Jersey Unreported Judgments

[2011]JRC058

ROYAL COURT

(Samedi Division)

18^th March 2011

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats de Veulle and Fisher.

The Attorney General

-v-

Justin Andre Ybert

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

2 counts of:

Making indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Counts 1 and 2).

Age:  38.

Plea: Guilty.

Details of Offence:

A warrant was executed at the defendant's address and a computer and associated equipment was seized, along with DVDs and videos.  He was arrested and interviewed.  He made no comment but later admitted to using the internet to access fetish pornography through news groups.  Specifically he was interested in female and equestrian urination.  He   denied that he had used the news group to download child pornography, saying it was wrong and that he was not interested in it.  He claimed he had received unsolicited emails containing child pornography, but that he deleted them.  When further challenged he admitted that he had a sexual interest in 7-12 year old girls, but only when they were in particular outfits (ballerina, equestrian etc).  He claimed that he had never been interested in nude photographs or footage of children and denied downloading any.  He said that he knew his sexual interest in children was wrong and accepted that he needed help dealing with it.  He was released from custody pending further examination of his computer. 

This examination revealed 997 indecent images and 4 movies on an HP computer (Count 1) and a further 29 images and 20 movies on an external USB device (Count 2).  Evidence was found that showed certain images had been viewed several times. 

The Copine classifications were as follows:-

Count 1

Copine scale                          Pictures                        Movies

Category 1                             944 (920 deleted)           1 (1 deleted)

Category 2                             6 (6 deleted)                  0

Category 3                             7 (6 deleted)                  0

Category 4                             30 (30 deleted)               1 (1 deleted)

Category 5                             10 (10 deleted)               2 (2 deleted)

Count 2

Copine scale                          Pictures                        Movies

Category 1                             29                                 16

Category 2                             0                                  0

Category 3                             0                                  3

Category 4                             0                                  1

Category 5                             0                                  0

Further legal pornography was also found.

The defendant was re-arrested and interviewed.  He initially maintained that he had only ever been sent unsolicited indecent images of children.  After being presented with the evidence he eventually admitted to using news groups and search engines to intentionally search for, access and download indecent photographs and movies. 

Assessed as being at moderate risk of sexual re-offending and low risk of other re-offending. 

Details of Mitigation:

Cooperation and guilty plea.  Previous good character and has expressed remorse.  Assessed by psychologist as anxious and depressive. 

Stress (though the Crown contended that the defendant had brought the stress related to these proceedings on himself). 

Previous Convictions:

None.

Conclusions:

Count 1:	18 months' imprisonment.
Count 2:	18 months' imprisonment, concurrent.

Total:  18 months' imprisonment. 

Forfeiture of the computer and associated hardware sought.

Registration on the Sex Offender List for a minimum of 5 years sought. 

No restraining orders sought.

Sentence and Observations of Court:

No exceptional circumstances.

Count 1:	12 months' imprisonment.
Count 2:	12 months' imprisonment, concurrent.

Total:  12 months' imprisonment. 

Forfeiture of computer and associated hardware ordered. 

Registration on the Sex Offenders List for a minimum of 5 years ordered. 

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

Advocate C. R. Baglin for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The first matter with which the Court has to deal under the Sex Offenders (Jersey) Law 2010 is consideration of the minimum period which should elapse before the accused is permitted to apply under paragraph 5 of the Law "no longer to be subject to the notification requirements".  The Crown suggests a period of 5 years should elapse; we have approached this matter adopting the approach set out by the Royal Court in the case of AG-v-Velosa [2011] JRC 026 (paragraphs 1-8) and we find that it is proportionate to make an order that 5 years is the right period as the minimum which should elapse before the accused is permitted to apply for the notification requirements no longer to apply to him, and the reason for that is that we have had regard to the reports of the experts which suggest on the whole, a low risk of re-offending although we have noted the report of the Police Public Protection Unit which say that there is a dynamic assessment of medium risk.  So under those circumstances we fix on the period of 5 years. 

2.        I now turn to the question of sentence.  It will be obvious from the amount of time the Court has spent considering this matter that we have found this case to be extremely difficult.  The offending which you have committed, Mr Ybert, is serious offending and we have noted the comments which have been made by the Court on many other occasions to the effect that a custodial sentence is inevitable unless there are unusual or exceptional circumstances.  You heard me press your Counsel on what those exceptional circumstances might be and we have given very careful consideration to them.  We take account of them for the purposes of mitigation but the exceptional circumstances which he advanced were; that you had downloaded and not made the images for the first time, we do not regard that as being exceptional; that you had not distributed the images and we do not regard that as being exceptional.  The next point was that there was a limited review of the material because you had deleted most of it and did not go back to look at it more than once, although there was one film at Copine level 4 where you did so.  We again do not regard that as exceptional because there is, unfortunately, a wealth of this sort of material on the internet and therefore it does not seem to us to put it into an exceptional category. 

3.        We have considered all the matters which are set out in the social enquiry report and also the fact that the vast majority of images were within Copine level 1.  But, we regret to say, we do not find that these amount to exceptional circumstances either.  All these things are good points put by your Counsel in terms of mitigation but they do not take us into the circumstance where we can say that a custodial sentence can be avoided. 

4.        As the Court said in the case of Velosa:-

"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 the children who may be made to participate in such films". 

5.        As the Court said in AG-v-Le Marquand [2003] JRC 043:-

"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."

6.        The Court has looked carefully at the amount of images which were found on your computer equipment and taken particular account of the fact that the vast majority were at Copine level 1.  We have also taken account of all the mitigation which your Counsel have put forward but, just reflecting for the moment on the levels of material at Copine level 1 as compared with the others, the Court takes the view that applying the guideline case of AG-v-Oliver, Hartley & Baldwin [2003] 1 Cr. App. R. 28 you fall somewhere between, what I might regard as box 4 and box 5, on the scales which the Court of Appeal in Oliver set down.  That is to say there is somewhere between a possession of a small amount of level 4 or level 5 photographs and possession of a large amount of level 4 or level 5. 

7.        In those circumstances the Court is going to sentence you to 12 months' imprisonment.  That sentence reflects our view that the custodial sentence is inevitable and, although there is much to be said for you, and your Counsel has said it all, and it appears in the social enquiry report as well, that is the right sentence we should impose for this offending.  You will go to prison for 12 months. 

8.        We order the forfeiture of the computer and other computer equipment. 

Authorities

Sex Offenders (Jersey) Law 2010.

AG-v-Velosa [2011] JRC 026.

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

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

AG-v-Gavey [2010] JRC 203.