Weatherald, R v

When deciding whether to suspend a custodial sentence for possession of indecent images of children, the sentencing court must give proper weight to the prospects of rehabilitation, personal mitigation, risk to the public and the suitability of community management. The seriousness and extreme nature of the images may justify custody, but do not automatically require it to be immediate. Where a realistic pre-sentence recommendation addresses both seriousness and risk, a suspended sentence with rehabilitative requirements may provide the appropriate punishment.

The appellant, aged 61 and of previous good character, pleaded guilty in the magistrates’ court to two offences of making indecent images of children. He was committed to the Crown Court at York and received ten months’ immediate imprisonment for Category A images, with two months concurrent for Category C images.

The material included lengthy and extreme Category A videos. The appellant had admitted downloading and viewing it. A pre-sentence report assessed him as a low risk of reoffending, a medium risk of harm capable of community management, and recommended an eighteen-month community order.

With leave of the single judge, he appealed solely on the basis that the custodial sentence should have been suspended.

1. Appeal allowed. The immediate sentence of ten months’ imprisonment was quashed. It was replaced by six months’ imprisonment, suspended for 12 months, with up to 25 rehabilitation activity requirement days.

2. The offending was serious. The Category A images were extreme, involved discernible pain and distress, and were accompanied by searches showing an interest in extreme child pornography. The applicable sentencing guidance indicated a custodial starting point for Category A material.

3. However, the sentencing judge had identified factors favouring suspension: a realistic prospect of rehabilitation and strong personal mitigation. The appellant presented no significant risk to the public and had no history of non-compliance with court orders.

4. The Court of Appeal gave substantial weight to the realistic pre-sentence assessment. The appellant had no previous convictions, had offended over a confined period, had deleted the material, had not been shown to offend further during the 22 months before sentence, and was assessed as suitable for management and rehabilitative work in the community.

5. In those circumstances, the recommendation for a community-based and rehabilitative response properly addressed both the seriousness of the offending and the risk posed. Immediate custody was therefore not required to achieve the appropriate punishment.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted six months’ imprisonment, suspended for 12 months, for the Crown Court’s immediate sentence.
• Crown Court at York: On 29 August 2019, imposed ten months’ immediate imprisonment for making Category A indecent images of children, with two months concurrent for Category C images.
• Magistrates’ court: Following guilty pleas, committed the appellant to the Crown Court for sentence on 8 August 2019.