Newman, R. v

Factual and Procedural Background

This opinion concerns an appeal against sentence granted with leave of the single judge, focusing on the issue of totality in sentencing.

The Appellant, a 60-year-old man, has a history of convictions for offences involving illegal pornography, including indecent photographs of children and extreme pornography involving animals. Prior to the current convictions, he had seven convictions for 27 offences, including distributing and making indecent or pseudo-photographs of children, resulting in custodial sentences of 12 months and 3 years respectively. Following these offences, the Appellant was subject to notification requirements, which he breached, and a Sexual Offence Prevention Order (SOPO) was imposed in 2010 and varied in 2018. The SOPO prohibited the use of certain internet-enabled devices and software without notification to authorities.

On 6 October 2023, the Appellant was sentenced at the Crown Court at Isleworth to a total of 7 years and 8 months' imprisonment for offences arising from two indictments and a committal for sentence. The sentence comprised 4 years and 3 months for possession of indecent photographs and breaches of the SOPO on the joint indictment, and 3 years and 5 months for possession and further breaches on the committal, with the latter consecutive to the former. The judge stated that totality was considered and appropriate deductions were made.

Following the varied SOPO, police officers from a specialist team conducted visits and searches at the Appellant's residence, discovering multiple internet-enabled devices not disclosed by the Appellant. Forensic analysis revealed hundreds of indecent images of children, including category A images depicting very young children, and evidence of software designed to access the dark web and to eliminate forensic evidence.

The Appellant was interviewed multiple times, often declining to comment or legal advice. Devices seized contained extreme pornography involving animals and numerous indecent images of children. Investigations revealed ongoing use of internet-enabled devices without notification and use of software to conceal activities. The Appellant was arrested upon return from abroad and further devices were seized, confirming repeated breaches of the SOPO and possession of illegal material.

Legal Issues Presented

1. Whether the overall sentence imposed was disproportionate due to insufficient regard to the principle of totality.
2. Whether the sentences for breaches of the SOPO should have been concurrent rather than consecutive.

Arguments of the Parties

Appellant's Arguments

• The individual sentences were appropriate but the cumulative effect resulted in an overall sentence that was too long.
• The judge erred in principle by ordering consecutive sentences for the two sets of SOPO breaches instead of concurrent sentences.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court referred to the Sentencing Council Guideline on Totality, which requires that an overall sentence must be just and proportionate, reflecting the totality of offending behaviour, harm, culpability, and relevant aggravating and mitigating factors. The court acknowledged that possession of indecent images and breaches of SOPOs constitute distinct offences, warranting separate consideration in sentencing.

The court agreed with the judge's approach to structure the sentences to reflect separate criminality and to impose consecutive sentences for offences committed before and after July 2019, given aggravating factors such as the use of anonymising software and the ongoing investigation. However, the court found the aggregate sentence of 7 years and 8 months disproportionate in the circumstances.

To achieve proportionality, the court decided to maintain the individual sentences except for one adjustment: making count 1 of the committal concurrent rather than consecutive, and reducing the sentence on count 2 of the committal from 33 months to 30 months. This adjustment reduced the total sentence to 6 years and 9 months, which the court found proportionate.

Holding and Implications

The appeal was ALLOWED IN PART.

The court reduced the overall sentence from 7 years and 8 months to 6 years and 9 months by making one count concurrent and reducing one sentence slightly. This decision directly affects the Appellant's custodial term but does not establish new precedent or broader legal principles beyond the application of the totality principle in sentencing.