Jersey Unreported Judgments

Superior Number Sentencing - possession of indecent photographs - taking indecent photographs - meeting a child following sexual grooming.

[2012]JRC182

Royal Court

(Samedi)

11 October 2012

Before     :

Sir Michael Birt, Kt., Bailiff, and Jurats Morgan, Fisher, Kerley, Olsen, Blampied and Liddiard.

The Attorney General

-v-

Luis Carlos Gomes De Nobrega

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 3^rd August, 2012, following guilty pleas to the following charges:

2 counts of:	Being in possession of indecent photographs of children, contrary to Article 2(1)(b) of the Protection of Children (Jersey) Law 1994 (as amended) (Counts 1 and 2).
3 counts of:	Taking indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (as amended) (Counts 4, 6 and 9).
1 count of:	Meeting a child following sexual grooming, contrary to Article 2(1) of the Sexual Offences (Jersey) Law 2007 (Count 5).
1 count of:	Making indecent pseudo-photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (as amended) (Count 12).

Age:  59.

Plea: Guilty.

Details of Offence:

The defendant was caretaker at a lodging house in which the families of Child A and Child B lived.  He had a basement workroom in which he kept computer equipment.  A search warrant was executed at this address and computer and associated equipment was seized.  The computer was damaged and specialist assistance from the UK was required to examine it.  Many broken CD's were also found. 

Counts 1 and 2

Images recovered from a computer - Count 1 relates to 4 movies (two level 4 movies and two level 5 movies) and Count 2 to 12 photographs (one level 1 image, six level 3 images and four level 4 images).

Count 4

Took a series of indecent photographs of Child A when she was 8 years old.  They show him pulling aside her knickers to reveal her genitalia, engaged in masturbation, exposing her buttocks and the defendant pulling her buttocks apart. 

Count 5

The defendant became friendly with Child A's father.  He invited the family to move into the lodging house.  Child A was 6 years old at the time.  The defendant spent a lot of time in the family's room and sometimes looked after Child A for her parents.  He bought her expensive gifts including a mobile telephone, a television and a Nintendo DS.  When ABE interviewed Child A said that she would see the defendant almost every day.  She described an incident where the defendant tried to kiss her and unzipped his trousers, revealing his underwear.  When she asked him why he had done this he replied that it was because she was pretty and had a good shape to her body.  Child A was a vulnerable girl, described by the forensic psychologist as perfect for sexual grooming.  She was so well groomed that when it appeared to her that the defendant was transferring his attentions to Child B she expressed feelings of betrayal and anger. 

Count 6

The defendant pulled up Child A's school skirt whilst she was lying on her front and took a photograph of her buttocks. 

Count 9

The defendant instructed Child A, who was sitting in an armchair, to pull up her skirt and to pull her knickers aside.  She complied and he took a photograph of her exposed genitalia. 

Count 12

Scans of adult pornography, onto which the faces of female children had been superimposed, were found on the defendant's computer.  (Images of child B's face, cut from photographs, were found inside adult pornographic magazines.  No charges result from these but the defendant agreed that they were to be used to create pseudo-photographs as part of his basis of plea).

Details of Mitigation:

Guilty plea, albeit late, and after the children had been told that they would have to give evidence.  Counsel for the defendant states he acknowledges that he has a problem and wants help.  Letter from wife, sister and mother (the latter of whom did not know the nature of the offending).

Previous Convictions:

None.

Conclusions:

The Crown submitted that the offending fell into two categories, first the possession of the indecent photographs, and secondly the offences involving the grooming and photographing of Child A and the pseudo-photographs.  Consecutive sentences would therefore be moved.

Count 1:	Starting point of 9 months' imprisonment.  6 months' imprisonment.
Count 2:	Starting point 9 months' imprisonment.  6 months' imprisonment, concurrent.
Count 4:	Starting point 6 years' imprisonment.  4½ years' imprisonment, consecutive to Counts 1 and 2.
Count 5:	Starting point 3 years' imprisonment.  2 years and 3 months' imprisonment, concurrent to Count 4.
Count 6:	Starting point 9 months' imprisonment.  6 months' imprisonment, concurrent to Count 4.
Count 9:	Starting point 18 months' imprisonment.  1 year's imprisonment, concurrent to Count 4.
Count 12:	Starting point 6 weeks' imprisonment.  1 month's imprisonment, concurrent to Count 4.

Total: 5 years' imprisonment. 

Order sought that under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 10 years elapse before the accused is permitted to apply to no longer be subject to the notification requirements.

Restraining Order sought for a period of 10 years under Article 10(4) of the Sex Offenders (Jersey) Law 2010 with the following conditions:-

Contact with children

1.        That the defendant is prohibited from knowingly being alone with any female under the age of 16 years, except in the presence of that person's parent or guardian or an adult over the age of 21 who is aware of the defendant's relevant convictions.

2.        That in circumstances where the defendant finds himself in breach of the above mentioned order; he has a positive duty to remove himself from that situation as soon as reasonably possible.

3.        No contact, either direct or indirect, with Child A or Child B.

Use of a computer and other electronic devices

1.        That the defendant produce to a police officer forthwith on request for examination, from time to time, any computer or any device which may access the internet, or any telephone or mobile phone or any device which can store images electronically, which belongs to him or is in his possession, it being noted that such request may be made anywhere, including by a police officer attending at the defendant's place of residence.

2.        That the defendant is prohibited from owning or possessing or having access to any device capable of accessing the internet unless it has the capacity to retain and display the history of internet use and unless the defendant ensures that the history is not deleted. 

Forfeiture and destruction of the computer and other computer equipment sought.

No application for a deportation recommendation.

Sentence and Observations of Court:

Before the hearing the Court brought the case of Wicks-v-The Law Officers of the Crown (Guernsey judgment 14/2102) to the attention of the Crown and counsel for the defendant.  The defendant was sentenced in accordance with the guidelines contained therein. 

Counts 1 and 2 would have merited sentences of 12 months' imprisonment had they stood alone but conditioned by totality. 

Count 1:	6 months' imprisonment.
Count 2:	6 months' imprisonment, concurrent.
Count 4:	4½ years' imprisonment, consecutive to Counts 1 and 2.
Count 5:	2½ years' imprisonment, concurrent to Count 4.
Count 6:	2 years' imprisonment, concurrent to Count 4.
Count 9:	2½ years' imprisonment, concurrent to Count 4.
Count 12:	1 month's imprisonment, concurrent to Count 4.

Total: 5 years' imprisonment. 

Court is satisfied under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 10 years elapse before the accused is permitted to be no longer subject to the notification requirements of the law.

Restraining Order:- Conditions (i), (ii) and (iii) of Contact with children and conditions (i) and (ii) of Use of a computer and other electronic devices of the restraining Order under Article 10(4) granted. 

Forfeiture and destruction of the computer and other computer equipment ordered.

Mrs S. J. O'Donnell, Crown Advocate.

Advocate S. A. Pearmain for the Defendant.

JUDGMENT

THE BAILIFF:

1.        You were trusted by the family of Child A, a little girl of 7, when you first began offending.  You completely betrayed that trust.  You took indecent photographs of her and placed these on your computer.  The photos included pictures of her exposed genitalia, of her touching her genitalia, of her apparently engaging in masturbation, and of her buttocks being pulled apart by what appears to be a male hand, no doubt yours.  This happened when she was about 8.  You also pleaded guilty to taking indecent photographs of her on two subsequent occasions.  Her exact age at that time is not known, but she was clearly under 11, because that was her age when you were arrested. 

2.        You have also pleaded guilty to two counts of possessing indecent photographs on your computer.  These were not of Child A or of any other child known to you.  As your advocate accepted, they were just downloaded from the internet.  There were 4 movies, two at Copine level 4 and two at level 5 and twelve still photographs, mostly at levels 3 and 4.  You also made pseudo-photographs imposing a child's face onto the body of adult women engaged in sexual intercourse. 

3.        Also, most significantly, you have pleaded guilty to an offence of grooming and it is quite clear that you groomed Child A by buying her expensive presents and other acts. 

4.        We were not initially referred to the recent decision of a seven judge Court of Appeal in Guernsey, namely Wicks and Others-v-The Law Officers of the Crown, February 2012.  In that case the Guernsey Court of Appeal strongly reaffirmed that it is for the courts of these Bailiwicks to decide on the sentencing levels for different types of offences and we are not bound by English decisions or by sentencing guidelines published in England and Wales.  The Court went on to offer guidance on the sentencing process and sentencing levels in relation to offences of making indecent images of children.  We think that the guidance offered by that case is of considerable assistance and we propose to follow the sentencing structure indicated in that case.  We would expect the Crown, in any future case concerning indecent images of children, to refer to that case and have regard to it when moving conclusions, although it is of course for the Courts of Jersey to determine actual sentencing levels for this jurisdiction. 

5.        The suggested process of sentencing was summarised in that case at paragraph 59 as follows:-

"...the important points for the Royal Court to bear in mind are that it should begin by selecting an initial figure and then adjust that to reflect any aggravating and mitigating factors of the offence, as suggested in paragraph 39 above.  The adjusted figure should then be discounted to reflect any personal mitigation and to give such credit as is appropriate for a guilty plea, to arrive at the sentence which will be passed."

As can be seen, the court in that case referred to selecting an initial figure.  That is something very different from the starting point as has been applied in drug cases in this jurisdiction. 

6.        So we consider first what would be the appropriate initial figure for these offences of taking indecent photographs.  We think that this case falls within Category 2 as described in paragraph 39 of the judgment, namely as follows:-

"Where the offender has been concerned in any way in the taking or production of an image falling within levels 2 or 3 [that is of the Copine scale] an initial figure in the region of 4 years' imprisonment would be appropriate."

7.        In our judgment there are three aggravating features in this case.  First, there was the element of breach of trust that we have already described.  You were trusted by the family of Child A and as a result you were allowed to spend time with her alone because of the close relationship between you and that family.  Secondly, there is the element of grooming; we appreciate that there is a count dealing with that but the sentence is to be concurrent on that count and we think it proper to treat the grooming element as an aggravating element of the offence of taking photographs.  Thirdly, there is the fact that the victim lives in Jersey.  In paragraph 40 of its judgment the Guernsey Court of Appeal endorsed what the Jersey Court of Appeal had said in Forno-v-AG [2011] JCA 022 at para 38 when it said this:-

"The corrosive feelings of shame, self-reproach and alienation suffered by the child are significantly greater and more persistent in a small and relatively close-knit community than they are in the more anonymous environment of a highly urbanised country of more than 60 million inhabitants such as the United Kingdom."

In this case not only was the child a resident of the Island, but also of a particular community within that Island.  We accept that in this case there was, of course, no circulation on the internet of the images by the defendant but it could so easily have happened and in our judgement this is therefore still an aggravating feature. 

8.        We turn then to the mitigating factors.  We are unable to find any in relation to the offences themselves.  In relation to a personal mitigation the defendant has pleaded guilty; but this was late in the day, and for some considerable period Child A, and indeed Child B, feared that they would have to give evidence with all the stress and strain that that would have involved.  Furthermore the defendant was very uncooperative in the early stages of the investigation.  We therefore do give a discount for the guilty plea, but it is nothing like the full discount to which the defendant would have been entitled had he pleaded guilty from the start. 

9.        The second aspect of mitigation is that the defendant is of good character.  He has no previous convictions, indeed he is of positive good character in the sense that he has an excellent work record, and we have read the letters from him and from his wife and from others.  We have had regard generally to the mitigation which appears from the background report and as put forward by Advocate Pearmain. 

10.      But in our judgement the sentence of 4½ years in relation to the most serious offence of the taking of indecent images is correct.  The aggravating features outweigh the mitigation and result in an increase from the initial figure of 4 years. 

11.      In relation to Counts 1 and 2 we think that these would have justified at least 12 months' imprisonment had they been on their own, but we do take account of the totality principle and therefore we do not propose to increase them. 

12.      Turning to the conclusions the sentence which we impose is as follows, and we ignore the suggested starting points for the reasons given.  Count 1; 6 months' imprisonment, Count 2; 6 months' imprisonment, Count 4; 4½ years' imprisonment, Count 5; 2½ years' imprisonment.  We should add that we wish to caution any future court against placing too much reliance on this particular figure.  We have not been referred to any previous sentence in Jersey for this offence and we were only referred at the last moment to the English sentencing guidelines; we have not had a full opportunity of considering whether those guidelines are appropriate for Jersey or what the relevant sentencing levels should be, but because the sentence is to be concurrent, we do not need to give further attention to it in this particular case.  Count 6: the Crown move for 6 months' imprisonment which is completely inadequate, the sentence is one of 2 years.  Count 9; the Crown move for 1 year but that is similarly inadequate, and the sentence is 2½ years' imprisonment.  Count 12; 1 month's imprisonment.  Counts 1 and 2 are concurrent with each other and Counts 4, 5, 6, 9 and 12 are concurrent with each other but Counts 1 and 2 are consecutive to the others, thus making a total sentence of 5 years' imprisonment. 

13.      Turning to the other matters which we need to deal with, we order the forfeiture of the computer equipment as moved for.  We agree that this is not a case for deportation, despite the seriousness of the offending.  The defendant has lived here for over thirty years, his family are here and it would be disproportionate to deport him. 

14.      He is placed automatically on the Sex Offender's Register, he is subject to the notification requirements and we accept the Crown's conclusion that he should not be permitted to apply for removal until the expiry of 10 years.  We also consider that the grounds are made out for the restraint orders moved for by the Crown, I do not propose to read them out, but we make those orders for a period of 10 years from his release. 

Authorities

Sex Offenders (Jersey) Law 2010.

Wicks and Others-v-The Law Officers of the Crown (Guernsey judgment 14/2102) February 2012.

Forno-v-AG [2011] JCA 022.

R-v-Oliver (2003) 1 Cr. App. R. 28.

AG-v-U [2011] JRC 219.

AG-v-Forno [2010] JRC 109.

Extract from Sentencing Council's Definitive Guidelines on the Sexual Offences Act 2003.

Attorney General's Reference No. 26 of 2009 EWCA Crim 1393.