for the late plea. He identified as aggravating features the age and vulnerability of the children, the period of offending, the collections including moving images, the attempted concealment and use of evidence elimination software, the deliberate and systematic searching, the very little remorse and the plea on the day of trial after experts had attended at the defence’s request. In mitigation he noted the appellant’s good character, some health issues and the plight of his wife and son, though the latter was not a factor of great assistance. He started at the twelve-month starting point, substantially increased it for the aggravating features, decreased it slightly for the mitigation and then reduced it by ten per cent for the late plea. He concluded that the particular aggravating features that required immediate custody were the persistent, determined and calculated downloading, the use of knowledge of computers and software, the accessing of indecent images and movies and the placing of images on portable devices.

The single judge directed the preparation of a pre-appeal report. That report made depressing reading. The appellant remained evasive in interview when asked about the offences. He claimed he would search for “Young” when looking for Neil Young records and for “Lolita” when searching for films. He admitted searching for adult pornography but not child pornography, despite using terms such as “teen” and “girls”. His explanation that he hoped to find images of 17 to 18 year old girls was incredible given the findings on his devices and his continued use of those terms after knowing what they would turn up. He completely failed to address his use of software to disguise his actions or his storage of material on portable devices which he tried to conceal on arrest. He maintained he had no understanding why he downloaded the images, that he had no sexual interest in children, that transferring the images to memory cards was an attempt to delete them and that he pleaded guilty simply to reduce his sentence. The report author considered these attitudes likely to have an adverse impact on treatment programmes. He was assessed as posing a medium threat of serious harm to children. The author provided little or no support for the likely effectiveness of courses to address his attitudes and thinking, though she noted that licence on release would enable structured work with his probation officer if he were motivated.

A short report from a counsellor and psychotherapist recorded that he saw the appellant bi-weekly from 25 May 2018, after his arrest. He identified traumatic events over twelve to thirteen years which he considered would have contributed to the appellant’s resultant behaviour and post-traumatic symptoms. It was not explained how the events or PTSD might have caused the appellant’s sexual interest in children or his conduct since 2014.

On appeal the appellant accepted the length of sentence but contended it should have been suspended. Counsel relied on personal mitigation virtually all of which had been before the judge and expressly taken into account. The judge had been told the appellant wished to rehabilitate, though this submission had to be seen in the light of the pre-appeal report. Counsel relied heavily on the appellant’s attendance with the psychotherapist, a factor not mentioned by the judge. He submitted the immediate imprisonment was wrong in principle because the judge failed to give any or sufficient weight to factors in the guideline on the imposition of community and custodial sentences.

The court rejected the submission that the judge had fallen into error or that the sentence was wrong in principle. Mr Justice Stuart-Smith, giving the judgment, agreed with the single judge that the judge’s remarks showed he had the guideline well in mind. He correctly balanced the effect of custody on other family members against the aggravating features indicating that immediate custody was required. He was entitled to conclude that only immediate custody was appropriate. The court independently reviewed the criteria and guidance in the guideline and positively endorsed the judge’s decision, particularly in light of the pre-appeal report. Appropriate punishment could only be achieved by immediate custody. In short, the appeal was dismissed, the court holding that the judge had been entitled to impose immediate custody and had correctly applied the relevant guideline.