Pacyno, R. v

Factual and Procedural Background

This opinion concerns an application by the Director of the Public Prosecution Service ("the DPP") for leave to make a reference to the Court of Appeal under section 36 of the Criminal Justice Act 1988 (as amended) to review a three-year probation order imposed on the Respondent on 19 September 2023 by Her Honour Judge McColgan KC ("the judge"). The sentence followed the Respondent's guilty pleas to 37 counts involving sexual offences against children, including engaging in sexual activity in the presence of children aged under 13 and between 13 and 16, causing or inciting a child to engage in sexual activity, making and possessing indecent images of children, possessing prohibited images of children, and possessing extreme pornographic images.

On 16 January 2019, police searched the Respondent's home in The City and seized devices containing numerous indecent images and recordings of the Respondent masturbating on live streams watched by multiple female children, involving 17 children in total. The offending spanned approximately four to five years (October 2014 to January 2019). The Respondent was committed to Belfast Crown Court in May 2023, pleaded guilty to all counts in June 2023, and was sentenced to a three-year probation order in September 2023. Several ancillary orders, including a five-year Sexual Offences Prevention Order, were also imposed but are not subject to this reference.

Legal Issues Presented

1. Whether the three-year probation order imposed on the Respondent was unduly lenient given the seriousness of the offences.
2. Whether the sentencing judge erred in failing to impose an immediate custodial sentence despite the custody threshold being passed.
3. The appropriate sentencing range and principles applicable to offences involving engaging in sexual activity with children online and possession of indecent images.
4. Whether delay in prosecution constituted culpable delay warranting reduction in sentence.
5. The application of the double jeopardy principle in deciding whether to quash or increase the sentence on reference.

Arguments of the Parties

Applicant's Arguments

• The three-year probation order was unduly lenient, especially regarding counts one to ten involving sexual activity with children on live streams.
• Offending was aggravated by possession of a large number of indecent images across all classifications, warranting custodial sentences between six months and three years per established guidelines.
• Sexual offences involving children require deterrent and condign punishment, as supported by established authorities.
• Delay in prosecution was not culpable, and the identities of child victims being unknown is of marginal importance since harm can be inferred.
• Cases involving remote sexual exploitation are equally serious and require custodial sentences, as recently affirmed in relevant case law.

Respondent's Arguments

• The Respondent accepted the seriousness of the offences but contended the probation order was an appropriate alternative to custody.
• The sentencing judge applied the correct principles and imposed a condign punishment including an intensive treatment programme.
• Relied on precedent where similar probation orders were imposed with consent in cases of comparable or greater seriousness.
• Argued that delay in prosecution was culpable and should be considered in sentencing.
• Highlighted significant personal consequences suffered post-sentencing, including loss of home, employment, and threats to personal safety.
• Submitted that even if the sentence was unduly lenient, the court has discretion whether to quash it, considering double jeopardy and fairness.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v QD [2019] NICA 23	Seriousness of offences involving exploitative sexual activity with children; high culpability; harm presumed even if victims unidentified.	Used to establish that offending involving sexual activity with children is inherently harmful and justifies custodial sentences; cited to reject marginal importance of unidentified victims.
R v Oliver & Others [2002] EWCA 2766	Sentencing guidelines for possession of indecent images of children; custodial sentences from six months to three years depending on quantity and category.	Adopted as guideline for sentencing in possession offences; court noted sentencing judge did not appear to apply these guidelines fully.
AG's Reference (No. 2 of 2002) [2002] NICA 40	Requirement for deterrent and condign punishment in sexual offences against children.	Reinforced principle that such offences require custodial sentences; supported granting leave for reference.
AG's Reference (No. 4 of 2005) (Martin Kerr) [2005] NICA 33	Sentencing principles emphasizing seriousness and deterrence in sexual offences against children.	Supported the court's approach to sentencing and the need for custodial sentences in serious cases.
R v Maxwell [2023] NICA 21	Reaffirmation of Oliver guidelines; sentencing for indecent image offences.	Confirmed ongoing applicability of Oliver guidelines; distinguished possession cases from those involving active sexual offending.
R v Watson [2022] NICA 71	Seriousness of sexual exploitation offences involving remote internet interaction; custodial sentences justified.	Applied to emphasize seriousness of remote sexual offences; court noted sentencing judge was not made aware of this authority.
R v Kidd [2022] NICA 75	Consideration of culpable delay in prosecution affecting sentencing.	Relied upon by Respondent to argue for reduction due to delay; court found delay was culpable but allowed only partial reduction.
R v Corr [2019] NICA 64	Discretion in quashing unduly lenient sentences; double jeopardy considerations.	Used as precedent to exercise discretion not to quash sentence where prosecution advanced new case; distinguished on facts as Respondent had not served custodial sentence.
R v Ahamad [2023] NICA 52	Application of double jeopardy principle and discounting sentence increases on reference.	Referenced to justify discount in sentence increase due to double jeopardy concerns.

Court's Reasoning and Analysis

The court began by reiterating the stringent test for granting leave to make a reference under section 36 of the Criminal Justice Act 1988, emphasizing that only sentences deemed unduly lenient—falling outside the reasonable range a sentencing judge could impose—justify intervention. The court found that leave was merited because the sentencing judge appeared to have considered only the possession offences when imposing the probation order, without adequately addressing the more serious sexual activity offences involving children.

The court acknowledged aggravating factors including multiple victims, a prolonged offending period, and recording and retention of material. Mitigating factors such as the Respondent’s guilty plea and lack of previous convictions were considered but viewed as neutral or limited in weight.

Importantly, the court emphasized that offences involving engaging in sexual activity with children, even if conducted remotely over the internet, are inherently serious and require immediate custodial sentences. The court provided guidance that such offences should attract custodial sentences of three to five years on contested trials, with personal mitigation having minimal effect unless exceptional circumstances exist.

The court criticized the sentencing judge for insufficient explanation regarding the justification for a non-custodial sentence despite acknowledging the custody threshold was passed. It noted the probation report’s assessment of medium risk and the Respondent’s minimization of offending undermined the suitability for probation as a substitute for custody.

The court acknowledged the delay of approximately five years in prosecution was culpable, breaching reasonable time requirements under domestic law and the European Convention on Human Rights, warranting a reduction of six months from the sentence.

Regarding the guilty plea, the court found the sentencing judge was generous in allowing maximum credit but chose not to interfere with this exercise of discretion. The court also rejected any lesser seriousness of remote offences compared to physical contact, emphasizing the active sexual conduct on live streams and incitement of sexual activity by children.

In exercising discretion whether to quash the sentence, the court distinguished the present case from precedent where the offender had served custodial time, noting here the Respondent had not served any custodial sentence. The court took into account the Respondent’s engagement with probation, personal hardships, and the principle of double jeopardy, applying a discount to the final sentence.

Balancing these factors, the court concluded the original probation order was unduly lenient and that an immediate custodial sentence was appropriate.

Holding and Implications

The court ALLOWED THE REFERENCE, quashed the three-year probation order originally imposed, and substituted it with an 18-month sentence of immediate imprisonment, split equally between custody and licence.

Additionally, the court imposed a Disqualification Order under Article 23 of the Protection of Children and Vulnerable Adults (NI) Order 2003, placing the Respondent on the barred list for children and vulnerable adults under the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007, and extended notification requirements under the Sexual Offences Act 2003 to 10 years.

This decision establishes clear guidance for sentencing in cases involving sexual activity with children conducted remotely over the internet, emphasizing that such offending is as serious as physical contact offences and requires immediate custodial sentences. The court underscored that absence of identified victims does not diminish the seriousness or the need for deterrent punishment. No new precedent was set beyond reaffirming existing principles and providing sentencing guidance for similar offences in the future.