Report on Mandatory Sentences - Law Reform Commission

v Oliver. 165 In that case, the court suggested the following graduated levels of seriousness in respect of
images of child pornography:
1. Images depicting erotic posing with no sexual activity;
2. Sexual activity between children solo or masturbation as a child;
3. Non-penetrative sexual activity between adults and children;
4. Penetrative sexual activity between children and adults;
5. Sadism or bestiality. 166
1.85 The Court in Loving also cited with approval the following comments of Rose LJ in the Oliver
case, 167 where he suggested the following elements as being relevant to the offender's proximity to, and
responsibility for, the original abuse:
“Any element of commercial gain will place an offence at a high level of seriousness. In our
judgment, swapping of images can properly be regarded as a commercial activity, albeit without
financial gain, because it fuels demand for such material. Wide-scale distribution, even without
financial profit, is intrinsically more harmful than a transaction limited to two or three individuals,
both by reference to the potential use of the images by active paedophiles and by reference to
the shame and degradation to the original victims.
Merely locating an image on the internet will generally be less serious than down-loading it.
Down-loading will generally be less serious than taking an original film or photograph of indecent
posing or activity ...” 168
These examples indicate the influence of developments in other jurisdictions concerning sentencing
principles and the appropriate grading of sentences within an offence.
1.86 In its 1996 <strong>Report</strong> on Sentencing, 169 the Commission identified a number of factors which would
aggravate the seriousness of an offence: 170
“Aggravating factors
(1) Whether the offence was planned or premeditated;
(2) Whether the offender committed the offence as a member of a group organised for crime;
(3) Whether the offence formed part of a campaign of offences;
(4) Whether the offender exploited the position of a weak or defenceless victim or exploited
the knowledge that the victim's access to justice might have been impeded;
(5) Whether the offender exploited a position of confidence or trust, including offences
committed by law enforcement officers;
(6) Whether the offender threatened to use or actually used violence, or used, threatened to
use, or carried, a weapon;
(7) Whether the offender caused, threatened to cause, or risked the death or serious injury of
another person, or used or threatened to use excessive cruelty;
(8) Whether the offender caused or risked substantial economic loss to the victim of the
offence;
165
166
167
168
169
170
R v Oliver (2003) 1 Cr App R 28.
The People (DPP) v Loving [2006] 3 IR 355 at 362.
Ibid.
R v Oliver (2003) 1 Cr App R 28 at 467.
Law Reform Commission <strong>Report</strong> on Sentencing (LRC 53-1996) at Chapter 3.
Ibid at paragraph 3.2.
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