APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Smith Lady Dorrian	[2013] HCJAC 121 XC311/13   OPINION OF THE COURT   delivered by LADY SMITH   in   APPEAL AGAINST SENTENCE   by   STEVEN MCARTHUR   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _____________

 

Appellant: Graham; Drummond Miller LLP, Edinburgh

Respondent: Rodger AD; Crown Agent

 

20 August 2013

 

[1] This is the appeal of Steven McArthur. He pled guilty on 19 March 2013 at a continued preliminary hearing to two charges. First, a charge of having on various occasions between 24 February 2001 and 14 May 2012 made indecent photographs or pseudo‑photographs of children and secondly, a charge of having on various occasions between 6 May 2009 and 14 May 2012 distributed or showed indecent photographs of children. These were offences under provisions of the Civic Government (Scotland) Act 1982, the first charge to which he pled being a contravention of section 51(1)(a) as amended and the second charge being a contravention of section 52(1)(b) as amended.

[2] The appellant was sentenced in respect of the first charge to a period of 3 years 2 months imprisonment discounted from a headline sentence of 3 years and 6 months. So far as the second charge was concerned he was sentenced to a period of 4 years 6 months discounted from a period of 5 years.

[3] The circumstances of these offences were, put briefly, that the appellant was found to have on his computer, in particular on an external hard drive, indecent images of children. The images were both still and moving images. He admitted to the police to having viewed these images from the age of 13 until the day before a search was carried out at his home address. He claimed it was an obsession which he had found impossible to give up. He confirmed that he knew his activities were illegal but said he saw no harm in his actions. He further claimed that he did not require counselling or rehabilitation as he saw no harm in what he had been doing. He had admitted using a gigatribe share network to share with others his sexual fantasies involving children.

[4] An extensive examination of his computer and external hard drive by police computer experts took place. What was found was that there were, on the appellant's hard drive, the indecent images set out in a table contained in the sentencing judge's report at page 4. We do not propose to set out the details of that table herein, suffice to note that what were identified were a total of 26,728 still images and a total of 594 moving images. A considerable number of these were at level 4 on the Copine Scale and 70 still and 14 moving images were at level 5 on the Copine Scale. The images were mainly of male children although there were also female children. The images had a range from babyhood to approximately 15 years. Examination showed the images were all available for sharing via the gigatribe file sharing software application. That application also allowed for instant messaging and chat groups and examination of the hard drive recovered chat logs during the period October 2011 and May 2012. The logs showed chats between the appellant and other users all of which indicated an interest in indecent images of children. The chats, as set out by the trial judge at page 5 to 6 of his report, disclose disgusting and perverted exchanges between the appellant and others.

[5] The sentencing judge explains at pages 10 and 11 of his report that it was clear in his view that there was a requirement in this case not only for a custodial element to the sentences but also for an extended sentence and he proceeded accordingly to impose the extended sentence explained in his report. He reached that view because of his assessment of all of the circumstances including the social work report that had been prepared for sentencing purposes. We would refer in particular to page 7 of that report where it is explained that the appellant was assessed as presenting a high risk of reoffending in particular because he had participated in the viewing and downloading of child pornography since the age of 13, that that behaviour had become entrenched and progressed to his engaging with other offenders and becoming involved in the distribution of such materials in order to engage friendships, because he minimised his offending, appeared to feign shallow displays of regret, showed little concern for the impact of his offending on victims and because he was at risk of emotional collapse as he was struggling to acknowledge the seriousness of his situation minimising his offending and the effects of that on victims, himself and the community. There was a concern that he may become further isolated.

[6] At page 8 of the social work report the author, in our view, correctly observes that whilst the appellant did not cause direct harm to a child or an individual he indirectly caused harm in that he carried out offences that perpetuate the demand for indecent images of abused children and the creation of child victims.

[7] We note further that, at page 8 to 9 of that report, the author not only recommends that the court impose an extended sentence but sets out what would be employed during any such period of extension.

[8] At page 11 of his report the trial judge explains his reasoning in reaching his view as to custodial elements of the sentence. He explains that he had regard to the case of Her Majesty's Advocate v Graham 2010 HCJAC 50 and to cases listed in paragraph 54 of Graham. His reason for selecting a headline sentence of 5 years in relation to charge 4 was in the light of the number and nature of the images found on the computer and because they had been made available to others over a 3 year period. He referred to the extracts from the chat log which gave, to his mind, a graphic insight not only into the appellant's attitude towards the images he held and distributed, but to his thinking on viewing them. He took account of the fact there was some positive aspects of his life, as set out in the social work report, but those were few and heavily outweighed by the negative. The remorse that was expressed was judged to be feigned and shallow. The appellant had no close or established relationships outwith his immediate family. He had little, if any, victim awareness. These were the reasons he adopted when reaching his decision on custodial sentence. So far as discount was concerned, he took account of the guidance in Graham.

[9] Before us today, Mr Graham submitted that the imposition of an extended sentence was excessive in this case. He submitted that there was no information before the court at first instance to satisfy the provisions of section 210A of the Criminal Procedure (Scotland) Act; it was not shown that such a sentence would meet any need to protect the public from serious harm. The mere fact that a person was at high risk of reoffending did not necessarily mean that the test was met. The intervention offered by a period of extended licence may be a deterrent to offending but that would not impact on risk. He accepted that for every single image there was a victim and he accepted that the only reason that the abuse took place is because there is a market for this material. However, the intervention offered by an extended sentence was not, he insisted, one which could intervene in relation to the risk of essentially disgusting abuse taking place elsewhere in the creation of such images. He observed that the appellant was not involved in the direct creation of the images or, in his submission, in inspiring others to view them. He had not taken such an active part. In these circumstances given that the appellant had played, essentially, a passive role the extended sentence was not appropriate.

[10] Secondly, he submitted that the headline sentence of 5 years was of itself excessive. He referred to the case of Her Majesty's Advocate v Graham in particular at paragraph 27 and the approval of the guidelines set out in England and Wales. The protracted period in this case established a pattern of collection of material from an age when the appellant was a pupil rather than a minor. The trial judge ought to have had regard to the guidelines referred in the case of Graham. It seemed to be suggested that he had failed to do so because he had taken a figure at the upper extreme of what could be identified as the appropriate guideline in that case. So far as discount was concerned Mr Graham submitted that he accepted that the trial judge had a discretion regarding utility but he needed to have regard to the entirety of the criminal justice process. It was not just a matter of saving witnesses from giving evidence. Utility also included such matters as enabling diets to be made available for other trials where the plea was tendered at a preliminary hearing.

[11] We have given careful consideration to all the submissions made. We are however entirely satisfied that this sentence in all its respects whether the custodial element, the extended element or the discount, was unimpeachable. It accords with the guidance in the case of Graham both in the respect of the length of custody and the discount. So far as the extended sentence matter is concerned, there was more than adequate material in the social work report alone to satisfy the sentencing judge that an extended sentence was required and, further, the judgment which he himself exercised when looking at all the factors in the case and deciding that section 210A applied cannot in our view be criticised.

[12] In all these circumstances this appeal is refused.

 

 

 

DAW