Jersey Unreported Judgments

Inferior Number Sentencing - making indecent photographs of children.

[2012]JRC193B

Royal Court

(Samedi)

22 October 2012

The Attorney General

-v-

Atanas Spasov Kakarchev

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

Age:  43.

Plea: Guilty.

Details of Offence:

On Thursday 31^st May, 2012, police officers executed a warrant at Kakarchev's home address.  He was not present.  His room was searched and a laptop computer and external hard drive were seized.  A full examination of the computer equipment was carried out, finding 79 images and 47 movies on the laptop (Count 1), of which 76 were at Copine levels 4 and 5, and seven Level 4 movies on the external hard drive (Count 2). 

He gave no comment responses in interview.

Details of Mitigation:

Guilty plea.  Letter of remorse handed to the Court.  Good working record.

Aggravating Factors:

Majority of the indecent material was of the most extreme sort.

Previous Convictions:

None.

Conclusions:

Total: 2 years' imprisonment. 

Order sought 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. 

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

That during the period of 5 years following his release from custody, the accused is prohibited from owning or having in his possession 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 the accused ensures that such history is not deleted. 

That during the period of 5 years following his release from custody, the accused shall 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.

Forfeiture and destruction of computers sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

Conclusions granted.

R. C. P. Pedley, Esq., Crown Advocate.

Advocate J. W. R. Bell for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        I will deal first of all with the matters that arise under the Sex Offenders legislation.  The Court is satisfied that you are a person who is at moderate risk of sexual reoffending.  As a result of these offences, you are automatically subject to the notification requirements under the Law.  This continues until the Court orders otherwise and your risk of reoffending is such that the minimum period for which this applies, in the Court's view, should be 5 years.  So you cannot apply to this Court to be no longer subject to the notification requirements until 5 years have gone by and, of course, the requirements continue to apply until the Court says otherwise.

2.        Now because you pose a risk of causing serious sexual harm, it is right also to make the Restrictive Orders which the Crown has asked for and which you have not opposed.  Accordingly:-

(i)        You must produce to a police officer straightaway, forthwith, on request by an officer, so that he can examine 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 you or is in your possession, and that request can be made anywhere, including by the police attending at your home.  

(ii)       You are prohibited from owning or having in your possession, or having access to any device which is capable of accessing the internet, unless it has the capacity to retain and display the history of internet use and you ensure that the history is not deleted.

3.        We now come on to the question of sentence for the offences which you have admitted.  The maximum penalty is 10 years' imprisonment, and this shows the abhorrence with which our community views this particular crime.  The Court has been told that in this case one of the images shows a young girl of 3 or 4 years old, with a blindfold, being penetrated and understandably showing great distress.  That shows that this crime is not a victimless crime.  It is incomprehensible to us how anyone can want to watch this material.  While you are in prison we hope that you will take advantage of the psychological assistance that you are able to get there from Dr Emsley. 

4.        Now you have heard that we have been referred to the Guernsey Court of Appeal case of Wicks and Ors-v-Law Officers (Guernsey) 2012.  We think much of the reasoning in that case is helpful but we do not intend to apply the tariff.  We have noted, among other things, that the tariff was fixed by the Court of Appeal in Guernsey, having regard to English decisions but also having regard to the views of the Guernsey Royal Court, and it is said in the Court of Appeal judgment at paragraph 18 that Guernsey has no more to follow the sentencing practice in England than it has to follow that of other jurisdictions including Jersey.  That must equally apply in reverse. 

5.        We have taken account of many of the points which your counsel has raised in your defence.  We note that you have had a good employment record and are of previous good character and we have received and read carefully your letter of remorse, which we accept.  And we note also that you are willing to accept the offers of help in the prison, and have a willingness to change.  We do not think it is significant mitigation to say that the file sharing software had implications in the way that your counsel suggested, and that you did not search particularly for these images using a google search through web browsing.  It was up to you as to whether you used the software or not and the fact that it makes sharing of files easier is, frankly, your lookout. 

6.        Having regard to all the circumstances and the number of images which are shown on the equipment you had, and particularly, having regard to the fact that the majority of them are at Levels 4-5 on the Oliver Scale, we think the Crown's conclusions are right and you will therefore go to prison for 2 years on each of Counts 1 and 2, concurrently, making a total of 2 years' imprisonment. 

7.        We also order the forfeiture and destruction of the laptop and extra drive. 

8.        We have come to consider the question of deportation.  The Crown contends that you should be liable to be deported after you have served your prison sentence and we note that that is not opposed.  The legal test that we have to apply is well set out in the case of Camacho-v-AG [2007] JCA 145.  The Court has to ask itself is your continued presence detrimental to the Island, if it is, are there any human rights issues which fall to be taken into account, which would make it disproportionate to order your deportation.  The Court is satisfied that it is right to make a recommendation for deportation and there is no reason in terms of human rights issues why we should not do so.  Accordingly, we recommend that you be deported when you have served your sentence. 

Authorities

Sex Offenders (Jersey) Law 2010.

Wicks and Ors-v-Law Officers (Guernsey) 2012.

AG-v-U [2011] JRC 219.

AG-v-Maguire [2012] JRC 089.

Camacho-v-AG [2007] JCA 145.

R-v-Smith and Ors [2012] 1 Cr App R (S) 82.

R-v-Nazari [1980] 3 All ER 880.