Jersey Unreported Judgments

Indecent photographs - reasons for sentence passed on 15th April, 2013.

[2013]JRC091

Royal Court

(Samedi)

15 May 2013

Before     :

Sir Michael Birt, Kt., Bailiff, and Jurats le Cornu, Morgan, Marett-Crosby Nicolle and Olsen.

The Attorney General

-v-

Jonathan Richard Godson

William John Crowley

C. M. M. Yates, Esq, Crown Advocate. For HM Attorney General.

Advocate C. M. Fogarty for Godson.

Advocate A. M. Harrison for Crowley.

JUDGMENT

THE BAILIFF:

1.        Both defendants are charged with offences involving indecent images of children under 16 years of age, contrary to the Protection of Children (Jersey) Law 1994 ("the Law").  They are among the most serious cases of this nature to have come before the Court so far.  Although they are unconnected, the Court heard them together as the Crown invited the Court to issue a guideline judgment for assistance in future cases. 

2.        At the conclusion of the hearing, the Court passed sentence and gave a very short judgment in each case.  The Court indicated that it would give fuller reasons in due course and this judgment constitutes those reasons. 

3.        We propose to begin by summarising the facts relating to each defendant before discussing the applicable principles and then applying those principles to the two cases before us. 

The Facts

(i)   Godson

4.        The defendant Godson is 49.  In 2003 he was sentenced by West County Magistrates' Court to a 12 month community rehabilitation order for two offences of possessing an indecent image of a child.  He was placed on the Sex Offenders Register.  He moved to Jersey in 2005. 

5.        He faced a total of 24 counts.  11 of them were charges of possession of indecent photographs of children contrary to Article 2(1)(b) of the Law, 9 of them were of making indecent photographs of children contrary to Article 2(1)(a) of the Law, one was of distributing indecent photographs of children contrary to Article 2(1)(c) of the Law, one was of inciting the distribution of indecent photographs of children and 2 were of conspiracy to distribute indecent photographs of children.  The number of counts arose because of the different pieces of equipment upon which the images were stored. 

6.        All the offences related to images on computer.  The possession charges concerned images that the defendant had downloaded (i.e. "made" for the purposes of the Law) when he had been in England and prior to coming to Jersey.  He brought them with him.  The total number of images involved in relation to the possession charges was as follows:-

Copine Scale	Still images	Moving Images
Level 1	12, 215	2
Level 2	973	4
Level 3	3,923	15
Level 4	2,468	16
Level 5	180	1
TOTAL	19,759	38

7.        The total number of images involved in the possession charges was 19,797 of which 2,665 were at Levels 4 & 5 on the Copine scale. 

8.        The counts of making indecent images related to images that the defendant downloaded between April 2005 and March 2012, following his arrival in Jersey.  The totals involved were as follows:-

Copine Scale	Still images	Moving Images
Level 1	28,081	106
Level 2	3,001	97
Level 3	9,460	133
Level 4	8,389	336
Level 5	1,076	22
TOTAL	50,007	694

9.        As can be seen therefore the total number of images involved in the "making" charges was 50,701 of which 9,823 were at Level 4 or 5.  The aggregate total involved in both possession and making charges was 70,498 images of which 12,488 were at Level 4 or 5. 

10.      The incitement charge (Count 21) related to the defendant's use of the Google Hello messaging programme.  Recovered data showed that the defendant had engaged in conversation with a user known as "Youngpreggirl".  The defendant encouraged the user to send pictures.  In the early hours of 29^th October, 2007, Youngpreggirl sent the defendant seven pictures over the programme at his request.  The defendant complained saying "she's not crying though" and Youngpreggirl replied "not yet".  The defendant responded "it's all about the fucking and the crying". 

11.      The charge of distribution (Count 22) related to the admitted distribution by the defendant of in excess of 1,000 Level 4 images to other persons. 

12.      The two conspiracy accounts (Counts 23 and 24) related to the fact that he was the administrator of two paedophilic internet forums.  One was called Kingdom of Future Dreams ("KOFD") and the other the Knoll.  KOFD and another site Fairy Kingdom had been created by a third party known as "Dreamer" who lived in America.  When Fairy Kingdom, of which the defendant had been a member, was taken down two years ago, KOFD was established in its place.  As administrator of KOFD, the defendant could access the control panels, change the look of the forums, add or remove forums, control membership and moderate the boards.  The site allowed users to upload videos and play games but its main purpose was to host galleries and to facilitate the exchange of files and folders of indecent images of children.  There were about 30 members and membership was by invitation only.  The defendant said that he had been made administrator because he was a regular poster, had a "good attitude" on the forums and was a regular visitor.  About two weeks before his arrest, he had received information that "Dreamer" had been interviewed by the FBI.  As a result of this, the defendant took the initiative to take KOFD off line.  He was also an administrator for the website called the Knoll.  This site appeared to have been effectively a backup in case KOFD was taken down.  Most of the posts on the Knoll were the defendant's.  Both sites dealt mainly in Level 1 material. 

13.      Analysis of the defendant's various equipment showed that he had engaged in discussions over the internet with other users during which he fantasised about gang rape of children.  Indeed he made claims that he had abused an eight year old girl and that he and three friends had raped a 19 year old girl.  He suggested to one correspondent that they meet up on the continent to see if getting together "would inspire them to do for real what they had discussed".  There was another exchange between the defendant and a user known as SAIR1969 where the defendant referred to SAIR's "beautiful slut 13 year old daughter" and explained exactly what he would like to do to her sexually, which it is not necessary to repeat in this judgment.  It is accepted by the prosecution that this was bravado and there is no evidence that he has in fact ever personally abused a child or committed any offence of this nature.  The Court has passed sentence on that basis. 

14.      Nevertheless, the exchanges illustrate the perverted fantasies of the defendant and of others who were downloading indecent images of children.  The defendant was asked during interview whether his ultimate goal was to abuse a pre-adolescent child to which he replied that it was and that he had thought about it for several years.  He admitted to having gone from viewing Level 1 images to Level 5 images very quickly.  He was asked if there was a barrier that would stop him progressing to contact offences and he said that he had not gone beyond the viewing of Level 5 images.  He did not think he would go further, but said that he needed help with his compulsion.  On two occasions in 2011, he posted entries about having passed young girls in the Island, one of whom he had given a lift to.  The message was in salacious terms.  He admitted that the stories were accurate and he had given one of the girls a lift. 

15.      Following intelligence that a Jersey resident using a particular email address was involved in the distribution of indecent images of children, a warrant was executed in March 2012 at the defendant's address and he was arrested.  It is right to say that when interviewed, the defendant was extremely cooperative and volunteered much information about his offending. 

(ii) Crowley

16.      The defendant Crowley is 67.  In 1995, for five offences of indecent assault in respect of three prepubescent female children, he was sentenced to 5 years' imprisonment.  There were at the same time offences involving indecent images of children, for which he was sentenced to 6 months' imprisonment concurrent.  In December 2001, before the Magistrates' Court, he was sentenced to 12 months' imprisonment concurrent on a charge of conduct likely to cause a breach of the peace (which involved taking covert photographs of children in a park) and two charges involving indecent photographs of children.  He had committed a similar offence of conduct likely to cause a breach of the peace by taking covert photographs of children in a park in 1989, for which he had been bound over. 

17.      On 12^th September, 2012, a warrant under the Law was executed at his home address and he was arrested on suspicion of possession of indecent images of children.  During an initial search, two computer towers were seized.  The defendant denied there would be any indecent images on either machine and he was then released.  Following a preliminary analysis of the computers that morning, it appeared that he had been downloading data onto an external device.  Police officers re-attended at his address that afternoon and the defendant then produced two external hard drives, one of which he had hidden inside a sofa at the premises and the other inside a vacuum cleaner. 

18.      Analysis of the hard drives showed that he had downloaded indecent images of children and that the majority of the indecent material had been stored in a logical and descriptive folder structure, sorted into thousands of separate folders. 

19.      The total number of indecent images downloaded was 63,987 of which 63,731 were still images and 256 were moving images.  Of the total, 1,000 were at Level 4 or 5. 

Guidelines

20.      As mentioned previously, the Crown has invited this Court to establish some sentencing guidelines for offences of making of indecent images. 

21.      The Court has been referred to a number of previous Jersey cases namely AG-v-Horman [2008] JRC 187, AG-v-R [2009] JRC 137, AG-v-Green [2011] JRC 082, AG-v-Cardy [2011] JRC 096, AG-v-U [2011] JRC 219, AG-v-De Nobrega [2012] JRC 182, AG-v-Bourke [2012] JRC 205, AG-v-Le Galle [2012] JRC 235 and AG-v-N [2013] JRC 052.  In none of these cases were any principles of sentencing set out and the facts varied considerably.  In the circumstances we do not think it necessary to refer to them specifically but we have considered each case in coming to our conclusions.  In U, William Bailhache DB stated at paragraph 20, with reference to the leading English case of R-v-Oliver [2003] 1 Cr. App. R. 28 that this Court did not consider itself bound by the levels or type of sentence which the Court of Appeal had set out in Oliver and went on to say that the prevalence of offences of this nature coming before the Court might lead the Superior Number at some future date to review the levels of sentence in this area.  The guidelines set out in Oliver have been considered by the Sentencing Guidelines Council of England and Wales and, as amended, are now reflected in the guidelines issued by that Council for offences relating to indecent images of children.  We have considered both Oliver and the guidelines of the Council. 

22.      However, since the issue of those guidelines, the decision of the seven judge Guernsey Court of Appeal in Wicks and Others-v-Law Officers of the Crown (22^nd March 2012) has been handed down.  That court was constituted with seven judges because of concern about observations of the Guernsey Court of Appeal in the earlier case of Gunter-v-Law Officers of the Crown (15^th July 2011), which seemed to indicate that Guernsey was obliged to follow the sentencing levels established in England and Wales.  The Court in Wicks emphatically disagreed with that proposition and re-affirmed the independence of Guernsey in sentencing matters as follows:-

"19. The difficulty with the observation in Gunter ... is that it appears to suggest that, when the elements of the offence in question and the statutory maximum sentences are the same in Guernsey as in England and Wales, the Guernsey courts may only depart from English sentencing levels if there is a significant difference in social or other conditions between Guernsey on the one hand and England and Wales on the other.  We must respectfully disagree.  Such an approach is wholly inconsistent with Guernsey's position as a separate jurisdiction.  Naturally, where the elements of the offence in question are comparable in the two jurisdictions and the statutory maximum sentence of the offence is also comparable, the Guernsey courts may well derive considerable assistance from the sentencing practice applied in England because of its larger size and the greater number of cases which will come before the courts of that jurisdiction.  A recent example of this court choosing of its own volition to apply English sentencing levels is the decision in Burton itself (which concerned an offence of rape). 

20. But there is no need for there to be a significant difference in social or other conditions for the Guernsey courts to take a different approach from England and Wales and adopt a different level of sentencing.  The Guernsey courts may simply consider that the sentencing levels for England are either two high or too low and should not be followed.  They are perfectly free to do so.  It is wrong to start from the position that sentencing levels in England are correct and that there must be some specific reason to depart from them.  Rather, the position from which it is right to start is that the Guernsey courts must determine the appropriate sentencing levels for offences committed in Guernsey and that, in doing so, they may or may not derive assistance from what is done in England and Wales or in any other jurisdiction."

23.      What was said by the Court of Appeal in Wicks in relation to Guernsey is of course equally applicable for Jersey.  The Jersey courts are free to set their own sentencing levels for offences. 

24.      In Wicks, the Guernsey Court of Appeal went on to establish guidelines for offences involving indecent images of children.  Having considered the position, we conclude that those guidelines would be of equal assistance in Jersey.  Because Wicks is not as yet reported, we think it would be helpful to quote some lengthy passages from that judgment in order to set out the conclusions of that court, although reference to the judgment itself will frequently be of assistance:-

"39. The guidance given in Oliver was first reported and published in 2002.  It was reviewed by the Sentencing Guidance Council in 2007.  We have preferred to have regard, broadly, to the tabulation used by the Council in drafting Guidelines for this jurisdiction.  In each of the categories which we have adopted below, we refer to an "initial figure".  We envisage that, having selected what it considers to be the appropriate initial figure for the offence, the sentencing court will adjust that figure to reflect such aggravating and mitigating factors of the offence as there may be.  The resulting figure may be subject to a discount to reflect personal mitigation and a guilty plea.  We say more about that in paragraph 59 below. 

Category 1      Where an offender has been concerned in any way in the taking or production of an image falling within levels 4 or 5, an initial figure in the region of 6 years imprisonment would be appropriate. 

Category 2      Where the offender has similarly been involved in the taking or production of an image falling within levels 2 or 3, an initial figure in the region of 4 years imprisonment would be appropriate. 

Category 3      Where an offender has similarly been involved in the taking or production of images of level 1, an initial figure in the region of 2 years imprisonment would be appropriate. 

Category 4      Where an offender has made an image, or possessed an image for distribution or show, falling within levels 4 or 5, an initial figure in the region of 3 years imprisonment would be appropriate. 

Category 5      Where an offender has made an image, or possessed an image for distribution or show, falling within levels 2 or 3, an initial figure in the region of 18 months imprisonment would be appropriate. 

Category 6      Where an offender has made an image of material falling within level 1, a fine or community penalty, preferably with a condition of treatment, would be appropriate.  Where, however, one or more of the aggravating factors which we list below, or any other aggravating factor which the court considers relevant, is present, the court may feel that the custody threshold is passed and may consider whether a sentence of up to 6 months imprisonment would be appropriate. 

Category 7      Where the offence is limited to the making of a pseudo-image, the sentencing court may take the view that the custody threshold has not been passed and a fine or a community penalty, with or without conditions, would be appropriate. 

In relation to Category 7, we have been influenced by the consideration that pseudo-images do not have the specific ingredient of the abuse or exploitation of children.  However, if the case is one involving an image which, following the description in Oliver, may be described as "particularly grotesque", (para. 15), especially if one or more aggravating factors are present, the court may conclude that the custody threshold has been passed.  It must also be borne in mind that the distribution of such images fuels the demand for child pornography and may therefore justifiably constitute an aggravating feature of the offence. 

40. We now turn to matters which aggravate these crimes.  As with most criminal offences, a number of factors potentially aggravate any offence.  We do not regard the list as closed but it includes:-

1.        Breach of trust or the taking advantage of a child of special vulnerability, or where the production has involved threats to, or promises of reward for, the child, or where the child has been given alcohol or drugs to facilitate the taking of the image, or where the child has been deceived or otherwise manipulated or coerced. 

2.        Where the number of images is large, indicating a high level of personal interest in such images and/or a significant period of time over which the images have been collected. 

We have carefully considered the apparent preference of the Court in Gunter, following Oliver, to treat the amount of material as a reason for lifting the case from one sentencing category into another.  We prefer to treat quantity as an aggravating factor within the sentencing categories which we have proposed.  We also note that the Court in Oliver declined to define what is meant by a "large" number of images.  However, the High Court of Justiciary in Graham concluded that a large number could be defined as in the "high hundreds" and upward (see para. 32).  We accept that any figure is necessarily arbitrary and that a sentencing court might well take the view that a large number of images of levels 4 or 5 would constitute a more significant aggravating factor than a similar number of images of level 1, or levels 2 and 3.  We recognise the ease with which such images can be downloaded from the Internet.  Evidence from other cases demonstrates that paedophiles find the images addictive and tend to download images in substantial numbers.  We accept, as the Lord Justice-Clerk reports in his judgment, that offenders can quickly amass a collection of many thousands of images (para. 32).  Nonetheless, we decline, with respect, to adopt the view of the High Court of Justiciary.  We regard any number of images above three figures as constituting a large number.  In doing so we are less concerned to pay heed to the facility with which the images can be downloaded and more concerned to reflect the obvious fact that the possession of any significant number of such images involves the abuse either of a large number of children on a few occasions or of a small number of children on a large number of occasions.  With these observations we leave the extent to which the number of images is considered to be an aggravating factor for each level to the judgment of the Magistrates Court and the Royal Court. 

3.        Where the images have been widely distributed or shown to others. 

We regard wide-scale distribution of such material, even without the ingredient of gain, as a significantly aggravating factor of these offences and the larger the number of those to whom the images have been distributed, the more significant the aggravating feature.  As was said by the Court in Oliver:-

"Wide-scale distribution, even without financial profit, is intrinsically more harmful than a transaction limited to two or three individuals, both by reference to the potential use of the images by active paedophiles, and by reference to the shame and degradation of the original victims". 

The distribution or showing of indecent images to a child, or where the images have been stored in such a way as to make it more likely that they will be found accidentally by a child or by a vulnerable adult, is also a factor which aggravates the offence. 

4.        Where the commission of the offence includes an element of financial gain. 

This includes evidence that the images have been stored or organised in such a way as to indicate an interest in trading the images. 

5.        Relevant previous convictions including convictions for a similar offence or offences, or convictions involving sexual offences with a child or young person of either sex, whether the child consented or not. 

6.        Where the image is of a child from this Bailiwick. 

Any child who is abused by the taking of an indecent image not only suffers from having his/her innocence destroyed by the abuse, but the perpetuation of the image in photographic or moving picture form renders the abuse more lasting.  As the child grows older, nothing can effectively mitigate the knowledge that there exist on the Internet images of the abuse which he or she suffered and which are still being used by paedophiles for their perverse gratification.  It is not unusual for the police to find indecent images which are tens of years old and when the victim is traced the trauma of the abuse resurfaces.  (See "Sentences for Abuse Involving Child Pornography" by Professor Alisdair Gillespie; Crim. L. R. (2003) p. 81 at 91).  In our view, the sentencing court would be entitled to consider that the fact that the child victim was from Guernsey constituted an additional aggravating factor of any offence.  In this context we respectfully endorse and adopt what was said in Forno-v-Attorney General (2011) JCA 22, a case involving sexual images of Jersey children.  The Jersey Court of Appeal said:-

"The corrosive feelings of shame, self-reproach and alienation suffered by the child are significantly greater and more persistent in a small and relatively close-knit community than they are in the more anonymous environment of a highly urbanised country of more than 60 million inhabitants such as the United Kingdom.

... 

43.      The "initial figure" to which we have referred in these Guidelines is based on a number of premises: 

1.        That the offender is an adult. 

2.        That he has no relevant convictions i.e. no convictions for the same or a similar offence and no convictions for violence towards, or sexual assault of whatever kind on, a person of either sex under the age of 16 years. 

3.        That the number of images is small. 

4.        That the "making" of the image has been confined to being for the benefit of the offender himself or, if the image has been distributed or shown to another, that the number of those to whom it has been distributed or shown is limited to only two or three other adult persons. 

5.        The sentencing process results from a contested trial. 

44.      We have acknowledged that these Guidelines differ from Gunter in treating the quantity of images at each level as an aggravating factor within the different categories of sentence which we propose, rather than treating the number of images as an aspect of the offence which lifts it from one band into a higher one.  This change does not make it easy precisely to compare the approach which we have adopted and the approach adopted in that case.  However, in so far as the sentences we recommend appear to be more severe, for the reasons given in the early part of this judgment, we respectfully differ from that Court in considering it necessary to follow the sentencing categorisation recommended in Oliver, which in any event, has been superseded by the advice of the Sentencing Guidance Council in 2007 to which we have referred. 

...

48.      It seems to this Court, with respect, that the Gunter approach ignores a fundamental advantage which the administration of criminal justice enjoys in the Bailiwick.  It is rare, indeed, in England that a case involving the offence of making indecent images of a child/children receives national publicity and, therefore, that any sentence for the offence would be likely to have "a salutary effect in modifying criminal behaviour".  In this jurisdiction, however, any such case is very likely to be given prominent publicity in the local media.  The sentences which we propose are designed not just to reflect the increasing abhorrence towards this type of crime manifest over the last quarter century, but also to deter those in this Bailiwick who might be tempted to contribute to the abuse of children by taking, making or possessing for distribution or distributing, images of the kind we have defined. 

...

50.      Another way in which the Guidelines which we propose differ from those adopted in Gunter relates to the bracketing of sentences within the categories.  While we endorse the desirability for consistency in sentencing we do not consider it necessary to recommend ceilings and floors to the sentencing categories we have proposed.  Accordingly, in most of them we have used the phrase "an initial figure in the region of..." to identify the point from which a sentencing Court might embark.  We emphasise that the categories are not rigidly divided.  An offence in one category which has material aggravating factors may result in a sentence which comes within the sentencing levels for a higher category.

51.      In relation to previous convictions, in the view of this Court, the particularity of this offence renders general bad character less relevant as an aggravating factor than might be the case involving violence or dishonesty.  On the other hand any previous conviction for a sexual offence with or towards a child, or a previous conviction for making or possessing an indecent image of a child, should, in the view of this Court, significantly aggravate the offence and, if the offence itself has other aggravating factors, may well justify a sentence near to the statutory maximum, as the Vice President suggested in giving the judgment of the Court in Oliver (para. 18). 

52.      We emphasise that these Guidelines are indeed only guidelines.  They are not designated to inhibit the Royal Court from passing an individualised sentence in any case where such a sentence would be justified, or to provide any sort of straight jacket for the courts of this island.  Sentencing should always involve the judgment and discretion of the court at first instance. 

...

59.      There is an argument which has emerged both in Scotland and in England and Wales that the discount for a guilty plea should not be treated as mitigation in its strict sense but should be applied to a figure, calculated by reference to the aggravating and mitigating factors in the case, representing what would have been the sentence after a trial.  There are a number of reasons for separating the discounting exercise in this way in a large jurisdiction where public perceptions are perhaps different.  We are conscious, however, of the point made in Burton that in Guernsey sentencing is a collegiate exercise performed by a judge and seven or more Jurats, who will all have their views on matters of detail.  We see no need to direct the Royal Court to engage in a more structured exercise of the kind that appears to have gained support in the mainland jurisdictions.  So that this Court can understand the workings of the court below if there is an appeal, the important points for the Royal Court to bear in mind are that it should begin by selecting an initial figure and then adjust that to reflect any aggravating and mitigating factors of the offence, as suggested in paragraph 39 above.  The adjusted figure should then be discounted to reflect any personal mitigation and to give such credit as is appropriate for a guilty plea, to arrive at the sentence which will be passed.  The Royal Court should give such explanations of its calculations as it deems appropriate.  Discounts should be meaningful and the Royal Court should guard against getting too involved in considerations as to the strength of the Crown case (see paragraph 48 of Gemmell)." 

25.      One of the reasons for imposing firm penalties in relation to offences of this nature is that they are not victimless crimes.  The images, if not pseudo-photographs, are of events which have in fact happened.  In the case of the higher Copine levels in particular, a child will actually have been subject to the sexual abuse shown in the image, with all the suffering and damaging consequences which flow from that.  To give a flavour of the nature of the suffering imposed, we would point out that, in the case of Godson, there is an image which shows a child of about four who is naked apart from a dog collar around her neck.  She is lying on her back with her legs apart and an adult male is penetrating her vagina with his penis.  The expression on the child's face is one of distress.  Another shows penetration by a male penis of a female baby.  Another shows a female child of about nine committing fellatio on an animal, which appears to be a dog.  In the case of Crowley, one of the images shows a female child of about six being subject to anal intercourse by an adult male and another shows a female child of about five whose mouth has been gagged, her hands are tied to stakes, her legs are being pulled up towards her face by what appears to be rope and a wooden bar placed behind her knees and a large black dog is penetrating her vagina with its penis. 

26.      As the Court has said on many previous occasions, the gravamen of this offence is that the making and the distribution of indecent images fuels the demand for this kind of pornography and this in turn encourages the production of such images with consequent further abuse of young children. 

27.      In summary, we believe that this Court should in future follow the sentencing structure established in Wicks and apply the level of sentencing indicated in that case, always recognising that guidelines are not tramlines and that sentences must always be tailored to the facts of the individual case. 

28.      As distribution is treated as an aggravating factor for offences of making images, sentences for offences of distribution charged at the same time as offences of making indecent images should normally be made concurrent.  This issue was addressed in the recent Guernsey Court of Appeal decision of Le Gallez-v-Law Officers of the Crown (13^th March 2013) where the Court said this:-

"9.      As is apparent from §15 of his ruling, the Bailiff did not agree that the Royal Court had erred in taking distribution into account as an aggravating factor when considering the length of sentence for the making of indecent images, because (i) the Royal Court assessed the totality of the offending as a whole, (ii) it reflected the totality of the offences in the longest sentences imposed and (iii) it made the sentences run concurrently.  Since the separate sentences for the offences of distribution were no longer than the sentences for making indecent images, and they ran concurrently with those sentences, there was no double penalty. 

10.      We entirely agree with the Bailiff on this point.  The judgment in Wicks makes clear at §40.3 that widespread distribution is capable of being treated as an aggravating factor in sentencing for an offence of making indecent images.  We do not consider that the position is altered where distribution also forms a separate charge. 

11.      In general, when a sentencing court is faced with related offences of varying degrees of gravity, it is entitled either to treat the lesser offence as an aggravating factor when sentencing for the more serious offence, or (in an appropriate case) to impose a short, separate consecutive sentence for the lesser offence.  To do neither would leave that lesser offence unpunished.  In the context of drug trafficking, the decisions in Richards -v- Law Officers (CA, 18^th April 2002, unreported), at §12, and O'Dette -v- Law Officers [2007-08] GLR 16, at §40-43, provide illustrations of the former approach.  In both cases this Court observed that the better course is to treat the lesser offence as aggravating the gravity of the more serious offence, and to impose a greater term of imprisonment than would otherwise have been imposed for the more serious offence, to run concurrently with the lesser sentence imposed for the lesser offence.  The Court said that consecutive sentences should not normally be imposed in such cases, because that might create the misleading impression that each offence is being sentenced more leniently than it is."

The offending in that case involved the downloading of 15,629 images of which 634 were at Level 4 or 5. The distribution consisted of uploading images onto a social website.  The Court of Appeal upheld a total sentence of 4 years 9 months following a guilty plea. 

29.      We respectfully agree with these observations.  However, as we shall describe shortly, there may be circumstances where it is appropriate to impose consecutive sentences. 

Application of the Guidelines to these cases

(i) Godson

30.      The facts of this case suggest an initial figure in the region of three years because some of the indecent images in question fall within Levels 4 and 5. 

31.      There are three aggravating features.  The first is the number of images.  This is by far the largest number of images with which this Court has been concerned.  Indeed, we were informed by the Crown Advocate that the number of Level 4 and 5 images (12,488) is in itself larger than the total figure across all categories in almost all of the previous cases dealt with in Jersey. 

32.      Secondly, there is the element of distribution.  For reasons which we will explain shortly, we do not take into account as an aggravating feature the defendant's role as administrator of the KOFD and the Knoll websites because we propose to pass consecutive sentences for that activity.  Clearly, it would be penalising the defendant twice if one passed a consecutive sentence and also treated the same facts as aggravating the "making" offences.  However we do take into account as an aggravating factor the distribution of the 1,000 Level 4 images which is the subject of Count 22. 

33.      Thirdly, we treat as an aggravating factor the defendant's previous conviction in 2003 for similar offences which resulted in him being placed on the UK Sex Register. As Wicks makes clear at paragraph 51, this significantly aggravates the offence and, if the offence itself has other aggravating factors, it may well justify a sentence near to the statutory maximum. 

34.      As set out in paragraphs 39 and 59 of Wicks, we must then consider whether there are any mitigating factors in relation to the offences themselves.  We find none in this case. The consequence is that, in our judgment, the aggravating factors move the initial figure up to eight years and three months.  From this we then allow for personal mitigation.  The only substantial mitigation is the guilty plea (which was entered at an early opportunity) and his cooperation and, allowing for these, we reduced the sentence to 5½ years.  We therefore impose concurrent sentences at this level for all of the offences of making indecent photographs where those involve any Level 4 and 5 images, with lesser concurrent sentences for those which do not. 

35.      Turning to the two counts of conspiracy to distribute indecent photographs, these relate, as we have described, to the defendant's role as administrator of two websites.  We think that this goes beyond being an aggravating feature of the offences of making indecent images.  This involved a higher level of participation in the distribution of indecent images of children than we have come across previously and does not fall naturally within any of the categories of offending described in Wicks.  We accept that these two websites were concerned predominately with Level 1 images but the defendant played an active role.  As already stated, as administrator he could access the control panels, change the look of the forums, add or remove forums and moderate the boards.  He could control membership and the content posted by others.  Through his administration of the websites, he was providing a forum that could be populated by others and used to share indecent material.  His level of involvement was also such that he was able to remove the content from the website when alerted to the fact that the authorities were investigating the position. 

36.      In our judgment, a consecutive sentence is appropriate for these two offences to mark this much higher level of involvement in the distribution of indecent images and we impose a sentence of 2½ years' imprisonment on each of Counts 23 and 24.  These will be concurrent with each other but consecutive to all the other sentences. 

37.      The sentences actually imposed are therefore as follows.  On the possession charges, 2½ years' imprisonment on Counts 3, 5, 7, 9, 10, 12, 14, 15, and 19 and 6 months on Counts 1 and 17 (where no Level 4 and 5 images were involved), all sentences being concurrent.  On the making charges the sentence imposed is 5½ years', concurrent on Counts 2, 4, 6, 8, 13, 16 and 20 with 2½ years' on Count 11 and 6 months on Count 18, both concurrent; on Count 21 (incitement) 3 years', concurrent and on Count 22 (distribution) 5½ years' imprisonment, concurrent.  As already mentioned, on Counts 23 and 24 (conspiracy to distribute) we impose concurrent sentences of 2½ years' which are to be consecutive to the other sentences making 8 years in total. The total sentence is therefore 8 years' imprisonment. 

38.      We order the forfeiture of the relevant computer equipment, we impose a period of 10 years before the defendant can apply to be released from the notification requirements under the Sex Offenders (Jersey) Law 2010 ("the 2010 Law") and we make restraining orders in the following terms for a period of 10 years from release, on the grounds that the defendant poses a threat of serious sexual harm:-

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

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

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

(b) the accused ensures that such history is not deleted;

(iii)      he is prohibited from being alone with any 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 and who is aware of the accused's convictions; and

(iv)      where he finds himself alone with a child under the age of 16 and such contact has been inadvertent or unavoidable, he must remove himself  from that situation as soon as reasonably practicable."

(ii) Crowley

39.      Crowley faces two counts of making indecent images, one relating to each hard drive.  He made a total of 63,987 images of which 1,000 are Level 4 or 5.  A vast majority in his case are at Level 1.  In those circumstances we take an initial point of three years as the case falls within category 4. 

40.      As to aggravating features, there is first the number of images.  Secondly, there is the fact that he has previous convictions for indecent assault on three children and also has two previous convictions for offences involving indecent photographs.  As already mentioned, this is a significant aggravating factor.  Thirdly, he sought to prevent discovery to the extent of hiding the hard drives in the sofa and in a vacuum cleaner.  Fourthly, it is clear that he had carefully organised the storing of the files and this was referred to as an aggravating factor in Oliver.  Again, there are no mitigating features of the offending itself. We consider that the aggravating features lift the initial point to 7½ years. 

41.      In mitigation we take into account the guilty plea and his advocate also referred to his remorse and his age.  In our judgment, the appropriate sentence in his case is 5 years' imprisonment, concurrent in each count.  We order forfeiture of the relevant equipment, we order that he may not apply to be released from the notification requirements under the 2010 Law for 10 years and we make restraint orders in similar terms to those for Godson for 10 years from the date of his release, having satisfied ourselves that the defendant poses a threat of serious sexual harm. 

Authorities

Protection of Children (Jersey) Law 1994.

Sex Offenders (Jersey) Law 2010.

Sentencing Guidelines Council of England and Wales.

AG-v-Horman [2008] JRC 187.

AG-v-R [2009] JRC 137.

AG-v-Green [2011] JRC 082.

AG-v-Cardy [2011] JRC 096.

AG-v-U [2011] JRC 219.

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

AG-v-Bourke [2012] JRC 205.

AG-v-Le Galle [2012] JRC 235.

AG-v-N [2013] JRC 052.

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

Wicks and Others-v-Law Officers of the Crown (22nd March 2012).

Gunter-v-Law Officers of the Crown (15th July 2011),

Le Gallez-v-Law Officers of the Crown (13th March 2013).