Smith, R. v

JUDGE BAKER: Paul Smith appeals with the leave of the single judge against the length of a sexual offences prevention order made when passing sentence by His Honour Judge Rylance at Inner London Crown Court on 16th February 2009. The sentence itself was one of nine months' imprisonment ordered to run concurrently on nine counts of possession of indecent photographs of children. Forfeiture of compact discs with indecent images of children on them was ordered. Having been convicted of offences listed in Schedule 3 of the Sexual Offences Act 2003 the appellant was required to comply with the provisions concerning notification to the police. Having regard to the length of sentence that requirement would last for a period of 10 years. The sexual offences prevention order, on the other hand, was made for an indefinite period.

The indecent photographs had been discovered by the police in a search of the appellant's home in the course of investigations into an allegation of harassment and making nuisance telephone calls and emails. The images had been downloaded from a free site by the appellant and copied onto a CD ROM. It was his habit to clean his hard drive every night.

There were 296 images at Level 1, four at Level 2, 25 at Level 3 and 33 at Level 4. A number of the children depicted were said to be as young as three or four years. One of them was depicted engaging in an oral sex act. Some were in the nine to eleven year old range. At interview the appellant admitted ownership of the relevant computer and discs. He pleaded guilty on arraignment.

He was aged 52 when he was sentenced. He had a conviction for harassment arising out of matters which the police were investigating when they found the indecent images. For that he was fined and made the subject of a restraining order of indeterminate length. Apart from that he has no convictions.

In the pre-sentence report he is described as demonstrating deep shame for his behaviour over the photographs and accepting full responsibility for his actions. However, he disclaimed an interest in child pornography and denied using images to obtain sexual gratification. It may be concluded, wrote the author of the report, that Mr Smith has very little insight into his offending behaviour.

The appellant is single. He lived alone. He is, we judge from the report, a solitary person whose friends are people he has encountered and communicated with over the internet. The internet also provides his means of pursuing an interest he has in historical research.

In respect of a person in Mr Smith's position the Crown Court can only make a SOPO "if it is satisfied that the defendant's behaviour makes it necessary to make such an order for the purpose of protecting the public or any particular member of the public from serious sexual harm from the defendant" - See section 107 of the Sexual Offences Act 2003. The Act goes on to provide that a sexual offences prevention order (a) prohibits the defendant from doing anything described in the order and (b) has effect for a fixed period of not less than five years specified in the order or until further order. There is provision in the Act (s.108) for a SOPO to be varied, renewed or discharged on an application by, among others, the defendant who is subject to it. An order may not be discharged until it has run for five years, unless the relevant chief officer of police consents. Breach of a SOPO is made a criminal offence by section 113, punishable with a maximum of five years' imprisonment. Provision is made in the Act (s.110) for a right of appeal against a SOPO.

The order in the present case prohibited the appellant from doing the following:

The terms of the order had been agreed by defence counsel. The making of such an order was not resisted.

Before us there is no challenge to the sentence or to the making of the order or its contents. Its terms were, as stated, agreed.

When passing sentence the judge directed that it should however last until further order. The challenge therefore is to its duration. The question before us, as it seems to us, is whether the making of an order of an indefinite length is either manifestly excessive or wrong in principle on the facts of this case. Section 107 only entitles the court to make an order where it is necessary for the purpose of protecting the public or any particular members of the public. In our judgment, the question therefore revolves itself into whether it was necessary to make an order of an indeterminate length.

It is material that the appellant was 52 when he was sentenced. He had one conviction for harassment and no conviction for any earlier sexual offences. The court sentenced him to imprisonment for a term which was too short to enable him to undertake any meaningful sex offender programme of rehabilitation. Although, as the judge observed, he accepted the seriousness of his offending he did not, according to the author of the pre-sentence report, have any depth of understanding about it. It also seems to us to be material that he acknowledged through his counsel at sentence the necessity of such an order being made and if he were to reoffend or breach the order the order itself could be extended.

The order in principle restricts the use he may make of his computer equipment. That equipment is plainly of importance to him in his daily life. However, the exceptions to the restrictions are so wide that the inhibition on his private life seems unlikely in practice to extend beyond the unlawful downloading and possession of indecent material concerning children.

Through Mr Abadoo of counsel the appellant has contended that the length of the SOPO should be of the same length as the length of the notification requirements which are fixed according to the sentence imposed. He relies on the decision of this court in Hammond [2008] EWCA Crim. 1358. Alternatively, he submits that the length of the order should not be disproportionate to the length of the notification requirement.

In the end, in our judgment, the test is one of necessity. We can however see the sense in aligning the order with the length of the notification requirements should it be appropriate in a particular case. In our judgment it is so appropriate in this case and in our judgment it was not necessary to make the order one which was of indeterminate length. Accordingly, we will quash the indefinite order and replace it with one in identical terms and expressed to last for a period of 10 years, which is the length of the notification requirement. To that extent this appeal will therefore be allowed.