Pinkerton, R. v

In sentencing offences involving indecent images of children, the applicable category is determined by the most serious images unless those images are genuinely unrepresentative of the offending. The guideline does not require a mathematical comparison between category A images and the remainder of the collection.

A court must not create an additional category above those set by the sentencing guideline. It may instead reflect image content through the guideline’s specified aggravating factors at step 2. A sentence outside the category range requires an overall assessment of properly established aggravating and mitigating features, rather than a subjective assessment of an unrepresentative image. The indirect harm caused by downloading, through sustaining a market for abuse, may be acknowledged but will ordinarily already be reflected in the guideline sentence.

The appellant pleaded guilty at an early stage in the Crown Court at Durham to offences concerning prohibited images of children, indecent photographs of children and extreme pornographic images. The child-image offences involved thousands of category A, B and C images downloaded over more than 30 months, including a substantial quantity of moving images.

He received concurrent sentences of 32 months’ imprisonment on the principal counts, with an indefinite sexual harm prevention order. The sentencing judge departed from the possession category A guideline range because of the particular depravity of one film shown to him.

By leave of the single judge, the appellant contended that the departure created an impermissible category above category A, that the sentence was manifestly excessive, and that insufficient weight had been given to mitigation. The central issue was whether the sentence could nevertheless stand.

1. Appeal dismissed. Although the court disagreed with part of the judge’s approach, the resulting total sentence of 32 months’ imprisonment was not manifestly excessive.

2. The quantity of category A material was substantial in its own right. It was therefore properly treated as representative of the offending, despite category A images not forming the numerical majority of the collection. The guideline requires judicial assessment, not a mathematical or ratio-based exercise.

3. The judge erred in moving outside the category A range because he considered one film exceptionally depraved. The Sentencing Council’s sexual offences guidelines prescribe the relevant categories. Neither police officers nor judges may add a separate category above them. Content beyond the category definition must be addressed through the existing step 2 aggravating factors, supported where necessary by an appropriate analysis of representative images.

4. Those aggravating factors were nevertheless powerful: the children’s age or vulnerability, the prolonged offending, the high volume and moving images, facilitation of sharing, and the number of victims. They outweighed the mitigation of previous good character, early admissions and steps taken to address the offending. On that overall assessment, the case justified a sentence above the three-year category range before reductions for mitigation and guilty plea.

5. R v Terrell [2007] EWCA Crim 3079 concerned dangerousness provisions and did not establish that downloading offences cause no harm. Downloading indirectly sustains a market that leads to further abuse. A sentencing judge may refer to that harm, although it will ordinarily already be reflected in the guideline level.

6. The court added that, save in exceptional cases or a serious categorisation dispute, judges should not need to view the material. Proper witness statements or schedules should normally suffice, and use of the Child Abuse Image Database process was highly desirable where practicable. It also stated, by reference to R v Dowling [1989] 88 Cr App R 88, that a material alteration of sentence should be made in open court rather than administratively.

• Court of Appeal (Criminal Division). The appeal against sentence was dismissed: [2017] EWCA Crim 38.
• Crown Court at Durham. On 26 August 2016, following early guilty pleas, the appellant was sentenced to a total of 32 months’ imprisonment and made subject to an indefinite sexual harm prevention order. No citation was stated.