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Easton & Piper: Sentencing and Punishment 2e

Chapter 7

Case study

At the end of Chapter 7 we provided a sentencing exercise. We asked you to imagine that you are Zack's solicitor who has to explain to Zack what options are open to the Crown Court judge at the sentencing hearing and what the judge is most likely to decide.

Below we reproduce the facts of that case:

Zack is 38 years old and has suffered from mild schizophrenia for almost 20 years. Three years ago he spent a month in hospital for psychiatric treatment to establish a new medication regime. His condition has since been stable and he works as a labourer. He has always lived with his mother who is now elderly and infirm and depends on him for her shopping and laundry.

When doing building work over a period of time in a family home Zack made friends with Yasmin, the 7-year-old daughter of the family, and persuaded her to let him take several photos of her, in particular poses, when she was undressing. He told her to keep the 'photo shoot' as their little secret but Yasmin was excited, thinking she could become a model when she grew up, so she told her parents about the photos. They contacted the police and the photos were found on the computer in Zack's house. The computer provided evidence that he had copied the photos to three friends.

Zack pleaded guilty at the Magistrates' Court to a charge of taking and distributing indecent photographs of a child (section 1 of the Protection of Children Act 1978). The maximum penalty for this offence on indictment is 10 years and it is a specified offence listed in Schedule 15 of the Criminal Justice Act 2003. The Magistrates transferred his case to the Crown Court for sentencing. The photos were referred to COPINE (Combating Paedophile Information Networks in Europe) which graded the images as being of the lowest category of obscenity. Zack has two previous convictions (for being drunk and disorderly and for theft in breach of trust) for which he received a fine and a short custodial sentence respectively.

In advising Zack you should include the following:

  1. Explain to Zack whether the provisions of the Mental Health Act (MHA) 1983 (as amended) might apply to his situation and whether the court would have to use such provisions. In particular you should check whether the amendments to the MHA 1983 by the MHA 2007 have yet been bought into force and, if so, whether the definitions of mental disorder and the treatability test have been replaced. You need to explain to Zack what the judge might do if he came to the conclusion that he should use the order provided for in the MHA 1983 rather than punitive sanctions.

  2. Explain that the normal sentencing framework is based on seriousness and proportionality but that his offence is a an offence listed in Schedule 15 of the Criminal Justice Act 2003 so that the judge must consider the sentences for dangerous offenders in the CJA 2003. Students should therefore explain the import of the criteria for IPP, life and extended sentences, the distinction between serious specified offences and other specified offences, and the statutory guidance in s229 and in case law on assessing risk of future harm to he public. You should check whether the amendments to ss 225-229 of the CJA 2003 have been brought into force and amend your advice accordingly.

  3. Decide what decision the judge is most likely to make in relation to ii) above and then apply to the facts of the case some of the aggravating factors allowed by statute or case law (e.g. vulnerable victim, breach of trust, previous convictions) and any mitigation relating to the offending or the offender (guilty plea, health, family responsibilities, grade of indecency in photo) in order to determine the amount of seriousness for the purposes of either deciding the minimum term to be served or deciding on a commensurate sentence (without or without an extended period). Good students will refer to guidance on seriousness and normal ranges for this offence.

  4. Note registration on the Sex Offenders Register.

NOTE: the case study provided in section 13.4.4 of Chapter 13 covers material in Chapter 8 as well as Chapter 13. You might wish to look at the guidance given on this Online Resource Centre for doing that case study.