Jersey Unreported Judgments

Inferior Number Sentencing - making indecent photographs of children - drugs - possession - Class B and C.

[2012]JRC026

Royal Court

(Samedi)

31 January 2012

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Le Cornu and Milner.

The Attorney General

-v-

James Vincent Dean Brookes

Sentencing by the Inferior Number of the Royal Court, following conviction at trial on 20^th December, 2011 on the following charges:

First Indictment

31 counts of:

Making an indecent photograph of a child, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Counts 1-5 and 7-32).

Second Indictment

2 counts of:

Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Counts 1 and 2).

Age:  26.

Plea: Not guilty.

Details of Offence:

Search warrant executed at the defendant's home address in December 2008 and laptop computer and external hard drive seized.  The defendant was interviewed under caution initially whilst awaiting forensic examination of computer.  Admitted possessing large quantity of pornography on computer but denied any child pornography. 

Forensic examination revealed indecent images of children both in the form of still photographs and movies.  Still photographs and movies found on laptop computer and movies only on external hard drive.  Defendant interviewed under caution and evidence put to him but maintained denial of making of any indecent images of children.  Claimed downloaded pornography off of "LimeWire" in bulk and had not seen all of the material that was found on his computer.  Admitted he had only retained material that was of a good quality.  Denied deliberately downloading indecent images of children or viewing the same.  Forensic examination of the computer etc provided records of date and time upon which some of the still images had been opened/viewed.  None of the indecent images had been deleted.  In terms of the categorisation of this material under the Copine levels the following was agreed by the defendant:-

Copine Levels - indecent still photographs (covered by Counts 1-17 but excluding Count 6).

Level 1: 150 images.

Level 2: 6 images.

Level 3: 17 images.

Level 4: 31 images.

Level 5: 0 images.

Total number of indecent images: 204.

Copine Levels- -indecent movies (covered by Counts 18-32).

Level 1: 6 movies.

Level 2: 4 movies.

Level 3: 4 movies.

Level 4: 45 movies.

Level 5: 6 movies.

Total number of indecent movies: 65.

The defendant made a number of admissions in advance of trial and gave evidence on his own behalf.  He maintained his position that he had not intentionally downloaded any of the material.  He claimed he had not opened or viewed any of the images and maintained that this position even in relation to the specific images for which the computer records existed showing that an image had been opened and viewed on a particular date and time.  The defendant was found unanimously guilty of all 31 counts. 

At the time of the search warrant 9.74 grams of cannabis resin had been found and the defendant admitted this was for his own personal use.  Approximate value £40 (Count 33). 

Whilst on bail and pending his trial, the defendant had been stopped entering the Jersey Live Festival in September 2011.  A small quantity of cannabis and one tablet of TFMPP had been found in his wallet and he admitted possession of them for personal use.  These drugs would have had a nominal value (Counts on the Second indictment). 

Details of Mitigation:

The Crown

The defendant found guilty of making indecent photographs of children which in particular contained 31 images at Copine level 4 and 45 movies at Copine level 4 and 6 at level 5.  Images at these levels deemed to be particularly serious and immediate custodial warranted.  He did not have the benefit of a guilty plea. No merit in the defence at trial.  The defendant still did not accept responsibility for his actions claiming that any downloading of material was accidental and that "it could happen to anyone".  Of previous good character but not a significant factor in cases of this nature.  Only matter of mitigation of substance was the issue of delay.  Save for that delay the Crown would have moved for a sentence of 2 years' imprisonment.  The Crown acknowledged that there had been a delay of approximately 11-12 months when the file had not been progressed.  The Crown made allowance of a 6 month deduction for that delay. 

Defence

Defendant had accepted the verdict of the jurats and there was to be no appeal.  Still unable to accept that he had deliberately downloaded the material but was a matter for him to come to terms with.  Defence contended that there were two exceptional matters justifying the Court departing from its normal policy of an immediate custodial sentence.  These matters were firstly the admissions made at trial by the defendant: submitted substantial and detailed admissions were made in writing in relation to all of the counts.  The second exception was the issue of delay.  Taken in excess of 3 years and 1 month from date or original arrest to the sentencing hearing.  Defence counsel considered periods of delay in other similar cases.  A period of some 2 years when case held in abeyance without any information being passed to the defendant.  Delay had had a detrimental effect on the defendant's health resulting in him surrendering his employment which he had held for some 9 years since leaving school.  Other mitigating factors suggested: material only for private viewing; previous good character; excellent employment record; six supportive references; residual youth, aged 23 at time of arrest and personal circumstances.  The social enquiry report revealed tragic circumstances in early life.  A vulnerable individual.  Non-custodial sentence sought. 

Previous Convictions:

None.

Conclusions:

First Indictment

Count 1:	18 months' imprisonment.
Count 2:	18 months' imprisonment, concurrent.
Count 3:	18 months' imprisonment, concurrent.
Count 4:	18 months' imprisonment, concurrent.
Count 5:	18 months' imprisonment, concurrent.
Count 7:	18 months' imprisonment, concurrent.
Count 8:	18 months' imprisonment, concurrent.
Count 9:	18 months' imprisonment, concurrent.
Count 10:	18 months' imprisonment, concurrent.
Count 11:	18 months' imprisonment, concurrent.
Count 12:	18 months' imprisonment, concurrent.
Count 13:	18 months' imprisonment, concurrent.
Count 14:	18 months' imprisonment, concurrent.
Count 15:	18 months' imprisonment, concurrent.
Count 16:	18 months' imprisonment, concurrent.
Count 17:	18 months' imprisonment, concurrent.
Count 18:	18 months' imprisonment, concurrent.
Count 19:	18 months' imprisonment, concurrent.
Count 20:	18 months' imprisonment, concurrent.
Count 21:	18 months' imprisonment, concurrent.
Count 22:	18 months' imprisonment, concurrent.
Count 23:	18 months' imprisonment, concurrent.
Count 24:	18 months' imprisonment, concurrent.
Count 25:	18 months' imprisonment, concurrent.
Count 26:	18 months' imprisonment, concurrent.
Count 27:	18 months' imprisonment, concurrent.
Count 28:	18 months' imprisonment, concurrent.
Count 29:	18 months' imprisonment, concurrent.
Count 30:	18 months' imprisonment, concurrent.
Count 31:	18 months' imprisonment, concurrent.
Count 32:	1 week's imprisonment, concurrent.

Second Indictment

Count 1:	1 week's imprisonment, consecutive to the First Indictment.
Count 2:	1 week's imprisonment, concurrent to Count 1.

Total: 18 months' and 1 week's imprisonment. 

Forfeiture of laptop and hardware sought. 

Forfeiture and destruction of drugs sought. 

Orders under the Sex Offender's (Jersey) Law 2010 for a notification period of 5 years and restraining orders sought. 

Sentence and Observations of Court:

The Court noted that the defendant had been found guilty of 31 counts of making indecent images of children which he had downloaded using "Limewire".  He had 204 still images and 65 movies of indecent images.  The Court quoted the Copine levels as set out by the Crown and as agreed by the Defence.  Images at Copine levels 4 and 5 are viewed with particular seriousness as they showed penetrative sex, rape and sadism involving children.  At his trial and to this day the defendant continues to deny deliberately downloading the material and claims it could happen to anyone.  All the images are of female children save for Counts 27 and 28 which involved male children.  The Court's policy on sentencing when a defendant who has made images of Copine levels 4 and 5 is to impose an immediate custodial sentence unless exceptional circumstances exist.  After very careful consideration the Court reached the conclusion that there was an exceptional reason in this case.  The defendant had been arrested on 18^th December, 2008, and was now being sentenced some 3 years later.  The Crown had apologised for some 11 months of delay before the file had been sent to the Attorney General.  However, there had been a period of some 2 years from the end of the second interview under caution when there had been no communication with the defendant as to what was happening with any possible prosecution.  In the Court's view this was unacceptable.  It is noted that the defendant suffered ill health and the loss of his employment.  He is suffering from depression and the prognosis is a guarded one. 

For the reasons set out in the social enquiry report it is clear that he has suffered from a tragic early background.  The Court is dealing with a very vulnerable person and the Court find there are exception grounds for departing from its normal policy.  The Court also had regard to his good character, residual youth etc. 

First Indictment

Count 1:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order.
Count 2:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 3:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 4:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 5:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 7:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 8:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 9:	240 hours' Community Service Order, or 18 months' imprisonment in default, and 1 year Probation Order, concurrent.
Count 10:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 11:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 12:	240 hours' Community Service Order, or 18 months' imprisonment in default, and 1 year Probation Order, concurrent.
Count 13:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 14:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 15:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 16:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 17:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 18:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 19:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 20:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 21:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 22:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 23:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 24:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 25:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 26:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 27:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 28:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 29:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 30:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 31:	240 hours' Community Service Order, or 18 months' imprisonment in default, and a 12 month Probation Order, concurrent.
Count 32:	20 hours' Community Service Order, or 1 week's imprisonment in default, concurrent.

Second Indictment

Count 1:	20 hours' Community Service Order, or 1 week's imprisonment in default, consecutive to the First Indictment.
Count 2:	20 hours' Community Service Order, or 1 week's imprisonment in default, concurrent to Count 1.

Total: 260 hours' Community Service Order, or 18 months' and 1 week's imprisonment in default, and a 12 month Probation Order. 

Forfeiture of laptop and hardware ordered. 

Forfeiture and destruction of drugs ordered. 

The Court is satisfied that under Article 5(3) of the Sex offenders (Jersey) Law 2010 that a period of 5 years elapse before the defendant is permitted to apply to no longer be subject to the notification requirements. 

In relation to the restraining order the proposed orders were not opposed by the Defence and the Court agreed to impose the orders sought by the Crown which were in the following terms:-

(a) That for a period of 5 years from the date of sentencing, the defendant be prohibited from owning or having in his possession a device capable of accessing the Internet unless:-

         (i) It has capacity to retain and display the history of internet use;

         (ii) The defendant should ensure that such history is not deleted.

(b) That during the same period of time the defendant must produce to a police officer forthwith on request for examination, from time to time, any computer or any device which may have access to the internet, or any telephone or mobile phone, or any device which can store electronic images, which belongs to or is in his possession, it being noted that such requests may be made anywhere, including by the police attending the defendant's place of residence. 

J. C. Gollop, Esq., Crown Advocate.

Advocate M. J. Haines for the Defendant.

JUDGMENT

THE commissioner:

1.        The Law requires us first to deal with the position under the Sex Offenders (Jersey) Law 2010.  Having been convicted of offences under Article 2 of the Protection of Children (Jersey) Law 1994, the defendant has become subject to the notification requirements of that Sex Offenders Law.  Article 5(1) requires us to specify a period that must expire before an application can be made by the defendant to lift those requirements.  Article 5(4) is currently in the following terms:-

"Unless the court is satisfied that there is an exceptional reason why a shorter period would be appropriate, the period specified under paragraph (1), (2) or (3) 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."

We have read down that provision in the way set out in AG-v-E [2011] JRC 217B. 

2.        In the Social Enquiry Report the Probation Officer says this:-

"Overall, it is my assessment that there are enough concerns to indicate Mr Brookes does pose a risk of harm sufficient to warrant a period of intervention with an aim of reducing the likelihood of him re-offending.  Equally the Court will note that there has been a three year period since the Internet index offences, during which there is no evidence that Mr Brookes has offended in a similar manner.  This would suggest he has the ability to control his behaviour in this area."

Notwithstanding those last comments we have addressed the issue of the risk of the defendant re-offending and we do conclude that 5 years is the appropriate period as specified under Article 5(4). 

3.        In relation to the restraining orders we agree that those orders should be granted in the terms set out by the Crown, namely:-

(a) that for a period of 5 years from the date of sentencing the defendant be prohibited from owning or having in his possession a device capable of accessing the internet, unless:-

(i) It has the capacity to retain and display the history of internet use;

(ii) The defendant shall ensure that such history is not deleted.

(b) That during the same period of time Brookes must produce to a Police Officer forthwith on request for examination, from time to time any computer or device which may access the internet, or any telephone or mobile phone, or any device which can store electronic images, which belongs to or is in his possession, it being noted that such requests may be made anywhere, including by the Police attending the defendant's place of residence."

We note that the Defence do not oppose the Crown's conclusions in both those respects.

4.        We now turn to the issue of sentencing.  The defendant has been found guilty of thirty-one counts of making indecent photographs of a child, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994.  Using 'Limewire', which allows users to share files, he has downloaded 204 still photos and 65 movies of indecent images.  Of the images, 150 were at Level 1; 6 were at Level 2; 70 at Level 3; 31 at Level 4 of the Copine Scale.  Of the movies, 6 were at Level 1; 4 at Level 2; 4 at Level 3; 45 at Level 4; and 6 at Level 5 of the Copine Scale.  Images at the 4 and 5 levels show penetrative sex, rape and sadism involving children. 

5.        The victims range from 4-15 years old and are primarily female, with the exception of Count 23 which includes males and females of approximately 14 years old having sex together, and Count 28 which involves an adult male performing anal intercourse with a boy of approximately 12 years old.  The abuse of the female victims includes images of them exposing their genitals, being made to perform oral sex and having it done to them, penetration vaginal and anal, rape and sadism.  This, as the Social Enquiry Report points out is not a victimless crime.  We are fully aware of the serious harm caused to children through the creation of such images.  The harm is exacerbated by the fact that the abuse is visually recorded, thereby effectively re-victimising the children on each occasion the images are viewed and acting as a barrier to recovery from the original abuse.  The viewing of these images also creates a market which serves to perpetuate the sexual abuse of children. 

6.        At his trial, and to this day, the defendant denies intentionally downloading this material, saying that it can happen to anyone. 

7.        The policy of the Court, accordingly, when sentencing for the making of images at the Copine Levels 4 and 5 is that a custodial sentence will be imposed unless there are exceptional circumstances.  After very careful consideration we have decided that there are exceptional circumstances in this case. 

8.        The defendant was arrested on 18^th December, 2008 and stands before us for sentencing over 3 years later.  The Crown has apologised for a delay of 11 months which took place within the Crown Officers' Department but Mr Gollop has acknowledged that there were delays before the files were sent to the Crown Officers.  What is clear is that for a period of 2 years from his second interview with the police, the defendant has had this possible prosecution hanging over him with apparently no contact or information from the police.  In our view that is unacceptable.  It has led to the defendant's ill health and subsequent loss of his long-held employment.  His doctor reports that he has suffered, and is suffering from depression and his prognosis is guarded.  In addition to this, for the reasons set out in the Social Enquiry Report, it is clear that the defendant has had a tragic family background, leading us to conclude that we are dealing with a very vulnerable person. 

9.        For these reasons we have decided that there are exceptional grounds to depart from the normal policy of the Court. 

10.      We have also taken into account the defendant's good character, his residual youth and the other mitigation put forward.  One helpful consequence of our decision is that he will be able to undertake the treatment programme on sexual offending which is not available in prison. 

11.      On the First Indictment, Counts 1-32, but excluding of course Count 6, you are sentenced to 12 months' probation, concurrent on each of those counts, this will be on the usual conditions but subject to the additional condition that you attend and complete such programmes as the probation officer shall designate.  In addition you will undertake 240 hours' community service which is equivalent to 18 months' imprisonment, that is concurrent on each count.  On Count 33 you will undertake 20 hours' community service, which is equivalent to 1 week's imprisonment, concurrent.  So the total sentence for the First Indictment is probation for 12 months and 240 hours' community service, which is the equivalent of 18 months' imprisonment. 

12.      On the Second Indictment, Count 1 you will undertake 20 hours' community service, which is equivalent to 1 week's imprisonment, and under Count 2 you will undertake 20 hours' community service, which is equivalent to 1 week's imprisonment, concurrent to Count 1, but consecutive to the sentence on the First Indictment. 

13.      Therefore in total you are sentenced to probation for 12 months and 260 hours' community service, which is the equivalent of 18 months' and 1 week's imprisonment. 

14.      We order the forfeiture and destruction of the drugs. 

15.      We order the forfeiture of the laptop and hard drive. 

Authorities

Sex Offenders (Jersey) Law 2010.

Protection of Children (Jersey) Law 1994.

Criminal Justice (Forfeiture Orders)(Jersey) Law 2001.

AG-v-E [2011] JRC 217B.

AG-v-Gavey [2010] JRC 203.

AG-v-Velosa [2011] JRC 026.

AG-v-Green [2011] JRC 082.

AG-v-Cardy [2011] JRC 096.

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

AG-v-Cameron [2008] JRC 182.

AG-v-Sunderland [2005] JRC 128.

AG-v-Le Heuze [2007] JRC 042.

AG-v-Roberts [2010] JRC 088.