Jersey Unreported Judgments

[2003]JRC043

ROYAL COURT

(Samedi Division)

 

28^th February 2003

 

 

The Attorney General

-v-

David John Le Marquand

 

1 count of:	Possession of indecent photographs of a child, contrary to Article 2 (1) (b) of the Protection of Children (Jersey) Law, 1994, as amended. (Count 1).
35 counts of:	Making indecent photographs of a child contrary to Article 2 (1) (a) of the Protection of Children (Jersey) Law, 1994, as amended. (counts 2 - 36).

 

Age:     34

 

Plea:    Guilty.

 

Details of Offence:

Some 2,700 indecent photographs (including video clips) of children were found on the hard drive of the accused's computer.  Some of these images had been duplicated onto paper (37) and floppy disk (313).  There was a single count of possession re. the hard drive and 35 counts of making, re. the paper and disks.  Images in each of the 5 levels of seriousness identified in the leading case of Oliver and ors [2002] EWCA Crim 2766 were present.  All the material had been downloaded from the internet.   

 

Details of Mitigation:

Immediate co-operation and guilty plea; good character; background reports indicated that the accused posed no threat to children.  These charges were not based on intended distribution.  The making counts were put on the basis simply that they caused a proliferation of this sort of material within this jurisdiction.

 

Previous Convictions:

None.

 

Conclusions:

Count 1:	15 months imprisonment;
Count 2 - 36:	18 months' imprisonment on each count, all sentences concurrent.

 

Sentence and Observations of Court:

Conclusions granted.  Although caution is necessary as to quantum because of the higher statutory maxima, Oliver and ors gives a reliable guide to principle.  Difference in maxima between England and Jersey to be brought to attention of Legislation Committee.  No order for forfeiture of computer was sought, but reminder that such order is available under Criminal Justice (Forfeiture Orders) (Jersey) Law, 2001.

 

C.E. Whelan, Esq., Crown Advocate.

Advocate Mrs S.A Pearmain for the Defendant.

 

 

 

JUDGMENT

 

 

 

THE DEPUTY BAILIFF:

1.        As a result of information received from the United States authorities that you had accessed child pornography sites, the police searched your home.  There they found 2782 indecent photographs of children stored on your computer.  In addition, you had printed 37 of these onto paper and had put 313 of them onto some floppy disks. 

2.        We have been referred to the recent English case of R -v- Oliver and ors [2002] EWCA Crim 2766, which makes it clear that one should consider this sort of material in five categories.  The first is images depicting erotic posing with no sexual activity.  Level two is sexual activity between children or solo masturbation by a child.  Level three is non-penetrative sexual activity between adults and children.  Level four is penetrative sexual activity between children and adults; and level five is sadism or bestiality.  All five levels were present in the material which you had downloaded.  In particular, taken from the Crown Advocate's summary, it is clear that within level four there was, amongst others, a picture of a three to five year old girl being penetrated by an adult penis and images of child rape; and under level five there was, amongst others, a picture of an eight to ten year old girl bound and gagged with an object inserted in her vagina.

3.        Such offences are serious, not only because of the revulsion which the community feels about them, but also because of the suffering and degradation caused to the unfortunate young children who have been forced, usually, to participate in the making of such photographs.

4.        As we say, the Court has been referred to the case of Oliver because there is little guidance so far in this jurisdiction.  We conclude that the general principles set out in that case and the guidance which it offers are equally applicable in this jurisdiction.  But we do accept that caution must be exercised in relation to the quantum of sentences set out there, because in the United Kingdom the maximum sentence for these offences has been increased to five years in the case of possession and ten years in the case of making and distribution, whereas in this jurisdiction the maximum sentence remains at three years.

5.        In mitigation, Mrs Pearmain has put forward all that could be said.  She has referred to your guilty plea and your co-operation, which earns you credit.  She has referred to your previous good character and the fact that you have looked after your mother who is ill.  She has referred us carefully to the psychological report and the background report, which we have considered, and it is quite clear that there is no evidence that you are a threat to young children.

6.        We take into account all the matters that she has put forward and we have considered whether we can deal with this by way of a non-custodial sentence.  But we are quite satisfied that, in view of the amount of the material, and of the fact that it included the higher levels that I have described, it is too serious to proceed with by way of a non-custodial sentence.

7.        So we turn next to consider the quantum, in other words how long the sentence should be.  We have carefully considered the case of Toomer and ors [2001] 2 Cr.App.R (S) 8, to which Mrs Pearmain referred us, and we have reminded ourselves of the danger of placing too much weight on the quantum in Oliver.  Nevertheless, we have concluded that the Crown's conclusions are correct for an offence of this gravity in relation to this type of material.  Accordingly, we impose a sentence of fifteen months' imprisonment on count 1 and eighteen months' imprisonment, concurrent, on all the other counts, making a total of eighteen months'. 

8.        Before we part from this case we would like Mr Whelan to ask the Attorney General to review the maximum level of sentence.  We consider that three years is inadequate as a maximum sentence and we would ask him to consider taking the matter to the relevant committee with a view to the Law being amended.  We order the forfeiture of the photographs; and we draw to the Crown's attention the provisions of the new Law on forfeiture - the Criminal Justice (Forfeiture Orders) (Jersey) Law, 2001 - which would, of course, enable the computer also to be forfeited.  There is perhaps much to be said for the Crown, in many cases, moving for forfeiture of implements used in connection with crimes, and a computer, in relation to an offence such as this, might well be a suitable matter for forfeiture.  But we make no order in this case, as the Crown has not applied for it and we have not heard Mrs Pearmain on the matter.

 

 

Authorities

R -v- Oliver, Hartrey and Baldwin [2002] EWCA Crim 2766.

R -v- Smith, Jayson (7^th March, 2002) Unreported Judgment of the Court of Appeal of England (Criminal Division).

AG -v- Wall (21^st April 1998) Jersey Unreported; [1998/80]

AG -v- Jervis-Dykes (26^th April 1999) Jersey Unreported; [1999/72]

Toomer and ors [2002] 2 Cr.App.R (s) 8.