At BSQ, we closely follow developments in case law that impact sentencing decisions in cases involving indecent images. Recently, the Court of Appeal upheld a 30-month immediate custodial sentence for a defendant charged with distributing indecent images. As a general points of principle Courts may consider case law when determining appropriate sentences although the Sentencing Guidelines retain primacy and must be followed.

Background

In R v Darren Hugh Hollywood [2024] EWCA Crim 591, dated May 10, 2024, the Court of Appeal was asked to review a 30-month imprisonment sentence handed down by Judge Ashworth at Portsmouth Crown Court. Mr. Hollywood was charged with several offences, including both making and distributing indecent images. The lead offence, involving the distribution of Category A images, resulted in a 30-month prison sentence. Concurrent eight-month sentences were imposed for the other offences.

The Sentencing Guidelines suggest a starting point of three years' custody for distribution offences, with a range of 2 to 5 years. The evidence in this case revealed that Mr. Hollywood had sent two Category A images, two Category B images, and one Category C image to an individual named Paul. The images, which depicted children aged between seven and twelve, were sent on a single occasion, September 28, 2021.

In addition to these distribution charges, police found 185 Category A images, 120 Category B images, and 217 Category C images on various electronic devices at Mr. Hollywood's home during a search on January 22, 2023. These findings formed the basis for the making charges.

Mr. Hollywood admitted to the offences during his police interview, explaining that his actions occurred while he was intoxicated and dealing with personal issues, including low self-esteem and health problems. He later pleaded guilty to all charges.

Court of Appeal's Decision

The Court of Appeal dismissed the appeal, finding that the sentence imposed was not manifestly excessive. The trial judge had started with a notional sentence of 40 months after trial but reduced this by 25% to 30 months in recognition of Mr. Hollywood's guilty plea. This sentence was beyond the range for which a suspended sentence could be considered, which is applicable for custodial sentences between 14 days and two years.

In its brief decision, the Court of Appeal rejected arguments that the 40-month notional sentence was excessive, despite the limited nature of the distribution (a single occasion) and the absence of prior similar offences. The court also dismissed concerns that the distributed images did not contain the most severe aggravating factors present in other counts.

Implications for Future Cases

While this decision is significant, it may be best understood as being confined to its specific facts. BSQ's experience in similar low-level distribution cases suggests that Crown Courts are often open to defence arguments that a suspended sentence is appropriate, especially where there is a strong prospect of rehabilitation. For example, in a recent London Crown Court case, a BSQ client received a suspended 16-month sentence for a single incident of distribution, despite a broader context of making offences.

In Mr. Hollywood’s case, the decision not to suspend the sentence might have been influenced by evidence that he had discussed committing paedophile offences with the individual Paul to whom he sent the images.

The Court of Appeal's decision also overlooked some significant factors. Notably, the court did not consider the three-year delay between the distribution offence (September 28, 2021) and the sentencing (February 16, 2024), during which no further distribution occurred. Additionally, the court did not address in detail the probation officer’s assessment of Mr. Hollywood's potential for rehabilitation.

Moreover, the decision may be considered per incuriam (through lack of due regard to the law) as it failed to take into account judicial pronouncements on prison overcrowding. Since November 2022, Operation Safeguard has been in place due to overcrowded prisons, a situation that persists. The Ministry of Justice has also alerted practitioners about early releases. In R v Manning [2020] EWCA Crim 592, the Court held that the impact of prison conditions could be relevant in determining the length and type of sentence.

Finally, the Court did not address the potential risk of double counting aggravating factors, which was used to justify increasing the starting point from three years to 40 months.

Conclusion

Despite this decision, there remains a powerful argument for Courts to consider suspended sentences in low level distribution cases where there is no commercial motive. Specifically, it could be argued that suspended sentences may be justified where there is  measured regard of current prison conditions in cases involving defendants of good character who plead guilty at an early stage and are assessed as presenting a sufficient prospect of rehabilitation. Many Crown Courts have taken this approach in similar cases in BSQ’s experience.

You can find more information about our indecent images solicitors, who are based in London. If you are accused of an indecent images offence and require legal representation, please contact our offices on 020 3858 0851.