Hodgson, R v

Sentencing categories in a definitive guideline are not rigid compartments. A voyeurism offence may properly be placed at the lower end of the more serious category even without recording or disseminating images, where its continuing nature, sophisticated equipment, planning and abuse of workplace trust make it more serious than the basic offence.

Immediate custody may be justified in such a case. However, the sentencing court must give proper weight to good character, personal mitigation, public protection and rehabilitation. Where supervision and a community sex offender programme better serve those aims, a custodial sentence may be quashed and replaced by a community order.

The appellant pleaded guilty in the Preston Crown Court to voyeurism contrary to section 67(4) of the Sexual Offences Act 2003. He had installed a wireless pinhole camera in the ladies’ lavatory at his workplace. The equipment transmitted live images to a monitor in the adjacent men’s lavatory, but could not record them.

The sentencing judge imposed 20 weeks’ imprisonment and made a sexual offences prevention order under section 104 of the Sexual Offences Act 2003. She treated the offence as falling within category 2 of the Sentencing Guidelines Council’s definitive guideline for sexual offences.

On an appeal against sentence, the central issue was whether the offence warranted immediate custody and whether the term imposed was manifestly excessive.

1. The court granted leave and allowed the appeal against sentence. It quashed the 20-week term of imprisonment and substituted a community rehabilitation order.

2. The offence did not fall squarely within category 2 of the sentencing guideline. It lacked the particularly aggravating features of recording sexual images and showing them to others. Nor was it the basic category 1 offence. It was a continuing course of conduct, involved sophisticated technology and planning, and targeted the appellant’s work colleagues. Those features increased the victims’ distress and were aggravating.

3. The offence was therefore properly treated as lying at the lower end of the category 2 range. The sentencing judge had not erred in principle by deciding that its seriousness could justify immediate imprisonment.

4. Nevertheless, 20 weeks’ imprisonment was excessive in all the circumstances. The appellant’s previous good character, the available personal mitigation and the nature of the offending required greater weight. Having already served more than six weeks’ equivalent custody, the protection of the public and his rehabilitation would be better served by supervision and a community sex offender programme.

5. The substituted order required three years’ supervision and participation, as directed, in a community sex offender programme for no more than 60 days in aggregate.

• Court of Appeal (Criminal Division) — In [2008] EWCA Crim 1180, the court allowed the appeal against sentence, quashed the custodial sentence and substituted a community rehabilitation order.
• Preston Crown Court — On 8 April 2008, the appellant was sentenced to 20 weeks’ imprisonment after pleading guilty to voyeurism contrary to section 67(4) of the Sexual Offences Act 2003.