Inferior Number Sentencing – making indecent photographs – inciting the making of indecent photographs – possession of drugs - (Class B) – making use of public telecommunication service to send indecent message.

[2015]JRC022

Royal Court

(Samedi)

30 January 2015

Before     :

W. J. Bailhache, Q.C., Bailiff, and Jurats Clapham and Blampied

The Attorney General

-v-

B

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

1 count of:	Making indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Count 1).
2 counts of:	Inciting the making of indecent photographs, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Counts 2 and 8).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 6).
2 counts of:	Making use of a public telecommunication service to send a message that is grossly offensive, or of an indecent, obscene or menacing character, contrary to Article 51(a) of the Telecommunications (Jersey) Law 2002 (Counts 7 and 9).

Age:  18.

Plea: Guilty.

Details of Offence:

The defendant contacted two Jersey girls; both aged 13, on Facebook and sent them indecent and obscene messages.  He asked the girls for sex and offered them money.  In relation to one girl, he asked for an indecent photograph which she refused to send. 

Following the complaints from the children, the defendant was arrested and his mobile telephone and a USB memory stick were seized.  An analysis of the seized items revealed 10 indecent images of a young girl under the age of 16.  The images were all Level One on the Copine scale. 

Further investigations lead to the identification of the child in the images.  She was the defendant’s 13 year old sister who resided in the UK.  The defendant had sent her a series of indecent and obscene messages via Facebook over a number of months.  In the messages the defendant tried to persuade his sister to have a sexual relationship with him.  He had also sent naked pictures of himself.  He had repeatedly asked his sister to send him naked photographs of her and she eventually agreed.  She later stated that she had felt forced into doing so. 

At the time the defendant contacted his sister and the Jersey children on Facebook he was 17 years old. 

On a separate occasion the defendant was arrested and found in possession of 698mg of a green herbal material which included the controlled drugs 5F-PB-22 and 5F-AKB-48 (also known has synthetic cannabis). 

Details of Mitigation:

Guilty pleas; youth; emotionally damaged by challenging background.  No previous convictions. 

Previous Convictions:

None.

Conclusions:

Count 1:	4 months’ youth detention, concurrent to Count 2.
Count 2:	12 months’ youth detention.
Count 6:	1 week’s youth custody, concurrent.
Count 7:	3 months’ youth detention, concurrent
Count 8:	6 months’ youth detention, concurrent.
Count 9:	1 month’s youth detention, concurrent.

Total:-12 months’ youth detention. 

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

iii)      Not to have any direct or indirect contact, in any way whatsoever (including but not limited to, contact through the mediums of email, social networking sites, texting or any other form of electronic communication) with any person under the age of 16 years of age, other than is inadvertent and/or unavoidable.

iv)      That he is prohibited from being alone with any child under the age of 16 years, aside from such contact which is inadvertent and/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 defendant’s convictions; and

v)       That where he finds himself alone or in contact 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.

Pursuant to Article 3(1) of the Criminal Justice (Anonymity in Sexual Offence Cases)(Jersey) Law 2002 the victims (in light of the allegations of Unlawful Sexual Intercourse), shall be subject of a prohibition from publication of their identities during their lifetime.

Forfeiture and destruction of the USB stick and the mobile telephone sought.

Sentence and Observations of Court:

Count 1:	18 months’ Probation Order.
Count 2:	18 months’ Probation Order, concurrent.
Count 6:	18 months’ Probation Order, concurrent.
Count 7:	18 months’ Probation Order, concurrent.
Count 8:	18 months’ Probation Order, concurrent.
Count 9:	18 months’ Probation Order, concurrent.

Total: 18 months’ 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 ordered. 

Restraining Order made 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.

iii)      Not to have any direct or indirect contact, in any way whatsoever (including but not limited to, contact through the mediums of email, social networking sites, texting or any other form of electronic communication) with any person under the age of 16 years of age, other than is inadvertent and/or unavoidable.

iv)      That he is prohibited from being alone with any child under the age of 16 years, aside from such contact which is inadvertent and/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 defendant’s convictions; and

v)       That where he finds himself alone or in contact 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.

Pursuant to Article 3(1) of the Criminal Justice (Anonymity in Sexual Offence Cases)(Jersey) Law 2002 the victims (in light of the allegations of Unlawful Sexual Intercourse), shall be subject of a prohibition from publication of their identities during their lifetime.

Forfeiture and destruction of the USB stick and the mobile telephone ordered.

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

Advocate S. E. Fitz for the Defendant

JUDGMENT

THE BAILIFF:

1.        You are here to be sentenced on counts of making indecent images, possession of drugs (a personal amount of synthetic cannabis), some telecommunications offences including some messages and offensive pictures of yourself, and inciting the making of indecent images, encouraging a local girl who was aged 13, to send pictures of herself to you.  The indecent image offences are serious offences and will usually call for a prison or custodial sentence and you should realise that. 

2.        Because you are 18 we are required to have regard to the Law which tells us not to impose a custodial sentence on you unless no other way of dealing with you is appropriate and we have listened very carefully to your counsel and we have considered the terms of the law and we have no doubt at all in the light of the background reports that we have had that there is a different way of dealing with these offences and we are not going to send you to the Young Offenders Centre. 

3.        When I say that, it is important that you realise how serious the offences are, and how you need to commit to the Probation Service and to Dr Briggs in the work that they will be doing with you and which you need to do as well. 

4.        The relevant provisions of the Young Offenders (Jersey) Law 1994 which I have mentioned, are first of all, does the person have a history of failing to respond to non-custodial penalties and you have no previous convictions so that does not apply to you.  The second is whether a custodial sentence would be adequate to protect the public from serious harm from the person and we take the view, actually, that the protection of the public is best achieved in this case by a non-custodial sentence and by an alternative method of dealing with it.  And so we were left to consider the third provision in Article 4 of the Law, whether the offence or the totality of offending is so serious that a non-custodial sentence cannot be justified. 

5.        Well, that provision needs to be reflected by whether there is any other method of dealing with you which is appropriate and because we are looking to protect the public and because of your age, there is another way of dealing with you and that is why we propose to follow the recommendations of the Probation Service and you will be put on 18 months’ probation. 

6.        You can expect, in the course of those months of the Probation Order that there will be an amount of work which you will have to do as directed by the probation officer.  You will have to complete some one-to-one work with Dr David Briggs which will focus on challenging your attitudes towards sex, engaging positively with efforts to secure employment or further education and stable accommodation, and undertaking a full alcohol and drug assessment.  And clearly you must, for your own future, think quite hard about your cannabis taking; I am pleased to note that you have apparently stopped taking cannabis for the last month or so, and you have to keep that up because if you were to relax that would be a serious risk for you and for further offending which you might then commit and then you will be back in court.  So it is in your interests, and as is so often the case, the future, your future, is in your hands and you need to give some serious thought to that. 

7.        Now you are subject to the notification requirements under the Sex Offenders Law and we order that you cannot apply to come off the Sex Offenders Register, to have the notification requirements disapplied to you, for 5 years.  You are also going to be subject to a number of restrictive orders which are the ones that the Crown has asked for and which your counsel has agreed.  They are these:-

(i)        That you 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 you or is in your possession, it being noted that such a request may be made anywhere, including by the police attending at your place of residence. 

(ii)       You are prohibited from owning, or having in your possession, or having access to any device capable of accessing the internet unless:-

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

(b)       And you ensure that such history is not deleted.  So you are not to delete the history if you do have such a device. 

(iii)      You are not to have any direct or indirect contact, in any way whatsoever (including but not limited to, contact through the mediums of email, social networking sites, texting or any other form of electronic communication) with any person under the age of 16, unless that is inadvertent and/or unavoidable. 

(iv)      And you are prohibited from being alone with any child under the age of 16, aside from such contact which is inadvertent, that means accidental, or unavoidable.  They will be considered to be alone if there is not a parent, or a guardian or responsible adult present who is over the age of 21 and is aware of the convictions which you have; and

(v)       Where you find yourself alone or in contact with a child under the age of 16 and the contact has been inadvertent, accidental or unavoidable, you must remove yourself from that position, you have to leave the room, as soon as reasonably practicable. 

And you must realise that if you breach any of these restraining orders, that itself is a criminal offence and will render you liable to being sent to the Young Offenders Institute or to prison.  Those restraining orders will stay in place for 5 years as well. 

8.        In addition the Court orders the forfeiture and destruction of the USB stick, that is Exhibit M2 and the black Nokia mobile telephone. 

Authorities

Sex Offenders (Jersey) Law 2010.

Young Offenders (Jersey) Law 1994.

AG-v-Godson and Crowley [2013] JRC 091.

AG-v-Olivotti [2013] JRC 128.