R v Ryan Cunningham-Phillips

The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during their lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

This is a renewed application for leave to appeal against sentence following refusal by the single judge.

The applicant, who was aged 29 at the date of sentence, pleaded guilty to seven offences involving engaging in sexual activity in the presence of a child; taking and making indecent images of children; and voyeurism. On 23 October 2024, in the Crown Court at Southampton, the applicant was sentenced and, following an adjustment of sentence at the same court on 16 December 2024, received a total of five years' imprisonment.

In 2018 the applicant pleaded guilty to three counts of making indecent images of children between the end of 2016 and May 2017. He was sentenced to a community order, along with various ancillary orders.

Following information received by the police, officers attended the appellant's home address on 30 June 2024. He was arrested on suspicion of the possession of indecent images of children. At this time officers seized a number of electronic devices belonging to the applicant. Indecent images of children, some believed to be first generation images, were found on his devices. Further investigation into the first generation images discovered showed the two young daughters of a close female friend of the applicant. The mother was able to identify her children and to estimate that they where taken between 2018 and 2022. She had not been aware of the applicant's previous convictions and was extremely shocked by what had happened.

A statement from the victims' mother made it clear that she had regarded the applicant as her best friend and trusted him to look after her young children on a number of occasions. It appeared that it was during these occasions that he had taken photographs of both children. We have read her statement and understand the profound impact that the applicant's offending has had upon her.

Amongst the images was a photograph taken by the applicant whilst he was sat on his bed with the bedcovers pulled back. He was holding his penis and apparently masturbating. At the end of the bed the younger child was seen naked from the waist up, looking at a television and away from the camera. At the time that the photograph was taken, the victim was under 8 years old. This image led to the charge of engaging in sexual activity in the presence of a child (count 1).

The vast majority of the first generation images relating to the first victim showed the child in some sort of undress.

The photographs taken of the second victim were voyeuristic, rather than overtly sexual. They led to the charge of voyeurism (count 8). All of the images appeared to have been taken on the same occasions, where the victim appeared to be wearing a school uniform, including a skirt. Her legs were on the sofa and her underwear was exposed. Her face was fully shown. She was apparently somewhere between the ages of 8 and 10.

The judge identified that the offence of engaging in sexual activity in the presence of a child (masturbating in the company of the younger child) was a category 2A offence, with a starting point of two years' custody, and a range up to three years. Although he regarded it as a particularly serious example, the judge held back from going outside the category range. He settled on a sentence after trial of three years' imprisonment for that offence.

In relation to the offences of taking indecent images of the two girls and the voyeurism, the judge arrived at an overall sentence equivalent to a sentence after trial of three years' imprisonment. For the other offences of indecent images, the equivalent after trial was 18 months' imprisonment. The judge had regard to the principle of totality by making all other sentences concurrent. Having allowed full credit for the guilty pleas, the sentences to be served consecutively were two years' imprisonment in respect of the masturbation in the presence of the child; two years' imprisonment for the other offences involving the two identified girls; and 12 months' imprisonment for each of the indecent image offences. In that way the judge arrived at the total of five years' imprisonment.

The judge noted the applicant's mitigation, namely: his shame, his remorse, and his acceptance of responsibility. The judge also noted that the applicant had desisted from his behaviour before he was apprehended.

By his proposed grounds of appeal, which were settled by counsel, the applicant contended that the judge failed to have sufficient regard to totality and arrived at a sentence that was manifestly excessive. It was argued that in order properly to allow for totality, the judge should either have made the sentence of 12 months concurrent to the other sentences, or should have adjusted downwards all of the sentences which were ordered to be served consecutively.

Leave was refused by the single judge who noted that the applicant's previous conviction for making indecent images of children, for which he was given a community order in 2018, was a significant aggravating factor. The significant betrayal of the trust of the woman who regarded the applicant as her closest friend and trusted him to look after her children was a further serious aggravating factor. The single judge noted that no complaint was made about the application of the guidelines to the individual offences. The single judge said that while there may have been other ways to structure the sentence, the approach of the judge was one that was properly open to him, and that the overall period of five years' imprisonment after allowing full credit for the guilty pleas was commensurate with the gravity of the offending and not manifestly excessive.

The applicant has advanced four further submissions in relation to his renewed application. First, he says that the judge may not have been aware that counts 1 and 2 arose out of a single incident. Secondly, he says that the judge may have failed to bear in mind that the starting point for count 1 already reflected breach of trust and the gravity of the offence and double counted this by using breach of trust as an aggravating factor. Thirdly, he argues that it was not fully taken into account that the offences took place in 2020 and that since then the applicant had voluntarily ceased offending. Fourthly, and finally, the applicant says that he had utilised his time in custody constructively.

We have considered all of these points. However, we consider that the judge did take account of all of these factors, as his sentencing remarks clearly demonstrate. We do not think that there was any material double counting of factors. This was serious offending set against a background of relevant previous convictions which, as the sentencing judge said, demonstrated an escalating pattern of behaviour, despite the recent community order.

In all the circumstances we consider that the sentence was within the range open to the judge and that it is not arguably manifestly excessive.

For those reasons this renewed application must be refused.