Bateman, R. v

For the Sexual Assault Guidelines, an indecent image need not fall exclusively into either possession or production. Simple downloading is possession, while taking an image at source is production; however, the guidance is non-exhaustive and the categories may overlap.

An initially downloaded lawful image may become a newly produced indecent image where creative alteration gives it a different unlawful character and purpose. Sentencing judges should assess the extent of downloading and production, then apply the relevant ranges in a calibrated way. They must also apply totality and ensure that an isolated production count does not unfairly skew the overall sentence.

The appellant pleaded guilty at Luton Crown Court to five counts of voyeurism and ten counts of making indecent images, involving two victims. He received four years’ imprisonment, with concurrent sentences on all counts. An indefinite Sexual Harm Prevention Order and a restraining order were also made.

Count 8 was treated as the headline offence. It concerned two Category A pseudo-images created by superimposing the face of a child complainant onto a downloaded adult pornographic image. The sentencing judge treated this as production rather than possession under the Sentencing Council Definitive Guidelines on Sexual Assault.

The appeal challenged that categorisation and contended that use of the isolated production count had made the total sentence manifestly excessive. The central issues were the distinction between possession and production, and totality where only a small number of images involve production.

1. Appeal dismissed. The judge made no error in treating count 8 as a production or creation offence and the four-year sentence was not excessive or manifestly excessive when the offending was considered as a whole.

2. The Guidelines do not create a rigid binary divide between possession and production. Simple downloading without more is possession. Taking an image at source is production, but the word “includes” means that this is not an exhaustive account of when an image is created or produced.

3. An image may therefore be a hybrid. A judge must assess its nature and the extent to which it remains downloaded material or has been subject to creative production. That permits calibrated application of the Guidelines’ differing starting points and ranges.

4. Here, superimposing the child’s face onto a copied adult sexual image created a different unlawful image for the appellant’s sexual gratification or advantage. Its character and purpose had changed from those of the downloaded image. The judge was entitled to classify it as production, while recognising that it was less serious than production depicting actual child abuse.

5. Totality remained essential. An isolated production count can distort the sentencing exercise, particularly where it is unrepresentative of the wider offending. A judge should be alert to that risk and may structure sentences differently. In this case, however, the judge stood back and assessed overall fairness, taking account of the child’s age, abuse of familial trust, the images, the voyeurism, the two victims, invasion of privacy and their significant harm. The headline-count structure did not produce an unfair sentence.

• Court of Appeal (Criminal Division): Appeal against sentence dismissed.
• Luton Crown Court: On 19 June 2020, HHJ L Tayton QC imposed four years’ imprisonment following guilty pleas to voyeurism and making indecent images. The lower-court neutral citation was not stated in the judgment.