This considers offences relating to indecent images of children.
Nature of the case
This case is about the correct sentencing levels for those convicted of making and distributing indecent images of children.
On 14 August 2009, David WilliamGraham pled guilty to five charges involving sexual offences against children, including two charges of making and distributing indecent images of children.
A total of 127,269 indecent images were recovered from his computers, of which 80,205 were unique. Of those, 79,011 were still images and 1,194 were moving image files.
In excess of 10,000 images were of the two most serious categories for such images. Mr Graham classified and stored the images in various files on his computers and traded images with others.
The issue in this case was whether the original sentence given for making and distributing such images (six months imprisonment, discounted from nine) was too short. This case also provides guidance about the correct sentencing levels in similar cases.
In this case, the High Court decided that:
- The sentence imposed was too short.
- In cases like this, it was very important that sentences punished those found guilty, that they showed that society strongly disapproved of such behaviour and that the sentences were enough to stop others from doing the same thing in the future.
- The Definitive Guideline issued by the Sentencing Guidelines Council in England and Wales was helpful and should be used in all cases like this while it remained in force. The Sentencing Council’s Definitive Guideline on Sexual Offences for England and Wales came into force on 1 April 2014. See Sexual offences: Definitive guideline
- Whether the number of images was thought to be a large or small number was a matter of judgement in each individual case, but as a general benchmark, images numbering in the low hundreds could be described as a ‘small’ number, while images numbering in the high hundreds or thousands could be called a ‘large’ number.
- Moving images (i.e. films) are not automatically more serious than still images (i.e. photographs), but moving images might be more vivid and corrupting than still images. However, the key issue was the nature of the activity contained in the image and how much involvement the offender had with it.
- To distribute indecent images to other people, by exchanging them or putting them in shared folders or drives on a computer, was to be treated the same as selling them.
- Showing or sharing indecent images was a serious offence, and other aggravating factors set out in the Definitive Guideline (such as using drugs or alcohol to make someone take part in creating the images, or making threats to stop someone reporting the activity) should be followed. In every case, a judge should look at how long the offender had been downloading or sharing the images.
- The mitigating factors set out in the Definitive Guideline should be followed as well. The fact that the offender had not been in trouble before should not be considered very important. The fact that the offender had a disturbed background or history is also something that a judge should not think very important.
- In this type of case, it was rare for the evidence of child witnesses to be given. So the fact that an offender pled guilty early and avoided a trial had less weight than usual and the level of sentencing discount might be less than in other cases. See also Du Plooy and Gemmell.
- In Scotland, each judge could decide for themselves whether they needed to see the images in a particular case. They could also decide that the description of the images given by the Crown was enough to allow them to understand what the images were.
- Given the facts of this case, the offender should have been given a sentence of seven years imprisonment as a starting point. The discount applied was one tenth. So the original sentence was replaced by a new sentence of six years and four months.
HM Advocate v Graham