Hemus, R v

An appeal against a conviction following a guilty plea will be permitted only in exceptional circumstances. An error concerning other counts does not make the remaining guilty pleas unsafe where the error has been corrected, pleas to the affected counts have been vacated, and the retained pleas expressly concern accessible images.

A sentence imposed towards the lower end of the applicable guideline range will not be arguably excessive where the judge has taken account of the offender’s previous conviction and the available mitigation. Statutory notification requirements remain fixed by statute, and a Sexual Harm Prevention Order may stand where its terms are appropriate.

The applicant sought leave, out of time, to appeal convictions in the Crown Court at Bristol for making an indecent photograph of a child, contrary to Protection of Children Act 1978, section 1(1)(a), and possessing prohibited images of children, contrary to Coroners and Justice Act 2009, sections 62(1) and 66(2). He had pleaded guilty to both offences.

A forensic scheduling error had confused accessible and inaccessible images. The applicant was permitted to vacate guilty pleas to two affected counts, but the retained pleas concerned accessible images as acknowledged in an amended basis of plea. He also sought leave to appeal a three-year community order, a Sexual Harm Prevention Order and notification requirements.

The central issues were whether the guilty pleas gave rise to an arguable conviction appeal and whether any sentence appeal was arguable.

1. Both renewed applications for leave to appeal were refused. The court agreed with the single judge that neither the proposed conviction grounds nor the proposed sentence grounds had an arguable prospect of success.
2. An appeal from a conviction based on a guilty plea will be allowed only in exceptional circumstances. None existed here. Although the prosecution accepted that accessible and inaccessible images had been confused, the error was resolved before sentence. The applicant was allowed to vacate the two pleas affected by it. The remaining pleas concerned accessible images, as his amended basis of plea acknowledged. The court rejected his assertion that the prosecution had accepted that those images were inaccessible.
3. The proposed sentence appeal was also unarguable. The sentencing judge had applied the relevant guideline to the offences of conviction and imposed a sentence towards the lower end of the appropriate category range. The applicant’s previous conviction was a relevant aggravating factor, while mitigation was taken into account.
4. The notification period was fixed by statute. The terms of the Sexual Harm Prevention Order were appropriate. No arguable ground justified appellate intervention in either measure.

• Court of Appeal (Criminal Division): Renewed applications for leave to appeal were refused in [2021] EWCA Crim 656.
• Crown Court at Bristol: The applicant pleaded guilty on 9 March 2020 to counts including making an indecent photograph of a child and possessing prohibited images of children. On 11 May 2020, he received a three-year community order, a Sexual Harm Prevention Order and notification requirements in respect of the retained offences.