Cape Town - A former broker from Fish Hoek who was sentenced to 10 years’ jail on child pornography charges has appealed his sentence, saying it was unconstitutional.
Nearly three years after judgment was handed down by the Wynberg Regional Court, convicted child pornography distributor Clinton Calder said the magistrate showed no regard for his constitutional rights by subjecting him to the smoke of tobacco products while in prison.
In a long-drawn out application, Calder addressed the judges about his incarceration at Brandvlei Prison, saying he was sorry for his actions and he suffered from chronic obstructive pulmonary disease, the tobacco smoke in prison endangered his life.
The Wynberg Regional Court sentenced Calder after he was convicted of 3 195 counts of possession of child pornography, a count of distributing child pornography, a count of importing child pornography and a count of creating child pornography.
The court suspended two years of the sentence for five years on condition Calder is not convicted of offences in terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act and the Films and Publications Act.
Calder conducted his criminal activities from September 23, 2014, to June 7, 2015. He was arrested on August 31, 2015.
Prosecutors advocate Evadne Kortje and advocate Rene Uys told the court
Calder was part of an international child pornography network. Law enforcement officials worldwide traced and exposed peer-to-peer file-sharing child pornography offenders.
In his address, Calder pleaded with High Court judges to reduce his sentence, saying second-hand smoke had caused his health to deteriorate.
He said the magistrate erred when she did not take his health condition into consideration and sentencing him to 10 years’ jail while he was ill was violation of his constitutional rights.
Calder labelled his fellow inmates as inconsiderate, saying they would light cigarettes at all times of the night, adding that he was being “tortured”.
Commenting on the charges, he said being in prison had given him little chance of rehabilitation and at the time of his sentencing experts testified that he was not a paedophile but had a paedophilic disorder.
“I am pleading with the court to consider my health,” he said.
Kortje, told the court the State was opposing the application, saying the magistrate did not err in the judgment and had shown mercy towards Calder.
She said Calder’s arguments that he was not a “hands on” perpetrator of sexual crimes against children were untrue as he not only downloaded the content but made contact with others, actively logged into a website for nearly a year and distributed the images.
Kortje said that while there was no prescribed minimum sentence for child pornography offenders at the time of his sentencing, Calder got off lightly.
Judgment was reserved.