Three offences in the Cybercrime Code Act 2016 state separate penalties for a child offender: section 14(1), section 22 and section 23.
The child offender penalties
| Offence | Child offender | Adult offender |
|---|---|---|
| s 22(1) cyber bullying | Detention up to 3 years; or ICT prohibition for the term plus 2 years; or both | Imprisonment up to 7 years; or ICT prohibition; or both |
| s 22(2) where harm results | Detention up to 5 years; or ICT prohibition plus 2 years; or both | Imprisonment up to 25 years; or ICT prohibition; or both |
| s 22(3) where death results | Imprisonment for life and ICT prohibition for the term | Imprisonment for life and ICT prohibition for the term |
| s 23(1) cyber harassment | Detention up to 3 years; or ICT prohibition plus 2 years; or both | Imprisonment up to 7 years; or ICT prohibition; or both |
| s 23(2) where harm results | Detention up to 5 years; or ICT prohibition plus 2 years; or both | Imprisonment up to 10 years; or ICT prohibition; or both |
| s 23(3) where death results | Imprisonment for life and ICT prohibition | Imprisonment for life and ICT prohibition |
| s 23(4) vulgar commentary | Detention up to 3 years; or a fine up to K5,000; or ICT prohibition plus 2 years; or all of them | Imprisonment up to 10 years; or a fine up to K15,000; or ICT prohibition; or all of them |
Four features of the child penalties
For the lesser forms the Act uses detention for a child and imprisonment for an adult. The distinction matters because detention under the Juvenile Justice Act 2014 is a different regime.
Only where death results do sections 22(3) and 23(3) use imprisonment for life for a child offender.
Sections 22 and 23(1) to (3) offer no monetary penalty for either child or adult. Only section 23(4) provides fines — K5,000 for a child, K15,000 for an adult, and K50,000 for a body corporate.
The same pattern appears in section 14(1), where a child who gambles online faces imprisonment or an ICT prohibition, but no fine.
The reason is practical: fining a child usually means fining a parent.
In every case except where death results, the court may impose an ICT prohibition instead of detention.
For a child that is often the proportionate response. It removes the means by which the offence was committed without removing the child from home and school.
But it is a substantial restriction. A prohibition on accessing and using ICTs or electronic systems or devices reaches schoolwork, family contact and access to information — and it runs for the term of detention plus two years. Section 1(2)(e) identifies freedom of movement under section 52 of the Constitution as one of the rights the Act restricts.
Each child penalty is expressed to operate “subject to the Juvenile Justice Act 2014”, and section 5(3) applies that Act to any offence in the Cybercrime Code Act committed by a child between 10 and 18.
So the juvenile justice framework governs the whole proceeding, whatever the offence charged — including offences with no separate child penalty, such as hacking, identity theft or defamatory publication.
Before penalty: criminal responsibility
A child under 10 is not criminally responsible at all.
A child between 10 and 14 is not criminally responsible unless it is proved that at the time they had capacity to know that they ought not to do the act — a matter for the prosecution to establish.
In a cyber bullying case that is a real issue. A 12-year-old who joins a mocking thread may not have the capacity to appreciate the wrongfulness of conduct the Act treats so seriously. See the age of criminal culpability.
The child on both sides
Section 22 is defined by reference to communications with or regarding a child — so the victim is always a child. And it states penalties for a child offender.
Most cyber bullying is between children. The Act’s structure recognises that: the same section protects the victim and sets a distinct, lower scale of penalty for the child who offends, within a juvenile justice framework.
Where the victim is an adult, the applicable offence is section 23 — which also provides child offender penalties, since a child may harass an adult.
For parents and schools
- Understand the escalation. Three years, five years, life — turning on consequences, which no participant controls. Early intervention is what prevents escalation.
- Participation is enough. Section 22(1) catches anyone who initiates, facilitates or participates in the communication, or acts to support such repeated acts.
- The communication need not reach the child. Material regarding a child, circulated among others, is within the section.
- Offline devices count. The section applies whether or not the device is connected to the internet.
- Preserve evidence. Where an incident is reported, screenshots and message records matter — and police can obtain preservation notices under section 36.
Sections 22(1), 22(2), 23(1) and 23(2) are listed in Schedule 2 and may be dealt with summarily. Sections 22(3), 23(3) and 23(4) are not.
Sources
- Cybercrime Code Act 2016 — ss 1, 2, 5, 14, 22, 23, 36, 48; Schedule 2
- Juvenile Justice Act 2014; Criminal Code Act (Chapter 262) — s 19
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.