Jersey Unreported Judgments

[2008]JRC187

ROYAL COURT

(Samedi Division)

31^st October 2008

Before     :

Sir Philip Bailhache, Kt., Bailiff, and Jurats Bullen and King.

The Attorney General

-v-

David James Horman

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

1 count of:	Publishing obscene material.  (Count 1).
1 count of:	Possession of indecent photographs, contrary to Article 2(1)(b) of the Protection of Children (Jersey )Law 1994.  (Count 2).
1 count of:	Distribution of indecent photographs, contrary to Article 2(1)(c) of the Protection of Children (Jersey) Law 1994.  (Count 3).

Age:  30.

Plea: Guilty.

Details of Offence:

A warrant issued pursuant to the Protection of Children (Jersey) Law 1994 was executed at the accused's home address.

A subsequent forensic examination of the accused's laptop revealed he had used a software program to exchange indecent images of children with a number of other people.

The possession charge related to a total of 282 images.  These fell into all five Copine levels (including four images at level 5) involving children aged 8 to 15 (the majority aged 14 to 15).

The distribution charge related to 110 separate instances of distribution involving a total of 35 individual images.  These fell within Copine levels 1 to 4 (a substantial number falling within level 4).  The ages of children shown in the images distributed was 12 to 15 (the majority aged 14 to 15).  Most distribution had taken place during an eight month period prior to the accused's arrest.

In addition, the accused was found to have posted obscene stories on an internet website.  These concerned the subject of incest.  One involved a boy of 15.  It was clear the illegal images and stories were part of a far larger collection of adult pornography stored on the accused's laptop.

During interview the accused was generally co-operative with the Police and made frank admissions.  He maintained throughout he had never searched for child pornography and did not want material of that nature on his laptop (although he did admit he had viewed images of young children performing oral sex).  He said the software used to exchange the pictures was such that he could not control what other people sent him.  Images were automatically saved to the hard drive of his computer.  The accused admitted an interest in incest.  It was clear he had used his computer for the purposes of chatting with others with a similar interest.  He had deleted some underage images sent to him.  The accused said he did not think he needed help.

During subsequent interview the accused admitted using a website associated with the picture exchanging software to locate people with similar sexual preferences.  He had operated using a pseudonym.  He agreed that during a number of online conversations he had referred to a preference for 14 and 15 year old girls.  He vehemently denied ever having abused children.

Details of Mitigation:

Residual credit on account of youth. Previous good character (it being noted that in R-v-Oliver and others [2003] 1 Crim App. R. (S) 28 "some, but not much, weight should be attached to good character" in cases of this nature).  Guilty pleas (although not entered at the very earliest possible stage).  Co-operation with the authorities.  Remorse.

Previous Convictions:

None.

Conclusions:

Count 1:	6 months' imprisonment, concurrent.
Count 2:	6 months' imprisonment, consecutive.
Count 3:	9 months' imprisonment.

Total: 15 months' imprisonment.

Forfeiture and destruction of laptop sought.

Sentence and Observations of Court:

The defendant stood to be sentenced for offences of publishing obscene material and possession/distribution of indecent images of children.  The ages of those depicted ranged from 8 to 15 (the majority being 14 to 15).  A significant number of images were level 4.  They had been obtained from and circulated on the internet.  In this respect the default setting of the accused's computer had been altered so as automatically to enlarge the images.  The vast majority of indecent material on the accused's laptop did not involve children.

A total of 55 category 4 images had been distributed.

The gravamen of the offences, particularly that of distribution, lay in the generation of further interest in this type of pornography which itself generated further abuse of children.  If it was possible to suppress interest in this sort of material by passing severe sentences the abuse of children would hopefully diminish.

Accordingly, it was almost inevitable that offences of this nature resulted in custody.

There was much mitigation.  In particular, the accused now realised what damage to other children this behaviour could cause.  He was a first offender and had been co-operative.  He had made admissions when first apprehended and sought voluntary psychological help.

The Court had been much assisted by the Social Enquiry and Psychological reports.  It had considered whether a non-custodial sentence could be passed.  On balance it had concluded prison must follow.

The Court wanted the accused to know it did not view him as a monster.  He had been drawn into a network in which children had been abused and corrupted.  The Court hoped he would seek help in prison to cure him of his addiction.  He had many good qualities.  In the circumstances the Court would reduce slightly the conclusions of the Crown.

Count 1:	4 months' imprisonment.
Count 2:	4 months' imprisonment, concurrent.
Count 3:	8 months' imprisonment, consecutive.

Total: 12 months' imprisonment.

Forfeiture and destruction of laptop ordered.

A. J. Belhomme, Esq., Crown Advocate.

Advocate N. Benest for the defendant.

JUDGMENT

THE BAILIFF:

1.        This defendant is to be sentenced on three counts on an indictment involving offences concerning the publication of obscene material and the possession and distribution of indecent photographs of children, contrary to the Protection of Children (Jersey) Law 1994.  The ages of the children concerned were between eight and fifteen but the majority of children depicted in the images were between fourteen and fifteen.  A significant number of images found on the defendant's computer were in category 4, that is depicting penetrative sexual activity involving a child or children, or both children and adults.   The images were obtained and circulated on the internet and the defendant had altered the default setting on the programme on his computer so as to enlarge automatically the images sent to him. 

2.        It is fair to say that the vast majority of indecent material on the defendant's computer was not concerned with children, but equally, of the 57 images in Category 4, 55 were distributed by being sent on to other persons within the group to which he belonged.  The gravamen of offences of this kind and particularly the distribution of indecent images is that they generate further interest in this kind of pornography which in turn leads to the further abuse of children.  If the interest can be suppressed by the imposition of severe penalties then the abuse of children, which is an appalling corruption of innocents, will hopefully diminish.

3.        It is for that reason that the Court almost inevitably imposes custodial sentences in cases of this kind.  There is much to be said in mitigation for this defendant, which counsel has put on his behalf most persuasively.  In particular, his counsel tells us, he has now come to realise what damage can be done to children as a result of this kind of behaviour.  The defendant is a first offender, he has been very co-operative with the Police, he admitted the offences at the first opportunity and he has voluntarily sought psychological help.  We have been very much assisted by the social enquiry report prepared by the Probation Service and by the report by a consultant psychologist, and we have given very anxious consideration as to whether a non-custodial sentence can be imposed.  We have concluded, on balance, that a prison sentence must follow for these offences.

4.        Horman, the Court wants you to know that, in our view, you are not a monster.  You have allowed yourself to be drawn into a network in which children are abused and corrupted and we have to punish you for those offences.  We hope that you will seek help in prison for what seems to have become an addiction for you.  You have many good qualities and we are sure that when you have served your sentence you will be able to make something of your life and put all this behind you. 

5.        We are going to reduce the conclusions slightly and we are going to sentence you on Count 1; 4 months' imprisonment; Count 2; 4 months' imprisonment concurrent; Count 3; 8 months' imprisonment consecutive, making a total of 12 months' imprisonment.

6.        We order the forfeiture and destruction of the laptop computer concerned.

Authorities

Protection of Children (Jersey) Law 1994.

R-v-Oliver, Hartrey and Baldwin [2003] 1 Cr App. R. 28.

Whelan Aspects of Sentencing in the Superior Court of Jersey.

AG-v-Le Marquand [2003] JLR N 10.

AG-v-Rowe [2004] JRC 217.

AG-v-Sunderland [2005] JRC 128.

AG-v-Le Heuze [2007] JRC 042.

AG-v-Powell [2007] JRC 046.

AG-v-Curtin [2007] JRC 223.

AG-v-Facchino [2008] JRC 056.

AG-v-GB [2008] JRC 122.