Jersey Unreported Judgments

[2011]JRC026

ROYAL COURT

(Samedi Division)

28^th January 2011

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Morgan and Liddiard.

The Attorney General

-v-

Alvaro Pereira Velosa

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

16 counts of:

Making an indecent photograph of a child, contrary to Article 2(1)(a) of the protection of Children(Jersey) Law 1994 (Counts 1 to 16).

Age:  45.

Plea: Guilty.

Details of Offence:

Some ninety three indecent photographs (including fifty four film clips) of children on the hard drive of Velosa's computer and the detachable drive used with the computer.  The images had been downloaded over a 7 month period.  The images remained accessible to the user.  The majority of the material was at the higher reaches of the Copine scale involving penetrative sexual activity between adults and children and instances of sadism.  A number of the film clips had sound track so that the distress of the children involved could be heard as well as seen. 

The accused had searched for material using the search terms "Paedofelia, eight year, seven year and nine year". 

The file sharing function of the file sharing software was enabled, allowing other users of the software to download the child pornography saved on his computer.  All the material was downloaded from the internet. 

Details of Mitigation:

Immediate co-operation and guilty plea; good character; supports three children; discovered images accidentally and watched them out of curiosity; uncharacteristic actions, triggered by emotional turmoil of separation from wife; victim of pernicious and addictive material of child pornography business. 

Agreed that accused be placed on the Sex Offenders' Register.  Asked Court to consider his references, employment in the hospitality industry and his children when considering the conditions of the restraining order. 

Previous Convictions:

Minor motoring matters.  Written warning at Parish Hall level for cruelty/wilful neglect of a child under the age of 16 years. 

Conclusions:

Count 1:	18 months' imprisonment.
Count 2:	18 months' imprisonment, concurrent.
Count 3:	15 months' imprisonment, concurrent.
Count 4:	15 months' imprisonment, concurrent.
Count 5:	15 months' imprisonment, concurrent.
Count 6:	15 months' imprisonment, concurrent.
Count 7:	15 months' imprisonment, concurrent.
Count 8:	15 months' imprisonment, concurrent.
Count 9:	15 months' imprisonment, concurrent.
Count 10:	15 months' imprisonment, concurrent.
Count 11:	4 months' imprisonment, concurrent.
Count 12:	4 months' imprisonment, concurrent.
Count 13:	4 months' imprisonment, concurrent.
Count 14:	1 month's imprisonment, concurrent.
Count 15:	1 month's imprisonment, concurrent.
Count 16:	1 month's imprisonment, concurrent.

Total:  18 months' imprisonment. 

Order under Article 2 of the Criminal Justice (Forfeiture Orders)(Jersey) Law 2001 for the forfeiture of the computer and computer equipment named in the Indictment, sought. 

Order under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 5 years elapse before the accused is permitted to apply to no longer be subject to the notification requirements, sought. 

Restraining order under Article 10(4) with the following conditions sought:-

(a)   That for the period of 5 years from the date hereof the accused be prohibited from acquiring or using any computer software which is designed to destroy, delete or disguise internet activity on any device which may access the internet, or any computer software which is designed to encrypt data held on such a device save for any encryption which may be demonstrated to be for a legitimate purpose by the provision of any password or access code to a police officer;

(b)   That during the said period the accused permit access to his place of residence or vehicle by a police officer at all times for the purposes of inspection of any computer present there. 

(c)   That during the said period the accused may be prohibited from having unsupervised contact with any person under 18 years of age; supervised access to be at the direction of the Children's Service. This prohibition does not operate to restrict everyday communication such as when buying goods in a shop or ordering a meal in a restaurant, or to prohibit contact with people under that said age that is inadvertent or unavoidable in the course of lawful daily activity. 

Sentence and Observations of Court:

Order under Article 2 of the Criminal Justice (Forfeiture Orders)(Jersey) Law 2001 for the forfeiture of the computer and computer equipment named in the Indictment. 

Court satisfied under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 5 years elapse before Velosa is permitted to apply to no longer be subject to the notification requirements. 

Conditions (a) and (b) of the restraining order granted, condition (c) denied for reasons which appear in the judgment. 

The Court is concerned by the growing prevalence in the community of these offences and gave notice that the Court will keep a watchful eye, if the general tariff needs to be increased. 

Conclusions granted. 

S. M. Baker, Esq., Crown Advocate.

Advocate C. M. Fogarty for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        We believe this is the first occasion on which the Royal Court has had to consider its powers under the Sex Offenders (Jersey) Law 2010 ("the Law").  We have not been addressed on the law in detail but we think it is necessary to make some remarks upon the relevant provisions.  Article 5(1) of the Law is in these terms:-

"Except as provided by paragraph (2), a court that convicts a person of a relevant offence must, unless it intends to make an order under Article 4 (certain exceptions), before sentencing the person specify a period that must expire before an application under paragraph (5) may be made."

There is no reason to apply a shorter period under Article (4) and it follows that we must specify a period under Article (5)(5) before we move to sentence in this case. 

2.        The structure of the Law, in so far as it is material for these purposes today, is this; a person convicted of a relevant offence is by Article 3(1) subject to the notification requirements set out in Article 6 which require him to notify an authorised officer of all names he uses and his home address and any change of address.  He may additionally be required to give his fingerprints, a photograph of himself and a non-intimate sample.  The Minister may, by order, impose obligations if the person travels outside Jersey.  Article 5(5) of the Law is in these terms:-

"A person... who is subject to the notification requirements of this Law may, at any time after the expiration of the period specified in respect of the person ...apply to the court for an order that he or she should no longer be subject to those requirements."

This gives the offender the right to apply to court for an order that he should no longer be subject to the notification requirements and the court must therefore stipulate the period which is a minimum period before that application can be brought. 

3.        Article 5(4) is in these terms:-

"Unless the court is satisfied that there is an exceptional reason why a shorter period would be appropriate, the period specified... must be a period of at least 5 years, being a period that the court is satisfied takes into account -

(a)       the likelihood of the person re-offending; and

(b)      the seriousness of the offence committed by the person."

4.        The first thing to notice is that the notification requirements are an interference with the convicted person's right to respect for private and family life under Article 8 of the European Convention on Human Rights.  The immediate question is whether the interference is permitted under Article 8.2 of the Convention.  This is a question which the Court is itself obliged to address because the Court, as a public authority under Article 7(2) of the Human Rights Law (Jersey) 2000 is obliged by Article 7(1) of the same Law to act in a way which is compatible with Convention Rights.  The interference with the Article 8 right "to respect for private and family life" envisaged by the making of notification requirements is clearly prescribed by law. 

5.        In our view the structure of the legislation is such that it is primarily concerned with the protection of potential victims; the legislation requires the court to determine the period which must expire before any application to discharge the notification requirements is made and this must be done before the sentence is imposed.  This indicates that the legislature did not intend the fixing of this period to be part of the sentence and it suggests that the main purpose of the legislation is something other than criminal justice.  That one of the purposes of the legislation is protective is also shown by the long title to the law and the provisions of Article 28 which impose obligations on some Ministers and the Chief of Police to put arrangements in place to provide for the assessment and management of persons who pose a risk of sexual harm.  It is also shown by the jurisdiction given to the court to make restraining orders under Article 10.  In our view the purposes of the legislation certainly include public safety and the protection of the rights and freedoms of others and, accordingly, the interference with the Article 8 right is for a legitimate purpose. 

6.        We also do not think that there is any doubt that the legislation is generally necessary in a democratic society in the interests of public safety and protecting the rights and freedoms of others.  The test of necessity goes further than that, however, and in any particular case it must be shown that the exercise of the court's powers, which in the present context are limited to the power in Article 5(4) of the Law and the restraining orders under Article 10, is conducted with proportionality so that the extent of the interference is balanced against the important public interest which is the basis of the legislation. 

7.        Against that background we now consider the precise language of Article 5(4) of the Law. The period is stated to be at least 5 years unless the Court is satisfied a shorter period would be appropriate for one or more exceptional reasons.  Given the court's obligation to give effect to the legislation in a way which is compatible with Convention rights, as provided by Article 4(1) of the Human Rights (Jersey) Law 2000, we construe the requirement for an exceptional reason under Article 5(4), as including any case where it would be disproportionate to interfere with the offender's Convention rights.  Secondly, under Article 5(4) of the Law, the period which the Court is required to specify under Article 5(4) must take into account the likelihood of the person re-offending and the seriousness of the offence committed by the offender according to that Article.  Both those factors must go to the risk which the offender is to the public if they are to be relevant to the legitimate aims of the legislation, and it is therefore necessary for the Court, when balancing the extent of the interference with the Convention right against the achievement of the legitimate aims of the legislation, to consider the weight of these factors in assessing the proportionality of its order solely against that risk. 

8.        We now turn to the circumstances regarding this offender.  The offender has pleaded guilty to offences of making images of children, contrary to the Protection of Children (Jersey) Law 1994.  There are a substantial number of images at Level 4 and 5 of the Copine scale; that makes them particularly serious offences and they were committed over a period of 7 months. 

9.        We note from the background report that the assessments of Velosa have been made and two tests, designed specifically for those convicted of sexual offences, have been administered; the Stable 2007 and the Acute 2007 tests which show him to present a moderate to high risk of committing further sexual offences.  He is assessed as presenting a low to medium risk of committing non-sexual harm to members of the public.  The psychological report shows that Velosa has been assessed against a variety of tests, the Risk Matrix 2000, which may not be an appropriate test as it has apparently not been validated against internet offending, puts him at a low risk of committing a further sexual offence.  Using the SA07 test placed him at a moderate risk of further sexual offending as regards the Stable Dynamic Risk factors and a higher risk with the Acute Dynamic Risk factors.  The Court has a report from the Children's Service which includes a statement that they would have concerns if Velosa has contact with persons under 18 in the community. 

10.      Taking all these matters into account the Court is satisfied that the appropriate period to specify under Article 5(1) of the Law if 5 years and we so stipulate. 

11.      The Court has also been asked to impose restraining orders and in similar fashion we need to ensure that these interferences with Article 8 rights and potentially other Convention rights, are proportionate. 

12.      The Crown seeks three such restraining orders in this case.  The first and second restraining orders, the Court considers are appropriate and will make; they are in these terms:-

(i)        For the period of 5 years from the date hereof the accused be prohibited from acquiring or using any computer software which is designed to destroy, delete, or disguise internet activity on any device which may access the internet or any computer software which is designed to encrypt data held on such a device, save for any encryption which may be demonstrated to be for a legitimate purpose by the provision of any password or access code to a police officer;

(ii)       During the said period the accused permit access to his place of residence or vehicle by a police officer at all times for the purposes of inspection of any computer present there. 

13.      The third restraining order which the Crown have sought is that during the period of 5 years the accused be prohibited from having unsupervised contact with any person under 18 years of age, supervised access to be at the direction of the Children's Service; this prohibition is not to operate or to restrict everyday communication such as when buying goods in a shop or ordering a meal in a restaurant or to prohibit contact with people under the said age that is inadvertent or unavoidable in the course of lawful daily activity. 

14.      The Court recognises that watching the pernicious material which is the subject of the charges may well fuel the market, and therefore potentially cause a risk to children who may be made to participate in such films.  However, the Court does not think that on the present material before the Court it is possible to say that there is a risk to children from other sexual offences.  The point that watching the material may fuel the market and potentially cause a risk to children being made to participate in such films, is addressed by the first two of the restraining orders, but the third restraining order sought by the Crown goes much wider than that and the Court considers that it would need some evidence to reach the conclusion that there is a risk to children from other sexual offences.  We do not feel that there is sufficient before us to enable us to reach that conclusion today, so the third proposed order is not one which the Court finds it proportionate to make, balancing the Article 8 Convention rights of the accused with the risks he presents, and the very important public interest in protecting children.  We have noted that in relation to his own children, the Minister, if she considers that children are at risk, can, through the Children's Service, be expected to bring the relevant public law application and the Court would deal with that on the evidence in the usual way.  If there are concerns in relation to other children then the Court anticipates the Attorney General will seek leave to amend the present restraining order made, using the powers to make such applications under Article 10(11) of the Law, and the Court can deal with that on the evidence at that time. 

15.      We now turn to the question of sentence.  Indecent images found on the hard drive of the accused's computer, and the detachable drive used with the computer, was found in the save folder, sharing software on the computer as well as in the recycle bin which means that these images could be accessed more than once.  There are ninety three images in total; two from Copine Level 5, forty seven from Copine Level 4, three of the images are movie files from Copine Level 2, two are images from movie files Copine Level 1 and there are thirty nine still images at Level 1. 

16.      The Indictment makes it plain that the majority of the material at the higher reaches of the Copine scale involved penetrative sexual activity between adults and children and there are instances of sadism.  A number of the film clips have soundtracks so that, we are told, and there is no dispute about it, the distress of the children involved can be heard as well as seen. 

17.      Taking Count 4 on the Indictment as an example the description is "Appendix as a movie file lasting 8.49 minutes, showing a "Preteen girl subjected to sexual intercourse with 2 different adult males, girl can clearly be heard to be in distress."  The Court has been told that this particular film has been identified as belonging to a series of films produced by a UK offender with an identified seven year old victim, it dates from 2007 and the present seizure shows the sharing and circulation of such material continues for some years. 

18.      The Crown has reminded us, rightly, of the observation of this Court in AG-v-Le Marquand [2003] JRC 043 where, describing these offences, the Court said:-

"Such offences are serious, not only because of the revulsion which the community feels about them, but also because of the suffering and degradation caused to the unfortunate young children who have been forced, usually, to participate in the making of such photographs". 

19.      We would like also to refer to this Court's conclusions in the case of AG-v-Gavey [2010] JRC 203 in November last year where we said this:-

"As this Court said in the case of AG-v-Roberts [2010] JRC 088 where a similar charge was involved:-

"Offences of this nature will almost invariably call for a custodial sentence." 

The Crown, the Court decided in that case, had approached the question of sentence in absolutely the right way and then went on to say absolutely exceptionally in the case of Roberts:- "....the Court is going to sentence on the basis that the sentence should be served in the community..."

Coming back to what was said in Gavey:-

"The Court notes that this kind of offending does seem to be increasingly prevalent in the island and repeats what was said in the case of Roberts that it would require exceptional circumstances to depart from the principle of a custodial sentence."

20.      In the circumstances of this case the Court does not find that there were any exceptional circumstances and the Court's conclusions are that the sentences as moved for by the Crown are appropriate.  We add that the Court is concerned with what appears to be the growing prevalence in the community of these offences, noted by the Court in Gavey, and we give notice to the public that the Court will be keeping a watchful eye on whether the general tariff needs to be increased. 

21.      In the circumstances, on each of Counts 1 and 2 you are sentenced to a term of 18 months' imprisonment, on Counts 3 to 10 inclusively to a term of 15 months' imprisonment, on Counts 11 to 13, a term of 4 months' imprisonment, and on Counts 14 to 16, a term of 1 month's imprisonment, all these will run concurrently, making a total of 18 months' imprisonment. 

22.      The Court orders the forfeiture of the computer and has noted what has been said by the Defence, which we take to be agreed by the Crown, that before the forfeiture is completed the family photographs of the accused on this computer will be reviewed so that, if possible, they can be returned to him.  The forfeiture extends to the equipment also named in the Indictment. 

Authorities

Sex Offenders (Jersey) Law 2010.

European Convention on Human Rights.

Human Rights Law 2000.

Protection of Children (Jersey) Law 1994.

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

AG-v-Gavey [2010] JRC 203.

AG-v-Sunderland [2005] JRC 128.

AG-v-Curtin [2007] JRC 223.

AG-v-Roberts [2010] JRC 088.