Jersey Unreported Judgments

Inferior Number Sentencing - making indecent photographs of children - breach of restraining order.

[2013]JRC052

Royal Court

(Samedi)

8 March 2013

Before     :

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

The Attorney General

-v-

N

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

First Indictment

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).

Second Indictment

1 count of:

Breach of a restraining order, contrary to Article 10(4) of the Sex Offenders (Jersey) Law 2010 (Count 1).

Age:  38.

Plea: Guilty.

Details of Offence:

In 2008 while living in England the defendant was on an internet chatroom when a female to whom he was talking became alarmed at an image she was seeing via a webcam.  Police examined his computer and found 2,339 indecent images and movies, of which 156 images and 61 movies were at levels 4 or 5.  At the time he admitted accessing chatrooms to contact young teenage girls in the guise of an adolescent male, and steered the conversation to sexual matters. He said he had been downloading illegal material for the past 11 years. 

In August 2009 he was sentenced to a total of 8 months' imprisonment, suspended for 2 years, by Teeside Crown Court, having been found guilty of 16 counts of making indecent photographs of children.  He was placed on the Sex Offenders Register for 10 years and also made subject to Sexual Offences Prevention Orders ("SOPOS") for an indefinite period. 

He returned to Jersey in 2012 and interim orders under the Law were imposed on 9^th August, 2012, which were subsequently agreed by consent on 28^th September, 2012.  On 1^st March, 2012, the defendant was arrested in Jersey on a UK warrant for breaches of his SOPO's and further allegations as to viewing indecent material, all carried out while he was in the UK. 

He went on to admit that in March to April 2011 he had bought 4 mobile phones in succession and used them to access child abuse images.  After viewing these images for a week he would destroy each phone, on at least one occasion with a hammer, and dispose of the pieces in different locations.  As a result of the breaches of his SOPO's he was held on remand until 6^th July, 2012, when he was sentenced to 32 weeks' imprisonment. 

When he was arrested in Jersey in March 2012 a number of items were seized for examination.  An Acer laptop contained 37 images of which 5 were at Level 4, (Count 1) and a tower computer contained 14 Level 1 images (Count 2). 

It was not possible to determine when these images were downloaded onto the computer.  A supplemental report found that between 24^th September, 2011, and 1^st January, 2012, a programme had been installed, used and uninstalled from the Acer laptop at least 5 times, which prevented any record of web pages, graphics or an internet history from being made.  the only information that was recovered relates to search items (such as "Lolita", "preteen", and "underage").  Under the terms of the restrictive orders imposed on the defendant in 2011 this is a breach of the third order, which said that he was not to use any device to access the internet "unless it has the capacity to retain and display the history of internet use", that he was not to delete such a history, and prohibited him from "having on the device any software designed to disguise, delete or destroy such history". 

In interview the defendant admitted that he had downloaded the images, viewed them and deleted them at some point in 2011, over a period of two weeks.  He stated that his father and step-mother had access to computers, but denied that they were responsible for the downloading of the information.  He was not asked about the Tor browser programme as it had not been discovered at that point. 

A psychologist report considered it unlikely that the defendant will ever shed his sexual interest in female children, that he falls in the moderate range of risk, and that therefore the task upon his release is to manage his behaviour. 

Details of Mitigation:

Guilty pleas.

Previous Convictions:

The defendant has 29 offences recorded against him, the majority of which relate to the making of indecent photographs of children, breach of SOPOs and further offending during the period of suspended sentence. 

Conclusions:

First Indictment

Count 1:	15 months' imprisonment.
Count 2:	9 months' imprisonment, concurrent.

Second Indictment

Count 1:

15 months' imprisonment, consecutive to the First Indictment.

Total: 30 months' imprisonment.

The Crown sought that existing notification and restrictive orders made under the Sex Offenders (Jersey) Law 2010 be extended for 10 years from date of sentence.  The Crown also sought to reduce the age referred to in paragraphs 3(b)(i), 3(b)(ii) and 3(e) of the restraining orders from 18 to 16.

Forfeiture and destruction of the computer and computer equipment sought.

Sentence and Observations of Court:

First Indictment

Count 1:	18 months' imprisonment.
Count 2:	6 months' imprisonment, concurrent.

Second Indictment

Count 1:

18 months' imprisonment, concurrent to the First Indictment.

Total: 18 months' imprisonment. 

Existing notification and restrictive orders under the Sex Offenders (Jersey) Law 2010 be extended for a further period of 10 years from date of sentence.  Reduction of the age referred to in paragraphs 3(b)(i), 3(b)(ii) and 3(e) of the restraining order from 18 to 16.

Forfeiture and destruction of computer and computer equipment ordered. 

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

Advocate D. A. Corbel for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced on two Indictments; on the first Indictment, two counts of making indecent photographs, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994, and on the second Indictment, breach of a restraining order that was imposed on an interim basis in August 2011 and then agreed by consent on 28^th September, 2011, and the breach either took place while the interim order was in place or it took place immediately after that.  

2.        We are going to send you to prison for a total period of 18 months and I am now going to explain the reasoning which takes us to that point. 

3.        We treat the third offence, the count on the second Indictment, a breach of the restraining order, very seriously.  The restraining order is put in place in order to ensure that the police are able to monitor your performance in not offending in areas where you have been shown to have a weakness.  In a sense, the order is put in there for your own benefit, and to breach it five times within really a very limited time of the order being imposed is a very serious matter as far as we are concerned.  We, of course, do not know what you were looking at and that is, in a sense, the vice of the offence which you have committed.  You might have been looking at images which are at a relatively low level, such as the Oliver scale 1, or it might have been at Oliver scale 5; it might have been something that was not actually criminal at all.  But the gravamen of the offence is we simply do not know what you are looking at.  The Court treats the breach of the restrictive orders that have been imposed extremely seriously and we think a sentence of 18 months' imprisonment on that charge is right. 

4.        We then looked at the two offences of making indecent photographs.  In so far as they are concerned, we have adopted the approach which was set out by the Court of Appeal in the Guernsey case of Wicks and Ors-v-the Law Officers of the Crown (Guernsey judgment 14/2012).  The first count on the Indictment is, in our view, a charge which brings you within what is then called in the Wicks classification, a category 4 offence of an offender having made an image or possessed an image for distribution or show, falling within Levels 4 or 5.  The Wicks approach says there should be an initial figure of 3 years' imprisonment but that is after a trial.  We think the right sentence on that count would be 18 months' imprisonment.  We reached that conclusion by taking account of your guilty plea and taking account of the relatively low number of images which are at Oliver Level 4. 

5.        As far as the second count is concerned, we think that that falls into category 6 on the Wicks scale and that is where an offender has made an image of material falling within Level 1, a final community penalty, preferably with a condition of treatment would be appropriate, where there are one or more aggravating factors than the custody threshold and the custody threshold is passed, then the Court may be looking at a sentence of up to 6 months' imprisonment and we think the right sentence on Count 2 is 6 months' imprisonment. 

6.        Now normally the offences would call for consecutive sentences but we think that would be too high and, on totality grounds, we are going to make the order that each sentence should run concurrently, so the total sentence of imprisonment is 18 months' imprisonment. 

7.        You have already taken up the offer of help from the probation service on a voluntary basis and your counsel says that you have found that helpful; we earnestly hope that you will continue to take up that offer, which the probation officer has confirmed today, is available.  It is absolutely essential that you recognise, first of all, that the offending has to be treated by this Court with the seriousness with which we have treated it because these are serious offences and secondly, that there is a hope for you if you do take advantage of the assistance which is given to you. 

8.        We are going to change the restraining orders, as has been suggested by the Crown, to reduce the age from 18 to 16 so that is the age which is going to be referred to in paragraphs 3(b)(i), 3(b)(ii) and 3(e) of the restraining orders which otherwise remain in place exactly as they are, and we extend the period to 10 years from today's date as far as the notification and restraining orders are concerned.  The 10 year period means that you will not be able to apply to have the notification requirements disapplied to you for that period but they continue until the Court orders otherwise. 

Authorities

 

AG-v-N [2011] JRC 157.

Protection of Children (Jersey) Law 1994.

Oliver, Hartley & Baldwin [2002] EWCA Crim 276.

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

AG-v-U [2011] JRC 219.

AG-v-Cardy [2011] JRC 096.

AG-v-De Nobrega [2012] JRC 182.

AG-v-G [2011] JRC 214.

R-v-Byrne [2010] 1 Cr App R (S) 65.

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