Neutral Citation Number: [2010] EWCA Crim 1996
Case No. 2010/01714/A6

IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Thursday  17  June  2010

B e f o r e:

LORD  JUSTICE  MOSES

MR  JUSTICE  HOLMAN

and

MR  JUSTICE  CHRISTOPHER  CLARKE
_______________

ATTORNEY GENERAL'S REFERENCE No. 28 of 2010
UNDER  SECTION  36  OF
THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A

- v -

MICHAEL  ANTHONY  CHARNLEY
__________________

Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone No: 020 7404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
__________________

Mr P Wright QC appeared on behalf of the Attorney General

Mr M I Davies appeared on behalf of the Offender
____________________

J U D G M E N T

LORD JUSTICE MOSES:  
1.  This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court a sentence which she considers to be unduly lenient.  We grant leave.

2.  The Reference raises the question of the appropriate level of sentencing where the offender procures the sexual abuse, including the penetration of young, vulnerable children by paying an adult in the Philippines, or other such countries, on his behalf and for his sexual gratification sexually to abuse very young, vulnerable children for money.

3.  The offender is Michael Charnley.  He is 55 years of age.  On 29 January 2010, in the Crown Court at Mold, he pleaded guilty to nineteen counts (counts 1 to 19) of making indecent photographs of a child (seventeen similar offences were taken into consideration); three counts (counts 20 to 22) of causing or inciting a child under 13 to engage in sexual activity contrary to section 8 of the Sexual Offences Act 2003, where no penetration was involved (the maximum sentence for which is therefore fourteen years' imprisonment); and one count (count 23) of causing or inciting a child under 13 to engage in sexual activity contrary to the same provision, where penetration did occur (the maximum sentence for which is life imprisonment).

4.  On 2 March 2010 the offender was sentenced by His Honour Judge Philip Hughes to a total of five years' imprisonment made up as follows: on counts 1 to 19, making indecent photographs of a child, a total of four years' imprisonment, comprising separate sentences on each varying between twelve months, two years and four years; on counts 20 to 22, three years' imprisonment; and on count 23, five years' imprisonment.  All of those sentences were ordered to run concurrently.  The judge focused on the Sentencing Guidelines Council's Definitive Guideline and in relation to the more serious offences seemed to take a starting point of seven years; otherwise he gave no reasons in his sentencing remarks for that total sentence.

5.  The offender lived on his own.  He had a background of service for many years in the army.  Over a period of eighteen months, between September 2007 and the date of his arrest on 17 September 2009, the offender persisted in making, by downloading and retaining, 11,000 indecent still images and 356 films with indecent images all involving children.  The children depicted in counts 1 to 19 came from across the globe.  They lived in dire circumstances.  Clearly their vulnerability had been exploited so as to enable the acts to which we fear we must turn of rape and sadism, thus leading to images varying between Levels 1 to 5.  

6.  It is unnecessary to detail each and every one of the images which the offender made.  It suffices to demonstrate the gravity of these offences on their own to record that each one involved a different vulnerable, exploited young child.  We take, for example, count 4.  The offender made images of a naked female child, approximately 11 years old, penetrated by an adult with an object and with the penis, orally, vaginally and anally over a period of no less than 101 minutes.  Count 5 involved a female child of approximately 12 years, naked, tethered to a bed by leather straps, raped by two males wearing masks, and assaulted by a lit candle strapped to her flesh.  She was penetrated with objects orally, vaginally and anally over a period of 16 minutes.  

7.  For those offences the judge passed a sentence on count 4 of two years' imprisonment and on count 5, four years' imprisonment.

8.  Count 14 involved penetrative sexual activity with a child aged 8 years and an adult male.  Count 16 involved a child of approximately the same age, penetrated both vaginally and orally by two adult males.  Count 17 involved a naked child locked in an animal transportation cage.  For those offences the judge passed sentences of two years' imprisonment on count 14, two years' imprisonment on count 16, and four years' imprisonment on count 17.

9.  There were other victims because the offender asked for other offences of a similar nature to be taken into account.  It is dispiriting to note how easy it is to overlook the fact that each of the images presents a live child victim subjected to this abuse.  

10.  It is far less easy to overlook the reality of the victim and the abuse at the far side of the world where children are so very vulnerable in relation to the other counts to which we now turn.  On 35 occasions, over a period of about ten weeks, between June 2009 and the date of his arrest, the offender used the internet to contact adults in the Philippines.  He agreed to pay them, to use a password and to obtain children, aged between 2 and 17, so that he could view, in real time, the abuse for which he asked.  He typed out instructions on his computer, explained what he required to be done to those children and recorded the events.  He would contact the individuals, issue the instructions and engage in dialogue, having agreed to pay and give a password, as to the sexual activity in which he wished the other adult and the child to engage.  He then downloaded those images.  The police were able to examine the "chat logs" which showed the offender's manipulation and incitement of the sexual activity.  

11.  In count 20 he instructed a young child of approximately 12 years to move the focus of the camera to her vagina as he typed out his instructions.

12.  In count 21 a different child of approximately the same age was instructed to remove her clothes and expose herself.

13.  Count 22 involved events over the space of one hour and 20 minutes whilst an adult commits sexual acts in the presence of a child of approximately 9 years, which the child eventually copies by exposing her vagina and touching herself.  This was all done on the instructions of the offender.  

14.  No penetrative activity occurred on those three occasions.  However, count 23 describes events where a child aged between 2 and 4 years is lying down and at the instigation of the offender is penetrated by an adult female with what appears to be a pen.  After a pause, the adult repeats that activity.  The offender made some excuse by way of mitigation that that was not what he had asked to be done, but it is plain that he instigated that activity and, when it had happened once, instigated it again.  There is therefore no mitigation on the lines upon which he seeks to rely.

15.  As the Reference notes, it is not possible to identify with precision the number of different children captured in the images and subjected to abuse, but we record that there were fourteen other offences taken into consideration with different children where the offender caused or incited those young children to engage in sexual activity.

16.  What appears to have gone wrong in some respects in relation to the judge's approach is a discussion as to the appropriate guideline within the Definitive Guideline to which we have already referred.  There appears to have been no reference to the introductory remarks to that guideline as to the features demonstrated in these offences by way of aggravation.  These were planned offences, which make the offender more highly culpable: see paragraph 1.12.  The nature of the activity involved penetrative acts: see paragraph 1.18.  There were multiple victims and sustained and repeated assaults on particularly vulnerable children: see page 10.  

17.  It is in that context that it is necessary to look at page 39 of the guideline.  Unfortunately, the judge was led into a discussion as to the seriousness of count 23 as a single offence.  In fact, count 23 was but one of a number of offences in which this type of activity was incited by the offender.  It is plain that the judge was led into error as to the starting point of seven years.  The starting point was clearly one of thirteen years and the range was between eleven to seventeen years' custody for a single offence, since there were clearly aggravating features such as the involvement of more than one offender acting together, and the fact that the young child in count 23 must have been abducted or detained.

18.  If vulnerability needs to be emphasised one has only to look at the discussions on the chat log recovered by the police where on one occasion, when the offender complained that he did not have a clear enough view of the child's private parts and wished to cancel his payment, the adult at the other end said that the child needed to buy a notebook, a bag and food.

19.  We must bear in mind that the offender was a man of previous good character.  He had served for many years in the army.  After making no comment initially, he had pleaded guilty and, according to the pre-sentence report, had exhibited remorse.  However, the level of sentencing in our view was wholly inadequate and did not begin to meet the gravity of these offences or reflect the fact that the victims were young, vulnerable children.  The fact that they were the other side of the world, in countries such as the Philippines, but that modern communications enabled the offender to procure their sexual abuse is no mitigation.  It is indeed an aggravation.  No doubt the offender and others like him thought he could far more easily escape detection by committing these offences in that way by payment through a credit card than if he had dared to be present and commit these offences within this country.  What a public outcry there would have been if the children had come from the United Kingdom and a sentence had been passed of no more than five years' imprisonment.

20.  The other major error into which the judge fell was in ordering all these sentences to run concurrently.  Although some adjustment must be made to reflect the totality so as to ensure that the total sentence is not excessive, these were all separate offences committed against separate, individual children.  Each offence merited severe punishment.  It is plain that such offenders, obsessed with the opportunity so easily on payment to obtain their own sexual gratification at the cost of terrible abuse of these children, need to be deterred.  These children, coming as they do from impoverished circumstances, need protection.  They need protection against the ever more sophisticated methods by which offenders obtain sexual gratification.

21.  The quality and the cruelty of these acts needs no underlining from this court.  It is apparent that there is nothing in the Sentencing Guidelines Council guidelines, nor in previous authority which has had to grapple with the gravity of offences such as these.  In those circumstances we shall set out what we believe to be the appropriate sentence in relation firstly to counts 1 to 19.  We think that a starting point on a contested trial would have been in the region of seven years.  Having regard to the plea of guilty, we will not alter the total sentence in relation to those of four years' imprisonment, although we think that had those offences stood on their own and even if they had been far fewer in number, a higher sentence would have been merited, even on a plea of guilty.

22.  The offences charged in counts 20, 21 and 22, including the fourteen taken into consideration, certainly merit on a trial a sentence in the region of seven years' imprisonment.  On a plea the sentence of three years' imprisonment is, in our judgment, too low.  We shall substitute for those, sentences of four years' imprisonment.  Again, had they stood on their own a higher sentence in the region of five years' imprisonment might well have been merited.  Those sentences should run consecutively to the sentences of four years' imprisonment.

23.  The starting point on count 23 following a trial should have been in the region of 13 years' imprisonment.  Allowing for the plea of guilty, the sentence should be one of eight years' imprisonment.  If that is ordered to be served consecutively, as it should be, that would make a total of sixteen years' imprisonment.  However, we must have regard to totality.  Had that offence stood on its own, as we have said, a sentence on a plea of guilty in the region of eight years would have been appropriate.  The offender, and others like him, certainly merit very severe sentences indeed.  However, having regard to totality, we shall order that that sentence of eight years' imprisonment is to be served concurrently with the sentence of four years' imprisonment on counts 20 to 22, making a total of eight years' imprisonment in all on counts 20 to 23, and taking those fourteen offences into consideration.  However, that period of eight years' imprisonment will be ordered to run consecutively to the sentences on counts 1 to 19.

24.  It will be noted in our observations that we have taken the view that those are the very minimum sentences on a plea of guilty.  Higher sentences, even in respect of an offender with no previous convictions, could be merited.

25.  In those circumstances, the total being twelve years' imprisonment, we see no room for any deduction to allow for double jeopardy or any further personal mitigation.  Thus the total sentence in respect of this range of offences, designed to bring home their gravity and cruelty, is one of twelve years' imprisonment.

	________________________________