Jersey Unreported Judgments

[2011]JRC094

ROYAL COURT

(Samedi Division)

27^th April 2011

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Tibbo and Crill.

The Attorney General

-v-

Roy Charles Gallichan

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

2 counts of:	Making indecent photographs of a child, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Counts 1 and 2).
2 counts of:	Pursuing a course of conduct amounting to harassment, contrary to Article 3(1) of the Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008 (Counts 5 and 6).

Age:  52.

Plea: Guilty.

Details of Offence:

Count 1:

Between 9^th December, 2009, and 4^th May, 2010, in the Island of Jersey, the defendant made three indecent photographs of level 1 Copine Scale, of a female child then under 16 years of age. 

These three indecent images were made from footage the defendant obtained (which form the basis of Count 2) from a motion activated camera covertly concealed in the bedroom of a 15 year old girl.  The defendant then inserted derogatory and indecent text over the pictures, to describe a form of story. 

Count 2:

Between 9^th December, 2009, and 4^th May, 2010, at a female child's address, the defendant made thirteen indecent photographs, in the form of video files of Level 1 on the Copine Scale, of the female child then under 16 years of age. 

Following a police investigation in relation to the harassment offences (which form the basis of Counts 5 and 6), a forensic examination of the defendant's computer was completed.  During the examination, police located thirteen indecent images of a young girl who appeared to be between 14-16 years of age.  The images were recovered as single files from the deleted data, but were originally in movie format.  Ten of the images were in movie format, with three pictures having been made from the movies. 

The movies show the girl within a bedroom.  There is also a compilation video of the bedroom scenes, showing shots of the girl either completely naked or where her breasts and genitals are exposed.  It was clear that the images had been taken without the girl's knowledge. 

Main aggravating factors in this case were the fact that the defendant created the images and the manner in which he created them.  The creating of the images involved voyeurism of a 15 year old girl, and the defendant derived sexual gratification from the offence, admitting to having masturbated over the images.  Not a case where he simply downloaded the images from the internet. 

Count 5:

Between 16^th August, 2010, and 19^th October, 2010, in the Island of Jersey, the defendant pursued a course of conduct towards a female victim that amounted to harassment.

During a relationship with the defendant, the female victim allowed him to take intimate photographs of her in poses both naked and performing sexual acts on him.  She believed that these photographs would then be deleted.  The relationship ended and the female began a relationship with another man.  Shortly after this, the defendant sent them both text messages and e-mails, from unknown numbers and e-mail addresses.  Over a period of approximately three months, the female received over seventy texts from the defendant, whilst her new partner received over twenty texts from ten different mobile numbers.   He also received explicit photographs of her by e-mail.  In August 2010 the defendant was arrested and served with a harassment notice when he was released. 

The course of conduct continued and on about 11^th October, 2010, the defendant created an e-mail account, which was used to upload indecent pictures of the female to a Dutch based pornographic website, which specialises in amateur pictures of a sexual nature.  Details of this website were then sent to colleagues of the female, friends, a States Member and members of the Church that the female attended. 

The e-mailing of the indecent pictures left the female feeling understandably deeply embarrassed and ashamed.  A detailed victim personal statement was provided to the Court. 

Count 6:

Between 16^th August, 2010, and 19^th October, 2010, in the Island of Jersey, the defendant pursued a course of conduct towards a male victim that amounted to harassment.  The facts are set out under Count 5 above. 

In relation to Counts 5 and 6, the Crown submitted that the text messaging and other behaviour exhibited by the defendant was at the very highest level of harassment.  The content of the text messages were disturbing and deeply offensive.  An aggravating factor is that the defendant's behaviour became worse, despite the issuing of a harassment notice and his arrest on two occasions. 

The statutory maximum sentence for an offence under Article 3 of the Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008 is 6 months' imprisonment.  Notwithstanding the defendant's plea of guilty, the Crown submitted that the campaign of harassment waged by the defendant (at Count 5) warranted the maximum sentence under the Law.  The Crown submitted that this sort of offending had a greater effect on victims who live in a small community, such as Jersey. 

Details of Mitigation:

Eventual guilty plea, although initially entered not guilty pleas at Indictment.  Good character; good employment record having served in the Royal Navy and States of Jersey Police. 

Defendant assessed as being at low risk of non-sexual reconviction, but at moderate risk of sexual reconviction. 

Previous Convictions:

None. 

Conclusions:

Count 1:	3 years' imprisonment.
Count 2:	3 years' imprisonment, concurrent.
Count 5:	6 months' imprisonment, consecutive.
Count 6:	4 months' imprisonment, concurrent to Count 5.

Total:  3½ years' imprisonment. 

Order under Article 5(3) of the Sex Offenders (Jersey) Law 2010 that a period of 5 years elapse before the defendant is permitted to apply to no longer be subject to the notification requirements, sought. 

Restraining Order under Article 5(1) of the Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008. 

1.        That for a period of five years (from release of custody) the defendant be prohibited from making contact by any means whatsoever, either directly or indirectly with any of the three victims. 

2.        That for a period of five years (from release of custody) the defendant be prohibited from entering any part of the property of the female victim, or approaching within 50m. 

3.        That for a period of five years (from release of custody) the defendant be prohibited from entering any part of the property of the male victim, or approaching within 50m. 

4.        That for a period of five years (from release of custody) the defendant be prohibited from entering any part of the property where the female victim was employed, or approaching within 10m. 

5.        In consideration the duration of the orders sought, the Crown noted that the police and probation officer suggested a period of ten years, however in the circumstances the Crown moved for a period of five years. 

Forfeiture and destruction of the computers and camera sought. 

Sentence and Observations of Court:

Count 1:	2½ years' imprisonment.
Count 2:	2½ years' imprisonment, concurrent.
Count 5:	4 months' imprisonment, concurrent.
Count 6:	4 months' imprisonment, concurrent.

Total:  2½ years' imprisonment. 

The Court said that the harassment offences justified consecutive sentences to Counts 1 and 2, but taking into account the totality principle the sentences would run concurrently. 

The Court is satisfied that under Article 5(3) of the Sex Offender's (Jersey) Law 2010 that a period of 5 years elapse before the defendant is permitted to apply to no longer be subject to the notification requirements. 

Restraining Order granted under Article 5(1) of the Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008, as amended. 

Forfeiture and destruction of the computers and camera ordered. 

The Court made a further order pursuant to Article 10(4) of the Sex Offenders(Jersey) Law 2010, that the defendant should surrender to the police all hard copies of the photographs of the child and delete or procure to be deleted permanently all electronic images of the child. 

The Deputy Bailiff gave guidance to the media not to reveal the identity of the girl or any details leading to her identification, in accordance with Article 73 of the Children (Jersey) Law 2002. 

The Court acknowledged they had limited powers in restricting what they could print but asked them to note that the girl was unaware of the full extent of the defendant's actions and that it would cause distress to the complainant and the victim. 

R. J. MacRae, Esq., Crown Advocate.

Advocate S. A. Pearmain for the Defendant. 

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Gallichan, before we come on to the question of sentence we are required by Article 5(1) of the Sex Offenders (Jersey) Law 2010 to stipulate the period which must elapse before you are permitted to apply no longer to be subject of the notification requirements that apply to you automatically because of your conviction on the Protection of Children offence.  The Court prescribes 5 years as being the period that is the period which the Crown has moved for and to which you have not objected. 

2.        You are charged with two counts of making indecent photographs of a child, contrary to Article 2 of the Protection of Children (Jersey) Law 1994.  You are charged with a count of pursuing a course of conduct amounting to harassment between 16^th August and 19^th October, 2010, and a further count also of harassment between 16^th August and 19^th October, 2010, respectively towards A and C. 

3.        The Crown's conclusions are that you should be sentenced to 3 years' imprisonment on Counts 1 and 2, 6 months on Count 5 and 4 months on Count 6, the 6 month period to run consecutively, so the Crown is moving for 3½ years' imprisonment in total. 

4.        Some very powerful pieces of mitigation have been put forward by your Counsel on your behalf and the Court has taken into account the record that you have from the Royal Navy and the many character references which have been put up by your friends and your family.  We also have taken into account the fact that you have entered a guilty plea, we think that that is worth some credit.  Notwithstanding the Crown's conclusions, the guilty plea is in nearly every circumstance worth something and, although it came late on this occasion, nonetheless it was entered in respect of the offences for which you are now being sentenced. 

5.        I now wish to turn to the particular offences and will deal first with the Protection of Children offences.  These showed, in our view, a high degree of sophistication and a level of planning in the way in which the small camera was secreted in the child's bedroom.  It is true that the images which were taken were at what is called Copine level 1 but on the other hand it is to be noted that you could not have known, when fitting that camera, what images would be shown and they might well have been more serious images than that.  So although the images are only at Copine level 1, there are aggravating factors which make this offence particularly serious.  First of all you created the images; secondly as I have said, it was a carefully planned and sophisticated operation; thirdly, whatever your original intention, you went back three times according to your Counsel, to reset the camera knowing that there would be images of the child on that camera and further images would be taken, and fourthly, there was a breach of trust towards a girl whom you had known since she had been nine years of age.  But worse than all of these factors, it was a gross breach of her privacy.  There could have been other serious images taken but a child's bedroom is their place of sanctuary where they should feel protected from the world and this invasion was, as I have said, a gross breach of privacy.  We have looked at the case of R-v-Oliver [2002] EWCA Crim 2766 which does not contain anything which is directly comparable to this particular case.  We think that the custody threshold is clearly passed and we have regard to the sentences which are passed where Copine level 4 and 5 images are taken from the internet, which is a more serious degree of photograph but less serious in the sense that you are the original creator. 

6.        We think the right course is to sentence you to a period of 2½ years' imprisonment on Count 1 and Count 2, which would run concurrently. 

7.        I come next to Counts 5 and 6; this was harassment of a particularly nasty kind; it was sustained over a prolonged period.  There was a serious intent to hurt and to cause damage and emotional injury to the complainant, and there is no doubt at all from a reading of the victim's personal statement, that that damage and emotional injury has been sustained.  The offences, in relation to the putting of private images on a pornographic website, images of private acts between you and the complainant, involved a gross breach of trust, the trust which she conferred in you in allowing you to take the photographs in first instance.  You, yourself, described the course of harassment as despicable and you are right to do so.  Other applicable words might be mean or callous or cruel.  It is said that you acted out of jealousy and, while the Court can understand that that motivation might have existed, the fact is that you should have exercised self control over those emotions and you should certainly not have acted in the way you did, and you are to be sentenced for what you did.  There is a maximum sentence under the law of 6 months' imprisonment and we have to have regard to that in the sentence which we pass. 

8.        Taking account of your guilty plea and all the circumstances, the Court sentences you to 4 months' imprisonment on Count 5 and 4 months' imprisonment on Count 6.  The offences justify being taken separately from the Protection of Children offences and would therefore justify consecutive sentences; however the Court is going to apply the totality principle and for that reason we think that the sentences should be served concurrently and so you will be sentenced to a total of 2½ years' imprisonment. 

9.        I now come to the restraining orders which have been sought by the Crown under the Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008 and the first one was that for a period of 5 years starting from your release from custody, you be prohibited from making contact, by any means whatsoever, either directly or indirectly, with A, B or C.  An issue arose as you will have heard this morning as to whether or not we can make that order, we have jurisdiction to make that order in relation to the child.  It is clear from a construction of the statute that the broad intention of Article 5(2) is to make an order which ensures that the harassment will not continue in the future and in our view it is not necessary that any future harassment should take the same form as the harassment which has been charged and to which you have pleaded guilty.  The Court is satisfied that there is a real risk of the mother being harassed through the child in the future and accordingly, we make the Order as requested by the Crown. 

10.      Three of the other orders made are also as requested by the Crown that for a period of 5 years, starting from your release from custody you be prohibited from entering any part of the property being currently occupied by A.  For the same period you are prohibited from entering any part of the property occupied by C.  And for the same period following release from custody, you are prohibited from entering any part of the current place of employment of A, or going within 10 metres of their premises.  In each of those three cases the Order only applies to the particular properties which are mentioned. 

11.      There is an additional Order which you heard me raise with the Crown Advocate this morning and which the Court is going to make.  It is an Order which is made under Article 10 of the Sex Offenders (Jersey) Law 2010 and it applies only to the images of the child.  The Order is that you should, with reasonable despatch, surrender to the police, all hard copy photographs of the child which are in your possession and that you should delete, or procure to be deleted permanently, all electronic images of the child to which you have access.  If in fact you do not have any such images, then of course you will be able to comply with the Order because you do not have them, but if you do have them then you must follow the terms of the Order and, I must warn you that it is criminal offence not to do so, which carries a maximum of 5 years' imprisonment. 

12.      Finally we order the forfeiture and destruction of the computers and camera held by the police pursuant to the Criminal Justice (Forfeitures Order)(Jersey) Law 2001. 

Authorities

Sex Offenders (Jersey) Law 2010.

Protection of Children (Jersey) Law 1994.

Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008.

Criminal Justice (Forfeitures Order)(Jersey) Law 2001.

R-v-Oliver [2002] EWCA Crim 2766.

Forno-v-AG [2011] JCA 022.

AG-v-Velosa [2011] JRC 026.

AG-v-Roberts [2011] JRC 050.