AG -v- Bourke [2012] JRC 205 (09 November 2012)

JUDGMENT THE DEPUTY BAILIFF: 1. Mr Bourke, you are here to be sentenced on an Indictment containing four counts of making indecent photographs of children. As has been made plain by this Court on many occasions these are serious offences; they carry a maximum sentence of 10 years' imprisonment, and we have also said on many occasions that these are not victimless crimes and that people who sit in front of their computers looking at this material should be aware of that. We are told that you now realise that that is so.

2. The Court is entirely satisfied that the Crown is, broadly speaking, in the right area when it moves for conclusions of 3½ years' imprisonment. In this case there were 2,655 level 4 and 520 level 5 images and 189 level 4 and 14 level 5 movies and levels 4 or 5 on the Oliver scale are very much the particularly serious images which result in the Court imposing substantial prison sentences.

3. The Court is quite satisfied in this case that a custodial sentence is inevitable and is right, and that reflects the seriousness of the offences. We recognise all the mitigation that you have available to you which, we have to say, is often available in cases of this kind. You have no previous convictions and you have been cooperative with the police and have pleaded guilty, and that frequently does happen. In this case, there are two extra pieces of mitigation which we think are significant, the first was your very open response to the police, more open perhaps than some that we see, and the second is that we are satisfied that there is a genuine level of remorse in your case, which we accept. And for those reasons only, we think that the conclusions of the Crown can be slightly reduced.

4. We are going to send you to prison for a period of 3 years on each of Counts 1, 2 and 4 and 2 years on Count 3, where there are fewer images involved, and all those will be served concurrently so that makes a total of 3 years' imprisonment.

5. In addition we order the forfeiture and destruction of the computer and the associated equipment.

6. As far as the orders under the Sex Offenders (Jersey) Law 2010 are concerned, it follows as a result of this offending that automatically you are subject to the notification requirements in the Sex Offenders Law. Those requirements bind you indefinitely until a court orders otherwise, and in accordance with the statute, we think the minimum period of 5 years should elapse before you can apply to have the notification requirements disapplied to you. I should add that it will not necessarily be the case that when 5 years have gone by they will be disapplied to you. The court will look at it at that stage on the basis of what risk of sexual reoffending you pose, and clearly the longer the period of not having offended once you are released, the stronger your case will be; it may not be strong enough after 5 years but at any rate that is the minimum period before which you can apply to have the notification requirements disapplied to you.

7. We also think it is appropriate to make the restrictive orders which the Crown has sought and which you have not opposed, accordingly we order:- (i) that you must produce to a police officer ,forthwith on request, for examination from time to time, any computer or any device which may access the internet, or any telephone or mobile phone or any device which can store images electronically, which belongs to you or is in your possession, or available to you for your use at a place of work, it being noted that such request may be made anywhere, including by the police officer attending at your place of residence. (ii) That you are prohibited from owning, or having in your possession, or having access to any device capable of accessing the internet unless:- (a) It has the capacity to retain and display the history of internet use; (b) you ensure that the history is not deleted. Those restrictive orders will run for a period of 5 years from the date of your release from custody.

8. The Court very much hopes that you will engage with the help which you will have been offered through the prison services. The acceptance, through your counsel, that you have a problem which needs to be addressed, is an important acceptance and can result in all this becoming something constructive for the future, which is what we hope it will be. Authorities R-v-Oliver Hartrey & Baldwin (2002) EWCA Crim 2766 . Sex Offenders (Jersey) Law 2010. AG-v-U [2011] JRC 219 . AG-v-Maguire [2012] JRC 089 . R-v-Smith & Others (2002) 1 Cr. App. R. (S) 82. Wicks & Ors-v-Law Officers of the Crown (Guernsey 14/2012). Page Last Updated: 13 Sep 2016 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII