Jersey Unreported Judgments

Making indecent photographs of children.

[2023]JRC189

Royal Court

(Samedi)

19 October 2023

Before     :

Sir Timothy Le Cocq, Esq., Bailiff, and Jurats Hughes and Cornish

The Attorney General

-v-

David Linton Bonnar

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

1 count of:	Making indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Count 1).
1 count of:	Making indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Count 2).
1 count of:	Making indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Count 3).

Age:  53.

Plea: Guilty.

Details of Offence:

On the evening of 16 December 2022, the Defendant spoke to his son, he was emotional and told him he had "fucked up".  He explained his Google account had been shut down as he had been on a chat site where he received certain images.  The images had been linked to his Google account and some were saved on his iPad.  The next morning, the Defendant attended Police Headquarters where he asked to speak to a Police Officer saying, "I have pictures on my iPad of children."  He further explained he had images he should not have of "youngish girls, most of them are like dressed and stuff" and "most of them are just nudes or dressed."

 

On 17 December 2022, a number of devices were seized from the Defendant, both at Police Headquarters and on execution of a search warrant at the Defendant's home address.  The devices were examined and one device was found to contain indecent images of children.  The total number of images found on the device were categorised by the analyst as follows:

 

Category	Total
A	1
B	4
C	46
Total	51

 

The images found were all of female children aged approximately 7 years to 14 years old.

 

The Defendant was interviewed twice.  He said he used an online website to chat to people and all the images were obtained from other users.  He explained that "having photos is almost like having currency to keep talking to people."  Users would show a photograph and would want one in return to keep talking.  The Defendant said he chatted with people who identified as single mothers or girls with 'daddy fetishes who said they were around 18 or 19 years old.  He did not know which imaged had been shared by him with other users.  The Defendant said when he had tried to upload images to his Google drive, the account was blocked which led to him attending Police Headquarters.  He said: "I knew straight away then that I needed to come in and...I needed to get this sorted, I can't live like that."

 

The Defendant pleaded guilty to the offences on a basis which asserts that the Defendant made two Category B images and 45 Category C images.  The Crown did not accept the basis but considers the difference is not material to sentence and the Defendant falls to be sentenced on his basis of plea.

Details of Mitigation:

Early guilty plea and no relevant previous convictions.  The Defendant also voluntarily attended the police station and handed himself in, although this was after his activities in relation to indecent images had apparently been discovered by Google resulting in his account being suspended.

Previous Convictions:

The Defendant has one dated and irrelevant motoring conviction.

Conclusions:

Count 1:	(Category A)  Starting point of 3 years' 6 months' imprisonment.  2 years' imprisonment.
Count 2:	(Category B)  Starting point of 1 year 8 months' imprisonment.  12 months' imprisonment.
Count 3:	(Category C)  Starting point of 8 months' imprisonment.  4 months' imprisonment

All sentences to run concurrently. 

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.

The Crown seeks the forfeiture and destruction of the Apple iPad Tablet (Exhibit JD/17/12/22/02) under Article 5(8) of the 1994 Law.

Sentence and Observations of Court:

Count 1:	(Category A) 12 months' probation and 312 hours' Community Service Order, equivalent to 2 years' imprisonment.
Count 2:	(Category B) 180 hours' Community Service Order, equivalent to 12 months' imprisonment.
Count 3:	(Category C) 100 hours' Community Service Order, equivalent to 4 months' imprisonment.

Total:                         312 hours' Community Service Order, equivalent to 2 years' imprisonment and a 12 months' Probation Order. 

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.

Forfeiture of and destruction of the Apple iPad Tablet. 

Ms L. B. Hallam, Crown Advocate.

Advocate S. B. Wauchope for the Defendant.

JUDGMENT

THE BAILIFF:

1.        You are to be sentenced today with regard to three counts of making a total of 48 indecent images of children.  One of those images was in Category A, two in Category B and 45 in Category C.  All of which were found on an iPad which was examined by the Digital Forensic Unit.

2.        This matter is to our mind unusual in that the offence came to the attention of the police because you attended Police Headquarters and admitted to it, having previously told your son that "you had fucked up" saying that you would have to go to the police for downloading questionable images and apologised in advance for the impact it would have on him and his sister. 

3.        We do not need to go into the details much further than this.  You have made full admissions in interview telling the police that you used a website called "Freechatnow" and that all of the images you obtained were from other users.  Having such photographs was almost like currency in your mind and you had access to the website using your iPad with the private browsing function enabled.  When google had blocked your account you told the police that you knew straight away that you needed to come in saying "that you can't live like that".  In your second interview you confirmed to the police you had no excuse; you pleaded guilty at the earliest opportunity and entered a basis of plea on which you are to be sentenced today.

4.        As the Crown has said the most important case thus far on offences of this nature is that of the Attorney General v Godson and Crowley [2013] JRC 091.  The approach of the Court is set out in that case and referred to by the Crown and we do not need to repeat it in these remarks.  With regard to Category A images the case suggests that an initial at 3 years' imprisonment would be an appropriate place for the Court to start.  Considering the assumptions in the Godson v Crowley case the Crown in our view has identified the factors correctly within the definition that that case provides for, in that you made a relatively small number of images, and you have no relevant previous convictions and there is no evidence of distribution.  

5.        In your interview however, you indicated that you kept the images so you could share them with others describing them as we have said as currency, and you accept that it is possible that you might have distributed images on "Freechatnow".  We proceed on the basis that you may well have done so for the purposes of sentencing. 

6.        The Crown has suggested an increase in the initial figures identified in its conclusions to reflect certain aggravating features.  The first such feature is the period over which the images were possessed or distributed and the data suggests they were created between September 2021 and December 2022 so that is a significant period, but we do not consider it to be as long a period as we often see in offences of this nature.

7.        We view the contact online with someone who claimed to be 14 years old and to the receipt of a photograph from her as an aggravating feature.  The Crown also suggests the use of private browsing as an aggravating feature.  We do not agree.  It seems to us that the use of a private browser is an almost inevitable feature on all internet activity of this type and we do not think it could be described as particularly aggravating for the purposes of this case. 

8.        With regard to mitigation, the Crown has indicated that it does not see your voluntary attendance at the Police Station as mitigating the offences because your activities have been discovered by Google.  It would however, have been possible to our mind for you to delete all of the images or at least to attempt to do so and indeed to destroy and dispose of your iPad.  That you did not do so and that you attended Police Headquarters voluntarily and made the full as possible admissions does seem to us to afford material mitigation to you.  You were particularly moved to do so because you thought your son might have seen some of the indecent images. 

9.        There is no certainty to our mind that Google's activities in blocking your account would have led to information being provided to the investigatory authorities and to your inevitable prosecution and conviction.  We imagine that sometimes when people are confronted by discovery, they will take the steps we have suggested to destroy the evidence as far as they possibly can.  You did none of those things and instead made the job of the police and that of the prosecution much easier by your frank admissions.  We do not agree that you necessarily appear to minimise your offending in interviews which reflects the nature of the larger part of the imagery that has been assessed, and even if you did that does not alter the fact that the images were voluntarily delivered up to the police by you so minimisation simply would not have worked, the police would have seen the images for themselves.

10.      In our view for a custodial disposal the correct starting points are as identified by the Crown:  namely Count 1, 3 years' 6 months; Count 2, 1 year 8 months; and Count 3, 8 months.  We note the contents of the Pre-Sentence Report and that you are assessed as being of moderate risk of general re-conviction and moderate risk of committing a further sexual offence.  The Crown indicated that in its view you have not taken full responsibility for your actions, observing that the Pre-Sentence Report indicates that you absolve yourself from a significant level of culpability because your thinking skills were impaired due to "low mood and loneliness".  We are not sure we understand the juxtapositions of this statement with the fact you are described as moderate risk of committing a further sexual offence which would be raised if you were suffering from low mood or loneliness.  This suggests to us that low mood and loneliness may be a causative factor in the offending.  

You do, as we have said have the benefit of an early guilty plea.  To all intents and purposes, you are a man of previous good character.  We of course reflect and echo the comments of the Court in Attorney General v Mathews [2020] JRC 186A in which the Court said:

"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."

11.      We have of course read with care your personal statement and the character references provided by your friend and by your children.  They speak very well of you and in a sense, they make it all the less explicable how you have come to be involved in this activity.

12.      We accept however, that your remorse is genuine, and this is exemplified in our view by your actions in coming forward to the police when you did not need to do so at that time and making the full admissions that you did. 

13.      Turning first to the provisions of the Sex Offenders (Jersey) Law 2010 we agree with the Crown that the period of 5 years is appropriate as a period that must elapse before you can apply to be relieved from the reporting restrictions contained in that law.   With regard to the Restraining Orders which you do not oppose we are satisfied that the orders sought by the Crown which are in a standard form are also appropriate, and we apply those for a period of 5 years as well.

14.      The Court on many occasions has said that the making of indecent images of children is not a victimless crime and that sexual abuse that underlines the more serious images were suffered by real children who inevitably damaged from that abuse.  The offending that you have engaged in fuels the demand for this kind of pornography.

15.      Turning now to the matter of sentence.  We have considered anxiously and with great care with submissions of your counsel as to whether we can view the circumstances in this case as exceptional.  We of course keep in mind the mitigation that is available and that we have identified already, including the deduction for a guilty plea and for good character but those matters of themselves do not put this into the exceptional category.  However, we place significant weight on the fact that you have handed yourself in when you did not need to do so.  The number of images are small, relatively speaking, and that you have given total cooperation with the police and made fully frank admissions.  We believe that these do collectively amount to exceptional circumstances, and we can depart from the conclusions of the Crown and impose a non-custodial sentence. 

16.      Stand up please.  You are placed on probation for a period of one year and are directed to comply with all of the courses and interventions set out in the Probation report, and to which you are directed by the Probation service.

(i)        Count 1, you are sentenced to 312 hours of community service, the equivalent of 2 years' imprisonment.

(ii)       Count 2, 180 hours of community service, the equivalent of 12 months' imprisonment. 

(iii)      Count 3, 100 hours of community service, the equivalent of 4 months' imprisonment.

17.      Making a total of 312 hours community service. 

18.      We order the forfeiture and destruction of the iPad although we believe the correct statutory provisions Article 2 of the Criminal Justice Forfeiture Order (Jersey) Law 2001.  But under any powers us enabling we make that Order. 

Authorities

Protection of Children (Jersey) Law 1994.

Sex Offenders (Jersey) Law 2010.

Criminal Procedure (Jersey) Law 2018

Criminal Justice (Forfeiture Orders) (Jersey) Law 2001.

National Police Chiefs' Council Sentencing Levels Guidance.

AG v Godson and Crowley [2013] JRC 091

AG v Salsac [2017] JRC 125

AG v Matthews [2020] JRC 186A

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