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Jersey Unreported Judgments
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG v Leigh [2019] JRC 138 (19 July 2019)
URL: http://www.bailii.org/je/cases/UR/2019/2019_138.html
Cite as: [2019] JRC 138
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Inferior Number Sentencing - Indecent photographs
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Before : |
Sir William Bailhache, Bailiff, and Jurats Blampied and Ronge |
The Attorney General
-v-
Daniel Thomas Leigh
Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:
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3 counts of: |
Making indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law, 1994 (Counts 1,2 and 3). |
Age: 25.
Plea: Guilty.
Details of Offence:
In June 2018 Police received information indicating that a person living in St. Saviour may have been in possession of indecent images of children. Police systems showed that the Defendant was connected to the address. On attendance, Police seized a large number of electrical and storage devices including:
-¢ An NZXT Computer Tower
-¢ A Samsung Galaxy mobile phone, and
-¢ A Windows Surface Tablet PC ("the Laptop").
The Defendant provided officers with the password to the Laptop.
The USB devices were examined and were found to contain a total of 159 illegal images of children ("IIOC"), as follows -
-¢ NZXT Computer Tower: 6 (comprising 6 moving images)
-¢ Samsung Galaxy mobile phone: 4 (comprising 3 still, 1 moving image)
-¢ The Laptop: 149 (comprising 111 still, 38 moving images)
All of the images were unique and a total of 76 (47% of the total) were at Levels 4 and 5 on the Copine Scale.
Details of Mitigation:
Guilty plea, of good character, co-operated with Police investigation, difficult family background, remorse, genuine efforts to seek help.
Previous Convictions:
None.
Conclusions:
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Count 1: |
1 year's imprisonment. |
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Count 2: |
2 years' imprisonment, concurrent. |
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Count 3: |
6 months' imprisonment, concurrent. |
Total: 2 years' imprisonment.
Order sought 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 date of sentence.
Restrictive orders sought under Article 10(4) of the Sex Offenders (Jersey) Law 2010 for a period of 5 years from date of sentence:
1. That the Defendant be prohibited from owning or having in his possession or having access to any device capable of accessing the internet unless;
i. It has the capacity to retain and display the history of internet use.
ii. The Defendant ensures that such history is not deleted; and
iii. That he register the device with the Offender Management Unit of the States of Jersey Police.
The above restrictions do not apply to internet access that is required by the defendant in the course of his employment in the future.
2. 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.
Forfeiture and destruction of all of the electronic devices containing indecent material (the NZXT Computer Tower, the Samsung Galaxy mobile phone and the Windows Surface Tablet PC) sought.
Sentence and Observations of Court:
Conclusions granted.
M. Temple Q. C., appeared for the Crown.
Advocate N. B. R. Mière for the Defendant.
JUDGMENT
THE BAILIFF:
1. You are here to be sentenced on an Indictment that contains three counts of making indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law, 1994.
2. You have made in total, over three different pieces of equipment, 45 moving images, 23 at Level 4 on the Oliver Scale, 1 at Level 5 and 159 still images, 74 at Level 4 on the Oliver Scale and 2 at Level 5, and this offending took place July 2017 and July 2018.
3. We are asked by your counsel who said absolutely everything that could be said on your behalf to view the offending through your prism and we do to some extent, and I will come onto that in just a moment, accept that invitation, but the other side of it, and it is the side of it that is the dominant side, there is a danger in internet pornography in that it can become addictive and what we cannot overlook, as we think you recognise is that these crimes are not victimless crimes. Real children have been abused, and we cannot ignore that, and that is why the Superior Number of this Court in AG v Godson and Crowley [2013] (2) JLR 1 reached the conclusion that unless there was some exceptional circumstances a custodial sentence had to be imposed, and while you have a lot of mitigation to put forward, as your counsel has said, there is nothing exceptional that we can take into account here and therefore it needs to be a custodial sentence.
4. This level of offending, because it includes images at Level 4 and Level 5, leads us therefore to take an initial figure of 3 years in accordance with Godson and Crowley and we have looked at the aggravating features in terms of number as the Crown has requested. There were 100 exactly images at Levels 4 and 5 combined, and it is of interest in that connection to look at paragraph 38 of the Court's decision in Godson and Crowley because in that the Court declines to adopt the High Court view in the United Kingdom that significant levels mean high hundreds, and instead the Court said this:
"We regard any number of images above 100 as constituting a large number. In doing so we are less concerned to pay heed to the facility with which the images can be downloaded and more concerned to reflect the obvious fact that the possession of any significant number of such images involves the abuse either of a large number of children on a few occasions or of a small number of children on a large number of occasions. With these observations we leave the extent to which the number of images is considered to be an aggravating factor for each level to the judgment of the Magistrate's Court and the Royal Court."
So here we have a number which is right on 100, and we think that it does constitute as an aggravating feature, although clearly it could be treated as a more aggravating feature if there were higher numbers than 100.
5. We also have noted that there was some, perfectly lawful, but there was some file wiping software which of course makes it difficult to be sure how much has actually been viewed in the past.
6. On balance we think the Crown has it right by taking an initial starting point of 3½ years imprisonment. We then looked at the mitigation. You have your guilty plea, you have undoubtedly assisted the police and cooperated after the first interview, and you have given them for example the password at least to one of the computers in question. You have no previous convictions. We are very conscious of the background, and particularly when I referred earlier to inherent dangers of internet pornography and its addictive qualities, that you have developed that from the age of 9, and of course you have suffered other own pressures and indeed the background report describes you as having some less than desirable home experiences as a child. We understand that and we take it into account.
7. We are in no doubt at all that you are ashamed, and that you have a genuine remorse and we also think that is reflected by your immediate approaches in the prison seeking help from the psychologist and we urge you to continue with that during this custodial sentence that you are serving. That is going to be an important part of your rehabilitation.
8. We have also taken into account the references which you have put together and some wonderfully supportive letters that you have had from your family, and that will be, we all hope, of great significance to you as you serve your sentence because you know that both during it and afterward you are going to be fortunate because you have people who will be there for you and who recognise the undoubtedly good qualities that you have as well.
9. We are going to impose a prison sentence. We think the Crown has got it right in its conclusions. We are going to sentence you to a total of 2 years' imprisonment which will broken down as set out in the Crown's conclusions which is to say 1 year's imprisonment on Count 1, 2 years' imprisonment on Count 2 and 6 months' imprisonment on Count 3, and all those are to run concurrently making a total of 2 years' imprisonment and the time you have served already will of course go towards that ultimate sentence.
10. I want to say to you that you are still a young man and although your counsel said that this was going to blight your career for ever it does not have to be that way. You can look forward, with all the support you have and with the work you need to do with the psychologist, you can look forward to some constructive future and your spirits should stay up in that respect.
11. As a result of your offending you are subject to the notifications requirements under Article 3(1) of the Sex Offenders (Jersey) Law 2010 and we order that you cannot make an application to be released from the notification requirements for 5 years from today.
12. The Crown also has suggested, and your counsel has not objected to the imposition of a restraining order. The restraining order is in these terms:
"1. That you be prohibited from owning or having in your possession or having access to any device capable of accessing the internet unless;
i. It has the capacity to retain and display the history of internet use.
ii. The Defendant ensures that such history is not deleted; and
iii. That you register the device with the Offender Management Unit of the States of Jersey Police.
These restrictions will not apply to internet access which is required by you in the course of your employment in the future.
2. You are prohibited from refusing access to police officers who are monitoring or checking on your compliance with restraining orders, and you must allow officers entry to any premises you occupies or you are in control of for the purposes of searching for relevant devices."
That restrictive order again runs for a period of 5 years from today and so it will continue to run after your release from custody.
13. We order the forfeiture and destruction of the devices which are listed in the Crown's summary.
14. 2 years' imprisonment.
Authorities
Protection of Children (Jersey) Law, 1994.
AG v Godson and Crowley [2013] (2) JLR 1.
Sex Offenders (Jersey) Law 2010.