High court confirms mere possession of child pornography warrants imprisonment

30 Jul 2024

The Western Cape High Court has confirmed an effective sentence of eight years in prison for a Cape Town sex offender, Clinton Calder, who possessed thousands of child pornography images. Acting Judge Colin Kahanovitz warned that this was not a crime ‘to be trivialised’ and ruled that despite Calder’s health problems, his sentence had to stand.

Several times since his arrest, Clinton Calder (55) has described his possession of thousands of images depicting child pornography as silly, crazy and “a moment of madness”.

But the pictures he had in his possession all showed the violent sexual abuse of girls. A summary of the images filled a spreadsheet of about 80 pages with roughly 40 entries per page.

At the time of his arrest, Calder was working as a broker for a courier company. He was a smoker, despite being diagnosed with a serious lung disease as well as “paedophilic disorder”.

Giving evidence in mitigation of sentence, Calder described his involvement with child pornography as a “moment of madness”. It lasted nine months. He said he had been doing “crazy things”; that he was currently seeing a psychologist, was suffering from depression and had suicidal thoughts.

He had been diagnosed with obstructive pulmonary disease but when he was seen by a doctor he had not stopped smoking yet.

His handle on the file-sharing network Gigatribe was Rattex69 and he used the platform to download child pornography between 23 September 2014 and 7 June 2015.

The late warrant officer Delene Grobler-Koonin, who was killed during a robbery in 2023, had testified in Calder’s case that with the increase in SAPS resources and attention to these investigations, more and more arrests were taking place. She said approximately every fifth person arrested was also a hands-on abuser of children and manufacturing child pornography.

She testified that users of child pornography needed to be stamped out as they created the market which resulted in children being raped to produce the images.

In Calder’s case, she said, distribution meant making the images in his possession available to other people. To do this, the offender needed to be provided with a password. One couldn’t obtain access to these images simply by searching on the internet. She said she was aware of investigations into more than 180 suspects in South Africa – and that represented the “tip of the iceberg”.

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Calder was convicted of 3,195 counts of possession of child pornography, distributing child pornography, importation of child pornography and the creation of child pornography.

On 29 November 2018, Calder pleaded guilty to these charges and was sentenced to 10 years’ imprisonment by the Wynberg Regional Court. Two years were conditionally suspended. He is currently serving his sentence at Brandvlei Prison in Worcester.

Calder represented himself in his appeal against his sentence.

In his judgment, Acting Judge Colin Kahanovitz described the background to Calder’s arrest and conviction:

“[Calder]’s arrest emanated from information gathered by Chief Inspector Tim van Eester, Belgium Local Police, in the city of Antwerp, who was assigned to the Criminal Investigation Department in the section Crimes Against Persons and Team Sex Crimes.

“Part of the regular duties of Chief Inspector Van Eester was to investigate areas offline and online that are known for trading child abuse images, discussing child abuse, or luring children for contact offences.

“Van Eester noted that some of the Internet traffic on the child pornography sharing platform came via South Africa and he shared this information with the relevant authorities in South Africa,” Kahanovitz wrote.

Read more: Child victims of violence: The stories behind SA’s child abuse statistics

South African authorities acted on the information received and this led to Calder’s arrest.

“An online child pornography network was discovered where members of the network engaged in peer-to-peer file sharing of child pornography images. It was ascertained that a member of this network had gained access to it from South Africa. His location was established and SAPS seized a laptop found at his home containing child pornography,” the judgment continued.

At the time of his arrest, Calder had a previous conviction for drunk driving.

Colonel Kristen Clark, SAPS Section Commander – Investigative Psychology Unit Western Cape, diagnosed Calder with a paedophilic disorder. She testified that not all people with paedophilic disorders were paedophiles, although all paedophiles had a paedophilic disorder.

The accused was sexually attracted to children but was not “hands-on” in committing his offences.

Dr Marcel Londt, a clinical social worker who testified for Calder, said his profile was typical of a child sexual exploitation material offender and recommended a non-custodial sentence. She said that it was impossible to say with certainty whether Calder would or wouldn’t re-offend.

‘No remorse’

In its ruling, the Wynberg Regional Court described child pornography as “the vilest possible form of degradation, exploitation and abuse of children. The court also took cognisance of the frequency and consistency of Calder’s downloading of the child abuse material”,

Calder, the magistrate added, showed no remorse but merely felt sorry for the position he found himself in. Pleading guilty when one was caught red-handed, said the magistrate, was not evidence of remorse, but a neutral factor.

While there are no penalty clauses as such for these offences and therefore the sentences are at the discretion of the court, Kahanovitz said in his appeal judgment that looking at the sentences imposed in comparable matters, the only appropriate sentence in the circumstances was one of direct imprisonment.

He said judges have in the past warned against the “trivialisation of the offence in South Africa”.

“There is without any doubt a strong level of public outrage against the makers of such images. [Previous decisions] have emphasised that such images can only be made if a child is sexually abused.

“The question that then arises is whether merely possessing such images should be treated as a lesser evil and therefore treated more leniently than related crimes. A further category of offence, for example, concerns a person who, although not the maker of the images, does not merely possess them, but also distributes them to others.”

Grobler-Koonin testified that the investigations linked to Gigatribe had led to 203 arrests worldwide, including 15 cases in South Africa. The investigation was ongoing at the time of her testimony.

As to the prevalence of the offence, the magistrate found the following: “This abuse has no geographic boundaries and is perpetrated repeatedly and has increased at an alarming rate in South Africa and in this court’s jurisdiction.”

Calder argued that due to his lung condition, contracting Covid in prison could prove fatal to him and he would be better off receiving treatment outside prison.

Kahanovitz ruled that the magistrate took Calder’s medical condition into account when she sentenced him to an effective eight years’ imprisonment.

“I also find that the sentence is not too severe and disproportionate to other cases,” he said. DM

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‘No remorse’