Wakeling, R. v

Sentencing guidelines for indecent images of children must not be applied mechanically. The sentencing court must assess the overall context and criminality, including offences for which no specific guideline is available.

Whether Level 4 or 5 material amounts to a small number or a large quantity is a matter for the sentencing judge. The classification depends on the relevant material itself, not on its proportion of the total images or the period over which it was downloaded. Extreme pornographic material under Criminal Justice and Immigration Act 2008, section 63 is a serious aggravating feature and must be reflected in the starting point. Sentence must nevertheless give proper effect to all mitigation and totality.

The appellant pleaded guilty in the City of Westminster Magistrates’ Court to making and possessing indecent photographs of children, and to possessing extreme pornographic images contrary to section 63 of the Criminal Justice and Immigration Act 2008. He was committed to the Crown Court for sentence.

At Southwark Crown Court, he received concurrent sentences totalling 14 months’ imprisonment. The offending included Level 4 and 5 child images and movies, together with extreme pornographic movies depicting bestiality. He appealed against sentence, contending that the judge had adopted too high a guideline starting point and had not sufficiently reflected his mitigation.

The central issues were the correct guideline category for the Level 4 and 5 material, the effect of the extreme-pornography offence, and whether the overall sentence was manifestly excessive.

1. The appeal was allowed to the extent of reducing the total sentence from 14 months to 10 months’ imprisonment.
2. The sentencing guidelines for indecent images were not straitjackets. The court had to consider the overall context of the offending. It was therefore necessary to reflect the separate offence of possessing extreme pornographic images under section 63 of the Criminal Justice and Immigration Act 2008, for which there were no sentencing guidelines, when assessing overall criminality and the starting point.
3. The 26-week starting point applied to a small number of Level 4 or 5 images. The 12-month starting point applied to a large quantity. Following R v Oliver [2003] 2 Cr App R (S) 15, whether material was large or small was for the sentencing judge. The classification did not turn on the proportion of Level 4 and 5 images within the total collection, nor on the time over which the material had been downloaded.
4. The 55 Level 4 and 5 still images, or 92 items when the relevant videos and extreme material were included, constituted a large quantity. A 12-month guideline starting point was justified. The extreme material and the substantial bestiality content were serious aggravating factors.
5. However, a notional 21-month custodial sentence, reduced only for the early guilty plea, was too high. The appellant’s previous good character, acceptance of responsibility, and the evidence concerning the age of the downloads and erasure of still images required further weight. Concurrent sentences of 10 months were substituted for the sentences of 12 and 14 months on the specified offences.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence in part and substituted concurrent sentences producing a total of 10 months’ imprisonment.
• Crown Court at Southwark: Sentenced the appellant on 7 May 2010 to concurrent terms totalling 14 months’ imprisonment.
• City of Westminster Magistrates’ Court: The appellant pleaded guilty on 15 March 2010 and was committed to the Crown Court for sentence.