Jersey Unreported Judgments

[2010]JRC088

ROYAL COURT

(Samedi Division)

7^th May 2010

Before     :

W. J. Bailhache, Q. C., Deputy Bailiff, and Jurats Clapham and Fisher.

The Attorney General

-v-

Andrew David Roberts

Sentencing by the Inferior Number of the Royal Court, following conviction at an Inferior Number trial on 29^th March, 2010, following guilty and not guilty pleas to the following charges:

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

Age:  40

Plea: Not guilty to Counts 1 and 2, guilty to Count 3. 

Details of Offence:

In December 2007 a warrant to search for indecent material was executed at the home of Roberts, an ex-member of the Honorary Police.  His computer was seized and found to contain 354 images of child pornography, 82 of which were duplicates.  These included 57 unique category 4 images and 7 unique category 5 images.  All of the said photographs were located in the thumbnail caches, as the originals had been deleted.  At the time of the seizure Roberts told arresting officers that he had been sent unsolicited material on a single occasion from someone called "angelfire", but he subsequently gave a "no comment" interview.  A later examination of the machine by forensic experts showed that it had been used to search for and download, and in some cases view, a large selection of video files with filenames suggesting that they contained child pornography.  However, all of the said material had been deleted by Roberts. 

Detailed forensic examination also showed that certain of the images located in his machine had indeed arrived during communication with a contact called "angelfire" on the social networking service "Google Hello".  However, contrary to what Roberts had told officers, the images had arrived on the machine in batches and on several different dates.  The images could only have been received with Roberts' initial agreement. 

In September 2008 Roberts re-offended by defrauding the social security department, by failing to declare income earned as a carpet fitter in the sum of £1,740 while he was in receipt of income support payments.  The total amount fraudulently claimed was £1,635.69 over the course of three weeks.  Once this offence had been discovered and investigated, Roberts was arrested again at his home address in February 2009. 

At the time of this further arrest, several more computers were seized from Roberts' home address.  A laptop belonging to Roberts was found to contain 179 images of child pornography, 31 of which were duplicates.  These included 25 unique category 4 images, and 1 category 5 image.  Roberts again gave a "no comment" interview in this regard, although he subsequently admitted working while claiming benefits. 

A forensic examination of the second machine showed that it too had been used in a similar way to the first and that many illegal video files appeared to have been downloaded and viewed by Roberts before being deleted.  All the 179 images that remained on the machine were found in the computer's caches, the originals having also been deleted.  Unlike the first machine, Roberts had installed software into the second which "shredded" the history that it had been used to do, effectively destroying the majority of the incriminating evidence.  However, among the evidence that was found intact was a recent list of search terms that Roberts had typed into "Google Image Search", which included specific keywords which would only be known to those searching for child pornography, and which would, amongst other things, have located images of a baby being raped. 

On Indictment Roberts denied both the child pornography offences but admitted the fraud.  At trial he explained that on the first machine he had received all of the images in an unsolicited email, which he had immediately deleted, notwithstanding the evidence of the expert.  He admitted that he downloaded a lot of music and adult porn from "Limewire", and that when doing this he often unintentionally downloaded child pornography.  He conceded that he continued doing this, even after it happened once, and said that he opened the material to check whether it was illegal or not.  He suggested that this would have explained the material of the second machine.  He denied that he used the special cleaning software to cover his tracks. 

He was convicted and maintained his denial of the offences at sentence. 

Details of Mitigation:

No previous convictions.  He lost his son to cancer several years previously and had suffered depression.  He currently had two young children with special needs.  His wife had stuck by him.  None of the images had been saved and there was no evidence that he had attempted to distribute the illegal images.  He had initially spent the equivalent of 6 weeks in custody after charge in September 2009 and had lived overnight at a different address from his family thereafter throughout the judicial process.  There was also a delay caused by the requirement to obtain the opinion of a UK expert in relation to both the machines. 

On the fraud charges he had entered a guilty plea, and the money had not been spent on luxuries. 

Previous Convictions:

None. 

Conclusions:

Count 1:	15 months' imprisonment.
Count 2:	15 months' imprisonment, concurrent.
Count 3:	6 months' imprisonment, consecutive.

Total:  21 months' imprisonment.

Forfeiture of the computer equipment sought.

Compensation Order in the sum of £1,635 sought.

Sentence and Observations of Court:

The Court noted that the Crown had approached sentencing in absolutely the right way and that everyone who downloads indecent material contributes to the exploitation of the children concerned.  The Court accepted that these sorts of offences would normally call for a custodial sentence. 

It accepted however that there had been no distribution and indicated that it felt that there were exceptional reasons allowing it to order a non-custodial sentence.  These reasons were:-

1)     that Roberts had spent the equivalent of 6 weeks in custody on remand;

2)     that he had suffered the real penalty of having to live away from his family during the investigation;

3)     that there was no evidence of him having saved the images (all those found were thumbnails of deleted files);

4)     that there had (at no fault of the Crown) been a delay in investigating the case;

5)     that amongst the various personal mitigation, Roberts had lost his eldest teenage son to cancer, and had two other children with special needs.

The Court stressed that this was not a "let-off", and ordered that copies of the sentencing reports be passed to the children's service.  The reports themselves had recommended that the risk to Roberts' own children be "vigorously assessed and regularly monitored" should he not receive a prison sentence. 

Count 1:	210 hours' Community Service Order or 15 months' imprisonment in default.
Count 2:	210 hours' Community Service Order, concurrent, or 15 months' imprisonment in default.
Count 3:	66 hours' Community Service Order, consecutive, or 6 months' imprisonment in default.

Total:  276 hours' Community Service Order or 21 months' imprisonment in default. 

Forfeiture of the computer equipment ordered.

Compensation Order made in the sum of £1,635 payable to the Social Security Department with 2 years to pay.

C. M. M. Yates, Esq., Crown Advocate.

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

JUDGMENT

THE DEPUTY BAILIFF:

1.        You fall to be sentenced on an Indictment which contains three counts, the first two making indecent photographs of children, contrary to the Protection of Children (Jersey) Law 1994.  You pleaded not guilty to those charges and were sent to trial and convicted.  The facts which were adduced in evidence show that there was a total of 354 of these images on Count 1, of which 82 were duplicates, therefore 272 unique images; 63 of those were images in category 4 on the Copine scale and 7 on the category 5 on the Copine scale.  That scale reflects that the photographs at category 4 showed penetrative sexual activity between children and adults and at level 5, show pictures of sadism or bestiality.  The Court has not thought it necessary to view the images given that it is proceeding on the basis that this is the detail of the images which involve children under the age of ten. 

2.        Offences of this nature will almost invariably call for a custodial sentence.  The Crown has, in our view, approached the question of sentence in absolutely the right way.  The offences are there to prevent the exploitation of children and everyone who participates in that process including those who view the images, contribute to that exploitation.  The Court has been asked to adopt the approach which has been taken in the Court of Appeal case in England of R-v-Oliver, Hartrey and Baldwin [2003] 1 Cr App R 28; both the Crown and the Defence suggest that that is the right approach to take and indeed the Court agrees that the analysis of the different categories of offending in that case by the Court of Appeal are helpful.  We think that in the instant case the offending under Counts 1 and 2 fall in the penultimate category of offending, that is to say, there was the possession of a large amount of level 4 or level 5, on the Copine scale, images.  We accept that there is no issue here about distribution of images or producing or trading the images and therefore we take that into account; we sentence you on the basis of having made the images by downloading them and possessing them. 

3.        As I have said, the Court takes the view that these are serious offences which normally call for a custodial sentence for the very reason that children must be protected.  Absolutely exceptionally in the instant case the Court is going to sentence you on the basis that your sentence should be served in the community; that there is an alternative to custodial sentence but it is fixed having regard to the Court's view that the Crown's approach to the custodial sentence is absolutely correct. 

4.        On Count 1 we are therefore going to sentence you to 210 hours' of community service and the same sentence, 210 hours' of community service on Count 2, which is to be served concurrently with Count 1.  The reasons for this, and I give them in no particular order of importance, are these:-

(i)        The Court has noted that you have spent some 6 weeks or so in custody on remand;

(ii)       The Court has noted that you have suffered a real penalty of having to spend time at a different address from your family during 2008 for a period by voluntary agreement with the relevant agencies and from October 2009 to date, as a result of the bail conditions;

(iii)      We have taken particularly into account that there is no evidence of distributing the material and no indication of having saved the material for review on a second or subsequent occasion;

(iv)      We have taken into account that for reasons which are not the fault of the Crown, it nonetheless remains a fact that these proceedings have been hanging over you for a period of 2½ years, since the first computer was seized;

(v)       That perhaps more importantly than all those, there are a number of personal features relating to you concerning your family which we have taken into account in particular the personal tragedy of losing your son in 2003 and its effect upon you and the other difficulties relating to having two children with special needs, and in particular the other matters which are set in the psychological report. 

No-one should think that performing a sentence of community service is any form of let-off.  It is as the legislation demonstrates, an alternative to custody and is only to be imposed where the Court thinks that custody would otherwise be the right sentence and you will be brought back to this Court both on these counts and on the other count which I am going to come onto shortly, if you do not perform the community service and you breach the terms of the order. 

Advocate Yates, we also direct the Crown to ensure that the social enquiry report and the psychological report are passed to the Children's Service if that has not happened already. 

5.        I now come to Count 3; this Count involved the obtaining by fraud from the Social Security Department the sum of £1,635.69 by receiving various benefits and failing to declare earnings which you had made as a carpet fitter.  The Court reminds itself that a fraud against the social security department is a fraud against the community at large.  It is nonetheless a fraud although you cannot identify a particular victim.  In fact, all islanders are victims as a result of this fraud.  We think the Crown's approach is entirely right and in the same circumstances that we are looking to apply a Community Service Order in relation to Counts 1 and 2, we sentence you to 66 hours' community service on Count 3 which will be served consecutively to the community service on Counts 1 and 2, the result is that you will serve a total of 276 hours' community service.  The custodial sentences to which they are alternative are those moved for by the Crown of 15 months' imprisonment on Counts 1 and 2, concurrent, and 6 months' imprisonment, consecutive, on Count 3. 

6.        The Court is also going to make a compensation order in favour of the Minister in the sum of £1,635.  The Court would be prepared to allow 2 years to pay and liberty to apply. 

7.        Mr Roberts, you pleaded not guilty to these offences and according to the background report and your counsel, you still do not accept your guilt.  Nonetheless there is no doubt from the Court's perspective, as I said earlier, that viewing images of this kind does make a contribution to the exploitation of children and I hope that when you come to contemplate the sentence which is now imposed, you will come to appreciate the seriousness which these offences involve. 

8.        We order the forfeiture of both computers. 

Authorities

Protection of Children (Jersey) Law 1994.

R-v-Oliver, Hartrey and Baldwin [2003] 1 Cr App R 28.

Laverick-v-AG 1999/4.

Livingstone Stewart & Others (1987) 9 Cr App R (S) 135.