Inferior Number Sentencing – possession of indecent photographs
– making indecent photographs.
[2015]JRC245
Royal Court
(Samedi)
27 November 2015
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Before :
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J. A. Clyde-Smith, Esq., Commissisoner, and
Jurats Fisher and Olsen
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The Attorney General
-v-
Robert James Quinlan
Sentencing by the Inferior
Number of the Royal Court, following guilty pleas to the following charges:
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2 counts of:
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Possession of indecent photographs of
children, contrary to Article 2(1)(b) of the Protection of Children,
(Jersey) Law 1994 (Counts 1 and 2).
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2 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 3 and 4).
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Age: 46.
Plea: Guilty.
Details of Offence:
A search warrant was executed at the
defendant’s home address.
During a search of the premises the police seized a number of devices
including a Western Digital external hard disk; a black Toshiba external hard
disk; and a Lenovo ThinkPad laptop computer. At the time of the search the defendant
stated to his partner “I may have
downloaded stuff I shouldn’t have”.
In interview the defendant admitted
to downloading one indecent movie found on the black Toshiba external hard disk
but denied that any other movies/images were stored on his memory devices.
A forensic examination revealed a
total of 138 indecent images on the Western Digital external hard disk; the
Toshiba external hard disk; and the Lenovo ThinkPad laptop computer. The images found were categorised as
follows:-
On the Western Digital external hard
disk:-
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Category
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Still images
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1
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7
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2
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2
|
|
3
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6
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4
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3
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On the Toshiba external hard disk:
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Category
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Still
images
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Moving
images
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1
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1
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14
|
|
2
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0
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23
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3
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0
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2
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4
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0
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35
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On the Lenovo ThinkPad:
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Category
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Still images
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Moving
images
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1
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13
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6
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2
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3
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5
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3
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10
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0
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4
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1
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8
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Following receipt of information
regarding a further tower computer belonging to the defendant, police executed
a search warrant at the defendant’s brother-in-law’s property,
where the defendant had lived when he first arrived in the Island and where the
tower computer was thought to be located.
When the search was carried out the tower computer was not at the
brother-in-law’s property. It
was subsequently discovered on the execution of a further search warrant at the
defendant’s home address, the defendant having removed it from his
brother-in-law’s loft during the intervening period.
A forensic examination revealed a
total of 47 indecent images on the tower computer. The images found were categorised as
follows:-
On the tower computer:
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Category
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Still
images
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Moving
images
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1
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2
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18
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2
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1
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11
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3
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2
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1
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4
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0
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12
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It was also noted on examination of
the tower computer that efforts had been made to destroy the computer by
removing hard drives and cables.
Details of Mitigation:
Guilty plea, remorse, active in
seeking help.
Previous Convictions:
None.
Conclusions:
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Count 1:
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1 years’ imprisonment.
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Count 2:
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2 years’ imprisonment, concurrent.
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Count 3:
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2 years’ imprisonment, concurrent.
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Count 4:
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2 years’ imprisonment, concurrent.
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Total: 2 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 (9th October,
2015) sought.
Restraining Order to commence from
date of sentence for a period of 5 years under Article 10(4) with the following
conditions:-
(i) that the defendant must
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 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 of the
computer hardware seized.
Sentence and Observations of Court:
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Count 1:
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9 months’ imprisonment.
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Count 2:
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9 months’ imprisonment, concurrent.
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Count 3:
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15 months’ imprisonment, concurrent.
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Count 4:
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15 months’ imprisonment, concurrent.
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Total: 15
months’ imprisonment.
Order under Article 5(1) of the Sex
Offenders (Jersey) Law 2010 that a period of 3 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 (9th October,
2015) made.
Restraining Order to commence from
date of sentence to expire on 9th October, 2018 under Article 10(4)
with the following conditions:-
(i) that the defendant must
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 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 of the
computer hardware seized.
C. M. M. Yates, Esq., Crown Advocate.
Advocate S. E. A. Dale for the Defendant.
JUDGMENT
THE commissioner:
1.
Dealing
first with the notification requirements under the Sex Offenders (Jersey)
Law 2010, we order that it should be 3 years from the 9th
October, 2015, the date of the defendant’s conviction, before he can
apply to have the requirements raised and this because he is assessed at a low
risk of reoffending and for the other reasons which we will come to in a
moment.
2.
In terms
of the Restraining Order we are satisfied that the defendant poses a threat of
serious sexual harm to the public, again in a way which we will cover in a
moment, in that his use of the internet had become deeply ingrained over a long
period of time and that it is necessary and proportionate to impose the limited
restraining order sought by the Crown and this for a period ending on 9th
October, 2018 so as to be consistent with the earlier date.
3.
The
defendant is to be sentenced for possessing and making indecent images of
children; in total there are 186 images, 59 of which are at level 4. We agree with the Crown, as do the
Defence that this offending falls into category 4 in the guidelines set out in AG-v-Godson
[2013] (2) JLR 1 and that 3 years is therefore the appropriate initial
figure. We do not however agree
with the Crown that this figure needs to be increased by 1 year in order to
take into account two features which the Crown says are aggravating, namely the
number of images, being over 100, and steps allegedly taken by the defendant to
prevent detection of the images on the Tower computer. Whilst we accept that the number of
images is an aggravating feature, it is not sufficient, in our view, to justify
an increase of the initial figure.
As to the alleged attempt to destroy the images on the Tower computer,
the defendant has not been charged with perverting the course of justice. The Defence say that he has not, or did
not, remove the computer surreptitiously and he kept the hard drive on which of
course the images were contained.
In this situation, in our view, we have to give the benefit of the doubt
to the defendant and we therefore do not regard this as an aggravating feature
which would increase the initial figure.
4.
In terms
of mitigation the defendant is of good character and has pleaded guilty. The social enquiry report makes it clear
that he has not sought to minimise his actions and is fully aware both of the
illegality and harm such measures can cause the victims concerned. That is, in our view, amply demonstrated
by the lengthy letter he has written to us which, in the view of the Jurats, is
one of the best letters that they have ever read. The social enquiry report makes it clear
that he harbours deep feelings of shame and guilt, in particular for the
destructive impact his actions have had on his immediate and wider family. He has indicated to the probation
officer that he has no one else to blame for the devastation he has caused to
his partner and young family and to his parents, and he will accept, we are
told, whatever sentence the Court will impose.
5.
The Crown
accepts that his remorse is genuine.
The social enquiry report states that he has taken active responsibility
for his offences and his motivation to address his illegal behaviour is described
in their report as commendable. He
is also assessed at a low risk of generalised reconviction and of sexual
reconviction. So there is very
considerable mitigation available to the defendant.
6.
Nevertheless
the Court’s policy is clear and there are, in our view, no exceptional
circumstances here which enable us to depart from the requirement for a
custodial sentence. Quoting from
paragraph 28 of the social enquiry report it is clear “the serious harm caused to children through the creation of indecent
images. This harm is exacerbated by
the fact that the abuse is visually recorded thereby effectively re-victimising
the children on each occasion the images are viewed and acting as a barrier to
recovery from the original abuse.
The viewing of these images creates a market which serves to perpetuate
the sexual abuse of children.”
So having taken the initial figure of 3 years we have adjusted that
as set out in Godson to arrive at the following sentence.
7.
For Count
1 you are sentenced to 9 months’ imprisonment, Count 2; you are sentenced
to 9 months’ imprisonment, concurrent. Count 3, you are sentenced to 15
months’ imprisonment, concurrent and Count 4 you are sentenced to 15
months’ imprisonment, concurrent, making a total of 15 months’
imprisonment.
8.
We also
order the forfeiture and destruction of the computer hardware seized.
Authorities
Sex Offenders (Jersey) Law 2010.
AG-v-Godson
[2013] (2) JLR 1.
AG-v-Young
[2013] JRC 212.
AG-v-Hosking
[2015] JRC 173.
R-v-Smith and
Ors [2012] 1 Cr App R (S) 82.