[2011]JRC096
ROYAL COURT
(Samedi Division)
6th May 2011
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Before :
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W. J. Bailhache, Q.C., Deputy Bailiff, and
Jurats Le Cornu and Liddiard.
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The Attorney General
-v-
Karl Andrew Peter Cardy
Sentencing by the Inferior
Number of the Royal Court,
following a guilty plea to the following charges:
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3 counts of:
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Making indecent photographs of children,
contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994.(Counts 1, 2 and 3).
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Age: 33.
Plea: Guilty.
Details of Offence:
The defendant’s ex-girlfriend
handed a disc containing indecent images to the police saying that she believed
it belonged to the defendant and that it had been given to him by Simon Green
(Green was sentenced for this and related offences on 15th April
2011). The disc was examined and
was found to contain 39 indecent images as follows:-
Count 4 (not guilty plea accepted by
the Crown)
Copine scale Pictures
Category 1 20
Category 2 13
Category 3 1
Category 4 5
Category 5 0
The defendant was arrested after his
home was searched. An Acer computer
tower, a Dell laptop and a Time laptop were seized. He was interviewed and denied any
knowledge of indecent images on the disc.
He also stated that there were no indecent images on the seized
equipment.
A full examination of the seized
equipment was carried out and indecent images were found on each. The images were as follows:-
Count 1 (Time laptop)
Copine scale Pictures
Category 1 11
Category 2 1
Category 3 3
Category 4 9
Category 5 0
Count 2 (Dell laptop)
Copine scale Pictures
Category 1 19
Category 2 13
Category 3 0
Category 4 6
Category 5 0
Count 3 (Acer tower computer)
Copine scale Movies
Category 1 0
Category 2 1
Category 3 0
Category 4 3
Category 5 0
Evidence was also found that two
peer-to-peer networks were used to download the images. The material had explicit filenames that
indicated the content. Extreme
adult pornography showing bondage and rape was also found.
The defendant was re-arrested and
interviewed. He admitted that he
had downloaded the images and that he was aware of their nature. He said that he did not know what was on
the disc handed to him by Green as it had caused his computer to freeze. It was accepted that there was no
evidence that pictures from the disc had been downloaded and this count was not
pursued.
He agreed he had an interest in
children, but contended that it was not sexual. He claimed that his interest was in
children aged 15 and above despite the fact that the images found were of
younger children.
Assessed as being at medium risk of
general reconviction of sufficient risk of sexual re-offending to warrant
supervision and sex offender treatment.
Details of Mitigation:
Guilty plea. No previous convictions of a similar
nature.
Previous Convictions:
Four convictions for six offences
including two for grave and criminal assault.
Conclusions:
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Count 1:
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12 months’ imprisonment.
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Count 2:
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12 months’ imprisonment,
concurrent.
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Count 3:
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12 months’ imprisonment,
concurrent.
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Total: 12 months’ imprisonment.
Order under Article 5(5) 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 sought.
Forfeiture and destruction of the
computers sought.
Sentence and Observations of Court:
R-v-Oliver is helpful for Copine scale and categories of offending but the
penalties suggested are not guidelines of which the Court approves. There is an argument for deterrent
sentences as the Court has indicated on two previous occasions, the Oliver
guidelines may be too low.
Conclusions granted.
C. M. M. Yates, Esq., Crown Advocate.
Advocate C. R. Baglin for the Defendant.
JUDGMENT
THE DEPUTY BAILIFF:
1.
Before I
come to imposing sentence in this case I wish first of all to mention that we
were asked by Advocate Baglin to defer sentence on the grounds that it may be
that the accused will be charged shortly with offences under Article 51 of the Telecommunications
(Jersey) Law 2002 where the alleged offending might be, if charged, that he
breached that law by sending abusive texts to his former partner. This conduct, if it took place, is
alleged to have taken place last month.
2.
We do not
consider that there is any reason why we should not proceed to sentence on the
present Indictment as already indicated.
We consider that any totality principle is not going to be applicable. We note that the maximum sentence under
the Telecommunications Law is 6 months’ imprisonment and of course,
if there is a guilty plea and other mitigation would reduce that, and in the
circumstances the interests of the efficient administration of Criminal Justice
suggests to us that we can continue with the sentence of this accused; we do
not consider he will suffer any prejudice having regard to all the
circumstances of the case. But we
also note that if such charges are to be brought that it will be the second
time that conduct of this nature has been brought to the attention of the Court
in the last few weeks and we think there is a case for the Attorney General to
consider, with the relevant authorities, whether the maximum sentence on such a
charge should not be increased.
Obviously that would not affect this particular accused and in any event
we do not know a) whether this accused is going to be charged, or b) whether he
is going to plead guilty or be convicted of it, and so these are preliminary
remarks; I wish to make it absolutely plain that I only address them in the
context of the request that we do not proceed to sentence today, and we have
not taken into account any of these matters in relation to the sentence which
we are now going to impose. I emphasise
again we have not seen the charges, the accused may or may not be guilty of
them, no admissions are made today understandably and there is no basis for
adjourning sentence.
3.
You have
pleaded guilty to three counts of making indecent photographs of children
contrary to Article 2 of the Protection of Children (Jersey)
Law 1994. The offending took
place between April 2006 and June 2010, which is therefore a period of just
over 4 years. There were 66 images
in total of which 18 were at Copine Level 4. I mention the Copine Level 4 images for
this reason. At Copine Level 4 or 5,
the lives of those children who have been subjected to this conduct will be
blighted for their entire life time and when we read in the background reports
that you do not really think you are culpable of some of the offending, we
think that that point needs to be emphasised to you. Looking at these images encourages the
circulation of these images on the internet and encourages offending which
will, as we say, blight these children’s lives forever. It is for that reason that making images
at Copine Level 4 and 5 is particularly serious and images at this level will
be treated by the Court as giving rise to sentences of imprisonment in almost
every case.
4.
We have
been asked to apply the R-v-Oliver, Hartley & Baldwin
[2003] 1 Cr. App. R. 28 guidelines and we find the case of Oliver to be
helpful, first of all in the provision of the Copine Level and also in the
categories of offending, the nature of offending as set out in the Crown in its
conclusions. The penalties which
are suggested by the Court of Appeal in England in relation to those
categories of offending are not, however, guidelines which we in terms approve,
although obviously we have regard to them.
5.
There is
an argument, we think, to be put for deterrent sentences in cases such as yours
and the Court has, certainly on two previous occasions, indicated that it
considers that sentences which will be imposed will be of a higher level
because there appears to be a prevalence of this offending in Jersey. The amount of this kind of offending is
increasing and therefore the Court must mark, in a deterrent way, the sentences
which are imposed. There is a view
that the Oliver guidelines in this respect may be too low and that the
message needs to be sent out that this kind of offending will be treated very
seriously by the Court. However,
that is not a matter to be dealt with by this Court today.
6.
We have
looked at the offending which you have committed; we treat you as in the
categories of offending identified by the case of Oliver as being in the
possession of a small amount of Level 4 images. And so while we think that there may be
a substantial case for saying that the bracket should be higher than 6-12
months for this offence, we are not in fact going to increase the Crown’s
conclusions today.
7.
We have
taken account of the mitigation which you put forward through your counsel who
has said everything that can be said on your behalf. The most important part of that mitigation
is your guilty plea which you have rightly made. The next most important part is to note
the relatively small number of Level 4 images, but we point out that that
simply takes us into that category of offending which is described in Oliver
and so within that bracket we think that 12 months’ imprisonment, which
was the Crown’s conclusions, is correct. We take into account particularly the
long period of offending. We take
into account the fact that within that bracket the small number of Copine Level
4 pictures nonetheless represents a significant proportion of the illegal
images found. We take into account
that more than one piece of computer equipment was used. And we take into account that you had the
use of peer to peer programmes to download the images. There is no evidence that this led to
sharing the images and we absolutely do not sentence you on the basis that you
did, but we note that the use of these programmes would make such sharing
possible. We have taken into
account the mitigation that you have advanced through your counsel; we do not
that think it is helpful to refer to other individual cases because each case
falls to be dealt with on its merits.
8.
In the
circumstances, in your case, we sentence you to 12 months’ imprisonment
on each count, concurrent, making a total of 12 months’
imprisonment.
9.
We order
the forfeiture of the computer equipment under Article 2 of the Criminal
Justice (Forfeiture Orders)(Jersey) Law 2001.
10. As a separate matter which is not connected
with the sentencing at all, we are required to address the question of the Sex
Offenders Register which we have. Theoretically
I should have addressed this at the outset of my remarks because the Law
requires it to be dealt with separately and prior to sentencing, but I
emphasise that we have treated the matter as not part of the criminal
process. Under the Sex Offenders
(Jersey) Law 2010 you are subject to
automatic notification requirements and I understand from Crown Advocate Yates
that these have been explained to you and you have already complied with
those. The Law requires that we
should fix a period of time before which you cannot apply to the Court to have
these notification requirements disapplied to you and we agree with the Crown
that the right period is five years before you can bring such an
application. We apply the
principles which are set out in the case of AG-v-Velosa [2011] JRC 026 and we take into account in this case all
the information which is contained in the background reports which show that
there is at least on some of the tests a medium risk of re-conviction in
connection with sexual offences. And
that seems to us to mean that the risk of serious sexual harm to the public as
such that a 5 year period should elapse before you can bring any application to
be released from the notification requirements under the Law.
Authorities
Telecommunications (Jersey)
Law 2002.
Protection of Children (Jersey) Law 1994.
R-v-Oliver, Hartley & Baldwin [2003] 1 Cr. App. R 28.
Criminal Justice (Forfeiture Orders)(Jersey) Law 2001.
Sex Offenders (Jersey)
Law 2010.
AG-v-Velosa
[2011] JRC 026.
AG-v-Gavey
[2010] JRC 203.