Magistrate Valdis Foldats sentenced a man to 16 months’ immediate imprisonment Monday for possession of child pornography.
The case is believed to be the first of its kind in Cayman. Two previous cases were cited by attorneys, but those defendants were sentenced for indecent assault or defilement as well, and each man’s sentence for possession of child pornography was concurrent.
Jamie Diaz Vargas, 38, admitted possession of 10 videos depicting sexual activity with children who appeared to be between the ages of 8 and 14. He also pleaded guilty to a charge of accessing child pornography.
Crown counsel Eleanor Fargin said the videos, which ranged in length from 31 seconds to 26 minutes, were found on a laptop computer. Police sent a forensic copy of the computer hard drive to a special agent in the U.S., who found two videos in different locations. Eight others were in a deleted folder.
Vargas initially denied that he had been involved in searching for the pornographic material. However, he also said he did not think he was committing any offense.
After his guilty pleas, defense attorney Prathna Bodden said Vargas, a work permit holder with no previous convictions, was remorseful and was prepared to go to counseling. “Whether he knew it was illegal or not, he was aware it is morally wrong,” she said.
The offense did pass the custody threshold, she agreed, but asked if the sentence could be suspended. There has to be a differentiation between those who film child pornography and those who possess it, she submitted.
The magistrate said some people might think that the private viewing of these videos is not a serious matter, but people who possess child pornography provide the market for the people who produce it, he pointed out.
He quoted extensively from a 2010 Canadian case: “At the root of all child pornography offences is the hands-on sexual abuse and sexual exploitation of children by those who produce child pornography. That hands-on sexual abuse of children is a criminal offense that is extremely serious and is one that strikes at the core values of any right thinking member of society.
“Child pornography captures this sexual abuse of children in an electronic image, creates a record of that abuse, and permits the perpetrator to share that abuse with others. Those who wish to possess child pornography encourage the sexual abuse of children and encourage the recording of this abuse by providing an audience or a market for those who produce child pornography.
“Therefore, simple possession of child pornography must also be treated as a very serious offense. If the court can deter or reduce the market for child pornography, the court may in turn effectively reduce the sexual abuse of children.”
The magistrate referred to another section of that sentencing decision in pointing out that the harm from child pornography includes the fact that widespread exposure to it “may reduce the inhibitions of a person who would be a pedophile by numbing the conscience, and by making the abnormal seem normal and the immoral seem acceptable.”
In Cayman, the maximum sentence for the offense is 15 years.
One of the most important sentencing objectives is deterring would-be offenders, the magistrate indicated. “A court must attempt to deter all members of the general population from possessing and sharing child pornography in order to deter the hands-on sexual abuse of children by those who produce such pornography,” he said.
With a starting point of two years, the magistrate said aggravating factors in the case included the fact that Vargas had deliberately searched for the pornographic videos, and they were movies rather than still photos. He was guilty of multiple offenses, not a one-off error in judgment. All of this was balanced by the mitigation Ms. Bodden put forth, he indicated, plus the fact that time in custody will be more difficult for him as a foreigner with no family to visit him.
Because Vargas took responsibility for what he had done, the magistrate gave him the full one-third discount, resulting in a term of 16 months. He ordered the destruction of the videos and computer equipment.
This story has been changed from the original.