R v Thomas Brand

On 10 July 2025, following a trial in the Crown Court at St Albans, the appellant was convicted of three counts of making indecent photographs of children, contrary to section 1(1)(a) of the Protection of Children Act 1978. Count 1 represented 188 images falling within category A, for which the appellant was sentenced to ten months' imprisonment. Count 2 represented 86 category B images, for which he was sentenced to 20 weeks' imprisonment. Count 3 represented 98 category C images, for which he was sentenced to 15 weeks' imprisonment. All of the sentences were ordered to run concurrently with each other, making a total of ten months' imprisonment.

The appellant appeals against sentence by leave of the single judge.

The circumstances of the offending were as follows. The appellant came to the attention of the police through his use of an account on the Kik platform, which led to a warrant being executed at his home address on 21 October 2020. Eleven electronic devices belonging to the appellant were seized and eight of them were examined. Five of them contained indecent images of children.

The appellant's case was that he had come by these images through his activities online, but that he was unaware of their presence and had not viewed them. In particular, the appellant denied having any sexual interest in children when confronted with the evidence by the police.

In addition to the prison sentence which was imposed, the court also made a sexual harm prevention order containing a number of prohibitions and restrictions related to the commission of the offences. In particular, the order contained the following at paragraphs 15 and 16:

There are two grounds of appeal. First, it is contended that the sentence which was imposed should have been suspended. Secondly, it is submitted that the prohibitions in paragraphs 15 and 16 of the order are not necessary.

It appears that the appellant entered not guilty pleas to each of the counts on the indictment and stood trial before being convicted by a jury on 10 July 2025.

When the matter came before the court for sentence, the judge had the benefit of a pre-sentence report which indicated that the appellant was at a low risk of re-offending in relation to seriously harmful offences; and further, that there was a low risk of him committing contact offences against children. The author of the report assessed, however, that the appellant was at a medium risk of committing internet or indirect sexual offences. The author went on to observe in the risk assessment as follows:

The author of the pre-sentence report considered the possibility of a non-custodial disposal in the appellant's case and concluded that the appellant was suitable for a rehabilitation activity requirement and an unpaid work requirement.

The judge also had the benefit of a psychological assessment which identified that the appellant's presentation was consistent with several core features of compulsive sexual behaviour disorder, albeit that a definitive diagnosis would require further clinical assessment.

In addition, the judge had the benefit of a number of personal character references supporting the appellant and speaking to his positive qualities.

In his sentencing remarks, the judge noted that it was an aggravating feature that the appellant had organised the illegal images into collections, and that his offending had covered collecting images over ten years and involved a large number of individual children. He also noted the appellant's "compulsive sexual obsession" and the risk to children, as well as the ordeal the children will have gone through in order for the images to be created.

The judge noted the positive mitigation in the appellant's case which was represented in references from friends and family, and the contents of the psychological report. The balance between the aggravating and mitigating features led the judge to the conclusion that the appropriate sentence for each count was represented by its starting point in the guidelines of 12 months' imprisonment. The judge went on to reduce the sentence on the lead offence by two months to reflect the delay which had been incurred in bringing the case to trial.

He went on to address the question of whether or not the sentence should be suspended in the following terms:

The grounds upon which the appeal is advanced are firstly in relation to the question of whether or not the sentence should have been suspended. It is contended that the judge failed properly to assess certain aspects of the factors taken from the guidelines in respect of whether the sentence should be suspended. First, in relation to the prospects of rehabilitation it is said that the appellant had demonstrated a commitment to reform and rehabilitation and had shown an enthusiasm to participate in the programme suggested in the psychological report. Further, it is submitted that the appellant did not represent a high risk of offending or harm, as evidenced by the author of the pre-sentence report; that the judge failed to give weight to the personal mitigation available to the appellant; and that he failed to take proper account of the impact on the appellant and his family of an immediate custodial sentence.

The judge's assessment of the appellant's risk of re-offending – in particular in relation to children – is criticised, and so is the judge's suggestion that the seriousness of the offences required the imposition of an immediate sentence of imprisonment. The judge's assessment in relation to the appellant's compliance with the law is said to have been in error. Further, complaint is made that the judge should have considered the impact of overcrowding in the Prison Estate before it was concluded that it was necessary for an immediate sentence of imprisonment to be imposed.

In addition, it is submitted that there is no reference within the sentencing remarks to the fact that the appellant was a man of good character.

Ground 2 contends that clauses 15 and 16 of the Sexual Harm Prevention Order were imposed without evidence that the appellant presented risks which necessitated the imposition of these prohibitions. The author of the pre-sentence report had concluded that the appellant was at low risk of committing a contact offence against a child.

It is important to note, as is conceded in the appellant's grounds of appeal, that the decision of whether or not to suspend a prison sentence is one which is discretionary. There needs to be a proper basis for interfering with a judge's exercise of discretion in this connection. The simple assertion that the discretion may have been exercised differently will not suffice to justify the intervention of this court.

In the present case we are satisfied that in exercising his discretion, the judge properly directed himself to each of the various relevant and important elements of the guidance in respect of suspended sentences and reached conclusions in respect of those elements that were properly open to him. When passing sentence upon the appellant, it was not necessary for the judge to set out as a catalogue each and every element of what is contained within the guidelines, but it was necessary for him to express the conclusions which he had resolved in relation to those matters which were of the most significant in bearing upon the exercise of his discretion. That he did.

None of the material and important factors which bore upon the judge's exercise of discretion in this case was overlooked. In addition, and importantly, having conducted the trial, the judge was extremely well placed to ascribe to those individual considerations the weight which was appropriate. In particular, bearing in mind the length of the conduct in which the appellant engaged, and the nature of that conduct, the judge's conclusion that appropriate punishment could only be achieved by immediate custody was one which, in our judgment, was unassailable. He was entitled to take account of the fact that the criminal conduct in this case had taken place over a decade and that the appellant had had the opportunity to seek help with his obsessive behaviour well prior to his arrest.

The judge's assessment of the strength of the appellant's personal mitigation was also appropriate. It was no doubt abundantly plain to him that he was sentencing someone of good character.

It is also clear that the judge explicitly had regard to the impact which the sentence would inevitably have upon the appellant's family.

In short, we are unable to identify any kind of misdirection or error of principle which could properly justify interfering with the judge's exercise of discretion in relation to the suspension of the appellant's sentence.

We turn to the provisions of the Sexual Harm Prevention Order. Whilst the appellant is entitled to draw the attention of the court to one of the conclusions of the author of the pre-sentence report, there are other conclusions which are far less reassuring in relation to the management of the appellant's risk to children. In particular, as we have set out already, the author of the pre-sentence report noted that the appellant represented a medium risk of harm to female children aged between 7 and 14 years.

The purpose of such an order is to control, as best as possible, the risks presented by the appellant. Ensuring that he is prohibited from using the internet to contact children under 18 and placing significant restrictions on his unsupervised conduct with children under 18 are, in our judgment, legitimate measures to be deployed in managing the appellant's risks for the future.

Again, the judge had the advantage of overseeing the trial of the appellant, during the course of which he had the opportunity to assess the nature and extent of the appellant's voluminous collection of indecent images of children borne, as the psychological report demonstrated, out of a compulsive sexual obsession, and to form the view that it was appropriate and proportionate for these restrictions and prohibitions to be imposed upon him when he is eventually at liberty.

For all of these reasons we are not satisfied that either ground of appeal is made out. Accordingly, the appeal against sentence must be dismissed.