Neutral Citation Number: [2008] EWCA Crim 1180

No: 200802018/A9 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Friday, 2nd May 2008

B e f o r e:

MR JUSTICE AIKENS
MRS JUSTICE SWIFT DBE 
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R E G I N A 

v 

WILLIAM JOHN HODGSON 
 
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MR K DONNELLY appeared on behalf of the APPLICANT
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J U D G M E N T
1.	MRS JUSTICE SWIFT:  The applicant, who is 44 years old and of  previous good character, seeks leave to appeal against the sentence of 20 weeks' imprisonment imposed on him by Her Honour Judge Lloyd sitting at the Preston Crown Court on 8th April 2008.  The applicant had pleaded guilty to an offence of voyeurism, contrary to section 67(4) of the Sexual Offences Act 2003 on rearraignment, having indicated his intention to plead guilty a few days before trial.  He has applied for bail pending the hearing of his application and appeal.  His applications have been referred to the full court by the Registrar of Criminal Appeals.  We grant his application for leave to appeal against sentence and proceed to deal with the appeal.  In these circumstances the issue of bail does not arise.  From henceforth we shall refer to the applicant as "the appellant".
2.	The appellant was also made subject to a sexual offences prevention order, pursuant to section 104 of the Sexual Offences Act 2003.  This prohibited him from entering any convenience area, toilet area, wash room area or changing room area in any place to which the public had access or in any place of employment, such areas being those which are designated as exclusively for the use by people of the female sex or for minors and people of the female sex.  Thus, under that order, there is of course no restriction on him using such areas which are set aside for the male sex.
3.	At the time of the offence the appellant was employed by a small firm engaged in the wholesale supply of plastic goods in Fleetwood, Lancashire.  He had worked there since 2005.  Three female members of staff were employed in the firm's administration office.  On 5th September 2006 the warehouse manager found a black box on top of the cistern in the men's lavatories which were adjacent to the ladies' lavatories.  He recognised it as a monitor that the appellant had previously shown him as part of a remote control camera which he said he had acquired in connection with his model boat hobby.  The manager noticed the monitor there on three further occasions between 5th and 15th September 2006.  He became suspicious and, on 14th September, he told the three female members of staff of his discovery and warned them to be vigilant.  
4.	The following morning one of the female members of staff noticed some grey tubing on the floor of the ladies' lavatory cubicle.  She returned there some time later, when she noticed that the tube had been moved and appeared to have something inside.  She alerted another female member of staff to her concerns.  The police were called.  The tubing in the ladies' lavatory was examined and was found to contain a pin hole camera capable of transmitting live images to the monitor in the adjacent men's lavatories.  The equipment was wireless controlled.  It had no facility for recording the images.
5.	The appellant was arrested.  His computer was seized and found to contain a number of pornographic images downloaded from the Internet, including one which featured a woman on a lavatory.  In interview, he accepted that the equipment found was his. He said that he had used it in connection with his model boat hobby.  At that stage he denied placing it in the ladies' lavatory to spy on his colleagues.
6.	There were two character references before the court, together with a pre‑sentence report. That report revealed that at the beginning of the interview with the author of the report and despite his guilty pleas, the appellant was at first continuing to deny the offence, claiming that he had been "set up" by his work colleagues.  He claimed that he had pleaded guilty only because he wanted closure.  Later in the interview, however, he admitted installing the camera in the lavatories and conceded that his motivation for doing so had been sexual.  He appeared to accept that he needed to address his behaviour.
7.	The appellant is married with two children.  Until the offence he was in regular employment.  He had no problem with alcohol or drugs.  His conviction had resulted in the loss of  his job.  He had taken up alternative work as a motorcycle instructor but would be unable to continue in that employment as a result of his conviction, with consequent financial difficulty for his family.
8.	The report observed that the offence demonstrated risk taking and a high degree of planning.  Nevertheless, the risk of repeat sexual offending and harm were assessed as low.  He was willing to undergo treatment to address his behaviour.  The report suggested that he was suitable for a community order with supervision and community sex offender programme requirements.  The author stated her concern that custody would have a negative impact on the appellant's family.  Even more significantly, however, a custodial sentence of less than 2 years would not allow time to implement the treatment that he required while in custody.
9.	In sentencing the appellant the judge observed that his behaviour has constituted a gross breach of trust which had disgusted and distressed his former female colleagues.  She said that she would give the appellant credit of 10 per cent for his late plea in the face of overwhelming evidence. She referred to the contents of the pre‑sentence report and the proposal for a community order.  However, she considered there had to be an element of deterrence.
10.	The judge identified the case as falling within the second category identified by the Sentencing Guidelines Council in their Definitive Guideline for the sentencing of sexual offences.  The aggravating features were the degree of trouble and care that the appellant had taken to set the camera up and the fact that the people he was spying on were his colleagues.  She concluded that the offence was so serious that neither a fine nor a community sentence could be justified and passed a sentence of 20 weeks' imprisonment.
11.	For the appellant, Mr Donnelly submits that the sentence was manifestly excessive.  He argues that the judge was wrong to treat the case as falling within the second category of voyeurism offences identified by the Sentencing Guidelines Council.  That category is said (at page 99) to comprise an "offence with aggravating factors such as recording sexual activity and showing it to others".  The sentencing range for a category 2 offence is 4 weeks to 18 months custody, with a starting point of 26 weeks.  Mr Donnelly points out that the appellant had not sought to record the images captured on camera or to show them to others.  It is factors such as those, he says, that would bring an offence within category 2. He contends that the appellant committed the "basic" offence equivalent to spying through a hole he had made in a changing room or lavatory wall for his own personal gratification alone.  Thus he says the offence fell within the Sentencing Guidelines Council's category 1, and should have been met by an appropriate non‑custodial order, namely a community order as proposed in the pre‑sentence report.  
12.	In addition, Mr Donnelly submits that the judge was wrong to suggest that there was a particular need for deterrence and in treating the offence as so serious that only immediate imprisonment could be justified.
13.	We consider that, in reality, the offence with which the appellant was charged did not fall neatly into either of the categories identified by the Sentencing Guidelines Council.  We agree with Mr Donnelly that it did not have the significantly aggravating factors of the recording and dissemination of images of a sexual nature and thus did not fall squarely within category 2.  However, it did have a number of features that, in our view, rendered it more serious than the "basic" offence envisaged as falling within category 1.  First of all, it was a continuing offence, not a single instance of spying.  Second, it involved the use of quite sophisticated technology, implying a high degree of planning and premeditation.  Third, as the judge rightly observed, the fact that the ladies who were the target of the appellant's activities were colleagues of his has understandably added to their distress at these offence and must be regarded as an aggravating factor.
14.	For these reasons, our view is that the case could best be regarded as falling at the lower end of the range of sentences applicable for category 2. That being so, we do not consider that the judge's conclusion that the offence was so serious that only immediate imprisonment could be justified was wrong in principle.
15.	Having regard to the appellant's previous good character, however, together with the nature of the offence and the personal mitigation available to him, we do regard the sentence of 20 weeks' imprisonment (the equivalent of 22 weeks after a trial) as excessive in all the circumstances.  
16.	The appellant has now served the equivalent of over 6 weeks in custody.  No doubt that has brought home to him the seriousness of the offence and the consequences that will follow if there is any repetition of such behaviour.  It may be that little is to be gained merely by substituting a different period in place of the sentence of 20 weeks' imprisonment.  The protection of the public and the rehabilitation of the appellant are likely to be better served by passing a sentence that would enable him to take advantage of the supervision and sex offender programme which would be available in conjunction with a community order.  Accordingly, we take the view that the proper course is to quash the sentence of imprisonment and to substitute for it a community rehabilitation order, with a requirement that he submit to supervision for a period of 3 years, and that he shall, in accordance with the instructions given by his responsible officer, participate for not more than 60 days in aggregate in a community sex offender programme and whilst there comply with instructions given by or under the authority of the person in charge of the programme.  
17.	To that extent the appeal is allowed.