Read the full judgment text of CAAR 000008/2007 on BabelCite. This Court of Appeal judgment was delivered on 16 July 2008 before Ma CJHC, Stuart-Moore VP & Stock JA.
Criminal law – Prevention of Child Pornography Ordinance (Cap.579) – possession of child pornography – sentencing guidelines – classification of pornographic images – deterrence – manifestly inadequate sentence – review of sentence – prospective application of guidelines – District Court jurisdiction – Court of Appeal guidelines for sentencing under s.3(3) of the Prevention of Child Pornography Ordinance, Cap.579, which provides for a maximum of 5 years' imprisonment on indictment and 2 years on summary conviction for possession of child pornography – two applications for review of sentence joined – first respondent (CAAR 8/2007) sentenced to 6 months' imprisonment suspended for 2 years and a fine of $20,000 for possession of 1,157 still images and 245 video files covering all classification levels, including 510 still images and 170 video files showing non-penetrative or penetrative activity between adults and children – children depicted aged 5 to 12 – previous conviction for indecent assault on a 12-year-old girl in 1998 – second respondent (CAAR 9/2007) sentenced to 200 hours of community service for possession of 8,290 photographs and 205 video files, the majority at Level 1 but with significant numbers at Levels 2 to 4, involving children aged 0 to 15 with 634 images depicting children with adults – both cases dealt with in the Magistrates' Court – previous inconsistency in sentencing for this offence – issue whether possession of child pornography should generally attract an immediate custodial sentence – held yes, an immediate custodial sentence should generally be imposed unless special circumstances exist – a small quantity of Level 1 material may be de minimis – PCPO aims principally to protect children from exploitation and abuse, with deterrence as the main sentencing factor – harm to children includes degradation, dehumanisation, trauma, loss of dignity, and the encouragement of paedophilia – ready availability through the internet facilitates dissemination – court adopted a four-level classification based on R v Mark David Oliver and Others [2003] 2 Cr App R 64, with modification merging penetrative activity and sadism/bestiality – Level 1: erotic posing with no sexual activity – Level 2: sexual activity between children or solo masturbation by a child – Level 3: non-penetrative sexual activity between adults and children – Level 4: penetrative sexual activity between children and adults, or sadism or bestiality – sentencing guidelines for first-time offenders after trial – Level 1: non-custodial options possible for up to 20 images, otherwise 1 to 6 months – Level 2: up to 9 months – Level 3: 6 to 12 months – Level 4: 12 to 36 months – timely guilty plea is the principal mitigating factor – aggravating factors include previous similar offences, very young children, intention to disseminate, and large numbers of images – application of guidelines to the first respondent would have warranted 3 years' imprisonment after trial in the District Court – application to the second respondent, who was under 21 at conviction, would have warranted a Training Centre order, or 2 years' imprisonment if over 21 – both applications for review allowed, sentences found to be manifestly inadequate – however, sentences not increased as the new guidelines apply only prospectively to offences committed after the date of judgment – recommendation that future prosecutions of this gravity should generally be in the District Court.
Legal issues: Sentencing approach for possession of child pornography under s.3(3) PCPO · Classification system and sentencing ranges for child pornography · Prospective application of new sentencing guidelines
Outcome: Both applications for review of sentence allowed; the sentences imposed on each respondent were found to be manifestly inadequate. However, the sentences were not increased because the new sentencing guidelines apply only prospectively to offences committed after the date of judgment.
Cited by 29 cases