R v Kevin Porter

On an Attorney General’s reference against an allegedly unduly lenient sentence, appellate interference requires a sentence to be not merely lenient but unduly so. A sentencing court must recognise the Sentencing Council Guideline’s distinct structure for possession, distribution and production of indecent images. Production attracts substantially higher starting points. A departure from the applicable range requires a proper basis and reasons. Rehabilitation may justify a community order in a suitable case, but it cannot justify an otherwise inappropriate custodial term. Rehabilitation is only one of the five statutory sentencing purposes under section 57 of the Sentencing Act 2020. In multi-count offending, the court should identify the lead offence and reflect aggravation, totality, mitigation and guilty plea credit.

This was an Attorney General’s reference under section 36 of the Criminal Justice Act 1988. The offender had pleaded guilty to six offences involving the production and possession of indecent images of children. The Crown Court at Guildford imposed ten months’ imprisonment, suspended for 18 months, with concurrent sentences and rehabilitation activity.

The Attorney General argued that the sentence was unduly lenient because the judge had failed to distinguish production from possession under the Sentencing Council Guideline, particularly in relation to category A moving images. The central issue was whether the sentence reflected the seriousness of the production offending, the totality of the offences and the available mitigation.

The reference was allowed. Leave was granted under section 36 of the Criminal Justice Act 1988.

1. References under section 36 serve to avoid gross error, address public concern about apparently unduly lenient sentences and preserve public confidence. The appellate threshold is high: the sentence must be both lenient and unduly so. The court adopted that approach consistently with Attorney General’s Reference No 132 of 2001 (R v Johnson) [2002] EWCA Crim 1418, [2003] 1 Cr App R(S) 41.
2. The Guideline clearly distinguishes possession, distribution and production. For category A images, possession had a starting point of one year’s custody, whereas production had a starting point of six years, with a range of four to nine years. The sentencing judge failed to distinguish the possession and production offences, gave no proper basis for departing from the Guideline and did not acknowledge the extent of the departure.
3. The Guideline’s reference to a community order with a sex offender treatment programme requirement under section 202 of the Criminal Justice Act 2003 did not authorise an otherwise inappropriate custodial sentence. Rehabilitation is only one of the five sentencing purposes identified in section 57 of the Sentencing Act 2020, alongside punishment, crime reduction, public protection and reparation.
4. Count 4, involving production of category A moving images, was appropriately treated as the lead offence. The sentence required adjustment for the moving images, the totality and aggravating features of the offending, followed by reductions for mitigation and the guilty pleas. A term of at least five years before credit, reduced to three years and four months after full credit, was justified. Ten months was therefore unduly lenient and resulted from a fundamental error of approach.
5. The sentence on count 4 was quashed and replaced by an immediate sentence of three years and four months’ imprisonment. The other custodial sentences remained concurrent and became immediate sentences.

• Court of Appeal (Criminal Division): On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave, allowed the reference and substituted an immediate sentence of three years and four months’ imprisonment. [2023] EWCA Crim 53
• Crown Court at Guildford: On 11 November 2022, the offender was sentenced to ten months’ imprisonment, suspended for 18 months, with concurrent sentences.