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Smith, R. v
Factual and Procedural Background
Appellant was sentenced in the Crown Court at The City to three years and four months’ imprisonment for offences involving indecent images of children, breaches of a sexual harm prevention order, and failures to comply with sex-offender notification requirements. He had pleaded guilty and received full one-third credit. [1][2]
The offences comprised three pairs of offences, with the sentences for each pair imposed concurrently and the three pairs ordered to run consecutively. No separate penalty was imposed for possession of a Class B drug or failing to surrender to bail. [3][4][5][6][7]
Appellant had previous convictions for similar sexual offending, had breached an earlier suspended sentence and sexual harm prevention order, and failed to comply with notification obligations. A search following his arrest revealed an undisclosed bank card, laptop and phone, together with indecent images of children. [8][9][10][11][12][13][14][15][16][17]
With leave of the Single Judge, Appellant appealed against sentence on the issue of totality. [1][18]
Legal Issues Presented
- Whether the sentence was manifestly excessive because the sentences for the indecent-image offences were consecutive to the sentences for breaching the sexual harm prevention order. [19][20]
- Whether it was lawful to sentence one offence on the basis that an image fell within category B, although the charge and memorandum of conviction described it as category C. [21][22][23]
Arguments of the Parties
Appellant’s Arguments
- Appellant did not challenge the individual categorisation of the offences but argued that the overall sentence of five years before guilty-plea credit was manifestly excessive. [19]
- It was submitted that the sentences for the indecent-image offences should have been concurrent with, rather than consecutive to, the sentences for breaching the sexual harm prevention order because the images were found on the phone forming the subject of one breach. This would have reduced the sentence before credit from five years to four years. [20]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Dodd [2013] EWCA Crim 660 | Categorisation of indecent images is irrelevant to determining guilt; categorisation is ultimately for the sentencing judge and forms part of the Sentencing Council guideline rather than the statutory offence. | The Court held that the image was properly category B because it depicted non-penetrative sexual activity, and accepted that sentencing on that basis was lawful. [23] |
| R v Bailey [2020] EWCA Crim 1719; [2021] 2 Cr App R (S) 15 | Totality requires the overall sentence to be just and proportionate. It is not a formulaic reduction exercise, and consecutive sentences do not themselves show that totality was ignored. | The Court applied those principles and concluded that the consecutive structure produced a just and proportionate sentence. [24][25][26][27][28] |
Court’s Reasoning and Analysis
The Court first rejected the technical challenge concerning the categorisation of the image. Although the charge form and memorandum of conviction described it as category C, the evidence showed category B conduct, and the defence had not objected to sentencing on that basis. [22][29][23][30]
The Court then considered totality. Applying R v Bailey, it stated that the relevant question was whether the final sentence was just and proportionate, rather than whether the judge had used particular terminology or imposed a reduction. There was no inflexible rule requiring concurrent rather than consecutive sentences. [24][25][26][27][28]
The sentencing judge had imposed concurrent sentences within each pair and generally did not exceed the applicable guideline starting points. She had also imposed no separate penalty for the drug and Bail Act offences and had not increased the sentence to reflect Appellant’s previous convictions. [31][32][33]
The Court held that consecutive sentences were correct in principle. Possessing the undisclosed phone in breach of the order was separate criminality from downloading indecent images onto it, even though the images were found on that phone. [34]
Viewed together, the offences demonstrated serious disregard for protective notification and prevention requirements and created a serious risk to children. The total sentence of five years before credit was therefore neither manifestly excessive nor wrong in principle. [35][36]
Holding and Implications
Appeal dismissed. The Court upheld the sentence of three years and four months’ imprisonment, representing five years before credit for the guilty pleas. [36][37]
The direct consequence was that Appellant’s sentence remained in force. The opinion identifies no broader implication beyond applying the principles of image categorisation and totality to these facts, and does not purport to establish a new precedent. [23][28][36]
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