Jersey Unreported Judgments

Inferior Number Sentencing - indecent photographs

[2021]JRC073

Royal Court

(Samedi)

12 March 2021

Before     :

A.J. Olsen, Esq., Lieutenant Bailiff, and Jurats Dulake and Austin-Vautier

The Attorney General

-v-

Ian Martyn Le Gallais

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

3 counts of:

Making indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law, 1994 (Counts 1 to 3).

Age:  53.

Plea: Guilty. 

Details of Offence:

On 31^st December, 2019, police officers executed a search warrant at the defendant's house.  Numerous electronic devices were seized and submitted to Hi Tech Crime for examination.  A total of 893 indecent images of children were found on two of the defendant's devices (an iPhone 8 and a Dell Vostro tower computer).  333 of those images were category A.  78 images were moving.  The images were made between February 2015 and December 2019.  A large proportion of the images were from a mobile phone backup which were transferred on 9^th February, 2015.  The images are categorised as follows:

 

Category	Still Pictures	Movies	Totals
A	277	56	333
B	314	22	336
C	224	0	224
Total	815	78	893

Details of Mitigation:

Guilty plea, good character.

Previous Convictions:

No relevant previous convictions.

Conclusions: 

Count 1:	3 years' imprisonment.
Count 2:	18 months' imprisonment, concurrent.
Count 3:	4 months' imprisonment, concurrent.

Total:  3 years' imprisonment.

Order sought for the forfeiture and destruction of the iPhone 8 and Dell Tower Computer.

Order sought for the Defendant to be subject to the notifications under the Sex Offenders (Jersey) Law 2010 for a period of 7 years before which he may seek to have the notification requirements disapplied.

Order sought for the following restrictive orders to be made for a period of 10 years.

1.      That the Defendant be prohibited from:

a)         Living in the same household as any person under the age of 16 unless with the express approval of the Offender Management Unit of the States of Jersey Police;

b)         Contacting or attempting to contact, via any form of social media, internet or telecommunications system, any child he knows or believes to be under 16, unless there is a parent, guardian or responsible adult present who is 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;

c)         Being alone with any child under the age of 16 years, aside from such contact which is inadvertent or unavoidable. They will be considered to be alone if there is not a parent, guardian or responsible adult present who is 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.

2.      That in circumstances where the Defendant 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;

3. That the Defendant be prohibited from:

a)         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.

b)         Utilising any 'cloud' or similar remote storage media unless you declare such use (provides account details) to the police managing team in the area in which you reside and provides access to it on request for inspection by a member of the police managing team.

c)         Possessing any device capable of storing digital images unless you make it available on request for inspection by a police officer or a member of the police managing team which shall include removal of the device in order to facilitate the inspection.

d)         Installing and/or using any electronic peer-to-peer file sharing program or website.

e)         Using software or hardware to encrypt or otherwise hide his IP address.

Sentence and Observations of Court:

Count 1:	2 years and 6 months' imprisonment.
Count 2:	18 months' imprisonment, concurrent.
Count 3:	4 months' imprisonment, concurrent.

Total:  2 years and 6 months' imprisonment.

Forfeiture and destruction of the Dell computer and iPhone 8 ordered.

No order of costs.

Order made for the defendant to be subject to the notifications under the Sex Offenders (Jersey) Law 2010 for a period of 7 years before which he may seek to have the notification requirements disapplied.

The following restrictive orders were made for a period of 10 years.

1.      That the Defendant be prohibited from:

a) Living in the same household as any person under the age of 16 unless with the express approval of the Offender Management Unit of the States of Jersey Police;

b) Contacting or attempting to contact, via any form of social media, internet or telecommunications system, any child he knows or believes to be under 16, unless there is a parent, guardian or responsible adult present who is over the age of 21, who is aware of the Defendant's convictions, and who does not have a conviction which would render him/her liable to notification under the Sex Offenders (Jersey) Law 2010;

c) Being alone with any child under the age of 16 years, aside from such contact which is inadvertent or unavoidable. They will be considered to be alone if there is not a parent, guardian or responsible adult present who is over the age of 21, who is aware of the Defendant's convictions, and who does not have a conviction which would render him/her liable to notification under the Sex Offenders (Jersey) Law 2010.

2.      That in circumstances where the Defendant 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;

3.      That the Defendant be prohibited from:

a) 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.

b) Utilising any 'cloud' or similar remote storage media unless you declare such use (provides account details) to the Offender Management Unit in the area in which you reside and provides access to it on request for inspection by a member of the Offender Management Unit.

c) Possessing any device capable of storing digital images unless you make it available on request for inspection by a police officer or a member of the Offender Management Unit which shall include removal of the device in order to facilitate the inspection.

d) Installing and/or using any electronic peer-to-peer file sharing program or website.

e) Using software or hardware to encrypt or otherwise hide his IP address.

4. 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

Ms E. L. Hollywood, Crown Advocate.

Advocate J. C. Gollop for the Defendant.

JUDGMENT

THE Lieutenant Bailiff:

1.        Over a period of some 5 years the defendant made nearly 900 indecent images of children.  More than a third of these images were of the most serious category, which category can include penetrative sexual activity, sexual activity with an animal, or sadism.  56 of these Category A movies were moving images.  During the time he was making these images the defendant was frequently participating in conversations with like-minded individuals, in which he described himself as a "secret pervert".  He discussed in detail the abuse he said he would like to inflict on children and babies.

2.        The defendant discussed fantasies about contact offending.  He communicated online with several users who told him that they were under 16.  In some conversations the defendant talked about his nephews and children he had seen locally.  There are more than 40 Skype conversations in which the defendant shows a keen interest in young children.  In one chat the defendant discussed meeting up with another like-minded person so they could discuss how they would "fuck kids".

3.        Mr Gollop has in a powerful address to us has urged us that no contact offending has taken place.  We accept that.  He put this to us in the context of role playing and we accept that as well.  Nevertheless, these fairly salacious conversations did take place. 

4.        The Crown submits that the remarks made by the defendant in his conversations show that he is well versed and at risk of sharing indecent images, and whilst I say these conversations have not led to any charges, the Crown submits that they are relevant to sentencing as they show a sustained sexual interest in children and willingness to discuss contact offences with like-minded individuals, and we unhesitatingly accept those submissions. 

5.        It has been said on many occasions in this Court and other courts that the offences of making illicit images of children are not victimless crimes.  Indeed, so often has this been said that, in our judgment, there is a danger that such an observation risks becoming trite.  These defenceless children are not actors or actresses; they are not paid participants in pornographic films; they have not consented to the appalling and sickening things that have been done to them.  Indeed, they are incapable of consenting to that; some of them are babies. 

6.        The Crown at divider 11 of its bundle has helpfully included the descriptions of nine sample pictures randomly selected from the nearly 900 images that the defendant made.  We considered quoting some of these descriptions, but have for various reasons in the end decided not to do so.  Suffice it to say, that the degradations and unspeakably vile acts to which these poor children were subjected are deeply shocking.  Not only shocking, but also saddening, for surely the lives of the vast majority of these helpless young victims will never be the same again.  Let there be no doubt about this at all, images such as these, most particularly those in Category A, are depictions of appalling sexual crimes against defenceless children, and that is the evil of this offence.

7.        We have had regard to AG v Godson v Crowley [2013] JRC 091 in which the Superior Number laid down sentencing guidelines for cases of this nature.  We note that this defendant is an adult, he has no relevant previous convictions, the number of images is large and there is some evidence that the images may not have been made for his benefit alone, though as has been urged upon us he is not charged with and is not to be punished for distributing any images.  There is of course also a guilty plea.

8.        We also note that the images are made over a period of some five years and we elect to follow AG v Nursaw [2019] JRC 204.  We regard the fact that there was a total of 78 moving pictures in Categories A and B as an aggravating feature.

9.        Advocate Gollop has not sought to advance any mitigation in regard to the offending itself and we think he was right to do so, but the defendant is entitled to credit for his guilty plea and in addition we take into account that his record is such that we are able to treat him as a man of previously good character.  We have also carefully considered the thorough and excellent Social Enquiry Report and were pleased to read that the defendant is expressing, "optimism, determination and motivation for positive change in his life".  That is at paragraph 27 of the report.

10.      We have also considered the psychological report of Dr Briggs, which was as thorough and helpful as ever, and have taken particular note of those parts of the report to which Advocate Gollop has drawn our attention this morning.  We note that Dr Briggs is of the opinion that the defendant is motivated to change.

11.      We have read the many letters of reference and support that have been provided to us by counsel and consider the defendant to be very fortunate to have retained the support of his friends and family.  We have also read Mr Le Gallais' long letter of remorse and have listened carefully to everything that Advocate Gollop has so eloquently put us.

12.      As a result of his conviction, the defendant became subject to notification under the Sex Offenders (Jersey) Law 2010.  As to the period of the notification requirements the Court orders that a period of 7 years from today's date is appropriate before which he may seek to have the notification requirements disapplied.

13.      We also make a restrictive order of 10 years' duration under Article 10(4) of the Sex Offenders (Jersey) Law 2010 in the following terms.

(i)        Firstly, the defendant be prohibited from:

(a)       Living in the same household as any person under the age of 16, unless with express approval of the Offender Management Unit of the States of Jersey Police ("the Offender Management Unit").

(b)       Contacting or attempting to contact via any form of social media, internet or telecommunications system, any child who is under 16, unless there is a parent, guardian or responsible adult present who is over the age of 21, who is aware of the accused convictions and who does not have a conviction which would render him/her her liable to notification under the Sex Offenders (Jersey) Law 2010.

(c)       Being alone with any child under the age of 16 years, aside from such contact which is inadvertent or unavoidable.  They will be considered to be alone if there is not a parent, guardian or responsible adult present who is 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.

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

(iii)      That the defendant be prohibited from:

(a)       Owning or having in his possession or having access to any device capable of accessing the internet unless:

(1)       It has the capacity to retain and display the history of internet use;

(2)       The defendant ensures that such history is not deleted; and

(3)       That he registers the device with the Offender Management Unit.

(b)       Utilising any 'cloud' or similar remote storage media unless the defendant declares such use to the Offender Management Unit and provides access to it on request for inspection by a member of the Offender Management Unit.

(c)       Possessing any device capable of storing digital images unless the defendant makes it available on request for inspection by a police officer or a member of the Offender Management Unit which shall include removal of the device in order to facilitate the inspection;

(d)       Installing and/or using any electronic peer-to-peer file sharing program or website; and

(e)       Using software or hardware to encrypt or otherwise hide his IP address.

(iv)      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 premise he occupies or is in control of for the purposes of searching for relevant devices.

14.      The sentences of the Court are as follows: on Count 1, 2 years and 6 months; Count 2, 18 months concurrent; Count 3, 4 months concurrent, thus making a total of 2½ years imprisonment in all. 

15.      We also order the forfeiture and destruction of the Dell Vostro Tower computer and the black Apple iPhone 8. 

16.      There will be no order for costs.  We consider that in a case of this nature, where the defendant has pleaded guilty and cooperated to some degree with the police, such is inappropriate. 

17.      Counsel has drawn our attention to two cases in which this matter has been raised previously.  The first is that of AG v Salsac [2017] JRC 125 where Sir William Bailhache said this at paragraph 9:

"12.    There will be no order for costs.  We are not satisfied that there is anything in the conduct of the defendant to justify the order for costs which is proposed and it will, as was said in the case to which Advocate Gollop referred us, it will require considerably more argument on behalf of the Crown to justify such an application in the future."

18.      In the case of AG v Stewart [2016] JRC 084A the then Deputy Bailiff said:

"9.      We do not make an order for costs.  In our view if it is the policy that costs are sought in cases of this nature then we would ask the Crown to find a suitable case and argue the matter fully before us on an appropriate occasion."

We would like to echo that.  We suggest, Advocate Hollywood, that if the Crown can find a suitable case and fix half a day to hear argument about it, that would be very helpful.

Authorities

AG v Godson v Crowley [2013] JRC 091

AG v Nursaw [2019] JRC 204

Sex Offenders (Jersey) Law 2010

AG v Stewart [2016] JRC 084A

AG v Salsac [2017] JRC 125

Costs in Criminal Cases (Jersey) Law 1961

Protection of Children (Jersey) Law 1994. 

AG v Luce [2016] JRC 125. 

AG v Nursaw [2019] (2) JLR Note 5. 

AG v Matthews [2020] JRC 186A

R v Smith and Ors [2012] 1 Cr App R (S) 82