Jersey Unreported Judgments

Inferior Number Sentencing - possession and making of indecent photographs.

[2016]JRC011

Royal Court

(Samedi)

19 January 2016

Before     :

Sir Michael Birt, Commissioner, and Jurats Fisher and Blampied

The Attorney General

-v-

Charles David Barnett

Sentencing by the Inferior Number of the Royal Court, after having been found guilty at a contested Inferior Number Trial on 3^rd December, 2015, of the following charges:

2 counts of:	Possession of indecent photographs of children, contrary to Article 2(1)(b) of the Protection of Children (Jersey) Law 1994 (Counts 1 and 5).
3 count of:	Making indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Counts 2, 3 and 4).

Age:  70

Plea: Not guilty

Details of Offence:

The defendant was in hospital for long-term treatment in relation to back pain and in his absence from the family home his partner undertook an 'early Spring clean'.  She found at various locations within the home quantities of indecent photographs of children printed on thick A4 sized photographic paper.  There were also quantities of adult pornography found on the same occasion in the same format.  The Police were contacted and a total of 191 photographs were seized which upon examination 152 were categorised as containing indecent photographs of children.  All of the photographs had been downloaded and printed off the internet as many of the photographs had website addresses marked on them. 

A further search undertaken at a lock-up garage used by the defendant revealed a further 165 pornographic photographs of which 3 were categorised as indecent photographs of children. 

A number of computer devices were seized by the Police from the property and also from the defendant who was in hospital. 

Of the computer devices seized 3 items were found to contain indecent images of children.  There were a total of 42 unique indecent images of children together with 3 indecent movies of children.  Many of the images had been duplicated multiple times on one or more of the devices.  A forensic examination of the 3 computer devices showed that visits to hundreds of webpages and websites with titles suggestive of paedophilia had been accessed on a regular basis since 2002. 

A comparison of the printed indecent photographs resulted in 6 photographs at Level 1 either being matched with or identified as coming from the same series of photographs as images found on the various seized computer devices. 

The total number of indecent photographs across the 5 Counts of which the defendant was found guilty was 197 and 3 movies.  Photographs/images/movies were categorised as follows:-

Count 1

Category	Still images
1	137
2	6
3	2
4	5
5	2

Count 2

Category	Still images	Moving images
1	20
2
3
4		2
5	1

Count 3

Category	Still images	Moving images
1	11
2	1
3	2	1
4	1

Count 4

Category	Still images
1	5
2	2
3
4	1

Count 5

Category	Still images
1	5

The defendant was interviewed on two occasions.  Firstly when the hard copy photographs were seized, and then on a second occasion following the forensic examination of the computer devices.  Throughout those interviews he denied all knowledge of the indecent material and claimed, inter alia, that it had been planted to remove him from his home.  He further stated that the images/movies found on his computer devices and all of the webpages/websites indicative of paedophilia had all been planted or had been in existence on those devices when he had first taken possession of them.  He maintained such denials at trial.  He gave evidence on his own behalf but did not call any expert evidence to challenge the expert evidence presented by the Crown. 

Application made to stay the sentencing or stay the execution of any sentence imposed pending the defendant's appeal against conviction.  No authority produced in support of the application.  The application was refused. 

The Crown in reliance upon the guidelines in AG v Godson & Crowley had taken an initial starting point of 3 years' imprisonment. 

Details of Mitigation:

The Crown

The Crown was unable to identify any mitigation either as to the offences or of a personal nature.  He did not have the advantage of a guilty plea.  He had filed a Notice of Appeal against conviction maintaining his innocence and therefore did not have the benefit of remorse or regret.  The defendant's attitude was one of total denial mixed with victimisation.  He had struggled to accept the concept of a child having their photograph taken whether partially clothed or naked as a criminal offence.  He also struggled with the concept of nudity being indecent.  He was assessed as presenting a medium risk of committing further sexual offences. 

The Defence

Lack of relevant previous convictions highlighted.  Previous convictions were minor and historical.  Offences were out of character.  Aged 70 and in poor health.  Extremely anxious about prison.  Prison life would be very hard for him.  Self-employed running own business for 30 years.  Imprisonment would mean loss of business and inability to pay mortgage thus losing home.  His circumstances upon release would therefore be dire.  Maintained denial of offences albeit noted that most of the images were at the lowest level.  No distribution.  Accepted that the offences pass custodial threshold but invited Court to impose Community Service which the defendant was willing to undertake even though he was exceedingly busy with his business. 

Previous Convictions:

DIC, driving without due care and attention, speeding x 3, making hoax/annoying phone calls and larceny from unattended motor vehicle.  Last Court appearance was in 2004 and had never received a custodial sentence. 

Conclusions:

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:	6 months' 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 sentencing sought. 

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.

Costs towards the prosecution sought in the sum of £30,000.

Forfeiture and destruction of the photographs and devices sought.

Sentence and Observations of Court:

The defendant had been convicted of two counts of possession and three counts of making indecent images of children and this by means of downloading a total of 197 still images and 3 movies of which a total of 12 were at Categories 4 or 5 on the Copine scale.  These are the more serious categories and involve images of penetrative sex or worse.  The vast majority of images, 176 were in Category 1.  The Crown submitted that the existence of Level 4s and 5s place the case into Category 4 under the Godson & Crowley guidelines.  In principle therefore 3 years' imprisonment was the appropriate sentence.  Pleaded not guilty and therefore no mitigation arising via a guilty plea available to him.  However, there was some mitigation available being age and good character.  He had minor offences; the Court had treated him as of good character.  The Court had noted the references provided.  If he had been convicted of solely Category 1 then a non-custodial sentence might have been appropriate.  However, material at Categories 4 and 5 meant that real children suffered degradation and distress.  Where there was Category 4 and 5 material a non-custodial sentence was not appropriate. 

Count 1:	18 months' imprisonment.
Count 2:	2 years' imprisonment, concurrent.
Count 3:	2 years' imprisonment, concurrent.
Count 4:	2 years' imprisonment, concurrent.
Count 5:	6 months' imprisonment, concurrent.

Total: 2 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 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.

Costs sought in the sum of £30,000 to be adjourned for a date to be fixed.

Forfeiture and destruction of the photographs and devices ordered.

J. C. Gollop, Esq, Crown Advocate.

Advocate N. D. E. Addis for the Defendant.

JUDGMENT

THE commissioner:

1.        You were convicted of two counts of possession of indecent photographs of children and three counts of making, by means of downloading, such indecent photographs.  The total number of images involved in your case was 197 still images and 3 movies of which a total of 12 of the images were at levels 4 and 5 on what is known as the Copine scale; levels 4 and 5 are the more serious ones which involve penetrative sexual activity or worse.  Of the images at levels 4 and 5, 7 were related to the possession offence and 5 to the making offences.  It is fair to say that the vast majority of the images, namely 176, were at level 1. 

2.        Now the Crown Advocate says that because of the existence of some images at levels 4 and 5 then the matter falls within category 4 as set out in the leading case of AG-v-Godson and Crowley [2013] JRC 091 so that an initial figure of 3 years is appropriate in principle.  You pleaded not guilty so that means that the mitigation for a guilty plea of up to one third off the sentence is not available to you. 

3.        But there is mitigation.  Your advocate has referred to your age (70), to the fact that you are essentially of good character, and we do treat you as a person of hitherto good character, because the offences concerned were very minor, of a totally different nature and a long, long time ago.  We have also had regard to the references which have been supplied to us. 

4.        So taking all these matters into account and having regard to the fact that the vast majority of the images were at level 1, we think we can make a reduction in the conclusions.  If the images had consisted solely of level 1 then a non-custodial sentence would have been appropriate.  But images at levels 4 and 5 mean that real children have been put through the degradation and the distress which result from the making of these images; so where there are images of levels 4 and 5 we consider that a non-custodial sentence is not appropriate. 

5.        So in all the circumstances our sentence is as follows:-on Count 1; 18 months' imprisonment, because we think that, possession offences having a lesser maximum, they should attract a lesser sentence, Count 2; 2 years' imprisonment, concurrent, Count 3; 2 years' imprisonment, concurrent, Count 4; 2 years' imprisonment, concurrent, Count 5; 6 months' imprisonment, concurrent, making a total of 2 years' imprisonment in all rather than the 3 years moved for by the Crown. 

6.        We agree that a period of 5 years from today would be appropriate before you can apply to come off the notification requirements and we make the restraining orders in the form asked for by the Crown for a period of 5 years from today. 

7.        As to costs, we are going to adjourn that.  It will be necessary to explore your financial position if that matter is to be addressed. 

8.        We order the forfeiture and destruction of the photographs and the computer equipment but the destruction is not to take place until the outcome of your appeal against conviction. 

Authorities

Sex Offenders (Jersey) Law 2010.

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

AG-v-McLoughlin [2015] JRC 225.