Jersey Unreported Judgments

[2011]JCA022

COURT OF APPEAL

25^th January 2011

Before     :

Jonathan Sumption, Esq., O.B.E., Q.C., President; Dame Heather Steel, Q.C., and; Sir Geoffrey Rowland, Bailiff of Guernsey.

David Roy Forno

-v-

The Attorney General

Appeal against sentence passed by the Royal Court on 13^th July 2010 on:

4 counts of:	Inciting the making of an indecent photograph of a child, contrary to Article 2(1)(a) of the Protection of Children(Jersey) Law 1994 (Counts 1, 11, 12 and 23).
12 counts of:	Making an indecent photograph of a child, contrary to Article 2(1)(a) of the Protection of Children(Jersey) Law 1994 (Counts 2, 3, 4, 5, 6, 8, 9, 10, 16, 18, 20 and 25).
1 count of:	Inciting the distribution of an indecent photograph of a child, contrary to Article 2(1)(a) of the Protection of Children(Jersey) Law 1994 (Count 7).
1 count of:	Securing unauthorised access to computer material with intent to facilitate the commission of further offences, contrary to Article 4(1)(b) of the Computer Misuse(Jersey) Law 1995 (Count 14).
1 count of:	Securing unauthorised access to computer material, contrary to Article 2 of the Computer Misuse(Jersey) Law 1995 (Count 21).

Leave to appeal was granted by M. C. Birt, Q.C., Bailiff, sitting as a single Judge of the Court of Appeal on 11^th August, 2010 9^th June, 2010.

S. M. Baker, Esq., Crown Advocate.

Advocate S. A. Pearmain for the Appellant.

JUDGMENT

Steel ja:

This is the judgment of the Court.

1.        On 13^th July 2010 the Appellant, who is 37 years of age, was sentenced to a total of seven years' imprisonment by the Superior Number of the Royal Court, (Sir Philip Bailhache, Kt., Commissioner and five Jurats,) for nineteen offences to which he had pleaded guilty.  He appeals against that sentence by leave of the single judge.

The offences to which the Appellant pleaded guilty were as follows;

4 counts of:  Inciting the making of an indecent photograph of a child, contrary to Article 2(1) (a) of the Protection of Children (Jersey) Law 1994 (Counts 1, 11, 12, and 23)

12 counts of:  Making an indecent photograph of a child, contrary to Article 2 (1)(a) of the Protection of Children (Jersey) Law 1994 (Counts 2, 3, 4, 5, 6, 8, 9, 10, 18, 20 and 25)

1 count of:  Inciting the distribution of an indecent photograph of a child, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Count 7)

1 count of:  Securing unauthorised access to computer material with intent to facilitate the commission of further offences, contrary to Article (4) (1) (b) of the Computer Misuse (Jersey) Law 1995 (Count 14)

1 count of:  Securing unauthorised access to computer material, contrary to Article 2 of the Computer Misuse (Jersey) Law 1995 (Count 21)

2.        Counts 1-10 of the indictment concerned offences involving a child of ten years, child A.  For those offences the Appellant was sentenced to a total of five years' imprisonment.  This sentence comprised two concurrent sentences of five years' imprisonment for counts 6 and 9, six concurrent sentences of three years six months' imprisonment for counts 2, 3, 4, 5, 8, and 10, and two concurrent sentences of two years six months' imprisonment for counts 1 and 7.

The remaining counts concerned offences involving eight other children aged between ten and thirteen years including two offences contrary to the provisions of the Computer Misuse (Jersey) Law 1995.  For these offences a total sentence of two years' imprisonment was imposed to be served consecutively to the five year sentence for counts 1-10 making the total sentence to be served seven years' imprisonment.  The two year sentence comprised concurrent sentences of two years' imprisonment for counts 11, 12, 16, 18, 20, 23 and 25, a sentence of eighteen months' imprisonment for count 14, and a sentence of 2 months' imprisonment for count 21.

Pleas of Not Guilty to counts 13, 15, 17, 19, 22 and 24 were accepted by the Crown.

The Facts

3.        The offences arose from the Appellant's behaviour towards nine female children aged between 10 and 13 years.  The offences were committed between June 2008 and January 2009 when the Appellant was aged 35 and 36.  He communicated with the girls via MSN messaging and webcam.  He pretended to them that he was a fourteen year old boy and encouraged them to expose themselves to him via the webcam, and in some cases to perform sexual acts.   Sometimes the girls agreed (charged against the Appellant as making indecent photographs), on other occasions they declined, (charged as incitement).

4.        Extensive transcripts, 'chat logs' were recovered from the girls' computers. The most comprehensive record was provided from a computer set to record the text conversations and which was passed to the police by the father of the child concerned.  Other records were retrieved from computers seized by the police so that the parents were not exposed to the same level of explicitness. The members of this Court have read those chat logs and there is no need to detail the content.   The Appellant adopted the name of Liam with a contact address 'rugbyislife'.   The logs reveal that the Appellant was manipulative and used carefully planned and devious methods in his attempts to corrupt the children.   They demonstrate that the Appellant was persuasive and persistent in overcoming the reluctance and fear expressed by some of the children to comply with his requests.  He used convincing teenage text talk to these female children in his adopted character of a young boy. One girl in particular, aged ten years, having initially resisted his approaches became grossly sexualised by the Appellant.  (Counts 1-10)

5.        The remaining counts in the indictment particularise the identities of the other children, their ages at the time of the offences and the nature of the offences committed, which include the exposure of the girls' breasts and naked open vaginas. In the Royal Court the particulars of each offence were described and it is not necessary to set out those details here.

6.        Not all of the chat logs have been recovered.  The Appellant's computer has not been recovered.

7.        His methods also included hacking into the computer accounts of the friends of the children named in the indictment, thus pretending to be those friends.  In that guise he would use peer pressure to encourage the girls to comply with the requests he made of them as a fourteen year old boy.  This conduct gives rise to the Computer Misuse charges in the indictment.  Count 14 concerns the Appellant breaking into a computer account reserved for a child and, in order to encourage other children to provide sexual displays for him, he pretended to be that child and created texts to her friends to that effect.   In count 21, which concerns a child of 11 years, it was accepted that he hacked into the account for no other reason than to annoy the child.

8.        The Appellant occupied a teaching post as Head of Year at the secondary school attended by some of the complainants until his dismissal in January 2008 for 'inappropriate' computer use which had included having visited a site which gave advice on how to adopt the character of a young person for the purposes of online grooming.  None of the offences against the named children occurred whilst the Appellant was in his teaching post, and he was not their teacher.  The Appellant however was to tell the probation officer that he had created the Liam profile before being dismissed.

9.        In mitigation the Crown detailed good character,  guilty pleas, co-operation with the police, voluntarily attending counselling/therapy, and good references.  The Crown moved for a total sentence of five years' imprisonment.

10.      The maximum penalty for a single offence under the Protection of Children Law is ten years' imprisonment.  The Crown allowed that the Sentencing Guidelines Council guidelines were not particularly appropriate for the facts of this case and noted a starting point of three years for causing a victim to masturbate herself resulting in a sentencing range of 2 to 5 years after features of aggravation and mitigation were taken into account. For the penetrative offences the Crown took a starting point of 8 years, for the non penetrative offences 6 years, 4 years for the incitement offences and 3 years for the more serious Computer Misuse offence.  The Crown allowed a full one third discount for the Appellant's co-operation, pleas and a further discount for his good character. 

11.       The Crown indicated, and the defence agreed that no Jersey or English authority had been found which related to sentence for this type of offending. There is no Jersey Law equivalent to ss 8 and 10 of the English Sexual Offences Act 2003, namely causing a child to engage in sexual activity, for which the maximum sentences are substantially greater.  The Sexual Offences (Jersey) Law 2007 does not have such provisions. The statutory offence of causing or inciting a child to engage in sexual activity, being limited to persons in positions of trust such as teachers, does not apply to this case.

12.      After the facts of the offences were outlined by the Crown, the Commissioner indicated that although the Members of the Court had not discussed the case at all, having read the papers, it was possible that they may wish to impose a higher sentence than that moved for by the Crown Advocate.  Advocate Pearmain indicated that she would address that point and addressed the Court in mitigation.

13.      The Court had the benefit of a Social Enquiry Report dated 6^th July 2010 and a report from Ruth Emsley, Registered and Chartered Forensic Psychologist dated 4^th July 2010.

14.      In passing sentence the Commissioner stated that, although the indictment was described as involving specimen charges, the defendant was to be sentenced for the 19 offences to which he had pleaded guilty.  He referred to the fact that nine children in total were involved, and that the crimes were described as persistent, manipulative and devious.  Over a period of eight months the Appellant persuaded a number of these children to perform sexual acts on camera for his own gratification.

The results were, he said, devastating for many of them and for their families. "The children's innocence has been removed as has their trust in the adult world and their relationships with their parents and families have been gravely affected."

15.      He set out the mitigation in full, and indicated that the Sentencing Council's Guidelines were of only limited assistance.  He said "We are not dealing with an isolated offence.  We are sentencing for a determined and carefully planned series of offences which have blighted the lives of nine children and their families. We are conscious that whatever sentence is imposed the lost innocence of these children cannot be restored.  The sentence of the Court must reflect not only the totality of the offending but also the revulsion felt by all right minded people for this corruption of children for the sexual gratification of the offender."

16.      The Court indicated that account was taken of the maximum penalty laid down by the statute (which should, in the Court's view be reconsidered by the legislature) and the fact that these offences are not right at the top of the scale.  The Court took into account the totality principle and was satisfied that the sentence to be imposed did not offend that principle.

17.      There are two grounds of appeal:-

(i)        That the sentences imposed on each individual count of making or inciting the making of indecent images were manifestly excessive; and

(ii)       further or in the alternative, that the Court's approach in ordering that the sentences on the relevant counts between 11-25 should run concurrently with each other but consecutively to those on counts 1-10 was wrong in principle.

Ground One

18.      In support of her submissions on Ground 1 Advocate Pearmain referred the Court to R v Oliver [2002] EWCA Crim 2766, in which the English Court of Appeal gave guidance on sentencing for offences involving indecent photographs of children.

19.      The approach in Oliver was to assess the seriousness of an offence by reference to the nature of the indecent material, and the extent of the offender's involvement in it.  The nature of the indecent material images are categorised by five levels of increasing seriousness, set out in paragraph 10 of that judgment.  The offender's involvement with the indecent material was assessed by reference to the offender's proximity to, and responsibility for the original abuse.

At paragraph 17 of that judgment it was stated:-

"In relation to more serious offences, a custodial sentence between 12 months and three years will generally be appropriate for (a) possessing a large quantity of material at levels 4 or 5, even if there was no showing or distribution of it to others; or (b) showing or distributing a large number of images at level 3; or (c) producing or trading in material at levels 1 to 3.  Sentences of longer than three years should be reserved for cases where (a) images at levels 4 and 5 have been shown or distributed;  or (b) the offender was actively involved in the production of images at levels 4 or 5, especially where that involvement included a breach of trust, and whether or not there was an element of commercial gain;  or (c) where the offender had commissioned or encouraged the production of such images.  An offender whose conduct merits more than three years will merit a higher sentence if his conduct is within more than one of the categories (a) (b) and (c) than one where the conduct is only within one such category."

Paragraph 18 states:-

"Sentences approaching the ten year maximum will be appropriate in very serious cases where the defendant has a previous conviction either for dealing in child pornography or for abusing children sexually or with violence ..."

And at paragraph 19:-

"The levels of sentence which we have indicated are appropriate for adult offenders after a contested trial and without (save to the extent that we have referred to them) previous convictions."

She submits that these guidelines are helpful and ought to be followed in this jurisdiction.

20.      We were referred to AG v Roberts [2010] JRC 088 in which Oliver was cited as being helpful.

21.      Advocate Pearmain referred to counts 6 and 9, the two most serious offences admitted by the Appellant which she submits should be categorised as 'level 2' offences. These, she submits are solo masturbation by a child.  It is accepted that the Appellant acted alone and corrupted previously innocent children and is solely responsible for the images. She submits that if either count fell to be sentenced in isolation and taking into account the pleas of guilty the benchmark would be a sentence in the region of two years' imprisonment.  She concedes that the relevant aggravating factors and the fact of multiple offences would result in an increase in that sentence.

22.      She  submits that the  five year sentences for these two offences were manifestly excessive, and that the sentences for the other offences of making or inciting indecent images, admitted by the Appellant, were manifestly excessive

23.      It is conceded that the offending was very serious, but the maximum sentence of 10 years, allowed by the Law, has to accommodate even more serious instances of this type of offending. The sentencing Court should have considered only the current applicable law in Jersey.

24.      In mitigation Advocate Pearmain told the Court that the offences were committed at a time when the Appellant was under stress resulting from a failed marriage and his loss of employment, and the Court was asked to take into account that the Appellant had no face to face contact with the children at the time of the offences and that apart from their computer identities he did not know the identities of the children.

Ground Two

25.      Further or in the alternative Advocate Pearmain submits that all the sentences should have been ordered to be served concurrently and that the sentence of seven years' imprisonment offends the principle of totality.

26.      We were referred to Harris v AG [2001] JLR 362 in which the Court stated:-

" [the] principle means , in essence, no more and no less than the court must, before reaching a final decision, look at the total sentence that is produced by adding up the individual sentences that it is minded to impose on each count, in order to see whether the total is too high in light of the circumstances of the offences and the offender."

The Court in that case referred to Thomas, Principles of Sentencing 2nd edition, and the need to avoid a sentence which is substantially above the normal level of sentence for the most serious of the individual offences involved, or a 'crushing sentence' not in keeping with the offender's record or prospects.  "The essence of the principle appears to be that the aggregate sentences should not be longer than the upper limit of the normal bracket of sentences for the category of cases in which the most serious offence committed by the offender would be placed.  This formulation would allow an aggregate sentence longer than the sentence passed for the most serious offence if it stood alone, but would ensure that the sentence bore some recognisable relationship to the gravity of the sentence which would be passed for the most serious offence."

That Court also referred to a passage in AG v McIntyre 1999 Jersey CA unreported.

27.      Advocate Pearmain submits that the upper limit of the normal bracket of sentence for the most serious offence provides a useful reference point in assessing the total but accepts that the appropriate sentence may exceed the upper limit in appropriate circumstances.  She here submits that the aggregate sentence is substantially above the sentence for the most serious offences involved, and that the sentence imposed was a crushing sentence, not in keeping with the Appellant's record or prospects.  She accepts that if the sentences are to run concurrently there will be some uplift on each count to reflect the fact of multiple offences and that if they are to be served consecutively the aggregate will be higher than the sentence imposed for the most serious count, subject to the totality principle.

Conclusions

Ground One

28.      We are not persuaded that these sentences, either individually or in totality are in any way manifestly excessive.

29.      We accept the Crown submission that the Oliver guidelines, although of some assistance, are not well suited to the gravamen of this case, being more suitable for cases not exhibiting the aggravating features which apply here.

30.      The aggravating features were many.  The Royal Court gave extremely careful consideration to both the mitigation available to the Appellant and to the aggravating features which were set out by the Crown and which we take into account. They are:-

(i)        The extreme level of deliberation and planning involved in these offences.  The Appellant displayed both cunning and persistence in his approaches to under age girls and placed them under pressure to comply with his requests.  Some of the girls speak of feeling scared by his approaches.  In one instance in order to engage further with a girl he gave the fictional detail of having to look after a sibling, his mother having died.  His determination is evident from the number of hours spent contacting children, some 2 or 3 at least once a week during the relevant period.  His degree of organisation is shown by the fact that he carried all the necessary computer details, including an operating system on a portable drive so that he could pursue these activities, without trace, wherever he happened to be.

(ii)       The serious psychological effect upon the children involved as evidenced by the Victim Impact Statements and the distress and devastation caused to their families. One child has demonstrated a complete rejection of legitimate computer use. All the children and their families live in the Island community where the impact has been substantial. The lasting harm to the many children cannot be underestimated. This was a campaign of offending against multiple victims.

(iii)      The sustained and repeated approaches to the same victim in several instances aggravates the seriousness of each such offence.

(iv)      Internet intrusion into the homes of the children in order to commit these offences added to the distress caused to the families involved.

(v)       Sexually degrading language was used and there was the additional degradation of the demand for still photographs to be sent to him.

31.      In all the particular circumstances of this case, for the two offences where penetration was involved at the instigation of the Appellant, concurrent five year sentences were entirely appropriate.  The sentences passed for the other offences set out in the first ten counts were accordingly concurrent and appropriate for the circumstances of each offence.

32.      For the other offences admitted by the Appellant involving different complainants, even though committed during the same period, the sentences were carefully considered and entirely appropriate, for all the separate offences including the Computer Misuse offences.

Ground Two

33.      The Royal Court, in ordering the sentences on the relevant counts from 11 to 25 to run consecutively to the sentences on counts 1-10 was in our view correct and was in accordance with established principles.

34.      This was a matter for the discretion of the Court and the Royal Court was not bound to accept that the sentences moved for by the Crown should all be served concurrently. 

35.      The order that the sentences be served consecutively is not wrong in principle.  The Court sentenced for a multiplicity of separate and serious offences committed over a period of months.  It was for the Court to take account of the interests of both the offender and the different complainants and pass a sentence which was appropriate for all the circumstances of this case.

36.      The complainants were different from each other and different from the complainant in counts 1-10.  The court was not here sentencing for offences arising out of one transaction.  We support the approach in the present case in making the sentences for offences involving child A concurrent with sentences for the remainder concurrent but consecutive to the five year sentence warranted by the two serious offences included in counts 1 -10.  The Court sensibly and properly considered the totality principle in determining the seven year sentence, which was  well within the maximum sentence available for only one of the admitted offences and which took into account the possibility of the need to sentence for even more grave offences.

37.      Most significantly, in considering each sentence separately and in totality, the Superior Number of the Royal Court was uniquely able to assess the effect of these offences committed within an Island community; and to determine the needs of that community faced with offences of this nature committed against children growing up within that community.  The Court was correct in our view to take into account their problems and feelings of (unjustified) collective embarrassment and shame.  The Court process in this case has had widespread publicity, and the children each now know the identity of the man who pretended to be a fourteen year old boy.  It is no mitigation for the Appellant to assert that there was no face to face contact with the children, it is precisely because there was no such contact that the Appellant was able to practise his deceit upon them.

38.      We would only add a brief observation about the relationship between sentencing guidelines in Jersey and those applied in England.  Where the relevant social conditions and the policy considerations appear to be the same in both jurisdictions, it will usually be right for the sentencing court in Jersey to have regard to English sentencing practice even though not bound by it.  The volume of case law generated by English criminal appeals is large and varied, and in practice it has been found of value by sentencers in this jurisdiction.  There are, however, some offences where the conditions in this bailiwick call for a different approach.  A well-established example is drug importation, which has for many years been visited with much heavier sentences in this jurisdiction than in England.  Sexual offences of this kind, involving the perversion of children, are another case in point.  The corrosive feelings of shame, self-reproach and alienation suffered by the child are significantly greater and more persistent in a small and relatively close-knit community than they are in the more anonymous environment of a highly urbanised country of more than 60 million inhabitants such as the United Kingdom.  It follows that while the English categorisation of the different kinds of offence involving the sexualisation of children is undoubtedly helpful, in a particularly serious case such as this one, a sentencing court is entitled to take the view that a different and greater order of severity is called for.

39.      The total sentence of seven years is not manifestly excessive for this serious catalogue of offending nor can any individual sentence be so regarded.

40.      As we have indicated the sentence is neither wrong in principle nor manifestly excessive.

41.      This appeal against sentence is dismissed.

Authorities

Protection of Children (Jersey) Law 1994.

Computer Misuse (Jersey) Law 1995.

English Sexual Offences Act 2003.

Sexual Offences (Jersey) Law 2007.

R v Oliver [2002] EWCA Crim 2766.

AG v Roberts [2010] JRC 088.

Harris v AG [2001] JLR 362.

Thomas, Principles of Sentencing 2nd edition.

AG v McIntyre 1999 Jersey CA unreported.