Culpability and sexual gratification – departure from the guidelines

January 29, 2021

By Amanda Johnson

A discussion of R v Dido Massivi and Jennifer Hodge [2020] EWCA Crim 34.

The Court of Appeal (22.1.20) considered the issue of departure from the sentencing guidelines re: distribution/possession of indecent images.

Facts

Dido Massivi was convicted at the Old Bailey of two counts of distribution of indecent photographs of children and one count of possessing an extreme pornographic image. His partner, Jennifer Hodge, was convicted of one offence of distributing an indecent photograph of a child. Massivi received 18 months imprisonment suspended for 2 years; Hodge received a 12 month community order. Both sentences were referred to the Court of Appeal as being unduly lenient.

The defendants were both of previous good character. Massivi was 62 and Hodge 56. Massivi had been a member of a WhatsApp group where lawful adult pornography was shared. He received three videos from a member of the group which showed: an adult female engaged in penetrative activity with two children (count 1); bestiality (count 2); and a young girl performing oral sex on an adult male (count 3). Massivi had not requested these videos, but he did distribute two of them. The first (count 1) he sent to five different people. He sent the count 3 video to Hodge, as well as two other people. He later deleted all three videos from his phone.

Hodge’s response to receiving that video was to send it on to another 17 people, including her sister, a serving police officer. Hodge noted her post: Sorry had to send this. It’s so sad that this person would put this out. Please post this and let’s hope he gets life. She then sent a supplemental message to her sister, saying It’s so bad. Dido sent this to me last night. Could you find out if it’s been reported? One of the recipients of the message from Hodge was so appalled that she reported it to the police.

At sentence, the judge heard oral evidence from probation as to the defendants’ ability to perform unpaid work. A psychiatric report upon Hodge had been served, which stated that she had suffered psychological distress following the death of her parents four years earlier, and that she was suffering from a mild to moderate episode of depressive disorder, linked to anxiety disorder and panic disorder. The expert concluded that it was likely that Hodge had experienced a panic episode after viewing the images, which had impaired her cognition and judgement, and led to increased impulsivity and disinhibition. So far as Massivi was concerned, there was no reason for him to have sent the videos to others, though the Crown did not contend that he had a particular sexual interest in images of this type.

Both defence counsel submitted that in the particular circumstances of this case, it would not be appropriate for the Court to apply the sentencing guideline applicable to distribution offences. The starting point for distribution of Category A images is 3 years imprisonment, with a range of 2 to 5 years. It was submitted that the guideline for possession offences would be more appropriate (starting point of 12 months, and a range of 26 weeks to 3 years). The prosecution did not dissent from this approach but made it clear that they contended that the custody threshold had been crossed in each case, pointing out that both the distribution and possession guidelines indicated custodial sentences. It was for the judge to form his own view as to the appropriate sentence. The Imposition guideline was referred to – even where the custody threshold has been passed, the court must still consider whether a custodial sentence is unavoidable.

Sentencing, the judge effectively made it clear that it would be contrary to the interests of justice to apply the distribution guideline. So far as Hodge was concerned, her case was as far removed as anyone could imagine from the sort of case contemplated by the distribution guideline.

Judgement

Judgement was given by Holroyde LJ. The Court agreed that this was an unusual case. Massivi had not asked to receive the videos, and the video in count 3 was sent to Hodge with the intention that she pass it to her sister, to bring to the attention of the police. Hodge’s motive for distribution was similar, and she had mental health issues. Neither had any sexual interest in the videos, and this feature made the case unusual. The judge had found that both were disgusted by the images.

It was submitted for the Solicitor General that if the Sentencing Council had intended lack of sexual motive to be a factor reducing seriousness of the distribution offence, it would have said so in the guideline.

The Court held that it would be wrong to treat an absence of sexual interest in indecent images of children as being, without more, a reason why a court should treat a distribution offence as if it were a possession offence. Sentencing always requires a careful assessment of all the facts and circumstances of the particular case. Under s125(1) Coroners and Justice Act 2009 the court is under a duty to apply the guideline, unless satisfied that it would be contrary to the interests of justice to do so. The judge had been entitled to depart from the distribution guideline. So far as Hodge was concerned, leniency was appropriate and his departure from the guideline was approved. Massivi was in a more serious position. The total custodial term (18 months) was not far below the range set by the distribution guideline. He was fortunate to have had it suspended, but the unusual circumstances of the case justified leniency. These sentences were not therefore unduly lenient.

Comment

It is said so often in mitigation that guidelines are just that – for guidance. Here is an example of a judge fairly assessing the culpability of each defendant and being prepared to depart from the guidelines. In many cases a defendant’s role or culpability does not fit comfortably within a particular category, and so it is always worth considering whether to submit that a lower category would in fact be not only fairer, but appropriate.