Jersey Unreported Judgments

Inferior Number Sentencing - indecent photographs - sexual grooming - telecommunications.

[2019]JRC236

Royal Court

(Samedi)

9 December 2019

Before     :

Sir Michael Birt, Commissioner, and Jurats Olsen and Ronge.

The Attorney General

-v-

Christiano Jose Neto Sousa

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

1 count of:	Making indecent photographs of children, contrary to Article 2(1) (a) of the Protection of Children (Jersey) Law 1994 (Count 1).
1 count of:	Attempting to meet a child following sexual grooming (Count 2).
1 count of:	Improper use of telecommunications system (Count 3).

Age:  28.

Plea: Guilty. 

Details of Offence:

The defendant and the victim, a 14-year-old female, met through a family gathering.  Between 22^nd February and 14^th June, 2018, the victim communicated with the defendant using social media applications including Facebook Messenger and Snapchat. 

Over the course of their communication, the defendant said that he wanted to be in a relationship with the victim, and that they would have to be careful as he would get into trouble if others were to find out.  Arrangements were made for the defendant to meet the victim but these meetings never took place (Count 2).  She expressed her reluctance throughout and when that did not work he adopted a coercive approach.  

The victim had sent photographs of herself via Facebook to a named individual.  The defendant told the victim that he had seen the images the victim had sent the Individual and promised to get these deleted in exchange for sexual contact.  

The defendant suggested that she lose her virginity to him, and sent four images of female genitalia to the victim (Count 3).  Referring to these images, the defendant claimed that he had performed sexual acts on females with their consent, and also sent images of a sex toy and a cartoon of a penis. 

During the investigation 55 indecent images of children were recovered, mostly classified at Level 1 but included two videos at Level 4 (Count 1).  These images were saved, viewed and deleted during the same period as Counts 2 and 3, and had been stored within a privacy protection application called 'GalleryVault.'  The Defendant pleaded not guilty on Count 1 and was convicted after trial. 

 

Aggravating Features

The indecent images were downloaded at the same time as the defendant was grooming a 14-year-old child, he had one previous conviction for common assault on a female (convicted 20^th December, 2016), and has a propensity to commit offences against both juvenile and adult females.  He pressured the victim into engaging in sexual activity with him, expressed no remorse, remains in denial as to the images and his sexual interest in young girls. 

Details of Mitigation:

Benefit of early guilty pleas for Counts 2 and 3.  No credit for Count 1 as the defendant was found guilty after trial.  No other mitigating features. 

Previous Convictions:

One previous conviction on 20^th December, 2019 for common assault on an adult female. 

Conclusions:

Count 1:	Starting point 3 years' imprisonment.
Count 2:	Starting point 4 years' imprisonment.  3 years' imprisonment, concurrent.
Count 3:	Starting point nine months' imprisonment.  6 months' imprisonment, concurrent.

Total:  3 years' imprisonment.

Order sought pursuant to the Sex Offenders (Jersey) Law 2010, that the defendant be placed on the Sex Offenders' Register for period of 6 years before which he may seek to have the notification requirements dis-applied to commence from date of sentence. 

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

1.     That the defendant be prohibited from being alone with any female under the age of 16 unless an appropriate adult is also present, save for any contact which is inadvertent and not reasonably avoidable in the course of lawful daily life.  An appropriate adult would be a person over the age of 21 who is fully aware of the Offender's convictions, and who has no convictions themselves which would render them liable to be placed on the Sex Offender Register;

2.   That the defendant be prohibited from having any contact or attempting to have any contact, directly or indirectly by any means with any female child he knows or suspects to be under the age of 16 years, other than such contact as is inadvertent and not reasonably avoidable in the course of lawful daily life.  This to include contact via any form of social media, internet or telecommunications system;

3.   That the defendant shall notify the Offender Management Unit of all devices he owns, or to which he has access, which are able to access the internet or to store electronic data. 

4.      That the defendant be prohibited from using any device that can access the internet unless:

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

(b)        he makes the device available on request for inspection by a police officer, and provides any relevant passwords, and

(c)        he ensures his history of use is recorded and takes no actions to delete, disguise or destroy such history.

5.      That in circumstances where the defendant finds himself alone with a female he knows or suspects to be under the age of 16, or finds that he is in contact with a female he knows or suspects to be under the age of 16, the Offender has a positive duty to remove himself from that situation as soon as reasonably possible.

6.      Not to refuse access to police officers who are monitoring or checking his compliance with the restraining and notification orders.

Recommendation for Deportation sought. 

Forfeiture and destruction of the defendant's mobile phone sought. 

Sentence and Observations of Court:

Conclusions granted. 

Recommendation for Deportation Order made. 

Forfeiture and destruction of the defendant's mobile phone ordered. 

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

Advocate C. G. Hillier for the Defendant.

JUDGMENT

THE commissioner:

1.        Having met the victim, who was 14, through a family gathering, you started exchanging messages with her.  These were soon of a sexual nature, in which you were clearly trying to persuade her to meet you.  When these were unsuccessful you effectively began to blackmail her.  She had sent photographs of herself via Facebook to someone whom we shall refer to as 'the Individual'.  You told her, that you would contact the Individual and ask him to delete the images.  

2.        That provoked the following exchange of messages:  She replied, "OMG I love you so much if it was not for you wtf, I love you as a friend yah".  You replied, "But you owe me one".  She replied, "What do you want in exchange?"  You replied, "A fuck".  She replied, "Seriously?"  You replied, "Yes.  Why not."  She replied, "Because I haven't lost my virginity yet" to which you replied, "you can lose it with me".  Your objective was perfectly apparent from that exchange. 

3.        Further messages took place with you continuing to press for a meeting and the victim being reluctant.  These further exchanges which the Crown Advocate has referred us to, show that you were making it clear that the Individual would only delete the images if you asked him to.  And you would only ask him to if the victim met with you.  The victim, quite correctly said, "you are blackmailing me", in one of her messages to you. 

4.        It is also clear that this was having quite an effect on her not surprisingly.  One of her messages to you said this, "Blood hell, you will never understand how I am feeling.  Imagine if you had a daughter and something like this happened to her, I will never forgive myself for this.  I will never be the same again.  I am going to ruin my life because of a mistake." 

5.        We should add that the Crown believes that the Individual does not exist and that it was you by another name.  However, your advocate has made clear that you deny that and that the Individual does exist.  In those circumstances we proceed on your version of events, but it does not really assist you. 

6.        The aggravating feature of your conduct was that you were pressurising the victim by saying that you would only ask the Individual to delete the images if she would comply with your request to meet her.  Therefore, whether the Individual was genuinely holding these images or not is beside the point. 

7.        As to Count 3, this involved you sending the victim four images of pierced female genitalia.

8.        In relation to Count 1, following your arrest 55 indecent images of children were found on your telephone.  Most are at Level 1 on the COPINE Scale, but two videos were at Level 4.  Level 4 involves penetrative sex between an adult and a child.  You pleaded not guilty on the basis that these had been sent to you and had been saved to your telephone without any action on your part, but the Court did not accept this at your trial. 

9.        As the Court has said on many occasions, the gravamen of possession of indecent images of children is that real children have been subject to what is shown in the images, and those like you who download such images fuel the market and support the fact that this happens to real children. 

10.      In mitigation Advocate Hillier has emphasised that you pleaded guilty to Counts 2 and 3 and we give you credit for that.  He has also emphasised the very traumatic upbringing which you had in Madeira.  We have read that and it was indeed a difficult start in life for you.  He has also referred us to the Psychiatric Report, which contains a possible diagnosis of ADHD, and the psychiatrist has emphasised that this can sometimes lead to people engaging in risky sexual practises due to problems with impulsivity.  The psychiatrist has also pointed out that treatment of your ADHD symptoms may lessen impulsivity thereby reducing the likelihood of further offending in future.  We do urge that you take advantage of the treatment which will be available in prison. 

11.      We must consider first the fact that you are now on the register of Sexual Offenders.  The Crown have moved for a period of 6 years before you can apply to come off that register and we agree with that.

12.      Similarly, the Crown has moved for a number of restraining orders for a period of 10 years.  Your advocate has not opposed those.  We agree that you pose a rise of serious sexual harm and that the criteria for such orders are met.  We agree that the orders sought are proportionate and reasonable and we grant them for 10 years.  

13.      That leaves next the question of the sentence.  We are of the opinion that the offending in Count 2 in this case is more serious than in the three cases to which we have been referred namely, AG v W [2016] JRC 235, AG v Facchino [2018] JRC 186 and AG v De Freitas [2019 JRC 197.  

14.      Having regard to the totality principle we think that the 3 years moved for by the Crown is correct and indeed, given not only the indecent images of children offending, but the fact that you committed the offence of attempting to meet a child after grooming at the same time, the conclusions could have been higher. 

15.      In the circumstances we grant the conclusions, so stand up please.

16.      On Count 1, 3 years' imprisonment.  On Count 2, 3 years' imprisonment, concurrent and on Count 3, 6 months' imprisonment, concurrent, making 3 years' in all.  Sit down again.

17.      We must consider next the question of deportation.  In accordance with the well-known test in Camacho v AG [2007] JLR 462, we must consider first whether your continued presence in the Island would be detrimental to the public good. 

18.      Given the seriousness of the offending in this case, the fact that you are at moderate risk of re-offending and the fact that you committed an assault on a female within about a year of your arrival in Jersey we have no hesitation in concluding that this first limb of the test is satisfied. 

19.      We turn next therefore to consider your Article 6 rights under the ECHR and whether it would be proportionate to recommend deportation.  On that, we note that you have only been here since November 2015 when you were just short of the age of 25, having spent all your life until then in Madeira.  You have a total of 6 siblings or half-siblings of whom two are here in Jersey but four remain in Madeira.  You have no dependants in the form of children or a spouse or partner. 

20.      Balancing the interests of the community, having regard to the gravity of your offending, with your rights under Article 8, we have no doubt that the balance comes down in favour of the interests of the community and that it is proportionate to recommend your deportation.  We therefore make such a recommendation. 

21.      Finally, we order the forfeiture and destruction of the telephone, making it clear that this is simply the defendant's telephone.  Obviously if there are other pieces of equipment belonging to other members of the family they should be returned. 

Authorities

Protection of Children (Jersey) Law 1994

Telecommunications (Jersey) Law 2002

Sexual Offence (Jersey) Law 2010

Criminal Offences (Jersey) Law 2009

AG v W [2016] JRC 235

AG v Facchino [2018] JRC 186

AG v De Freitas [2019] JRC 197

AG v Godson and Crawley [2013] JRC 091

Camacho v Attorney General [2007] JLR 462

Sentencing Council Guidelines of England and Wales - Meeting a child following sexual grooming