Jersey Unreported Judgments

Superior Number Sentencing -indecent photographs of children - making, possession, advertising and distribution of indecent images of children - provision of false address for travel - breach of restraining orders.

[2017]JRC058

Royal Court

(Samedi)

6 April 2017

Before     :

W. J. Bailhache, Esq., Bailiff, and Jurats Liston, Grime, Ramsden, Sparrow and Christensen.

The Attorney General

-v-

Karn Damien Laffoley

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 3^rd February, 2017, following guilty pleas to the following charges:

First Indictment

1 count of:	Providing a false address for travel, contrary to Article 8(2)(b) of the Sex Offenders (Jersey) Law 2010 (Count 1).
3 counts of:	Making indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Counts 2, 3 and 5).
3 counts of:	Breach of restraining order, contrary to Article 10(4) of the Sex Offenders (Jersey) Law 2010 (Counts 6, 7 and 9).

Second Indictment

2 counts of:	Possessing indecent photographs of children, contrary to Article 2(1)(b) of the Protection of Children (Jersey) Law 1994 (Counts 1 and 2).
5 counts of:	Distributing indecent photographs of children, contrary to Article 2(1)(c) of the Protection of Children (Jersey) Law 1994 (Counts 3, 4, 5, 7 and 9).
2 counts of:	Advertising indecent photographs of children for distribution, contrary to Article 2(1)(e) of the Protection of Children (Jersey) Law 1994 (Count 6 and 8).

Age:  42.

Plea: Guilty.

Details of Offence:

This was a complex investigation which began in January 2016, and involved liaison between the States of Jersey Police, the National Crime Agency ("NCA") and the Federal Bureau of Investigation ("FBI"), with the Attorney-General's office advising throughout.  Some of the evidence came from the 'dark web'; internet content that exists on public networks but which requires specific software to access. 

The defendant contacted Ms X, who lived in England, on an online dating site. Her profile picture was an image of her with her 9 year old daughter, Miss A.  The defendant, who was in a long-term relationship at the time, began to send messages to her.  Her account is that the defendant persuaded her to take indecent images and movies of her daughter and send them to him.  Ms X has admitted these offences and has been sentenced to six years' imprisonment in England.  Material recovered with the assistance of the NCA and FBI have found that the defendant was advertising and distributing images, both of Miss A and unknown victims, apparently in exchange for other IIOC.  

The defendant has a history of offences involving IIOC.  He became interested in sexual images of children while living in Jersey prior to 1997, his preference being females aged nine to 12.  

Until these matters came to light in January 2016 the defendant was outwardly complying with the terms of his restrictive orders, and was actively engaging with the relevant agencies, but throughout was making, advertising and distributing IIOC, including images of Miss A.  His behaviour with Probation and his psychologist was a smokescreen. 

Ms X was arrested on suspicion of making indecent images and said she had done so at his instigation.  The defendant was interviewed on several occasions, and lied to officers throughout in an attempt to deny or minimise his offending.  

He eventually admitted to travelling to see Ms X, forming a sexual relationship with her, and receiving indecent images of Miss A from her once he returned to Jersey. 

He had also been in breach of his existing restraining orders under the Sex Offenders (Jersey) Law 2010 which were imposed by the Royal Court in 2012. 

The FBI investigation uncovered a written exchange between the defendant and Ms X where he was sent non-indecent images of Miss A, and commented in explicit detail what sexual activities he would like to perform with Miss A, including oral, vaginal and anal sex.  It was accepted by the prosecution that this was a fantasy, and that no contact offending had taken place. 

It was later found that he had been using disguising software, been visiting web sites which hosted indecent material, searching for indecent material, and posing online as a teenage boy to initiate conversations with young girls.  

Details of Mitigation:

Guilty pleas, although considered inevitable. 

Previous Convictions:

The defendant has 18 convictions for making indecent images (2009, 2012, 2013), one previous conviction for possessing indecent images (2012), and four breaches of orders designed to prevent him from offending (2012, 2013). 

While living in England in 2008 Police examined his computer and found 2,339 indecent images and movies of children, of which 156 images and 61 movies were of the most extreme sort.  He was sentenced to a total of 8 months' imprisonment, suspended for 2 years, placed on the Sex Offender Register for 10 years and also made subject to certain Sexual Offences Prevention Orders for an indefinite period.  

In 2011 while still in England he breached one of his SOPOs by indirectly contacting one of his daughters and was also found to have downloaded at least 55 indecent images.  He went on to admit that in March and April 2011 he had bought four mobile phones in succession and used them to access child abuse images.  After viewing these images for a week he would destroy each phone, on at least one occasion with a hammer, and dispose of the pieces in different locations to avoid detection.  One of the breaches of his SOPOs involved his forming a relationship with a woman who had young children without informing the relevant agencies.  He was sentenced to 32 weeks' imprisonment and then returned to Jersey in 2012 when the Attorney General applied for him to be placed on the Sex Offender Register and for him to be made subject to various restrictive orders, which the defendant did not oppose. 

Investigations in Jersey found that he had installed disguising software and searched for "Lolita", "preteen", "underage", and "pedo lolita pthc hussyfan"; there was no surviving evidence as to what material was viewed or downloaded.  

In Jersey in 2013 the defendant was sentenced to 18 months' imprisonment for the charges of making indecent images and 18 months' imprisonment for the breach of the restraining order by disguising his internet history, both to run concurrently. 

Conclusions:

The defendant was considered to have both Category 4 (three years initial figure) and Category 2 (initial figure of four years) offences, together with the breaches and offences of advertising and distributing IIOC.  These initial figures are based on five assumptions:

1.      That the offender is an adult.

2.      That he has no relevant convictions.

3.      That the number of images is small.

4.      That the making of any image was for his benefit alone, or if distributed only sent to two or three other persons.

5.      The sentencing process results from a contested trial.

In this case the Defendant is an adult. The second, third and fourth considerations do not apply and will increase the starting point, the fifth will then be deducted as credit for the guilty pleas.

Specific additional aggravating features:

-�        Taking advantage of a child of special vulnerability.

-�        Large number of images.

-�        Images widely distributed.

-�        Relevant previous convictions.

-�        Failure to comply with orders

-�        Period over which these images were possessed, distributed or produced.

-�        Placing images where there is the potential for a high volume of viewers

-�        Collection involves moving images

-�        Attempted to dispose of or conceal evidence

-�        Miss A was known to the offender.

-�        Use of Image Source and Magic Kingdom show an awareness of networks with paedophilic content.

-�        Hundreds of unidentified victims depicted in the other indecent images.

-�        The Defendant was seeing a psychologist and, voluntarily, Probation, while he was continuing to offend. He has successfully misled or manipulated those involved in his treatment.

-�        Images of Miss A will circulate indefinitely.

-�        Ms X had no criminal record prior to meeting the Defendant, the family unit that existed before the Defendant contacted her no longer exists.

The Crown submitted that there were an unprecedented number of aggravating features to this case, and that the starting point for the counts relating to Miss A should be near to the statutory maximum, of 10 years, and took an 8 year starting point.  For the possession charges a starting point of 4years.  For the breaches, 3 years. 

First Indictment

Count 1:	2 years' imprisonment.
Count 2:	3 years' imprisonment, concurrent.
Count 3:	3 years' imprisonment, concurrent.
Count 5:	3 years' imprisonment, concurrent.
Count 6:	2 years' imprisonment, concurrent but consecutive to Second Indictment.
Count 7:	2 years' imprisonment, concurrent but consecutive to Second Indictment.
Count 9:	2 years' imprisonment, concurrent but consecutive to Second Indictment

Second Indictment

Count 1:	3 years' imprisonment, concurrent.
Count 2:	3 years' imprisonment, concurrent.
Count 3:	6 years' imprisonment, concurrent.
Count 4:	6 years' imprisonment, concurrent.
Count 5:	6 years' imprisonment, concurrent
Count 6:	6 years' imprisonment, concurrent
Count 7:	6 years' imprisonment, concurrent.
Count 8:	6 years' imprisonment, concurrent.
Count 9:	6 years' imprisonment, concurrent.

Total: 8 years' imprisonment.

Order sought under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 12 years elapse before the accused is permitted to apply to no longer be subject to the notification requirements to commence from date of sentence. 

Restrictive Orders sought from date of sentence for a period of 12 years under Article 10(4) with the following conditions:

i)              That the defendant be prohibited from contacting or approaching, directly or indirectly, any person identified in Appendix A of the order other than any contact which is inadvertent or unavoidable;

ii)             That the defendant be prohibited from:

a.     Living in the same household as any person under the age of 16 years unless with the express approval of the Probation and Aftercare Service;

b.     Contacting or attempting to contact, via any form of social media, internet or telecommunications system, any female he knows or believes to be under 16, unless there is a parent, guardian or responsible adult present who is over the age of 21, who is aware of the accused's convictions, and who does not have a conviction which would render them liable to notification under the Sex Offenders (Jersey) Law 2010;

c.     Being alone with any female child under the age of 16 years, aside from such contact which is inadvertent 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 accused's convictions, and who does not have a conviction which would render them liable to notification under the Sex Offenders (Jersey) Law 2010;

iii)            That the defendant be prohibited from;

a.     Having access to ay device capable of accessing the internet unless his use of that device is monitored by an adult over the age of 21 who is aware of the defendant's convictions and who has not been convicted of any offence which would render them liable to the notification requirements of the Sex Offenders (Jersey) Law 2010;

b.     In the event that he does access the internet, that the history of that access be recorded, and that he take no steps to disguise, delete or otherwise conceal that history.

iv)            That the defendant provide advance details of any proposed changes of address and employment that will have to be approved by the Probation and Aftercare Service;

v)             That in circumstances where the defendant finds himself in contact with any persons named in Appendix A, or finds himself either in contact with, or alone with a person under the age of 16 years, that he has a  positive duty to remove himself from that situation as soon as reasonable possible;

vi)            That the defendant cannot refuse access to police officers who are monitoring or checking on his restraining orders;

vii)           That the defendant may not knowingly contact or associate with anyone he knows to have been convicted of any offence which would render them liable to the notification requirements of the Sex Offenders (Jersey) Law 2010 (not to come into force until released from custody).

Forfeiture and destruction of the IPhone and Asus laptop sought. 

Sentence and Observations of Court:

First Indictment

Count 1:	2½ years' imprisonment.
Count 2:	3 years' imprisonment, concurrent.
Count 3:	3 years' imprisonment, concurrent.
Count 5:	3 years' imprisonment, concurrent.
Count 6:	2½ years' imprisonment, concurrent but consecutive to Second Indictment.
Count 7:	2½ years' imprisonment, concurrent but consecutive to Second Indictment.
Count 9:	2½ years' imprisonment, concurrent but consecutive to Second Indictment.

Second Indictment

Count 1:	3 years' imprisonment, concurrent.
Count 2:	3 years' imprisonment, concurrent.
Count 3:	6 years' imprisonment, concurrent.
Count 4:	6 years' imprisonment, concurrent.
Count 5:	6 years' imprisonment, concurrent
Count 6:	6 years' imprisonment, concurrent
Count 7:	6 years' imprisonment, concurrent.
Count 8:	6 years' imprisonment, concurrent.
Count 9:	6 years' imprisonment, concurrent.

Total: 8½ years' imprisonment.

Order made under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 12 years elapse before the accused is permitted to apply to no longer be subject to the notification requirements to commence from date of guilty plea. 

Restrictive Orders made from date of sentence for a period of 15 years under Article 10(4) with the following conditions:

i)              That the defendant be prohibited from contacting or approaching, directly or indirectly, any person identified in Appendix A of the order other than any contact which is inadvertent or unavoidable;

ii)             That the defendant be prohibited from:

a.     Living in the same household as any person under the age of 16 years unless with the express approval of the Probation and Aftercare Service;

b.     Contacting or attempting to contact, via any form of social media, internet or telecommunications system, any female he knows or believes to be under 16, unless there is a parent, guardian or responsible adult present who is over the age of 21, who is aware of the accused's convictions, and who does not have a conviction which would render them liable to notification under the Sex Offenders (Jersey) Law 2010;

c.     Being alone with any female child under the age of 16 years, aside from such contact which is inadvertent 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 accused's convictions, and who does not have a conviction which would render them liable to notification under the Sex Offenders (Jersey) Law 2010;

iii)            That the defendant be prohibited from;

a.     Having access to any device capable of accessing the internet unless his use of that device is monitored by an adult over the age of 21 who is aware of the defendant's convictions and who has not been convicted of any offence which would render them liable to the notification requirements of the Sex Offenders (Jersey) Law 2010;

b.     In the event that he does access the internet, that the history of that access be recorded, and that he take no steps to disguise, delete or otherwise conceal that history.

iv)            That the defendant provide advance details of any proposed changes of address and employment that will have to be approved by the Probation and Aftercare Service;

v)             That in circumstances where the defendant finds himself in contact with any persons named in Appendix A, or finds himself either in contact with, or alone with a person under the age of 16 years, that he has a  positive duty to remove himself from that situation as soon as reasonable possible;

vi)            That the defendant cannot refuse access to police officers who are monitoring or checking on his restraining orders;

vii)           That the defendant may not knowingly contact or associate with anyone he knows to have been convicted of any offence which would render them liable to the notification requirements of the Sex Offenders (Jersey) Law 2010 (not to come into force until released from custody).

Forfeiture and destruction of the IPhone and Asus laptop ordered. 

R. C. C. Pedley, Esq., Crown Advocate.

Advocate J. W. Angus for the Defendant.

JUDGMENT

THE BAILIFF:

1.        As a result of your pleas to these various counts on the Indictments we need to consider first of all the question of the notification period under the Sex Offenders (Jersey) Law 2010 and the restraining orders.  As the Crown has moved insofar as the notification period is concerned, that will continue for a period of 12 years from the date of your guilty plea to these Counts and it means that that is the minimum period during which you are governed by the notification requirements under the Sex Offenders Law.  It will continue indefinitely unless you apply to the Court to come off the notification requirements but you cannot bring that application for at least 12 years from the date of your conviction on these offences. 

2.        We also look at the question of new restraining orders and we are conscious of the obligation imposed on the Court to act in a convention-compliant way whether you have consented to the orders being made or not.  We do not feel comfortable with the order under Order 3 paragraph (i) of the draft which would prohibit you from owning or having in your possession any device capable of accessing the internet which we are not convinced is a proportionate order for us to make.  However, we are going to make all the other restrictive orders that have been identified and I will read them to you.  I read them to you because you are liable to be sentenced to prison if you break these orders. 

(i)        As from today you are prohibited from contacting or approaching, directly or indirectly, any person identified in Appendix A of the order other than any contact which is inadvertent or unavoidable.  The Appendix is there in the existing order. 

(ii)       You are prohibited from

(a)       Living in the same household as any person under the age of 16 unless with the express approval of the Probation and Aftercare Service

(b)       Contacting or Contacting or attempting to contact, via any form of social media, internet or telecommunications system, any female that you know or believe to be under 16, unless there is a parent, guardian or responsible adult present who is over the age of 21, who are aware of your convictions, and who does not have a conviction which would render them liable to notification under the Sex Offenders (Jersey) Law 2010;

(c)       Being alone with any female child under the age of 16 years, aside from such contact which is inadvertent or unavoidable.  You 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 your convictions, and who does not have a conviction which would render them liable to notification under the Sex Offenders (Jersey) Law 2010;

(iii)      You are prohibited from:

(a)       Having access to any device capable of accessing the internet unless your use of that device is monitored by an adult over the age of 21 who is aware of your convictions and who has not been convicted of any offence which would render them liable to the notification requirements of the Sex Offenders (Jersey) Law 2010;

(b)       In the event that you do access the internet, the history of that access must be recorded, and that you must take no steps to disguise, delete or otherwise conceal that history.  

(iv)      You are to provide advance details of any proposed changes of address and employment that will have to be approved by the Probation and Aftercare Service;

(v)       In circumstances where you find yourself in contact with any persons named in Appendix A, or in contact with, or alone with a person under the age of 16 years, you have a positive duty to remove yourself from that situation as soon as reasonably possible;

(vi)      You are not permitted to refuse access to police officers who are monitoring or checking on your restraining orders;

(vii)     You may not knowingly contact or associate with anyone you know to have been convicted of any offence which would render them liable to the notification requirements of the Sex Offenders (Jersey) Law 2010 (that particular order will not to come into force until you are released from custody). 

3.        I now turn to the sentences for the various offences and I deal first of all with some comments in the round.  The Court takes the view that you have unfortunately, as it were, played along with those who have been trying to help you, Dr Briggs and the Probation Service, because you have committed these offences while at the same time apparently cooperating with those trying to help you.  We treat that as being a seriously aggravating factor.  We do not take the view that Ms X is the victim - we regard her behaviour as being as depraved as your own - but we do take the view that she was vulnerable and we have taken that into account.  We think that the starting point of 8 years' imprisonment on the distribution offences, which carry a maximum of 10 years' imprisonment, is appropriate and we have taken that figure.  We do not think generally that this is a case for a full discount for your guilty plea.  We recognise that substantial value for a guilty plea must be given because it is in the public interest that we encourage guilty pleas but nonetheless the guilty pleas in this case do not, in our view, merit a full discount of one-third, because you have not been cooperate in your approach to questioning in this sense - you have not provided passwords for some of the files, and we treat that as one of the most important features, and so the extent of your offending has not been easy to establish. 

4.        Taking account of those features we think that the Crown's conclusions of 6 years' imprisonment on the distribution offences are correct and we therefore will be imposing that sentence on those counts on the Indictment shortly.  I have to tell you that that is a majority decision.  Two of the Jurats were inclined to increase that beyond 6 years' imprisonment.  I now come to the charges on the First Indictment, what I call generically the possession charges, and we think the Crown's conclusions are correct.  We have regard to AG-v-Godson and Crowley [2013] JRC 091 and applied the approach which is set out in that case.  Indeed we find that approach to be particularly helpful because it is a salutary reminder that the Court's revulsion for these offences must nonetheless be tempered by having an unemotional approach to the right sentence to impose on a case such as this and that is what we have tried to do. 

5.        We now turn to the breaches of the restrictive orders which carry a maximum sentence of 5 years' imprisonment.  We think that, as we have said earlier, there was a pretty cynical avoidance of those restrictive orders at a time when you were receiving help.  In our view the right starting point for breaches of those restraining orders is 4 years' imprisonment and we would allow a 1 year off to make a total of 3 years' imprisonment and in principle the breach of the restraining orders should carry consecutive sentences.  That then would leave us with a total of 9 years' imprisonment and what we have now gone on to consider is whether the totality of that is too much and we should reduce it.  The Jurats have reached the conclusions that it should be reduced by a small amount and we are reducing therefore on totality grounds the total to 8½ years. We will achieve that by reducing the sentence on each of the offences for breach of the restraining orders from 3 years to 2 ½ years' imprisonment. 

6.        So you are sentenced as follows.  On the First Indictment on Count 1; 2½ years' imprisonment, Count 2; 3 years' imprisonment, Count 3; 3 years' imprisonment, Count 5; 3 years' imprisonment, Count 6; 2½ years' imprisonment, Count 7; 2½ years' imprisonment, Count 9; 2½ years' imprisonment.  Those 2½ years' imprisonment sentences will run consecutively to the 3 years' imprisonment offences.  On the Second Indictment, on Count 1; 3 years' imprisonment, Count 2; 3 years' imprisonment, Counts 3, 4, 5, 6, 7, 8 and 9; 6 years' imprisonment, all those sentences run concurrently with each other and they run concurrently with the making of indecent images offences on the First Indictment but consecutively to the breach offences, making a total of 8½ years' imprisonment. 

7.        I omitted to say in relation to the restraining orders that the Court considers that 15 years is the right period during which these restraining orders should apply and that period runs from today.  We recognise that it is open either to Crown or to you to come back with an application to vary those orders but we think 15 years is the better period to take and that is the protection for both society and also for you. 

8.        We order the forfeiture and destruction of the IPhone and the Asus laptop. 

9.        Finally this has clearly been a very complex investigation, it always is a complex investigation when a defendant seeks to cover his tracks as has been the case here by the use of a deletion wiping kit and the Court would like to commend the police officers involved with the investigation. 

Authorities

Sex Offenders (Jersey) Law 2010.

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

AG-v-N [2013] JRC 052.

AG-v-N [2011] JRC 157.

AG-v-Rowe [2011] JRC 046B.

Protection of Children (Jersey) Law 1994.