NI Court of Appeal: High Court unduly lenient in sentencing internet-based child sexual offences

About this case:

• Citation:
  [2024] NICA 3
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Lady Chief Justice Siobhan Keegan

Delivering judgment for the Court of Appeal, Lady Chief Justice Siobhan Keegan stated: “This case will serve as guidance for sentencers going forward in relation to offences conducted over the internet which involve engaging in sexual activity and causing or inciting children to engage in sexual activity. As we have said the fact that there is no direct physical contact does not alter the seriousness of such offending and the need for condign punishment. In addition, the fact that there are no identified victims does not mean that many children have not been exploited, corrupted, and degraded by this activity and that a deterrent sentence is required.”

Background

The respondent was a 60 year-old Polish national with no previous convictions. On 16 January 2019, the PSNI searched his home in Belfast and seized 13 devices. Many of the devices contained inter alia indecent images of children and recordings of the respondent masturbating whilst female children watched on live streams. 

The respondent was charged with a variety of child sexual offences and pleaded guilty to inter alia seven counts of engaging in sexual activity in the presence of a child between 13 and 16 contrary to Article 18 of the Sexual Offences (NI) Order 2008 and 18 counts of making indecent photographs of children contrary to Article 3(1)(a) of the Protection of Children (NI) Order 1978.

The High Court

On sentencing, the High Court found the respondent’s culpability to be high in light of the number of offences committed and considered the aggravating factors in the case to be the numerous victims, the recording and retention of the material, and the four-and-a-half year period over which the offences were committed. The judge considered the respondent’s guilty plea as a neutral finding. 

Having determined that the threshold for a custodial sentence had been passed, the High Court was persuaded in light of the probation report that probation would be of more benefit to the respondent and to society, leading to the imposition of a three-year probation order.

The Director of the Public Prosecution Service (DPP) applied for leave to make a reference to the Court of Appeal under s.36 of the Criminal Justice Act 1988 to review the three-year probation order imposed on the respondent in September 2023 for undue leniency.

The Court of Appeal

Having considered that the test for leave in a reference had been met on the basis that sexual offending against children requires “deterrent and condign punishment”, Lady Chief Justice Keegan noted the guideline case of R v Oliver & Others [2002] EWCA 2766 pointed to a custodial sentence of 6 – 12 months for possession of a small number of images and 12 months – three years for higher numbers. The court highlighted that the sentencing judge’s remarks gave no indication that she took all the offences into account when deciding the appropriate sentence.

Turning to the issue of undue leniency, the court pointed out that as per (R v McCartney) [2009] NICA 52a sentencing judge may step outside guideline sentences in exceptional circumstances. In particular, the court noted: “It would have been helpful if the sentencing judge had provided more by way of explanation as to the specific circumstances of the case to which she was referring to which justified this sentence in addition to the aspects of the PSR referred to…The PSR is not overly positive and so the applicant cannot be described as a strong candidate for probation supervision.”

Having examined an addendum probation report, the court was satisfied that the respondent was “motivated and engaging with probation which is a positive in his case…” The court continued: “However, the core question must be, what is the appropriate starting point in a case which involves not just possession of indecent images, but also serious additional offending involving sexual activity with children on the part of the respondent and causing children to engage in sexual activity?.”

Noting the “clear guidance” in relation to sentencing for indecent images of children as confirmed in R v Maxwell [2023] NICA 21, Lady Chief Justice Keegan stated: “The critical point to make is that this case is distinguishable from the possession cases we have discussed given the other serious sexual offending that occurred. Accordingly, we take this opportunity to emphasise that the guidance in R v Maxwell and R v Oliver refers to offences relating to the making (downloading as opposed to creating) and possession of indecent images with culpability often measured by the quantity and nature of the images.”

The court recognised that the case before it involved a higher level of offending, involving sexual activity and causing a child to engage in sexual activity, for which there was no direct guidance for sentencing.

Stating that the court would “take this opportunity to provide guidance in cases of this nature going forward”, the court set out: “Offences involving engaging in sexual activity with a child or causing or inciting a child to engage in sexual activity should in future attract an immediate custodial sentence…for a first offence the range is three to five years is appropriate on a contest (before any alteration for a guilty plea) and that the ultimate sentence will depend on the frequency, extent of the activity, age, and number of victims. In cases such as these personal mitigating circumstances will have minimal effect unless something exceptional is in play such as extreme family circumstance or severe disability.”

The court commented: “Consideration of a non-custodial option will properly arise if a sentence of 12 months or less is contemplated or if circumstances arise which persuade a judge that a non-custodial route is appropriate. In either circumstance a judge should fully explain by way of reasons why that option is preferred and should refer to the evidence upon which the decision is based.”

The court reduced the three year sentence by six months due to delay on part of the prosecution which the court determined was an interference with the respondent’s rights under the European Convention on Human Rights.

Lady Chief Justice Keegan noted: “Implicitly it seems that the court may have been attracted to a non-custodial sentence as these were non-contact offences, conducted over the internet. We take this opportunity to state the view of this court that such offences committed over the internet are equally serious when a perpetrator actively engages as here in physical activity by way of masturbation on live streams and incites children to respond in a sexual manner… if the respondent had met the children in a local park…a court would have had no hesitation in imposing an immediate custodial sentence. Accordingly, we consider that the sentence imposed was not simply lenient, it was unduly lenient.”

Conclusion

Accepting that the respondent did not think that he would be subject to a custodial sentence and applying the principle of double jeopardy and taking into account his guilty plea, the court reduced the prison sentence to 18 months.

The King v. Jacek Pacyno [2024] NICA 3