APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lady Paton Lord Hardie	[2010] HCJAC 50 Appeal No:XC698/09 OPINION OF THE LORD JUSTICE CLERK IN CROWN APPEAL AGAINST SENTENCE by HER MAJESTY'S ADVOCATE Appellant; against DAVID WILLIAM GRAHAM Respondent: _______

For the Crown: Prentice, solicitor QC, AD; Crown Agent

For the respondent: Taylor, sol adv; MFY Partnership, Airdrie

27 May 2010

Introduction

[1] On 14 August 2009 at Glasgow High Court, the respondent pled guilty to a charge of lewd, indecent and libidinous conduct against boys; to two charges of grooming under section 1 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 Act, and to two charges under section 52 of the Civic Government (Scotland) Act 1982 (the 1982 Act). The latter charges were in the following terms:

"(9) between 4 August 2004 and 20 February 2009, both dates inclusive, at [the locus] you DAVID WILLIAM GRAHAM 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;

(10) between 1 January 2005 and 20 February 2009, both dates inclusive, at [the locus] you DAVID WILLIAM GRAHAM 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] On 30 September 2009 the sentencing judge imposed an extended sentence in terms of section 210A of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) of five years and nine months on the charge of lewd and libidinous practices. This sentence comprised a custodial term of nine months, discounted from 12 months, and an extension period of five years. He imposed a cumulo sentence of nine months' imprisonment, discounted from 12 months, for the two grooming offences, this sentence to run consecutively to the sentence imposed on the charge of lewd and libidinous practices.

[3] On charges (9) and (10) the sentencing judge also imposed a cumulo sentence of six months' imprisonment, discounted from nine months because of the plea of guilty, this sentence to run consecutively to the sentences imposed on the other charges. The Lord Advocate appeals against the sentence imposed on these charges on the ground that it is unduly lenient.

The facts

[4] The respondent is aged 22. In late 2008 Strathclyde Police became aware that he had subscribed to a website displaying indecent images of young boys. They seized items of computer equipment at his home. When interviewed under caution, the respondent admitted that he had been downloading indecent images of children since he was about 17.

[5] The respondent admitted to searching on the internet for indecent images of children; to paying by credit card for subscription-only websites; and to storing the images and categorising them under various headings on his computers. He said that his preference was for images of naked boys aged between five and 13. He admitted that he had downloaded images of acts of penetrative sexual abuse of young boys and of children younger than five, including babies, but said that he did not necessarily see all of the images that he downloaded. He said that he wished to maintain a collection of images that did not necessarily appeal to him so that he could trade them on the internet for images that did.

[6] 127,269 indecent images were recovered from the respondent's computers, 80,205 of which were unique. Of these, 79,011 were still images and 1,194 were moving image files.

[7] In his Report the sentencing judge has followed the approach taken by the Crown at the sentencing diet in categorising the images by reference to their rating on the COPINE scale. I shall discuss this later. For the moment I mention that the sentencing judge describes the COPINE scale as categorising offences of this nature in five levels of ascending severity. His categorisation of the images using this measure is as follows: 56,897 images at level 1; 4,293 images at level 2; 8,162 images at level 3; 9,218 images at level 4, and 1,635 images at level 5.

The sentencing judge's reasons

[8] The sentencing judge had a social enquiry report, a report from the Clyde Quay Project, a social work services project for the help of sex offenders, and two reports from a forensic clinical psychologist instructed on behalf of the respondent. The reports suggest that the respondent is of average intelligence, but is immature; that he has an inappropriate sexual interest in young children, particularly boys; that although strategies may be available to help him, his interest is likely to remain, and that he represents a significant risk to children. The reports recommend that he should be subject to supervision in terms of an appropriately structured regime.

[9] The sentencing judge says that he understood Ogilvie v HM Adv (2002 JC 74) to be the guideline judgment on sentencing for contraventions of section 52 of the 1982 Act and was unaware of the decision in McGaffney v HM Adv (2004 SCCR 384) in which this court held inter alia that distribution of indecent images by exchange or barter is more serious than downloading for personal use. He says that if he had had that decision in mind, and had focused on questions of retribution and deterrence, he might well have imposed a significantly longer sentence on these charges. He explains why he imposed the sentences appealed against as follows:

"In imposing what I would accept was a modest additional custodial period in respect of charges (9) and (10) I was attempting to produce a composite sentence which achieved my objectives while remaining proportionate because I saw there to be significant mitigating factors which had to be had regard to. The respondent was relatively young, certainly immature, and a first offender. It is commonplace for it to be suggested that an offender is remorseful. Here that case was very powerfully and convincingly made under reference to the co-operation the respondent had given the police; his expressions of self-disgust, both reported and expressed directly in his and his parents' letters; and his early plea. I gave him credit for that plea in allowing a discount of a third in the custodial elements of his sentence but in my opinion it remained relevant to have regard to that remorse and the associated willingness to co-operate with interventions which may minimise the risk of re-offending. It seemed to me at least possible that an overly punitive sentence might have an adverse impact on the prospects for risk minimization."

Submissions for the Crown

[10] The advocate depute contended that the cumulo sentence of six months' imprisonment imposed on charges (9) and (10) failed adequately to reflect the seriousness of the offences, given the quantity and nature of the images. A sentence of this length was within summary limits. The sentencing judge had failed to take into account that users such as the respondent maintained the market for material of this kind. The sentence failed to have a sufficient deterrent effect. Punishment and the protection of the public, and particularly of young children, required that there should be a substantial custodial sentence.

[11] The advocate depute invited us to issue guidance in terms of section 118(7) of the 1995 Act on the sentences that are appropriate for offences under section 52 of the 1982 Act. In particular, he invited us to adopt the sentencing guidelines followed in England and Wales under the Sentencing Guidelines Council's Definitive Guideline on the Sexual Offences Act 2003. He also invited us to give general guidance on the question whether it was necessary for a sentencer to view all or a sample of the productions in every case.

Submissions for the respondent

[12] The solicitor advocate for the respondent accepted that, looked at in isolation, the sentence appealed against might at first sight appear to be unduly lenient. The question, however, was whether the disposal in relation to all charges taken together was to be regarded as unduly lenient. The sentencing judge had been fully aware of the facts. In looking at the respondent's conduct as a whole, he had sought to impose a carefully structured sentence that took account of all relevant factors. The five years extension period imposed for the lewd and libidinous practices charge applied across the board. The sentence appealed against was inextricably bound up with those imposed on the other charges. Charges (9) and (10) were serious, but if the appeal succeeded it would have the incongruous result that a longer custodial sentence would be imposed on these charges than on the contact offences of lewd and libidinous practices and grooming. The respondent had served the custodial term of his sentence and had been released on strict licence conditions. He was young. He fully accepted his guilt and was genuinely remorseful. We should not interfere with the sentencing judge's decision (HM Adv v Bell 1995 SCCR 244).

[13] On the wider questions of sentencing policy the solicitor advocate for the respondent accepted that commercial distribution of indecent images was an aggravating factor but he pointed out that there is an apparent conflict between McGaffney v HM Adv (supra) and Brown v HM Adv ([2010] HCJAC 24) as to what constitutes commercial distribution. He suggested that it would be unnecessary for the sentencer to view the material if the Crown provided an agreed description of it or if the sentencer had experience of such cases.

The statutory provisions and previous judicial guidance

[14] Sections 52 and 52A of the Civic Government (Scotland) Act 1982 (as amended) (the 1982 Act) provide, inter alia, as follows:

"52 - Indecent photographs etc. of children

(1) Any person who-

(a) takes, or permits to be taken, or makes any indecent photograph or pseudophotograph of a child;

(b) distributes or shows such an indecent photograph or pseudo-photograph;

(c) has in his possession such an indecent photograph or pseudo-photograph with a view to its being distributed or shown by himself or others: or

(d) publishes or causes to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such an indecent photograph or pseudo-photograph, or intends to do so

shall be guilty of an offence under this section.

(2) In subsection (1) above 'child' means ... a person under the age of 18 ...

(3) A person guilty of an offence under this section shall be liable ...

(b) on conviction on indictment, to imprisonment for a period not exceeding 10 years or to a fine or to both ...

52A - Possession of indecent photographs of children

(1) It is an offence for a person to have any indecent photograph or pseudophotograph of a child in his possession ...

(3) A person shall be liable ...

(b) on conviction on indictment of such an offence to imprisonment for a period not exceeding 5 years or to a fine or to both."

[15] In Ogilvie v HM Adv (supra) this court held that it would be in only the most exceptional cases that a sentence in excess of nine to 12 months would be imposed for an offence of downloading a pre-existing image without any distribution. Sentences up to the statutory maximum, which at that time was three years' imprisonment, would be imposed where there was a contested case, evidence of commercial or large scale exploitation and a significant amount of material. Non-custodial disposals would normally be reserved for isolated offences where the amount of material was small and was intended for personal use or for use within a restricted circle, where there was no commercial element and where the accused had pled guilty and was a first offender. At what point between these extremes a particular case fell would depend on the circumstances, such as the quality, quantity and nature of the material, whether there was any element of exploitation or commercial gain, and the character of the accused (ibid, at para [7]).

[16] Soon after Ogilvie v HM Adv (supra) the Criminal Justice (Scotland) Act 2003 increased the maximum sentence for a contravention of section 52(1) of the 1982 Act from three to ten years (s 19(1)(a)) and made it competent for the offence of possession of indecent images to be prosecuted on indictment (s 19(1)(b)). Thereafter, in McGaffney v HM Adv (supra) this court held, inter alia, that the downloading of moving images is more serious than the downloading of still images; that the distribution of such images by exchange or barter is more serious than downloading for personal use; and that distribution for financial gain is more serious still (ibid, at paras [8]-[9]).

The development of sentencing guidelines in England and Wales

The COPINE Scale

[17] COPINE (Combating Paedophile Information Networks in Europe) is a European Union funded research programme carried out at University College, Cork. Members of the project are academics, but research has developed in collaboration with law enforcement agencies and other professions and disciplines. One of the purposes of the COPINE scale was to help law enforcement agencies to categorise indecent images. It was a descriptive classification comprising ten levels. It was not intended to be a scale of severity (Sentencing Advisory Panel, Advice to the Court of Appeal on Offences Involving Child Pornography, 15 Aug 2002, para 20; Taylor, Holland and Quayle (2001) Typology of Paedophile Picture Collections, The Police Journal (vol 74) 97, at p 98; Gillespie Tackling Child Pornography: The Approach in England and Wales, in Quayle and Taylor (eds) Viewing Child Pornography on the Internet, at p 4). Images at levels 2 and 3 of the COPINE scale are not of themselves pornographic (R v Oliver and Ors [2003] 2 Cr App R (S) 15, at para [10]).

The Oliver guidance

[18] In R v Wild (No 1) ([2002] 1 Cr App R (S) 37) the Court of Appeal asked the Sentencing Advisory Panel to draw up guidelines on offences involving child pornography under provisions corresponding with those of the 1982 Act. The Panel's advice was substantially adopted by the Court of Appeal in the guideline judgment in R v Oliver and Ors (supra).

The Definitive Guideline

[19] The guidance set out in R v Oliver (supra) was reviewed and amended by the Definitive Guideline on the Sexual Offences Act 2003 (the Definitive Guideline) issued by the Sentencing Guidelines Council (the Council) on 30 April 2007. In the Definitive Guideline, the Council amended the Oliver classification of offences in terms of the nature of the images at each level. The key change from the Oliver classification relates to images depicting penetrative sexual activity. Images of such activity between children were placed at level 2 on the Oliver guidelines and were treated as being less serious than images depicting non-penetrative sexual activity between adults and children, which were at level 3. Under the Definitive Guideline (infra) images depicting penetrative sexual activity involving a child or children, or both children and adults, are now placed at level 4 (cf Rook and Ward, Sexual Offences, Law and Practice, 3rd ed, 1st Supp, at pp 127-128). I shall refer to this as the Definitive Guideline, although I understand that in the English courts it is referred to informally as the Oliver scale.

[20] This court has referred to the original Oliver scale in some recent decisions (eg Hughes v HM Adv [2007] HCJAC 43; Barron v HM Adv 2007 SCCR 335); and it seems that on occasions there has been confusion between the Definitive Guideline and the COPINE scale (eg Brown v HM Adv, supra, at paras [5] and [8]). In Lawson v HM Adv (unrepd, 20 July 2006), there appears from the sheriff's report to have been a misunderstanding on the part of the procurator fiscal regarding the number and significance of the levels in the Oliver scale.

The use of sentencing guidelines

[21] The essence of sentencing guidelines in England and Wales is to provide ranges of sentence for different levels of seriousness and, within each range, to indicate a common starting point. Guidelines provide a structure for, but do not remove, judicial discretion. They are a framework within which the court can categorise the offence in question; reflect the facts of the case, including the aggravating and mitigating factors, and place it appropriately within the relevant range or, if the circumstances should require, outside it (cf Ashworth, Sentencing and Criminal Justice, 5th ed, pp 27-28).

[22] This approach should not be applied too rigidly. Guidelines should not lead to a mechanistic approach. They do not purport to identify the correct sentence. The responsibility for fixing the sentence in every case rests on the sentencer alone (HM Adv v McKenzie 1990 JC 62). Sentencing therefore should always involve the sentencer's judgment and discretion, which he must in every case exercise by making due allowance for the particular circumstances of the case (HM Adv v Boyle 2010 SCCR 103). The English decisions are to the same effect (R v Millberry and Ors [2003] 2 Cr App R (S) 31, Lord Woolf of Barnes CJ at para [34]; R v Peters and Ors [2005] 2 Cr App R (S) 101, Judge LJ (as he then was) at para [3]; cf R v Lewis [2008] EWCA Crim 2519, Owen J at para [5]; R v Oosthuizen [2006] 1 Cr App R (S) 73, Rose LJ at p 391; AG's References Nos 14 and 15 of 2006 [2007] 1 Cr App R (S) 40, at para [52]). As Rose LJ put the point in Oliver (supra, at para [13]), guidelines are intended to help sentencers. They are not a straitjacket from which they cannot escape.

Reference to English guidelines

[23] Although the legislation governing the making and distribution of indecent images of children is contained in different statutes in Scotland (the 1982 Act) and in England and Wales (Protection of Children Act 1978; Criminal Justice Act 1988), it strikes at the same conduct.

[24] In Roulston v HM Adv (2006 JC 1) I said that it was helpful, particularly in offences under United Kingdom legislation, to look at the guidelines applied by the English courts and to consider, to the extent that they are relevant, the specific factors on which those guidelines are based; but that in doing so, the court should not lose sight of its overall duty to assess the sentence that in all the circumstances of the case most justly reflects the culpability of the accused and the mitigating factors, if any, that are found to exist (ibid, at para [17]).

[25] In my opinion, the Definitive Guideline (pp 109-114) is helpful to us in deciding this appeal. I will rehearse it so far as it is relevant to Scottish law and practice.

The Definitive Guideline

Classification

[26] The Definitive Guideline sets out the following levels of offences. These are levels of severity.

[27] The Definitive Guideline classifies indecent images on the following scale.

Level 1 - Images depicting erotic posing with no sexual activity.

Level 2 - Non-penetrative sexual activity between children, or solo masturbation by a child.

Level 3 - Non-penetrative sexual activity between adults and children.

Level 4 - Penetrative sexual activity involving a child or children, or both children and adults.

Level 5 - Sadism or penetration of, or by, an animal.

The guidance is as follows:

(a) Where an offender has (i) commissioned or encouraged the production of level 4 or 5 images, or (ii) has been involved in the production of level 4 or 5 images, the starting point should be six years' imprisonment. Sentences in the range of four to nine years' imprisonment will generally be appropriate.

(b) Where an offender has shown or distributed images at levels 4 or 5, the starting point should be three years' imprisonment. Sentences in the range of two to five years' imprisonment will generally be appropriate.

(c) Where an offender has been involved in the production of, or has traded in, material at levels 1 to 3, the starting point should be two years' imprisonment. Sentences in the range of one to four years' imprisonment will generally be appropriate.

(d) Where an offender (i) possesses a large amount of level 4 or 5 material for his personal use only, or (ii) has shown or distributed a large number of level 3 images, the starting point should be 12 months' imprisonment. Sentences in the range of 26 weeks to two years' imprisonment will generally be appropriate.

(e) Where an offender (i) possesses a large amount of level 3 material for personal use; (ii) possesses a small number of images at levels 4 or 5; (iii) shows or distributes a large number of level 2 images; or (iv) shows or distributes a small number of level 3 images, the starting point should be 26 weeks' imprisonment. Sentences in the range of one month to 18 months' imprisonment will generally be appropriate.

(f) Where an offender (i) possesses a large amount of material at level 2 or a small amount of material at level 3; (ii) shows or distributes material at level 1 or 2 on a limited scale; or (iii) exchanges images at levels 1 or 2 with others, but with no element of financial gain, the starting point should be three months' imprisonment. Sentences in the range of one month to 26 weeks imprisonment will generally be appropriate.

(g) Where an offender possesses a large amount of level 1 material and/or no more than a small amount of material at level 2, and the material is for personal use and has not been distributed or shown to others, the starting point should be a community service order, although probation or a fine may be appropriate.

The approach to sentencing in cases of this kind

The process of child sexual abuse

[28] Viewing, downloading and distributing indecent images of children is part of the process of child sexual abuse. Each photograph represents the serious abuse of the child depicted. Those who access this material through the internet bear responsibility for the abuse by creating a demand for the material (Jordan v HM Adv 2008 JC 345; Ogilvie v HM Adv, supra, at para [6]). Such offences can properly be said to contribute to the pain, discomfort and fear suffered by children who are physically abused, and to the psychological harm that the children concerned would suffer from knowing that others would get perverted pleasure from looking at the material (R. v Beaney [2004] 2 Cr App R (S) 82, at para [9]).

The use of the Definitive Guideline

[29] In my opinion, the Definitive Guideline should be used in all cases for as long as it remains the pre-eminent classification of these offences in the United Kingdom. That is the established practice in England (eg R v T [2009] EWCA Crim 2522; R v Barber [2009] EWCA Crim 774; R v Bloomfield
[2007] EWCA Crim 3394; R v Phillips [2007] EWCA Crim 983). Furthermore, in my opinion, the Crown narrative in all prosecutions under sections 52 and 52A of the 1982 Act should contain an analysis of the material in accordance with the Definitive Guideline (cf Hughes, supra, at para [3]). It follows that in sentencing for offences of this kind, reference to the COPINE scale is no longer appropriate.

The number and types of the images

[30] In R v Oliver (supra) the Court of Appeal referred to "small" and "large" quantities of images but did not define those terms. The court said that it was impossible to be precise as to numbers and that sentencers should make their own assessment on the point (ibid, at para [20]; cf R v Hardy [2005] EWCA Crim 1636, at para [7]; R v Senior [2003] EWCA Crim 3331, at para [11]). The Court of Appeal has not, I think, taken a consistent line on this point (cf R v Fillary [2003] EWCA Crim 2682; R v Brooks [2004] EWCA Crim 579; R v Edwards [2005] EWCA Crim 402; R v Feuer [2005] EWCA Crim 2415).

[31] This court has described a quantity of 6,600 images as "very substantial" (McGaffney v HM Adv, supra, at para [8]). In Quinn v HM Adv (unrepd, 13 November 2009), a quantity of 638 images was described as being a "low number." In Robinson v HM Adv (unrepd, 3 November 2005) a quantity of 152 images was said to be a relatively small number of images by comparison with other cases (at para [5]). In HM Adv v Peebles (unrepd, 7 August 2007), a Crown appeal against sentence, the court observed that 171 images was quite a small number by comparison with many other cases (at para [8]).

[32] The number of indecent images downloaded by offenders reflects the ease with which they can access such material through the internet. Research by the COPINE project has shown that offenders can soon amass collections of considerable size. It is not unusual for offenders to have more than 40,000 images. The reported Scottish decisions relate to collections numbered in thousands (Brown v HM Adv, supra; McGaffney v HM Adv, supra) and tens of thousands (Ogilvie v HM Adv, supra). In R v Tatam ([2005] 1 Cr App R (S) 57) the number was almost half a million. In my opinion, what is a small or large quantity of material must be, to an extent, a matter of judgment in each particular case; but a general benchmark would be useful. Having reviewed the cases and the literature on the subject, I consider that an offender who takes, distributes or possesses a quantity of indecent images numbered in low hundreds can properly be said to have accessed a small number of images. Quantities of images numbered in high hundreds or in thousands can properly be said to be large.

Moving images

[33] A question arises as to sentencing policy in relation to moving images such as video files. In McGaffney v HM Adv (supra) this court held, inter alia, that the sentencing sheriff was entitled to regard the downloading of moving images as more serious per se than the downloading of still images (para [8]). In my view, that proposition is too rigid. Whether a video clip is worse than a still image will depend in every case on its length, on what it depicts and how it depicts it. In short, each case should be judged on its facts (R v Handley [2009] EWCA Crim 1827). In counting the quantity of material downloaded, it is not realistic, in my view, to treat a moving image as if it were equivalent to a multiplicity of stills: nor is it realistic to treat each moving image as if it were equivalent to one still. The sensible approach is simply to make an allowance for the fact that a moving image may be more vivid and corrupting than a still and to make this allowance without attempting any detailed arithmetical computation (R v Somerset, [2006] EWCA Crim 2469, at paras [10] and [13]). While each case will turn on its own facts, the primary factors to which sentencers must have regard remain the nature of the indecent activity depicted in the images and the extent of the offender's involvement with it. I think that we can give nothing more definite than that by way of guidance on the point.

What constitutes commercial distribution of indecent images?

[34] The solicitor advocate for the respondent referred to an apparent inconsistency between McGaffney v HM Adv (supra) and Brown v HM Adv (supra) as to the meaning of commercial distribution. In McGaffney, this court held that commercial distribution, in the sense of distribution for financial gain, was more serious than distribution by exchange or barter (ibid, at para [9]). In Brown v HM Adv (supra) however, this court took the view that where the appellant was thoroughly immersed in the distribution and exchange of the offending material, although not for financial reward, it could not be said that he did not profit thereby. He was actively engaged, in a significant way, in trading, and encouraging others to trade, with similarly minded persons. In that sense his activities could properly be characterised as commercial (ibid, at para [9]).

[35] Although indecent images of children are commercially available through certain websites, most child pornography is traded through internet chat rooms, news groups and bulletin boards (cf Barron v HM Advocate, supra at paragraph [3]). In Attorney-General's Reference (No. 89 of 2004) ([2004] EWCA Crim 3222) it was suggested that internet bulletin boards are "the life blood of the paedophile community" (Kennedy LJ at para [3]). It appears that little commercial exchange of child pornography, in the sense referred to in McGaffney, takes place through these channels. The COPINE researchers report that most material can be obtained by offenders without any financial outlay. Offenders often trade images and allow other offenders access to the material in their possession (Taylor and Quayle, Child Pornography - An Internet Crime, at pp 159-160). In the appeal against conviction in Peebles v HM Adv (2007 JC 93), this court held that on the extended concept of distribution in section 52(4) of the 1982 Act, a person who held an indecent computer image in a shared computer folder "with a view to its being distributed or shown" and therefore committed an offence under section 52(1)(c), committed the further offence of distributing it, under s 52(1)(b), when another person accessed it. In Peebles (supra, at para [6]) and in R v Maunder ([2007] EWCA Crim 1254); R v Dooley, ([2006] 1 Cr App R 21) and R v Feather ([2003] EWCA Crim 3433) the images were distributed through file sharing software.

[36] The Internet Watch Foundation (IWF), a European Union funded body that tracks illegal online content, reports that in 2003 - 2008 fewer than 1 per cent of internet sites depicting child sexual abuse appear to have been hosted in the United Kingdom (IWF 2008 Annual Report, p 7). This material proliferates through file sharing, trading and exchange.

[37] Each case will turn on its facts; but, in general, to distribute indecent images on a large scale, by exchanging them or placing them on shared computer folders should, in my view, be equiparated with commercial distribution. Although such offenders do not necessarily benefit financially, they benefit by having the opportunity to access similar material.

[38] I therefore agree with the conclusion of the court in Brown (supra). In my view the suggestion to the contrary in McGaffney (supra) should be disapproved.

Aggravating factors

[39] Pseudo-images should generally be treated as less serious than real images; but they can be just as serious as real photographs; for example, where the imagery is particularly grotesque and beyond the scope of normal photography. Showing or distributing indecent images or pseudo-images, even on a small scale, is to be regarded as a serious offence. Wide-scale distribution of it is in the most serious category of such behaviour.

[40] I agree with the view expressed in the Definitive Guideline that the following are to be regarded as additional aggravating factors in all cases:

where the images are shown or distributed to others, especially children;

where the offender's collection is systematically stored or organised, indicating a sophisticated approach to trading or a high level of personal interest;

where the images are stored, made available or distributed in such a way that they can be inadvertently accessed by others; and financial or other gain.

I agree too that in cases of contact abuse where the offender takes or makes an indecent image of a child contrary to section 52(1) of the 1982 Act, the following are to be regarded as additional aggravating factors:

the use of drugs, alcohol or other substance to facilitate the offence;

a background of intimidation or coercion;

threats to prevent the complainer reporting the activity; and

threats to disclose the complainer's activity to friends or relatives.

In all cases the sentencer should have regard to the period of downloading and distribution that is libelled.

Mitigating factors

[41] I agree with the Definitive Guideline that the following should be regarded as mitigating factors:

where a few images are held solely for personal use;

where the images have been viewed online but not stored; and

where a few images are held solely for personal use and it is established both that the subject of the image is aged 16 or 17 and that he or she was consenting.

[42] In cases of this kind the good character or background of the accused is often relied on in mitigation. In my opinion, while the good character of the accused is not entirely irrelevant (eg McGaffney v HM Adv, supra, at para [10]), a sentencer is not obliged to attach much weight to it (cf Hendry v HM Adv, 6 June 2007, unrepd). The same view is taken in England and Wales (cf Oliver, supra, at para [21]).

The fact that an offender has come from a stable family is a relevant consideration; but it may be double-edged. An offender who has had such good fortune may be regarded as being more reprehensible than one who, for example, has suffered an abused or deprived childhood (HM Adv v Clark
[2010] HCJAC 4, at para [11]).

[43] Conversely, where the offender's own background has been disturbed, that cannot, in my view, be a powerful consideration in mitigation. I repeat what I said in HM Adv v Millbank (2002 SCCR 771), a case involving charges of lewd and libidinous practices and the taking of indecent photographs of children.

"The sentencing judge took into account mitigating factors relating to the respondent's own misfortunes in life. Such factors should not be overlooked; but in a case such as this, the predominant considerations must be the nature and effects of the offences and the need to impose a sentence that will mark the court's view of the gravity of the case (para [28])."

Sentence discounts

[44] We have a responsibility to see that the exercise of the sentence discount does not result in there being overall sentences that are inappropriate (Brown v HM Adv, supra, at para [12]; cf Du Plooy v HM Adv 2005 JC 1, at paras [7] and [26]).

[45] In cases of this kind, the Crown will seldom be able to lead evidence from the children concerned. An increasing amount of material originates in Asia, Russia and Eastern Europe (cf Taylor and Quayle, op cit, at pp 45-46). There will usually be no question of saving vulnerable witnesses from the ordeal of giving evidence (cf Kay v HM Adv [2005] HCJAC 48, at para [4]). Therefore an early plea of guilty will not normally have all the merits that would attract a discount of one third (McGaffney v HM Adv (supra at para [11]). In Brown v HM Adv, where the sentencing judge allowed a discount of one third following a plea of guilty, the court recognised that where there was no conceivable defence, and where none had ever been suggested, and where the appellant had made full admissions at the outset, a discount of one third of the sentence, despite the early plea, was inappropriate (ibid, at para [10]). I agree entirely.

[46] In Spence v HM Adv (2008 JC 174), the guidance provided by this court as to appropriate levels of discount (at para [14]) is identical to that suggested in the Definitive Guideline on Reduction in Sentence for a Guilty Plea (2007) (at pp 5-6). In my view, the guidance given on the point in Spence v HM Adv (supra) is sound.

Section 197 of the 1995 Act

[47] Since I understand that your Lordship and your Ladyship agree with this Opinion, our decision will be one to which sentencers should have regard, subject always to the exercise of their own judicial discretion in the circumstances of the case (1995 Act, s 197).

Viewing the images before sentence

[48] The advocate depute observed that in cases of this nature, there appears to be an inconsistent approach by sentencers to viewing the images libelled before passing sentence. He suggested that a full understanding of the nature of the images in these cases is best obtained by the sentencer's viewing a selection of images before imposing sentence. He suggested that we should give guidance as to whether sentencers should view the offending material (R v Oliver, supra) or a sample of it (R v Thompson [2005] 1 Cr App R (S) 1).

[49] In giving the opinion of the court in HM Adv v Millbank (supra), I said that every sentencing judge has a discretion whether or not to look at individual productions. He may think it useful to do so if it would give him a better understanding of the nature of the offences and of their degree of gravity. On the other hand, he may conclude that the specification of the offences in the indictment, amplified by the Crown narrative, is sufficient for his purpose (ibid, para [17]). We drew this decision to the attention of the advocate depute.

[50] Rook and Ward (op cit at p 129) suggest that, although it may be distressing, judges should view a good sample of the material before them so that they can form their own impression of its seriousness and of the accused's proclivities. In Scotland, however, following Millbank, sentencers retain a discretion whether or not to view the material or a representative sample. The Crown's recent practice of making available an agreed sample of the images is helpful. In cases with a high volume of images, the Crown has in the past invited the court to pronounce sentence on the basis of a categorisation of an agreed sample of images. A sentencer who has not dealt with cases of this kind may find it useful to view such a sample. The decision in every case must lie with the individual sentencer. My own view is that if the sentencer thinks it appropriate to view all or a sample of the images, he should be conscious of the ever-present danger of passing sentence when his emotions have been raised by what he has seen.

Decision in this appeal

[51] The test in this appeal is whether the sentence was unduly lenient; that is to say, whether it is outwith the range of sentences that the sentencer, applying his mind to all relevant factors, could reasonably have imposed (HM Adv v Bell, supra, at p 250). In my opinion, it is.

[52] The respondent downloaded over 79,000 still images of child sexual abuse and almost 1,200 moving images over a period of four and a half years. He distributed the images over a period of four years. The images ranged across the entire Oliver scale, many thousands of them being at levels 4 and 5. The respondent's methodical approach to trading and exchanging them was to store them under specific subject headings. The material is vile. I shall not describe it. The respondent's claim that he downloaded and stored it in order to trade with others does not reduce the gravity of the offence. If anything, it increases it (cf McGaffney v HM Adv 2004 SCCR 384, at para [9]).

[53] The sentence was unduly lenient. We must therefore consider the sentence afresh. The respondent is a first offender. He co-operated with the investigating authorities and expressed remorse. However, for the reasons that I have given, I consider that the requirements of punishment, denunciation and general deterrence are paramount in a case of this nature.

[54] In addition to the English sentencing guidelines to which I have referred, two recent decisions of this court (Brown v HM Adv, supra; Jordan v HM Adv, supra) give further guidance. In Brown, a first offender pled guilty to making indecent photographs for two years by downloading from the internet and to distributing indecent photographs for 13 and a half months. He had 4,542 images across the whole Oliver scale. This court imposed a sentence of six years' imprisonment, discounted from seven and a half years, with an extension period of four years. In Jordan v HM Adv (supra), the appellant pled guilty to a single charge of making indecent photographs of children by downloading over 8,000 indecent images. He had previous convictions for sex offences. This court imposed an extended sentence of 10 years, being a custodial term of four years and eight months, discounted from a starting point of seven years, and an extension period of five years and four months.

[55] This appeal demonstrates how too rigid an adherence to guidelines can distort the sentencing exercise and produce an unjust result. If one looked no further than the Definitive Guideline (supra), a sentence in the range of two to five years' imprisonment would seem appropriate. The sentence must, however, reflect the culpability of the respondent. Having regard to the number and nature of the images; the period of time involved; his sophisticated approach to the classification, storage and trading of the material, and to the decisions of this court in Brown (supra) and Jordan (supra), with which I agree, I consider that a cumulo sentence of seven years' imprisonment should be the starting point on the charges with which we are concerned.

[56] The sentencing judge found that the respondent was remorseful and that he cooperated with the authorities (Report, p 21). Nonetheless, the evidence was conclusive; there was no question of there being a substantive defence, or of sparing vulnerable witnesses or complainers from the ordeal of giving evidence. In these circumstances, the discount of one third is plainly excessive. The respondent could have pled at the outset by procedure under section 76 of the 1995 Act. Instead he delayed the plea until there was a continued preliminary hearing. The sentencing judge says that that delay was referable to a concern on the part of the defence that the respondent fully understood the implications of his admissions of guilt. There is no suggestion that the respondent is disadvantaged by, for example, learning difficulties (cf Peebles v HM Adv, 2007 JC 93). On the contrary, he has shown considerable expertise in the commission of these offences. So the delay in tendering the plea must be reflected in the amount of the discount that this court can properly allow (cf my observations in HM Adv v Thomson 2006 SCCR 265, at para [27]).

[57] In Spence v HM Adv (supra, at para [14]), the court took the view that a clear indication of an intention to plead guilty at the first calling of a case at a preliminary hearing might attract a discount in the order of a quarter. Thereafter, any discount can be expected to reduce further. I agree with that approach.

[58] In the whole circumstances, I consider that the discount in this case should be restricted to one tenth.

Disposal

[59] I propose to your Ladyship and your Lordship that we should allow the appeal, quash the sentence imposed on charges (9) and (10) and substitute a sentence of six years and four months' imprisonment. I propose that this sentence, like the sentence appealed against, should run consecutively to the periods of imprisonment imposed on the other charges.

Postscript

[60] We widened the scope of this appeal in light of the Crown's request that we should provide guidance on these matters in terms of section 118(7) of the 1995 Act. I agree entirely with the view that judicial guidance on sentencing in offences of this kind is now opportune. I greatly regret that the Crown failed to give us submissions appropriate to that purpose. The written case and argument for the Crown failed to refer to the decision of this court in Millbank (supra). It became apparent at the hearing that it had been overlooked. The submission for the Crown proceeded on an incomplete understanding of the COPINE and Oliver scales. The submissions on the relative seriousness of still and moving indecent images were not supported by reference to the approach of the Court of Appeal. On the issue of what should constitute commercial distribution, there was no submission on the conflict between the decisions in McGaffney (supra) and Brown (supra). In the result, in giving such guidance as we can, we have had to rely to a great extent on some useful insights offered by the solicitor advocate for the respondent and on the research resources available to us.

[61] In HM Adv v McKay (1996 SCCR 410), this court took the view that in appeals under what is now section 108(2) of the 1995 Act it is entitled to expect from those representing the Crown a high standard of care and accuracy from the outset. The court's observations in that case apply with even greater force when the Crown seeks a guideline judgment of this kind.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lady Paton Lord Hardie	[2010] HCJAC 50 Appeal No: XC698/09 OPINION OF LADY PATON IN CROWN APPEAL AGAINST SENTENCE by HER MAJESTY'S ADVOCATE Appellant; against DAVID WILLIAM GRAHAM Respondent: _______

For the Crown: Prentice, solicitor QC, AD; Crown Agent

For the respondent: Taylor, sol adv; MFY Partnership, Airdrie

27 May 2010

[62] I agree with your Lordship in the chair and have nothing to add.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lady Paton Lord Hardie	[2010] HCJAC 50 Appeal No: XC698/09 OPINION OF LORD HARDIE IN CROWN APPEAL AGAINST SENTENCE by HER MAJESTY'S ADVOCATE Appellant; against DAVID WILLIAM GRAHAM Respondent: _______

For the Crown: Prentice, solicitor QC, AD; Crown Agent

For the respondent: Taylor, sol adv; MFY Partnership, Airdrie

27 May 2010

[63] The opinion of your Lordship in the chair comprehensively reviews the relevant authorities in England and Scotland as well as the Definitive Guideline from which it has been possible to provide some guidance to the approach to sentencing in cases of this kind. I am entirely in agreement with that guidance.

[64] I also agree with the disposal proposed by your Lordship in the chair in this case and have nothing further to add.