Secker, R. v

A decision whether to suspend a custodial sentence requires a sensitive balancing exercise. The court must identify and weigh all applicable factors favouring and opposing suspension. It must not decide the issue by counting factors or ticking boxes.

The seriousness of offending may mean that immediate custody remains necessary even where factors favouring suspension are present. However, a sentence for indecent-image offending must give sufficient weight to personal mitigation, including good character, genuine remorse and voluntary steps towards rehabilitation. A realistic prospect of rehabilitation and a significant harmful impact on others may justify suspension where the overall balance permits it.

The applicant pleaded guilty in the Crown Court at Chester to possessing and making indecent photographs of children, including highly serious Category A material, and to possessing extreme pornographic images. The downloading had continued over about ten years. He received concurrent terms producing a total of 18 months’ immediate imprisonment.

He appealed on the grounds that the term was manifestly excessive and should have been suspended. The appeal court considered the pre-sentence report, his voluntary counselling and remorse, and further evidence from his partner about the grave emotional and financial consequences of custody for their children and household. The central issue was whether the sentence properly reflected mitigation and the required balancing of the factors for and against suspension.

1. Appeal allowed. The court quashed the concurrent 18-month sentences on Counts 1 and 2. It substituted concurrent sentences of 12 months’ imprisonment, suspended for two years, with a rehabilitation activity requirement of up to 20 days. The concurrent sentences on the remaining counts were also suspended on the same terms. Other orders remained in force.

2. The offences were exceptionally serious. The Category A images were extreme and distressing, the collection was substantial, it included moving images and many victims, and the offending continued for ten years. Nevertheless, the judge gave insufficient weight to personal mitigation when selecting a starting point of 27 months. The applicant’s good character, genuine remorse and voluntary counselling were material mitigating factors. The applicable indecent-images guideline also recognised that, where rehabilitation is sufficiently likely, a community order with appropriate treatment may properly replace a short or moderate custodial sentence.

3. The suspended-sentence guideline required the judge to identify and weigh the competing factors. In this case, there was a realistic prospect of rehabilitation, strong personal mitigation, and significant harmful impact on others. Two factors against suspension were absent: the applicant did not present a risk or danger to the public, and there was no history of non-compliance with court orders. The remaining consideration, whether punishment could only be achieved by immediate custody, was important but not conclusive.

4. The court stressed that this exercise was not numerical. Very serious offending may require immediate custody despite every factor favouring suspension. Here, however, the sentencing remarks did not make the required balance apparent, and important evidence of harm to the applicant’s partner and children had not been available through no fault of the applicant or his solicitors. Having considered the current position, including seven weeks already served in difficult prison conditions, justice was best achieved by reducing and suspending the sentence.

• Court of Appeal (Criminal Division): In [2021] EWCA Crim 266, the court allowed the sentence appeal, quashed the 18-month concurrent sentences on Counts 1 and 2, and substituted 12-month concurrent sentences suspended for two years.
• Crown Court at Chester: On 17 December 2020, HHJ Thompson imposed a total of 18 months’ immediate imprisonment following guilty pleas.