Neutral Citation Number: [2010] EWCA Crim 728
Case No.  2009/1532/A8 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Tuesday, 9 March 2010
 
B e f o r e:
 
LORD JUSTICE THOMAS 
MR JUSTICE RODERICK EVANS 

MR JUSTICE COULSON 
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R E G I N A 

v 

MICHAEL WALLER
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Computer Aided Transcript of the Stenograph Notes of  
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Mr H Southey appeared on behalf of the Appellant 
Mr E Fowler appeared on behalf of the Crown 
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J U D G M E N T 

1.	MR JUSTICE COULSON:  On 9th October 2006 at Channel Magistrates' Court the appellant pleaded guilty to 12 offences of making an indecent photograph of a child.  He was committed to the Crown Court pursuant to section 3 of the Powers of Criminal Courts (Sentencing) Act 2000.  On 22nd November 2006 at Maidstone Crown Court he was sentenced to a term of imprisonment for public protection.  A period of 18 months less 183 days spent on remand was specified as the notional minimum term.  The appellant was disqualified working with children under section 28 of the Criminal Justice and Court Services Act 2000.  In addition, having been convicted of an offence listed in Schedule 3 of the Sexual Offences Act 2003, the appellant was required to comply with the provisions of Part 2 of the Act (notification to the police) indefinitely.  
2.	Although his application for permission to appeal against the IPP was made over three years late and the single judge refused the application, on 15th January 2010 a different constitution of this court granted the necessary extension of time and gave leave to appeal.  This therefore is the substantive appeal against the IPP.  
3.	The appellant is now 47.  On 22nd May 2006 he was arrested at his place of work after his employer contacted the police over a telephone bill of over £6,000 in respect of a telephone which had been allocated to the appellant.  It turned out that the SIM card from the phone had been used in another phone which was capable of connecting to the internet.  The police recovered from the appellant's car a laptop and three further phones.  The laptop was examined and 12 indecent images of children were recorded ‑‑ one at Level 1 of the Oliver scale, one at Level 2, four at Level 3, five at Level 4 and one at Level 5.  There was evidence that there had been a total of 250 indecent images, some of which had been deleted.  The appellant was arrested and admitted downloading the images.
4.	The offence of making an indecent photograph under section 1 of the Protection of Children Act 1998, as amended by the Sexual Offences Act 2003, is punishable by up to 10 years' imprisonment and is therefore a specified sexual offence and a serious sexual offence within the meaning of section 224 of the Criminal Justice Act 2003.  The sentencing judge therefore had to consider, in accordance with section 225 of the Criminal Justice Act 2003, whether a sentence of imprisonment for public protection was required and whether he was of the opinion that there was a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.
5.	Unhappily this was not the first time that the appellant had been sentenced for offences of this type.  On 7th January 2003 he pleaded guilty to 10 offences of making an indecent photograph or pseudo‑photograph of children, again contrary to section 1 of the Protection of Children Act.  He was then sentenced to imprisonment for eight months with an extended period of 24 months and ordered to register under the Sexual Offences Act 2003 for ten years.  On 24th April 2006 he was sentenced to imprisonment for a term of 36 weeks, suspended for a period of two years and made the subject of a supervision requirement for nine offences of possession of indecent photographs or pseudo‑photographs of children with a view to their distribution or sharing.  He was then made the subject of a Sexual Offences Prevention Order.  The offences the subject of this appeal were committed in breach of the suspended sentence imposed on 24th April 2006.
6.	Accordingly, when, on 22nd November 2006, the appellant came to be sentenced by His Honour Judge Lawson QC, there were three elements of the evidence before the judge relevant to the consideration of dangerousness under the Criminal Justice Act: the appellant's previous convictions; the particular facts of the offence; and the pre‑sentence reports.  There were two such reports.  The first was dated 8th June 2006, the second was dated 3rd November 2006, both were written by Miss Jenny Hay, a probation officer.  
7.	The first report under the heading "assessment of the risk of harm to the public and likelihood of reoffending" contained the following observations: 
"21.  The offender reported that he is now aware of the consequences of his behaviour.  However, it is my opinion that Mr Waller flagrantly disregarded the requirements of the Sexual Offences Prevention Order that was imposed one month prior to his arrest.  Furthermore, his previous behaviour indicates a disregard of authority, in that he continued to access child sexual images from a computer in a public library whilst on licence and he was attending the programme designed to assist him in reducing the risk of further offending.  
22.  In assessing the likelihood of him offending in this way in the future I have applied the Home Office Prison Service Thornton Matrix 2000.  This assessment tool is used by both the Police and Kent Probation Area to predict the risk an individual presents of reconviction for sexual offences.  Mr Waller is assessed as being at a medium risk of reconviction of both sexual and violent offences.  It needs to be borne in mind that the risk of reoffending is higher than the risk of reconviction.  
23.  It is my opinion that Mr Waller will continue to pose a risk of reoffending as he does not acknowledge full culpability for his offending behaviour and he displays a cavalier attitude towards conditions imposed by the Courts.
...  
26.  Given the above factors and Mr Waller's indifference to sentences imposed by the Court, I feel I am unable to put forward a proposal to the Court."
8.	The second report was prepared to assess the issue of dangerous.  It said:
"6.  Mr Waller, like many men who commit sexual offences, sought to minimise the seriousness of his offences by telling himself they were only images and he was not directly hurting anyone.  Given his expressed understanding as to the effects of child sexual abuse, it would appear that he gave little consideration as to how such actions would actually help to create victims and this in my view enabled him to continue with his behaviour.  Furthermore, I am of the opinion he sought to imply that his viewing of the images could be linked to his poor childhood experiences, citing alleged physical abuse from his father." 
Then finally at paragraph 16, the report concluded that the offences meant that Mr Waller could fall for sentencing under the dangerous offender provisions and the writer referred back to her assessment of the medium risk of his reconviction and reoffending.
9.	The judge therefore considered all of that material and when he sentenced the appellant he said this:
"... the sentence I am going to pass is one for protection of the public.  I am quite satisfied, despite the calculation made by the probation service, that there is a significant risk that you will cause serious harm to members of the public, particularly those that are caught up in the pornography trade of young girls that feature in the photographs that I have seen. ... 
In those circumstances, it is clear you have absolutely no control over your addiction and, therefore, that is the reason I am satisfied that there is a significant risk of serious harm caused by your behaviour.  
So the sentence is one of imprisonment for public protection of three years and I arrive at that figure in the following way.  The breach of the suspended sentence, there is no reason why it should not be brought into effect in full.  For the deliberate and flagrant breach of the Sexual Offences Prevention Order, the determinate sentence would have been two years but 18 months because of the plea.  
For the offences of making images, 12 months reduced to 9 months because of the plea, all those to run consecutively.  
The period of 18 months less the time served, which I order to be taken into consideration, will be the first time that you will be considered for release upon licence.  I express the view that you will continue to be a danger to the public until it is clear that any courses that you attend have been effective." 
In other words the sentencing judge calculated a notional determinate sentence of three years in this way: he took the nine months suspended sentence, added the 18 months for the breach of the Sexual Offences Prevention Order and a further nine months for the offences themselves and halved the total to arrive at the minimum term of 18 months.
10.	The main ground of appeal advanced today by Mr Southey is the decision to order an IPP in a case of this sort, particularly given the absence of any evidence of specific harm that might have been caused to children if the appellant offended again.  In order to address that point we need briefly to summarise some of the previous decisions of this court relating to the imposition of IPPs in these sorts of circumstances.  
11.	The starting point, it seems to us, is the decision of this court in R v Terrell [2007] EWCA Crim. 3079.  The offences in that case were similar to those in the present case and the defendant also had a previous conviction for the same offence.  In giving the judgment of the court, Ouseley J went through a number of earlier decisions and then set out the court's summary of the position as to causation at paragraphs 26 to 28 of his judgment.  The critical part of that judgment is paragraph 28 which was in these terms:
"In our judgment it cannot reasonably be said, in the context of these particular statutory provisions, that there is a significant risk of this Appellant's re‑offending occasioning harm to a child or children whether through perpetuating the market, or through further indecent images being taken, or through a child becoming aware of the indecent purposes to which photographs might be put.  The link between the offending act of downloading these indecent images and the possible harm which might be done to children is too remote to satisfy the requirement that it be this Appellant's re‑offending which causes the serious harm.  At worst there would be an indirect and small contribution to a harm which might or might not occur, depending on whether further photographs were taken in part as a result of the Appellant's contribution to the market, or depending on whether a child found out about the uses to which they were put as a result.  The imprisonment for public protection provisions of the CJA do not apply in the circumstances here, where simply as a matter of generalisation, a small, uncertain and indirect contribution to harm may be made by a repeat of this offender's offending.   No significant risk of serious harm of the requisite gravity, occasioned by a repetition of the offending in this case by this offender can reasonably be said to exist."
Thus, the sentence of imprisonment for public protection in Terrell was quashed.  
12.	That approach has been followed by this court in a number of subsequent decisions.  Those include R v Hicks [2009] EWCA Crim. 733, where the decision in Terrell was applied, despite the fact that the offender there was described as a persistent offender in relation to the making of indecent images of children.  Again, the court referred to Terrell and stressed that: "It is not enough that there is a possibility of future offending that might occasion serious harm. The risk of such harm being occasioned by future offending must be significant. That requires some evidential basis from which it can be assessed that either serious harm caused in the past will be repeated, or that the offender will move on to more serious offences that give rise to a significant risk of serious harm."  
13.	In R v Cheshire [2009] EWCA Crim. 447 the defendant was a paedophile with a whole series of previous convictions for indecency with a child, as well as child pornography.  The IPP was imposed for making indecent photographs of children.  The pre‑sentence report in that case described the defendant as posing a high risk of reoffending.  After considering the case "with some anxiety", this court allowed the appeal against the IPP.  
14.	Most recently of all there is R v Sackman [2010] EWCA Crim. 19, where the defendant was sentenced to an IPP on eight counts of making indecent photographs of children.  There was no evidence that the defendant was involved in the production of the images or that he had any direct contact with the children relating to the images, although, unlike here, there was some evidence of chatroom activity.  Again the appeal against the IPP was allowed.  
15.	In our judgment, this case is indistinguishable from that of Terrell and Hicks, and without the potentially aggravating features of Cheshire and Sackman.  We therefore consider that we are constrained by those authorities to reach the conclusion that an IPP is inappropriate in the present case.  The link between the offending act of downloading the images and the possible harm to the children is, on the analysis in Terrell, as adopted in the subsequent cases, too remote for the court to say that it is the appellant's reoffending which caused the serious harm.  It appears, to use the words in Terrell, that this is a case of small uncertain and indirect contribution to harm that may be made by a repeat of the appellant's offending.  
16.	In setting aside the IPP, we make clear that the fact that an IPP is not appropriate in this case does not automatically mean that it is not appropriate in any child pornography/downloading case.  Neither do we seek to minimise in any way the seriousness of the offending.  We emphasise the lengthy prison sentences that will be appropriate for repeat offending and the significance both of the sexual offences register and the Sexual Offences Prevention Order.  
17.	For those reasons, therefore, in this case we quash the IPP, we replace it with a term of three years' imprisonment made up in the way that the judge set out in his sentencing remarks.  The appellant will of course remain on the Sex Offender's register and remain the subject of the earlier Sexual Offences Prevention Order. 
18.	LORD JUSTICE THOMAS:  We have, as you can tell, been constrained by authority to allow this appeal.  We are, however, very concerned, because he has been an IPP prisoner, that the consequence of our decision is inevitably he will be released without any pre‑release training and he will not be on licence and the sexual offences prevention order has not worked in the past.  We therefore direct that there be communicated immediately to the Governor of the prison where he is at, which we assume to be HMP Albany, our direction that he ask the appellant his address.  Such address as he is given should be communicated directly to the Chief Constable of the area in question for his personal attention, so that a check can immediately be made as to whether the appellant has gone to the address given.  In view of his breaches of his Sexual Offences Prevention Orders in the past, we cannot rely upon him to do this.  With the great assistance both of Mr Southey, whose experience of these cases is enormous, and Mr Fowler, we have been unable to think of any other way to protect the public from the decision we have been constrained by authority to reach.  We should add that that is in the general interests of the public, as well as in the interest of this appellant.