Birt JA, Field JA, Goldring P
Criminal Appeal 3 of 2021- Kayson Ricardo Holness v HM The King - Judgment
IN THE CAYMAN ISLANDS COURT OF APPEAL
CRIMINAL APPEAL 3/2022
IND.51/2021
SC#01141/2021
BETWEEN:
Kayson Ricardo Holness
Appellant
- and –
His Majesty the King
Respondent
BEFORE:
The Rt. Hon Sir John Goldring, President
The Hon Sir Richard Field, Justice of Appeal
The Hon Sir Michael Birt, Justice of Appeal
Date of Hearing:
11th May 2023
Appearances:
Mr Keith Myers of Kelly Myers, Attorneys for Appellant
Mr Scott Wainwright of the Office of the DPP for the Respondent
JUDGMENT
Transcript of oral judgment dated 11th May 2023 and Approved for Release 5th June 2023
BIRT, J.A.
1.
This is an application by the Applicant for leave to appeal against a sentence totaling 33 months'
imprisonment imposed in the Grand Court by Richards J on 3 February 2022 for three offences
involving child pornography.
Criminal Appeal 3 of 2021- Kayson Ricardo Holness v HM The King - Judgment
2.
Count 1 was a charge of possessing videos containing child pornography contrary to section
228B(1)(a) of the Penal Code (2019 Revision). Count 2 was a charge of 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 transmission of a single video on 26 June 2020 via Facebook
Messenger. The Applicant pleaded guilty to all three counts at the first opportunity.
3.
The videos in counts 1 and 2 fell into Categories A and B, but the video in count 3 was Category
B. Category A relates to images involving penetrative sexual activity with a child, whereas
Category B relates to images involving non-penetrative sexual activity with a child.
4.
The factual background was as follows.
5.
On 20 June 2020, the police began an investigation into a Facebook posting under the name
"Djfreshlink Holness". This resulted from an email sent to the police from a local news organisation
which contained a screenshot from a posting showing an adult male having sexual intercourse with
an infant. A copy of the video from which the screenshot came was subsequently obtained from
the news organisation.
6.
The Facebook posting was traced to the Applicant, who was arrested on 26 June 2020. When
interviewed, he admitted downloading the video and then sharing it on Facebook. He said that he
did this because he thought that the family of the child would see it and notice that their child was
being abused. He said he did not know it was illegal to transmit such images.
7.
His mobile phone was subsequently analysed. This disclosed that he had downloaded not only the
video already referred to but also some other videos containing child pornography falling within
Categories A and B. These had been on his phone from 30 April to 26 June 2020 and had been
transmitted via WhatsApp Messenger Service some eight times over a 12-day period within that
period, and that is count 2. One Category B video had been transmitted via Facebook on 26 June
2020, and that is count 3.
Criminal Appeal 3 of 2021- Kayson Ricardo Holness v HM The King - Judgment
8.
The judge noted that three previous Cayman cases had been drawn to her attention. However, in
none of them was there a reported judgment and therefore the extent to which the factual
circumstances of those cases were similar to the present case was unclear.
9.
In the absence of any local sentencing guidelines, she considered the sentencing guidelines issued
by the Sentencing Council of England and Wales, which I shall refer to simply as "the Sentencing
Guidelines". The process adopted by the Sentencing Guidelines is to fix upon a starting point, then
to increase this to reflect any aggravating factors, followed by a reduction to reflect any mitigating
factors and finally a further reduction to reflect a guilty plea.
10.
The judge considered count 2 first, being the most serious offence as it comprised transmission of
Category A material. She noted that the starting point in the Sentencing Guidelines for distribution
of Category A material is 3 years' imprisonment. However, she also noted that the maximum
sentence for such an offence in England and Wales is 10 years, whereas in this jurisdiction it is 25
years. She had regard to the observation of this Court in R v Aspinall, 6 December 2016 at
paragraph 44, to the effect that a higher maximum sentence for a particular offence in this
jurisdiction compared with the equivalent offence in England and Wales had to be taken into
account when considering the Sentencing Guidelines on the basis that the higher maximum
sentence in the Cayman Islands is an explicit statutory direction as to how seriously an offence is
regarded in this jurisdiction.
11.
Accordingly, she increased the starting point for count 2 from 3 years, as it would have been in
England and Wales, to 5 years. She then identified two aggravating factors as listed in the
Sentencing Guidelines, namely, the age of the child and any discernible pain or distress suffered
by the child depicted. In this case, the child was assessed as being between 4 and 18 months old
and was crying in the video, indicating not surprisingly that the child was in clear distress. Taking
these two aggravating factors into account led her to increase the sentence to 5 years 8 months.
12.
She then took into account the mitigation which she summarised as follows. The Applicant had no
previous convictions. He was remorseful. He made early admissions, and he cooperated with
investigators throughout. His background as outlined in the social inquiry report raised no concerns
or issues and portrayed a man who was gainfully employed and by all accounts had been a
productive member of society to date. He had two children in his home jurisdiction of Jamaica and
was present in their lives. Incarceration in this jurisdiction would be difficult for him as he would
Criminal Appeal 3 of 2021- Kayson Ricardo Holness v HM The King - Judgment
be away from his family. There had also been some delay in respect to the proceedings which had
not been the fault of the Applicant.
13.
In the light of this mitigation, she reduced the sentence from 5 years 8 months to 4 years 2 months.
She then deducted one-third to reflect the Applicant's 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.
14.
Now, on this appeal, Mr Myers 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.
15.
First, he submitted that there was no good reason to move the starting point for an offence of
transmitting child pornography from the 3-year figure in the Sentencing Guidelines to 5 years in
this jurisdiction.
16.
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. A convenient summary of this important constitutional point is to be found in
the judgment of a seven judge panel of the Guernsey Court of Appeal in the case of Wicks v The
Law Officers of the Crown (22 March 2012) at paragraphs 19 and 20, which are in the following
terms:
"19 The difficulty with the observation in Gunter…… is that it appears to suggest
that, when the elements of the offence in question and the statutory maximum
sentences are the same in Guernsey as in England and Wales, the Guernsey
courts may only depart from English sentencing levels if there is a significant
difference in social or other conditions between Guernsey on the one hand and
England and Wales on the other. We must respectfully disagree. Such an
approach is wholly inconsistent with Guernsey's position as a separate
jurisdiction. Naturally, where the elements of the offence in question are
comparable in the two jurisdictions and the statutory maximum sentence of the
offence is also comparable, the Guernsey courts may well derive considerable
Criminal Appeal 3 of 2021- Kayson Ricardo Holness v HM The King - Judgment
assistance from the sentencing practice applied in England because of its
larger size and the greater number of cases which will come before the courts
of that jurisdiction.……
20 But there is no need for there to be a significant difference in social or other
conditions for the Guernsey courts to take a different approach from England
and Wales and adopt a different level of sentencing. The Guernsey courts may
simply consider that the sentencing levels for England are either too high or
too low and should not be followed. They are perfectly free to do so. It is
wrong to start from the position that sentencing levels in England are correct
and that there must be some specific reason to depart from them. Rather, the
position from which it is right to start is that the Guernsey courts must
determine the appropriate sentencing levels for offences committed in
Guernsey and that, in doing so, they may or may not derive assistance from
what is done in England and Wales or in any other jurisdiction."
17.
This important statement of principle is as applicable to the Cayman Islands as it is to Guernsey.
18.
Secondly, as this Court said in Aspinall, 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 offence in England and Wales is an indication of how seriously the offence is
regarded in this jurisdiction and should be taken into account by the courts when considering the
sentencing levels suggested in the Sentencing Guidelines.
19.
This morning Mr Myers suggested that the judge should not have placed weight on this observation
in Aspinall. But in our judgment, that statement in Aspinall is a statement of general application
and reflects the principle which one would expect to find, namely, that where the legislature has
indicated its view of the seriousness of an offence by reference to its maximum sentence, the courts
of this jurisdiction should take note and take that into account. Accordingly, we reject the first limb
of Mr Myers' submissions.
20.
His second limb is that the sentence passed in this case was inconsistent with the sentences passed
in three previous Cayman cases, although, as he rightly said, there is no sentencing judgment in
any of those cases.
Criminal Appeal 3 of 2021- Kayson Ricardo Holness v HM The King - Judgment
21.
In R v Daley, (unreported, Summary Court 2017) following guilty pleas, the defendant was
sentenced to a total of 2 years' imprisonment in respect of 100 indecent videos of children on his
laptop and phones. We are told by Mr Myers that there were eight counts of possession and one of
transmittal. However, there is no information as to the categories within which the images fell;
and, accordingly, no assistance can be derived from that case.
22.
In R v Rameau (unreported Grand Court IND. 9 of 2018) the defendant was sentenced to a total of
3½ years' imprisonment after pleading guilty to 12 counts of possession of indecent images of
children falling within Categories A to C. However, all the counts were for possession and there
were no charges of transmitting indecent images, unlike in the present case, and of course
transmission of indecent images is a more serious offence with a higher maximum sentence than
the offence of possession.
23.
In R v Hervias (unreported Grand Court IND. 40 of 2020), the defendant pleaded guilty to
possession of indecent photographs of children for which he was sentenced to 22 months'
imprisonment with a suspended sentence supervision order. We were informed that the offences
related only to Category C material, which was on the defendant's phone for only one day. It was,
therefore, a very different case; and, again, there was no transmitting of such material.
24.
In the circumstances, we agree with the judge that no useful assistance can be derived from these
three cases. The facts appear to vary considerably, and there is no explanation of the sentences or
of the surrounding circumstances. Furthermore, all of them appear to be less serious in certain
respects than the present case.
25.
As has often been stated, offences 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.
26.
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. She then
Criminal Appeal 3 of 2021- Kayson Ricardo Holness v HM The King - Judgment
allowed a total reduction of 2 years 11 months to reflect the available mitigation and the guilty plea,
and this figure cannot be said to be inadequate.
27.
The points raised by Mr Myers were not unarguable, but in our judgment, they must fail. In the
circumstances, we grant leave to appeal, but we dismiss this appeal.