Jersey Unreported Judgments

Inferior Number Sentencing - Indecent Images of Children

[2021]JRC181

Royal Court

(Samedi)

25 June 2021

Before     :

R. M. MacRae, Esq., Deputy Bailiff, and Jurats Crill and Hughes

The Attorney General

-v-

John Henry De Bourgonniere

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 1-3).
3 counts of:	Making indecent pseudo-photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law, 1994 (Counts 4-6).

Age:  74. 

Plea: Guilty. 

Details of Offence:

On 6^th August 2020, the defendant's flat was searched, and 27 electronic devices were seized by the police officers in attendance.  The defendant was arrested and taken to police headquarters for interview. The defendant's response to the caution upon arrest was, "I had a Polish guy who stayed with me and I gave him my Google password and then I got locked out. He doesn't live here anymore".  The comment was noted in an attending Officer's notebook and signed as correct by the defendant.

 

Of the defendant's devices that were seized and examined it was revealed that the following 9 devices contained indecent images of children ("IIOC"):

i.       iPad

ii.      Five USB pen drives

iii.      Buffalo external hard drive

iv.      iMac Computer

v.       iPad Pro

 

In total 3,847 indecent images of children were found on the defendant's devices.  Among the thousands of images were 2 Category A still images and 4 Category A still pseudo-images, Category A being the most serious.  The 4 Category A pseudo-images were all made with the same Category A indecent image of a child altered in different ways.

 

A total of 609 pseudo-images were made by the defendant using photographs of a young girl.  The defendant deliberately constructed new images superimposing the child's face onto numerous IIOC and adult pornography, to give the appearance that it was the young girl that had been photographed.

 

The Police investigation established that the young girl was a local child believed to have been aged between 10 and 13 in the indecent images made by the defendant.

 

The child and her mother were known to the Defendant, due to circumstance, between 2015 and 2017.  The defendant had made a Friend request to the mother on social media.  Then, having access to the photographs on her Facebook pages, he was able to construct the hundreds of indecent pseudo images of the child as well as superimposing the mother's face onto adult pornography.  He also put his own face into photographs with the mother, giving the impression they were a couple.

 

The forensic investigation also revealed two covert "up-skirting" videos, one of the child and one of the mother, as well as numerous still pictures and videos of local women, filmed covertly, focusing on their backsides and crotches.

 

On analysis, the iMac computer and Buffalo hard drive showed that the defendant had accessed websites and movie files, the titles of which were indicative of containing indecent images of children.  The search terms stored on the devices also suggest that the defendant was using search terms associated with indecent images of children.

Details of Mitigation:

Guilty pleas, some cooperation and taken to be of previous good character.

Previous Convictions:

Historic convictions for minor offences, no relevant previous convictions.

Conclusions:

Count 1:	2 years and 8 months' imprisonment.
Count 2:	15 months' imprisonment, concurrent.
Count 3:	9 months' imprisonment, concurrent.
Count 4:	2 years and 8 months' imprisonment, concurrent.
Count 5:	15 months' imprisonment, concurrent.
Count 6:	9 months' imprisonment, concurrent.

Total:  2 years and 8 months' imprisonment. 

Order sought under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 7 years should 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, to run from the date of sentence for a period of 10 years, under the Sex Offenders (Jersey) Law 2010.

1.      That the Defendant be prohibited from:

(a) Living in the same household as any child 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 child under the age of 16, or finds himself in contact with someone he knows or believes to be a child 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 is prohibited from having any contact, direct or indirect, with Miss X and Miss Y. Should the defendant come into contact with either of the persons named herein, he should take steps to avoid breaching this restrictive order.

4.      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 (providing account details) to the police managing team in the area in which you reside and provide 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) Using software or hardware to encrypt or otherwise hide his IP address.

5.      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 the following electronic devices sought:

i.       iPad- JC/06/08/20/03

ii.      Five USB pen drives- DG/06/08/20/02

iii.      Buffalo external hard drive- DG/06/08/20/08

iv.      iMac Computer- DG/06/08/20/11

v.       iPad Pro- CJM/06/08/20/02

vi.      SD cards- DG/06/08/20/06 (M3 and M4)

vii.     SD card contained within a Samsung Digital Camera- exhibit CJM/06/08/20/12

Sentence and Observations of Court:

Count 1:	2 years and 4 months' imprisonment.
Count 2:	16 months' imprisonment, concurrent.
Count 3:	12 months' imprisonment, concurrent.
Count 4:	2 years and 4 months' imprisonment, concurrent.
Count 5:	16 months' imprisonment, concurrent.
Count 6:	12 months' imprisonment, concurrent.

Total:  2 years and 4 months' imprisonment. 

Order made under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 7 years should 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 made, to run from the date of sentence for a period of 10 years, under the Sex Offenders (Jersey) Law 2010, in the terms sought by the Crown. 

Forfeiture and destruction of the following electronic devices ordered:

i.       iPad- JC/06/08/20/03

ii.      Five USB pen drives- DG/06/08/20/02

iii.      Buffalo external hard drive- DG/06/08/20/08

iv.      iMac Computer- DG/06/08/20/11

v.       iPad Pro- CJM/06/08/20/02

vi.      SD cards- DG/06/08/20/06 (M3 and M4)

vii.     SD card contained within a Samsung Digital Camera- exhibit CJM/06/08/20/12

C. R. Baglin Esq., Crown Advocate.

Advocate S. E. A. Dale for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        John De Bourgonniere you are 74 years old and you fall to be sentenced in relation to six offences to which you pleaded guilty.  Those constitute three offences of making indecent images of children under the age of 16.  Count 1 relates to two Category A indecent images; Count 2 relates to seven Category B indecent images and Count 3 to 3,229 Category C images.  Counts 4, 5 and 6 relate to your making indecent pseudo-photographs of children.  Count 4 relates to four Category A images; Count 5 to one Category B image and Count 6 to approximately 600 Category C indecent images.

2.        On 6^th August 2020 the police went to your flat at Grands Vaux and seized a number of electronic devices.  Fifteen were submitted for forensic examination and nine devices, including five pen drives, contained indecent images of children.  They included in total six images in the most serious Category A of which two were still images, (that is Count 1 of the Indictment) and four pseudo-images (Count 4.)  In respect of the pseudo-images of children the offences are substantially aggravated in your case by the fact that you constructed the images by imposing the face of a child you knew, living in Jersey, onto the pornographic images of the bodies of adults and children, largely children, (all the images at Count 4, the image at Count 5 and 90% of the images at Count 6) and you did this in order to give the appearance that it was the young girl who you knew in these indecent images. 

3.        The young girl is believed to have been aged between 10 and 13 at the time that these photographs were taken, and you had befriended her mother and indeed the child.  You had done so in the course of your employment where you had worked.  You befriended the mother and the child, and you later used photographs of both to create these pseudo images.  You appear to have taken the photographs of the mother and the child on special occasions.  We agree with the Crown that this was a breach of trust and indeed it is accepted on your behalf this was a breach of trust.  You were working with the mother and the child who were accommodated where you were working and they would be right to regard the use of your photographs taken in that context as a breach of the trust they placed in you and your employer would be appalled at this gross breach of the trust that they placed in you.

4.        Furthermore, you befriended the mother of the child on Facebook, between 2015 and 2017 and you used photographs of the mother and the child on the mother's Facebook page to construct indecent pseudo images of the child and at the same time superimposed the mother's face onto adult pornography you had downloaded. 

5.        The police investigation also revealed videos you had taken known as 'up skirting videos' of women and children including this mother and this child, and you would have been prosecuted for those offences too had not those events occurred prior to the law changing in 2018.

6.        The investigation showed that you had downloaded the material at Counts 1, 2 and 3 over the course of three years between September 2017 and July 2020, demonstrating a sustained sexual interest in children.  The total number of images identified by the police comes to 3,847.  The police forensic investigation showed that you had used the search terms associated with indecent images of children in order to locate those images.

7.        When the mother of the child was told last year about what you had done, she was very shocked and disturbed by the revelation and understandably so.  It is fortunate that the child knew and knows nothing about the photographs you took of her and the use to which you have put those photographs and the photographs you obtained from Facebook.

8.        When you were interviewed by the police you made no comment, but you did provide the police with passwords for your WIFI and online accounts.  In one of your interviews you did identify a third party who had access to your computer and passcodes and you at least appeared to be suggesting that he may have been responsible for some of your offending.  You pleaded guilty at the first opportunity and you receive substantial credit for that plea and those pleas of guilty. 

9.        We have read the Social Enquiry Report from the clinical psychologist Dr Briggs.  We note that you were a victim of sexual abuse as a child from a young age and it is said that your sexual misbehaviour may have its roots in your untreated experiences from when you were a child.  You have a good work record, but of course it is during your reasonably recent employment that you breached your employer's trust in the way that we have described.  You told the Probation Officer that you began to view child pornography 3 to 5 years ago.  You have admitted the offences and whilst you recognise your behaviour as inappropriate the Probation Officer did not detect a great deal of remorse and little victim empathy.  You are assessed at being at medium risk of reconviction. 

10.      Your Probation Officer supports the making of the restraining order sought by the Crown which we know you do not oppose, and we make the restraining orders sought by the Crown for the period of 10 years from today and the notification requirements sought by the Crown for the period of 7 years.

11.      We order the forfeiture and destruction of the devices that held the images subject to you being able to obtain various codes accessing other devices that are held on one of those devices. 

12.      We agree that Dr Briggs' report should be disclosed to the forensic psychology team within the States of Jersey prison in order that you be afforded the opportunity to commence and engage in work aimed at managing your risk prior to release. 

13.      We have considered the guideline case of AG v Godson and Crowley [2013] (2) JLR 1, this being, at Count 1 at Category 4 offence with an initial figure of 3 years' imprisonment, for the reasons set out in the Crown's conclusions.  We have had regard to the case of Godson which says that in relation to pseudo-images "the sentencing court may take the view that the custody threshold has not been passed" and the court said, referring to the Guernsey Court of Appeal from Wicks v Law Officers 2011-12 GLR 482 from which this is an extract, that that court was influenced "by the consideration that pseudo-images do not have the specific ingredient of the abuse or exploitation of children."  But it must be recognised and was recognised in that case that there may be cases where the pseudo-images are quite different.  This is such a case, as what Godson said about pseudo images has little application on these facts where the use is of an image of real child, living in Jersey, known to you, the child whose mother was befriended by you superimposed on an indecent image of a child, a child themselves who was abused.  It seems to us in those circumstances that there is little difference in seriousness between Counts 1 and 4 on the Indictment and the 3 year starting point on Count 1 is to be increased by the aggravating feature of the period over which the offence occurred.  It is accepted by your counsel that the starting point in those circumstances should be 3½ years' imprisonment, and we adopt that starting point.  In relation to Count 4, the offence and the starting point is aggravated by the superimposition of the image of a Jersey child onto the indecent image of another child and the breach of trust placed in you by the mother and your employer, and we find, as we have said, that you abused that trust.  We do not increase the starting point on Counts 1 and 4 by reference to the number of Category C images, but we do increase the starting point on Counts 4 and Count 6 accordingly. 

14.      In the circumstances, the starting point we adopt at Count 1 is 3½ years' imprisonment, at Count 2, 2 years' imprisonment, Count 3, 18 months' imprisonment, Count 4, 3½ years' imprisonment, Count 5, 2 years' imprisonment, and Count 6, 18 months' imprisonment. 

15.      Taking into account all the mitigation available to you and your plea, the sentences we impose are as follows.  On Count 1, 2 years and 4 months' imprisonment; Count 2, 16 months' imprisonment; Count 3, 12 months' imprisonment; Count 4, 2 years and 4 months' imprisonment; Count 5, 16 months' imprisonment; and Count 6, 12 months' imprisonment, all to run concurrent, making a total of 2 years and 4 months' imprisonment. 

Authorities

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

Wicks v Law Officers 2011-12 GLR 482. 

Protection of Children (Jersey) Law 1994. 

Sex Offenders (Jersey) Law 2010. 

AG v Matthews [2020] JRC 186A. 

Forno v AG [2011] JCA 022. 

National Police Chiefs Council Sentencing Levels