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The Office of the Director of Public Prosecutions (ODPP) is pushing for the fines and sentences under the Cybercrimes Act to be brought in line with those for related offences under money-laundering and anti-gang laws.
Deputy Director of Public Prosecutions Andrea Martin-Swaby says this is necessary if cybercrime is to be taken as seriously as other criminal acts. The prosecutor on Thursday made a strong case on the issue before the Parliamentary joint select committee hearing submissions from various interest groups to decide on changes to the 2015 Cybercrimes Act.
Martin-Swaby told the committee that these types of offences should be commensurate to the severity of the crime, but parish judges are often constrained by the provisions in law.
"When the high court judge sits to sentence for these cyber offences, the high court judge has to recognise the seven-year ceiling and apply the sentencing principles, but it would have been even worse if it were the parish court judge because there is less room to manoeuvre. So, the [committee] may want to look at the penalties in the high court for cyber offences. They, in my view, should be similar to the penalties that you see under the Lottery Scamming (Act), the Law Reform Act, and the Proceeds of Crime Act," she suggested.
Martin-Swaby said with cybercrime usually having a financial component, there is no justification for the disparity between the penalties for related cyber offences under those pieces of legislation and the Cybercrimes Act, as all are on the same level.
She pointed out, too, that sentences can be shaved off significantly as judges take into account factors such as early guilty pleas.
"It's not just the penalties in the legislation, but also how sentences are imposed, because it's a situation where the starting point already is relatively low and the judge, in abiding by the principles of sentences, is almost backed into a corner," she said.
Martin-Swaby highlighted the recent case of ex-banker Andrea Gordon who was sentenced to more than 77 years in prison on $34-million fraud charges but will serve only seven years because the sentences will run concurrently.
"The lowest sentences that the judge imposed were the cyber offences. It was the POCA (Proceeds of Crime Act) offences for which the judge imposed the highest term of imprisonment, which was seven years, but under the POCA the judges' maximum is 20 years [and] for cyber, the judges' maximum is seven years," she pointed out.
She said the committee should therefore carefully assess whether the sentences under the Cybercrimes Act are aligned with the severity of the offences. The court had heard that in defrauding National Commercial Bank Gordon had posted suspicious transactions totalling over $111 million between February 2017 and May 2020. However, the evidence gathered resulted in Gordon being indicted for only $34 million.
The deputy DPP explained that if a guilty plea is entered in the high court, under the Cybercrimes Act, sentencing starts at a maximum of seven years, with a maximum of 50 per cent discount on sentencing which, by virtue of the common law rules, the accused is "almost entitled to".
Between 2017 and 2020 the parish courts disposed of 181 out of 294 cybercrime cases.
A call is also being made for offences under the Cybercrimes Act to be made finger-printable by amending the Finger Prints Act. The concern is that the prosecution of future cases could be fraught with problems due to this gap in the law.
Martin-Swaby explained that judges do not have the authority to take a person's fingerprints without provision in the law under which the person is before the courts.
"The absence of this authority to fingerprint could lead to difficulties in respect of persons who are charged and convicted under the legislation," she said.
It is also problematic, she added, as when judges consider bail they usually rely heavily on the antecedence of the person, which would only include all the offences for which the person has been fingerprinted.