Chief Justice Ian Kawaley has published sentencing guidelines for sexual offences in Magistrates’ Court to address public outcry.

The guidelines, available on the judiciary’s website, detail the range of sentences acceptable for several offences, including sexual assault, the sexual exploitation of a minor and child pornography.

It also lists mitigating and aggravating factors to be considered by a magistrate when determining a sentence.

In his introduction, Mr Justice Kawaley wrote that there had been heightened concern in recent years regarding how the criminal justice system handles sexual offences, particularly those in which the victim is a child.

“The statutory framework for dealing with such offences was substantially modernised by amendments to the Criminal Code in 1993, with further minor modifications since then,” Mr Justice Kawaley wrote.

“However, special interests groups have been active since then in campaigning that an appreciation for victims’ rights keeps pace with the more firmly entrenched protections afforded to accused persons.

“Necessarily selective reporting of sentencing hearings in the Magistrates’ Court, where the majority of sexual offences are tried, has occasionally resulted in unjustified and highly emotive criticism of sentencing judges.

“The internet age and the blogosphere have dramatically increased the scope for public debate and scrutiny of the sentencing process.

“It is accordingly now incumbent on the Judiciary to take proactive steps to ensure that the sentencing principles applicable to sexual offences are clearly understood, not just by judges and lawyers, but the wider public as well.”

The guidelines recommended a sentence of between 16 and 32 months for serious cases of sexual exploitation appearing in Magistrates’ Court while offenders who commission or encourage the most extreme child pornography should expect a sentence of between two and four-and-a half-years in prison.

However, the guidelines also state that in a case where Magistrates’ Court’s sentencing powers are inadequate — such as in the case of “dangerous offenders” — the magistrate must consider sending the matter to Supreme Court where harsher penalties can be dealt with.

Mr Justice Kawaley said the guidelines were developed following consultation with several parties including the Attorney General, the Bermuda Bar Council, the Commissioner of Police, the Director of Public Prosecutions, the Department of Child and Family Services and the Department of Court Services.

Special interest groups including the Centre Against Abuse, Centre for Justice, Coalition for the Protection of Children, SCARS and the Women’s Resource Centre were also consulted.

Mr Justice Kawaley said the general principles of the guidelines were inspired by the England and Wales Sentencing Guidelines Council’s “Sexual Offences Act 2003”, but have been adapted to take into account Bermuda’s legislative context.

“Unlike those Guidelines, the present Guidelines have no statutory underpinning,” he wrote. “Sentencing judges in the Magistrates’ Court will continue to be formally bound by applicable legislation and judicial decisions of the higher courts.

“The Guidelines are only being issued for the Magistrates’ Court because [Supreme] Court has a far broader sentencing jurisdiction for sexual offences than the counterpart courts in England and Wales, the primary metropolitan jurisdiction to which local courts generally look for guidance on sentencing principles.

“In the absence of any system for reporting Magistrates’ Court decisions, the guidance the higher local courts are able to provide in the sporadic event of appeals is often of limited utility.

“By way of contrast, the Supreme Court is able to benefit both from guidance from the local Court of Appeal, and persuasive judgments and Sentencing Council Guidelines from England and Wales together with guideline cases from other Commonwealth jurisdictions.

“This is because the sentencing jurisdiction of the Supreme Court in sexual offences is substantially similar to that of the higher trial courts abroad.”