Court of Appeal quashes suspended sentences for child pornography offences as they were unduly lenient and disproportionate.

APPROVED NOT REDACTED

THE COURT OF APPEAL

Neutral Citation: [2024] IECA 321

Record Number: 114/2024

McCarthy J. Kennedy J. Burns J.

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

- AND –

ANTHONY RYAN

RESPONDENT

JUDGMENT of the Court delivered on the 17th day of December 2024 by Mr Justice Patrick McCarthy.

1. This is an application by the Director of Public Prosecutions under section 2 of the Criminal Justice Act, 1993, seeking a review on the grounds of undue leniency of the sentence imposed on Anthony Ryan, the respondent herein, by the Circuit Criminal Court. The respondent pleaded guilty to count 1 on the indictment namely, possession of child pornography contrary to section 6 (1) of the Child Trafficking and Pornography Act 1998 (‘the 1998 Act’), on the 17th of November 2023, and pleaded guilty to count 2 on the indictment namely, distribution of child pornography contrary to section 5 (1)(a) of the 1998 Act, on the day of sentencing. On the 20th of March 2024 the respondent was sentenced to 2 years’ imprisonment fully suspended for 4 years for the possession of child pornography offence and

3 years' imprisonment, fully suspended for 4 years for the distribution of child pornography offence.

Factual background

2. One Detective Garda Jacinta Gordon gave evidence that on the 22nd of September 2020, Gardaí searched the respondent’s house on foot of a warrant. The warrant for this search was sought and granted following the receipt by Gardaí of information from the Federal Bureau of Investigation (FBI) regarding accounts on the Kik Messenger Application, ‘Kik’ herein, associated with email addresses linked to the respondent. It was alleged that the user of those Kik accounts had received, uploaded, and shared child abuse material on that application. Detective Garda Gordon explained that Kik is a messaging service which is similar in function to messaging services such as, for example, WhatsApp and Viber. She noted that, like other messaging services, groups of up to 50 members could be created on Kik, in which it is possible for members to converse and share pictures, videos, and links with one another. She also noted that one did not need to provide a phone number to create an account on Kik and could, instead, provide an email address to preserve anonymity.

3. During the search of the respondent’s house gardaí seized a number of devices including: two laptops; two USB keys; a work-related mobile phone; and the personal mobile phone of the respondent. Following a forensic examination of the devices seized by gardaí a large quantity of child abuse images and videos were located on the personal mobile phone of the respondent. No child abuse material was located on the other devices. The respondent was present during the execution of the warrant and cooperated with gardaí by providing them with all devices and the password and PIN codes relating to each.

4. The respondent’s personal mobile phone was searched by one Detective Garda Beale on the 10th of December 2021 who used “Cellebrite software” to examine the data he had extracted from that mobile phone. Detective Garda Beale extracted several ‘user accounts’ from the device, ten of which indicated that the respondent was the user of the device.

5. The forensic examination of the device by Detective Garda Beale revealed a significant quantity of what we might call exploitative material involving children as defined by the 1998 Act. Some of the material was extracted using the Cellebrite software, while the material from Kik was retrieved manually. These examinations revealed a total of 575 items which may be categorised as follows:

(a) 326 images of girls under the age of 18, the majority of which were children under the age of 12 (and in some cases under 10) with their genital region exposed.

(b) 67 images of girls under the age of 18, mostly under the age of 12, (and in some cases under 10) engaged in or subjected to sexually explicit activity namely sexual acts with objects, sexual acts with other children and sexual acts with adult males, including oral and penetrative sexual intercourse.

(c) 23 videos depicting boys and girls under 18 years of age, but mostly under the age of 12 (and some under the age of 10) with their genital region exposed.

(d) 159 videos of boys and girls under the age of 18, but mostly under the age of 12 (and sometimes under the age of 10) engaged in sexually explicit activity namely being engaged in or subject to a sexual act with objects, sexual acts with other children and sexual acts with adult males, including oral and penetrative sexual intercourse. These images and videos form the basis of the charge of possession of child pornography under Count 1.

6. Regarding the Kik application it was established that the application was installed and active on the respondent’s personal mobile phone on the date of, and dates prior to, its seizure. In interview, when asked how long he would have used “the Kik app” the respondent said:

A. “Honestly, I can't tell you. I had it for a while. I didn't use it. Honestly, I can't tell you how long it was on it.”

Q. “Would it have been weeks or years?”

A. “Years. I was on my phone about two or three -- it was on my phone about two or three years. I was using it for adult stuff early on.” We address the matter without regard to any period prior to that referred to in the charges notwithstanding. Detective Garda Beale identified 45 different chat threads on the application which included several one-to-one chat threads and group chat threads. The earliest chat was dated the 31st of July 2020 and the latest was in the early hours of the 22nd of September 2020 (mere hours prior to the arrival of Gardaí to search the respondent’s house): a period of 133 days. Of the 45 threads identified within Kik 16 were found to contain images and video files containing child pornography. In addition to the respondent’s possession via Kik there was also evidence of his distribution of child pornography, in image and video format on the Kik chat threads. In total, the respondent shared:

(1) 13 images of child pornography showing the genital region of a child;

(2) 6 images depicting a child engaged in sexually explicit activity, including sexual acts with objects with men and women, and penetrative sexual activity;

(3) 1 video depicting a child with their genital or anal region exposed; and

(4) 22 videos depicting a child engaged in sexually explicit activity, including sexual acts with objects with men and women, and penetrative sexual activity.

7. Links to Dropbox and Mega NZ were provided within the chat threads on Kik, some of which were posted by the respondent which allowed other participants to view and download child abuse material. The threads also revealed that the respondent actively engaged with child abuse material posted in the threads by other users by commenting on the images posted by others. Communications also extended to engagement in discussion as to how chats might be infiltrated by the FBI. We feel it inappropriate to set out the details of each of these since we understand they can be used for nefarious purposes. A number of aspects must be highlighted, however.

8. It is of significant that the respondent’s activity extended not merely to posting images and videos of child sexual abuse material but encouraging [our emphasis] others to do so too. On a group chat described as “You Can Pick A Vid”, the respondent’s involvement also extended to uploading pictures and videos of child abuse material on behalf of other users [our emphasis] who had been temporarily banned from doing so. He also made requests to the administrator of that group chat thread to permit another user back into the group chat. Furthermore, the respondent engaged with a user of such chat who purported to be 15 years of age. When that user offered to send a “live pic of herself” the respondent replied: “[b]ut I wouldn’t mind seeing, lots of fakes about”. The respondent commented on child abuse material posted by himself and other users including comments such as: “[t]his will be a winner”, and “[v]ery nice”. It is relevant to note that Detective Garda Beale was unable to view some of the video files on the Kik applications for reasons which we will now summarise. Upon being seized by Gardaí on the 20th of September 2020, the respondent’s personal mobile phone device was placed into ‘airplane mode’—as per Garda protocol—and was powered off. This created a technical issue which meant that Detective Garda Beale was unable to view many of the video files which were stored within the Kik application. However, he was able to view the first still ‘preview’ image of each video file, and some of these ‘previews’ themselves contained, in the opinion of Detective Garda Beale, illegal content which he was able to record and capture using a screenshot function.

9. In a so-called “Yoohoo” thread the respondent (and other users) uploaded images and videos of sexual abuse. There was evidence that the respondent was made the “administrator” of this group chat thread on the 20th of September 2020; and remained so until Gardaí seized the respondent’s device on the 22nd of September 2020.

10. A particularly odious series of communications are to be found in a one-to-one chat thread with another Kik user, who we refer to as ‘User B’. The respondent uploaded videos and images of child sexual abuse material to this thread and engaged in discussion of sexual preferences and fantasies. The respondent requested, on several occasions, that User B send pictures of herself and her D-A-U (believed to be a reference to her daughter) to him. In one instance the respondent stated: “I’d love to see you and your dau. I know you said no a few times, but can I see one pic of your dau? What’s her name? I think of you and dau most. Can’t beat it. You have to show me. You’re killing here thinking about it.” Both users discussed sex with underage children, and their conversation refers to a friend of User B whose child is 14 years old and is sexually active, “gets passed around”, and is described within the chat thread as being “a proper little porn star”. The respondent stated, “I’d love to see that”, and asked, “[a]ny pics of her?”, following which User B uploaded a video of a child being forcibly penetrated. The respondent replied to the video, commenting: “I have other with younger crying.”

11. The respondent was arrested on the 3rd of May 2022 and was cooperative with the garda investigation. He made admissions at interview, including downloading and using applications to access child pornography; sharing images and videos through those applications with other groups; that he had been banned off the Kik application twice and managed to rejoin by setting up another account; and that he was the administrator of a group chat created to share child sexual abuse material. He also accepted that, by viewing child sexual abuse material, he was creating a market for such material.

Personal circumstances of the respondent

12. The evidence was that he has no prior convictions and has a good employment history— mostly as a building inspector. At the sentencing hearing counsel informed the judge that the respondent would lose his position of employment due to the nature of the offences he had been charged with. The judge was also informed that the respondent’s marriage had broken down, and that he had separated from his wife after the Garda search of his home. He had three children with his wife, one of whom sadly died very suddenly at a young age due to an undetected aneurysm; his father had also died suddenly. His two surviving children were aged

17 and 15 at the date of sentencing, and the respondent continued to have supervised access to them. The sentencing judge was informed that, since separating from his wife, the respondent has found a new partner and that he was living with her and her two teenage children.

13. The sentencing judge (as do we) had the benefit of several reports demonstrating the respondent’s engagement with grief counselling and rehabilitation programmes. This included a report by one Aishling Brennan and one Dr Julie Browne on behalf of the “One in Four” charity dated the 24th of April 2023 which describes the respondent’s participation in various rehabilitation programmes offered by that group, and his subsequent engagement with its aftercare sessions. The evidence before the sentencing judge was that the respondent was informed about the services provided by One in Four by Detective Garda Gordon, and self-referred himself to that charity soon after the Gardaí seized his devices. One Paul Conlon, a counsellor and psychotherapist, wrote a letter, dated the 27th of April 2023, confirming that the respondent had been referred to him by Anam Cara, an organisation providing supports to grieving parents, and was engaging his bereavement counselling services. A psychiatric report, dated the 24th of February 2024, was also prepared by a doctor attached to the National ADHD and Autism Service. A personal reference letter dated the 19th of March 2024 was also provided by the respondent’s eldest sibling.

Sentencing remarks

14. In identifying the aggravating factors, the sentencing judge, inter alia, stated: “… the aggravating factors that arise, and that is the manner that these poor children are treated. And that they are only really at one removed from you, and can be identified with very little detective work. And God help us, some of the people you were chatting with were talking about their own children in a most offensive manner. So, child pornography and the possession of child pornography, but worse, the distribution of it is a horrendous blot on our society. So, that's all aggravating factors that must be taken account of. The extent of it, you had in your possession, you had between video and still, you had 575 items. I accept that some of them may be repeats. Some of them may be there more than once. And in terms of articles or materials distributed, and I put the two categories together, you had 42. 42 is a lot. Now. So, as you were -- so you were feeding a market. Now, it may but an avaricious and greedy market, but you were contributing to it. And that you were never in trouble before, I accept that. But there was a determined recidivist aspect to this, as is evidenced by the manner in which you continued to get onto the Kik platform. So, having been reported, you went back and tried again, and then you tried again a third time.” He also stated that he could not ignore the “non-human” way the people in the materials were treated in the material and discussed within the chats—which he likened to discussion of a “prize animal”.

15. We cannot, due to its length, set out the sentencing judge’s discussion of the various mitigating factors in extenso. However, it suffices to say that the judge highlighted several mitigating factors, including the respondent's lack of prior convictions; his cooperation with an Garda Síochána; his entry of an early guilty plea (which the trial judge accepted was valuable given that, rightly or wrongly, he was of the view that it avoided the possibility of a lengthy trial in the circumstances); his engagement with rehabilitative measures through counselling and the Probation Service; and his apparent remorse as well as insight into the harm caused by his offending behaviour. The sentencing judge also took the death of the respondent’s daughter into account and acknowledged the fact that he appeared to have the support of some members of his family.

16. The sentencing judge identified a headline sentence of 4 years’ imprisonment in respect of count 2, distribution of child pornography, and 3 years’ imprisonment in respect of count 1, possession of child pornography. Taking the mitigating factors into account, the judge, as indicated above, imposed a sentence on count 2 of 3 years’ imprisonment and suspended the sentence in its entirety for a period of 4 years. On count 1 the judge imposed a sentence of 2 years’ imprisonment and suspended it in its entirely for 3 years on the same terms. The conditions of the suspension of the sentences included requirements that the respondent keep the peace, engage with the Probation and Welfare Service, and continue his counselling program. An order was made under section 29 of the Sex Offenders Act 2001.

Grounds of appeal

17. The applicant has applied for a review of the sentences imposed on grounds of undue leniency, and relies upon the following grounds:

(i) The learned sentencing judge, having referred to the maximum penalty for the offence of distribution of child pornography, imposed a sentence which did not adequately reflect the gravity of the offence committed.

(ii) The learned sentencing judge placed the headline sentence for distribution of child pornography too low given the gravity of the offence.

(iii) The learned sentencing judge failed to give sufficient weight to the aggravating factors of the case.

(iv) The learned sentencing judge failed to have sufficient regard to the principle of deterrence.

(v) The learned sentencing judge erred in failing to mark society’s abhorrence of these offences by imposing a wholly suspended sentence.

(vi) Such further grounds as may be advanced at the hearing of this application.

We will deal with all grounds together.

Submissions of the applicant

18. At bottom, the applicant submits that a custodial sentence is necessary to underscore the seriousness of these offences and to serve as a deterrent to others who might be inclined to engage in similar criminal behaviour. The significant volume and nature of the material found indicated, it was submitted, a high level of engagement with illegal content, justifying a sentence of immediate imprisonment to fully reflect society's condemnation of the respondent's actions.

19. Regarding determination of gravity of the offending, the applicant places reliance upon the categorisation of severity set out and applied in the cases of R v. Oliver [2003] 1 Cr. App. R 28, DPP v. GMcC [2003] 3 IR 609, DPP v. Loving [2006] 3 IR 355, and DPP v. Lordan [2019] IECA 136. Those categories are as follows—

(i) images depicting erotic posing with no sexual activity;

(ii) sexual activity between children, or solo masturbation by a child;

(iii) non-penetrative sexual activity between adults and children;

(iv) penetrative sexual activity between children and adults; and

(v) sadism or bestiality. The issue has been raised by the respondent as to whether it is appropriate to use this categorisation, and the respondent instead sets out a 3-tiered categorisation. This is as follows: “Category 1, child sexually explicit images, involving a child under the age of 17 engaged in or witnessing sexual activity inclusive of oral, vaginal or anal intercourse and masturbation; Category 2, child exposure, involving a child under the age of 17 where the genital and/or anal region of the child is exposed; and Category 3, cartoon or animated images, videos or computer-generated images of a child or children involved in sexual activity or where the focus of the image or video is a child's genital or anal region.” We do not think that the alternative tests or criteria are in conflict or that, in the present case, reliance cannot be placed on those identified in R v. Oliver.

Submissions of the respondent

20. The respondent submits that there was no error of principle to meet the high bar for intervention by this Court and that even if this Court considers the sentence to be lenient, it cannot be unduly so, and the test in DPP v. Stronge [2011] IECCA 279 has not been met. The respondent places heavy reliance on McGinty and The People (DPP) v. Robert Traynor [2021] IECA 344 as comparators in arguing that the sentence in this case was not unduly lenient and seeks to distinguish the comparator cases relied upon by the applicant.

21. The respondent also submits that the headline sentence nominated was appropriate and sufficient weight was afforded to the aggravating factors. The respondent rejects the contention that the sentencing judge placed the offending at the low end of the spectrum. The respondent further submits that the amount and nature of the images were not of the more serious kind in this case.

22. The respondent submits that the sentencing judge had appropriate and proportionate regard to the element of deterrence, but also to the respondent’s mitigation and personal circumstances. He submits that the sentencing judge did not err in suspending both sentences in their entirety. The respondent argues that the imposition of a suspended sentence does not fail to mark society’s disapproval of the offending. The respondent also notes the sentencing judge’s remarks regarding the need for rehabilitation. The respondent places specific reliance on the decision of this court in People (DPP) v. D.W. [2020] IECA 145.

Discussion and analysis

23. There are a number of authorities as to the approach to sentencing which a court should take in cases of this kind. In The People (DPP) v. A.M. [2021] IECA 322 this Court conducted an analysis, for the purpose of seeking to ascertain whether or not a clear trend as to the appropriate levels of sentence could be discerned, or, perhaps, to put the matter in another way, whether, for practical purposes, guidelines as to the approach which should be taken in sentencing could be developed. That analysis did not bear fruit, and it appeared to us then (and appears to us now) that the ultimate conclusion is that of the fifteen cases analysed where child pornography was an element of the offending, in only one was the sentence suspended in its entirety—it is important to highlight that Traynor was decided after the judgment in A.M. was delivered. In a significant number of cases involving child pornography the offending was associated, inter alia, with sexual assaults and kindred offences (indeed, this was the case in A.M.) which would in themselves have attracted custodial disposition. Of the cases analysed in A.M., four involved the offence of possession in isolation—and none an offence of distribution alone—subject to the concurrent existence of such “kindred offences”. The difficulties encountered by the Court in A.M. must be apparent. Distinctions are difficult to draw also because a number of the cases involve multiple offences under the 1998 Act.

24. Since non-custodial disposition took place in The People (DPP) v. McGinty [2019] IECA

27 (being one of the cases considered in A.M.) it and Traynor are important comparators. On the other hand, the appellant places strong reliance on The People (DPP) v. S.L. [2021] IECA 222.

25. At this stage, we think it is worthwhile to quote from the judgment of the Court of Criminal Appeal in The People (DPP) v. Bryan O’Byrne [2013] IECCA 93, wherein it was stated that: “Valuable guidance is to be obtained from the leading case of Director of Public Prosecutions v. Carl Loving [2006] 3 I.R. 355 in which a sentence of five years imprisonment with two years suspended imposed in the Circuit Court on a plea of guilty was reduced to one year by the Court of Criminal Appeal. Delivering the judgment of the court, Fennelly J. set out a number of factors which should be taken into account: the seriousness and number of the images; the circumstances and duration of the activities; the interaction of any dependence on alcohol and other drugs; whether the images were shared, distributed, circulated or commissioned (albeit that any such matter could be a separate and more serious offence); and finally whether the individual had created material or shared it with children or had improper relations with children.

On the other hand, mitigating factors were whether the accused accepted responsibility for the events including a plea of guilty, albeit that in many such cases there is little scope for plausible denial. Nevertheless it is relevant if the accused has facilitated garda inquiries, relieved them of the necessity to prove their case, and seemed genuinely cooperative. Fennelly J. also observed that in the case of a first offence the court should at least consider the possibility of a wholly suspended sentence. It is worth elaborating upon this point.

Since the offence of possession of child pornography is often the reflection of the proclivities and appetites of the offender, then any professional assessment of the offender’s attitude and state of mind is valuable. In particular, any assessment of the extent to which the offender genuinely recognises that his conduct is wrong, and is willing to engage in appropriate therapy and treatment, and does so, may be important. In such circumstances, it may be appropriate to consider suspending a portion of the sentence or imposing a supervision order under the Sex offenders Act 2001 (hereinafter “the 2001 Act”) on terms which would require the offender to engage both with probation services, and any treatment recommended and supervised by them.

This approach is arguably consistent with the fact that the 2001 Act specifically requires a sentencing court to consider the possibility of imposing a supervision order. This approach is, arguably, consistent with the fact that s. 28 of the 2001 Act requires a sentencing court to consider the possibility of imposing a supervision order.” The Court in Byrne went on to say that: “The nature of the images, their quantity, the manner in which they were obtained and/or are retained, and the period over which the images are retained and accessed are all relevant in assessing the intrinsic seriousness of the offence, and in attempting to place it on the spectrum of possible offences under s. 6 and therefore to locate it on the scale of sentencing which the Oireachtas has prescribed in this case.”

26. In McGinty, a sentence of eighteen months’ imprisonment was imposed on a count of possession, in circumstances where the maximum penalty prescribed by law was and is five years’ imprisonment, and one of two and a half years on a count of distribution, in circumstances where the maximum is fourteen years’ imprisonment. The sentences were to run concurrently; however, they were suspended in their entirety for a period of eighteen months on terms upon which we need not elaborate. The nature of the offending was summarised, which we need not elaborate, again, for the reason identified above. Suffice it to say that it is clear that the offending took place over a significantly lengthier period, and the number of images was significantly larger: we feel we must say that three of the children abused were infants. There were a significant number of images in category (iv) of the classification in Oliver referred to above. The only category of images which was absent were images involving sadism or bestiality.

27. In addressing the appeal, the Court did not merely take into account the cumulative mitigating factors, including the delay between the time when the offending was detected and the charging but, above all, the fact that sentencing judges must be afforded a margin of discretion, and only when that margin has been exceeded should an appellate court intervene: the Court referred in the body of its judgment to the fact that the responsibility for proving that a sentence is unduly lenient lies upon the Director. The Court concluded that: “… the decision to suspend falls at the very outer limited of the margin [of appreciation of the judge], but we have not been persuaded that it fell outside the range”.

28. The understanding of the seriousness of offences of this kind has become fuller— especially regarding the harm done because real children are the subject of vile offences which, in effect, are enjoyed by those engaged in child pornography at a vicarious level, so to speak. It can be seen that in McGinty there was a lengthy delay—certainly materially more significant than in the present case—between detection and charging.

29. Traynor concerned an application for review on grounds of undue leniency relating to a sentence of two and a half years’ imprisonment, suspended in its entirety on terms, for offences of possession and production of child pornography. There, gardaí seized laptops and hard drives belonging to the respondent which were found to contain 1,938 images and 185 videos of child pornography depicting girls aged between 6 and 14 which the Court accepted as being so-called “Category 2” materials depicting child exposure. Further so-called “Category 3” materials, as defined above, were found on one of the devices. The respondent was found to have possession of 2,287 such computer-generated images which he had produced himself using computer applications. There was no evidence that the respondent had shared or distributed any of the materials produced, or possessed, with any third party.

30. On appeal, the Court considered that the substance of the Director’s application for review was that the trial judge erred by suspending the sentence in its entirety. Having regard to the aggravating factors including, the significant quantity of materials, as well as the manner of the respondent’s use of his technical skills to create the computer-generated images and attempt to evade detection, the Court considered that the pre-mitigation sentence of three and a half years’ imprisonment identified by the sentencing judge was appropriate for the offence of possession, but stated that the offence of production merited a higher sentence. Although the Court was of the view that the headline sentence identified for the offence of production was lenient, it was not unduly so, and it was concluded that the sentence nominated fell within the judge’s margin of discretion. Furthermore, the material relevant to the production offence did not involve real children—an important point in assessing the intrinsic seriousness of the offence. Similarly, when considering whether the sentencing judge afforded too great a discount for the mitigation present, the Court noted the presence of strong mitigating factors including the respondent’s personal history; his medical condition, which resulted in isolation and anxiety; and, most significantly, the steps taken prior to sentencing to address his offending conduct, and concluded that: “While the decision to wholly suspend the sentence renders the sentence a very lenient one, the purpose of this suspension is to further the respondent’s rehabilitation, which is in the interests of society. The fact that the judge wholly suspended the sentence was a decision which fell at the very outer limits of the margin of appreciation afforded to a judge, however, we are satisfied that the sentence falls within that margin of appreciation and, accordingly, we will not intervene.”

31. The principal distinguishing factors in Traynor were that it was a case of possession only and the production offence was constituted in the form of computer-generated images only.

32. The Director emphasises S.L. as a worthwhile comparator as regards the factors of premeditation and planning (although difficulties remain about using it as a comparator because of the existence of kindred offences). In S.L., a sentence of six years and nine months’ imprisonment, with the final nine months suspended on terms which we need not elaborate, was imposed on multiple counts namely, one count of sexual assault contrary to section 2 of the Criminal Law (Rape)(amendment) Act 1990, and counts of production and distribution of child pornography. A further count of possession was taken into consideration. There, the appellant secretly filmed his partner’s child using a spy camera which he had purchased and concealed within a clock in the child’s family bathroom. Following a search of the appellant’s home, two devices were examined by the Gardaí and under one hundred images/videos classified as child pornography were found on each device.

33. Due to the nature of the offending behaviour in the case, the Court treated the material which was possessed in relation to the offence of production and the material which formed the basis of the offence of possession separately. The material relating to the former offence consisted of four videos depicting the injured party undressing and/or showering which had been captured on the spy camera, whereas the material located on the other devices formed the basis of the latter offence of possession. The Court had regard to the 5-tiered scale of gravity regarding the nature of child pornographic material adopted in R v. Oliver and noted that although the material associated with the production and distribution offences did not involve sexual activity, its gravity was aggravated by other factors. The material relating to the possession offence was said to involve children aged from 3 to 11, some of which involved sexually explicit acts, and others which fell into the category of exposure.

34. The level of planning and premeditation, as well as the conniving and deceitful nature of the appellant’s conduct, were considered to be aggravating factors of his offending. Another aggravating factor was the fact that the appellant engaged in depraved conversation, considered by the Court to be “obscene and grotesque in the extreme”, with another individual on Skype with whom the pornographic material was being exchanged. Other factors included that the offending behaviour involved a breach of trust since the appellant had been acted in loco parentis to the injured party, the fact that the offending behaviour occurred within the injured party’s family home, and the significant harm caused to the injured party.

35. On appeal, this Court considered that, although the trial judge was entirely correct to take the view that the presence of the aggravating factors outlined above meant that the offences should be regarded as “mid-range offences”, the pre-mitigation headline sentence of nine years, being a sentence on the upper mid-range of the scale, was excessive. The Court quashed the original sentence and, when re-sentencing the appellant, nominated a pre-mitigation headline sentence of 7 years’ imprisonment on the counts of production and distribution. Taking account of the mitigating factors, the Court reduced the sentence to one of 5 years and 6 months, the final 12 months of which was suspended on terms which we need not elaborate in view of the appellant’s efforts toward rehabilitation. The Court did not interfere with the sentence imposed for the offence of sexual assault, and the remaining counts (including that of possession) on the indictment were taken into consideration.

36. Consideration of sentences in cases of this kind does not preclude non-custodial disposition, but that must be rare. Every case of this kind is serious. Some, such as offences involving mere possession where the offence is what one might describe as a purely private one, will be less significant, subject to the contents of the images, than those where the images are created or distributed. The extent to which premeditation arises will somewhat vary: it will be rare indeed, by definition, that premeditation will be absent, and of course it may be of greater or lesser seriousness. Furthermore, and this is apparent from much of the case law, the offending may be committed in tandem with, or effectively as part and parcel of, other sexual offences including the most serious offences such as rape involving, for example, breaches of trust and, perhaps, committed over lengthy periods. Thus, cases have come before the courts where the victims of physical sexual offending at the hands of an accused have involved photography and the uploading, if not the distribution, of images. By definition, all such cases will involve possession of child pornography. Indeed, this was one of the difficulties which this Court faced in attempting to conduct analysis of what we might call the sentencing regime appropriate for these offences.

37. It was submitted on behalf of the Director that the aggravating features of the offence of distribution (which, by definition, imports also of possession) were as follows:

(a) The volume of material, the nature and content of the images, and the ages of the children depicted.

(b) The level of premeditation and planning involved in the offending and the fact that he secured readmission to Kik having been twice excluded because of the material he was seeking. This falls into the category of premeditation.

(c) The active participation of the Respondent in the group chats and the depraved quality of those conversations.

(d) The fact that he was the administrator of one of the chat threads.

(e) The repeated attempts to persuade one participant to provide pornographic material of her young daughter.

(f) The commercial nature of the activity

(g) Engagement in an attempt to have a third party admitted to a group chat.

(h) Engagement in discussion about potential infiltration of the threads (which by definition we regard as related to avoidance of detection).

(i) The fact that one of the persons with whom he was in communication was only

15 years of age.

38. Dealing with each of these in turn, the volume, nature, and contents of the images is manifest from what we have said above. We do not lose sight of the fact, however, in this context that the offending was committed over a relatively brief period between July and September 2020. It stopped only when the Gardaí searched the respondent’s premises. It is true also that there have been many cases where the imagery has been more odious.

39. Insofar as premeditation and planning is involved, premeditation is inseparable from the overwhelming majority of offences of this kind. It seems to us that there is no doubt, again having regard to what was said by the respondent, that on two occasions he was excluded from the Kik application for accessing child pornography. This conduct is a compounding of premeditation in an obvious way. More generally his, albeit brief, involvement as administrator of a thread can be said, broadly speaking, to fall under this rubric. The conversations about infiltration are analogous to premeditation.

40. The offence of distribution will not always involve depraved conversation or multiple persons but here distribution involves both (we accept that the number cannot be identified by reference to individual chat threads).

41. Undoubtedly the repeated attempts to persuade another participant in a chat thread to provide pornographic material pertaining to her own daughter is especially odious. Though less so, he sought pornographic pictures a child of 15 which has a squalidity about it.

42. The reference to commercial activity involves, of course, the fact that the circulation of material of this kind encourages a market for it and this must, as a matter of proper inference, extend to the fulfilment of the demands of that market at a cost to the child victims. We accept that, as was the position in, at least, The People (DPP) v. S.L. [2021] IECA 222 the respondent’s activity was not on an “industrial scale” or, as occurred in the case of McGinty, the offending did not take place, say, over many years. Furthermore, if we are to use the categories elaborated in Oliver, all categories, save that of bestiality and sadism, were involved to a greater or lesser degree.

43. It seems to us that the crucial factors diluting the inherent seriousness of the offending, with consequential nomination of headline sentences, must be the relatively brief period during which offending took place and, again relatively speaking, the fact that not all images possessed were distributed. These factors are especially significant having regard to the facts of previous decisions.

44. Turning then to the mitigating factors, we think that they are as follows:

(1) The fact of the fullest possible and most immediate cooperation with the investigation which extended, for example, to the provision of PIN numbers and full confessions in interview.

(2) The very early pleas of guilty. It is plain that he is deeply remorseful and understands the harm done to the children.

(3) The fact that the respondent has a good work record and has not been involved in offending other than that which is the subject of the charges, although it must be said that that is a factor of lesser significance in a case where there is continuing offending over a period (even if of the same class) than a case where there is a mere once-off offence. In any event, indeed, it will be the case that in the case of what is really a so-called ‘secret crime’, individuals can be otherwise respectable and productive members of society. We accept it however as a relevant mitigating factor.

(4) The fact that the respondent’s marriage, unsurprisingly perhaps, came to an end when the offences were detected but, nonetheless, it is to his credit that he has a continuing relationship with his two children.

(5) We are inclined to attach only the most modest weight to the fact that his father died when the respondent was in his thirties: it is hard to see how the normal vicissitudes of human existence could constitute a mitigating factor, notwithstanding the fact that he had a grief reaction.

(6) Of some significance is, perhaps, the death of a daughter in her teens (apparently, she was fourteen); this is an unusual event and one can see how it might affect an individual adversely, quite different from, say, the death of a parent. Whilst it is something which individuals must cope with, it is reasonable to acknowledge it as a mitigating factor.

(7) The respondent suffers from Asperger’s Syndrome, or Autism, and ADHD. These are clearly mitigating factors—we regard them as falling into the area of relevant health issues.

(8) The psychiatrist states that the respondent does not represent a threat and is not likely to commit further offences.

(9) The respondent has shown a complete commitment (it is an impressive one) to participation in the therapy of the “One and In Four” group. It is not merely indicative of his remorse, which we accept to be genuine, but is also something which guards against future offending. Furthermore, we think that his engagement in grief counselling is likely to prove worthwhile for his future.

(10) He has the support of his (non-marital) family which is itself indicative of good character, rehabilitation, and remorse.

45. We do not doubt that there will be cases where non-custodial disposition may be possible. This is not one of them. In truth, this is a case where, taking aggravating and mitigating factors into account, the sentence is simply too low, or disproportionately low. We stress that each case must be decided on its own merits. Whatever else any margin of discretion was exceeded to the point that the Director has discharged the burden on her. We think that the trial judge fell into error of principle in this case as, having regard to the seriousness of the offending, it was not a case where non-custodial disposal was appropriate whether by way of suspension or otherwise. We therefore quash the sentences.

46. It is difficult when dealing with many appeals of this kind to engage in distinctions between the various grounds such as, for example, failing to have sufficient regard to aggravating factors or excessive regard to mitigating ones. We can only reach this conclusion on the evidence on the basis of the very limited guidance in the case law and in accordance with our own experience, and this we do. A not insignificant number of authorities have been opened to us, but we do not regard it as necessary to address them all individually.

47. In re-sentencing we have regard to the aggravating and mitigating factors to which we have referred—there is no need to repeat them. General deterrence is especially important in respect of this class of offending because of its premeditation. We proceed on the assumption that the respondent has continued in his extensive efforts at rehabilitation, will not offend again, and will in due course return to a worthwhile role in society. Suspension of a portion of the sentence is justified to encourage him to continue his worthwhile approach.

48. We think, however, that a custodial sentence is necessary. We must balance the sometimes-conflicting desiderata of punishment, rehabilitation, and deterrence both general and personal. We have emphasised before the need for sentences which deter in cases of this kind. The offence of distribution is, by definition, more serious than mere possession and the former will always include the latter though not vice versa.

49. We now proceed to re-sentence de novo. We are of the view that since the sentencing parameters for the possession offence are different from that for distribution the best approach is to sentence on the latter globally for both. We think, accordingly, that the appropriate headline sentence can be identified as one of four years. We impose an actual sentence of two and a half years of which we suspend the last year on terms. We mark the possession offence as taken into consideration.

50. We hereby make a supervision order under section 29 of the Sex Offenders Act 2001 (as amended) for a period of five years.