Johnston, R. v

Factual and Procedural Background

The Full Court considered an application for leave to appeal against sentence referred by the Registrar of Criminal Appeals. The Appellant, a 78-year-old man of previous good character, was prosecuted for historical sexual offences including buggery and matters relating to indecent photographs of a child. The Victim was afforded statutory lifelong anonymity.

The indictment originally included two counts of buggery (dating from 1976–1977) and an allegation under the Protection of Children Act 1978 concerning indecent photographs. The prosecution could not prove that the photographs were taken after the 1978 Act came into force, and an alternative count was added under section 160(1) of the Criminal Justice Act 1988. The Appellant pleaded guilty to possession of 63 category C indecent photographs of a child (1988 Act); the 1978 Act count was not proceeded with. The Appellant was acquitted of the buggery counts at trial.

Factual findings at trial included that, while employed as a teacher at Company A (a boarding school in The State), the Appellant had taken Polaroid photographs of the Victim (then about 15), kept contact with the Victim after school, and in 2016 gave the Victim a USB stick containing digital images derived from the Polaroids. The Crown's case inferred that the Appellant had downloaded and transferred the images to the USB stick; the Victim delivered the USB stick to police in April 2022.

Legal Issues Presented

1. Whether the Appellant should have been sentenced on the basis that he had produced the indecent photographs (production) rather than on the offence to which he pleaded guilty (possession).
2. Whether, in light of the appropriate categorisation and aggravating/mitigating factors, the resultant custodial sentence should be suspended.

Arguments of the Parties

Attorney Sullivan (for the Appellant)

• The trial judge erred by adopting a starting point consistent with production—an offence more serious than the offence to which the Appellant had pleaded guilty and had not been convicted of.
• Sentencing should have proceeded on the possession category, with aggravating factors then taken into account.
• Reliance was placed on R v Marshall [2023] EWCA Crim 1640 to show the judge's approach was wrong; that error affected the judge's decision not to suspend the sentence.

Attorney Myatt (for the Crown)

• At trial it was accepted that the Appellant had taken the photographs; cross-examination of the Victim proceeded on that basis.
• Reference was made to R v Jaycock [2024] EWCA Crim 954; [2024] 4 WLR 65 to support that it was not wrong to sentence on a production basis, or alternatively that the sentence was defensible because the offending was seriously aggravating even if treated as possession.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began from the fundamental principle that a defendant must not be sentenced for an offence to which he did not plead guilty or of which he was not convicted. Section 230 of the Sentencing Act 2020 requires the court, when imposing custody, to consider the seriousness of the offence and to take into account available information about circumstances, including aggravating and mitigating factors.

The court accepted that the trial judge was entitled to be satisfied that the Appellant had photographed the Victim. However, the court concluded that the act of taking those photographs occurred at a time when that conduct was not a criminal offence. Sentencing the Appellant on the basis that he had produced the images therefore went beyond permissible consideration of background circumstances and crossed the line into sentencing him for conduct that was not criminal at the time it occurred.

The court applied the principles in R v Canavan & Ors and considered R v Marshall and R v Jaycock. It distinguished Jaycock on the basis that Jaycock concerned creation of new images by digital manipulation (properly treated as production), whereas here the photographs were taken earlier, before criminalisation. The court held that the Appellant's criminality was the possession of the images after possession became an offence under the 1988 Act, and that aggravating factors relevant to possession (length of possession, abuse of trust, Victim known to the Appellant, Victim depicted intoxicated, breach of promise to destroy images) could be taken into account within the possession categorisation.

On re-categorisation, the guideline starting point for possession is a high-level community order with a category range up to 26 weeks' custody. Given the number and severity of aggravating factors, the court considered the offending to fall at the top of the range and, in the interests of justice, extended beyond the category range to a notional one-year custody sentence after trial. Taking account of mitigation and plea credit, the court reduced that to 9 months' imprisonment.

Finally, the court considered suspension. Although there were mitigating factors (prospect of rehabilitation, low risk of reoffending, advanced age and health issues making custody difficult), the court concluded that the seriousness of the offence—possession after a long period and in breach of a promise to destroy—meant appropriate punishment could only be achieved by immediate custody.

Holding and Implications

APPEAL ALLOWED IN PART

Holding: The court allowed the appeal in part and replaced the sentence of 51 weeks' imprisonment with a sentence of 9 months' imprisonment, recognising that the Appellant must be sentenced for the offence of possession (to which he pleaded guilty) and not for production of images at a time when that conduct was not criminal.

Implications: The direct effect is that the Appellant's custodial term was reduced to 9 months and the appeal succeeded to that extent. The decision applies established principles limiting sentencing reliance on uncharged or unadmitted conduct; the court did not purport to create a new general principle beyond applying existing authorities to the facts of this case.