Jersey Unreported Judgments

Inferior Number Sentencing - indecent photographs - reasons for the sentence imposed

[2022]JRC152

Royal Court

(Samedi)

15 July 2022

The Attorney General

-v-

Dylan Little

Crown Advocate C. R. Baglin for the Attorney General

Advocate J-A Dix for the Defendant

JUDGMENT

THE BAILIFF:

1.        On 27^th May 2022, Dylan Little ("the Defendant") appeared before this Court to be sentenced for making 130 indecent still images of children including 10 in the most serious category (Category A).  The Defendant is 23 years of age. 

2.        There were three Counts on the indictment all of which dealt with the making of indecent photographs of children contrary to Article 2 (1)(a) of Protection Children (Jersey) Law 1994 between 3^rd January 2018 and 15^th September 2021.  The distinction between the three Counts is the category of images to which they relate, with Count 1 being the most serious, being 10 images in Category A; Count 2 being 11 images in Category B; and Count 3 relating to 109 images under Category C.

3.        We sentenced the Defendant on Count 1 to 12 months imprisonment on Count 2 to 8 months' imprisonment; and on Count 3 to 6 months imprisonment all concurrent making a total of 12 months imprisonment.  We said on that occasion that we would provide our reasons at a later date.  These are those reasons.

4.        At the hearing we also imposed restrictive orders as sought by the Crown for a period of 5 years and ordered that a similar period should pass before the Defendant would be entitled to apply for the requirements under the Sex Offenders (Jersey) Law 2010 to be lifted.  We also ordered the forfeiture and destruction of the electronic devices which contained the indecent material. 

5.        The offending came to light when the police received information that a Discord account associated with a certain email address had uploaded one Category A indecent image using a specific IP address that was linked to the Defendant's home address.  On 14^th September 2021 Police Officers executed a search warrant at the Defendant's home and various items were seized.  He was later interviewed and provided officers with details of his email accounts and confirmed that he had a Discord Account.  He said that he had a boyfriend on Discord who was a 19 year old male living in the USA and they had been in a relationship for approximately 12 months. 

6.        The Defendant subsequently requested to be interviewed again by Police on 16^th September 2021 and during the course of that interview he admitted that he had uploaded indecent images of children to Discord in July 2021 using a specific email address.  He had sent an image to a young female although he was unsure of her exact age but thought she was underage.  He further disclosed that he had downloaded a number of images and videos of an indecent nature between mid-2019 and August 2021.  He was aware and understood the criminality of this and said that he had been curious.  He denied sexual interest in children.  

7.        The majority of indecent images related to female children in the age range of 12 - 15 years and the search terms that the Defendant had used on pornographic websites included words such as "teen", "young teen", "amateur teen", "loli" and "lolicon".  Other search terms were also recovered including the words "young".

8.        The computer used by the Defendant had a "TOR" browser software installed which is commonly used to access the dark web as it provides anonymity and does not leave a record of websites visited or any record of distribution of images.  Its use supports the Defendant's statement that he was well aware of the illegality of the images that he was downloading. 

9.        The appropriate sentence in offences such as this is to be assessed by reference to the AG v Godson and Crowley [2013] (2) JLR1 in which the Royal Court laid down sentencing guidelines for cases of this nature.  In the case the Court said this:

"In each of the categories which we have adopted below, we refer to an 'initial figure.' We envisage that, having selected what it considers to be the appropriate initial figure for the offence, the sentencing court will adjust that figure to reflect such aggravating and mitigating factors of the offence as there may be. The resulting figure may be subject to a discount to reflect personal mitigation and a guilty plea. We say more about that in para. 57 below.

Category 4. Where an offender has made an image, or possessed an image for distribution or show, falling within Levels 4 or 5, an initial figure in the region of 3 years' imprisonment would be appropriate."

10.      It should be noted that the categorisation set out in that case has now changed and levels 4 and 5, the most serious, would now be classed as Category A images which are images involving penetrative sexual activity, sexual activity with an animal or sadism.  Category B are images of non-penetrative sexual activity and Category C are other indecent images not falling in categories A or B. 

11.      The initial figure assessed in Godson above is on the assumptions that the offender is an adult, that he has no relevant previous convictions, the number of images are small, that the making of any images was for his benefit alone or if distributed only sent to two or three other persons, and the sentencing process results from a contested trial. 

12.      It is also appropriate to adjust the initial figure upwards to reflect aggravating features.  In this case the Crown argued that the long period over which the images were possessed, distributed or produced was aggravation and any number of images over 100 is considered a large amount.  There was also distribution although only to one other person. 

13.      In its conclusions the Crown notes that the Defendant was a young adult aged 18 - 21 for 16 months of the offending and was an adult for the remainder.  There was some uncertainty about this however, as the time span within which the offending took place was accepted by the Crown as referring to the date of the manufacture of a particular computer and it was not actually possible to be certain of the dates of the creation of the images involved.  The Defendant had maintained that he believed that he had started this illegal activity in mid-2019.  We have taken his statement as the accurate position and worked on the basis that the period of offending was between mid-2019 and August 2021. 

14.      The Crown approached this matter with an assessment of 3 years as the initial figure in the present case and then made allowances for the accused's guilty pleas, his residual youth, his expression of some insight and remorse into the offending, and his cooperation with the investigation.

15.      To the extent that the accused was 19 years of age when he started offending, the Crown had regard to Article 4 (2) of the Criminal Justice (Young Offenders) (Jersey) Law 2014 which states at Article 4 (2):

"A court shall not pass a sentence of youth detention unless -

(a)       Article 5 applies; or

(b)       where Article 5 does not apply, it considers that no other method of dealing with the person is appropriate because it appears to the court that -

(i)         the person has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them,

(ii)        only a custodial sentence would be adequate to protect the public from serious harm from the person, or

(iii)       the offence or the totality of the offending is otherwise so serious that a non-custodial sentence cannot be justified."

16.      The pre-sentencing report and indeed the other reports produced in this matter assessed the Defendant's risk of reoffending as low.  The reports comprise a forensic clinical psychology report from Dr Briggs and an independent psychological report dealing with the relationship between autism and offending produced by Dr Allely.  We have had careful regard to all three reports produced in this matter.

17.      The Defendant has a diagnosis for Autistic Spectrum Disorder and has offered the explanation that he became extremely curious about this imagery, and in an attempt to understand why people were fascinated with it downloaded all of the images.  He maintains that he is not interested in young children sexually and indeed maintains that his interests are homosexual in nature.  We accept, as is clear from Dr Alley's report, that it may be that the Defendant becomes fixated on particular things and will immerse himself in those things to an excessive and indeed compulsive degree. 

18.      In our view whilst such a factor should be taken into account when looking at the criminality in the round, it does not render lawful that which was known at the time by the Defendant to be unlawful nor does it affect the gravamen of the offending.  We understand from the reports that the Defendant may have a condition of mind which makes the viewing of anything in which he has taken an interest to be almost compulsive.  That does not, however, seem to us to answer the main concerns.  It cannot be that the compulsive viewing of unlawful images is made any more acceptable because that compulsion arises out of a particular mental state or from a compulsive sexual interest in under age children.  The fact is that this Defendant, whatever his motivation and drive for downloading these images, did so in the clear understanding that it was wrong and illegal to do so and he did so through a browser which was designed to avoid detection.

19.      It was urged upon us by the Defence Counsel that the Defendant's motivation was very different from the usual.  Whether or not that is the case, there is no suggestion that he was unaware what he was doing was illegal.

20.      We remind ourselves, as the Court has said on a number of occasions, that these are not victimless crimes.  Real children are being abused in these images and the downloading of such images fuels the market for their creation and consequently the abuse of children to that end.

21.      It was pointed out to us that, as we have indicated above, both Dr Briggs and the author of the Social Enquiry Report indicate that there is a low risk of reoffending.  We accept this.  Dr Briggs also expresses the view that the offending is unlikely to mutate to "hands on offending".  We accept that as well.

22.      Nonetheless to our mind this does not affect the gravamen of the offences which we have just mentioned.

23.      The Attorney General, in his conclusions, moved for sentences of 18 months for Count 1, 12 months for Count 2 and 6 months for Count 3 making a total of 18 months imprisonment.  The Attorney General also suggested that a period of 7 years should apply both to the restrictive orders and the period that must pass before the notification requirements under the Sex Offenders (Jersey) Law 2010 can be disapplied.

24.      For the reasons that we have set out above, in our view, this matter had to be met by a sentence of imprisonment but in the light of the mitigating factors including the Defendant's full cooperation, his guilty plea, his remorse which we accept to be genuine and allowing for the vulnerability that he has as a result of his condition we are able to reduce the conclusions moved for by the Attorney General. 

25.      For those reasons we imposed the sentences set out in paragraph 3 above.  In our judgment 5 years was proportionate in terms of restrictive orders and the period under the Sex Offenders Law and we substituted that figure for the figure suggested by the Attorney General.

26.      At the beginning of the hearing the Defence made an application that any judgment issued in this matter should be issued in anonymised form.  No application was made before us for reporting of restrictions nor indeed to have the sentencing hearing dealt with in private.  As Defence Counsel rightly accepted any such applications were all unlikely to be met with success.

27.      However, we were asked to anonymise the judgment because of the detrimental effects that it might have on the Defendant's family and in particular a younger sibling.  In addition, the Defendant has his own vulnerabilities to which we have made reference already. 

28.      The Defence put before us the case of A v AG [2020] JRC 004 which related to an application by a Representor for an order seeking the disapplication of the requirements for him to report under the Sex Offenders (Jersey) Law 2010.  The period between his sentence and the date within which he was able to make the application was one of 5 years.  The Court agreed to the anonymisation of any judgment and indeed expressed the view that anonymisation of such applications might well become the norm. 

29.      The Court referred to a number of reasons why that should be the case and we respectfully agree with that determination for the reasons that the Court therein gave. 

30.      The position before us today, however, is rather different.  There is a public interest in a hearing taking place in open which has happened in this case and, in between the time of sentencing and delivery of this judgment, the matter has been reported in the media.  It is not often the case in the Court's experience, that when a judgment is issued after the event there is a further report - the media has already reported and the matter is in the public domain and the media presumably takes the view, quite understandably, that it is unnecessary to report the matter again.  There are reasons set out amply in the case of A v AG which do not apply at the time of first sentencing.  The issuing of the sentencing judgment, either on the day that the sentence is handed down or indeed a short time thereafter, is part of the sentencing process and we do not see that as a matter of general course that it not be published in the normal way, unless the report does or may identify a child witness or a victim of sexual assault.  Naturally should any application in due course be made for the Defendant to come off the Register then the principles of A v AG will apply.

31.      In certain circumstances it is appropriate to anonymise a judgment, but those circumstances are the exception and they do not apply to this case. 

Authorities

Protection Children (Jersey) Law 1994. 

Sex Offenders (Jersey) Law 2010

AG v Godson and Crowley [2013 (2) JLR1]. 

Criminal Justice (Young Offenders) (Jersey) Law 2014.

A v AG [2020] JRC 004.