Section 19(2) of the Cybercrime Code Act 2016 imposes the Act’s heaviest penalty for a completed act of exploitation.
Section 19(2)
Where the offence under subsection (1) is committed in respect of a child under the age of 16 years, the offender is guilty of a crime.
Penalty: (a) in the case of a natural person, subject to section 19 of the Criminal Code Act (Chapter 262), imprisonment for life; and (b) in the case of a body corporate, a fine not exceeding K1,000,000.
| s 19(1) | s 19(2) | |
|---|---|---|
| Age of the child | Under 18 | Under 16 |
| Natural person | 25 years or K100,000, or both | Imprisonment for life — no fine option |
| Body corporate | K500,000 | K1,000,000 |
Section 19(2)(a) provides for imprisonment for life and nothing else. Unlike almost every other offence in the Act, there is no alternative of a fine and no “or both”.
That is a deliberate signal about how the offence is regarded. Compare subsection (1), where a fine of up to K100,000 is available as an alternative to imprisonment.
“Subject to section 19 of the Criminal Code”
Section 19 of the Criminal Code Act (Chapter 262) is the Code’s general sentencing provision. It gives a court a discretion to impose a lesser sentence than the maximum prescribed, and to make other orders in lieu of or in addition to punishment.
The words “subject to section 19” therefore mean that life imprisonment is the maximum, not a mandatory sentence. A court retains its ordinary discretion to impose a term reflecting the circumstances of the particular case.
The same formula appears in the other two life-sentence provisions of the Act: section 22(3) and section 23(3), where cyber bullying or cyber harassment results in death.
Note also section 3(1)(c) of this Act, which applies the Criminal Code provisions on punishments, including sections 18 and 19, generally.
Why 16, when a child is under 18
Section 2 defines a “child” as a person under 18. That is the threshold for subsection (1).
Subsection (2) draws a second line at 16, reflecting the greater vulnerability of younger children and aligning with the age boundaries used in the sexual offences provisions of the Criminal Code that section 18(1) incorporates.
The practical consequence is that the age of the child is a critical fact. Grooming a 17-year-old carries a 25-year maximum; grooming a 15-year-old carries life.
Note that the subsection says “in respect of a child under the age of 16 years” — a question of the child’s actual age. The Act does not address the position where the offender was mistaken about age, so the general principles of criminal responsibility imported by section 3(1) apply.
The three life-sentence offences
| Provision | Trigger | Additional penalty |
|---|---|---|
| s 19(2) | Grooming a child under 16 | K1,000,000 for a body corporate |
| s 22(3) | Cyber bullying resulting in death | ICT prohibition for the term of imprisonment |
| s 23(3) | Cyber harassment resulting in death | ICT prohibition for the term of imprisonment |
Both are expressed to apply to a child offender as well as an adult, subject to the Juvenile Justice Act 2014 and section 19 of the Criminal Code.
Section 19(2) of this Act contains no equivalent provision for a child offender — but section 5(3) applies the Juvenile Justice Act to any offence in the Act committed by a child between 10 and 18.
Section 19(2) in the child protection scheme
Section 19 as a whole covers three stages of exploitation:
- Subsection (1) — the grooming itself: befriending, inviting, inducing, persuading, procuring or offering to engage a child in sexual intercourse or contact, a sexual or obscene performance, or any other sexual conduct.
- Subsection (2) — the same conduct where the child is under 16.
- Subsection (3) — knowingly receiving any financial or other reward, favour, benefit, compensation, or any other gain from the commission of a section 19 offence.
Alongside it sit section 18 on child pornography, section 14(2) on gaming made available to children, and section 22 on cyber bullying. Together they are collected in the article on protecting children online.
Neither subsection of section 19 appears in Schedule 2, so neither can be dealt with summarily.
Sources
- Cybercrime Code Act 2016 — ss 2, 3, 5, 14, 18, 19, 22, 23, 48; Schedule 2
- Criminal Code Act (Chapter 262) — ss 18, 19; Juvenile Justice Act 2014
Before relying on anything here, read the current text of the Cybercrime Code Act 2016 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.