Jersey Unreported Judgments

[2007]JRC042

ROYAL COURT

(Samedi Division)

19^th February 2007

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Allo and Morgan.

The Attorney General

-v-

Ernest Peter Marcel Le Heuze

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

	Counts 1-7 acquitted by the Inferior Number.
13 counts of:	Making an indecent photograph of a child, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law, 1994. (Counts 8-20)

Age:  55.

Plea: Guilty.

Details of Offence:

Le Heuze was arrested in 2002 and prior to a search of his house, admitted that his computer contained inter alia child porn, which he said he could not stop.  The computer was seized and a preliminary analysis showed that it had been used to display a large amount of child pornography from the internet.  The images were recorded in the computer's internet cache.

During subsequent interview Le Heuze admitted regularly searching for adult pornography but claimed that the child pornography must have been downloaded onto his computer automatically by a virus, and that he had not intentionally requested it.  He admitted that he had deleted his internet history each time that he used the computer to stop anyone seeing what he had been viewing.

The computer was then subjected to further detailed analysis by two prosecution experts and by an expert for the defence.  Partly because of the paucity of expert availability, this took place over several years.  The computer cache was reconstructed and the deleted history recovered.  Extensive checks were carried out for any form of malicious code which may have been responsible.  Ultimately all three experts agreed that, while the majority of the child pornography could have been the result of an automatic process, the 13 images that were the subject of the charge could only have been downloaded by the intentional actions of Le Heuze (of those images, ten were classified COPINE category 1, one was category 2, one was category 3 and one was category 4).

Despite the findings of the experts, Le Heuze maintained his not guilty pleas, and was later convicted at trial at the beginning of 2007.

Details of Mitigation:

The lengthy delay in bringing the prosecution was the main mitigation.  Otherwise, the total amount of images involved was small and their content was at the lower end of the scale.  There had been an adherence to strict bail conditions throughout.  At sentencing Le Heuze provided a letter of remorse admitting the offences.

Previous Convictions:

Various historic offences but no previous convictions for anything similar.

Conclusions:

Counts 8-17:	50 hours Community Service Order on each, or 1 month's imprisonment on each in default, concurrent.
Count 18:	70 hours Community Service Order, or 2 months' imprisonment in default, concurrent.
Count 19:	100 hours Community Service Order or 4 month's imprisonment in default, concurrent.
Count 20:	120 hours Community Service Order or 6 month's imprisonment in default, concurrent.

Total: 120 hours Community Service Order or 6 month's imprisonment in default.

Forfeiture of computer and other paraphernalia seized from the defendant's house.

Defence offers 1,340 pornographic magazines for forfeiture and destruction.

Sentence and Observations of Court:

The Court declared that the delay in bringing the prosecution was wholly unacceptable.  But for the delay, Le Heuze would have been facing a prison sentence.

The Court reduced slightly the Crown's conclusions and ordered 1 year's Probation.

Count 8-17:	50 hours Community Service Order on each or 1 month's imprisonment on each in default, concurrent.
Count 18:	70 hours Community Service Order or 2 months' imprisonment in default, concurrent.
Count 19:	90 hours Community Service Order or 3 months' imprisonment in default, concurrent.
Count 20:	100 hours Community Service Order or 4 months' imprisonment in default, concurrent.

Total: 100 hours Community Service Order or 4 months' imprisonment in default.

Forfeiture of computer and other paraphernalia seized from the defendant's house.

Defence offer of 1,340 pornographic magazines for forfeiture and destruction accepted.

Video camera to be returned to defendant.

Conventional video/dvd's - nothing to be destroyed before agreement with defence.

C.M. M. Yates, Esq., Crown Advocate.

Advocate M. J. Haines for the defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Before passing sentence, we wish to comment on two matters.  The first is the delay in this case.  The defendant was arrested on 2^nd August, 2002, and was committed for trial by the Magistrate's Court to this Court, on 10^th October, 2002.  However he was not indicted before this Court until 15^th September, 2006.  That is virtually 4 years later and the trial, and now the sentence, is taking place 4½ years after his arrest. 

2.        The Court demanded an explanation for this and the Crown has very helpfully and properly produced a detailed chronology.  We do accept that analysis of computers is a very technical and time consuming process, and we also accept that the necessary skills are, perhaps, in short supply.  Despite that, the prosecution has a duty to ensure that prosecutions are brought in a timely manner.  That simply has not been the case here. 

3.        We would highlight the following particular points.  First of all Mr Sanderson, the prosecution computer expert, was not instructed until June 2003.  Secondly, there was a delay of well over a year between receipt of Mr Magee's report (the defence expert) in July 2004 and the reports in response of the Police Officer, in August 2005 and Mr Sanderson in October 2005.  Thirdly there was then a further delay of approximately 1 year between the production of those prosecution reports, which one might have thought would have been the end of the delay, and indictment.  This was because the Crown, at that stage, decided to consult an English barrister experienced in these matters.  That was far too late and should have been done much earlier.  Fourthly, we would add that the only period of delay which seems to us to be attributable to the defence, is that between February 2004, when they were authorised by the legal aid vote to get a defence expert, and July 2004 when Mr Magee produced his first report.  It is right to say, of course, it took Mr Magee a while to produce his second report, but that does not appear to us to have contributed to any period of delay.

4.        What was critical in this case was the failure of the prosecution to indict.  This case simply fell into a black hole.  There was no control by the Court, because the Court was not aware of the existence of the case.  We wish to make it clear in future that there should never be such a delay in indicting again.  An indictment should be laid within a reasonable period and that would mean that at least the Court would have control of the process, could fix time limits and ensure that both the prosecution and, where necessary, the defence proceeded promptly. 

5.        There is clear authority that, if there are exceptionally long delays and a matter hangs over a defendant for an unduly long period, this is something which should be reflected in the sentence which is passed.  The correct sentence here, as we shall say in a moment, is one of imprisonment.  But the Crown has moved for a non-custodial sentence simply because of the delay.  The result of the delay by the prosecution is that an offender will not be receiving the correct sentence.  That seems to us to be highly unsatisfactory. 

6.        We are going to request the Attorney General to look into what has happened in this case and to report to the Bailiff in due course as to what lessons have been learned and what actions he is going to take to make sure there is never such a delay again.

7.        The second area we want to comment on before passing sentence is reporting.  The Evening Post did not send a reporter for most of this trial; the reporter was only there at the end.  There was then a very inaccurate report of what had occurred.  To give but one example it was stated that the defendant "had been convicted of downloading images, some of which featured children as young as 6 being raped."  This was simply untrue.  But members of the community, reading that report, will naturally find it difficult to understand the sentence which is passed on the true facts, which are much less serious.  So we do remind the media of the important responsibility they bear to get things right.

8.        Turning to the facts, the defendant has, in fact, been convicted only of downloading two pages of the "Ukrainian Nymphets" website.  Those two pages contain a total of 10 photographs of young children, falling within level 1 of the Copine scale, namely images depicting erotic posing but with no sexual activity.  In addition he has been convicted of downloading three images from the "Sex.lolihost" site, one of level 2, one of level 3 and one of level 4, in other words a total of 13 images.

9.        The Court will deal severely with cases of child pornography, first to express society's repugnance and secondly to condemn the corruption of young children which is involved in the making of such images.  Those like Mr Le Heuze, who view such pornography, encourage the making of it with the consequent involvement and corruption of the young children who are forced to participate in it.

10.      The Court has regard to the level of sentences recommended in the leading case of R v Oliver Hartrey and Baldwin [2003] 1 Cr. App. R. 28, but we remind ourselves these are not rigid tramlines, merely guidelines. 

11.      In mitigation, apart from the delay, we take into account the comparatively small number of photographs and their level, of course.  We note that, apart from a couple of motoring offences, Mr Le Heuze has no offences since 1975, and nothing of this nature.  We have read the references and we note that he has a good work record, but that he has now lost his job.  And we take into account all the other items of mitigation that Mr Haines put forward.

12.      Nevertheless if there had been no unreasonable delay in this case, we would have imposed a sentence of imprisonment.  The relevant bracket in Oliver, for possessing a small amount of level 4 or 5 material, is from 6 to 12 months.  Given the small amount in this case and the level, we would have imposed a sentence of 6 months' imprisonment.  But we cannot ignore the unacceptable delay, and we accept what Mr Haines has said that in certain respects it has worked particularly harshly on Mr Le Heuze.  First of all as a condition of bail he had to leave his home, where he had lived with and looked after his mother for a very lengthy period and this undoubtedly caused particular hardship, not only for him but also for his mother.  Secondly, we note that he has been under a curfew from 8 p.m. to 8 a.m. for the whole of the period, and thirdly he was initially remanded in custody and has therefore already served the equivalent of nearly 3 months' imprisonment on remand.

13.      So we have been persuaded that, because of the delay in this case, the Crown's conclusions that a non-custodial sentence should be imposed, are correct.  We think, however, that there should be a Probation Order in order to assist Mr Le Heuze in addressing his problems.  Furthermore because 6 months' would have been the sentence we imposed, we think there has to be a slight adjustment to allow for the delay, above and beyond simply imposing equivalent Community Service.

14.      We are going to impose a Probation Order on all counts concurrently for 1 year and we are also going to impose concurrent Community Service on counts 8-17, 50 hours, on count 18, 70 hours, on count 19, 90 hours and on count 20, 100 hours, that is a total of 100 hours and we state the equivalent prison sentence would have been 4 months.  We order the forfeiture of the computer and all the related equipment that was used in connection with the offences.  Mr Haines has submitted that the video camera should not be forfeit and we agree that it was not used for any of the offences of which you have been convicted and therefore should not be forfeit.  You have offered to surrender for forfeiture all your pornography and we acknowledge that and commend you for it.  Clearly all the ordinary, conventional videos should be returned to you and we think the best thing is that this must be done by liaison between yourself or your representatives, and the prosecution.  We order, therefore, that apart from the computer and the related equipment, nothing is to be destroyed prior to consultation with the defence in order to make sure that it is something which, it is agreed, should be destroyed.

Authorities

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