Howe, R. v

A sentencing judge may find a significant risk of substantial harm for the purposes of imprisonment for public protection even where the current indecent-image offences involve no direct physical contact with a child. The court may take account of the exploitation of real children inherent in the images, the offender’s relevant history, rapid reoffending after release, and assessed risk.

An appellate court will not interfere with a severe sentence unless it is manifestly excessive. A statutory deeming provision should not be construed, without clear words, to create a retrospectively harsher sentencing power; however, a point unnecessary to the result should not be decided.

The applicant pleaded guilty to 30 offences of making indecent photographs or pseudo-photographs of children. North Somerset Magistrates’ Court committed him to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000.

At Bristol Crown Court, the judge imposed imprisonment for public protection. He fixed a two-and-a-half-year specified period, based on a five-year determinate equivalent comprising the unexpired licence period and four years for the new offences.

The applicant challenged the dangerousness finding and submitted that the determinate equivalent was manifestly excessive. A further issue arose because one count may have spanned the commencement of the relevant sentencing provisions, raising the possible effect of section 234 of the Criminal Justice Act 2003.

1. The court allowed the application only to the limited extent of quashing the imprisonment for public protection order on count 30. The determinate sentence on that count remained. The application for leave to appeal was otherwise refused.

2. The sentencing judge was entitled to conclude that the applicant presented a significant risk of substantial harm to children. The current offences were committed within about a year of release from imprisonment for comparable offending. The risk assessments and the pattern of repeated conduct supported that conclusion. The absence of direct contact did not prevent such a finding: the images involved the exploitation of real children, and demand for them formed part of the harm addressed by the legislation.

3. The court rejected the challenge to the four-year starting point. Although the absence of level 5 and moving level 4 images, and the absence of production for distribution, were relevant mitigating features, the overall sentence was severe but within the appropriate range. Applying the guidance in Oliver and allowing for the guilty pleas, it was not manifestly excessive.

4. Section 234 of the Criminal Justice Act 2003 deems a continuing offence to have been committed on its last day for the purposes of section 229. The court tentatively considered that the provision was directed to the evidential assessment of dangerousness, not to sections 225 to 228 which created the relevant sentencing powers. A contrary construction could raise retrospectivity and Article 7 concerns. The issue was academic, and the court expressly gave no ruling capable of serving as a precedent.

5. Because of uncertainty over the dates on count 30, the court adopted a pragmatic course and removed the imprisonment for public protection order on that count alone. That alteration did not affect the overall sentence.

• Court of Appeal (Criminal Division) — in [2006] EWCA Crim 3147, the court quashed the imprisonment for public protection order on count 30 only and otherwise refused leave to appeal against sentence.

• Crown Court at Bristol — on 25 July 2006, His Honour Judge Ticehurst sentenced the applicant to imprisonment for public protection for 30 indecent-image offences.

• North Somerset Magistrates’ Court — on 14 June 2006, the applicant pleaded guilty and was committed to the Crown Court for sentence.