Jersey Unreported Judgments

[2011]JRC046B

ROYAL COURT

(Samedi Division)

28^th February 2011

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Tibbo, Clapham, Morgan, Kerley, Nicolle and Bullen.

The Attorney General

-v-

Trevor Michael Rowe

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 17^th December, 2010, following guilty pleas to the following charges:

5 counts of:	Making indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Counts 1, 2, 3, 4 and 5).
6 counts of:	Inciting the making of an indecent photograph of a child, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Counts 6, 7, 8, 9, 10 and 11).
2 counts of:	Distributing indecent photographs of children, contrary to Article 2(1)(c) of the Protection of Children (Jersey) Law 1994 (Counts 12 and 13).
1 count of:	Securing unauthorised access to computer material, contrary to Article 2 of the Computer Misuse (Jersey) Law 1995 (Count 14).

Age:  27

Plea: Guilty.

Details of Offence:

At all material times Rowe lived with his parents at their home address.  He used the anonymity of the internet over a period of years to contact (predominantly) female children and to draw them into displaying themselves to him sexually via webcam.  He pretended to be a young teenage boy and in that guise he established and maintained contact with those whom he targeted. 

The children concerned all used online social networking facilities which enabled them to send and receive on-line text messages to and from their friends in real-time.  Rowe would register many different email addresses and open various instant messaging accounts for himself.  The particular websites that he frequented did not cross-reference email addresses and screen names, and thus Rowe's criminal deceit was facilitated.  Furthermore, although the sites were specifically set up so that users could show themselves on webcam, there was no obligation to do so.  Because of his real age, Rowe chose to hide his appearance and use text only.  He had literally dozens of online persona, and as far as his victims were concerned, he was a young teenage boy who was their age.  If asked to reciprocate by showing himself on camera instead of just texting, Rowe made excuses as to why he could not do that.  If pressed about his appearance, he would simply provide his victim with a suitable photograph of a teenage boy that he had taken at random from the internet. 

Rowe would join chat/webcam sessions in the age group of 14 to 18 and would choose a person to chat to, normally a young girl.  Despite the stipulated age range, many of the girls using these chat rooms are clearly younger than 14.  After gaining the trust of those he was chatting to, he would progress to asking sexual questions.  This would sometimes take two to three chat sessions to accomplish and he would cajole or encourage them to perform minor acts such as showing him their bra or asking what colour knickers they were wearing, before getting them to show him. 

He would "video" record all these acts using his computer and then use the digital video recordings to threaten his victims into further more sexualised actions, which often included showing him their breasts and genitals, masturbating, or inserting objects into themselves.  If they refused to comply with these further demands, he would tell them that he would infect their computers with viruses, distribute the recordings that he had made of them onto the internet, and tell their parents what they were doing. 

In many of the films it is apparent that the victims are tearful and visibly distressed at the prospect of doing what Rowe required.  It is also clear that Rowe would "direct" the girls to what he wanted them to do, as if he was a "movie director".  To ensure that his handiwork was recognised he would stamp the completed recorded movies and still images with a watermark. 

The five offences under Article 2(1)(a) of the 1994 Law (Counts 1 to 5) involve the making of a total of 1,492 indecent photographs of children on various pieces of computer equipment and also on DVD.  This figure can be further broken down as 324 films and 1,138 pictures (see below for detailed analysis).  Out of the 324 movie files recovered, 277 were made by Rowe personally using on screen recording software during webcam chat sessions where he requested and directed the proceedings.  Many of the illegal files had been disguised by saving them in obscure parts of the hard drive. 

The six counts of inciting the making of an indecent photograph (Counts 6 to 11) involve specimen offences committed against five female children whose ages ranged from 10 years to just under 16 years.  In addition to these six specific counts Rowe has asked that a total of 231 other similar offences be taken into consideration.  The incitement of this huge number of offences took place in the main part over a 9 month period between May 2009 and 10^th February, 2010, although the two earliest counts on the schedule of TICs date back to the beginning of 2008.  The majority of the incitement offences concern female children aged between 12 and 16 years, although three involve a boy aged between 12 and 14 years.  Approximately eleven of the offences involved children aged around 10 years or younger.  The images produced range from category 1 to category 4 on the Copine scale.  Many of the children involved are seen to be visibly distressed at the time of the recording. 

In total, approximately 135 different screen names were identified on the illegal photographs found on Rowe's computer hardware, meaning that in all likelihood around this many individual children under the age of 16 were targeted by Rowe and incited to make indecent photographs.  Although two of the children were later able to be traced during the police investigation (and were able to confirm details of their interaction with Rowe) the vast majority of the children were identified by their online screen names alone or, in some cases, are unidentifiable.  It is not believed that any of the children were local. 

The distribution charges on the indictment reflect a particular technique that Rowe used to put pressure on the children.  In order to prove that he was willing and capable of carrying out the threats, he would either send his victims a copy of a still picture that he had made from the recorded video footage, or alternatively direct them to a particular photo storage website onto which he had uploaded and thereby distributed the said photos (Count 13).  On this website police eventually located eleven different galleries containing a total of 668 pictures.  All of these pictures showed young females in various states of undress or action, and 159 were deemed to be indecent, all of which falling into category 1 on the Copine scale.  Rowe would then continue to incite and record the child's indecent actions until they would go no further, after which he would move onto another victim.  It is clear from the volume of material recovered that Rowe was often grooming several different children in this sort of sexualised behaviour at any one time.  The distribution aspect of this case illustrates the depth of depravity that Rowe was prepared to plumb to pressurise his victims.  In one case he specifically sent twenty indecent photographs of an 11 year old girl (taken from a film that he had incited that the girl make) to that child's mother whilst attempting to blackmail the mother into providing naked photographs of herself (Count 12). 

Finally Rowe committed one offence under the Computer Misuse (Jersey) Law 1995 which involved him gaining access to the instant messaging facilities belonging to a 15 year old female child (Count 14).  During a police investigation a male school friend of the said girl confirmed that at some time between 25^th January, 2010, and 7^th February, 2010, someone purporting to be the girl had unsuccessfully tried to engage him in sexualised conversation.  He said there had been a brief discussion about the girl doing things on webcam for her boyfriend.  The friend was aware that the girl did not have a boyfriend and suspected an impostor.  The following day he sought verification from the girl herself who confirmed that it had not been her.  A second female friend gave a similar account and subsequent forensic analysis of the relevant computers showed that a computer with the IP address matching that of Rowe accessed the said 15 year old girl's email account at the relevant times. 

Rowe was arrested in February 2010 after one of his 11 year old victims and her mother (the subject in Count 12) contacted the UK police, who were in turn able to trace Rowe back to Jersey.  That particular victim had been in communication with Rowe over a 12 month period, during which time he had groomed her (with threats) to reveal herself to him sexually.  He had communicated with her not only using the computer, but with text messages and phone calls, contacting the girl fifteen to twenty times per day and sending pornographic pictures.  On one occasion he had specifically cajoled the girl into finding a dildo and sucking it on camera.  He later made threats to her mother that he would distribute the images of her daughter if she did not do the same thing. 

During interview Rowe admitted using "web cam" sites to communicate with children and confirmed having various email accounts.  He estimated that he had contacted in the region of one hundred children through this method.  He admitted that his communication with these children would often progress to directing them to perform sexualised acts on the web cam and said that the age group that aroused him the most was between 13 to 16 years old, although he conceded that sometimes he viewed images of children who were younger.  He admitted contacting and filming a particular 13 year old (Count 10 - Level 2 Copine scale) and said that he might have used the footage that he had taken of this 13 year old girl as a "tool to make her some more things by saying I've got these pictures of you".  When asked what he thought she might do he replied "Without meaning to sound horrible or anything, probably anything she could to have assured (the pictures didn't get distributed)". 

Rowe also confirmed that he had been in contact with the 11 year old girl whose mother had made the complaint to UK police, and that he had asked her to perform various sex acts.  When confronted about the mother's complaint Rowe initially maintained that he had alerted the mother to the fact that her daughter was exposing herself and said that he thought she was doing it to other people as well.  However, he later admitted that he had told the mother that he would send the images to Social Services, and conceded that his ultimate goal in threatening the mother was to get her to put on a sexual show for him as well.  He accepted that his actions were tantamount to blackmail. 

Rowe made general admissions about visiting internet websites which displayed child pornography, and confirmed that details of these sites and downloaded images would be found on a DVD disk seized from his house (Count 5). 

A subsequent forensic analysis of Rowe's computer tower (Count 1) revealed a total of 94 indecent movie files together with 91 indecent pictures of children. These were classified as follows:-

Copine scale                          Movies                          Pictures

Category 1                             65                                 82

Category 2                             9                                  3

Category 3                             0                                  0

Category 4                             20                                 2

Category 5                             0                                  4

 

A further 131 indecent movie files and 170 pictures of children under the age of 16 were located on a stand-alone Verbatim branded back-up storage device (Count 2).  These were categorised as follows:-

Copine scale                          Movies                          Pictures

Category 1                             74                                 163

Category 2                             14                                 0

Category 3                             1                                  0

Category 4                             42                                 2

Category 5                             0                                  5

 

40 indecent movie files and 11 indecent still images were located on an "Archos" branded MP3 player (Count 3), which had the capability off being used as a portable storage/playback device.  These were categorised as follows:-

Copine scale                          Movies                          Pictures

Category 1                             20                                 9

Category 2                             1                                  0

Category 3                             0                                  1

Category 4                             19                                 1

Category 5                             0                                  0

 

14 indecent movie files of children under the age of 16 years were located on 2 DVD discs.  These movie files were all made by Rowe using the same "webcam" methods as described above and were classified as follows:-

Copine scale                          Movies

Category 1                             8

Category 2                             2

Category 3                             0

Category 4                             4

Category 5                             0

 

Finally a large amount of illegal material was recovered from a third DVD (Count 5), which included password protected compressed files.  A total of 45 indecent movies and 866 indecent still photographs were recovered, which were classified as follows:-

Copine scale                          Movies                          Pictures

Category 1                             12                                 742

Category 2                             2                                  1

Category 3                             0                                  78

Category 4                             26                                 45

Category 5                             5                                  0

 

All of these photographs and movie files were unique to this DVD and had all been downloaded by Rowe from internet sites, as opposed to having been made by him via webcam chat.  The said DVD contained some particularly harrowing movie files which are among the worst seen by the police investigators.  The category 5 movies are all of high quality and are complete with sound, as are some of the category 4 movies.  The child in all of the category 5 movies is clearly under the age of 10 and is subjected to sustained and deliberate abuse which involves both animals and sadomasochism.  All of the category 4 movies involve children under the age of 10 and include a film of an adult male having intercourse with a baby.  The infant can be heard to be in great distress.  In other movies similarly distressed children can be heard asking the adult involved to stop.  The majority of the still images display children of a very young age and appear to be "collections" which depict a series involving the same girl within each "collection".  There is a significant quantity of category 3 and 4 images. 

Details of Mitigation:

Very little mitigation, save for the guilty pleas and cooperation. 

Previous Convictions:

One previous conviction in 2004, comprising three offences including possession and distribution of indecent photographs of children.  On that occasion he was sentenced to 21 months' imprisonment. 

Conclusions:

Count 1:	5½ years' imprisonment.
Count 2:	5½ years' imprisonment, concurrent.
Count 3:	5 years' imprisonment, concurrent.
Count 4:	4½ years' imprisonment, concurrent.
Count 5:	2½ years' imprisonment, consecutive.
Count 6:	5½ years' imprisonment, concurrent to Count 1.
Count 7:	5 years' imprisonment, concurrent.
Count 8:	4½ years' imprisonment, concurrent.
Count 9:	4½ years' imprisonment, concurrent.
Count 10:	4½ years' imprisonment, concurrent.
Count 11:	5½ years' imprisonment, concurrent.
Count 12:	2 years' imprisonment, consecutive.
Count 13:	2 years' imprisonment, concurrent to Count 12.
Count 14:	2 months' imprisonment, consecutive.

Total:  10 years and 2 months' imprisonment. 

Forfeiture of computer and equipment sought. 

Application under Sex Offenders (Jersey) Law 2010 notification requirement - 15 years restrictive orders sought. 

Sentence and Observations of Court:

The Court warned that this case demonstrated the dangers of internet chat rooms.  The Court considered that Rowe's actions were worse than those of Forno, and that the approach of the Crown conclusions had been correct.  Nevertheless the Court felt able to make a slight reduction to the sentence on Count 5. 

Count 1:	5½ years' imprisonment.
Count 2:	5½ years' imprisonment, concurrent.
Count 3:	5 years' imprisonment, concurrent.
Count 4:	4½ years' imprisonment, concurrent.
Count 5:	1½ year's imprisonment, consecutive.
Count 6:	5½ years' imprisonment, concurrent.
Count 7:	5 years' imprisonment, concurrent.
Count 8:	4½ years' imprisonment, concurrent.
Count 9:	4½ years' imprisonment, concurrent.
Count 10:	4½ years' imprisonment, concurrent.
Count 11:	5½ years' imprisonment, concurrent.
Count 12:	2 years' imprisonment, consecutive.
Count 13:	2 years' imprisonment, concurrent to Count 12.
Count 14:	2 months' imprisonment, concurrent.

Total:  9 years' imprisonment. 

Forfeiture of computer and equipment ordered. 

Application under the Sex Offenders (Jersey) Law 2010 notification requirement - 10 years' restrictive orders. 

C. M. M. Yates, Esq., Crown Advocate.

Advocate C. R. Baglin for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The Court is charged first of all by Article 5(1) of the Sex Offenders (Jersey) Law 2010 to fix a minimum period that must expire before any application is made by you to have the notification requirements under the Sex Offenders Law disapplied to you.  The Court fixes a period of 10 years for that purpose.  We have in mind in particular that under Article 5(6), when that application is made, the Court will only grant an application that the notification requirement should not apply to you if it is satisfied that you no longer pose a risk of sexual harm to the public and therefore that is a considerable threshold which you will need to pass at that time.  The period which we are fixing is the minimum period which must expire before any application can be made. 

2.        We have also considered the Crown's suggestion for restraining orders under Article 10 of that legislation.  Article 10(4) of the Law clearly provides a preliminary threshold before the Court's jurisdiction to make a restraining order arises and the Crown must prove on the balance of probabilities that the person poses a threat of serious sexual harm to the public or to particular persons.  The Court is satisfied that that threshold has been passed. 

3.        The power to make restraining orders under Article 10 of the Law in many respects is similar to the power conferred on the English Courts by Section 104 of the Sexual Offences Act 2003 to make a sexual offences prevention order.  And we note that this has been considered by the English Courts on a number of occasions but in particular, in the case of R-v-Hemsley [2010] 3 All ER 965.  In that case the court was considering making an order in relation to an offender who had pleaded guilty to 23 counts of making indecent photographs or pseudo photographs of a child.  The Court of Appeal said this:- "Key words or phrases in that statutory provision" section 104, which is in the same terms as our provisions, "are often overlooked, are necessary "for the purpose of protecting" and "serious harm.""

The Court went on:-

"We also consider it is essential, bearing in mind the breach of a S.O.P.O. is a criminal offence carrying a maximum of 5 years' imprisonment ..., that such orders are clear on their face, capable of being complied with by the subject thereof without unreasonable difficulty and/or the assistance of a third party and free of the risk of unintentional breach.  Such orders need to be carefully drafted and bearing in mind that although not in the case in that instance they are often made against those of limited education, simplicity is a virtue."

4.        We have considered the nature of the Crown's proposed restraining orders and we have decided the right orders to make are these:-

(i)        You should not have any direct or indirect contact through the mediums of email, social networking sites, texting or any other form of electronic communication with any person under the age of 16 years of age other than is inadvertent and/or unavoidable in every day life; and

(ii)       You should make available to the police for inspection in order to ensure compliance with the non-contact condition listed above, any communications device including but not limited to any form of computer or mobile telephone, together with any corresponding email addresses, contact lists and/or forms of electronic identifier.  As with the case under Article 5(1) of the Law, those restraining obligations are imposed for a period of 10 years and it will be open to the Crown to seek leave to amend that period on evidence, if that is available, if the Crown should be so advised. 

The detail of these orders will be explained to you in more detail no doubt by your counsel but you cannot bring an application to the Court to have the notification requirements disapplied to you for a period of at least 10 years, and for 10 years from today you are also not to have direct or indirect contact through any mediums of email, social networking sites and as I have described, with those under the age of 16. 

5.        I now come to the question of the appropriate sentence for the Counts on the Indictment to which you have pleaded guilty and they reflect a number of offences either under the Protection of Children (Jersey) Law 1994.  The Court takes these offences which you have committed as being extremely serious offences.  They involve the grooming of very young girls; they involve actual incitement of young girls.  The case demonstrates the dangers of internet chat rooms and instant messaging with young people who are inexperienced in dealing with scheming, and in some respects, dishonest people, who might exploit them for their own perverted sexual gratification and parents should be aware of that.  The damage involved is the destruction of trust which young girls have in others and in themselves. 

6.        The Court has had regard to the mitigation which has been put forward by your counsel, in particular to the cooperation which you have expressed in the enquiries, and of course in your guilty plea before this Court.  But of course we also take into account the gravity of the offending, which as I say, we treat as being very serious indeed.  There is a question mark over the extent to which you have really shown any great remorse, and this is not the first occasion on which you are before this Court for offending of this kind.  In those circumstances the Court has looked at the case of AG-v-Forno [2011] JCA 022, which was before the Court of Appeal recently, and we take the opportunity of saying that we think that this case is worse than the case of Forno, worse because in the latter case there were no threats, the accused had no previous convictions and there were fewer victims.  Looking at the Counts on the Indictment we think that while each of the Crown's conclusions can be individually justified, nonetheless applying the totality principle, the total is more than this Court thinks would be appropriate.  For that reason we are going to adjust slightly the sentences which are to be imposed. 

7.        We think in principle it is right that Counts 1 - 4 and Counts 6 - 11 should be treated concurrently and in principle it is right that Count 5 should be treated consecutively; Counts 12 and 13 while treated concurrently as between themselves, would be treated consecutively, and Count 14 would also be treated concurrently.  We make it plain therefore that the Crown's approach in terms of concurrent/consecutive sentences is, we think, correct.  Nonetheless, on the grounds of totality we are going to amend the sentences which are moved for and you are sentenced as follows.  On Count 1; 5½ years' imprisonment, on Count 2; 5½ years' imprisonment, on Count 3; 5 years' imprisonment, on Count 4: 4½ years' imprisonment, on Count 5; 1½ years' imprisonment, which is to be served consecutively to Counts 1 - 4.  On Count 6; 5½ years' imprisonment, on Count 7; 5 years' imprisonment, on Count 8; 4½ years' imprisonment, on Count 9; 4½ years' imprisonment, on Count 10; 4½ years' imprisonment, on Count 11; 5½ years' imprisonment and those are to be served concurrently with Counts 1 - 4.  Count 12, the distribution of this material to the mother, is regarded by the Court as a particularly unpleasant offence; you are sentenced to 2 years' imprisonment and on Count 13; 2 years' imprisonment.  The sentences on these counts will run consecutively to Counts 1 - 4, but concurrently with each other.  They will also run consecutively to Count 5.  On Count 14 you are sentenced to 2 months' imprisonment which runs concurrently.  So the effect of that in total is that you are sentenced to 9 years' imprisonment. 

8.        We also order the forfeiture and destruction of the computer equipment. 

Authorities

Sex Offenders (Jersey) Law 2010.

Sexual Offences Act 2003.

AG-v-Forno [2011] JCA 022.

R-v-Hemsley [2010] 3 All ER 965.

AG-v-Rowe [2004] JRC 217.

R-v-Oliver Hartley & Baldwin [2003] 1 Cr. App. R. 28

AG-v-Forno [2010] JRC 130.

AG-v-Velosa [2011] JRC 026.