Extended sentence for man who possessed and shared extreme child sex abuse images was ‘entirely appropriate’

John Doherty, whose case was referred to the High Court of Justiciary by the Scottish Criminal Cases Review Commission (SCCRC), argued that the extension part should be quashed because he had not created or procured the images himself, but the appeal judges upheld the sheriff’s decision.

The court also reiterated observations made in a previous case that the Scottish Government or Scottish Sentencing Council should consider legislation to allow sentencers to combine a custodial sentence with a community-based disposal.

‘Serious risk of harm’

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Glennie and Lord Woolman, heard that the appellant appeared at Glasgow Sheriff Court in January 2017 and pled guilty to charges of possessing and distributing indecent images of children, contrary to sections 52A and 52(1)(b) of the Civic Government (Scotland) Act 1982. 

The possession charge related to 152 moving images, of which 74 were at category A and 65 at category B, and 61 still images, of which 47 were at category A and the remainder at category B, while the distribution charge related to 86 still images, of which 61 were at category A and 22 at category B. 

The appellant had shared these images with 14 individuals and two groups, one of which contained 50 members.

In concluding that the period of licence would not sufficiently protect the public from serious harm, the sheriff had regard to the risk assessment, which described the appellant as presenting a “medium risk” of sexual re-offending.

He also had regard to the criminal justice social work report, which suggested (a) that by virtue of his sexual attraction towards children, the appellant might present a risk to children in the community, (b) that he appeared to lack empathy or an understanding of the impact and consequence of offending behaviour of this type, and (c) that his attitudes, and the risk he presented, were unlikely to change unless he fully engaged with a programme of offence focussed work.

The sheriff accordingly sentenced the appellant to 12 months’ imprisonment on the possession charge and imposed a concurrent extended sentence of 37 months on the distribution charge, comprising a custodial element of 22 months and an extension period of 15 months.

The appellant claimed he did not receive proper advice to mark an appeal within the relevant time limit, so he submitted his case to the SCCRC.

‘Extended sentence not appropriate’

The commission accepted that the custodial elements of the sentences passed were “within the range which might be expected” for the offences in question, but referred the case on the basis that it was “arguable” that an extended sentence was “not appropriate”. 

It questioned whether the test for risk of serious harm to the public could be met, having regard to the observations in Wood, Tennant & McLean v HM Advocate 2017 SCCR 100 and DS v HM Advocate [2017] HCJAC 12. 

In Wood, extended sentences had been imposed on the basis that the period of licence would not otherwise be sufficient for the appellants to complete offence-focused remedial courses within the community, but on appeal it was held that this was not a legitimate consideration. 

A court could only impose an extended sentence where it considered that the period of licence would not otherwise be sufficient to protect the public from the risk of serious harm, but in the individual Wood cases, which concerned possession of indecent images only, that test was not met.

On behalf of the appellant it was submitted that while the question whether a risk of serious harm existed was one for the court, the court required to have an “evidential basis” for its conclusion. 

It was argued that the reasoning in Wood as to the existence of a risk of serious harm applied equally in cases involving distribution “as long as the distributor has not procured the creation of the images or created them himself”. 

In other words a clear distinction should be drawn between (a) distribution and (b) creation or procurement of the images. 

The former fell outwith the category where a finding of a risk of serious harm might be made, because “a distributor does not actively procure the images”. 

For these reasons, it was submitted, the sheriff’s reasoning was “flawed” and the extension part of the sentence should be quashed.

‘Intensifying pattern of offending’ 

The appeal judges observed that, before passing an extended sentence the sentencing court must be satisfied that release of the offender without supervision for an extended period would give rise to a risk of serious harm to the public, and that the cases of Wood and DS provided helpful illustrations of how that test was applied, but only in respect of the facts of those particular cases.

Delivering the opinion of the court, the Lord Justice Clerk said: “We accept that the appellant did not procure or make the images, and that his conduct did not involve any direct contact offences. However, there are three troubling aspects of his behaviour. 

“First, he participated in extreme discussions about the images with others in which he commented on his wish to have sex with children and infants. He thus appears to have a propensity himself to engage in future indecent conduct with children. 

“Secondly he not only accessed the images, but also distributed them. The act of distribution magnifies the demand for such material. 

“Third, his engagement in online discussions not only about the images but about abusing children generally may induce others to engage in such behaviour. All three elements bear upon the question of risk.”

The judges considered that was instructive to have regard to the terms of the criminal justice social work reports, which noted that the appellant had befriended online others who were seeking child abuse images and deliberately shared the images and discussed their content, which was “very extreme in terms of abuse towards victims at various ages including infants”.

Lady Dorrian added: “This material suggests an intensifying pattern of offending on the part of the appellant, moving from possession to distribution; progressing to discussing these images, and expressing a desire to have sexual images of children; watching live-streamed images as well as pre-recorded ones; and developing a motivation to seek out ever more extreme images. 

“Given these factors, and the risk assessment contained in the CJSWR, we conclude that the sheriff was entitled to reach the conclusion that he did. There was a sufficiently established connection between the appellant’s offending and the risk to the public. Accordingly, we refuse the appeal.

“This case very clearly merited a custodial sentence and the periods selected were entirely appropriate, as was recognised by the SCCRC.”

The court also observed that the case highlighted some of the difficulties facing those sentencing sexual offenders. 

In Wood the court observed that it is not currently possible to combine a custodial term with a community disposal, adding that “…the utility of using a deterrent custodial sentence combined with a period of extended supervision thereafter would, in cases such as those under consideration, seem clear, even if the current statutory tests for doing so are not met. This is a matter which the Scottish Government and/or the Scottish Sentencing Council may wish to consider in due course”.

“We agree with these observations,” the Lord Justice Clerk said, “merely adding that the introduction of such a sentencing option would require primary legislation”.