Jersey Unreported Judgments

Inferior Number Sentencing - breach of restraining order.

[2018]JRC079B

Royal Court

(Samedi)

27 April 2018

Before     :

Sir William Bailhache, Bailiff, and Jurats Crill and Thomas

The Attorney General

-v-

A

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

2 counts of:

Breach of a restraining order, contrary to the Article 10(4) of the Sex Offenders (Jersey) Law 2010 (Counts 1 and 2)

Age:  67.

Plea: Guilty. 

Details of Offence:

The defendant was sentenced to eight years in prison in 2012 for rape and indecent assault of underage girls.  Computers examined at the time had search terms such as 'pre teen abused' and 'pre teen pussy'.  He denies any interest in underage girls, maintains his innocence and is an untreated sex offender.  He is subject to restrictive orders, one of which reads:-

"He is prohibited from acquiring, possessing or using any computer software which possesses the capability to destroy, delete or disguise internet activity on any device which may access the internet..."

He was released from HMP La Moye in 2017.  Seven weeks after release, police attended his address and noted a black tablet computer in his room, which he later admitted was his and that he was the only user.  Examination revealed search terms of concern.  The tablet was further examined and found to contain the two applications 'Crazy Booster and Cleaner' and 'Auto Clear Memory'.  Both applications have the capacity to destroy, delete or disguise internet activity on the tablet and therefore breach the order. 

As well as searches for extreme pornography involving animals and young girls, he had also searched for "delete items from recycle bin".  In interview he admitted viewing material such as girls performing sexual acts with dogs.  He was assessed as being at high risk of sexual recidivism. 

A basis of plea was submitted which stated that he admitted downloading the applications, but did not realise that they would potentially disguise his internet activity, and that the breach was therefore technical.  After several adjournments the Crown accepted this basis as it would make little difference to the sentence imposed. 

Details of Mitigation:

Guilty plea.

Previous Convictions:

Rape and indecent assault of a minor.

Conclusions:

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

Total: 12 months' imprisonment.

Amendments to the Restraining Order sought to run for a period of 10 years from the date of sentence, that the defendant be prohibited from the following:-

(1)     using any device capable of accessing the internet unless 

(i)      it has the capacity to retain and display the history of internet use, and  

(ii)     the defendant takes no steps to prevent that history from being recorded, and 

(iii)     he makes the device available on request for inspection by a police officer; and 

(iv)     That the defendant be prohibited from downloading any software or applications from the Internet unless he has prior approval from the OMU; and 

(v)      That the use of private browsing, encryption programmes, or software which has the capacity to disguise, destroy or delete such history is therefore prohibited, save for legitimate encryptions required for (for example) online banking.  The defendant is to provide the access codes or passwords for any such encryption to a police officer if requested. 

(2)     That the defendant notify the OMU of all devices he owns, or to which he has access, which have the capacity to access the internet and/or to store electronic data. 

(3)     That the defendant be prohibited from having any unsupervised contact or communication of any kind with any person under the age of 16, other than 

(i)      such as is inadvertent and not reasonably avoidable in the course of lawful daily life, or 

(ii)     with the consent of the child's parent or guardian (who has full and accurate knowledge of his convictions) and who has not been convicted of any offence which would render them liable to be subject to orders under the Sex Offenders (Jersey) Law 2010. 

(4)     That in circumstances where he finds himself in contact with, or finds himself alone with a person under the age of 16, that he has a positive duty to remove himself from that situation as soon as reasonably possible. 

(5)     Not to refuse access to his accommodation for police officers who are monitoring or checking on the restraining orders. 

Sentence and Observations of Court:

Count 1:	Time served.
Count 2:	Time served.

Total:  Time served. Both counts to run concurrently.

Amendments to Restraining Orders made as sought for by the Crown (see Conclusions above) to run for a period of 10 years from the date of sentence.

R. C. P. Pedley, Esq., Crown Advocate.

J. W. R. Bell for the Defendant.

JUDGMENT

THE BAILIFF:

1.        The defendant is charged with two counts of breaching a restraining order that was imposed on his sentence for other offences on 16^th March, 2012.  Those two offences were committed on 11^th and 15^th July, 2017, by him downloading a computer application named Crazy Booster and Cleaner and on the second occasion Auto Clear Memory. 

2.        In both cases those applications would delete, disguise or destroy internet history contrary to the restrictive orders imposed by the Court.  Those orders, as I say were imposed in 2012 to run for a period of 10 years. 

3.        The basis of a guilty plea was first communicated to the Prosecution authorities in August 2017 i.e. within 6 weeks or so of the offences having been committed.  And the basis of plea which we deal with today is in these terms.  He confirms he pleads guilty to Counts 1 and 2 on the Indictment on the basis he accepts he downloaded the two applications to his tablet device, in anticipation that the applications would speed up the performance of the device and did not know that the way these applications work appears to include deleting some of the memory cash of the device in order to potentially improve the performance of the device and accepts the police assertion that he has, albeit unintentionally contravened the terms of the restraining order.  The Crown have accepted that basis of plea, so the Crown have accepted in particular that the defendant did not intend to contravene the terms of the restraining order although the Crown accept that he has, in fact done so and the guilty plea has been entered, I think on the basis of recklessness.  

4.        The defendant has spent some time in custody following his arrest until he was granted bail by this Court and he served the equivalent of just over 10 months' in custody had that been imposed by this Court.  The court considers that in the circumstances of this case, in the round, including the fact that the basis of the guilty plea was provided right at the very outset, it would be appropriate not to impose a further sentence of imprisonment upon him for the breach of the restraining orders, and accordingly he is sentenced on those two counts on the Indictment to run concurrently to time served.  

5.        The Crown also raises with us the question of a revision to the restraining orders.  In that context the Court has jurisdiction to amend the terms of the restraining orders, both in the sense that there is a sexual offence created now, but also in any event under Article 10(11) of the Sex Offenders (Jersey) Law 2010.  

6.        What we need to look at is the basis for the restraining orders in the first place by Article 10 (4)

(4)   "Where -

(b)       a court is satisfied on the balance of probabilities that the person poses a threat of serious sexual harm to the public or any particular person or persons, the court may make such as order in respect of the offender as it is satisfied as necessary to protect the public or any particular person or persons from serious sexual harm from the offender".

7.        And, as it is clear from many Authorities both here and in England and Wales where there is a similar but not identical statute it is necessary for the court to approach that issue with proportionality.  There should be an interference with the defendant's European Convention Rights only as far as is necessary for the purposes of protecting the public, and we have had that in mind.

8.        In this particular case the court has had a very full report from the Jersey Probation and After Care Service which has prepared for this hearing.  It has been read to the defendant in April this year.  We note from paragraph 20 that the defendant continues to "maintain his innocence for the Rape and Gross Indecency offences" and that he "disengaged from Probation through care within the prison," and when he was released. he was as an "untreated sexual offender who did not wish for Probation voluntary after care support."

9.        The report goes to make it plain that the defendant is assessed as having a raised risk was sexual reconviction and overall this is deemed to be high.  There are key areas set out in the background report which is not necessary for us to go into now but we have had regard carefully to paragraphs 34 to 38 of the Social Enquiry Report which emphasise the assessment of the defendant as having a high risk of sexual reconviction. 

10.      We will just quote from paragraph 37 that the Psychologist's Report included a description of risk factors in the defendant's case as including and I quote

"reckless use of software and breach in breach of a restraining order, use of disturbing search terms indicative of child sexual abuse, incest and bestiality, failure to take responsibility for offending behaviour, concerns regarding loss of libido/impotence, reports self to be a 'loner', boredom and very limited support network".

And those factors clearly do justify the assessment of a high risk of sexual reconviction.

11.      So the purpose of the restraining order being to protect the public, we consider that, first of all it is necessary to revise the terms of the existing restraining order, and secondly that we also think it is appropriate to extend the terms to run for a period of 10 years from today.

12.      We have noted that if circumstances should change, of course either the Attorney or the defendant can apply for an amendment to the order in the future and that will be a matter for the court, if it receives such an application, to deal with it on the evidence which then produced, but on the evidence which is available to us today we have regard to the high risk of sexual reconviction.

13.      As to the terms of the revised order the Court is going to make them in the terms proposed by the Crown and I am going to say just two things.  The first is that we make the order in the terms proposed by the Crown subject to one amendment which is in paragraph (5) the prohibition is going to be in these terms not to refuse access to any accommodation which he occupies to police officers who are monitoring or checking on the restraining orders.  That paragraph is about ensuring that police officers monitoring or checking on the restraining orders have access to premises which the defendant occupies.

14.      The second point we wish to make in relation to the restraining order is this: there is a prohibition from downloading any software or applications from the internet unless the defendant has prior approval from the OMU.  Now it is said to us by Advocate Bell on behalf of the defendant that it is very possible to download software applications without meaning to do so, and therefore the defendant is at risk committing an offence by involuntarily downloading of software and applications of this kind. 

15.      That is not our understanding the way in which these programmes and software updates work.  We think that the device can be set not to accept automatically any updates, and if so then the defendant will have a choice as to whether he downloads the update or application, or not.  If we are wrong in that, that is a matter for the defendant to produce technical expert evidence to put before the court and it can be reconsidered but we are not prepared to depart from the terms of the restraining order as proposed, simply on the assertion by counsel that there may be a problem.  We need to have some evidence that there will be, because the court's understanding of the way this works is that it is clear that the defendant can so arrange his internet access, that he has a choice before downloading software or other applications in the future.

16.      And in the light of the convictions which are entered in relation to these two charges the obligation fairly rests on the defendant to make sure he makes whatever enquiries need to be made to keep himself from offending, that is where the obligation lays, even though the burden of proof in relation to the offences of course remains with the Crown in the future.

17.      For those reasons we sentence the defendant to time served. 

18.      We amend the restraining orders as I have indicated and they are to last for 10 years from today's date.

Authorities

Sex Offenders (Jersey) Law 2010.

AG v 'A' [2012] JRC 058.

'A' v AG [2012] JCA 104.

AG v 'G' [2011] JRC 214.

AG v 'N' [2013] JRC 052.

AG v Laffoley [2017] JRC 058.