Oliver, R. v

Possession of extreme adult pornographic images should not be sentenced by narrow comparison with child-image offences. The latter engage the protection of children and may properly attract a distinct deterrent sentencing approach.

Where images were downloaded before possession became criminal and were not later accessed, custody will not ordinarily be warranted without aggravating features. The later installation of software enabling third parties to control the offender’s computer and potentially obtain the images may be an aggravating feature sufficient to pass the custody threshold. Exceptional good character and serious reputational consequences remain material mitigation.

The applicant pleaded guilty at Doncaster Crown Court to possessing three still and eight moving extreme pornographic images, contrary to Criminal Justice and Immigration Act 2008, section 63(1). He received concurrent sentences of six months’ imprisonment.

The images had been downloaded before possession became unlawful. The sentencing judge accepted that they had not later been re-accessed, but treated the later installation of remote-control software as aggravating because it made the images available to others. The applicant sought leave to appeal against sentence, relying in particular on his previous good character, work record, shame and loss of reputation. The central issue was whether immediate custody, and the length imposed, were justified.

Leave to appeal was granted and the appeal was allowed in part. The concurrent sentences of six months’ imprisonment were quashed and replaced with concurrent sentences of two months’ imprisonment.

1. The court rejected a narrow sentencing comparison between possession of extreme adult images and possession of child images. Although the child-image sentencing guideline placed images involving penetration of or by an animal at its highest level, offences involving children engage the need to protect children from the making of such material. That consideration can justify deterrent sentences which do not translate directly to adult images.
2. Possession became criminal on the commencement of section 63(1) of the Criminal Justice and Immigration Act 2008. The images were downloaded before that point, and the judge sentenced on the accepted basis that the applicant had not subsequently accessed them. Absent aggravation, those features would not have crossed the custody threshold.
3. The court nevertheless agreed that the later download of remote-control software was an aggravating feature. It enabled others to take control of the computer and thereby made the images available for distribution at another person’s control. This justified a custodial sentence.
4. The applicant’s exemplary character, career, and the substantial shame and ridicule already suffered materially reduced the proper term. Three months after trial, reduced to two months for the timely guilty plea, was sufficient punishment.

• Court of Appeal (Criminal Division): Leave to appeal against sentence was granted. The court allowed the appeal to the extent of substituting concurrent sentences of two months’ imprisonment for the concurrent six-month sentences.
• Doncaster Crown Court: On 18 November 2011, following guilty pleas, the applicant was sentenced to concurrent terms of six months’ imprisonment.