R v Simon Smith

This is an appeal against sentence brought by leave of the Single Judge.

On 11 August 2025 in the Crown Court at Ipswich, the appellant, who is now 36 years old, was sentenced by Ms Recorder Sally O'Neill KC to a total of 3 years 4 months' imprisonment for offences involving the downloading of indecent photographs of children, breaching a sexual harm prevention order and failure to comply with notification requirements as a sex offender. He had pleaded guilty to the offences in the magistrates' court and had been committed for sentence. He was afforded full credit of one-third for his guilty pleas. The total of 3 years 4 months therefore represents a sentence of 5 years' imprisonment before credit for plea.

Although the appellant was represented throughout the proceedings in the court below, he lodged his own grounds of appeal acting in person. The Single Judge granted leave on the sole basis that arguably there had been insufficient allowance for totality. The Single Judge granted a representation order for counsel. We are grateful to Ms Ahluwalia for her written and oral submissions.

There were six offences under the Sexual Offences Act 2003 grouped in three pairs as follows.

There were two offences of failure to comply with notification requirements, contrary to section 91(1)(a) and (2) of the Sexual Offences Act 2003 (offences 1 and 2), for which the total sentence was 12 months' imprisonment.

There were two offences of breach of a sexual harm prevention order, contrary to section 103I(A1) and (3) of the Sexual Offences Act 2003, for which the total sentence was 16 months' imprisonment concurrent on each.

There were two offences of making an indecent photograph of a child, contrary to section 1(1)(a) and (6) of the Protection of Children Act 1978 (offences 5 and 6), for which the total sentence was 12 months' imprisonment.

The sentences for each of those pairs of offences were ordered to run consecutively, making the total of 3 years 4 months. There was also an offence of possessing a Class B drug, for which no separate penalty was imposed (offence 7) and a Bail Act offence of failing to surrender, for which no separate penalty was imposed.

The appellant had a history of similar sexual offences. On 23 March 2022 he was sentenced at Norfolk magistrates' court for possessing or making indecent images of children. On that occasion there were 154 category A images, 12 category B images and 8 category C images, and an extreme pornographic image. He received a suspended sentence of 12 months' imprisonment suspended for 2 years, with various programme requirements and an unpaid work requirement. He was made the subject of a sexual harm prevention order for a period of 5 years.

By the time of the current offending the appellant had already breached the terms of that suspended sentence twice, and in May 2023 the suspended sentence had been activated in part and he was ordered to serve 10 months' imprisonment.

One of the sex offender notification requirements was that he had to attend to re-confirm various details every year. It was also a requirement that he should notify the police of details of any passport, credit card and bank account held by him on each notification.

He failed on 18 March 2025 to comply with the requirement to report annually (offence 1). There was a series of emails between the Public Protection Unit and the appellant over a period of 3½ weeks in which he was chased to attend and comply with the notification requirement of annual reporting. The appellant delayed, failed to comply and made excuses that he was in London. He was informed that he could report to a police station in London rather than Suffolk where he lived but he still failed to report.

That failure resulted in a warrant for his arrest being issued and the appellant was duly arrested on 10 April 2025 at his home address in Suffolk. It was as a result of a search of his home following his arrest that the remaining offences came to light.

The police found a bank card, valid until November 2024, which had not been notified to the Public Protection Unit as required (offence 2). The police found a laptop (offence 3) and a Samsung phone (offence 4). His possession of these devices was in itself a serious breach of the sexual harm prevention order which required him to notify the relevant authorities within days if he had any new devices. It seems he had been in possession of the phone for two months and the laptop for around a week before his arrest.

The seriousness of those breaches became even more apparent when the devices were examined. On the phone there were three category A images of young boys apparently aged between 4 and 10 years taking part in penetrative sexual activity (offence 5). We need not go into further details. There was also a further image (offence 6) which was charged as making an image of category C but which was sentenced on the basis that the image was category B. This image showed a young male child, approximately 7 years old, holding in his hand an adult male's erect penis and playing with it.

This mis-characterisation of offence 6 has given rise to somewhat complex and sterile arguments as to the lawfulness of the resulting sentence of 4 months' imprisonment for that offence. We say sterile because that sentence was in any event made concurrent with the sentence of 12 months for offence 5 relating to the three category A images. We shall return to the legal issue.

The appellant was also found in possession of amphetamine (offence 7) for which no separate penalty was imposed as we have indicated. The same course was taken for the Bail Act offence which arose from his failure to surrender to Ipswich Crown Court on 8 July 2025 in connection with these proceedings, having been released on bail on 14 May 2025.

The appellant had 7 convictions for 11 offences between 2010 and 2022. The offences included driving with excess alcohol and fraud by false representation. In 2014 he was fined for sending an offensive, indecent, obscene or menacing message. His most recent conviction had been for the offences which resulted in the imposition of the suspended sentence in March 2022.

There was a pre-sentence report but in view of the narrow issue raised in the appeal it is unnecessary to go into it in any great detail. Suffice it to say the report painted a picture of repeated non-cooperation with the probation service in relation to his obligations under the previous suspended sentence and under his licence conditions when he was eventually released following the activation of the suspended sentence in 2023. He claimed that his poor compliance with the notification requirements and the sexual harm prevention order had arisen from his disordered state in recent months following an increase in his use of the drug crystal meth. He said he had not used that or any drug since his arrest. He had acquired the undisclosed mobile phone on 19 February 2025 but said the phone was simply an upgrade after he gave his cousin his old phone. He had completely forgotten to disclose the new phone to the police. He said he only acquired the undisclosed laptop six days before his arrest in order to talk to friends living in the United States and Australia on Microsoft Teams. He thought he had already disclosed details of his new bank card.

He claimed that "some random person" had sent him the indecent images of children on Telegram but he did not know why. He claimed not to find the children sexually attractive and said he received no gratification from the photographs. He denied any sexual interest in young male children. The assessment in the report that he posed a risk of serious harm to children from further indecent image offending. There was no recommendation for a community sentence in view of his history of poor compliance and his actively deceptive behaviour in the breach offences.

In her sentencing remarks the judge noted that despite the chance the appellant had been given when he received a suspended sentence, he had repeatedly breached it and was eventually sent to prison for 10 months. He had shown little sign of complying with the help and support he was given and consistently sought to shift the blame to anybody but himself. He had finally been released on licence on 14 March 2024. The judge said that the current offences were more of the same. There was a deliberate failure to comply with the sexual offender notification requirements despite constant reminders. The indecent image offences, which came to light when he was arrested and his home was searched, demonstrated deliberate non-compliance with the sexual harm prevention order as well as being serious offences in their own right. The judge said that the pre-sentence report made very depressing reading.

The prosecution had served a sentencing note in which they set out their submissions on categorisation of all the various offences under the different applicable Sentencing Council guidelines. In opening the case prosecuting counsel explained the categorisation further. The judge did not follow the prosecution's categorisation in all respects. She adopted a lower categorisation for several of the offences. Before credit for plea, her sentences were as follows.

The judge found that the breach of the notification requirements by failing to report annually (offence 1) was a B1 offence with a starting point of 12 months. The other offence of failing to notify his acquisition of the bank card (offence 2) was category A1 because it was deliberate. The starting point for that under the guideline would have been 2 years but the judge imposed only 18 months. Those were the concurrent sentences for the first pair of offences, 18 months.

The breaches of the sexual harm prevention order (offences 3 and 4), the judge found, were category B1 offences, each with a starting point of 2 years. She imposed concurrent sentences of 2 years.

For the indecent photographs of children (offences 5 and 6) the starting point for the category A photographs was 12 months and for the category B offence 6 months. As there were three category A photographs the sentence on offence 5 was 18 months and for the category B offence the sentence was 6 months concurrent.

The sentences for each pair of offences would be consecutive. That made a total of 5 years' imprisonment. Giving credit of a full one-third the total sentence was 40 months' imprisonment (3 years 4 months). The judge varied the terms of the existing sexual harm prevention order so that it continues indefinitely until further order.

We observe, simply as a fact, that at no point during the sentencing remarks did the judge refer expressly to the principle of totality or indicate that she had adjusted any of the individual sentences in order to reflect that principle.

In her written submissions in the grounds of appeal, Ms Ahluwalia made it clear that there is no challenge to the individual categorisation of the offences. Her succinct submission in writing, developed in her oral submissions this morning, is that by making the pairs of offences consecutive, resulting in a total of 5 years before credit for plea, the sentence is manifestly excessive.

Specifically, Ms Ahluwalia suggests that the judge could and should have made the sentences for the indecent photographs (offences 5 and 6) concurrent with rather than consecutive to the breaches of the sexual harm prevention order (offences 3 and 4). That would have been correct in principle, she submits, because the images were found on the phone which was the subject of the breach in offence 4. Had the judge taken that course it would have brought the sentence down to 4 years rather than 5 years before credit for plea.

We deal first with the technical point in relation to offence 6. We are grateful to Ms Ahluwalia for her detailed written submissions and legal research. We are also grateful to prosecution counsel, Ms Ascherson, for her written submissions at the request of the Registrar. The issue arises because it was noted by the Criminal Appeal Office that the judge proceeded on the basis that offence 6 related to an image falling into category B of the relevant Sentencing Council guideline, whereas the charge form and memorandum of conviction in the magistrates' court both refer to it as a category C offence. In fact this discrepancy had been noted at a previous hearing in the Crown Court and the judge on that occasion uploaded the following note on the sidebar of the digital case system:

We are quite satisfied that this was a correct analysis of the position. We need not go into the matter in any detail. This Court held in R v Dodd [2013] EWCA Crim 660 at [22], that the categorisation of such images is “irrelevant” to the determination of guilt.

We note that the witness statement from the police officer who found the images on the appellant's phone correctly described this image as category B. The error seems to have crept in when the appellant was charged and the error in the charge form was repeated in the memorandum of conviction.

On the issue of totality it is salutary to note the guidance this Court gave in R v Bailey [2020] EWCA Crim 1719; [2021] 2 Cr App R (S) 15 on the relevant principles and the interpretation of the Sentencing Council guideline on Totality, hearing several appeals together. Giving the judgment of the Court, Green LJ said at [35-37]:

“35.

... the Totality Guideline makes plain that the purpose behind a judge taking totality into account is to ensure that the final sentence is just and proportionate. During argument there were suggestions that a judge should expressly use the expression “just and proportionate”. We disagree. There is no magic in words. What matters is whether the final sentence is just and proportionate, taking into account all the relevant facts and matters. On an appeal, a court should be able to identify whether this is so from the judge's recitation of relevant facts and aggravating and mitigating circumstances and from an assessment of how this is calibrated against the guideline.

36.

…a number of advocates suggested that the application of the totality principle was designed to lead to the judge applying an appropriate reduction to the sentence. Again, we disagree. Totality is designed to ensure that the sentencing exercise is not formulaic. As the guideline points out it is “usually” impossible to arrive at a just and proportionate sentence simply by adding up together notional sentences. Totality thus assists the judge to arrive at the correct sentence; it is not about reducing sentences as opposed simply to getting to the correct final sentence.

37.

... many of the arguments advanced before us focused upon the fact that the judge had imposed consecutive sentences when it was said that had she applied totality she would have applied concurrent (reduced) sentences, or, at least that she would have mitigated the length of the consecutive sentence. The Totality Guideline makes what seem to us to be the obvious point that there is no inflexible rule that sentences should be structured as concurrent or consecutive: “The overriding principle is that the overall sentence must be just and proportionate”.It follows that merely because a judge imposes consecutive sentences is not, in itself, indicative that totality has not been adequately considered."

We have already examined carefully in this judgment the judge's principled approach to categorising the individual offences, making the sentences for each pair concurrent. We note that with the exception of offence 5 (possession of three category A images), the judge never increased the sentence for any individual offence above the guideline starting point. Indeed for the notification offences the sentence before credit for plea was 6 months below the starting point. The judge made no increase from any starting point, as she could have done, to reflect the appellant's previous convictions. For the drugs offence and the Bail Act offence she imposed no separate penalty.

Consecutive sentences for each pair of offences were correct in principle. The fact that the indecent images (offences 5 and 6) were found on the appellant's new phone which he had failed to report, in breach of the sexual harm prevention order (offence 4) did not mean that concurrent sentences for those offences were appropriate; they represented separate criminality. It was a serious breach in itself to have the phone for two months without reporting its acquisition. On top of that, to have downloaded such images amounted to distinct serious criminality requiring separate punishment.

These were in combination very serious offences of their kind, displaying a complete disregard for the obligations of the sexual harm prevention order and the notification requirements which are designed to protect the public. The finding of the indecent photographs of young male children on his phone demonstrates the very serious risk which the breaches caused.

Standing back, we think that a total sentence of 5 years before credit for plea was fully justified. The sentence was just and proportionate. It was neither manifestly excessive nor in any way wrong in principle.

Accordingly, despite Ms Ahluwalia's tenacious and attractive submissions the appeal must be dismissed.