Inferior Number Sentencing – making indecent photographs.
[2015]JRC224
Royal Court
(Samedi)
6 November 2015
|
Before :
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W. J. Bailhache,Esq., Bailiff, and Jurats
Nicolle and Sparrow
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The Attorney General
-v-
Peter Philip Whitehouse
Sentencing by the Inferior
Number of the Royal Court, following guilty pleas to the following charges:
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7 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, 3, 4, 5, 6, and 7).
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Age: 57.
Plea: Guilty.
Details of Offence:
Whitehouse was a retired police
officer who had spent the majority of his career in community policing, and
since 2009 had worked within the charitable organisation “Prison Me No
way” (“PMNW”), liaising with school children in the
Island.
In April 2015 a search warrant was
executed at his house. He was not
present at the time and various items of computer equipment were seized. An initial examination showed the
presence of indecent images of children (“IIOC”) on certain
devices. Whitehouse was arrested
when he flew back into the Island that evening. Further electronic devices were seized
from his luggage.
During initial interview Whitehouse
admitted looking at a wide range of pornography, but remained silent when asked
what the seized computers might contain.
When later challenged, he took responsibility for anything illegal that
might be found, and ruled out the involvement of any other members of his
family. He then went on to admit
having used the family computer to download IIOC, and expressed shame and
embarrassment. He apologised to his
family and employer. He explained
that once he had downloaded the IIOC, he would save them onto other devices,
which he would then hide in his house.
Whitehouse maintained that he never
fantasised about having sex with children, and alleged that the thrill he got
from downloading the IIOC was “the
thrill of doing something that is illegal and not allowed”. He declined to say whether he was
sexually aroused by the IIOC.
A detailed forensic examination of
68 seized items was carried out. In
total 12 exhibits were between them found to contain a total of 1,557 different
IIOC. The majority of these
indecent files were movies, many of which were of a significant length (over 45
minutes each). A summary of the
image categorisations appears below:-
|
Category
|
Still images
|
Movies
|
Totals
|
|
1
|
227
|
74
|
301
|
|
2
|
83
|
471
|
554
|
|
3
|
81
|
21
|
102
|
|
4
|
106
|
464
|
570
|
|
5
|
1
|
29
|
30
|
|
Totals
|
498
|
1059
|
1557
|
The defendant had downloaded IIOC
from as far back as 2005 right up until 2015. The majority of the IIOC were located in
live user accessible areas on the exhibits, and had clear IIOC names. Evidence suggested that the files had
been downloaded through a peer-to-peer network, and then saved onto CDs, DVDs
and SD cards thereafter. In a
number of cases the IIOC had been sorted into types within separate folders
distinct from other legal pornography.
There was no evidence that IIOC had been shared or distributed.
A large amount of extreme images
were also located, mainly bestiality, together with a small amount of adult
pornography. It was noted that a
significant number of the category 5 movies centre around bestiality involving
children.
The Indictment included seven (7)
counts. Count 1 concerned an older
Shuttle computer tower used to download material from 2005 onwards, when the
defendant was still a serving Police Officer. It was found to contain a total of 135
IIOC, categorised as follows:-
|
Category
|
Still images
|
Movies
|
Totals
|
|
1
|
24
|
7
|
31
|
|
2
|
1
|
69
|
70
|
|
3
|
8
|
0
|
8
|
|
4
|
12
|
12
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24
|
|
5
|
0
|
2
|
2
|
Count 2 covered a total of 53 CDs
and DVDs containing material downloaded and intentionally saved by the defendant
from 2005 onwards. The discs
contained adult material and pornography involving bestiality, together with
343 IIOC, categorised as follows:-
|
Category
|
Still images
|
Movies
|
Totals
|
|
1
|
8
|
13
|
21
|
|
2
|
4
|
105
|
109
|
|
3
|
1
|
6
|
7
|
|
4
|
7
|
190
|
197
|
|
5
|
0
|
9
|
9
|
Count 3 concerned two loose internal
hard drives containing downloaded material dated from 2005 onwards, which
between them contained 299 IIOC, categorised as follows:-
|
Category
|
Still images
|
Movies
|
Totals
|
|
1
|
42
|
8
|
50
|
|
2
|
18
|
28
|
46
|
|
3
|
11
|
9
|
20
|
|
4
|
22
|
155
|
177
|
|
5
|
1
|
5
|
6
|
Count 4 covered a total of 8 memory
cards and USB drives some of which contained material dating back to 2005. One of these memory cards had been in
the possession of Whitehouse when he travelled back to Jersey through the
Airport on the day of his arrest.
Between them the 8 items contained 151 IIOC, categorised as follows:-
|
Category
|
Still images
|
Movies
|
Totals
|
|
1
|
29
|
0
|
29
|
|
2
|
14
|
55
|
69
|
|
3
|
5
|
3
|
8
|
|
4
|
13
|
26
|
39
|
|
5
|
0
|
6
|
6
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Count 5 concerned a Compaq laptop
computer which contained 61 still IIOC, including 5 at level 3 and 13 at level
4.
Count 6 concerned an HP laptop
computer which was found to contain a total of 169 IIOC files, categorised as
follows:-
|
Category
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Still images
|
Movies
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Totals
|
|
1
|
65
|
0
|
65
|
|
2
|
29
|
12
|
41
|
|
3
|
40
|
0
|
40
|
|
4
|
23
|
0
|
23
|
|
5
|
0
|
0
|
0
|
Count 7 concerned a Samsung laptop
computer which had been purchased by the defendant from the PMNW charity. It was found to contain a total of 399
IIOC files, categorised as follows:-
|
Category
|
Still images
|
Movies
|
Totals
|
|
1
|
30
|
46
|
76
|
|
2
|
3
|
202
|
204
|
|
3
|
11
|
3
|
14
|
|
4
|
16
|
81
|
97
|
|
5
|
0
|
7
|
7
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The IIOC on this device dated
between 2012 and 2015. Analysis
showed that IIOC movies had been played on the laptop, and that the laptop was
still being used to open PMNW training material for island school children
(documents and PowerPoint) whilst also being used to download and view
IIOC.
On 9th July, 2015, the
defendant was interviewed again in the presence of his Advocate. At the beginning of the interview the
defendant read out a pre-written statement in which he restated his shame and
embarrassment, and apologised to his family, the Police, the PMNW charity and
all the schools and organisations that he had worked with. He stated “No vetting system in the world would have been able to identify
my dark side. Throughout all the
time I worked in the Island’s many schools, colleagues and youth
projects, I was totally professional in thought and in deed at all times. No child was ever at risk in any way
whatsoever.” The
defendant stated that he could not explain why he had done what he had; he had
periods of weeks and months when he would cease downloading because he was “overcome with remorse”. However he would then start again. The defendant described his behaviour as
irrational and that it was a battle.
In terms of aggravating factors, the
Crown took into account the sheer volume of material and length of time over
which it had been downloaded, the fact that Whitehouse had been a serving
Police Officer and representative of PMNW, together with the presence of a
filing system and deleting software.
Details of Mitigation:
Early guilty pleas and
cooperation. Proactive steps taken
to address his offending.
Previous Convictions:
None.
Conclusions:
Starting point 5½
years’ imprisonment.
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Count 1:
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3½ years’ imprisonment.
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Count 2:
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3½ years’ imprisonment,
concurrent.
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Count 3:
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3½ years’ imprisonment,
concurrent.
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Count 4:
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3½ years’ imprisonment,
concurrent.
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Count 5:
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2 years’ imprisonment, concurrent.
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Count 6:
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3 years’ imprisonment, concurrent.
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Count 7:
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3½ years’ imprisonment,
concurrent.
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Total: 3½ years’
imprisonment.
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 conviction sought.
Restraining Order sought to
commence from the date of release 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 any 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; and
ii) that the defendant is prohibited from
owning or having in his 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; and
b) The
defendant ensures that such history is not deleted.
iii) That the defendant may not undertake
any potential employment or voluntary work without first informing the police.
Forfeiture and destruction sought of
all of the seized devices which were found to contain IIOC in this case.
Sentence and Observations of Court:
The Court felt able to
make a slight reduction to the Crown’s conclusions and ordered the
following:-
Starting point 6
years’ imprisonment.
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Count 1:
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3 years’ imprisonment.
|
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Count 2:
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3 years’ imprisonment, concurrent.
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Count 3:
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3 years’ imprisonment, concurrent.
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Count 4:
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3 years’ imprisonment, concurrent.
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Count 5:
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2 years’ imprisonment, concurrent.
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Count 6:
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3 years’ imprisonment, concurrent.
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Count 7:
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3 years’ imprisonment, concurrent.
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Total: 3 years’
imprisonment.
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 conviction made.
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 any 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; and
ii) that the defendant is prohibited from
owning or having in his 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; and
b) The
defendant ensures that such history is not deleted.
Forfeiture and destruction ordered
of all of the seized devices which were found to contain IIOC in this
case.
Mark Temple QC, Solicitor General for the
Crown.
Advocate J. C. Gollop for the Defendant.
JUDGMENT
THE BAILIFF:
1.
You are
here to be sentenced on an Indictment which contains seven counts of making
indecent images of children. The
total number of images was 498 still images, 1,059 movies and of those 570
images were at category 4, that is 160 still and 464 movies and 30 images at
category 5, I still and 29 movies.
You had been conducting that making of images over a period of some ten
years during which you were a serving police officer and after you left the
police in 2009, you were a charity worker for Prison Me No Way (PMNW), a
charity working with the Island’s schoolchildren.
2.
For the
avoidance of doubt there is no evidence of any contact offences and it is not
alleged by the Crown and I want to
make that absolutely plain, we are looking only at offences involving making
indecent photographs of children and equally, for the avoidance of doubt, as
has been said by your counsel and I think accepted, that by you in your
interviews these offences are serious offences where there are real victims,
children are real victims of these offences, and that is what makes them
serious.
3.
The
Court’s policy for sentence is well settled by the Superior Number
decision of AG-v-Godson and Crowley [2013] JRC 074. There is no dispute that the offending
in this case falls within category 4 as set out in the Godson case and
we have to decide what the initial figure should be. Having looked at a figure of 3 years we
then increase it according to the aggravating features of the offending before
applying appropriate mitigation.
Here there is a large number of images at levels 4 and 5 and a very
large number of images overall. In
addition the making of images took place over a significant period of time and
we think there are seriously aggravating features in that you were a serving
police officer and also subsequently worked for PMNW; because your conduct
brings, as you have acknowledged, shame on both the police force and upon that
charity which is a charity which has as its object the keeping of children out
of custody. So we think that the
appropriate initial figure is actually 6 years’ imprisonment rather than
the figure 5½ taken by the Crown in that respect.
4.
Having
said that, it is important to recognise that sentencing is not a mechanical or
an arithmetic exercise and we entirely accept what Advocate Gollop has said to
us in a very full and appropriate mitigation speech that you have credit for
all the good things you have done as well and there is a balancing exercise to
be conducted and we have conducted that exercise in discussion of the facts of
this case.
5.
It is
clear from al the references that have been put before us that as a serving
police officer you have achieved a lot of good for the community. It is clear that in PMNW you have
helped, no doubt, a number of children and generally speaking, we have looked
at those references and what you have done in a positive fashion and it is
important that because of the shame and the remorse that you have shown and,
rightly shown, it is important that you recognise there are those good things
in your past that are taken into account as well.
6.
You are
sentenced for what you do but people do make sometimes quite serious mistakes,
as here, and in doing so you should appreciate the Court looks at the matter in
the round. Having taken a starting
point of 6 years’ imprisonment we give you full credit for a guilty plea
and we take into account that you have not tried to blame anyone else, in
particular you have immediately taken the opportunity in ensuring that your
family could not have been criticised for these images. We have taken into account the
cooperative approach you took with the police; we have taken into account good
character and, as I say, the very appropriate remorse that you show for these
serious offences and in the circumstances we have reached the conclusion that
an overall sentence of 3 years’ imprisonment would be appropriate for the
offending which you have committed.
7.
Accordingly,
taking the Indictment you are sentenced to 3 years’ imprisonment on each
Count except Count 5. On Count 5
you are sentenced to 2 years’ imprisonment. Each of those sentences will run
concurrently, making a total of 3 years’ imprisonment.
8.
We also
order the forfeiture and destruction of the computer equipment and other
equipment which is referred to in the Indictment on which the images have been
stored.
9.
Finally we
turn to the restraining orders. We
are not satisfied that it is appropriate or proportionate to make the third
restraining order which the Crown has requested, namely that you should not
undertake potential employment or voluntary work without first informing the
police. Having looked at the
background reports it is not clear that it would be proportionate to make that
order given the threat of serious sexual harm to children that would arise from
your conduct and so we do not apply the third of those restraining orders. We do impose the first two restraining
orders which are not opposed today though we add that it would have been
helpful we think if the Crown had included some of the other precedents in
relation to the imposition of restraining orders because they go further than
the statement which the Crown has made in its summary that the first two orders
are “invariably applied to
offenders who have made indecent images through downloading them.” It is not a question of invariably
applying restraining orders of this kind, given the imposition of a restraining
order is a serious matter and the statutory test must be met.
10. We also note that you have the notification
requirements already applied to you from the date on which you entered a guilty
plea and we order that a period of 5 years from that date of your entry of
guilty plea before this Court should expire before you can apply to have the
notification requirements disapplied to you.
11. You are sentenced accordingly.
Authorities
Sex Offenders (Jersey) Law 2010.
AG-v-Godson
and Crowley [2013] JRC 074.
AG
v Young [2013] JRC 212.
AG
v Videgrain [2014] JRC 040.