APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Wheatley Lord Reed	[2010] HCJAC 24 Appeal No: XC711/09 OPINION OF THE COURT delivered by LORD WHEATLEY in APPEAL AGAINST SENTENCE by DAVID SAMUEL BROWN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Moll; Barony Law Practice; Edinburgh

Respondent: Hughes AD; Crown Agent

5 February 2010

[1] The appellant pled guilty on 28 August 2009 at the High Court in Edinburgh to an indictment under section 76 of the Criminal Procedure (Scotland) Act 1995 which contained two charges under section 52 of the Civic Government (Scotland) Act 1982. The charges were in the following terms:-

"(1) between 10 April 2005 and 10 March 2007, both dates inclusive, at 38 Broomhill Road, Aberdeen, you David Samuel Brown did take or permit to be taken or make indecent photographs or pseudo-photographs of children; contrary to the Civic Government (Scotland) Act 1982, section 52(1)(a) as amended;

and

(2) between 29 January 2006 and 10 March 2007, both dates inclusive, at 38 Broomhill Road, Aberdeen, you David Samuel Brown did distribute or show indecent photographs or pseudo-photographs of children; contrary to the Civic Government (Scotland) Act 1982, section 52(1)(b) as amended"

[2] The sentencing judge imposed an extended sentence of 10 years, of which the custody part was 6 years. He explains in his report that he considered that, so far as the custodial part of the sentence was concerned, he had started with a figure of 9 years imprisonment, but reduced that by one third to a period of 6 years to take account of the early plea tendered by the appellant. He then added an extended sentence of 4 years.

[3] The agreed facts of the case can be summarised as follows. In January 2007, police in England arrested a male (not the appellant) on suspicion of serious sexual offences against children. At that time his computer equipment was seized and subsequent examination revealed that he was abusing a child to order and distributing images of that and other child abuse to persons using a variety of internet communication techniques. The computer equipment was subjected to forensic examination and this showed that the male arrested was communicating with persons through a number of internet based chat channels. During the course of these conversations he would direct them to a computer server under his control in which various indecent photographs and videos of children could be downloaded. Further examination showed that on 17 December 2006 a connection to this server was made from a specified internet address and that a particular file had been downloaded by the username "dyggid". This was later confirmed as a username employed by the appellant. Following further enquiry, Grampian Police obtained a search warrant in respect of a flat at 38 Broomhill Road, Aberdeen, occupied by the appellant.

[4] On 13 March 2007 police officers attended at the address and executed the search warrant. The appellant was found to be alone in the house. He was cautioned and advised of the circumstances and shown the search warrant. He agreed to attend voluntarily at the local police headquarters where he was interviewed by police officers. During this interview he admitted being in conversation with other unknown persons on internet chat rooms and to viewing and downloading a large number of indecent images and video clips of children of various age groups. He admitted saving and cataloguing these items onto his computer and allowing others to view and download them from his computer as well. He admitted that the children involved were in all of the age groups, the youngest being infants. He described the activities shown on the photographs and videos and indicated that he was known as "a good trader", allowing access to a substantial amount of indecent material relating to children and providing passwords to those who sought access. He confirmed that there were "extreme" images in his possession.

[5] His laptop and an external hard disk were recovered and examined by Grampian Police forensic computer analysts. They found that a total of 4,542 images of children were found. 759 of these were video films, and 3747 were photographs. Most of the indecent images featured girls between the age of 2 and 13 years of age. A particular feature of the case was the large number of images showing horrific abuse, which included penetrative activity, especially oral sex, between adults and children less than 5 years of age. Most of the video footage involved girls, particularly under the age of 10 years old, performing penetrative sexual activities with adult males, but there were also some images of boys. Of the photographs and video images, 2,463 were on level 1 of the Copine Scale, 193 at level 2, 502 at level 3, 1354 at level 4, and 30 at level 5. Many of the videos showing these extreme examples of sexual abuse demonstrated that the children involved were obviously in distress and pain. The sentencing judge noted that the specialist unit set up to investigate such cases in Grampian described the images as among the most disturbing recovered in the area. Further examination of the equipment demonstrated that the appellant had allowed a select number of users to download files of these indecent images and encouraged them to trade them in return. It is clear that the appellant initiated a large number of these exchanges.

[6] The appellant was detained in terms of section 14 of the Criminal Procedure (Scotland) Act 1995 in respect of these offences on 11 November 2008. He was again interviewed and denied accessing, downloading and distributing the indecent images but could provide no explanation as to how these images came to be on his computing equipment. It appears to be accepted however now that a realistic but conservative estimate for the total number of distributions over the periods in question was between 4800 and 9600 exchanges.

[7] Eventually the appellant signed a section 76 letter on 4 August 2009 and this was sent to the Crown the following day, although there had been informal discussions before that and as a consequence there was no need for the Crown to proceed to full precognition of the case. There was no explanation for the delay, nor has there ever been any suggestion of any kind of substantive defence that might have been offered by the appellant.

[8] In presenting this appeal, Mr Moll counsel for the appellant, made a number of succinct and well argued submissions directed at the starting point of 9 years imprisonment selected by the sentencing judge. He submitted that the figure was clearly excessive; it was close to the maximum sentence available - 10 years - and that a term of imprisonment at or near the maximum available should be reserved for the most serious cases. Such cases would be those where the accused was involved in the production of videos and images, and not, as here, where the appellant was only involved in distribution. Further, in the present case, the appellant had not received any financial gain for what he had done. The number of images and videos, although significant, was not of the much larger order commonly found in the investigation of this kind of offence; this could be seen from the psychological report prepared by Dr Macpherson. The classification of many of the images, which were concerned with oral sexual activities involving children, had been reclassified in July 2007 to a more serious level on the Copine Scale, and the appellant had obtained the images which featured in this case before this change took place. Finally, the appellant had little in the way of previous offending, apart from an elderly conviction for indecent assault which had not involved children, and a breach of the peace.

[9] We considered that there was some force in Mr Moll's submissions. However the various considerations which he urged in mitigation did require to be significantly qualified in some respects. While it is true that the appellant had not been involved in the production of the offending images and videos, he had been in direct contact with someone who had produced such images and videos to order. He was also thoroughly immersed in the distribution and exchange of these items, and informed the police when he was first seen that he was regarded in his world as a good trader. It is also true that he did not receive any monetary reward for his activities, but that does not mean in our view that he did not profit thereby. He was actively engaged, in a significant way, in trading, and encouraging others to trade, in all this material with other similarly minded persons. In that sense his activities can properly be characterised as commercial. Also, while it is true that in other cases many more videos and images were recovered, the number of the items recovered were of significance, and included material of the most distressing and abusive kind. The extent of his trading these images with others we consider also to be a relevant factor in this context. Nonetheless, we were persuaded that there was force in Mr Moll's fundamental submission that the maximum sentence, or one close to it, was not appropriate for someone who was in effect a first offender, and who was not directly engaged in the production of this material for profit. Standing the nature of these offences, and the degree of suffering demonstrated by some of the young children in the material reported to us, and having regard to the maximum sentence available, we concluded the appropriate sentence for this offence was one of 7 and a half years imprisonment.

[10] However, we also were driven to the conclusion that the amount of discount on the sentence given by the sentencing judge to the appellant was excessive. A discount of one third was applied, because the plea of guilty was tendered at a section 76 diet.

We note this plea was tendered at a time which avoided the need for the Crown to proceed to full precognition. However, what is abundantly clear is that in this case there was no conceivable defence, and there has never been any suggestion that there was. When first interviewed by the police on 13 March 2007, the appellant made full admissions covering the extent and nature of his involvement. The application of a discount for a plea of guilty cannot in our view be a purely mechanical exercise which has to happen in every case. We accept that the court should always be slow to conclude that a plea of guilty is practically inevitable (see Du Plooy v HM Advocate 2005 JC 1; 2003 SLT 1237; 2003 SCCR 640 para [21]; Horribine v Thomson [2008] HCJAC 21; 2008 SLT 503; 2008 SCCR 377 para [8]. But in the circumstances of the present case where the question of a substantive defence has never been suggested, and the evidence can properly be described as conclusive, we are of the view that a discount amounting to a full one third of the sentence, despite the early plea, was inappropriate.

[11] Further, while we accept that it is not appropriate to separate that part of his sentence which could properly be said to be directed at punishment from that part which is aimed at the protection of the public, and to discount only that part of the sentence which applies to the aspect of public protection, the court is entitled to reduce the amount of the discount awarded where, as here, the need to protect the public is a major point of the sentence. We refer to Lindsay v HM Advocate 2007 SCCR 377; and Jackson v HM Advocate [2008] HCJAC 37.

[12] The question which then arises is whether this court should then reduce the discount given by the sentencing judge, when there is no appeal by the Crown directed at the leniency of the sentence, and where the court cannot identify any error on the part of the trial judge (as in the case of Spence v HM Advocate [2007 HCJAC 64; 2007 SLT 1218; 2007 SCCR 592), which would allow us to approach the matter of sentence afresh, other than our criticism of the exercise of discretion on the part of the sentencing judge in applying the discount which he did. We have concluded that this is precisely what we should do. If a full discount of one third were to be applied to the sentence of 7 and a half years which we consider to be the appropriate starting point, the resulting period of imprisonment to be served by the appellant would be 5 years. In the circumstances this would amount to an inappropriate sentence being imposed. We are therefore of the opinion that the level of discount awarded to the appellant in these circumstances was wrong. We consider that we are entitled to take into account the terms of section 118(4)(b) of the Criminal Procedure (Scotland) Act 1995 which allows us to replace a sentence which we consider inappropriate. Section 118(4) provides in part:-

"The High Court may.....dispose of an appeal against sentence by.......

(b) if the Court thinks that, having regard to all the circumstances,......a different sentence should have been passed, quashing the sentence and passing another sentence whether more or less severe in substitution therefor."

Having regards to the terms of this section, the court has a responsibility to see that overall sentences which are inappropriate do not result from the exercise of the discount, where a reduction of that discount can properly be applied. We therefore propose to quash the sentence of 6 years imprisonment imposed by the trial judge, as a result of his application of a full one third discount to the 9 year sentence which he took as his starting point, and substitute instead a sentence of 7 and a half years, and apply a discount of 20% on that sentence. The effect of this exercise is that the custodial part of the sentence imposed upon the appellant remains the same. We are satisfied that to do otherwise would lead to an inappropriate result. We are confirmed in that view by other recent decisions in this court and by comparable sentencing practice in England; see R v Oliver [2003] 1 Cr App. R. 463 at para [52] per Rose L.J.; Current Sentencing Practice Vol 2 G8 6B04.

[13] Counsel for the appellant also argued that the extended period of 4 years applied by the trial judge was too long. It would mean in effect that the appellant was to be under supervision for a minimum period of 6 years and perhaps more. We agree that this is a lengthy period. However the circumstances here are unusual. After initially making what was in effect a full confession when first interviewed by the police in 2007, the appellant appears thereafter to have denied any knowledge or understanding of his crimes. Despite his plea of guilty, he refuses to take any responsibility for his actions and as a result has no empathy for his victims. That he is in denial is confirmed by the clinical psychologist's report prepared by Dr Macpherson, who considered that he was at a moderate risk of re-offending and that any rehabilitation will be frustrated by his refusal to accept responsibility for his actions. In these circumstances, it is clear that the appellant will remain at sufficient risk of re-offending on his release to justify a lengthy period of supervision. In these circumstances we do not think that the sentencing judge can be faulted in his selection of a 4 year extended sentence.

[14] In all the circumstances, the net effect of our conclusions is that this appeal falls to be refused.