Jersey Unreported Judgments

Inferior Number Sentencing - making indecent photographs.

[2015]JRC224

Royal Court

(Samedi)

6 November 2015

Before     :

W. J. Bailhache,Esq., Bailiff, and Jurats Nicolle and Sparrow

The Attorney General

-v-

Peter Philip Whitehouse

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

7 counts of:

Making indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Counts 1, 2, 3, 4, 5, 6, and 7).

Age:  57.

Plea: Guilty.

Details of Offence:

Whitehouse was a retired police officer who had spent the majority of his career in community policing, and since 2009 had worked within the charitable organisation "Prison Me No way" ("PMNW"), liaising with school children in the Island. 

In April 2015 a search warrant was executed at his house.  He was not present at the time and various items of computer equipment were seized.  An initial examination showed the presence of indecent images of children ("IIOC") on certain devices.  Whitehouse was arrested when he flew back into the Island that evening.  Further electronic devices were seized from his luggage. 

During initial interview Whitehouse admitted looking at a wide range of pornography, but remained silent when asked what the seized computers might contain.  When later challenged, he took responsibility for anything illegal that might be found, and ruled out the involvement of any other members of his family.  He then went on to admit having used the family computer to download IIOC, and expressed shame and embarrassment.  He apologised to his family and employer.  He explained that once he had downloaded the IIOC, he would save them onto other devices, which he would then hide in his house. 

Whitehouse maintained that he never fantasised about having sex with children, and alleged that the thrill he got from downloading the IIOC was "the thrill of doing something that is illegal and not allowed".  He declined to say whether he was sexually aroused by the IIOC. 

A detailed forensic examination of 68 seized items was carried out.  In total 12 exhibits were between them found to contain a total of 1,557 different IIOC.  The majority of these indecent files were movies, many of which were of a significant length (over 45 minutes each).  A summary of the image categorisations appears below:-

Category	Still images	Movies	Totals
1	227	74	301
2	83	471	554
3	81	21	102
4	106	464	570
5	1	29	30
Totals	498	1059	1557

The defendant had downloaded IIOC from as far back as 2005 right up until 2015.  The majority of the IIOC were located in live user accessible areas on the exhibits, and had clear IIOC names.  Evidence suggested that the files had been downloaded through a peer-to-peer network, and then saved onto CDs, DVDs and SD cards thereafter.  In a number of cases the IIOC had been sorted into types within separate folders distinct from other legal pornography.  There was no evidence that IIOC had been shared or distributed. 

A large amount of extreme images were also located, mainly bestiality, together with a small amount of adult pornography.  It was noted that a significant number of the category 5 movies centre around bestiality involving children. 

The Indictment included seven (7) counts.  Count 1 concerned an older Shuttle computer tower used to download material from 2005 onwards, when the defendant was still a serving Police Officer.  It was found to contain a total of 135 IIOC, categorised as follows:-

Category	Still images	Movies	Totals
1	24	7	31
2	1	69	70
3	8	0	8
4	12	12	24
5	0	2	2

Count 2 covered a total of 53 CDs and DVDs containing material downloaded and intentionally saved by the defendant from 2005 onwards.  The discs contained adult material and pornography involving bestiality, together with 343 IIOC, categorised as follows:-

Category	Still images	Movies	Totals
1	8	13	21
2	4	105	109
3	1	6	7
4	7	190	197
5	0	9	9

Count 3 concerned two loose internal hard drives containing downloaded material dated from 2005 onwards, which between them contained 299 IIOC, categorised as follows:-

Category	Still images	Movies	Totals
1	42	8	50
2	18	28	46
3	11	9	20
4	22	155	177
5	1	5	6

Count 4 covered a total of 8 memory cards and USB drives some of which contained material dating back to 2005.  One of these memory cards had been in the possession of Whitehouse when he travelled back to Jersey through the Airport on the day of his arrest.  Between them the 8 items contained 151 IIOC, categorised as follows:-

Category	Still images	Movies	Totals
1	29	0	29
2	14	55	69
3	5	3	8
4	13	26	39
5	0	6	6

Count 5 concerned a Compaq laptop computer which contained 61 still IIOC, including 5 at level 3 and 13 at level 4. 

Count 6 concerned an HP laptop computer which was found to contain a total of 169 IIOC files, categorised as follows:-

Category	Still images	Movies	Totals
1	65	0	65
2	29	12	41
3	40	0	40
4	23	0	23
5	0	0	0

Count 7 concerned a Samsung laptop computer which had been purchased by the defendant from the PMNW charity.  It was found to contain a total of 399 IIOC files, categorised as follows:-

Category	Still images	Movies	Totals
1	30	46	76
2	3	202	204
3	11	3	14
4	16	81	97
5	0	7	7

The IIOC on this device dated between 2012 and 2015.  Analysis showed that IIOC movies had been played on the laptop, and that the laptop was still being used to open PMNW training material for island school children (documents and PowerPoint) whilst also being used to download and view IIOC. 

On 9^th July, 2015, the defendant was interviewed again in the presence of his Advocate.  At the beginning of the interview the defendant read out a pre-written statement in which he restated his shame and embarrassment, and apologised to his family, the Police, the PMNW charity and all the schools and organisations that he had worked with.  He stated "No vetting system in the world would have been able to identify my dark side.  Throughout all the time I worked in the Island's many schools, colleagues and youth projects, I was totally professional in thought and in deed at all times.  No child was ever at risk in any way whatsoever."  The defendant stated that he could not explain why he had done what he had; he had periods of weeks and months when he would cease downloading because he was "overcome with remorse".  However he would then start again.  The defendant described his behaviour as irrational and that it was a battle. 

In terms of aggravating factors, the Crown took into account the sheer volume of material and length of time over which it had been downloaded, the fact that Whitehouse had been a serving Police Officer and representative of PMNW, together with the presence of a filing system and deleting software. 

Details of Mitigation:

Early guilty pleas and cooperation.  Proactive steps taken to address his offending. 

Previous Convictions:

None. 

Conclusions:

Starting point 5½ 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:	2 years' imprisonment, concurrent.
Count 6:	3 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 the date of release 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 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; and

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; and

b)         The defendant ensures that such history is not deleted.

iii)      That the defendant may not undertake any potential employment or voluntary work without first informing the police.

Forfeiture and destruction sought of all of the seized devices which were found to contain IIOC in this case. 

Sentence and Observations of Court:

The Court felt able to make a slight reduction to the Crown's conclusions and ordered the following:-

Starting point 6 years' imprisonment. 

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

Total: 3 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 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 any 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; and

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; and

b)         The defendant ensures that such history is not deleted. 

Forfeiture and destruction ordered of all of the seized devices which were found to contain IIOC in this case. 

Mark Temple QC, Solicitor General for the Crown.

Advocate J. C. Gollop for the Defendant.

JUDGMENT

THE BAILIFF:

1.        You are here to be sentenced on an Indictment which contains seven counts of making indecent images of children.  The total number of images was 498 still images, 1,059 movies and of those 570 images were at category 4, that is 160 still and 464 movies and 30 images at category 5, I still and 29 movies.  You had been conducting that making of images over a period of some ten years during which you were a serving police officer and after you left the police in 2009, you were a charity worker for Prison Me No Way (PMNW), a charity working with the Island's schoolchildren. 

2.        For the avoidance of doubt there is no evidence of any contact offences and it is not alleged by the Crown  and I want to make that absolutely plain, we are looking only at offences involving making indecent photographs of children and equally, for the avoidance of doubt, as has been said by your counsel and I think accepted, that by you in your interviews these offences are serious offences where there are real victims, children are real victims of these offences, and that is what makes them serious. 

3.        The Court's policy for sentence is well settled by the Superior Number decision of AG-v-Godson and Crowley [2013] JRC 074.  There is no dispute that the offending in this case falls within category 4 as set out in the Godson case and we have to decide what the initial figure should be.  Having looked at a figure of 3 years we then increase it according to the aggravating features of the offending before applying appropriate mitigation.  Here there is a large number of images at levels 4 and 5 and a very large number of images overall.  In addition the making of images took place over a significant period of time and we think there are seriously aggravating features in that you were a serving police officer and also subsequently worked for PMNW; because your conduct brings, as you have acknowledged, shame on both the police force and upon that charity which is a charity which has as its object the keeping of children out of custody.  So we think that the appropriate initial figure is actually 6 years' imprisonment rather than the figure 5½ taken by the Crown in that respect. 

4.        Having said that, it is important to recognise that sentencing is not a mechanical or an arithmetic exercise and we entirely accept what Advocate Gollop has said to us in a very full and appropriate mitigation speech that you have credit for all the good things you have done as well and there is a balancing exercise to be conducted and we have conducted that exercise in discussion of the facts of this case. 

5.        It is clear from al the references that have been put before us that as a serving police officer you have achieved a lot of good for the community.  It is clear that in PMNW you have helped, no doubt, a number of children and generally speaking, we have looked at those references and what you have done in a positive fashion and it is important that because of the shame and the remorse that you have shown and, rightly shown, it is important that you recognise there are those good things in your past that are taken into account as well. 

6.        You are sentenced for what you do but people do make sometimes quite serious mistakes, as here, and in doing so you should appreciate the Court looks at the matter in the round.  Having taken a starting point of 6 years' imprisonment we give you full credit for a guilty plea and we take into account that you have not tried to blame anyone else, in particular you have immediately taken the opportunity in ensuring that your family could not have been criticised for these images.  We have taken into account the cooperative approach you took with the police; we have taken into account good character and, as I say, the very appropriate remorse that you show for these serious offences and in the circumstances we have reached the conclusion that an overall sentence of 3 years' imprisonment would be appropriate for the offending which you have committed. 

7.        Accordingly, taking the Indictment you are sentenced to 3 years' imprisonment on each Count except Count 5.  On Count 5 you are sentenced to 2 years' imprisonment.  Each of those sentences will run concurrently, making a total of 3 years' imprisonment. 

8.        We also order the forfeiture and destruction of the computer equipment and other equipment which is referred to in the Indictment on which the images have been stored. 

9.        Finally we turn to the restraining orders.  We are not satisfied that it is appropriate or proportionate to make the third restraining order which the Crown has requested, namely that you should not undertake potential employment or voluntary work without first informing the police.  Having looked at the background reports it is not clear that it would be proportionate to make that order given the threat of serious sexual harm to children that would arise from your conduct and so we do not apply the third of those restraining orders.  We do impose the first two restraining orders which are not opposed today though we add that it would have been helpful we think if the Crown had included some of the other precedents in relation to the imposition of restraining orders because they go further than the statement which the Crown has made in its summary that the first two orders are "invariably applied to offenders who have made indecent images through downloading them."  It is not a question of invariably applying restraining orders of this kind, given the imposition of a restraining order is a serious matter and the statutory test must be met. 

10.      We also note that you have the notification requirements already applied to you from the date on which you entered a guilty plea and we order that a period of 5 years from that date of your entry of guilty plea before this Court should expire before you can apply to have the notification requirements disapplied to you. 

11.      You are sentenced accordingly. 

Authorities

Sex Offenders (Jersey) Law 2010.

AG-v-Godson and Crowley [2013] JRC 074.

AG v Young [2013] JRC 212.

AG v Videgrain [2014] JRC 040.