Jersey Unreported Judgments

Inferior Number Sentencing - making indecent photographs of children.

[2015]JRC023

Royal Court

(Samedi)

30 January 2015

Before     :

W. J. Bailhache, Bailiff, and Jurats Clapham and Blampied

The Attorney General

-v-

R

Sentencing by the Inferior Number of the Royal Court, following a guilty plea to the following charge:

1 count of:

Making indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Count 1).

Age:  28.

Plea: Guilty.

Details of Offence:

In light of a previous conviction, the defendant is registered sex offender managed at JMAPPA Level 1.  On the 19^th June, 2013, during a routine unannounced visit at the defendant's address, a computer tower was seized.  The defendant volunteered the computer for examination and claimed nothing would be found on it. 

On examination a total of 97 unique indecent images of children and 7 unique indecent movie files were located and recovered from an unallocated cluster area of the hard drive. 

The images and movies were categorised as follows:-

 

Category	Still images	Moving images
1	20	2
2	7	0
3	17	2
4	54	3
5	0	0

The examination also revealed that peer to peer software had been used to access and download images.  The recovered files contained well known terminology associated with child pornography as well as evidence that the defendant had searched for child pornography and accessed the material. 

In interview the defendant admitted to downloading a video after searching the term "pre-teen".  He admitted that images of young teens and children aroused him and that he would view images of whoever looked the youngest.  He was consequently offered support but, notwithstanding his admissions, implied that a third party had been responsible for the presence of the majority of the images on his machine. 

The delay in the prosecution of the defendant was in part due to the heavy work load of the Hi Tech Crime Unit, but also because the defendant's claim about third party involvement needed to be investigated and ruled out. 

Details of Mitigation:

The defendant had found employment, accommodation and a new circle of friends since his release from prison.  The court took account the defendant's guilty plea. 

Previous Convictions:

The defendant was a registered sex offender, with previous convictions for indecent assault and possession of indecent images. 

Conclusions:

Count 1:

2 years' imprisonment.

Order sought under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 10 years elapse before the accused is permitted to apply to no longer be subject to the notification requirements to commence from the date of sentencing.

Restraining Order sought to commence from date of sentencing for a period of 10 years under Article 10(4):-

i)       That the defendant produce to a police officer forthwith on request for examination, at any 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 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 acquiring or using any computer software which is designed to destroy, delete or disguise internet activity on a 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 being alone with any child under the age of 16 years, aside from such contact which is inadvertent and/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 defendant's convictions; and

v)       That where the defendant finds himself alone or in contact 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 Tower sought.

Sentence and Observations of Court:

Conclusions granted. 

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

Advocate O. A. Blakeley for the Defendant.

JUDGMENT

THE BAILIFF:

1.        You are here to be sentenced on one count of making indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994.  Involved were 97 indecent still images and 7 indecent moving images of children under the age of 16, the offence being committed between February 2012 and June 2013, and the most serious part of that is that there were 54 still images and 3 moving images at R-v-Oliver [2002[ EWCA (Crim) 2766, [2003] 2 Cr App R (S) 15 Level 4. 

2.        In the case of AG-v-Godson and Crowley [2013] JRC 091 the Superior Number of this Court, and that was the Bailiff, Sir Michael Birt sitting with five Jurats, laid down some guidelines for offences involving indecent images of children.  In your case the guidelines would suggest that your offence falls within category 4 - where an offender has made an image or possessed an image for distribution or show, falling within Levels 4 or 5, an initial figure in the region of 3 years' imprisonment would be appropriate.  Now the Crown say that 3 years is only an initial figure because of the numbers of images involved here, particularly 54 Oliver images at Level 4, then the initial figure should go up and, furthermore, there is the aggravating feature of this being your second offence and, indeed, was exacerbated by your the attempt to blame your friend which also was an aggravating feature.  Therefore it seems to us that the Crown was right in saying that the figure, after looking at the initial point, would have been 4 years' imprisonment subject to any reduction for mitigation. 

3.        What you, I am sure, do realise is that making these images is not a victimless crime.  Young girls have really suffered sexual abuse to make these films and every time you look at those images you endorse the sexual abuse that young girls have suffered and that is why society reflects these offences with custodial sentences.  It grieves the Court to see a man in your position with so much to offer, in the sense that you have, since the last occasion, found yourself a job and got your life back on track, only to lose it again now.  We do not think that we have any alternative in this case but to impose a sentence of imprisonment upon you and we are going to send you to prison for 2 years as the Crown has moved for on this Indictment. 

4.        We would like you to take out of this day, which is a bad day for you, some encouragement because the Court recognises the efforts that you made on the last occasion and we think you are capable of making those efforts again.  You should serve your time, get what help you can while you are in prison, and try to retain as far as you can, those friendships which you have made and those support networks which you have; you have shown that you can start again and you will be able to do so when you are released from custody on this occasion.  As I say, this is a case which the Court has found very difficult but we think that we are imposing the right sentence upon you. 

5.        So you are sentenced to 2 years' imprisonment. 

6.        We also order the forfeiture and destruction of the computer tower. 

7.        You are subject to the notification requirements as a sex offender under the Sex Offenders legislation.  You will remain subject to those notification requirements for at least 10 years and cannot apply to come off the notification requirements list until 10 years have expired. 

8.        The Crown has moved for some Restraining Orders pursuant to Article 10 of the Sex Offenders (Jersey) Law 2010 and we apply those restrictive orders to you in exactly the same form the Crown has suggested to us.  I am not going to read them out now but they are in the form which the Crown has sent out in the summary, which you have had Advocate Blakeley, and would you provide that summary in writing to the defendant. 

9.        Mr R, if you were to breach these Restraining Orders then that would be a criminal offence as well and you would be liable to be prosecuted for it so you must pay attention to them.  They will be in place for 10 years from today's date. 

Authorities

Sex Offenders (Jersey) Law 2010.

AG-v-R [2009] JRC 137.

Protection of Children (Jersey) Law 1994.

R-v-Oliver [2002[ EWCA (Crim) 2766, [2003] 2 Cr App R (S) 15.

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

AG-v-Videgrain [2014] JRC 040.

AG-v-Bowey [2013] JRC 117.