Man jailed over possession of indecent images of children has sexual offences prevention order quashed
A man who was sentenced to two years and three months’ imprisonment after pleading guilty to taking, possessing and sharing indecent images of children has had an appeal against the custodial term imposed rejected.
However, the Appeal Court of the High Court of Justiciary quashed a Sexual Offences Prevention Order (SOPO) which was also imposed after ruling that it was “unnecessary”.
Sexual Offences Prevention Order
Lady Paton and Lord Turnbull heard that the appellant James Moore, 56, pled guilty to three charges contrary to sections 52(1)(a), 52A(1) and 52(1)(b) of the Civic Government (Scotland) Act 1982.
The court was told that there were more than 800 still and moving images, a large percentage of which were “category A”.
Many images had been deleted, but were recovered by specialist forensic techniques.
The sheriff at Ayr imposed a sentence of 27 months’ imprisonment, representing a starting point of 40 months discounted by one third to reflect the plea of guilty.
The sheriff also imposed a SOPO in terms of section 104 of the Sexual Offences Act 2003, which provides that a court may make such an order where it is satisfied that it is “necessary” to do so “for the purpose of protecting the public or any particular members of the public from serious sexual harm”.
The ten-year order contained four requirements: (1) that the appellant must not access the internet unless using a device that is capable of storing the internet search history and he is prohibited from deleting his search history on any internet capable devices; (2) that the appellant must not have installed on any device capable of accessing the internet, any software capable or designed to delete or disguise the internet search history; (3) that the appellant must allow officers from the Police Service of Scotland on request by them, access to any device used which is capable of accessing the internet to check the aforementioned conditions; and (4) that the appellant must not have unsupervised contact with any child under the age of 16 years unless supervised by someone aged 21 or over.
But the appellant appealed against sentence, arguing that the length of the custodial term was “excessive” and that the SOPO was “unnecessary” in the circumstances; and estoit was necessary, its length and requirements were “not justifiable”.
The court noted the appellant’s age, that he was a first offender with no previous convictions, and that he had “suffered considerably” as a result of his offending, having lost his home life, his employment and his standing in the community.
Further, counsel for the appellant drew attention to the fact that many of the images were deleted by the appellant after having been viewed, and images were recovered only by the use of specialist forensic techniques, while any sharing of the images had been “peer-to-peer” rather than peer-to-group.
However, the court rejected the challenge to the length of the custodial term.
The appeal judges accepted that there were mitigating factors and that in certain cases mitigating factors could outweigh any aggravating factors, resulting in an adjustment of the starting point, but this was not such a case.
Delivering the opinion of the court, Lady Paton said: “First, the period of time over which the appellant actively searched for images was substantial, about seven years; Secondly, the appellant not only possessed images but shared them with others; Thirdly, any subsequent deletion of the images by the appellant is not in our view a mitigating factor, as they had been viewed by him, and some were shared; Fourthly, there were 863 images in total, 799 still and 64 moving. A large percentage in each case was category A and in particular of the moving images, 46 out of 64 were category A (i.e. about two thirds)…
“In this case, therefore, we are not persuaded that the mitigating factors outweigh the aggravating factors, nor are we persuaded that the sheriff erred to any extent in selecting a starting point of 40 months. We accordingly refuse the appeal so far as directed at the length of custodial sentence.”
However, the judge held that the SOPO was not necessary to protect the public from serious sexual harm.
Lady Paton added: “The appellant will serve a period of imprisonment. We would expect there to be a rehabilitative component to his time in custody, including relevant programmes and courses. After a maximum period of 13 ½ months, he will be released on licence. The conditions of his licence will be specified by the parole board and are likely to include conditions very similar to conditions 1-3 of the SOPO. He will, therefore, be subject to monitoring and management during his period of licence. If there is any concern arising from his behaviour during that period, an application can be made to the sheriff for a SOPO.
“In this particular case, the criminal justice social work report makes a risk assessment using various tools. The resultant risk of sexual reoffending is categorised as ‘low’ to ‘moderate’ (the moderate level being at the lower end of the moderate range). It is noted that there was no indication that any escalation to contact offences was likely.
“Against that background, the issue in this case is whether the test of ‘necessity’ (as opposed to ‘usefulness’) has been met. We are not satisfied that the test has been met. Accordingly we shall quash the SOPO. The appeal is allowed to that extent.”
© Scottish Legal News Ltd 2020