Jersey Unreported Judgments

Superior Number Sentencing - indecent photographs - incitement to publish - publishing indecent photographs.

[2013]JRC019

Royal Court

(Samedi)

24 January 2013

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Clapham, Kerley, Nicolle, Crill and Le Brocq.

The Attorney General

-v-

B

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 2^nd November, 2012, following 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).
10 counts of:	Incitement to publish obscene articles (Counts 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12).
7 counts of:	Publishing an obscene article (Counts 13, 14, 15, 16, 17, 18 and 19).

Age:  49.

Plea: Guilty.

Details of Offence:

Count 1 - B received three Level 3 and two Level 4 images over the internet, in return for which he provided a (non-indecent) image of his niece.

Count 2 - B created an indecent image of his 10 year old niece by superimposing an obscene caption over an innocuous image cropped from a family photograph. 

Counts 3-10 - B engaged in internet chat with third parties, in which he incited and encouraged them to post photographs of his sister-in-law captioned with obscene comments on various websites.  He provided the photographs and made suggestions and requests as to the nature of the comments that should be added.  The suggestions included rape, sexual slavery, coprophilia and bestiality.  He provided details such as his sister in law's full name (including maiden and middle names), her profession and place of work, her car registration and where she parked.  As well as the chat related specifically to the images, B engaged in conversations in which he repeatedly asked for his sister-in-law to be raped, degraded, used as a prostitute and sold into sexual slavery.  In several of the conversations he purported to be his own wife (his sister-in-law's sister) and encouraged the degradation of both his wife and sister-in-law.  In almost every case it was clear that the sister-in-law was an unwilling and unknowing participant in this.  In the exception, B purported to be the sister-in-law.  He stated in these conversations that it was his lack of control over the images and captions which "turned him on". 

Count 11 - B engaged in an email exchange, in which he provided a photograph of his niece to a third party, and asked him to post it with an obscene caption. 

Counts 12-19 - B created images of his sister-in-law by placing obscene captions on otherwise innocuous photographs.  These images included cropped family photographs, and pictures of the sister-in-law as a bridesmaid, at her graduation, in Halloween costume, and on her own wedding day in her dress and veil.  Several of the captions were phrased as though written by the sister-in-law, and invited the viewer to come to Jersey to rape her and providing an email address to send abuse to her.  At least one viewer took the offer seriously enough to ascertain that Flybe flies direct to Jersey. 

B was assessed as being at high risk of reconviction for internet-based sexual offences.  He showed a "reckless disregard for the physical safety and psychological wellbeing of his sister-in-law and niece" (per the Forensic Psychologist's report). 

The sister-in-law provided a victim personal statement in which she said her family had been ripped apart, and not only she, but her husband and parents had suffered.  She felt constantly unsafe and had had to sell her car as its description had been posted on the internet. 

Details of Mitigation:

Prosecution:- Guilty plea and previous good character.  Co-operative with the police. 

Defence:- low risk of contact offences; was suffering from tunnel vision and did not appreciate that his actions had an effect on the real world.  Did not set out to deliberately place sister-in-law and niece at risk.

Previous Convictions:

None.

Conclusions:

Count 1:	6 months' imprisonment.
Count 2:	6 months' imprisonment, concurrent.
Count 3:	4 years' imprisonment, concurrent.
Count 4:	4 years' imprisonment, concurrent.
Count 5:	4 years' imprisonment, concurrent.
Count 6:	4 years' imprisonment, concurrent.
Count 7:	4 years' imprisonment, concurrent.
Count 8:	4 years' imprisonment, concurrent.
Count 9:	4 years' imprisonment, concurrent.
Count 10:	4 years' imprisonment, concurrent.
Count 11:	4 years' imprisonment, concurrent.
Count 12:	4 years' imprisonment, concurrent.
Count 13:	4 years' imprisonment, concurrent.
Count 14:	4 years' imprisonment, concurrent.
Count 15:	4 years' imprisonment, concurrent.
Count 16:	4 years' imprisonment, concurrent.
Count 17:	4 years' imprisonment, concurrent.
Count 18:	4 years' imprisonment, concurrent.
Count 19:	4 years' imprisonment, concurrent.

Total: 4 years' imprisonment.

The Crown asked the Court to certify that Counts 3-19 were sexually aggravated offences under the Sexual Offences (Jersey) Law 2010. 

Order sought under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 5 years elapse before the defendant is permitted to apply to no longer be subject to the notification requirements.

Restraining orders sought under Article 10(4) with the following conditions:-

i)       the accused be prohibited from owning or having in his possession any device capable of accessing the internet unless it has the capacity to retain and display the history use and the accused ensures that such history is not deleted.

ii)      the accused produce to a police officer forthwith on request for examination, from time to time, any computer or any device which may access the internet, or any telephone or mobile phone, which belongs to him or is in his possession.

iii)      the accused is prohibited from owning or possessing any device capable of storing digital images unless he makes it available on request for inspection by a police officer.

The Restraining Order to apply for a period of 5 years to commence from date of release from custody.

Forfeiture and destruction of the computer and other computer equipment sought.

Sentence and Observations of Court:

The Deputy Bailiff described the offences as "extraordinary" and said that they had caused actual damage to the sister-in-law and to family relationships as well as exposing both the sister-in-law and niece to potential harm. 

Conclusions granted.

Mrs S. J. O'Donnell, Crown Advocate.

Advocate P. S. Landick for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced on seven counts of publishing an obscene article, ten counts of incitement to publish an obscene article and two counts of making an indecent image of a child under the age of 16.  You uploaded photographs of the complainant onto an open source website.  It means that no user name or password is required to access the site.  You posted images under a user name "whoreuser".  You used an email address to set up the account and the profile picture you originally put onto the site was a photograph of the complainant, although later it was changed.  As a member of the site you were aware of its contents and you were aware of the nature of the advertisements and links which appear on the sidebar.  The images which you put on the site were not in themselves obscene or indecent.  They included images taken from family events including your mother-in-law's birthday, a wedding anniversary and Christmas.  You uploaded photographs of the complainant as a bridesmaid; also at her graduation; in Halloween fancy dress; and on her wedding day dressed in wedding dress and veil.  Many of the photographs had captions added or superimposed.  They were surrounded by graphic pornographic images including images of bestiality which, although you did not place those images on the site, as a registered user you would have been well aware of the pornographic nature of images that would be likely to appear adjacent to your postings. 

2.        In some cases, as I say, you added the captions yourself.  In others the captions were added by other users.  You then engaged in internet chat communications with persons you did not know.  You gave out the Christian, married and maiden name of the complainant.  You enquired as to whether one of those you communicated with could arrange to have the complainant abducted for real.  It is not suggested by the Crown that you intended that this should actually take place.  You asserted that the complainant had engaged in all sorts of sexual activity and in bestiality and suggested she should be drugged and used as a prostitute and you used explicit language as to what she would do and what should be done to her. 

3.        In relation to the complainant's daughter, who was then aged 10 or 11 at the time, you told one of your unknown communicators that she was 11 and ready for sexual activity.  You suggested her photograph should be put on an open source site and your contact said he would.  This conduct generally continued over a 3 year period with a great deal of sexually explicit material. 

4.        Circumstances such as these have come before this Court for the first time.  The Court simply does not understand how you could have got yourself into the position of behaving like this.  Because it is the first time conduct of this kind has come before us we have had to look carefully at the principles which should govern sentencing.  I am going to deal first of all with the two counts which are less important, although they are, nonetheless, important offences. 

5.        In relation to Count 1 where you received a number of images, not many compared with some this Court sees in case before it, there were three images on the R-v-Oliver [2003] 1 Cr. App. R. 28 Scale at level 3 and two at level 4.  The images were not distributed and indeed they were promptly deleted.  On a not guilty plea the Court takes the view that this was what was called in the case of Wicks & Ors-v-Law Officers of the Crown (Guernsey judgment 14/2012) in Guernsey a category 4 offence and therefore the initial figure the Court would have taken would be 3 years' imprisonment.  There are no aggravating features and you have a good deal of mitigation not only for the guilty plea but also personal mitigation and the Court thinks the Crown's conclusions of 6 months' imprisonment on this Count are correct and you are therefore sentenced on Count 1 to 6 months' imprisonment. 

6.        On Count 2 the circumstances are different.  This was a photograph, an image which you made of your niece where the Oliver/Wicks guidelines do not apply.  There was nothing essentially pornographic in the image itself but when one takes into account the addition of the caption it clearly does become a pornographic image.  We are in different territory from the usual cases.  The gravamen of the offences, the making of this child's photograph, with an obscene caption is in the circumstances where, once it is made, it then becomes possible for publication to take place.  But worse still, the making of the image is compounded by the aggravating circumstances of the breach of trust which you owed to her as her uncle, the damage to the wider family and potential damage to this girl.  The Court has considered the relative position of Count 1 and Count 2 and recognises that Count 1 involves real children put in pornographic situations knowingly suffering real damage.  In Count 2 there may not be such damage; though you were the original maker of the obscene image, the girl may never know, she has not had the direct experience.  The Court thinks, on balance, that it should be treated equally, therefore Count 2 and Count 1, and the Crown's conclusions are correct, having regard to the aggravating circumstances which are set out, and you are therefore sentenced on Count 2 to 6 months' imprisonment, concurrent. 

7.        I now turn to the more serious offences of incitement to publish obscene photographs and publishing obscene photographs.  As I indicated there are no authorities and that is perhaps unsurprising because the technology for making the commission of offences like this relatively easy is also relatively recent.  We accept that you are in many ways in need of help.  We accept your statements of remorse.  We accept that you have had bereavement problems.  Of course we accept you are of good character and we have read carefully the references which have been put before us and, indeed, all the material which is in the psychological report and in the social enquiry report.  As I have said the Court finds the conduct to be quite extraordinary and we cannot understand how you could have contemplated it.  What you have done has caused actual damage to your sister-in-law.  It has caused actual damage to family relationships.  It has caused potential damage to your sister-in-law's safety and to your niece's safety and at the end of the day, although the Court accepts that you did not intend anything to harm them, and indeed if you had had that intention the sentence would have been very much higher, the fact is that weird and challenged people anywhere in the world could see these images and come to this Island and be a real threat.  That information is in the public domain forever, and it is in a sense therefore much worse than the foul and disgusting captions which you added to these images.  The Court accepts you never intended to harm the complainants but there was recklessness in a very real way which fed your fantasy and which is the damage which this Court has to recognise in the sentence which it passes. 

8.        We think the Crown's conclusions are correct and you are therefore sentenced to 4 years' imprisonment, concurrent on each of Counts 3 to 19 in the Indictment and those are to be served concurrently with Counts 1 and 2, making a total of 4 years' imprisonment on this Indictment. 

9.        We would like to add that we have read carefully all the material but we accept entirely the trauma which is disclosed in the victim impact statement and it is for your conduct that you are today being sentenced. 

10.      We have been asked by the Crown to consider further matters.  The first is the destruction of the relevant material, computer equipment, and we order the forfeiture and destruction of the computer and other computer equipment which belongs to you and which was seized by police.   

11.      We now come to the question of the Sex Offenders Register.  The Court accepts that Counts 3 - 19 are sexually aggravated offences and the notification requirements will therefore apply to you with effect from today in so far as those are concerned.  You will be subject to the notification requirements until a court says that you are not subject to them and we order that you cannot apply to have these requirements removed for at least 5 years from today. 

12.      We also make the Restraining orders the Crown has asked us to make:-

(i)        You are prohibited from owning or having in your possession any device capable of accessing the internet unless it has the capacity to retain and display history use and you ensure that such history is not deleted;

(ii)       you must produce to a police officer forthwith on request for examination, from time to time, any computer or any device which may access the internet or any telephone or mobile phone which belongs to you or is in your possession;

(iii)      you are prohibited from owning or possessing any device capable of storing digital images unless you make it available on request for inspection by a police officer.

These restraining orders will apply for a period of 5 years to commence from the date of your release from custody. 

13.      I should add that in relation to the restraining orders you should remember that if you breach them then you are committing a further criminal offence for which you are liable to be sentenced.  They are important restraining orders. 

Authorities

Sex Offenders (Jersey) Law 2010.

Protection of Children (Jersey) Law 1994.

Children (Jersey) Law 2002.

R-v-Oliver [2003] 1 Cr. App. R. 28.

Wicks & Ors-v-Law Officers of the Crown (Guernsey judgment 14/2012).

AG-v-U [2011] JRC 219.

AG-v-De Nobrega [2012] JRC 182.

AGe-v-Le Heuze [2007] JRC 042.

AG-v-Horman [2008] JRC 187.

Forno-v-AG [2011] JCA 022.

R-v-Smethurst [2002] 1 Cr. App. R. 6.