Neutral Citation Number:
[2009] EWCA Crim 733
Case No: 2008 02391/A1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM STAFFORD CROWN COURT
HHJ Glen
T20070144
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
21/04/2009
Before :
LORD JUSTICE THOMAS
THE HON. MR JUSTICE BLAKE
and
THE HOM. MR JUSTICE BURNETT
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Between :
Robert Lwellyn Hicks
Appellant
- and -
R
Respondent
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Ms J. Josephs
(instructed by Millerchip Murray Solicitors) for the
Appellant
Mr. S. Rippon
(instructed by
CPS
) for the
Respondent
Hearing dates : 18
th
February 2009
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Judgment
The Hon Mr. Justice Blake :
1.
On 8
th
May 2007 at the Crown Court at Stafford this applicant pleaded guilty to 14 offences relating to indecent photographs of children. On 22
nd
June 2007 HHJ Glen sentenced him as follows: on 12 counts of making indecent photographs of children he was sentenced to a term of imprisonment for public protection with a specified minimum term of six months. For two counts of having indecent photographs of children he was sentenced to an extended sentence of five years, made up of a custodial term of one year’s imprisonment and an extension period of four years concurrent.
2.
The matter comes before this court by reason of directions made by the court on the 16
th
October 2008 when the applicant’s own grounds by way of challenge to his sentence were rejected, but the question was reserved for consideration as to whether the sentence of imprisonment for public protection could stand in the light of the decision of this court in
R v Terrell
[2007] EWCA Crim 3079
reported at
[2008] 2 All ER 1065
and [2008] Criminal Law Review 320.
3.
The applicant is now 54 years of age having been born in April 1954. The sentence that is the subject of this application is the third occasion that he has been before the courts. On the 4
th
July 2003 at Stafford Crown Court for 18 offences of making indecent photographs or pseudo photographs of children between the 11
th
September 1998 and 14
th
November 2002 and one count of possession of an indecent photograph or pseudo photograph of a child on the 14
th
November 2002 he was sentenced to nine months imprisonment concurrent on each offence with an extended licence period of 24 months and related orders connected with a sex offenders notice and forfeiture and destruction of the materials and the computer on which they were contained. On the 7
th
February 2005 on four counts of making indecent photographs and 11 counts of possessing them he was sentenced a total of 15 months imprisonment and a 24 month period of extended licence. Those offences were committed between the 11
th
November 2003 and the 3
rd
June 2004, that is to say the offending had begun almost as soon as he was released from his first sentence imposed at Stafford Crown Court. The applicant was released from his second sentence of imprisonment in November 2005. On the 22
nd
January 2006 he was seen in a computer store, PC World where he purchased an external hard drive in the store. An alert member of staff who happened to know the applicant and knew that he was not supposed to own a computer obtained a copy of the receipt and informed her manager of what she had seen. The authorities were contacted and on the 22
nd
January 2006 police officers attended at the applicant’s home address. A computer was seen in the applicant’s bedroom displaying images of young girls. The applicant was arrested, his premises searched and a further lap top computer and removable hard drive with a quantity of DVD’s, floppy discs and CD’s was also recovered from a downstairs room.
4.
Analysis of the equipment revealed a total of 1139 still images of children that were indecent of which 1133 were at level one, one at level two, one at level three and four at level four. There were 70 indecent moving images of which 69 were at level one and one was at level two. The applicant was in breach of his licence conditions by retaining a computer and arranging for the installation of broadband connection and downloading indecent images of children since his last sentence. Moreover, children’s clothing was recovered from a downstairs room. It was uncertain when that clothing had come into the room and the judge recognised that it may have been left over from his previous offending in which case he had not disposed of it in the two months that he had been released on licence.
5.
The offence of making an indecent photograph under
section 1
of the
Protection of Children Act 1978
as amended by the
Sexual Offences Act 2003
is punishable by up to 10 years imprisonment. It is therefore a specified sexual offence that is a serious offence within the meaning of 224 of the
Criminal Justice Act 2003
. The court was accordingly required to consider whether it needed to impose a sentence of imprisonment for public protection under
section 225
of the
Criminal Justice Act 2003
. It therefore had to consider whether it was of the opinion that “there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences” (
Section 225(1)
(b)).
6.
In considering that question under the terms of the
Criminal Justice Act 2003
before amendment by the
Criminal Justice and Immigration Act 2008
the court had to approach that question by applying the adverse presumption of risk in section 229(3) and considering whether it would be unreasonable to conclude that there is such a risk.
7.
The learned judge had before him the undoubted fact of persistent offending within a short period of time on release from a previous sentence for an identical offence and rapid breach of the terms of the licence attached to that release. He concluded, as in these circumstances he was bound to, that there was a substantial risk of this applicant committing further offences that were specified sexual offences. The learned judge also had a pre-sentence report and a report from a clinical psychologist Dr Hull. The conclusion of the psychologist’s report was in these terms:
“with regard to the risk of progression to contact offending Mr Hicks past history and his attitude to his offending does suggest that he presents a risk of progressing to contact offending. He has shown himself to have a persistent sexual arousal to images of children, and he has reported a degree of identification of children stemming from his own abuse. These are both risk factors for contact offending. However, he has not reported that he sees the abuse of children to be in any way justified or beneficial to them and there is no evidence that he has sought out children for the purpose of abuse or has begun to groom them for this purpose. Hence the risk of contact offending while present is unlikely to be high or immediate. It is more likely that contact offending remains an action to which he may progress in the medium to long term if his issues are not addressed.”
Although the psychologist had seen a number of the background papers in the case and material relating to his previous term of imprisonment, it appears he had not seen the pre-sentence report when making that assessment. The pre-sentence report gives details of the offences for which he was sentenced on the second occasion shortly after his release from his first sentence of imprisonment on the 14
th
November 2003. On the second occasion he was found to have a total of 271 indecent images on his computer. Some of those were images that he had taken himself of young girls and had doctored. He had advertised a fake photography business on the internet and lured unsuspecting teenage girls to pose for him in skimpy outfits under the pretence of creating a modelling portfolio. Images he had doctored were faked to depict semen smeared on the faces of the girls concerned. It was therefore pointed out in the pre-sentence report that he
had
in the past become involved in actual contact with children. Other than the details in the pre-sentence report little else was available to the judge about those offences.
8.
The details of the conduct of the applicant in respect of the second group of offences are potentially of the utmost concern and highly relevant to the assessment of what future risk he may pose to a section of the public. At the time of the hearing before the sentencing judge and before us, however there was a paucity of information about these matters apart from what was obtained in the pre-sentence report. In particular it was not known:
i.
What the age of the girls were who attended in response to his advertisement.
ii.
What the images were that he had taken of them before they were doctored.
iii.
What he did with the images after they had been doctored, whether circulated on the internet or brought to the attention of the girl concerned.
He has never been charged with an offence of grooming girls for the purpose of sexual offences contrary to s.15 Sexual Offences Act 2002 or any form of sexual assault.
9.
The judge’s sentencing remarks began by recognising that if he were to impose a determinate sentence it would have been in the range of six to twelve months. He then considered cases where sentences of IPP had been upheld for similar offending. He then referred to the case of
Howell
[2007] Criminal Law Review 395 and said:
“the judge at first instance in that case… acknowledged as I do that making indecent photographs is not in itself a crime that involves direct personal contact with children but observed that people who looked at images of this kind were watching real children and the process involved the exploitation of real children for the purposes of sexual gratification. Some of the markets in the material existed because there were those who wished to examine it and derive satisfaction from doing so. From what I read in (Dr Hull’s) report you plainly derived such satisfaction and are aroused by this sort of material. In the case of
Howell
the sentencing judge concluded that the appellant presented a significant risk of substantial harm to children based on the pattern of misconduct in that case. The Court of Appeal found he was fully entitled to reach the conclusion that he did and the Appellant was properly regarded as someone who fell within the meaning of dangerousness.
I was very concerned today when I read the report of Dr Hull. Some of the contents are worrying. He says that you show a tendency to minimise the consequences of your offending and to downplay risk you may present in future, which has persisted despite your attendance at the sex offenders’ treatment programme. That, he says, suggests you are still adopting a strategy of minimising rather than confronting your own difficulties in this area. If you were to be released and allowed access to computer equipment you must be regarded as being of moderate to high risk of continuing to seek out indecent images. Your past history and your attitude to your offending does suggest you present a risk of progressing to contact offending. You have shown yourself to have a persistent sexual arousal to images of children and you have reported and agree identification with children stemming from your own abuse.
I should say that the doctor’s view is that contact offending while the risk is present is unlikely to be high or immediate. I regard you as presenting a risk of contact offences and I regard it as a significant risk. People like you encourage those who perpetrate child abuse to operate and corrupt children. Children suffer prolonged physical and emotional and psychological emotional abuse from this sort of behaviour in providing entertainment for people like you, something you appear blindly oblivious to.”
He concluded that he had no doubt that the higher level of serious harm specified in the
Criminal Justice Act 2003
was present.
10.
Following the sentence imposed upon him the applicant has remained in prison. We understand that he has been refused release on licence by the parole board. He has thus served some 18 months imprisonment, three times the minimum term identified by the judge. We are also conscious that if the applicant were to be sentenced again for the sentences for which he was sentenced in June 2007 then having regard to the tariff and range of custodial terms available for possessing or making indecent images of children he might not receive a specified term of 2 years or more and thus would no longer be eligible for a sentence of imprisonment for public protection under the
Criminal Justice Act 2003
as amended by
the 2008 Act
.
11.
Six months after this sentence was imposed upon this applicant this court delivered its judgment in the case of
Terrell
where it considered in a reserved judgement the nature of the harm occasioned to members of the public by the offence of possessing or making images by downloading them from the internet. It first observed at paragraph [23] that:
“The provisions of the CJA must be interpreted purposefully and with the statutory consequences in mind if they are not to be applied far more intensively than parliament intended. The serious consequences signal the degree of risk and gravity of harm which the offenders specified re-offending must occasion. The seriousness of the harm required by the CJA is emphasised by the words “death or serious personal injury”. The latter phrase is deliberately coloured by the associated word death and stands in contrast with the language in the Sexual Offences Act and is on the serious harm occasioned by that offenders re-offending which the Criminal Justice Act requires attention to be focused.”
At paragraph [26] it noted:
“the serious harm thus relied on here is the harm to children through the perpetuation of the market or distribution networks for indecent images. This puts children at risk of being forced to participate in the activities leading to such images or causes psychological harm to a child who realises either at the time or later that images of him or her are being used as object of perverted sexual gratification.”
It then concluded:
“27. In all these circumstances the re-offending which is at risk would make a direct but small contribution to the market or distribution of such indecent images. That is turn would make an indirect but small contribution to the risk that indecent images of children would be taken. A child groomed or made to participate in sexual acts for those purposes may suffer serious harm of one sort or another depending upon the activity. A child who becomes aware that he or she is being photographed for sexual gratification of an adult who may not even be known to them may suffer serious psychological harm.
28. In our judgment it cannot reasonably be said in a context of these particular statutory provisions that there is a significant risk of this applicants re-offending occasioning harm to a child or children whether through perpetuating the market or through further indecent images being taken or through a child becoming aware of the indecent purposes to which photographs might be put. The link between the offending act of downloading these indecent images and the possible harm which might be done to children is too remote to satisfy the requirement that it be this appellant’s re-offending which causes the serious harm. Worse, there would be an indirect and small contribution to a harm which might or might not occur depending on whether further photographs were taken in part as a result of the appellant’s contribution to the market or depending on whether a child found out about the uses to which they were put as a result. The imprisonment for public protection provisions of the CJA do not apply in the circumstances here where simply as a matter of generalisation a small, uncertain and indirect contribution to harm may be made by a repeat of this offender’s offending. No significant risk of serious harm of the requisite gravity occasioned by a repetition of the offending in this case by this offender can reasonably be said to exist.”
12.
In our judgment, those observations apply with equal force to the offences to which this applicant pleaded guilty and for which he was sentenced in June 2007 and appear to have applied to the circumstances of his first offences. We are bound to apply this reasoning to the present appeal. The court in
Terrell
made it quite plain that serious harm of the level required to justify imprisonment for public protection could be made out where an appellant risked progressing to physical contact offences or becoming a photographer or a commissioner of indecent images or playing a more significant role in a distribution network. In the case of
Terrell
itself some photographs were found on the offender’s computer of images taken of children on a public beach. They were not indecent. The court noted
“there is no suggestion here however, the appellant has any contact with children who he might seek to photograph or commission others to photograph himself for sharing or using for a means of gaining access to a network”.
13.
The court was equally alert to the risk of serious harm that might occur where a family member abuses the trust of a child to take indecent photographs and the child becomes aware that that trust has become abused and indecent images are being circulated or distributed with the consequences that serious psychological harm is caused.
14.
The present case imposes a difficult question about whether the threshold for a sentence of imprisonment for public protection was met in this case. The circumstance of the second offence demonstrate that this offender had in some way moved on to contact with children by setting up the photo-studio and soliciting the attention of young girls, although had not apparently groomed them for indecency or had not assaulted them and had not appeared to distribute images of them on the internet.
15.
The learned judge in his sentencing remarks placed particular emphasis upon the report of the psychologist, although that report did not comment upon the conduct in the second group of offences, and in terms it could do no more than indicate that those addicted to indecent photographs of children might well progress to contact offending.
16.
If the only risk in this case was of repetition of downloading indecent images from the internet for personal observation by this appellant without onward circulation or abuse of trust then his contribution to the general market in indecency could not be said to “occasion” any serious psychological harm that might occur to children whose images this appellant was looking at.
17.
However, if this applicant were to seek to lure young children to his premises in order to photograph them, make those images obscene by modification and if that process had become known to such a child or the child was assaulted indecently or otherwise groomed for indecency then there was a real risk of serious harm being caused by this applicants future re-offending.
18.
When the matter came before us on the 18
th
February 2009, we were most concerned to find out more about the circumstances of the second offence and any other information about this appellant since the sentence of IPP was passed. The case summary has now been provided to us. The information supplied causes us real anxiety as it appears:
i.
On release on licence on 11
th
November 2003 he refused to sign his licence agreement indicating that he did not agree with some of the conditions attached to his release.
ii.
A short period after release on licence he set up and advertised his business called “Pro Model studios” on internet sites. A number of teenage girls replied to his site and this led to photographs being taken and supplied to the girls in question for free.
iii.
Three contacts with young girls were investigated by the police. One involved a 13 year old girl who was photographed by the appellant at her home. Her mother was aware of the photographic session and had indicated that the girl was not going to wear the inappropriate underwear and scanty clothing that the appellant had wanted her to. The appellant sent the photographs but appeared to want to continue communication and contact with the girl in question. He misrepresented his age as being younger than it really was.
iv.
Two other young women of 17 years of age had responded to the advert and had photos taken free of charge by the appellant. One had received the images back and the other had not.
v.
When the appellant’s home was searched in addition to the doctored photos, boxes of scanty teenage clothing were found in the premises.
vi.
The doctored photos related to the 13 year old and one of the 17 year olds. The mother in the former case and the subject of the photos in the latter were shown the doctored photos by the police and are understandably angry and disgusted by what they were shown.
19.
We accept the submissions made on behalf of the Crown that in the past this offender had gone beyond what the appellant in
Terrell
had done. His repeat offending so soon after release on licence demonstrates his addiction to downloading and looking at these images, his disregard for the terms of his licence conditions and his failure to address the nature of his offending. Clearly there is a risk that he could progress to contact offences of a kind that are capable of creating serious harm.
20.
However, on the information now available to us we cannot conclude that in the past he had in fact committed contact offences as opposed to offences of possession or making images. The images of the 13 year old were taken at the subject’s home with the knowledge of the mother, albeit in ignorance of his past. None of the images arising from the photographic sessions were indecent. There has been no charge of sexual grooming or assault. The doctored images have not been circulated on the internet for use by others. Disgust at the images is not the same as serious psychological injury.
21.
This offender’s conduct has not got worse in the short time that he has been at liberty since the second group of offences. The nature of the images that he had collected since his release was overwhelmingly at level one and there were no level five images. There was no evidence of attempted contact with children or of circulation of images to other offenders interested in such images.
22.
In our judgment and applying the words of Lord Justice Rose in
R v Laing and Ors
[2005] EWCA Crim Div 2864 reported [2006] 2 Cr App Reports (S)3 at [17.4]
“repetitive, violent or sexual offending at a relatively low level without serious harm does not of itself give rise to a significant risk of serious harm in the future. There may, in such cases, be some risk of future victims being more adversely affected than past victims but this of itself does not give rise to significant risk of serious harm.”
23.
It is not enough that there is a possibility of future offending that might occasion serious harm. The risk of such harm being occasioned by future offending must be significant. That requires some evidential basis from which it can be assessed that either serious harm caused in the past will be repeated, or that the offender will move on to more serious offences that give rise to a significant risk of serious harm.
24.
We are deeply troubled by what this offender did on the second occasion of these offences, and the potential for progression that conduct indicates. However, we conclude that the information available about the past was not such as to indicate that he had caused serious harm to members of the public by that offending, and the circumstance of the offences for which he was being sentenced by this judge did not disclose any element that could be said to give rise to a significant risk of serious harm.
25.
On that basis, by the narrowest of margins, we have concluded that the necessary factual foundation for a sentence of imprisonment for public protection was not made out, for reasons given below we reach this conclusion taking into account the terms of a sexual offences prohibition order we intend to impose. In our judgment, the learned judge was combining the real likelihood of further downloading offences, the generic harm that he recognised could be caused to children by such offending, and the psychologist’s assessment of factors that show the potential progression to contact offending. The learned judge was not indicating that he had already caused such harm by contact offending and can be presumed or assessed as likely to repeat that harm or progress to it by new levels of offending.
26.
In the case of
Terrell
itself this court accepted that it maybe in making these difficult assessments that the terms of a sexual offences prevention order can be taken into account in assessing whether the risk in the future of committing the kind of offence from which serious harm could occur is significant. At paragraph [32] it indicated :
“if apt and effective restrictions could be imposed through a SOPO e.g. use of a computer internet access possibly contact with individuals or children which would address the degree of risk and the seriousness of harm, the statutory criteria might not be satisfied… the same effect would be true of other penalties or orders.”
An indeterminate sentence is not required by
the 2003 Act
where other available measures can contribute to the conclusion that the criteria are not met.
27.
We are conscious that the stringent terms of his licence were readily and repeatedly violated by this offender. It so happens that he has never been subject to a sexual offences prevention order and we have considered with the assistance of counsel whether a stringent order in draconian terms could be made in this case. Doubtless, now that a minimum specified term of 2 years is required before an IPP can be made under the amended statutory provisions future courts may be examining with care the role that a stringent SOPO can play in securing protection for the public.
28.
In our judgment this offender should not be permitted unsupervised contact with children under 16 or access to equipment capable of downloading indecent images or interfacing with internet chat rooms to which children below the age of 16 may be contributing and indeed should not be permitted to take photographs of anybody that will enable him to store his own images upon the computer and turn them into indecent ones. We fully appreciate that the terms of such an order cannot prevent a determined offender from committing further offences. But combined with the experience of the term of indefinite imprisonment to which he has already been subject and the potential penalties that are likely to be visited in the future for a breach of the terms of a SOPO we conclude that they will make a material contribution to deterrence.
29.
Although, we have concluded that a sentence of imprisonment for public protection for the present offences cannot be upheld because there was insufficient information from which an assessment of significant risk of future harm by the future commission of specified offences could be sustained, the risk of future offending is a substantial one. The potential danger that this applicant presents to young people in general is a real one and certainly the somewhat different test under
Section 104
of the
Sexual Offences Act 2003
is satisfied in this case.
30.
We therefore propose to grant permission to allow, allow the appeal to the extent of quashing the sentence of imprisonment for public protection and substitute for it a determinate sentence of 12 months less the days spent on remand but impose forthwith the terms of a stringent SOPO set out in a schedule to this judgment that will apply indefinitely to this offender from the date of his release which will be from immediate effect.
31.
We direct that a copy of this judgment and the terms of the SOPO be served on the Chief Officer of Police of the place where this applicant will reside. He is subject to life long notification under the sexual offenders register, and therefore he must provide his police force with his place of residence. By the terms of paragraph 13 of the SOPO that we propose to impose he is obliged not to refuse the police access to his premises in the event that they choose to make a spot visit to detect whether he has obtained any equipment that would breach the terms of the order. In making this condition we have considered the recent guidance of the Court of Appeal in the case of
R v Edward Thompson
[2009] EWCA Crim 3258
The Court concluded that such a requirement is an onerous one that should not be routinely imposed. It concluded at [16] however that it did not fall outside the statutory requirement of prohibiting acts rather than imposing mandatory obligations. It considered the question of proportionality and whilst at [24] it set aside such a term, it did not exclude the making of such a provision generally and for the reasons given above, we conclude that this is a case of such seriousness that such a term is both necessary and proportionate.
32.
We certainly expect that this offender will be regularly and effectively monitored. If evidence of a breach of these conditions is found it will enable him to be prosecuted for doing things that would otherwise be lawful. He should be under no illusion that the penalties for breach of this order are likely to be substantial. His persistent disregard hitherto for the terms of his licence cannot be tolerated. But for the reasons we have given this appeal is allowed.
Schedule:
Terms of the Sexual Offences Prohibition Order made pursuant to
s.104
Sexual offences Act 2003
:
Robert Hicks is prohibited from:
1.
Being in the company of any person under the age of 16 years unless that person
is supervised by an adult over the age of 21, and with the consent of that person’s parent or guardian given in the full knowledge of the appellant’s sexual offending history
.
2.
Living in the same household as any person under the age of 16.
3.
Entering any park, swimming pool, recreational area, school or other premises where children under the age of 16 are likely to be present for recreational purposes.
4.
Undertaking any activity (whether paid, voluntary or recreational) which is by its nature likely to bring him into unsupervised contact with a person under the age of 16 years, without the written approval of the Chief Officer of Police of the area in which he lives.
5.
Seeking out with a view to speaking to or communicating directly or indirectly with any person under the age of 16 save with the consent of that person’s parent or guardian given in the full knowledge of the appellant’s sexual offending history
.
6.
Owning or having personal possession of any piece of equipment or device that is capable of connecting to the internet.
7.
Owning or having personal possession of any piece of equipment or device capable of taking, making or storing images or photographs, or any piece of equipment or device or software capable of altering images or photographs.
8.
Owning more than one SIM card or having more than one mobile telephone number.
9.
Registering a SIM card or mobile phone number other than in his correct name and at his current residential address.
10.
Using a device of the nature described in condition 6 (above) save at premises approved by the Chief Officer of Police of the area in which he resides.
11.
Accessing any site or material on the internet relating to persons under the age or 16 or advertised or marketed as suitable for such persons, accessing any internet chat room or accessing any site or material containing explicit sexual material.
12.
Downloading or otherwise making or collecting images of children under 16.
13.
Changing his address without notifying the Chief Constable or Chief Office of Police of the area in which he lives.
13.
Refusing entry to any premises owned, occupied or controlled by the appellant to police officers who require entry to monitor compliance with the terms of this order.
This order is to remain in force indefinitely or until further order.