Jersey Unreported Judgments

Possession of indecent photographs of children.

[2023]JRC181

Royal Court

(Samedi)

6 October 2023

Before     :

Sir Timothy Le Cocq, Bailiff, and Jurats Hughes and Entwistle.

The Attorney General

-v-

Brett Marquis

Sentencing by the Inferior Number of the Royal Court, following a guilty plea to the following charges:

1 count of:	Possession of indecent photographs of children, contrary to Article 2(1)(b) of the Protection of Children (Jersey) Law 1994 (Count 1).
1 count of:	Possession of indecent photographs of children, contrary to Article 2(1)(b) of the Protection of Children (Jersey) Law 1994 (Count 2).
1 count of:	Possession of indecent photographs of children, contrary to Article 2(1)(b) of the Protection of Children (Jersey) Law 1994 (Count 3).
1count of:	Possession of prohibited images of children, contrary to Article 2C(1)(b) of the Protection of Children (Jersey) Law 1994 (Count 4).

Age:  37.

Plea: Guilty.

Details of Offence:

On 20 October 2022 and 9 March 2023, Police Officers executed search warrants at the Defendant's home address and a number of electronic devices were seized.  Seven devices were examined and two devices were found to contain indecent and prohibited images of children.  The total number of images found on the devices was as follows:

 

Category	Total
A	91
B	30
C	5
Prohibited	9
Total	135

 

The images found showed both males and females, ranging in age from babies to approximately age 10. The devices also contained a history of files and internet searches indicative of indecent images of children.

 

The technical evidence on the devices was not able to provide a date range for the downloading of the material.  However, in the preparation of the Pre-Sentencing Report, the Defendant gave an account of offending over a period.  

Details of Mitigation:

Early guilty plea and no previous conviction.  The Defendant has also taken positive steps to address his offending behaviour by undergoing psychological treatment in relation to his offending.

Previous Convictions:

None.

Conclusions:

Count 1:	2 years' imprisonment.     Starting point of 3 years' imprisonment.
Count 2:	1 years' imprisonment.     Starting point of 18 months' imprisonment.
Count 3:	4 months' imprisonment.  Starting point of 6 months' imprisonment.
Count 4:	6 months' imprisonment.

Total:  2 years' imprisonment.

Order sought under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 5 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 5 years, under the Sex Offenders (Jersey) Law 2010 as follows:

1.      That the Defendant be prohibited from:

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

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

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

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

iv.         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.

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

c.         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.

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

e.         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.

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

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

h.         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.

i.          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.

2.      That the Defendant provides advance notification details of any proposed changes of address or employment (including any voluntary roles) which will have to be approved by the OMU.

Forfeiture and destruction of the two devices found to contain indecent and prohibited images of children sought.

Prosecution costs in the sum of £2,000 sought.

Sentence and Observations of Court:

Count 1:	21 months' imprisonment.  Starting point of 3 years' imprisonment.
Count 2:	12 months' imprisonment.  Starting point of 18 months' imprisonment.
Count 3:	4 months' imprisonment.    Starting point of 6 months' imprisonment.
Count 4:	6 months' imprisonment.

Total:  21 months' imprisonment.

Ordered under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 5 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 in terms sought, to run from the date of sentence for a period of 5 years, under the Sex Offenders (Jersey) Law 2010.

Prosecution costs in the sum of £2,000 to be paid by the Defendant at £100 per month.

Forfeiture of and destruction of the two devices found to contain indecent and prohibited images of children.

Ms. L. B. Hallam, Crown Advocate.

Advocate G. N. A. Pearce for the Defendant.

JUDGMENT

THE BAILIFF:

1.        We will give fuller reasons for the decision we have made in due course.  We express concern that the forensic therapy progress report appears to have been prepared in March of this year but only uploaded to the CaseLines bundle on 2 October 2023, and that is a matter of concern to us because of course it means that the relevant mitigating material, if such it be, could not have been taken into account by the Attorney General, and that is no criticism at all of the Crown.

2.        That being said, dealing first with the applications under the Sex Offences (Jersey) Law 2010 we take the view that it is appropriate that that restriction remain in place for five years as indeed the reporting requirements, so we impose the restraints in the terms set out in the Crown's conclusions for a period of 5 years and we order that 5 years is the period that must elapse before an application can be made to come off the Register.

3.        We also order the forfeiture and destruction of the instrumentalities specifically the two computers that are set out in the statement of facts and conclusions, and lastly, we impose the order of costs sought by the Crown, in terms of preliminary matters, that is, with a payment at £100 per month as requested by the defence which was not subject to any objection by the Crown.  

4.        Turning to the substantive disposal of the matter, we think in the light of the additional mitigation available we should reduce to a small extent the conclusions moved for by the Crown.

(i)        Count 1, you are sentenced to 21 months' imprisonment.

(ii)       Count 2, one year imprisonment.

(iii)      Count 3, four months' imprisonment.

(iv)      Count 4, six months' imprisonment.

(v)       All to be served concurrently, making a total of 21 months' imprisonment.

(vi)      The starting point with regard to Count 1 we accept as being correctly stated at 3 years' imprisonment. 

5.        In the future, the defence is expected to upload anything which will substantially impact upon the conclusions of the Attorney General, (which they would take the view might substantially impact) as soon as it is available.  

Authorities

Protection of Children (Jersey) Law 1994.

Sex Offences (Jersey) Law 2010.

National Police Chiefs' Council Sentencing Levels Guidance.

AG v Berry [2019] JRC 053.

AG v Nursaw [2019] JRC 186A.

AG v Godson and Crowley [2013] JRC 091.

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

AG v Salsac [2017] JRC 125.

AG v Matthews [2020] JRC 186A.

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