Jersey Unreported Judgments

Superior Number Sentencing - indecent photographs - breach of orders - reasons for the decision

[2022]JRC175

Royal Court

(Samedi)

19 August 2022

Before     :

Sir Timothy Le Cocq, Bailiff, and Jurats Ramsden, Pitman, Christensen and Le Heuzé

The Attorney General

-v-

Karn Damien Laffoley

Ms L. B. Hallam, Crown Advocate.

Advocate G. D. Emmanuel for the Defendant.

JUDGMENT

THE BAILIFF:

1.        On 6^th  June 2022, Karn Damien Laffoley ("the Defendant") appeared before this Court charged with two breaches of a restraining order and nine Counts of making indecent images of children and four Counts of distribution of indecent images of children. 

2.        On that occasion we sentenced the Defendant to a total period of imprisonment of 9 years and 6 months and at that time said that we would provide our reasons on a later occasion.  These are those reasons. 

3.        On 6^th April 2017, the Defendant had appeared before the Superior Number of this Court for sentencing for offences relating to the illegal images of children and breaches of the Sex Offenders (Jersey) Law 2010 ("the 2010 Law").  A number of the offences in 2017 arose out of contact between the Defendant and a woman in the UK who he had persuaded to take indecent images of her own daughter (referred to as Miss A) which were then sent to him.  He advertised these and other indecent images of children and distributed them to others.  Miss A featured in a number of Counts. 

4.        On that occasion the Defendant received sentences of imprisonment totalling 8½ years and was made the subject of restrictive orders under the 2010 Law which included the following prohibition:

"(iii) That the defendant be prohibited from;

a.   Having access to any device capable of accessing the internet unless his use of that device is monitored by an adult over the age of 21 who is aware of the defendant's convictions and who has not been convicted of any offence which would render them liable to the notification requirements of the Sex Offenders (Jersey) Law 2010;"

5.        The Defendant was released from his sentence of imprisonment on 24^th September 2021. 

6.        In December 2021, the Police received information that the user of a particular KIK account associated with an email had uploaded multiple Category C indecent images of children to the internet in the early hours of 29^th October 2021.  The IP address used to upload those images was linked to the Defendant's home address. 

7.        On 22^nd December 2021, the Police executed a search warrant at the Defendant's home address and he was arrested.  A number of devices were seized, including a Samsung mobile phone which was hidden under a DVD player in the Defendant's area of the property where he resided. 

8.        He was interviewed on 22^nd December 2021 and provided a "no comment" interview.  He was released then on police bail. 

9.        The Samsung mobile phone was examined and the following still images were identified:

278 still images at Category A

568 still images at Category B

2323 still images at Category C

10.      The images predominantly featured female children of between 7 and 11 years of age and the forensic examination established that the earliest creation date of the images was 24^th November 2021. 

11.      A number of other images that were believed to be of Miss A were also found on the phone; these numbered 99 in all and were categorised as follows:

15 still images at Category A

14 still images at Category B

70 still images at Category C

12.      The age of Miss A at the time was between and 8 and 10 years of age and the earliest creation date was 24^th November 2021 and the latest was 19^th December 2021.

13.      In moving sentence the Crown has made a distinction between the images featuring Miss A and those relating to other children and, of course, the distinction between the various categories that apply to the image. 

14.      All of the images in Counts 1 to 6 of the second indictment were downloaded during unsupervised access to the internet, which placed the Defendant in breach of the terms of the restrictive order imposed in 2017 as set out above. 

15.      On 7^th February 2022, police officers carried out an unannounced visit at the Defendant's home address and the Defendant gave to them upon questioning a Doro mobile phone which was internet enabled. 

16.      The Defendant was interviewed later that day and explained that he had found the Doro phone approximately 10 days earlier and he admitted that he had purchased a SIM card for it and had been using it unsupervised to download indecent images of children.  He had installed a TOR browser to allow him to share extreme paedophilic conversations with like-minded people.  Whilst admitting he was in breach of his restraining order, he said he could not "help himself".  He informed officers that he looked at images most nights until the early hours of the morning.

17.      The Doro phone was also submitted for forensic examination and the following images were discovered:

216 still images at Category A

9 moving images at Category A

161 still images at Category B

2 moving images at Category B

623 still images at Category C

18.      A further 43 indecent images relating to Miss A were found which were characterised as Category C.  The images received from the Doro device were predominantly female children in the same age range and the earliest date of the images was 4^th February 2022 and the latest was 7^th February 2022.

19.      It was clear that a number of those images had been distributed to at least three individuals via WhatsApp.  Of the images distributed there were seven still images and six moving images under Category A; two still image and two moving images under Category B and 24 still images under Category C (excluding those relating to Miss A) and 13 images of Category C featuring Miss A.

20.      One Category C image had been sent to a user who claimed to be a 14 year old girl (the Defendant purporting to be a 15 year old boy) and other images were sent to other individuals including a number of images featuring Miss A. 

21.      In terms of the appropriate way of assessing sentence for the downloading of indecent images of children we have had reference to AG v Godson & Crowley [2013] JRC 091 in which the Court said the following:

"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."

22.      Applying the guidelines set out in Godson to this case, Counts concerning the Category A images were given an initial figure in the region of 3 years imprisonment, those relating to Category B images an initial figure of 18 months and those relating to Category C images the Court could in normal circumstances consider a community order or a fine. 

23.      The initial figure provided for under Godson is based on certain assumptions.  These are:

(i)        that the offender is an adult;

(ii)       that he has no relevant previous convictions;

(iii)      that the number of images is small;

(iv)      that the making of any images were for his benefit alone or if distributed only sent to two or three persons;

(v)       the sentencing process results from a contested trial.

24.      In the instant case the Defendant is an adult.  He has many previous convictions both in the UK and in Jersey.  The number of images is substantial.  There was distribution to three individuals, one of whom purported to be a 14 year old girl.  There was no trial, the Defendant pleaded guilty. 

25.      The initial figure accordingly falls to be adjusted upwards to reflect the poor record, the number of images and, to an extent, the distribution.  It falls to be adjusted downwards because there was no contested trial.

26.      In Godson the Court went on to say:

"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."

27.      The Crown argues that the period over which the images were possessed, distributed or produced should be an aggravating factor as was their number, and the fact of distribution including the fact that 13 of the images were of Miss A; the fact that offences were committed on bail; to an extent relating to an identifiable child; the fact that these offences occurred in breach of the restrictive orders; the fact that there were moving images involved; the fact that the defendant had installed a TOR browser; the fact that some of the offences were committed whilst on bail and the Defendant's failure to comply with orders of the Court. 

28.      We agree the Crown's assessment of the aggravating features in this case and in particular the fact that a number of these offences were committed whilst on bail, and that they involved Miss A. 

29.      The Defendant's level of previous offending was also of considerable concern to us and we will make further reference to that later in this judgment.

30.      The Crown's approach was that because some of these offences amounted to a failure to comply with previous orders of the Court, those matters are rightly separately charged and the Crown intends to move for consecutive sentences.  We approve this approach.  It seems to us that where an order has been specifically made and is knowingly breached that is a serious matter and the Court is entitled to approach it on the basis that such an offence should attract a consecutive sentence.  As a result of that, the Court agrees that that particular element, the fact that the Defendant failed to comply with orders, would not increase the starting point for the other offences.

31.      Taking all of the factors into consideration the Crown has identified a starting point for the Category A images of some 6 years imprisonment; the Category B images some 3 years imprisonment and for the Category C images, 1 year imprisonment.

32.      With regard to the breach of restraining orders the Crown notes that this Court in 2017 took a starting point of 4 years imprisonment and would have imposed a sentence of 3 years imprisonment as the totality.  The Defendant on that occasion received three sentences of 2½ years imprisonment concurrent to each other consecutive to the indecent images of children offences.  They represent, in any event, the Defendant's eighth and ninth conviction for breaches of Jersey orders or their English equivalent and the continued disregard for the orders of the Court is viewed by the Crown as an aggravating feature and not merely a lack of mitigation.  We agree with that assessment. 

33.      We note from the Social Enquiry Report that the Defendant has accepted full responsibility for his offending and also note that the report holds out little optimism for any meaningful way for the Defendant to address his offending going forward.  Information from the Probation Service relating to the work that the Defendant was undertaking to address his offending states:

"Focussed work with [the Defendant] was always going to be limited in its effectiveness given the fact he is a repeat offender, very high risk and has been deemed to have an untreatable risk profile"

34.      The Social Enquiry Report goes on to conclude:

25.    "Intervention over the years with the Defendant has focused primarily on examining, addressing, and reducing his sexual interest in pre-pubescent and pubescent children; a position that he has never denied. He completed an internet sexual offending programme in the UK although returned to Jersey with an untreated profile. He then completed the SOTP with this Service, has had interventions delivered during periods of imprisonment, and when released on voluntary supervision with again this Service. However, he has continued to sexually offend and it is clear that structured intervention with the Defendant has been ineffective and has had limited impact in terms of effecting any change in his attitudes or sexual deviancy. The Defendant is expecting a custodial sentence to be imposed, given the persistence he has demonstrated in this type of sexual offending and the limited success achieved by structured intervention. In view of the foregoing information, I am unable to offer the Court a community-based proposal in this case."

35.      By way of mitigation we note, as did the Crown and indeed as emphasised by Counsel for the Defence, that this Defendant has entered guilty pleas to all charges at the earliest opportunity.  In the circumstances, however, a conviction may be seen as all but inevitable and the guilty pleas viewed in that light.  He was, however, cooperative and, as we have said, has accepted full responsibility. 

36.      He has undertaken a number of treatments but they simply have not worked and apparently, so we are informed, he is seeking anti-libidinal medication. 

37.      The Court cannot identify anything else that might be taken to be mitigation. 

38.      In brief, the Court is confronted in this Defendant with a man whose appetite for this illegal material does not appear to be manageable or controllable.  He has committed numerous previous offences and has a history of breaching restraining orders.  Within a short period of time following his release he had downloaded numerous images in different categories including those of the most serious and he had repeated the distribution of images of Miss A which he had procured. 

39.      It is seldom that the Court faces an individual whose psychological profile makes it almost certain that notwithstanding any interventions he will persist in his offending. 

40.      As the Court has said on many occasions, downloading indecent images of children is not a victimless crime.  Real children are filmed being subjected to the abuse that is depicted in the pictures and moving pictures and downloading this material fuels the demand for it and more children are abused as a result.  The fact that some of the pictures involve Miss A in respect of which this Defendant was sentenced on an earlier occasion illustrates to the Court that this Defendant can have no remorse for his previous actions where that offending is concerned.  We have no reason for any confidence that given the opportunity he will not reoffend and that that offending will add to the demand for this kind of material.  There is in our mind an element of public protection involved in this case in relation to the generality of downloading such images as we have mentioned above and in connection with Miss A.

41.      We accordingly ordered the destruction of the devices used to download and distribute this material and, on the recommendation of the Crown in which we agree, we order that the period which must expire before he may seek to have a notification requirements under the 2010 Law disapplied should be 20 years. 

42.      In this case which we view as exceptional we also take the view that 20 years is the correct period to apply the restrictive orders requested by the Crown which are in the same terms as those imposed upon him in 2017.  We have no doubt that such an order is both necessary, clear and proportional which such orders must be before they may be imposed.  We set out the orders in full:

1. that the Defendant be prohibited from contacting or approaching, directly or indirectly, any person identified in Appendix A of the order other than any contact which is inadvertent or unavoidable;

2. 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 Probation and Aftercare Service;

(b) contacting or attempting to contact, via any form of social media, internet or telecommunications system, any female 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 them liable to notification under the Sex Offenders (Jersey) Law 2010;

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

3. that the Defendant be prohibited from:

(a)       having access to any device capable of accessing the internet unless his use of that device is monitored by an adult over the age of 21 who is aware of the Defendant's convictions and who has not been convicted of any offence which would render them liable to the notification requirements of the Sex Offenders (Jersey) Law 2010;

(b)       in the event that he does access the internet, that the history of that access be recorded, and that he take no steps to disguise, delete or otherwise conceal that history;

(c)       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.

(d)       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;

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

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

4.        that the Defendant provide advance details of any proposed changes of address and employment that will have to be approved by the Probation and Aftercare Service;

5.        that in circumstances where the Defendant finds himself in contact with any persons named in Appendix A, or finds himself either in contact with, or 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;

6.        that the Defendant cannot refuse access to police officers who are monitoring or checking on his restraining orders; and

7.        that the Defendant may not knowingly contact or associate with anyone he knows to have been convicted of any offence which would render them liable to the notification requirements of the Sex Offenders (Jersey) Law 2010 (not to come into force until released from custody."

43.      Turning to the matter of sentence and applying the Crown's approach set out above although differing from the Crown in some of the conclusions the Court imposes the following sentences:

First indictment

Count 1        Breach of the restraining order from a starting point of 4½ years imprisonment a sentence of 3½ years imprisonment.

Second indictment

Count 1        making Category A indecent images of children from a starting point of 8 years imprisonment, a sentence of 6 years imprisonment.

Count 2        making Category B images from a starting point of 3 years imprisonment, 2 years and 3 months imprisonment.

Count 3        making Category C images from a starting point of 1 years imprisonment, 9 months' imprisonment.

Count 5        making Category B images of Miss A from a starting point of 3½ years imprisonment, 2½ years imprisonment.

Count 6        making Category C images of Miss A from a starting point of 18 months imprisonment, 15 months' imprisonment.

Count 7        breach of a restraining order from a starting point of 4½ years imprisonment, 3 years and 6 months imprisonment.

Count 8.       Making Category A images from a starting point of 8½ years imprisonment, 6 years imprisonment.

Count 9.       Making Category B images from a starting point of 3 years imprisonment, 2 years and 3 months imprisonment.

Count 10.     Making Category C images from a starting point of 1 years imprisonment, 9 months' imprisonment.

Count 11.     Making Category C images of Miss A from a starting point of 18 months imprisonment.  A sentence of 15 months imprisonment.

Count 12.     Distributing Category A images from a starting point of 8½ years imprisonment, 6 years imprisonment.

Count 13.     Distributing Category B images from a starting point of 3 years imprisonment; 2 years and 3 months imprisonment.

Count 14.     Distributing Category C images from a starting point of 1 years imprisonment; 9 months imprisonment.

Count 15.     Distributing Category C images of Miss A from a starting point of 18 months imprisonment; 15 months imprisonment.

Count 1 on the first indictment and Count 7 on the second indictment are concurrent with each other and the remaining Counts are concurrent with each other but consecutive to Counts 1 on the First indictment and 7 on the second indictment making a total of 9 years and 6 months imprisonment. 

44.      We have focussed our attention on the most serious of the offending and in particular have increased the starting point and finishing point relating to the Category A images and those relating to Miss A.  These are the most serious and we have left untouched the Crown's conclusions with regard to the other sentences.

45.      We were asked to make an order for costs against the Defendant.  In the circumstances we declined to do so.

Authorities

Sex Offenders (Jersey) Law 2010. 

AG v Godson & Crowley [2013] JRC 091.