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Jersey Unreported Judgments
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG v Marett [2017] JRC 110 (14 July 2017)
URL: http://www.bailii.org/je/cases/UR/2017/2017_110.html
Cite as: [2017] JRC 110
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Inferior Number Sentencing - distribution of indecent photographs - making of indecent photographs.
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Before : |
J. A. Clyde-Smith, Esq., Commissioner, and Jurats Nicolle and Christensen |
The Attorney General
-v-
Shaun Stephen Marett
Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:
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11 counts of: |
Inciting another to commit a statutory offence, namely the distribution of indecent photographs of children, contrary to Article 1(1)(b) of the Criminal Offences (Jersey) Law 2009 (Counts 1 to 11 inclusive). |
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1 count of: |
Distributing indecent photographs of children, contrary to Article 2(1)(c) of the Protection of Children (Jersey) Law 1994 (Count 12). |
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2 counts of: |
Making indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Counts 13 and 14). |
Age: 22 but 19 and 20 at time of offending.
Plea: Guilty.
Details of Offence:
Inciting another to distribute indecent photographs of children
Between 17th July, 2014, and 18th March, 2015, the defendant discussed the exchange of indecent images of children ("IIOC") with at least eleven other users. He was seen to actively encourage the distribution of IIOC by requesting sexually explicit pictures and videos of children, specifically those aged between 10 and 15 years of age.
Distributing indecent photographs of children
On 9th November, 2014, the defendant distributed a Level 2 video-clip showing a naked girl aged between 10 and 12 years.
Making indecent photographs of children
The defendant's laptop contained 1,209 illegal picture files, ranging from Levels 1-5, created between 9th November, 2014, (on which date the defendant was aged 20 years and one month) and 27th August, 2015, (on which date he was aged 20 years, 11 months). 684 of the images were unique. The images depicted children aged between 2 and 16 years.
The defendant's i-Pod Touch was found to contain 346 indecent picture files of children, ranging from levels 1-4, created between 9th November, 2014, (on which date the defendant was aged 20 years and one month) and 7th September, 2015, (on which date he was aged 20 years, 11 months). 339 were unique. Forensic examiners found that at least 41 pictures from the iPod were identical to those found on the laptop, concluding that pictures from the iPod had been backed up to the laptop; the same requiring deliberate action on the part of the defendant.
When spoken to by Police initially it was not known what involvement the defendant had in such matters. Before formal interview he destroyed a USB stick containing further images.
In interview he claimed to have been blackmailing people who dealt in indecent material, and that he had been blackmailed into providing such material for others.
Analysis of several thousand lines of communications showed no evidence of blackmail, and supported the idea that he was an enthusiastic participant in exchanging such material.
His account of being blackmailed was maintained in the Probation and psychologist reports, and both authors questioned the defendant's veracity.
AGGRAVATING FEATURES
-¢ The number of images is large.
-¢ The images have been widely distributed or shown to others.
-¢ An attempt to dispose of or conceal evidence.
Details of Mitigation:
-¢ Guilty pleas (albeit in light of strong evidence and having not been fully co-operative with the investigation).
-¢ At the time of offending the defendant was between 19 and 20 and therefore subject to the Criminal Justice (Young Offenders) (Jersey) Law 2014.
-¢ Currently aged 22 years.
-¢ Significant delay of almost two years between initial interview and sentence.
Previous Convictions:
None.
Conclusions:
Given the clear Court policy on the making of images, especially with those in the higher bands, and with their distribution to a wider audience, the Crown's view is that even allowing for the Defendant's age and the delay in this case, the offences are too serious to be dealt with by way of non-custodial disposal.
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Count 1: |
2 years' imprisonment. |
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Count 2: |
2 years' imprisonment, concurrent. |
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Count 3: |
2 years' imprisonment, concurrent. |
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Count 4: |
2 years' imprisonment, concurrent. |
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Count 5: |
2 years' imprisonment, concurrent. |
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Count 6: |
2 years' imprisonment, concurrent. |
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Count 7: |
2 years' imprisonment, concurrent. |
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Count 8: |
2 years' imprisonment, concurrent. |
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Count 9: |
2 years' imprisonment, concurrent. |
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Count 10: |
2 years' imprisonment, concurrent. |
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Count 11: |
2 years' imprisonment, concurrent. |
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Count 12: |
2 years' imprisonment, concurrent. |
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Count 13: |
18 months' imprisonment, concurrent. |
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Count 14: |
18 months' imprisonment, concurrent. |
Total: 2 years' imprisonment.
Order under Article 5(1) of the Sex Offenders (Jersey) Law 2010 sought that a period of 5 years should elapse before the defendant is permitted to apply to no longer be subject to the notification requirements to commence from date of sentence.
Restraining orders sought under Article 10(4) of the Sex Offenders (Jersey) Law 2010 for a period of 5 years to commence from date of sentence that:
1. That the defendant be prohibited from:
(i) using any device capable of accessing the internet unless
(a) it has the capacity to retain and display the history of internet use, and
(b) he make the device available on request for inspection by a police officer;
(ii) deleting such history;
(iii) having on the device any software designed to disguise, delete or destroy such history; and
(iv) possessing any device capable of storing digital images unless he makes it available on request for inspection by a police officer.
2. Not to refuse access to police officers who are monitoring or checking on the restraining orders.
Forfeiture and destruction of the Packard Bell laptop, iPod Touch and USB stick sought.
Sentence and Observations of Court:
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Count 1: |
15 months' imprisonment. |
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Count 2: |
15 months' imprisonment, concurrent. |
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Count 3: |
15 months' imprisonment, concurrent. |
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Count 4: |
15 months' imprisonment, concurrent. |
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Count 5: |
15 months' imprisonment, concurrent. |
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Count 6: |
15 months' imprisonment, concurrent. |
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Count 7: |
15 months' imprisonment, concurrent. |
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Count 8: |
15 months' imprisonment, concurrent. |
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Count 9: |
15 months' imprisonment, concurrent. |
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Count 10: |
15 months' imprisonment, concurrent. |
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Count 11: |
15 months' imprisonment, concurrent. |
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Count 12: |
15 months' imprisonment, concurrent. |
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Count 13: |
12 months' imprisonment, concurrent. |
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Count 14: |
12 months' imprisonment, concurrent. |
Total: 15 months' imprisonment.
Forfeiture and destruction of the Packard Bell laptop, iPod Touch and USB stick ordered.
Order under Article 5(1) of the Sex Offenders (Jersey) Law 2010 made that a period of 5 years should elapse before the defendant is permitted to apply to no longer be subject to the notification requirements to commence from date of sentence (14th July, 2017).
Restraining orders made under Article 10(4) of the Sex Offenders (Jersey) Law 2010 to commence from date of sentence (14th July, 2017) that:
1. That the defendant be prohibited from:
(i) using any device capable of accessing the internet unless
(a) it has the capacity to retain and display the history of internet use, and
(b) he make the device available on request for inspection by a police officer;
(ii) deleting such history;
(iii) having on the device any software designed to disguise, delete or destroy such history; and
(iv) possessing any device capable of storing digital images unless he makes it available on request for inspection by a police officer.
2. Not to refuse access to police officers who are monitoring or checking on the restraining orders.
Forfeiture and destruction of the Packard Bell laptop, iPod Touch and USB stick ordered.
R. C. P. Pedley, Esq., Crown Advocate.
Advocate J. M. Grace for the Defendant.
JUDGMENT
THE COMMISSIONER:
1. We need first to deal with the orders sought under the Sex Offenders (Jersey) Law 2010 and we set 5 years from today for the period before which the defendant can apply to lift the notification requirements and we make the restrictive orders set out in paragraph 29 of the Crown's conclusions, again for a period of 5 years from today, both those orders not being opposed by the defence.
2. The defendant now stands to be sentenced for offences involving indecent images of children under 16 years of age, contrary to the Protection of Children (Jersey) Law 1994. He faces eleven counts of inciting the distribution of indecent images, one of distribution of indecent images and two counts of making indecent images, totalling just over 1,000 images of which 164 were at levels 4 and 5.
3. Applying the Godson guidelines (AG-v-Godson and Crowley [2013] JRC 091) the defendant, who has no previous convictions, would be a category 4 offender giving an initial figure of 3 years' imprisonment based on the five assumptions set out in Godson, namely:
(i) that the offender is an adult;
(ii) that he has no relevant convictions;
(iii) that the number of images is small;
(iv) that the making of the images was for his benefit alone, or if distributed only sent to two or three other persons; and
(v) that the sentencing process was dealt after a contested trial.
4. Advocate Grace for the defendant agrees that the defendant is a category 4 offender and that 3 years' imprisonment is the correct initial figure.
5. The prosecution then adjusts that figure upwards to 3½ years for the following aggravating mitigating factors of the offence:-
(i) The number of images as per the guidance in Godson is large;
(ii) They have been distributed to at least eleven individuals; and
(iii) The defendant concealed evidence by destroying his UBS stick which on his own admission contained further images.
6. The prosecution then reduced the sentence sought to a total of 2 years' imprisonment to take into account the personal mitigation available to the defendant. Advocate Grace submits that there are features of the mitigation available to the defendant which would allow a community outcome:-
(i) Firstly these offences were committed between 17th July, 2014, and 7th September, 2015, when the defendant was between 19 and 20 years of age. He was first interviewed on 7th September, 2015. Nothing then happened from his point of view until 18th November, 2016, when he was interviewed again and he was not charged until 27th March, 2017. The prosecution say that at least part of these delays are attributable to the forensic investigations that had to be carried out but 2 years is a long delay for anyone let alone a defendant of his age and during that time he has suffered from both low mood and depression.
(ii) Secondly because he was over 21 when he pleaded guilty on 26th May, 2017, the provisions of the Criminal Justice (Young Offenders)(Jersey) Law 2014 did not strictly apply to him but he was under 21 when the offences were committed and the prosecution agree that we should take into account the provisions of that Law, the aim of which is not to sentence young adults to prison unless no other method of dealing with him is appropriate.
(iii) Thirdly, we have a psychological report from Doctor Briggs which shows that there are complicated psychological issues at play with this defendant.
7. We have been deliberating as can be seen for some time but ultimately we have considered that these features in particular the distribution and all of the other mitigation put forward by Advocate Grace, including the letter from the defendant, which we have read, and from his family, some of whom are present in Court, are not sufficient to allow us to conclude that a community outcome is appropriate.
8. These are not victimless crimes. These are images of actual sexual abuse of children and the distribution of these images fuels the demand which only encourages the production of such images and the further sexual abuse of young children.
9. At the same time we do feel that the sentence of 2 years sought by the Crown does not give sufficient credit for the mitigation and in particular the defendant's youth and the delay that he has endured.
10. On Counts 1 to 11 you are sentenced to 15 months' imprisonment, on Count 12; to 15 months' imprisonment, concurrent, on Count 13; 12 months' imprisonment, concurrent, and on Count 14: 12 months' imprisonment, concurrent, which makes a total sentence of 15 months' imprisonment.
11. We order the forfeiture and destruction of the Parckard Bell laptop, iPod Touch and USB stick.
Authorities
Sex Offenders (Jersey) Law 2010.
Protection of Children (Jersey) Law 1994.
AG-v-Godson and Crowley [2013] JRC 091.
Criminal Justice (Young Offenders)(Jersey) Law 2014.