Jersey Unreported Judgments

Inferior Number Sentencing - possession of indecent photographs - making indecent photographs.

[2015]JRC245

Royal Court

(Samedi)

27 November 2015

Before     :

J. A. Clyde-Smith, Esq., Commissisoner, and Jurats Fisher and Olsen

The Attorney General

-v-

Robert James Quinlan

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

2 counts of:	Possession of indecent photographs of children, contrary to Article 2(1)(b) of the Protection of Children, (Jersey) Law 1994 (Counts 1 and 2).
2 counts of:	Making indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Counts 3 and 4).

Age:  46.

Plea: Guilty.

Details of Offence:

A search warrant was executed at the defendant's home address.  During a search of the premises the police seized a number of devices including a Western Digital external hard disk; a black Toshiba external hard disk; and a Lenovo ThinkPad laptop computer.  At the time of the search the defendant stated to his partner "I may have downloaded stuff I shouldn't have". 

In interview the defendant admitted to downloading one indecent movie found on the black Toshiba external hard disk but denied that any other movies/images were stored on his memory devices. 

A forensic examination revealed a total of 138 indecent images on the Western Digital external hard disk; the Toshiba external hard disk; and the Lenovo ThinkPad laptop computer.  The images found were categorised as follows:-

On the Western Digital external hard disk:-

 

Category	Still images
1	7
2	2
3	6
4	3

 

On the Toshiba external hard disk:

Category	Still images	Moving images
1	1	14
2	0	23
3	0	2
4	0	35

 

On the Lenovo ThinkPad:

 

Category	Still images	Moving images
1	13	6
2	3	5
3	10	0
4	1	8

 

Following receipt of information regarding a further tower computer belonging to the defendant, police executed a search warrant at the defendant's brother-in-law's property, where the defendant had lived when he first arrived in the Island and where the tower computer was thought to be located.  When the search was carried out the tower computer was not at the brother-in-law's property.  It was subsequently discovered on the execution of a further search warrant at the defendant's home address, the defendant having removed it from his brother-in-law's loft during the intervening period. 

A forensic examination revealed a total of 47 indecent images on the tower computer.  The images found were categorised as follows:-

 

On the tower computer:

 

Category	Still images	Moving images
1	2	18
2	1	11
3	2	1
4	0	12

 

It was also noted on examination of the tower computer that efforts had been made to destroy the computer by removing hard drives and cables. 

Details of Mitigation:

Guilty plea, remorse, active in seeking help.

Previous Convictions:

None.

Conclusions:

Count 1:	1 years' imprisonment.
Count 2:	2 years' imprisonment, concurrent.
Count 3:	2 years' imprisonment, concurrent.
Count 4:	2 years' imprisonment, concurrent.

Total: 2 years' imprisonment.  

Order under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 5 years elapse before the accused is permitted to apply to no longer be subject to the notification requirements to commence from the date of conviction (9^th October, 2015) sought.

Restraining Order to commence from date of sentence for a period of 5 years under Article 10(4) with the following conditions:-

(i) that the defendant must produce to a police officer forthwith on request for examination, at any time, any computer or device which may access the internet, or any device which can store images electronically, which belongs to him or is in his possession; it being noted that such a request may be made anywhere, including by the police attending at the defendant's place of residence;

(ii) That the defendant is prohibited from owning or having in his possession or having access to any device capable of accessing the internet unless:-

a) It has the capacity to retain and display the history of internet use; and

b) the defendant ensures that such history is not deleted.

Forfeiture and destruction of the computer hardware seized.

Sentence and Observations of Court:

Count 1:	9 months' imprisonment.
Count 2:	9 months' imprisonment, concurrent.
Count 3:	15 months' imprisonment, concurrent.
Count 4:	15 months' imprisonment, concurrent.

Total: 15 months' imprisonment. 

Order under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 3 years elapse before the accused is permitted to apply to no longer be subject to the notification requirements to commence from the date of conviction (9^th October, 2015) made.

Restraining Order to commence from date of sentence to expire on 9^th October, 2018 under Article 10(4) with the following conditions:-

(i) that the defendant must produce to a police officer forthwith on request for examination, at any time, any computer or device which may access the internet, or any device which can store images electronically, which belongs to him or is in his possession; it being noted that such a request may be made anywhere, including by the police attending at the defendant's place of residence;

(ii) That the defendant is prohibited from owning or having in his possession or having access to any device capable of accessing the internet unless:-

a) It has the capacity to retain and display the history of internet use; and

b) the defendant ensures that such history is not deleted.

Forfeiture and destruction of the computer hardware seized.

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

Advocate S. E. A. Dale for the Defendant.

JUDGMENT

THE commissioner:

1.        Dealing first with the notification requirements under the Sex Offenders (Jersey) Law 2010, we order that it should be 3 years from the 9^th October, 2015, the date of the defendant's conviction, before he can apply to have the requirements raised and this because he is assessed at a low risk of reoffending and for the other reasons which we will come to in a moment. 

2.        In terms of the Restraining Order we are satisfied that the defendant poses a threat of serious sexual harm to the public, again in a way which we will cover in a moment, in that his use of the internet had become deeply ingrained over a long period of time and that it is necessary and proportionate to impose the limited restraining order sought by the Crown and this for a period ending on 9^th October, 2018 so as to be consistent with the earlier date. 

3.        The defendant is to be sentenced for possessing and making indecent images of children; in total there are 186 images, 59 of which are at level 4.  We agree with the Crown, as do the Defence that this offending falls into category 4 in the guidelines set out in AG-v-Godson [2013] (2) JLR 1 and that 3 years is therefore the appropriate initial figure.  We do not however agree with the Crown that this figure needs to be increased by 1 year in order to take into account two features which the Crown says are aggravating, namely the number of images, being over 100, and steps allegedly taken by the defendant to prevent detection of the images on the Tower computer.  Whilst we accept that the number of images is an aggravating feature, it is not sufficient, in our view, to justify an increase of the initial figure.  As to the alleged attempt to destroy the images on the Tower computer, the defendant has not been charged with perverting the course of justice.  The Defence say that he has not, or did not, remove the computer surreptitiously and he kept the hard drive on which of course the images were contained.  In this situation, in our view, we have to give the benefit of the doubt to the defendant and we therefore do not regard this as an aggravating feature which would increase the initial figure. 

4.        In terms of mitigation the defendant is of good character and has pleaded guilty.  The social enquiry report makes it clear that he has not sought to minimise his actions and is fully aware both of the illegality and harm such measures can cause the victims concerned.  That is, in our view, amply demonstrated by the lengthy letter he has written to us which, in the view of the Jurats, is one of the best letters that they have ever read.  The social enquiry report makes it clear that he harbours deep feelings of shame and guilt, in particular for the destructive impact his actions have had on his immediate and wider family.  He has indicated to the probation officer that he has no one else to blame for the devastation he has caused to his partner and young family and to his parents, and he will accept, we are told, whatever sentence the Court will impose. 

5.        The Crown accepts that his remorse is genuine.  The social enquiry report states that he has taken active responsibility for his offences and his motivation to address his illegal behaviour is described in their report as commendable.  He is also assessed at a low risk of generalised reconviction and of sexual reconviction.  So there is very considerable mitigation available to the defendant. 

6.        Nevertheless the Court's policy is clear and there are, in our view, no exceptional circumstances here which enable us to depart from the requirement for a custodial sentence.  Quoting from paragraph 28 of the social enquiry report it is clear "the serious harm caused to children through the creation of indecent images.  This harm is exacerbated by the fact that the abuse is visually recorded thereby effectively re-victimising the children on each occasion the images are viewed and acting as a barrier to recovery from the original abuse.  The viewing of these images creates a market which serves to perpetuate the sexual abuse of children."  So having taken the initial figure of 3 years we have adjusted that as set out in Godson to arrive at the following sentence. 

7.        For Count 1 you are sentenced to 9 months' imprisonment, Count 2; you are sentenced to 9 months' imprisonment, concurrent.  Count 3, you are sentenced to 15 months' imprisonment, concurrent and Count 4 you are sentenced to 15 months' imprisonment, concurrent, making a total of 15 months' imprisonment. 

8.        We also order the forfeiture and destruction of the computer hardware seized. 

Authorities

Sex Offenders (Jersey) Law 2010.

AG-v-Godson [2013] (2) JLR 1.

AG-v-Young [2013] JRC 212.

AG-v-Hosking [2015] JRC 173.

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