A man convicted on charges of child pornography who appealed his sentencing in the Western Cape High Court was dismissed and will serve his sentence as initially handed down by the Wynberg Regional Court.
Clinton Calder, 55, from Fish Hoek, entered into a plea agreement and was convicted on 3,195 counts of possession of child pornography, a count of distributing child pornography, a count of importation of pornography and 19 counts of creation of child pornography. His conviction follows from a written guilty plea explanation.
During the trial, Calder was diagnosed by Colonel Kirsten Clark, from the Investigative Psychology Section of the SA Police Service, with a paedophilic disorder.
The court sentenced Calder to 10 years of direct imprisonment with two years suspended for five years with conditions, effectively sentencing him to eight years of direct imprisonment.
The Western Cape spokesperson for the National Prosecuting Authority (NPA), Eric Ntabazalila said Calder was arrested after a Belgian Chief Inspector, tasked with investigating areas known for trading child abuse images and related offences, detected internet traffic from South Africa on a child pornography file-sharing platform.
“The investigation found that members of the online network engaged in peer-to-peer file sharing of child pornography. This information was shared with the relevant South African authorities and the ensuing investigation led to Calder’s location, a search and seizure of his laptop which contained child pornography and his subsequent arrest. During the period September 23, 2014, and June 7, 2015, Calder had been operating under the pseudonym name on the Gigatribe platform.
“Calder applied for condonation for the late filing of his application for leave to appeal. He successfully obtained leave to appeal his sentence. Calder, appearing in person applied for bail pending the appeal, but Senior State Advocate Evadne Kortje, successfully opposed this, and the court refused bail pending appeal as a custodial sentence would be the just sentence option on appeal even if the higher court found the term of the initial sentence to be inappropriate,” Ntabazalila said.
During arguments in April 2024, Calder described his conduct as a moment of madness and that he had been doing crazy things. He said he sought psychological treatment and was suffering from depression.
Calder argued for a non-custodial sentence due to his clean criminal record, and personal circumstances and that he needed private medical and psychological treatment for his medical condition and sexual affliction.
He further submitted that such specialised facilities are not available in prison and further emphasised that his pulmonary conditions was a factor that the regional magistrate failed to adequately consider in sentencing him. He believed his pulmonary conditions would be best treated outside prison due to the excessive smoking habits of other prisoners.
Advocate Kortje called several witnesses to rebut the mitigating factors highlighted by Calder.
Witnesses included Sister Rululu, an experienced nurse working at the hospital section of Pollsmoor Prison, who testified that other prisoners with similar medical conditions at the prison were successfully treated whilst incarcerated.
Kortje further argued that a non-custodial sentence would reflect a lack of deterrence for the prevalent offences.
It was further submitted that Calder had the propensity to commit the offences, and his prospects for rehabilitation were slim. The court head it was evident that he had no genuine remorse.
Judge Fortuin and Acting Judge Kahanovitz agreed with the arguments stating the mitigating factors obviously cannot justify a conclusion that incarceration is prohibited in serious cases where a prison sentence is as a matter of law required.
Further, the circumstances were not a borderline case where no imprisonment might in all the circumstances be a suitable sentence and the health of the appellant could tip the balance in favour of a non-custodial sentence.
“The appeal court held that if the appellant or another prisoner's rights have been breached by the prison authorities permitting smoking by others or by the authorities failing to offer appropriate medical treatment then the appellant can administratively enforce his constitutional rights as a prisoner to be properly treated.
“These considerations, however, did not point to a misdirection on the part of the regional magistrate in imposing direct imprisonment as a sentence. The appellant had not shown that he had a life-threatening condition that could not be adequately treated in Pollsmoor Prison or other correctional facilities.
“The appeal judges found that the regional magistrate did not fail to have regard for Calder’s medical conditions but considered them and concluded that incarceration was the only appropriate sentence. They also found that the sentence was not too severe and disproportionate to other similar cases. They dismissed the appeal and the confirmed sentence imposed by the regional court,” Ntabazalila said.
The court dismissed Calder’s appeal against his sentence thereby confirming the eight-year direct imprisonment, that his name be entered into the National Register of Sex Offenders and declaring him unfit to possess a firearm.