Jersey Unreported Judgments

Inferior Number Sentencing - making indecent photograph of children.

[2012]JRC205

Royal Court

(Samedi)

9 November 2012

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Morgan and Olsen.

The Attorney General

-v-

Jeremy Thomas Bourke

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

4 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 and 4).

Age:  36.

Plea: Guilty.

Details of Offence:

Police executed a warrant at the home of the defendant and at the time of his arrest on suspicion of possession of indecent images, the defendant states "Everything you're looking for is on there", pointing to a deconstructed computer tower. 

During subsequent interview he admitted possessing and downloading indecent images "irregularly, probably for a few years".  He stated that every few months he used programmes like Limewire to check what images had been uploaded, using search terms such as "child porn" or "pthc".  He said that he also accessed non-nude child "modelling" pictures twice a week.  He stated that he "preferr[ed] older rather than younger....probably from nine or ten upwards...pre-pubescent I suppose would be the technical way of putting it".  He said that nearly all of the images were "straight", and ranged from "posing" to full penetrative sex and that he favoured the latter. 

He also admitted that he had downloaded images of younger children, saying that the youngest involved a girl of three being digitally penetrated by an adult male hand.  He said that the child concerned was "too young" for his taste.  He told the officers that images were normally downloaded in zip-files containing 10-50 images and that he would usually delete images that did not suit his preferences. 

The defendant admitted that he had video clips of girls as young as five or six showing attempted penile penetration.  He further admitted to possessing video clips involving one girl and multiple men or boys.  He said that the worst image he had involved a girl under five being forced to fellate a man, and saying "no" as the man ejaculated on her. 

The defendant claimed that he did not uniquely seek out indecent images of children, saying the he was interested in all pornography, especially bondage.  He said that he had 10-20 images of children in bondage. 

The defendant told the officers that he had custom built the seized computer tower for himself.  It contained multiple hard drives of varying sizes and ages as he moved them from computer to computer.  He confirmed that only he used the one computer and denied ever uploading indecent images.  He gave the officers all usernames and passwords that they requested. 

The defendant completely denied any contact offences against children saying "What I have on the computer is a fantasy and I acknowledge that this is a fantasy and it's not something I would ever do physically".  He admitted fantasising but denied that he would take an opportunity to abuse a child should it present itself.  He admitted that the images he had viewed had gradually become more extreme, but insisted "The line is already drawn: you never touch".  He acknowledged that the children in the images he viewed were being abused. 

The computer tower was submitted for forensic examination.  It was found to have six hard drives, one of which was faulty and could not be examined.  A second drive was found to contain only legal material.  It total, over 2,500,000 images and 6,000 movie files were found on the computer.  Subsequent examination revealed 14,960 indecent images of children and 370 indecent movies of children.  There were 5,089 unique images and 289 unique movies. 

The search for indecent images was carried out by analysing the data embedded in all of the images and movies found and comparing it to a database of known indecent images.  By this method images that have been previously classified and submitted to the database can be identified.  This does not discount the possibility of there being other indecent images on hard drives that have not yet been added to the database. 

The illegal content on the four hard drives formed the basis for the four counts on the Indictment. 

Hard drive "a" contained 3,341 indecent still images and 129 indecent moving images of children under the age of 16, categorised as follows:-

 

Copine Scale	Still images	Moving images
Category 1	1,447	40
Category 2	267	10
Category 3	821	12
Category 4	526	59
Category 5	370	8

Hard drive "b" contained 8,559 indecent still images and 126 indecent moving images of children under the age of 16, categorised as follows:-

 

Copine scale	Still images	Moving images
Category 1	6,237	25
Category 2	400	12
Category 3	677	18
Category 4	1,147	68
Category 5	98	3

Hard drive "c" contained 26 indecent still images and 1 indecent moving image of children under the age of 16, categorised as follows:-

Copine scale	Still images	Moving images
Category 1	12	0
Category 2	3	0
Category 3	8	0
Category 4	1	0
Category 5	2	1

Hard drive "d" contained 2,574 indecent still images and 114 indecent moving images of children under the age of 16, categorised as follows:-

Copine scale	Still images	Moving images
Category 1	792	18
Category 2	371	14
Category 3	380	18
Category 4	981	62
Category 5	50	2

 

Details of Mitigation:

Early guilty pleas.  Cooperation with the police.  No previous convictions.  Good work record.

Previous Convictions:

None.

Conclusions:

Count 1:	3½ years' imprisonment.
Count 2:	3½ years' imprisonment, concurrent.
Count 3:	3½ years' imprisonment, concurrent.
Count 4:	3½ years' imprisonment, concurrent.

Total: 3½ years' imprisonment. 

Forfeiture and destruction of the computer and associated equipment sought.

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:-

i.              The accused 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, or available for his use at his place of work, it being noted that such request may be made anywhere, including by the police officer attending at his place of residence. 

ii.             That the accused be prohibited from owning or having in his possession or having access to any device capable of accessing the internet unless it:-

a.     Has the capacity to retain and display the history of internet use and

b.     Unless he ensures that the history is not deleted.

Sentence and Observations of Court:

The Court felt able to make a slight reduction to the Crown's conclusions and ordered as follows:-

Count 1:	3 years' imprisonment.
Count 2:	3 years' imprisonment, concurrent.
Count 3:	2 years' imprisonment, concurrent.
Count 4:	3 years' imprisonment, concurrent.

Total: 3 years' imprisonment.

Forfeiture and destruction of the computer and associated equipment made.

Order made from 14th September, 2012, 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 made from date of release from custody under Article 10(4) with the following conditions:-

That during the period of 5 years following his release from custody:-

i.      The accused 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 or available for his use at his place of work, it being noted that such request may be made anywhere, including by the police officer attending at his place of residence. 

ii.             That the accused be prohibited from owning or having in his possession or having access to any device capable of accessing the internet unless it

a.     Has the capacity to retain and display the history of internet use and

b.     Unless he ensures that the history is not deleted.

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

Advocate R. A. Slater for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Bourke, you are here to be sentenced on an Indictment containing four counts of making indecent photographs of children.  As has been made plain by this Court on many occasions these are serious offences; they carry a maximum sentence of 10 years' imprisonment, and we have also said on many occasions that these are not victimless crimes and that people who sit in front of their computers looking at this material should be aware of that.  We are told that you now realise that that is so. 

2.        The Court is entirely satisfied that the Crown is, broadly speaking, in the right area when it moves for conclusions of 3½ years' imprisonment.  In this case there were 2,655 level 4 and 520 level 5 images and 189 level 4 and 14 level 5 movies and levels 4 or 5 on the Oliver scale are very much the particularly serious images which result in the Court imposing substantial prison sentences. 

3.        The Court is quite satisfied in this case that a custodial sentence is inevitable and is right, and that reflects the seriousness of the offences.  We recognise all the mitigation that you have available to you which, we have to say, is often available in cases of this kind.  You have no previous convictions and you have been cooperative with the police and have pleaded guilty, and that frequently does happen.  In this case, there are two extra pieces of mitigation which we think are significant, the first was your very open response to the police, more open perhaps than some that we see, and the second is that we are satisfied that there is a genuine level of remorse in your case, which we accept.  And for those reasons only, we think that the conclusions of the Crown can be slightly reduced. 

4.        We are going to send you to prison for a period of 3 years on each of Counts 1, 2 and 4 and 2 years on Count 3, where there are fewer images involved, and all those will be served concurrently so that makes a total of 3 years' imprisonment. 

5.        In addition we order the forfeiture and destruction of the computer and the associated equipment. 

6.        As far as the orders under the Sex Offenders (Jersey) Law 2010 are concerned, it follows as a result of this offending that automatically you are subject to the notification requirements in the Sex Offenders Law.  Those requirements bind you indefinitely until a court orders otherwise, and in accordance with the statute, we think the minimum period of 5 years should elapse before you can apply to have the notification requirements disapplied to you.  I should add that it will not necessarily be the case that when 5 years have gone by they will be disapplied to you.  The court will look at it at that stage on the basis of what risk of sexual reoffending you pose, and clearly the longer the period of not having offended once you are released, the stronger your case will be; it may not be strong enough after 5 years but at any rate that is the minimum period before which you can apply to have the notification requirements disapplied to you.

7.        We also think it is appropriate to make the restrictive orders which the Crown has sought and which you have not opposed, accordingly we order:-

(i)        that you must 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 you or is in your possession, or available to you for your use at a place of work, it being noted that such request may be made anywhere, including by the police officer attending at your place of residence.

(ii)       That you are prohibited from owning, or having in your possession, or having access to any device capable of accessing the internet unless:-

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

(b)       you ensure that the history is not deleted.

Those restrictive orders will run for a period of 5 years from the date of your release from custody.

8.        The Court very much hopes that you will engage with the help which you will have been offered through the prison services.  The acceptance, through your counsel, that you have a problem which needs to be addressed, is an important acceptance and can result in all this becoming something constructive for the future, which is what we hope it will be. 

Authorities

R-v-Oliver Hartrey & Baldwin (2002) EWCA Crim 2766.

Sex Offenders (Jersey) Law 2010.

AG-v-U [2011] JRC 219.

AG-v-Maguire [2012] JRC 089.

R-v-Smith & Others (2002) 1 Cr. App. R. (S) 82.

Wicks & Ors-v-Law Officers of the Crown (Guernsey 14/2012).