3C.4 Penalties

In recognition of the growing problem, penalties for computer-related crimes are being made more severe. For instance, the English Criminal Justice and Court Services Act, 2000 increased the maximum penalty for offenses contrary to Section 1(1) of the Protection of Children Act, 1978 from 3 to 10 years imprisonment. Anyone convicted of or pleading guilty to an offense involving child pornography might be subject to a range of other legal consequences including registration under the Sex Offenders Act, 1997, disqualification from working with children under the Criminal Justice and Court Services Act, 2000 and being barred or restricted from employment as a teacher or worker with persons under the age of 19.

The English Sentencing Advisory Panel (SAP) is a body established to advise the Court of Appeal. In August 2002, it published its advice on offenses involving child pornography. (See Gillespie, Alisdair A. "Sentences for Offences Involving Child Pornography," [2003] Crim.L.R. 81.)

The SAP's advice was discussed in the case of R. v. Oliver, Hartrey and Baldwin [2003] Crim.L.R. 127 where the English Court of Appeal dealt with three appeals together for the purpose of giving sentencing guidelines for offenses involving indecent photographs and pseudo-photographs of children. The court agreed with the panel that the two primary factors which determined the seriousness of a particular offense were the nature of the indecent material and the extent of the offender's involvement with it. The seriousness of an individual offense increased with the offender's proximity to and responsibility for the original abuse. Any element of commercial gain would place an offence at a high level of seriousness. Swapping of images could properly be regarded as a commercial activity, albeit without financial gain, because it fuelled demand for such material. Widespread distribution was intrinsically more harmful than a transaction limited to two or three individuals. Merely locating an image on the Internet would generally be less serious than downloading it. Downloading would generally be less serious than taking an original photograph. Possession, including downloading, of artificially created pseudo-photographs and the making of such images should generally be treated as being at a lower level of seriousness than the making and possessing of images of real children. The court noted, however, that although pseudo-photographs lacked the historical element of likely corruption of real children depicted in photographs, pseudo-photographs might be as likely as real photographs to fall into the hands of or to be shown to the vulnerable, and therefore to have an equally corrupting effect.

The SAP categorized the increasing seriousness of material into five levels, characterized by the court, in making certain amendments, as follows:

images depicting erotic posing with no sexual activity;
sexual activity between children or solo masturbation by a child;
non-penetrative sexual activity between adults and children;
penetrative sexual activity between adults and children;
sadism or bestiality.

The court held that a fine would normally be appropriate in a case where (i) the offender was merely in possession of material solely for his own use, including cases where material was downloaded from the Internet but was not further distributed, (ii) the material consisted entirely of pseudo-photographs, the making of which had involved no abuse or exploitation of children, or (iii) there was no more than a small quantity of material at level 1.

The court agreed with the SAP's recommendation that in any case which was close to the custody threshold, the offender's suitability for treatment should be assessed with a view to imposing a community rehabilitation order with a requirement to attend a sex offender treatment program. With regard to custodial sentences, in summary, the court found as follows:

a sentence of up to six months would be appropriate in a case where the offender was in possession of a large amount of material at level 2 or a small amount at level 3 or the offender had shown, distributed or exchanged indecent material at level 1 or 2 on a limited scale and without financial gain;
a sentence of between six and twelve months would be appropriate for showing or distributing a large number of images at level 2 or 3 or possessing a small number of images at level 4 or 5;
a sentence between twelve months and three years would be appropriate for possessing a large quantity of material at level 4 or 5, showing or distributing a large number of images at level 3 or producing or trading in material at level 1, 2 or 3;
sentences longer than three years should be reserved for cases where images at level 4 or 5 had been shown or distributed, the offender was actively involved in the production of images at level 4 or 5, especially where that involvement included breach of trust and whether or not there was an element of commercial gain, or the offender had commissioned or encouraged the production of such images;
sentences approaching the ten year maximum would be appropriate in very serious cases where the defendant had a previous conviction either for dealing in child pornography or for abusing children sexually or with violence.

The court set out specific factors which were capable of aggravating the seriousness of a particular offense:

the images had been shown or distributed to a child;
there were a large number of images;
the way in which a collection of images was organized on a computer might indicate a more or less sophisticated approach on the part of the offender to, say, trading;
images posted on a public area of the Internet;
if the offender was responsible for the original production of the images, especially if the child or children were family members or located through abuse of the offender's position of trust, for example, as a teacher;
the age of the children involved.

So far as mitigation was concerned, the court agreed with the SAP that some weight might be attached to good character, but not much. A plea of guilty was a statutory mitigating factor; the extent of the sentencing discount to be allowed for a plea of guilty would vary according to the timing and circumstances of the plea.

Applying these principles to the instant cases, the court imposed a sentence of 8 months imprisonment with an extension of 28 months in the case of a man of previous good character who had pleaded guilty to six offenses of making indecent photographs or pseudo-photographs of a child, his computer and some floppy disks having been found to contain some 20,000 images at levels 3 and 4. The court imposed a sentence of three years on a guilty plea in the case of a man who had distributed and made photographs of children at level 4, his computer systems having been found to contain a total of 20,000 indecent images and 500 movie files of child abuse. In the third case, the court imposed a sentence of 2.5 years for the offenses of making indecent photographs. A concurrent sentence of 3 years was imposed for indecent assault on a girl aged 8 or 9 years, a video recording depicting the defendant committing the assault having been found in the home of another person.

It should be noted that a new criminal justice bill is at the time of writing before the English Parliament which may propose reform of sentencing guidelines.