R v Nicholas Greaves

For an Attorney General’s reference under the Criminal Justice Act 1988, the distribution guideline for indecent images requires possession with a view to distributing or sharing, not merely a potential to distribute. A reasonable finding that distribution was not proved should not be disturbed on appeal. A sentencing judge may use a lead offence, adjust the sentence for the total criminality and impose no separate penalty for additional offences. A sentence may be lenient without being unduly lenient.

The offender pleaded guilty to offences involving indecent images of children, an extreme pornographic image and voyeurism. The Crown Court at Leeds imposed a 12-month sentence of imprisonment suspended for 24 months, with no separate penalty for the other offences.

The Attorney General sought leave to refer the sentence as unduly lenient. The issues were whether the judge should have applied the distribution guideline, whether suspension was permissible, and whether the sentence should have been increased to reflect the voyeurism offences.

The court refused the Attorney General’s application to refer the sentence under section 36 of the Criminal Justice Act 1988.

1. The sentencing guideline distinguished possession from distribution. Distribution included possession with a view to distributing or sharing images. That required more than a mere potential to distribute.

2. The sentencing judge had considered the evidence, including the absence of proof that images had been distributed and the period during which the offender could have distributed them. The finding that the offender’s intention to distribute had not been proved was a reasonable finding of fact. There was no basis for appellate interference.

3. Accordingly, the central argument that the distribution guideline should have been used failed. The sentence was of a length capable of suspension, so the challenge to suspension also failed.

4. As to totality, the judge had taken the category A possession offence as the lead offence, increased the starting point to reflect the total criminality and the aggravating and mitigating features, and then applied credit for the guilty plea. Although imposing no separate penalty for voyeurism might have been lenient, the resulting sentence could not be characterised as unduly lenient.

5. The application to refer the sentence was therefore refused.

1. Court of Appeal (Criminal Division) — On 6 December 2022, the court refused the Attorney General’s application to refer the sentence as unduly lenient: [2022] EWCA Crim 1656.
2. Crown Court at Leeds — On 27 September 2022, His Honour Judge Singh imposed a 12-month suspended sentence of imprisonment, with no separate penalty for the other offences.