Jersey Unreported Judgments

Superior Number Sentencing - Breach of Orders - Indecent photographs

[2019]JRC059

Royal Court

(Samedi)

4 April 2019

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Crill, Olsen, Ramsden, Dulake and Averty

The Attorney General

-v-

R

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 14^th December, 2018, following guilty pleas to the following charges:

4 counts of:	Breach of restraining order, contrary to Article 10(4) of the Sex Offenders (Jersey) Law 2010 (Counts 1, 2, 3 and 4)
4 counts of:	Making indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law, 1994 (Counts 5, 6, 7 and 8).

Age:  46. 

Plea: Guilty. 

Details of Offence:

In 2017 the defendant was sentenced for two counts of indecent assault of a nine-year-old girl.  He was made subject to restrictive orders which included conditions pertaining to computer and devices and a requirement for such devices to be provided to the Police upon request.

 

Police officers attended at the defendant's home address on four occasions (31^st January, 21^st May, 1^st August and 13^th September, 2018) and on each occasion asked the defendant to surrender all electronic devices.  On each occasion the defendant provided his mobile phone(s) but no other devices.  On 13^th September, 2018, the Police observed the defendant using a laptop and seized the laptop for inspection and examination.

 

On 17^th September, 2018, the defendant was arrested on suspicion of breaching the Royal Court restraining order in relation to the laptop.

 

Following a forensic examination of the laptop it became apparent that there may be outstanding devices not seized or produced which may contain indecent images of children ("IIOC").

 

On 18^th September, 2018, the defendant was again arrested on suspicion of breaching his restraining order, a search of the defendant's home address and car resulted in 14 electronic devices being seized, including four USB storage devices.

 

The USB devices were examined and were found to contain IIOC as follows -

 

-¢        USB 1: 4,706 (comprising 4,475 still, 231 moving images)

-¢        USB 2: 4,439 (comprising 4,395 still, 44 moving images)

-¢        USB 3: 5,332 (comprising 5,078 still, 254 moving images)

-¢        USB 4: 7,565 (comprising 7,520 still, 45 moving images)

 

A total of 22,042 unique images and movie files were recovered from the USB drives, 1,032 were at Levels 4 and 5 on the Copine Scale.

Details of Mitigation:

Guilty plea.

Previous Convictions:

One previous conviction for two indecent assaults (the 2017 conviction)

Conclusions:

Starting point 7 years' imprisonment. 

Count 1:	2 years' imprisonment.
Count 2:	2 years' imprisonment, concurrent.
Count 3:	2 years' imprisonment, concurrent.
Count 4:	2 years' imprisonment, concurrent.
Count 5:	4½ years' imprisonment, consecutive.
Count 6:	4½ years' imprisonment, concurrent.
Count 7:	4½ years' imprisonment, concurrent.
Count 8:	4½ years' imprisonment, concurrent.

Total:  6½ years' imprisonment.

Breach of Probation Order - discharge of order, no separate penalty.

Order sought under Article 5(1) of the Sex Offenders (Jersey) Law that a period of 10 years elapse before the accused is permitted to apply to no longer be subject to the notification requirements to run from the date of his previous conviction. 

Restraining Order sought to commence from date of sentence for a period of 10 years under Article 10(4) with the following conditions:-

a)         That the defendant is prohibited from being alone with any female he knows or believes to be under the age of 16. 

i.          He shall be considered to be alone if there is not present an adult over the age of 21 who is aware of his offending history;

ii.          The adult over the age of 21 who is aware of his convictions must in the same room, it shall not be sufficient for the adult to be merely in the same dwelling;

b)         That in circumstances where the defendant finds himself alone with any females under the age of 16, accidentally or inadvertently, he has a positive duty to remove himself from that situation as soon as reasonably possible;

c)         That the defendant must not approach, follow or have any contact, direct or indirect, with the victim (from the 2017 conviction);

d)         That if the defendant finds himself in contact with the victim (from the 2017 conviction) he must remove himself from that situation as soon as reasonably possible; and

e)         That the Defendant be prohibited from:

i.          Possessing any device capable of accessing the internet unless he has registered the device with the Offender Management Unit of the States of Jersey Police;

ii.          Accessing the internet on any device unless his internet activity is monitored by an adult over the age of 21 who is aware of the accused's convictions and who does not have a conviction which would render him/her liable to notification under the Sex Offenders (Jersey) Law 2010, and the history of that access is recorded, and he takes no steps to disguise, delete or otherwise conceal that history.

f)          That the defendant produce to an 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 Police attending at the defendant's place of residence; and

g)         That the defendant provide advanced notification details of any proposed changes of address or employment that will have to be approved by the Offender Management Unit of the States of Jersey Police; and

h)         That the defendant cannot refuse access to police officers who are monitoring or checking on his restraining orders, and he must allow officers entry to any premises he occupies or is in control of for the purposes of searching for relevant devices;

i)          That the Defendant may not knowingly contact or associate with anyone he knows to have been convicted of any offence which would render them liable to the notification requirements of the Sex Offenders (Jersey) Law 2010 (not to come into force until the defendant is released from custody).

Forfeiture and destruction of all of the electronic devices containing indecent material, specifically the four USB storage devices (Exhibits SAL/18/09/18/05 to 08), the Asus laptop (SAL/13/09/18/01) and the PlayStation 3 (Exhibit JC/18/09/18/01) sought.

Sentence and Observations of Court:

Conclusions granted.

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

Advocate L. A. Ingram for the Defendant.

JUDGMENT

THE Commissioner:

1.        We need to first deal with the notification requirements under the Sex Offenders (Jersey) Law, 2010.  In 2017, the Court imposed a period of 5 years before the defendant could apply to have the notification requirements lifted and in the light of the offences now before the Court we agree with the prosecution, and it is not opposed by the defence, that this should be extended to 10 years, from 15^th December, 2017.

2.        The defendant stands to be sentenced for four breaches of restraining orders imposed upon him on 15^th December, 2017, when he was sentenced to 180 hours' community service and 2 years' probation for two indecent assaults on a 9 year old girl.  Following his conviction the police attended at his home on four occasions when he failed to produce all of the devices in his possession, which he was required under the restraining order to do, devices which transpired to hold a total of 22,042 indecent images of children, of which 87% were Level 1 of the Copine Scale but 1,032 were at the more serious Levels 4 and 5 of the Copine Scale.

3.        Applying the guidance in the case of AG v Godson and Crowley [2013] (2) JLR 1 this is a Category 4 case indicating an initial figure of 3 years' imprisonment, but on the assumptions set out in this case three do not apply here:-

(i)        The sentencing does not follow a contested trial;

(ii)       The number of images is large;

(iii)      The defendant has a previous relevant conviction.

Those latter two assumptions constitute aggravating features.  In addition there were 269 moving images at Level 4 or 5 of the Copine Scale.  The collection was amassed over a period of some eleven months during which the defendant was sentenced for the indecent assaults, and we do not accept his assertion that he downloaded these images over a much shorter period.  The defendant is also in breach of the Probation Order imposed upon him.

4.        The prosecution take what is called an adjusted figure of 7 years, taking into account he aggravating and mitigating features of the offences, from which allowing for personal mitigation the prosecution arrives at a sentence of 4½ years' imprisonment for the making of the indecent images offences.  It seeks a consecutive sentence of 2 years' imprisonment for the breaches of the restraining orders giving rise to a total of 6½ years' imprisonment.

5.        The defendant is assessed at a high risk of generalised reconviction.  He is considered to have a deviant sexual preference and therefore to be at a high risk of further sexual offences. 

6.        In terms of mitigation he did plead guilty and should have credit for that, and he was cooperative with the Police in handing over most of the passwords to his devices.  It can be said that up until the 2017 offences he was a man of good character and he had a good work record.

7.        Advocate Ingram did not appear to dispute the adjusted figure sought by the prosecution of 7 years for the indecent images offences but says that the sentences for those offences should be reduced down to 2½ years applying the totality principle.  In asking for that he accepts that the breaches of the restraining orders must attract a consecutive sentence.

8.        Advocate Ingram also said to us that the defendant should be given a full one third discount for the indecent images offences, but we note that the prosecution have indeed given him over a one third reduction from 7 years down to 4½ years for those indecent images offences. 

9.        We have considered all of the arguments put forward by Advocate Ingram on behalf of the defendant and we have considered of course the cases he referred to, but apart from Godson they are not cases which set out any guidance and the facts are always different.  In our view the prosecution's conclusions are correct.  As the prosecution said and we reiterate the making or possession of indecent images is not a victimless crime.  The images are of events which have in fact happened.  In the case of images falling into the higher Copine levels in particular, a child will actually have been subject to the sexual abuse shown in the image, with all the suffering and damaging consequences which flow from that.  The gravamen of this offence is that the making of indecent images fuels the demand, and this in turn encourages the production of such images with consequent further abuse of young children.

10.      On Count 1 you are sentenced to 2 years' imprisonment, on Count 2, 2 years' imprisonment, concurrent; Count 3, 2 years' imprisonment, concurrent; Count 4, 2 years' imprisonment, concurrent; on Count 5; 4½ years' imprisonment, consecutive; Count 6, 4½ years' imprisonment, concurrent; Count 7; 4½ years' imprisonment concurrent and Count 8, 4½ years' imprisonment, concurrent, which makes a total of 6½ years' imprisonment.

11.      For the breach of the Probation Order we discharge it and there is no separate penalty.

12.      We order the forfeiture and destruction of the devices as sought by the Crown.

13.      We impose the Restraining Orders which are set out at paragraph 33 of the Crown's conclusions for a period of 10 years from today's date, those restraining orders not being opposed by the defence. 

Authorities

Sex Offenders (Jersey) Law 2010

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

AG v Laffoley [2017] JRC 058

AG v R [2017] JRC 213

AG v Bourke [2018] JRC 134

AG v Storer [2018] JRC 167

Protection of Children (Jersey) Law 1994