Mandatory Minimum Sentence for Sexual Exploitation of Children In Georgia
In Hedden v. State, 301 Ga. App. 854 (690 SE2d 203) (2010), the defendants were convicted of sexual exploitation of children upon their pleas of guilty, and the State sought mandatory minimum sentences, arguing that no deviation therefrom was authorized under Condition F because the children in each case were victims of the offense of child molestation and were physically restrained when they were photographed. Id. at 855.
The defendants argued that they were entitled to a deviation from the mandatory minimum sentencing pursuant to Condition F because the children at issue were not victims of the offense of which they, the defendants, were convicted. Id.
In affirming the trial court's sentence of the mandatory minimum, the Court held:
In determining the legislature's intent, we first emphasize that OCGA 17-10-6.2 lists six conditions, all of which must be satisfied before a trial court may exercise its permissive authority to deviate from the applicable mandatory minimum sentence. Conditions a -- C thereof plainly address the status of the defendant's conduct; however, the latter three conditions, including Condition F, focus entirely on the victim.
Thus, for purposes of Condition F, it is irrelevant whether the defendants personally restrained the children whose photographs they possessed. a reading of OCGA 16-12-100 clearly shows that the victim of the crime of which the defendants were convicted is the child who is sexually exploited by photographs taken of the child while engaged in sexually explicit conduct, whether restrained or unrestrained when photographed. See Osborne v. Ohio, 495 U.S. 103, 111 (110 S. Ct. 1691, 109 LE2d 98) (1990) ("The pornography's continued existence causes the child victims continuing harm by haunting the children in years to come.").
Conviction of sexual exploitation by possession of photographs victimizing children in the manner foreclosed by Condition F (see City of Macon v. Alltel Communications, 277 Ga. 823, 828, n. 8 (596 SE2d 589) (2004) ("(w)ords, like people, are judged by the company they keep") (citations and punctuation omitted)) is sufficient to show a failure to satisfy such condition.
Any contrary conclusion as to the interface between the offense of which the defendants were convicted and deviation from mandatory minimum sentencing pursuant to Condition F would lead to an absurd result -- this because doing so would excuse the defendant's exploitation of physically restrained children for purposes of sentencing notwithstanding the legislature's decision to craft Condition F in terms protective of the child victim described therein and not the conduct of the defendant.
It follows that the defendants urge this Court to cross a bridge too far. Their crimes were not victimless -- the minors whose pictures they possessed, among them children who were physically restrained while engaged in sexually explicit conduct -- but were continuing crimes against the children depicted. See Osborne, supra, 495 U.S. at 111. Inasmuch as the defendants possessed photographs of children thus restrained and victimized, the trial court properly concluded that Condition F had not been satisfied. Id. at 856-857.