Jersey Unreported Judgments

Superior Number Sentencing - indecent photographs

[2021]JRC218

Royal Court

(Samedi)

23 August 2021

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Blampied, Thomas and Ronge

The Attorney General

-v-

James John Matthews

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 2^nd July, 2021, 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, 2, and 3).
2 counts of:	Distributing indecent photographs of children, contrary to Article 2(1)(c) of the Protection of Children (Jersey) Law, 1994 (Count 4 and Count 5).

Age:  43. 

Plea: Guilty. 

Details of Offence:

On 18^th September 2020, the defendant, who, prior to his arrest, was the Acting Head Teacher at a local primary school, was sentenced to a total of 2 years and 9 months' imprisonment for making 33 indecent images of children ("IIOC") and sending messages that were of an indecent and obscene nature.  Two days prior to the sentencing hearing, a laptop and a Time Capsule were found in the family home by the defendant's then wife and were seized by police and submitted for forensic examination.  The examination was not complete until December 2020 as the computer had to be sent to a specialist in England.  The examination revealed that the defendant had made a further 172 IIOC across the Categories and had distributed IIOC in Categories A and C.

 

Counts 1 to 3

 

The following additional unique IIOC were recovered from both devices:

 

Category	Still images	Moving images	Total
A	82	4	86
B	46	5	51
C	35	0	35
Total	163	9	172

 

On the laptop, some images were located in the Skype messaging application, media files and other from deleted areas of the hard disk.  One movie file was located in the media player software and the rest were recovered from the deleted areas of the hard disk.  On the Time Capsule, all images were located in the deleted areas of the hard disk.

 

Counts 4 and 5

 

Analysis of the Skype records showed that the defendant had distributed a number of IIOC to three addresses between November 2014 and January 2015, on six separate occasions.  Five images were Category A and one was Category C.  All were still images, distributed via Skype, through an account in the name of Paul Andrews (the same name as associated with the defendant's previous convictions from September 2020).  These are files where the content is known.  There are further examples of distributed files, which had names which indicate indecent content, that have not been recovered.

 

The defendant provided a 'no comment' interview in relation to these further offences.

Details of Mitigation:

Guilty plea.

Previous Convictions:

The defendant has three previous convictions from 2020 for making indecent images of children under the age of 16 and one conviction for sending a message of an indecent and obscene nature.  The Crown's conclusions took account of the sentence that would have been moved for if all the offending had been known at the previous hearing.

Conclusions:

Count 1:	21 months' imprisonment.
Count 2:	21 months' imprisonment, concurrent.
Count 3:	21 months' imprisonment, concurrent.
Count 4:	21 months' imprisonment, concurrent.
Count 5:	21 months' imprisonment, concurrent.

Total:  21 months' imprisonment, sentence to commence after current sentence imposed in 2020 expires, making a total sentence of 3½ years' imprisonment for the indecent images offences

That the existing Restrictive Orders and Notification Orders be extended by 3 years, to 10 years dating from 18^th September, 2020. 

Forfeiture and destruction of the devices sought.

Sentence and Observations of Court:

Count 1:	11 months' imprisonment.
Count 2:	11 months' imprisonment, concurrent.
Count 3:	11 months' imprisonment, concurrent.
Count 4:	11 months' imprisonment, concurrent.
Count 5:	11 months' imprisonment, concurrent.

Total:  11 months' imprisonment, sentence to commence after current sentence imposed in 2020 expires, making a total sentence of 2 years and 8 months' imprisonment for the indecent images offences.

Restrictive Orders and Notification Orders extended by 3 years to a total of 10 years from 18^th September 2020.

Forfeiture and destruction of the devices ordered. 

C. R. Baglin Esq., Crown Advocate.

Advocate D. S. Steenson for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        James Matthews, you appeared before this Court on 18^th September, 2020, and were sentenced to 21 months' imprisonment concurrent, in relation to three offences of making indecent photographs of children, and 12 months' imprisonment consecutive for improper use of a telecommunications system - the latter offence arising from your sending a photograph of a young child to another person accompanied by a grossly indecent message.  I do not propose to repeat the circumstances of those offences or the reasons for the sentence imposed on that day as they are set out in detail in the Court's published judgment (AG v Matthews [2020] JRC 186A).

2.        You appear before the Court again today, notwithstanding the fact that you are still serving the sentence imposed by the Court on 18^th September, 2020, owing to further offences that have come to light of a similar nature arising from the discovery by your ex-wife of two further electronic devices at your home on 16^th September, 2020 just two days before your sentencing.  The Court and the defence should have been told of the discovery of those devices but were not told at the time.  Although regrettable, we do not think that this matter affects the sentence which we ought to impose today. 

3.        You now face a further Indictment containing five counts to which you pleaded guilty arising from the discovery of a large number of indecent images of children on the two devices discovered on 16^th September, 2020, a MacBook Pro laptop found in a toy box in a spare bedroom and a Time Capsule hard drive. 

4.        In total a substantial additional number of indecent images were found on these two devices.  172 images, of which 48% were in the most serious Category A, comprising 82 still images and 4 moving images, a total of 86 in Category A.  There were a great many duplicates of these images, but the number of images we have referred to relate only to unique images.  Further analysis of the Skype communication records yielded by the devices show that you distributed indecent images of children to three other identified email addresses in 2014 and 2015.  One of the users was called "Pedoguy333".  Six images were shared with these three other users, five in Category A and one in Category C.  These images included an adult male erect penis penetrating a female child under the age of 5, and a naked female child under the age of 5 with a plastic bag tied over her head and the words rape written on her stomach.  These images were distributed by you to other persons with a similar interest in viewing abusive images of very young children for their sexual gratification.  Further there was evidence on your computer of a substantial number of online conversations with other paedophiles regarding you and their mutual interest in young children.  In at least one of these conversations you identify yourself as a school teacher to another registered sex offender and discussed taking underwear from children's lockers.  We note there was a conversation discovered by the police in which you described yourself as a "36 [year old] bi-male paedo" when you were communicating with a user who claimed to be a 13 year old boy.

5.        None of this information was known to the Court in September last year when you were sentenced.  Further, you did not volunteer the existence of these devices or their passwords to the police and answered "no comment" to the questions you were asked in interview in connection with these offences. 

6.        The Crown has compared the material before the Court in September 2020 with the material before the Court today, having regard to the factors in AG v Godson and Crowley [2013] JRC 091 and set out in the Crown's conclusions.  Some of those considerations have significantly altered.  The Court is no longer dealing with a small number of images.  The Court is dealing with 205 images in total.  The Court is no longer dealing with images obtained for your benefit only, as you shared a number of images to identified persons by distributing the same.  Further, the period of offending, or at least clear evidence of a sexual interest in children, now extends to approximately a decade on the evidence available.  Finally, in addition to other matters which I mentioned at the outset the proportion of Category A images that the Court is dealing with today has gone up from 13 images representing 39% of the total to 99 representing 48% of the total. 

7.        We accept that there were a number of aggravating features which were accordingly present in the material available to the Court today which the Court was not aware of in September last year.  Principally, the number of images and their distribution but also the associated circumstances to which we have referred. 

8.        Further, whilst Counts 4 and 5 relate to the sending of Category A material to three specific individuals, or individual users, there were records of images and movie files being sent to other users where the contents have not been retrieved but the titles of the files and the contents of the conversation have been identified and it is clear to the Court that those exchanges involved the distribution of illegal images to other users.  You were willing to exchange material of the most extreme nature with other correspondents.

9.        You told the Probation Officer that you had forgotten the existence of these devices when you were interviewed by the police, but owing to the number and the content of the images we take the view that that is an explanation that we are entitled to reject.  We note that the persons with whom you were having such conversations included two registered sex offenders within the Island.

10.      The task for the Court today on sentence was described by the Court of Appeal in England and Wales in the case of R v AF [2009] EWCA Crim 1428 as follows at paragraph 16 of the judgment

"The traditional approach, as we understand it, is to estimate what total sentence would have been appropriate had all matters been dealt with together and then adjusting that figure, to make allowance for the earlier sentence...  Precisely what allowance should be made, in these circumstances, depends very much on the facts of the particular case."

11.      We think having regard to your guilty plea and all that has been said on your behalf that the total sentence for the indecent images counts on the Indictment would have been 32 months' imprisonment and not the 21 months that was imposed.  We have identified the appropriate starting point for those offences, the five counts on this Indictment, as 4 years' imprisonment, not the 3 years identified by the Court last year on the information then before it.  We agree that the sentence of 12 months for the communications offence would have, in any event, been a consecutive sentence of 12 months' which of course the Court imposed last year. 

12.      Accordingly, we impose today an additional sentence 11 months' imprisonment, to be served at the conclusion of the sentence imposed by the Court last year.  We find that the total appropriate sentence that the Court would have imposed in September 2020, had the Court known of all the facts in this case would have been 3 years and 8 months' imprisonment and not the sentence imposed on that occasion. 

13.      As to the restriction orders and notification orders we agree with the Crown that the appropriate duration of those orders is 10 years, on the same terms as before but to run from 18^th September 2020 when you were sentenced.

14.      We make a destruction and forfeiture order in relation to the devices. 

15.      We order the release of the updated reports from the Probation Service and Dr Emsley to the prison authorities.

Authorities

AG v Matthews [2020] JRC 186A. 

AG v Godson and Crowley [2013] JRC 091. 

R v AF [2009] EWCA Crim 1428. 

AG v Le Gros [2020] JRC 204.

AG v Bacon [2019] JRC 201