Jersey Unreported Judgments

Inferior Number Sentencing - making indecent photographs of children - making use of a public telecommunication service to send grossly offensive message.

[2015]JRC062

Royal Court

(Samedi)

27 March 2015

Before     :

Sir Michael Birt, Commissioner, and Jurats Nicolle and Blampied

The Attorney General

-v-

William John Brown

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).
1 count of:	Making use of a public telecommunication service to send a message that is grossly offensive, or of an indecent, obscene or menacing character, contrary to Article 51(a) of the Telecommunications (Jersey) Law 2002 (Count 3).

Age:  26.

Plea: Guilty.

Details of Offence:

As a result of information received a search warrant was executed at the defendant's address where a laptop found in the defendant's bedroom revealed a download of a category 4 image.  The defendant was arrested and interviewed the same day and denied any knowledge of the image. 

Following the interview an examination of all the items seized revealed a total of 33 indecent images and one category 4 movie. 

A Dell laptop (Count 1) contained a total of 20 images; all were still except for one level 4 movie.  The images contained explicit descriptive titles and all bar two were found in the unallocated clusters that are not user accessible.  The images found were categorised as follows:-

 

Category	Still images	Moving images
1	15	0
2	0	0
3	1	0
4	3	1

The second device, a Compaq laptop (Count 2) revealed a total of 14 indecent images.  There were all still images and were also found in the "unallocated cluster" and only one image was live.  They too contained explicit descriptive titles.  The images found are categorised as follow:-

 

Category	Still images
1	9
2	1
3	1
4	2
5	1

Both laptops seized containing the indecent images also contained logs of exchanges made through 'skype chat'.  In particular it was noted one conversation contained a very vivid conversation detailing the kidnapping and raping of young girls with another user on 'skype chat' (Count 3).  There was an exchange of images through these chats but none were of an illegal content. 

In light of the examination the defendant was interviewed again and following the interview made an admission the images were his.  He said that he had actively searched for child pornography, and that he usually deleted images after downloading them.  He admitted a sexual interest in young girls.  He maintained that the skype chats were simply fantasy, albeit that he accepted writing them. 

Details of Mitigation:

The Court noted the defendant's guilty plea, cooperation, good character and no previous convictions.  They also considered his voluntary work and that he was of a positive character.  References of work with voluntary organisations and he had voluntarily sought treatment but the Court added that this did not minimise the offending.  In addition the Court highlighted that there had been an unacceptable delay at times. 

Previous Convictions:

None. 

Conclusions:

Starting point 2 years' imprisonment regarding Counts 1 and 2.

Count 1:	18 months' imprisonment.
Count 2:	18 months' imprisonment, concurrent.
Count 3:	2 months' imprisonment, concurrent.

Total: 18 months' imprisonment. 

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 to commence from the date of sentencing. 

Restraining Order sought to commence from the date of sentencing 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 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 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

iv)      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 dell and Compaq laptop sought. 

Sentence and Observations of Court:

One Jurat was persuaded that the defendant's case was exceptional but Commissioner Birt and the other Jurat agreed the case was not exceptional and that a custodial sentence could not be avoided. 

Count 1:	12 months' imprisonment.
Count 2:	12 months' imprisonment, concurrent.
Count 3:	2 months' imprisonment, concurrent.

Total: 12 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 sentencing made. 

Restraining Order made to commence from the date of sentencing 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 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 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

iv)      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 dell and Compaq laptop ordered. 

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

Advocate J. C. Gollop for the Defendant.

JUDGMENT

THE commissioner:

1.        You have pleaded guilty to downloading some 33 images and a movie of which 6 of the images and the movie were at levels 4 and 5 on the Copine scale which are the more serious ones.  This means that you are within the fourth category in the leading case of AG-v-Godson and Crowley [2013] (2) JLR 1 and the starting point for the Court's consideration is a sentence of 3 years' imprisonment. 

2.        The Court wants to repeat what it said in the case of AG-v-Videgrain [2014] JRC 040 because it is very important that it is understood what these offences involve.  What the Court said was this:-

"1       The Court has said repeatedly that the downloading of indecent images of children is not a victimless crime, particularly where the images are at levels 4 or 5 of the Copine scale.  Real children have been subjected to the depraved sexual practices which are shown in the films or the pictures, with all the suffering and damaging consequences which flow from that and those who download this material provide a market for the evil people who make these films and therefore they indirectly contribute to the suffering of these children.  That is why the Court has repeatedly said that, save in exceptional circumstances, a prison sentence will be imposed in such cases."

3.        Advocate Gollop has argued very persuasively that this is one of those exceptional cases.  He has referred to many matters of mitigation; he has referred to your guilty plea and your cooperation; to your hitherto very good character; you have no previous convictions and it has been much more than that, you have a positive good character.  We have read the references, we have read the letters from you and your family, and, of course, we have noted the good work you have done with the Duke of Edinburgh Scheme, the Prince's Trust, St John's Ambulance and others.  We have read the background reports and the psychological report with their recommendation that there be a non-custodial sentence, and we have also noted that you have voluntarily sought treatment from Mr Hollywood.  We also noted Advocate Gollop's point that you have never sought to minimise what you have done, unlike many; you have accepted you have an interest in these images and it does appear that you are determined to try and do something about it.  There has also been unacceptable delay at times in this case. 

4.        Putting all those matters together, one jurat has been persuaded that this case is exceptional and therefore that a non-custodial sentence is appropriate.  The other jurat feels that whilst there is indeed powerful mitigation, this is to found in other cases as well and it is not sufficient to justify making an exception to the Court's clear policy which I have just described and the reason for that policy which I have just described.  I am siding with the latter jurat.  I feel that the Court's policy requires that, for offences of this nature, save in exceptional circumstances, a prison sentence is required and I cannot find exceptional circumstances in this case. 

5.        We do, on the other hand, think that the sentence was too long given the fact that this was towards the lower end of offending where levels 4 and 5 are involved.  So the sentence of the Court is one of 12 months' imprisonment on Counts 1 and 2 and 2 months' imprisonment on Count 3, all of those to be concurrent. 

6.        We order that you are subject to the notification requirements and it will be 5 years from today before you can apply to come off them.  We make the restraining orders asked for by the Crown, which were not opposed by your counsel, for a period of 5 years. 

7.        We also order the forfeiture and destruction of the computers. 

Authorities

AG-v-Godson and Crowley [2013] (2) JLR 1.

AG-v-Videgrain [2014] JRC 040.

AG v B [2015] JRC 022.

AG v Horman [2008] JRC 187.