Possession of Child Exploitation Material - Research Paper Example

Length of Sentence for Possession of Child Exploitation Material [Name of the Student] [Name of the University] Length of Sentence for Possession of Child Exploitation Material Introduction This work claims that the sentencing period for possessing child exploitation materials should be enhanced in the context of Western Australia. As such, section 220 of the Criminal Code Act Compilation Act 1913 should be amended. The present sentencing period of seven years needs to be extended to more than 20 years, so that the offence cannot be repeated by the offender, during his life time. The reasons for the same will be discussed in the sequel. The following discussion establishes the contention that the sentencing period for possessing child abuse materials should be extended to a much greater extent. Possession of child exploitation material in Australia, is deemed a crime. It renders the offender liable to a seven-year term of imprisonment[Aus149]. The Criminal Code Act Compilation Act 1913 contains a few offences that criminalise the sexual abuse of children by persons possessing a position of care or authority. In this context, children have been defined as individuals whose age is less than 17 years. The individuals categorised as persons in a position of authority or care were limited to schoolmasters, teachers, employers and guardians, until the 1980s. In addition, this protection was restricted to the female victims of abuse [Box14]. The male victims were not accorded protection under the legislation. In addition, the legislation of Western Australia, pertaining to sexual offences, prior to the 1970s, consisted of several offences. These could be utilised for bringing charges against male offenders who had subjected females to sexual abuse. On the other hand, there were very few offences that related to the male victims of sexual abuse. An instance of this being the classification as an offence of the indecent dealing of boys less than 14 years old. The legislation did not define indecent dealing, and it was apparently related to oral sex and other such activities. Moreover, it was deemed to be an offence to engage in or attempt to engage in unnatural offences, such as sodomy[Box14]. As such, with the advent of the Criminal Code Amendment Act 1972, the sexual offence legislation of Western Australia introduced gender independent language. For instance, the indecent handling of a boy under 14 years of age was termed as child abuse. In addition, the enactment of the Law Reform (Decriminalization of Sodomy) Act 1989 led to the excision of gendered language. However, it introduced the offence of public gross indecency between males. Thereafter, in the early 1990s, a new category of offences were criminalised by Western Australia. These related to the sexual penetration of or indecent handling of males from 16 to 20 years. Subsequently, in the early 2000s, these gendered offences were repealed and the sexual offence legislation of Western Australia was rendered gender neutral, in the main[Box14]. Additionally, the Acts Amendment (Sexual Offences) Act 1992 was introduced in Western Australia, which classified as an offence the recording of indecent acts against children aged less than 16 years. Furthermore, the Classification (Publications, Films and Computer Games) Enforcement Act 1996 made it an offence to distribute, exhibit, sell, or possess child pornography. For the purposes of this Act, child pornography was defined as articles that described or portrayed, in a manner that would offend a reasonable adult, an individual who was or who resembled a child under the age of 16 years[Box14]. Moreover, the explicit criminalisation of possession, production and dissemination of child pornography was brought about by the Child Pornography and Exploitation Material and Classification Amendment Act 2010. Child pornography has been described by this Act as material that describes, represents or portrays a person, who is a child or who appears to be a child, as indulging in sexual activity or in a sexual contact. In addition, this representation, description or portrayal should be in a manner that could be offensive to a reasonable person, and it should be in an offensive or demeaning context[Box14]. Furthermore, a study by Lincoln and Velazquez in 2009, provided information regarding the sentences to be inflicted for different crimes, from the citizens of Australia. It was found in this study that the people preferred harsher punishment for sexual and violent crime than other forms of crime. The majority preference was for imprisonment[Jun14]. Nevertheless, there is considerable public dissatisfaction with sentencing practices in Australia. Nevertheless, the citizens of Australia tend to consent with the punishment inflicted in most of the cases. Thus, in a 2001 study by St. Amand and Zamble, it came to light that individuals were in favour of heavier fines and longer terms of incarceration. This was in comparison to the punishment inflicted upon offenders in actual cases. However, these suggestions were not unduly more stringent than what was regarded as the usual punishment in such cases. Thus, it can be surmised that the public chiefly supports punishments that are similar to the extant judicial sentences[Jun14]. In addition, in several of the child pornography offences it had been observed that there was no prior history of convictions, and the offenders had been exemplary citizens. This had provided a mitigating influence, at the time of sentencing such offenders. All the same, Australian authority had been in favour of attaching negligible importance to prior good character in cases relating to child pornography. This was similar to the approach adopted in culpable and drunken driving cases. The prevalence of offences committed by such person of good character and the necessity to engender deterrence has prompted the Australian authority to resort to this course of action [War10]. As such, the emphasis is upon general deterrence with regard to such offences. Thus, in Power v Director of Public Prosecutions, the appellant submitted an outstanding record of his contribution to society and his exemplary character. The court did not attach much importance to these features and punished him suitably. The emphasis of the court was upon the necessity to ensure specific and general deterrence in such offences. This case reveals the fact that exemplary character cannot mitigate the seriousness of the offence. Similarly, in Mouscas v The Queen, the appellate court rejected the claims of the applicant that the lower court had disregarded his good character at the time of sentencing him. This court stressed upon the fact that the offenders in child pornography cases were frequently of good character, which made it all the more necessary to disregard such considerations. This offence was to be prevented and deterred by imposing severe punishment[War10]. Good character was held to be irrelevant, while determining the sentence for child abuse, by the courts. The majority of the decisions in Western Australia have pertained to the State offence of possession of child pornography material. In Western Australia v Cunningham, Miller JA declared that in the previous decade, the sentences imposed for possession of child pornography had varied from eight months to two years of immediate imprisonment. Moreover, the presiding judge was not empowered to impose a suspended sentence of imprisonment[War10]. However, in R v Liddington, the offender was given a suspended sentence, on the basis of circumstances that justified mitigation of punishment on grounds of mercy. During recent times, a sentence of two years was held by the court to be insufficiently severe for the offence of possessing child pornography. This transpired in Hill v Western Australia, wherein the accused claimed leniency, as he had ceased to view the pornographic video after a few seconds. The fact that he had been a minister of the church and a police officer, could not mitigate the sentence[War10]. The profession or position of the accused does not have any impact on the sentence imposed for the possession and viewing of child abuse material. There are some practical problems, with the perusal of the material by the courts, due to the vast amounts of disgusting materials to be watched, in deciding such cases. This makes it a difficult task for the courts to assess the seriousness of the offence. For instance, it had been recommended to the courts that they should peruse the offending material, in order to evaluate its character. This has proved to be impractical, due to the enormous amount of material to be found in several of the cases. Therefore, a compromise had been arrived at, and an agreed upon representative sample has been deemed to be sufficient for the purpose. In this context, it has been recommended that in cases with substantial quantities of such material, the sample selected should adequately reflect the offending material, in its totality, as well as take into account the health and safety of the persons authorised and required to view the material[War10]. Hence, selection of a sample from the abusive materials was considered to be relevant, instead of going through a plethora of offensive and disgusting material, in such cases. Consequently, the need of the hour is to provide better quantitative guidelines, as the various rulings demonstrate the difficulty in perceiving the sentencing ranges. The improved guidelines should indicate the suitability of non-custodial penalties, situations when custodial penalties are appropriate, and should provide a range of imprisonment terms that are correlated to the nature and volume of the child pornography material. The majority of such material indicates depravity that proves to be deeply distressing and dismaying for most of the people[War10]. Consequently, great care should be taken to ensure that child pornography offenders are suitably punished for their offence. Moreover, with respect to multiple offences involving discrete offending and multiple victims, special care has to be exercised. This feature had to be taken into consideration at the time of arriving at the sentence for each offence. This principle of totality has been consistently reiterated by the Court of Criminal Appeal. Accumulation can be deemed to be apt with regard to multiple offences that involve child pornography[Miz10]. For example, in Hitchen v R, the offender was charged with a number of offences under the Commonwealth and State laws. Some of these being access, transmission, possession and production of child pornography, utilising a child for pornographic purposes, and the continued abuse of a child. The court sentenced Hitchen to a total of 24 years, which included a non-parole term of imprisonment of 18 years. Hitchen had possessed 729,000 images of child pornography and 2,700 videos of the same genre, and the sentencing judge found this material to be disgusting and utterly reprehensible. In addition, Hitchen had sexually abused his step-daughter for three years and forced her to participate in his production of child pornography images. Several of these images had been transmitted abroad by Hitchen[Miz10]. The Court of Criminal Appeal was of the opinion that the overall sentence of 24 years was excessive and that the totality principle had not been applied correctly. This Court declared that despite the gravity of the offences committed by Hitchen, there was no prior record of criminal conduct on his part. The course of conduct of Hitchen was singular and had been initiated due to his obsession with his step-daughter, pornography and the Internet[Miz10]. Furthermore, in R v Jarrold, the offender was charged with the Commonwealth offence of transmitting child pornography material, and several State offences, such as the possession and production of child pornography. In addition, he was also charged with exposing a child to lascivious material, in order to simplify his pernicious task of inducing the child to engage in unlawful sexual activity[Miz10]. In addition, the production of child pornography offences pertained to discrete chat conversations on the Internet, which the offender had engaged in. These had taken place over a long period. The sentencing judge imposed a sentence that was five years in overall length. This sentence included a three year non-parole period. The Crown objected to this concurrent imposition of punishment and made an appeal to the Court of Criminal Appeal. This Court noted that the sentence, in question, was inadequate, as the offender deserved much more severe punishment. Thus, Howie J held that despite the fact that the offences were considerably lower in the hierarchy of such crimes, there was no justification for imposing concurrent sentences. These offences were distinct and had been committed over protracted periods. Specifically, the learned judge examined whether the sentence for one offence covered the criminality of all the offences, and concluded that this was not the case[Miz10]. The case of R v Gent is important as the presiding judge Johnson identified the elements for determining the objective gravity of an offence that related to the importation or possession of child pornography, the character and content of such material, the quantity of the items or images in the possession of the offender, whether the possession or import of such material was for further dissemination, and whether the offender stood to gain from the offence. Moreover, in Whiley v R, the importance of these elements, whilst determining the objective gravity of offences, was recognised. This was with regard to the production of such material. On the other hand R v Mara, related to access or transmission over the Internet of such material. There is disparity in the importance of these factors, and this is determined by the facts of the case, in question. However, it is incumbent for the court to invariably consider the evidence placed before it, with due consideration for the elements of the offence involved. The importance of this approach comes to the fore with regard to distribution of child pornography material. This is due to the fact that the distribution of child pornography is covered by the Commonwealth and the State law. This is the gist of Section 474 of the Criminal Code Act 1995. Nevertheless, the criminal laws of Australia do not possess uniformity, and this extend to the laws pertaining to child sexual assault. Under these circumstances, it is indispensable to have in place a system that safeguards the young and vulnerable children and adolescents from premature sexual abuse, activity and exploitation. However, this system should refrain from over criminalising sexual behaviour[War12]. Conclusion Section 220 of the Criminal Code Act Compilation Act 1913 has declared a sentencing term of seven years for possessing child exploitation materials. In accordance with the above discussion, this is insufficient for controlling this disgusting crime. In the majority of the cases, relating to the possession of child pornography material, the courts have taken the gravity of the offence into consideration. The offender’s prior good character and conduct have not been regarded as grounds for mitigating the sentence. In Hitchen v R the court imposed a sentence of 24 years upon Hitchen who was in the possession of 729,000 images and 2,700 videos of child pornography. These images and videos were of the kind that generated immediate and deep disgust in a reasonable viewer. In addition, Hitchen had made his step-daughter participate in the production of these materials, over a three year period. The above discussion substantiates the claim that the sentencing term for possession of child exploitation materials should be of much greater length than that obtaining at present. The punishment imposed should for at least 20 years without parole. This would serve to deter perpetrators from engaging in this crime. References Aus149: , (Australian Government ComLaw, 2014), Box14: , (Boxall, Tomison, & Hulme, 2014, p. 90), Box14: , (Boxall, Tomison, & Hulme, 2014, p. 89), Box14: , (Boxall, Tomison, & Hulme, 2014, p. 91), Jun14: , (Jung, Ahn-Redding, & Allison, 2014, p. 343), Jun14: , (Jung, Ahn-Redding, & Allison, 2014, p. 344), War10: , (Warner, Sentencing for child pornography, 2010, p. 390), War10: , (Warner, Sentencing for child pornography, 2010, p. 394), War10: , (Warner, Sentencing for child pornography, 2010, p. 395), Miz10: , (Mizzi, Gotsis, & Poletti, 2010, p. 19), Miz10: , (Mizzi, Gotsis, & Poletti, 2010, p. 20), War12: , (Warner, 2012, p. 1010), Read More