Jersey Unreported Judgments

[2008]JRC122

ROYAL COURT

(Samedi Division)

1^st August 2008

The Attorney General

-v-

GB

Sentencing by the Inferior Number of the Royal Court, following a guilty plea to the following charges:

Age:  17.

Plea: Guilty.

Details of Offence:

Making and possession of indecent photographs of children contrary to the Protection of Children (Jersey) Law 1994.

The images were downloaded on six occasions between November 2007 and January 2008.

Films containing indecent photographs were downloaded or partially downloaded by the defendant on six subsequent occasions between January 2008 and February 2008.

Of the 38 images in total that were recovered from the defendant's computer, 14 were Level 1, 9 were Level 2, 12 were Level 3 and 4 were Level 4.

The defendant then indecently assaulted (by way of digital penetration of the vagina) his 6 year old half sister at her home when she was in bed.  He woke her up having removed her pyjama bottoms and inserted a finger into her vagina.  She experienced discomfort and a minor internal injury.  After the assault he showed the girl his penis and thereafter when she had returned to bed masturbated to ejaculation whilst recollecting what he had done.  The Crown alleged (and the Court found) that this was a breach of trust.

Details of Mitigation:

Youth, good character, reports recommending probation and treatment, references, fact that offences occurred when he was 16, and had he been sentenced at 16 then the maximum sentence would have been 12 months' youth custody.

Previous Convictions:

None.

Conclusions:

Total: 2 years' youth detention.

Forfeiture of the defendant's computers sought.

Supervision Order on release sought.

Sentence and Observations of Court:

Total: 15 months' youth detention.

Forfeiture of computer ordered, subject to Crown's undertaking to release data personal to mother.

Supervision Order on release under Article 10 of the Criminal Justice (Young Offenders)(Jersey) Law 1994.

R. J. MacRae Esq, Crown Advocate.

Advocate J. C. Gollop for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        GB, you downloaded 29 files with indecent photographs of children and you then tried to download 10 videos also containing indecent images of children.  Of the total of 39 images 14 were at level one, 9 at level two, 12 at level three and 4 at level four; using the well known levels applied in these cases. 

2.        More seriously, having watched these videos and photographs, you then actually carried out an indecent assault on your 6 year old half sister.  This was obviously in breach of trust.  You were staying with your father and you went into her room where she was sleeping with her sister and you put your finger into her vagina while she was sleeping.  Not unnaturally this woke her.  You then withdrew your finger but then you put it back inside her again.  You then showed her your penis.  The incident then ended so far as she was concerned but shortly afterwards, in a next door room, you masturbated to ejaculation while fantasizing about what you had just done.  She complained the next day and it all came out and the evidence is that she complained about being sore as a result of what you had done.

3.        One of the worrying aspects is that, since then, you have still continued to access pornography on your computer, although you say that it is not child pornography, and you have denied that you have any attraction to young children when this is obviously not true. 

4.        Advocate Gollop, who spoke very powerfully on your behalf, accepted that in almost all normal cases offending of this nature would attract a custodial sentence.  However, you were 16 at the time you committed them and you are now only just 17.  Article 4 of the Criminal Justice (Young Offenders)(Jersey) Law 1994 applies and we must consider whether there is no other alternative sentence which can be justified. 

5.        Advocate Gollop has pointed out strongly that you are a naïve and immature young man and we accept that that is so.  He points out that you pleaded guilty immediately and that you spared your half sister from giving evidence and it is quite right that you are entitled to substantial credit for that.  He says, correctly, that you have no previous convictions and there are good references which we have read from your family and from others.  He says that you have apologised for what you have done. 

6.        Most importantly he refers to the reports which we have received and which recommend a probation order with a programme of treatment aimed at dealing with your problem with young children.  He urges that society's best interest would be served by trying to ensure that you do not re-offend.  The risk of your re-offending is described in the report as moderate.  He says this can best be achieved by use of the programme recommended rather than by sending you to youth detention, which he says would achieve nothing.  Furthermore he says that the programme can only effectively be given if you are out in the community. 

7.        He argues that if we are against him on that then the sentence of youth detention should be reduced from that of the Crown's conclusions because of the provisions of Article 4(5) of the Law which say that, for an offender under 17, there is a maximum youth detention sentence of 12 months no matter how serious the offence and no matter how much the Court would have thought it right to pass a longer sentence.  He accepts there has been no unreasonable delay on the part of the Crown in this case and he accepts that that provision does not strictly apply because you became 17 on the 3^rd June and you were first indicted before this Court and pleaded guilty and were therefore convicted on 4^th July.  But he says that if the proceedings had in fact taken place more quickly, then the provision might have applied and we should certainly still take it into account.

8.        We have considered very carefully everything Advocate Gollop has said and we have also borne very carefully in mind the provisions of Article 4, which make it clear that it is an exceptional step to impose a youth detention sentence on someone of your age; but we have concluded that this offending is too serious to be dealt with by way of a non-custodial sentence and that such a sentence cannot be justified.

9.        As to the length, we think that in principle the Crown's conclusions were absolutely correct for what you did and they took into account that you are aged 17.  Had you been older the sentence would have been longer.  But we think there is force in Advocate Gollop's point that Article 4(5) fails to apply by only a matter of a very few weeks and you were 16 at the time of the offence and that you are only just over 17 now.  Given that the provision says that if you had been under 17 on the 4^th July there would have been a statutory maximum of 12 months, we think that a sentence of 2 years is too long.  If that provision were not applicable or, as it is, very nearly applicable we would have considered the conclusion of the Crown to be quite correct; but in all the circumstances we think we must make allowance for that.  We do not think we can go as far as Advocate Gollop says because the provision does not actually apply.  We think a total sentence of 15 months' youth detention is correct in order to give adequate weight to that provision. 

10.      The sentence of the Court is a sentence of 15 months' youth detention on Count 1; 6 months' youth detention on Count 2; 6 months' youth detention on Count 3; but in order to keep to the total that we have found correct, those will all be concurrent.  You will be liable to supervision when you are released from youth detention and we hope very much that you will take advantage of that.

11.      We would also like to say to the probation service that we hope very much that the team will deliver within the youth detention centre whatever is capable of being delivered.  We understand the suggestion that such a programme is most effectively delivered outside detention, but we can not believe it is impossible to deliver a fair amount of it whilst he is in youth detention; so we urge that the maximum amount possible be delivered whilst GB is in youth detention, and of course, the remainder so far as possible, delivered when he is out on his period of supervision, so that as much effect as possible of the programme can be achieved.

12.      We order the forfeiture of the computer.

Authorities

Criminal Justice (Young Offenders) (Jersey) Law 1994.

R-v-Oliver [2002] EWCA 2766.

AG-v-Le Marquand [2003] JRC 043.

AG-v-Sunderland [2005] JRC 128.

AG-v-Last 2000/224.