Jersey Unreported Judgments

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

[2015]JRC052

Royal Court

(Samedi)

6 March 2015

Before     :

Sir Michael Birt, Commissioner, and Jurats Milner and Grime

The Attorney General

-v-

Constance Normonde Kafile

Sentencing by the Inferior Number of the Royal Court, following guilty pleas 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 1-5).
1 count of:	Possession of indecent photographs of children, contrary to Article 2(1)(b) of the Protection of Children (Jersey) Law 1994 (Count 6).

Age:  43.

Plea: Guilty.

Details of Offence:

During an investigation into an unrelated incident (from which no charges resulted) the defendant's iPad and smartphone were seized by the police.  These were examined and 186 unique indecent images of children were identified on the iPad and one video was found on the smartphone.  The defendant was interviewed and initially denied knowledge of or responsibility for the images.  She was interviewed a second time at her own request.  She disclosed that she had been sexually abused in childhood and admitted that she had searched for indecent images of children.  Forensic examination revealed that it was not possible to prove that the vast majority of images had ever appeared on the iPad's screen, and that the defendant may not have been aware that they were present. 

Counts 1 - 5 therefore relate to five discrete iPad browsing sessions in which it could be proved that indecent images of children were made.  The images were as follows:-

	Count 1	Count 2	Count 3	Count 4	Count 5
Level 1	0	1	1	2	0
Level 2	0	0	0	0	0
Level 3	0	0	0	1	2
Level 4	1	0	0	1	3
Level 5	0	0	0	0	0

Count 6 relates to one level 3: indecent video of a child that was sent to her smartphone.

Details of Mitigation:

The Crown:

Guilty plea, previous good character, future risk could be mitigated by therapy for depression and PTSD resulting from childhood sexual abuse, remorse (assessed as genuine in both Social Enquiry Report and psychological report), viewing of indecent images of children was akin to a form of self-harm rather than for sexual gratification. 

The Defence:

Risk of reconviction would be reduced by treatment. 

Previous Convictions:

None.

Conclusions:

The Crown regarded this as an unusual case in that the defendant viewed images as a form of self-harm and to divert herself from memories of childhood abuse.  In the circumstances it submitted that a non-custodial sentence could be justified. 

Count 1:	210 hours' Community Service Order, equivalent to 15 months' imprisonment, together with a 2 year Probation Order.
Count 2:	70 hours' Community Service Order, equivalent to 2 months' imprisonment, together with a 2 year Probation Order, concurrent.
Count 3:	70 hours' Community Service Order, equivalent to 2 months' imprisonment, together with a 2 year Probation Order, concurrent.
Count 4:	210 hours' Community Service Order, equivalent to 15 months' imprisonment, together with a 2 year Probation Order, concurrent.
Count 5:	210 hours' Community Service Order, equivalent to 15 months' imprisonment, together with a 2 year Probation Order, concurrent.
Count 6:	140 hours' Community Service Order, equivalent to 8 months' imprisonment, together with a 2 year Probation Order, concurrent.

Total: 210 hours' Community Service Order, equivalent to 15 months' imprisonment, together with a 2 year Probation Order. 

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 sentencing sought. 

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

i)       That the defendant 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 of accessing the internet unless:-

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

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

Forfeiture and destruction of iPad and Samsung mobile telephone sought. 

No recommendation for deportation sought.

Sentence and Observations of Court:

Exceptional case.  Conclusions granted, save that the Probation Order would include as a condition that the defendant undergo psychological treatment as recommended by the probation officer. 

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

Advocate J. M. Grace for the Defendant.

JUDGMENT

THE commissioner:

1.        You have pleaded guilty to downloading twelve indecent images of children, five at level 4 on the Copine scale, three at level 3 and four at level 1.  You also had a video at level 3.  Now this Court takes a serious view of the downloading of indecent images of children, not least because real children have suffered during the making of these images and people like you who download them, fuel the demand and therefore encourage evil people to make these images, do you understand?  And the Court takes a particularly serious view when the images are at the higher levels of the Copine scale because the suffering of the children has been greater.  It follows that a prison sentence almost invariably follows such offending. 

2.        But, the Court does regard yours as an exceptional case.  We have no doubt that, as the psychological report and the probation report have made clear, your offending is very much related to the terrible events of your own childhood.  And it is to your credit that despite those childhood events, you have reached the age of 43 without having committed any previous criminal offences, you have qualified as a nurse and followed a career as a nurse, you have three children and it is clear that you are extremely remorseful about what you have done and you are motivated to do something about it.  It has also clearly had a devastating effect upon your life including, as we say, that fact that your son has been taken into, what one hopes is temporary, foster care.  We have also read the very powerful letter from your church supporting you.  So in all the circumstances we think this is an exceptional case and we do not need to send you to prison; so we are going to agree with the recommendations that are made. 

3.        On each of the Counts, we are going to place you on probation for 2 years with a condition that you undergo the psychological work as directed by your probation officer.  You have seen the reports; it has been recommended you should have psychological work with the Psychological Services.  We are making it a condition of your Probation Order that you must do that work.  If you fail to do it then you will be in breach of your Probation Order and I will explain that in a moment.  We think you must also be punished and therefore you must undertake community service.  So on Count 1; 210 hours Community Service Order, which is equivalent to 15 months' imprisonment, Count 2; 70 hours' Community Service Order, equivalent to 2 months' imprisonment, Count 3; 70 hours' Community Service Order, Count 4; 210 hours' Community Service Order, Count 5; 210 hours' Community Service Order and Count 6; 140 hours' Community Service Order, which is equivalent to 8 months' imprisonment, all of those concurrent.  That makes a total of 210 hours in all. 

4.        We also order the forfeiture and destruction of the iPad and the Samsung mobile telephone.

5.        We also tell you that you are now subject to the notification requirements which your Advocate will explain to you and we say that you cannot apply for 5 years to come off that.

6.        We are also satisfied that, as with all offenders who download child pornography, the conditions for making a Restraining Order are satisfied and we are going to make the Restraining Order in the terms requested by the Crown.  I am not going to read it out but you have seen it.  It says that you must give access to your computer to a police officer at any time and you must make sure that your computer can display its history and you must not delete any of the history.  And that will also be for 5 years. 

7.        I must tell you that have been quite fortunate because, as I say, prison is the normal consequence of your sort of offending.  So I just want to explain that you must adhere completely to the Probation Order and the Community Service.  If you do not do what you are directed either on Community Service by not turning up or not working hard, or if you do not do what your probation officer tells you or, of course, if you reoffend, then you can be brought back here and we will have to sentence you afresh.  At that stage clearly the likelihood will be that you go to prison; so you must do exactly what your probation officer says and you must turn up on time for all the Community Service. 

8.        So that is sentence of the Court. 

Authorities

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

Camacho v AG [2007] JLR 462.

AG v Lekkerkerker [2013] JRC 217.