(CMR) Kayson Ricardo Holness, who was convicted and sentenced to 33 months in prison for three offenses involving child pornography, had an appeal against his sentence dismissed by the Court of Appeal.
Holness was granted an application for leave to appeal against the sentence imposed in the Grand Court last year. However, the Appeal Court said while it granted leave for the appeal, the appeal is dismissed.
In a judgment released earlier this month, the Court of Appeal stated that “offenses of possession or transmission of indecent images of children are not victimless crimes. Real children are sexually abused in order to produce the images. Those who download or transmit such images help fuel the market for their production. In this case, a child between 4 and 18 months old was sexually penetrated by an adult male and clearly suffered considerably.”
Holness was arrested and convicted after CMR reported disturbing images of an infant child being raped in 2020 to the RCIPS. The police began an investigation into a Facebook posting under the name”Djfreshlink Holness” after an email was sent to the police from CMR. CMR later provided a copy of the video from which the screenshot came.
On Count 1, he was charged with possessing videos containing child pornography contrary to section 228B(1)(a) of the Penal Code (2019 Revision). On Count 2, he was charged with transmitting videos containing child pornography via WhatsApp Messenger between 30 April and 12 June 2020, contrary to section 228B(1)(b) of the Penal Code. Count 3 was a similar charge of transmitting child pornography relating to the transmission of a single video on 26 June 2020 via Facebook Messenger. He pleaded guilty to all three counts at the first opportunity.
The starting point of his sentence was 5 years and 8 months; however, because he had no previous convictions, was remorseful, made early admissions, and cooperated with investigators throughout, the judge reduced his sentence. The judge also took into consideration that he was a productive member of society with two children and that there had also been some delay in respect to the proceedings, which had not been Holness' fault.
In light of this mitigation, the judge reduced the sentence from 5 years 8 months to 4 years 2 months. She then deducted one-third to reflect his early guilty plea, leading to a sentence of 33 months. She imposed concurrent sentences of 16 months on count 1 and 12 months on count 3; hence, the total sentence of 33 months.
Keith Myers, the attorney representing Holness, submitted that the sentence of 5 years 8 months before mitigation and credit for the guilty plea was manifestly excessive. There were two main limbs to his submission.
He submitted that there was no good reason to move the starting point for an offense of transmitting child pornography from the 3-year figure in the Sentencing Guidelines to 5 years in this jurisdiction
His second limb is that the sentence passed in this case was inconsistent with the sentences passed in three previous Cayman cases, although there is no sentencing judgment in any of those cases.
“In our judgment, there are two reasons why the judge was entitled to increase the starting point to 5 years. In the first place, as this Court has said previously, the courts of this jurisdiction are not bound by sentencing levels in England and Wales and are free to set their own reasonable sentencing levels,” the Appeal Court judgment stated.
The Court of Appeal judges also stated that “the fact that the maximum sentence in this jurisdiction for transmitting child pornography is 25 years imprisonment compared with 10 years imprisonment for the equivalent offense in England and Wales is an indication of how seriously the offense is regarded in this jurisdiction and should be taken into account by the courts when considering the sentencing levels suggested in the Sentencing Guidelines”
“In our judgment, the total sentence, in this case, cannot be said to be manifestly excessive. For the reasons we have explained, the judge was entitled to take a starting point of 5 years for transmission of Category A material and was also entitled to increase that by 8 months in order to reflect the two aggravating features of the child's very young age and the distress caused to the child,” the judgment stated.
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