Jersey Unreported Judgments

Inferior Number Sentencing - indecent photographs

[2023]JRC117

Royal Court

(Samedi)

30 June 2023

Before     :

Sir Timothy Le Cocq., Bailiff, and Jurats Austin-Vautier and Le Heuzé

The Attorney General

-v-

Patrick Jospeh Huard

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)

Age:  58.

Plea:

Details of Offence:

On 30 September 2022, Police Officers executed a search warrant at the Defendant's home address and 26 electronic devices were seized.  25 of the devices were examined and 5 devices were found to contain indecent images of children ("IIOC").  No moving images/videos were found on the devices but the total number of still images found was as follows:

 

Category	Total
A	108
B	148
C	1015
Total	1271

 

The IIOC found showed females ranging in ages from 3 years old upwards.  The devices also contained a history of internet searches in which a number of searches relating to IIOC had been carried out.  A number of websites indicative of IIOC content had also been accessed on the devices.

 

All IIOC were created between 10 November 2005 and 30 September 2022.  The earliest of these dates represents the earliest manufacturer date from the hard disks examined and end date represents the date the exhibits were seized.  The Defendant made admissions in the preparation of his Pre-Sentencing Report that he had been viewing the IIOC periodically over 17 years since 2005 in order to manage his stress and low mood.

 

The Defendant was interviewed three times.  He accepted that the devices which contained IIOC belonged to him and that he had found the IIOC online by "clicking, clicking away...Just type it into the search bar... you just click away and suddenly it's there".

Details of Mitigation:

Early guilty plea, admissions in interview as to the ownership of the devices and provided passwords for the devices, remorse, no previous convictions and character references before the Court.

Previous Convictions:

None.

Conclusions:

Count 1:	(Category A) 2 years and 6 months' imprisonment.
Count 2:	(Category B) 2 years and 6 months' imprisonment, concurrent.
Count 3:	(Category C) 2 years and 6 months' imprisonment, concurrent.

Total:  2 years and 6 months' imprisonment. 

Order sought under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 8 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 8 years, under the Sex Offenders (Jersey) Law 2010 with the following conditions:

That the Defendant is prohibited from:

1.      Possessing and/or using any device capable of accessing the internet that has or could enable digital image viewing unless:

a.         He has notified the States of Jersey Police Offender Management Unit ("OMU") in advance of the acquisition of any such device;

b.         If it has the capacity to retain and display the history of internet use (including social media), he does not delete such history;

c.         If it has no such capacity, the OMU has given permission for the use of such a device; and

d.         He makes the device available on request for inspection by a Police Officer, or other Police employee, and he allows such person to install risk management monitoring software if they so choose.

2.      Possessing and/or using more than one smartphone, one tablet, one games console and one laptop/PC without prior permissions of the OMU.

3.      Possessing any device capable of storing digital images e.g. a USB stick or external hard drive, unless the OMU has been notified of such possession in advance and it is made available on request for inspection by a Police Officer or other Police employee.

4.      Interfering with or bypassing the normal running of any computer monitoring software.

5.      Using or activating any function of any software which prevents a computer or device from retaining and/or displaying the history of internet use e.g. using 'incognito' mode or private browsing.

6.      Installing any encryption or wiping software on any device other than software which is intrinsic to the operation of the device.

7.      Possessing and/or using software or hardware to encrypt or otherwise hide his IP address.

8.      Using any 'cloud' or other remote storage media capable of storing digital images (other than that which is intrinsic to the operation of the device) unless, prior to the creation of an account for such storage, he notifies the OMU of that activity, and provides the password to such storage on request for inspection by a Police Officer or other Police employee.

9.      Refusing access to Police Officers who are monitoring or checking on this Restraining Order, and refusing to allow officers entry to any premises he occupies or is in control of for the purposes of searching for relevant devices.

These prohibitions shall not apply to devices at the Public Library or any educational establishment, or provided that he has the prior permission of the OMU, his place of work.

Prosecution costs sought in the sum of £1,500.

Forfeiture and destruction of the 5 devices found to contain IIOC sought. 

Sentence and Observations of Court:

Count 1:	(Category A) 2 years and 4 months' imprisonment.
Count 2:	(Category B) 2 years and 4 months' imprisonment, concurrent.
Count 3:	(Category C) 2 years and 4 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 8 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 8 years, under the Sex Offenders (Jersey) Law 2010 with the conditions sought by the Crown above.

Prosecution costs ordered in the sum of £1,500 with one month to pay.

Forfeiture and destruction of the 5 devices found to contain IIOC ordered. 

L Sette Esq., Crown Advocate.

Advocate J. W. R. Bell for the Defendant.

JUDGMENT

BAILIFF:

1.        You are to be sentenced today for three counts of making indecent images of children.  Matters came to light when police officers executed a search warrant at your home and seized a number of electronic devises.  Of those devices examined, five were found to contain illegal images.  There were no moving images, but the total number of images were in Category A 108; Category B 148 and Category C 1,015, making total of 1,271.

2.        Your computer equipment was also searched for the internet search history and a significant number of searches relating to indecent images of children were found to have been made, which have been referred to by the Crown in its facts and which we do not need to repeat.  The images related to female children ranging it appears from children of 3 years old and upwards.  The imagery on the devices were created at some point, between the 10 November 2005 and 30 November 2022.

3.        There were three interviews; in the first you denied you had ever uploaded indecent images or shared any, that you had found these images online just by clicking away; and you confirmed that you used adult pornography for sexual gratification.  In your second interview you said you could not explain why certain indecent images were found on devices which was a position that you maintained in your third interview, but when charged you entered early guilty pleas and that is to your credit.

4.        The Crown has put before use the case of AG v Godson & Crowley [2013] JRC 091 and it set out its approach indicating that for Category A images an initial figure in the region of 3 years imprisonment would be appropriate; for Category B, an initial period of 18 months imprisonment; for Category C a final community service unless the custody threshold has passed and then a sentence of around 6 months.

5.        We raised with the Crown during the course of submissions whether the conclusion should reflect the different staring points and the Crown has demonstrated by showing us previous cases that the court has tended, where it will make no difference at all to the length of the sentence, simply in effect to impose the same sentence for each category.  We do not propose to do anything different today, but we can see circumstances in which a different approach would be appropriate in different types of cases.

6.        We agree with the way that the Crown has assessed the principles from the authority that has been put before us and we note that, as we have said, you pleaded guilty at the earliest opportunity, and that there is no evidence that you distributed any of the imagery.  The number of images is however considered to be high and 108 were of the highest category.

7.        It is clear that you have been accessing and downloading the material albeit episodically over a considerable period and that too is an aggravating feature.  You are assessed of being a low risk of general reconviction and harm to the public but a moderate risk of sexual reconviction.

8.        With regard to the lack of relevant previous convictions, and you are a person of good character, we repeat the Crown's comments set out in AG v Matthews [2020] JRC 186A, to the effect that "we give some but not a great deal of weight to your previous good character, as many persons who commit this sort of offence are individuals of previous good character."

9.        We deal first with the Sex Offenders (Jersey) Law 2010 and you do not oppose either the restrictions or the periods suggested by the Crown, and we agree having considered it that it necessary and proportionate to impose orders in this way.

10.      The orders differ somewhat from the usual orders put before this court and they are said by the Crown Advocate, who indeed does so with the direct agreement of the Law Officers, that this form of order is better suited to the modern world and the modern way of dealing with electronic data.  We have reviewed the order and we think that it is indeed better, and we accordingly impose the order in the terms read out by the Crown Advocate and not opposed in any manner by you through counsel, for a period of 8 years which will also be the period after which you may seek to have the notification requirements of the Sex Offenders Law disapplied.

11.      We turn now to conclusions and as we have said on many occasions the making and possession of indecent images of children is not a victimless crime.  Real children are abused to fuel the demand for those who like to view that type of imagery and that in turn inevitably encourages the production of images of that nature and the abuse of children.

12.      We note the mitigation available to you and we have taken into account the letters written on your behalf and your letter of remorse, which we accept although it has come somewhat late in the day when viewed against the background of the Social Enquiry Report, as genuine.  We appreciate that you have suffered challenges and you continue to do so, but we think that the Crown has got its conclusions largely right, but that we can as an act of mercy make some adjustment to then.  Allowing for all the mitigation in the round, which has been deployed before us by your counsel and indeed factored into the conclusions to an extent by the Crown, you are sentenced as follows:

(i)        Count 1 (Category A); 2 years and 4 months' imprisonment.

(ii)       Count 2 (Category B); 2 years and 4 months' imprisonment.

(iii)      Count 3 (Category C); 2 years and 4 months imprisonment, all concurrent making a total of 2 years and 4 months' imprisonment.

13.      We order the forfeiture and destruction of the Seagate 160GB hard disk, the Toshiba computer hard disk, the Seagate hard disk, the Dell Optilex computer tower and Dell computer tower.

14.      As to costs we note your agreement that a costs order would be appropriate and we order the payment of the Prosecution's costs in the sum of £1500.

15.      That is the sentence of the court.

Authorities

AG v Godson & Crowley [2013] JRC 091. 

AG v Matthews [2020] JRC 186A

Sex Offenders (Jersey) Law 2010

Protection of Children (Jersey) Law 1994

AG v Harris [2021] JRC 307

AG v Salsac [2017] JRC 125

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

R v NC [2017] 1 Cr. App. R. (S.) 13

R v Parsons [2018] 1 Cr App R (S) 43

English Sentencing Guidelines in respect of Sexual Harm Prevention Orders

National Police Chiefs' Council Sentencing Levels Guidance