Timmins [2018] EWCA Crim 2579
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**R v Timmins** [2018] EWCA Crim 2579 concerned an appeal against sentence by Scott Nathan Timmins to the Court of Appeal Criminal Division, which dismissed the appeal.
The appellant had pleaded guilty on the day of trial to possessing a mobile phone in prison contrary to section 40D(3A) of the Prison Act 1952 and unauthorised transmission of an image or sound by electronic communication from within a prison contrary to section 40D(1)(b) of the Prison Act 1952. His Honour Judge Wall QC at Birmingham Crown Court sentenced him to ten months’ imprisonment for possession and sixteen months’ imprisonment concurrent for transmission, reflecting a 10 per cent reduction for his late guilty plea. A co-accused, Ciaran Robert Heaps, pleaded guilty to possessing a mobile phone and received eight months’ imprisonment.
The appellant had been arrested on 7 September 2016 for driving whilst disqualified and dangerous driving and was remanded in custody. From 14 September 2016 he possessed a mobile phone with video camera and internet capability. He made videos and photographs of his cell and other prison surroundings, posting at least some of them on Facebook and Instagram. On 14 February 2017 he was sentenced to a total of nineteen months’ imprisonment for the driving offences.
The offences came to light on 15 February 2017 when prison officers searched the cell shared by the appellant and Mr Heaps. As the appellant was about to be searched, he produced the phone from his boxer shorts. Examination revealed numerous photographs and films of prison surroundings. Some images showed a second phone. Some pictures depicted Heaps in their cell. There was no evidence of the phone being used for any purpose other than the offences themselves. The appellant was interviewed in May 2017 and released from the driving sentence in due course. However, on 10 August 2017 he again drove whilst disqualified and dangerously, receiving 22 months’ imprisonment on 8 September 2017 for those offences. He changed his plea to guilty on the day of trial for the present offences on 23 July 2018.
The appellant was 28 at the time of sentence and had fifty previous court appearances for 106 offences between 2002 and 2017, mainly road traffic offences, Theft Act matters, and criminal damage. His previous convictions included, on 18 January 2013, six months’ imprisonment for conveying a B list item (another mobile phone) into or out of prison.
The sentencing judge stated that he had to impose a sentence to deter others. He considered the offences serious because they undermined prison staff attempts to maintain control and public confidence in the prison system. Even if inmates did not use phones for illicit purposes, their presence meant they could be obtained by others for such use. The appellant had possessed the phone over several months. Although the images were accepted to be intended for family via social media, their transmission aggravated his position. The custody threshold was passed and immediate custodial sentences were required. Given the type of phone and the period of use, the sentence after trial would have been twelve months for possession, reduced to ten months. For transmitting the images, which was much more serious, the sentence after trial would have been eighteen months, reduced to sixteen months.
On appeal, Mr Balbir Singh argued the sentence was manifestly excessive or wrong in principle. He noted that the maximum sentence for these offences was two years, so eighteen months after trial would have been close to the maximum. The offences did not involve use of the phone for further criminal activity and did not justify such harshness. He also initially submitted that the sentence had negatively affected the appellant’s eligibility for home detention curfew from his prior nineteen-month sentence, but did not pursue this ground orally, acknowledging the appellant was ineligible in any event because he had committed offences while on licence in the past, which precluded home detention curfew. He further referred to the appellant’s separation from his child, born on 13 April 2018.
The Court of Appeal rejected each ground. Nicol J (giving the judgment of the court) held that the maximum sentence of two years inevitably meant some “bunching”, leaving less scope to draw fine distinctions between different cases. There were no sentencing guidelines for the offence, and previous decisions were inevitably fact-specific. The judge had sensibly passed concurrent sentences, making identification of the lead offence insignificant. In fixing the total sentence, the judge properly took account of the total offending, including possession and flaunting that possession by uploading images to the internet. The appellant’s record was inevitably an aggravating factor, and the court drew attention to his previous conviction for a similar offence. For the reasons the judge gave, these were serious offences. If repeated, as in the appellant’s case, a stern penalty was to be expected. The recent birth of the appellant’s child was regrettable but did not render the sentence outside the proper range. The judge had properly emphasised that any remand time for the present offences would be credited against sentence. In short, these were serious offences aggravated by previous similar offending, and the concurrent sentences totalling sixteen months were not manifestly excessive; the appeal was dismissed.