Jersey Unreported Judgments

Inferior Number Sentencing - Indecent photographs

[2020]JRC251

Royal Court

(Samedi)

4 December 2020

Before     :

J. A. Clyde-Smith O.B.E., Commissioner, and Jurats Blampied and Ramsden

The Attorney General

-v-

Daniel Rory Stephen Heaney

Sentencing by the Inferior Number of the Royal Court, following conviction at an Inferior Number Trial on 26^th October, 2020, to the following charges:

5 counts of:

Making indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Counts 1 to 5).

Age:  34.

Plea: Not guilty.

Details of Offence:

The defendant was found guilty after trial of making indecent images of children ("IIOC") by downloading them from the internet or storing them on devices after doing so.  The defendant made 268 IIOC with seven of those images being in category A.  The IIOC were downloaded and stored on 5 different devices over a six-year period between 2013 and 2019.  Forensic evidence showed the defendant searched for underage material, visited websites and both downloaded and viewed indecent material.  He also discussed the exchange of indecent material, although no distribution was found.

Details of Mitigation:

Good character, good employment record, partial co-operation with police, positive character references.

Previous Convictions:

None.

Conclusions:

Count 1:	Starting point 3 years and 6 months' imprisonment.  3 years' imprisonment
Count 2:	Starting point 3 years and 6 months' imprisonment.  3 years' imprisonment, concurrent
Count 3:	Starting point 3 years and 6 months' imprisonment.  3 years' imprisonment, concurrent
Count 4:	Starting point 3 years and 6 months' imprisonment.  3 years' imprisonment, concurrent
Count 5:	Starting point 3 years and 6 months' imprisonment.  3 years' imprisonment, concurrent

Total:  3 years' imprisonment.

Order sought under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 7 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. 

The Crown also invited the Court to make the following restrictive orders, to run from the date of sentence for a period of 7 years, under the Sex Offenders (Jersey) Law 2010.

1.      That the Defendant be prohibited from:

a)      Owning or having in his possession or having access to any device capable of accessing the internet unless:

i.          It has the capacity to retain and display the history of internet use.

ii.          The Defendant ensures that such history is not deleted; and

iii.         That he register the device with the Offender Management Unit of the States of Jersey Police.

2.      That the Defendant be prohibited from:

a)      Living in the same household as any female under the age of 16 unless with the express approval of the Offender Management Unit of the States of Jersey Police;

b)      Contacting or attempting to contact, via any form of social media, internet or telecommunications system, any female he knows or believes to be under 16, unless there is a parent, guardian or responsible adult present who is over the age of 21, who is aware of the accused's convictions, and who does not have a conviction which would render him/her liable to notification under the Sex Offenders (Jersey) Law 2010;

c)         Being alone with any female child under the age of 16 years, aside from such contact which is inadvertent or unavoidable. They will be considered to be alone if there is not a parent, guardian or responsible adult present who is over the age of 21, who is aware of the accused's convictions, and who does not have a conviction which would render him/her liable to notification under the Sex Offenders (Jersey) Law 2010.

3.      That in circumstances where the Defendant finds himself alone with a female under the age of 16, or is in direct or indirect contact with a person he knows or suspects to be a female below the age of 16, that he has a positive duty to remove himself from that situation as soon as reasonably possible;

4.      That the Defendant cannot refuse access to police officers who are monitoring or checking on his restraining orders, and he must allow officers entry to any premises he occupies or is in control of for the purposes of searching for relevant devices.

Forfeiture and destruction of the devices sought.

No application for costs made

Sentence and Observations of Court:

Count 1:	Starting point 3 years imprisonment.  2½ years' imprisonment
Count 2:	Starting point 3 years imprisonment.  2½ years' imprisonment, concurrent
Count 3:	Starting point 3 years imprisonment.  2½ years' imprisonment, concurrent
Count 4:	Starting point 3 years imprisonment.  2½ years' imprisonment, concurrent
Count 5:	Starting point 3 years imprisonment.  2½ years' imprisonment, concurrent

Total:  2½ years' imprisonment. 

Order made under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 7 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, under the Sex Offenders (Jersey) Law 2010, to run from the date of sentence for a period of 7 years, with the conditions as set out in the Crown's Conclusions above.

Forfeiture and destruction of the devices ordered.

M. Jowitt Q.C., Solicitor General.

Advocate F. L. Pinel for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        We need to deal first with the provisions under the Sex Offenders (Jersey) Law, 2010.  The defence do not oppose the orders sought by the Crown and we impose them, namely that 7 years from today should elapse before the defendant can apply to lift the notification requirements and we impose the restraining orders set out in paragraph 22 of the Crown's Conclusions.

2.        Turning to the sentence, the defendant stands to be sentenced for five counts of making indecent images and movies of children by downloading them from the internet or storing them on devices after doing so and this following a trial.  Of the 268 images and movies involved, 7 were Category A or Copine Level 4, but the majority were in the lower Level C or Copine Level 1.  Taking the most serious offence the guideline case of AG v Godson and Crowley [2013] JRC 091 defines these as within Category 4, attracting an initial figure of 3 years on all of the assumptions that apply in that case, save that the quantity of images were not small.  Any number above 100 is considered large for the purposes of sentencing.

3.        In addition to the quantity of images the Crown submit that the offences are further aggravated by the collection involving 29 moving images and by the period of time in which the offences were committed namely some 6 years from 2013 to 2019. 

4.        The defendant remains fixed in his position that he did not commit these offences and that his devices were hacked by others.  He is assessed at a low risk of reconviction and the Crown assess the initial figure after taking into account aggravating and mitigating features of the offences at 3½ years reduced to a final sentence of 3 years after allowing for personal mitigation. 

5.        In terms of mitigation the defendant is of good character.  He had regular employment and is supported by his mother and father who we note are in Court, and as well by other relatives and friends who have written very good letters on his behalf.  Advocate Pinel for the defendant asks that we fix the sentences count by count accepting that the most serious count will determine the actual sentence the defendant will serve.  In our view this is not the way the Court has dealt with these kind of offences in the past and we intend to follow the approach put forward by the Crown by imposing the same concurrent sentence for all five counts, that sentence to reflect the most serious of the offences. 

6.        We are not persuaded that the inclusion of movie images in this case is an aggravating feature and in terms of looking at the aggravating and mitigating features of the offences as a whole we determine that 3 years is the correct initial figure.

7.        As to personal mitigation, the defendant of course gets no discount for a guilty plea as he has caused a trial and still maintains his innocence but he is entitled to a discount for his good character and his cooperation with the police in providing a list of passwords to the devices that were seized. 

8.        You are sentenced to 2½ years' imprisonment on each of Counts 1 to 5, concurrent, which makes a total of 2½ years' imprisonment. 

9.        We order the forfeiture and destruction of the devices.

Authorities

Sex Offenders (Jersey) Law, 2010. 

AG v Godson and Crowley [2013] JRC 091. 

Protection of Children (Jersey) Law 1994

AG v Le Gros [2020] JRC 204