Jersey Unreported Judgments

Inferior Number Sentencing - indecent photographs.

[2013]JRC212

Royal Court

(Samedi)

1 November 2013

Before     :

Sir Michael Birt, Kt., Bailiff, and Jurats Nicolle and Milner.

The Attorney General

-v-

Mark Young (aka Kevin Passman, aka Kevin Le Masurier)

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

6 counts of:	Making indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994, (Counts 1-6).
1 count of:	Attempting to make indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Count 7).

Age:  52.

Plea: Guilty.

Details of Offence:

The defendant was arrested at home on 27^th September, 2012, on suspicion of downloading illegal images from the internet.  A total of 26 computers and hard drives were seized, along with several other data storage devices.  Seven devices recovered from the defendant's room contained illegal material or evidence of such material.  A total of 5,189 images were found, the majority of which had been deleted.  It is notable that 1,855 of these, more than a third, have been assessed as being at the most serious levels 4 and 5 of the scale used in R-v-Oliver [2003] 1 Cr. App. R. 28.

 

Category	Number
Level 1	2,204
Level 2	598
Level 3	532
Level 4	1,758
Level 5	97

 

A recovered Toshiba laptop did not contain any indecent material, but search terms and file paths were recovered which strongly indicate that those files would have held illegal content ("pthc lsm magazine 9yo kidzilla pre-teen young little girls").  While the images cannot be recovered, the title of the files strongly indicates illegal content, and therefore the download constituted an attempt to make indecent images. 

The defendant was first interviewed on 27^th September, 2012, and gave a no comment response to all questions.  A further interview was carried out on 13^th February, 2013, after an initial assessment of the computers had been completed; he denied owning some of the computers, and disputed the fact that they had been recovered from his bedroom.  On 4^th July, 2013, he was interviewed for the last time.  He denied downloading any of the illegal material and said his wife and son, with whom he lived, had access to his computers.  He refused to comment further saying "Even if I knew which one it was you don't seriously think I would grass up my own family."  His wife and son had already been excluded from the enquiry. 

He was assessed by probation and a psychologist as being at very high risk of reoffending sexually.  The account he gave to both probation and the psychologist was that he was searching for these images because he had been abused himself in the 70's, and wanting to find and destroy that material.  There was no evidence to support this version of events. 

Details of Mitigation:

Guilty pleas, unfortunate family background, carer for his partner.

Previous Convictions:

Several previous convictions although nothing since 2004.  Historic convictions for indecent assault and gross indecency. 

Conclusions:

Starting point 4½ years' imprisonment.

Count 1:	3½ years' imprisonment.
Count 2:	3½ years' imprisonment, concurrent.
Count 3:	3½ years' imprisonment, concurrent.
Count 4:	3½ years' imprisonment, concurrent.
Count 5:	3½ years' imprisonment, concurrent.
Count 6:	3½ years' imprisonment, concurrent.
Count 7:	3½ years' imprisonment, concurrent.

Total: 3½ years' imprisonment. 

Order 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 to commence from the date of conviction sought.

Restraining Order sought to commence from date of sentence for a period of 5 years under Article 10(4) with the following conditions:-

i)       That the defendant 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 device which can store images electronically, which belongs to him or is in his possession, it being noted that such a request may be made anywhere, including by the police attending at the defendant's place of residence.

ii)      That the defendant is prohibited from owning or having in his 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)      The defendant ensures that such history is not deleted.

iii)      That the defendant is prohibited from being alone with any child under the age of 16 years, aside from such contact which is inadvertent or unavoidable.  They will be considered to be alone if there is not a parent, guardian or responsible adult present who is over the age of 21 and who is aware of the accused's convictions; and

iv)      That where the defendant finds himself alone with a child under the age of 16 and such contact has been inadvertent or unavoidable, he must remove himself from that situation as soon as reasonably practicable. 

Forfeiture and destruction of the computer equipment sought.

Sentence and Observations of Court:

Starting point 5 years' imprisonment.

Count 1:	3½ years' imprisonment.
Count 2:	3½ years' imprisonment, concurrent.
Count 3:	3½ years' imprisonment, concurrent.
Count 4:	3½ years' imprisonment, concurrent.
Count 5:	3½ years' imprisonment, concurrent.
Count 6:	3½ years' imprisonment, concurrent.
Count 7:	3 years' imprisonment, concurrent.

Total: 3½ years' imprisonment. 

Order made 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 to commence from the date of conviction.

Restraining Orders made to commence from date of sentence for a period of 5 years under Article 10(4) with the following conditions:-

i)       That the defendant 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 device which can store images electronically, which belongs to him or is in his possession, it being noted that such a request may be made anywhere, including by the police attending at the defendant's place of residence.

ii)      That the defendant is prohibited from owning or having in his 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)      The defendant ensures that such history is not deleted.

iii)      That the defendant is prohibited from being alone with any child under the age of 16 years, aside from such contact which is inadvertent or unavoidable.  They will be considered to be alone if there is not a parent, guardian or responsible adult present who is over the age of 21 and who is aware of the accused's convictions; and

iv)      That where the defendant finds himself alone with a child under the age of 16 and such contact has been inadvertent or unavoidable, he must remove himself from that situation as soon as reasonably practicable. 

Forfeiture and destruction of the computer equipment ordered.

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

Advocate C. M. Fogarty for the Defendant.

JUDGMENT

THE BAILIFF:

1.        We begin by saying that the defendant will be subject to the notification requirements under the Law and we say that the period, which must expire before he can apply to come off it, is 5 years.  We also make the Restraining Orders moved for by the Crown, which the defendant has not objected to; we are satisfied on the evidence before us that he does pose a threat of serious sexual harm, the conditions are fulfilled, and we make those orders for 5 years. 

2.        Over a period of many years you downloaded a total of 5,189 images of which 1,855 were at Level 4 and 5 of the Copine scale.  The Court has said repeatedly that, particularly in relation to those levels, these are not victimless crimes and must be treated seriously.  We repeat what we said in the case of AG-v-Godson and Crowley [2013] JRC 091 at paragraph 25:-

"One of the reasons for imposing firm penalties in relation to offences of this nature is that they are not victimless crimes.  The images, if not pseudo-photographs, are of events which have in fact happened. In the case of the higher Copine levels in particular, a child will actually have been subject to the sexual abuse shown in the image, with all the suffering and damaging consequences which flow from that."

And at paragraph 26:-

"As the Court has said on many previous occasions, the gravamen of this offence is that the making and the distribution of indecent images fuels the demand for this kind of pornography and this in turn encourages the production of such images with consequent further abuse of young children."

3.        The Court does proceed on the basis put forward by your Advocate, namely that you started looking at these images because you wanted to see if there were pictures of yourself, because you suffered abuse when you were young, as we have read in the reports, but that it soon developed into looking at the images for the usual reason, which is to obtain sexual satisfaction.  We proceed on that basis but we think that it makes no difference to the level of sentence. 

4.        The leading case now is the Godson case and the facts of this offence fall within category 4 as laid down there, which suggests an initial point of 3 years' imprisonment.  So we consider the aggravating features in this case.  First there is the number of images, 1,855 atLevel 4 and 5 in particular.  Secondly, there is the fact that you do have two previous convictions for sexual offences.  We accept that they were a long time ago and were not of the most serious nature but, nevertheless, you have a conviction for indecent assault in 1972, for which you were given 1 month's imprisonment, and an offence of gross indecency in 1995, for which you received a similar sentence.  You have many other convictions but not of this nature.  However, you are assessed by the reports as being at high risk of sexual reoffending.  In addition you have not been cooperative.  You denied all involvement to start with; you sought, at one stage, to infer that it was your partner and your son who might have done it because they had access to your equipment.  You also have used equipment to try and remove evidence of what you had done and to cover your tracks.  All in all we consider that the aggravating features lift the initial point before mitigation to one of 5 years. 

5.        However, you have pleaded guilty; we have taken into account the most unfortunate background information that we have been given, and the fact that you are carer for your partner, and we have read her letter.  Nevertheless we think that the Crown's conclusions make sufficient allowance for that mitigation. 

6.        The sentence on all the counts, except Count 7, is one of 3½ years, concurrent.  On Count 7, which is the attempt, it is a sentence of 3 years' imprisonment, concurrent. 

7.        We order the forfeiture and destruction of the equipment. 

Authorities

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

Sex Offenders (Jersey) Law 2010.

AG-v-Godson and Crowley [2013] JRC 091.

AG-v-Bourke [2012] JRC 205.