Jersey Unreported Judgments

Inferior Number Sentencing - indecent photographs.

[2013]JRC255

Royal Court

(Samedi)

13 December 2013

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Clapham and Crill.

The Attorney General

-v-

Philippe Gerard Beaugeard

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

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).

Age:  53.

Plea: Guilty.

Details of Offence:

On Friday 31^st May, 2013, the Police received a call from the concerned mother of a 13-year-old boy.  Her son had been approached by the defendant who had started chatting to him in a friendly manner.  He told the boy that he wanted to be friends and gave the child his mobile telephone number.  He was traced through this number. 

As a result of the above incident and of intelligence received and his home was searched.  A number of items were seized, including a Blackberry mobile phone and a Sony Ericsson mobile phone.

The defendant said he is heterosexual and denied having any inappropriate interest in children.  He told the officers that nothing relevant would be found on phones or in anything found in his flat.  He said that he was a heavy drinker, but not an alcoholic.  He reported having blackouts due to drink and being unable to remember what he had done during these.

He later said that he had been abused as a child by Edward Paisnel (the Beast of Jersey), that images would be found on his telephone, but that they were not illegal.  He said the images were from websites that anyone can access, that he liked "sixteen and over" and found the images by searching for "male porn".  The Blackberry contained a removable 128MB memory card, which was examined.  A total of 38 indecent images of children were found (Count 1). 

A number of text files containing stories of sexual contact between adults and children were found.  Most of these involved male children described as being between 5 and 13 years old, although two referred to female children aged 4 to 6.  These are not illegal and no charges arise. 

The Sony phone was examined after the defendant provided the PIN code and a total of 170 indecent images were found (Count 2). 

On 3^rd July, 2013, the defendant was re-interviewed, again with the appropriate adult present.  The content of the previous interviews was summarised, and the defendant agreed that the summary was accurate, then proceeded to give "no comment" answers to questions regarding his temptation to download indecent images of children and the process of downloading. 

Details of Mitigation:

Guilty plea.

Previous Convictions:

Nothing relevant.

Conclusions:

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

Total: 18 months' 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, at any 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 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 it has the capacity to retain and display the history of internet use and he ensures that such history is not deleted.

iii)      That the defendant 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.

iv)      That the defendant is prohibited from engaging in any form of teaching, training or instruction of children under the age of 16, or from any form of care, advice, guidance without the express permission of the Probation Service and Police. 

v)       That the defendant be prohibited from being alone with any persons under the age of 16 years.  The person will be considered to be alone if there is not a third person present who is over the age of 21 and who is aware of his conviction.

vi)      That in circumstances where the defendant finds himself in contact with any person, or finds himself alone with a person under the age of 16, that he has a positive duty to remove himself from that situation as soon as reasonably possible.

Forfeiture and destruction of the telephones listed in the charges sought.

Sentence and Observations of Court:

Count 1:	180 hours' Community Service Order, plus a 3 year Probation Order, equivalent to 18 months' imprisonment
Count 2:	180 hours' Community Service Order, plus a 3 year Probation Order, equivalent to 18 months' imprisonment, concurrent.

Total: 180 hours' Community Service Order and a 3 year Probation Order, equivalent to 18 months' 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 made.

Restraining Order 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, at any 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 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 it has the capacity to retain and display the history of internet use and he ensures that such history is not deleted.

iii)      That the defendant 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.

iv)      That the defendant is prohibited from engaging in any form of teaching, training or instruction of children under the age of 16, or from any form of care, advice, guidance without the express permission of the Probation Service and Police. 

v)       That the defendant be prohibited from being alone with any persons under the age of 16 years.  The person will be considered to be alone if there is not a third person present who is over the age of 21 and who is aware of his conviction.

vi)      That in circumstances where the defendant finds himself in contact with any person, or finds himself alone with a person under the age of 16, that he has a positive duty to remove himself from that situation as soon as reasonably possible.

Forfeiture and destruction of the telephones listed in the charges.

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

Advocate P. S. Landick for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant downloaded 206 indecent images of children, 32 of which were at levels 4 and 5 and this over a 3-year period. 

2.        Dealing first with the requirements of the Sex Offenders (Jersey) Law 2010 we order that the notification requirements should apply for a period of 5 years from today's date.  In terms of the Restraining Orders sought by the Crown, the defendant has been assessed by the Probation Department as posing a notable risk of sexual reconviction and a psychologist Dr Emsley also has assessed him as being at a high risk.  We have taken into account the evidence of the defendant approaching this young boy at Iceland and we are satisfied on a balance of probabilities that the tests set out in that Law are met and that it is necessary to make the Restraining Orders sought.  Those will be made for a period of 5 years from today's date and will be in the following terms, as set out in paragraph 51 of the Crown's conclusions:-

(i)        That the defendant produce to a police officer forthwith on request for examination, at any 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 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 it has the capacity to retain and display the history of internet use and he ensures that such history is not deleted.

(iii)      That the defendant 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.

(iv)      That the defendant is prohibited from engaging in any form of teaching, training or instruction of children under the age of 16, or from any form of care, advice and guidance without the express permission of the Probation Service and the Police. 

(v)       That the defendant be prohibited from being alone with any persons under the age of 16 years.  The person will be considered to be alone if there is not a third person present who is over the age of 21 and who is aware of his conviction.

(vi)      That in circumstances where the defendant finds himself in contact with any person, or finds himself alone with a person under the age of 16, that he has a positive duty to remove himself from that situation as soon as reasonably possible.

3.        Turning to the offences, we agree, following the guidelines laid down by the Superior Number in the case of AG-v-Godson and Crowley [2013] JRC 091 that this case comes within the fourth category so that an initial time or figure of 3 years is appropriate.  In our view there are no aggravating or mitigating factors of the offence which require that figure to be adjusted. 

4.        Turning then to the defendant's personal mitigation, he has, of course, pleaded guilty to these offences.  He is a man of good character.  We can see that he has had a history of episodic alcohol intake, or binges, and has suffered from depression in the past, but we have received a very helpful and impressive letter from his brother which shows that he does have family support. 

5.        There are no exceptional features here so a sentence of imprisonment would ordinarily follow and we agree that 18 months is the appropriate length of that sentence.  However, the defendant has already served the equivalent of an 8 month sentence and if we impose that sentence today, he will be free and in the community within 6 months, albeit subject to the Restraining Orders but under no obligation to undertake the programmes which the Probation Department have very positively recommended.  We feel that the community can be much better protected and the defendant punished much more effectively if we were to place him on probation for 3 years on condition that he undertakes those programmes recommended by the Probation Department.  Quoting from paragraph 40 of the Social Enquiry Report it says this: "Such a programme is available to offenders serving community sentences in Jersey" we interpose there to say, of course, such a programme is not available in the prison.  "This programme has been developed for use with men who have been convicted of a sexual offence of where sexually motivated behaviour underpins criminal activity and it consists of up to forty sessions and then followed by relapse prevention work to reinforce the work undertaken on the programme."  We also note that ongoing supervision will be provided by Dr Briggs, the forensic clinical psychologist, to ensure that over this lengthy period, any areas of concern are addressed. 

6.        In addition the defendant will serve community service of 180 hours which is the equivalent of an 18 month sentence but with credit for the time that he has already served.  In this way we think that the defendant would have been appropriately punished:-

(i)        by serving the equivalent of 8 months in prison;

(ii)       by carrying out a further 180 hours of community service; and

(iii)      for a period of 3 years, being under the close supervision of the Probation Department, and indeed of a psychologist, undertaking the programmes that have been so positively recommended to us. 

7.        On Count 1 you will carry out community service of 180 hours, which is the equivalent of an 18 month sentence, but with credit for the time that you have already spent in prison, and you will be placed on probation for a period of 3 years on the usual conditions that, in particular, you will carry out all of the programmes recommended by the Probation Department.  On Count 2 the same sentence is imposed, concurrently, so that the total sentence is 180 hours' community service and probation of 3 years. 

8.        We also order the immediate destruction of the telephones. 

Authorities

Sex Offenders (Jersey) Law 2010.

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

AG-v-Langlands [2013] JRC 106.

AG-v-Bowey [2013] JRC 117.

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

R-v-Turner [2013] EWCA Crim 1869.