Barber R. v

Imprisonment for public protection is not justified merely because an offender presents a high risk of further specified sexual offending. The assessment must support the requisite risk of serious harm. Where that threshold is not met, a substantial determinate sentence may properly reflect extensive offending, relevant previous convictions, repeated offending after treatment, the seriousness of the images and their distribution. Sentencing guidelines inform the exercise but do not displace the court’s duty to select the sentence justified by the individual circumstances.

The appellant pleaded guilty in the Peterborough Magistrates’ Court to offences of distributing, making and possessing indecent photographs or pseudo-photographs of children. He was committed to the Crown Court at Peterborough, which imposed imprisonment for public protection with a minimum term of 15 months.

He had a history of relevant sexual offending and possessed, made and distributed a substantial number of indecent images, including level 4 and level 5 images. He appealed the type and length of sentence. The central issue was whether the available material established that imprisonment for public protection was necessary, or whether a determinate custodial sentence was appropriate.

1. Appeal allowed. The sentence of imprisonment for public protection was quashed and replaced with a determinate term of four years’ imprisonment. The 90 days already spent on remand were to be deducted. The consequential orders remained unchanged.

2. The possession offence under section 160 of the Criminal Justice Act 1988 carried a maximum of five years’ imprisonment. It was therefore not a serious specified offence for the purposes of Schedule 15 to the Criminal Justice Act 2003, and could not itself found imprisonment for public protection.

3. The court accepted that the appellant was an obvious risk of further specified offences. Nevertheless, imprisonment for public protection was not necessary in the interests of justice. The material did not justify that sentence merely through the risk of reoffending of the kind charged. The court treated the reasoning in R v Terrell [2007] EWCA Crim 3079 as supporting that conclusion.

4. A substantial determinate sentence remained necessary. The offences were numerous and committed over a significant period. The appellant had relevant previous offending, had reoffended within two years of completing a sex-offender treatment programme, and had carefully organised images, many at the most serious levels. Although sentencing guidelines provided a range and starting point, they were guidelines only. A four-year term properly reflected the overall seriousness.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed imprisonment for public protection and substituted four years’ imprisonment.
• Crown Court at Peterborough: On 11 November 2008 imposed imprisonment for public protection with a 15-month minimum term.
• Peterborough Magistrates’ Court: On 1 October 2008 accepted guilty pleas and committed the appellant to the Crown Court for sentence.