R. v. Clayton, 2012 ABQB 333

Court of Queen ’ s Bench of Alberta Citation: R. v. Clayton, 2012 ABQB 333 Date: 20100518 Docket: 100455716Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Daniel James Clayton Offender Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Oral Reasons for the Sentencing Judgment of the Honourable Madam Justice K.M.

Eidsvik _______________________________________________________ [ 1 ] Daniel Clayton is a 30 - year - old decorated former British soldier, convicted of accessing , possessing and distributing child pornography contrary to sections 163.1(4.1), (4) and (3) respectively of the Criminal Code of Canada . His sentence for these convictions

is what is now at issue. Circumstances of the offence [ 2 ] The circumstances of the offence have been set out in my written reasons at 2012 ABQB 196 . In sum, Mr. Clayton accessed, possessed and distributed pornographic images over the Internet using two different programs: aMSN and Gigatribe. These were both peer to peer programs that allowed chatting and sharing of material.

Forensic evidence showed that this activity had been going on between at least June 2009 and April 2010 - for a period of 10 months (he was convicted for his activity during this period). [ 3 ] When the computers in question were seized there were 72 child pornographic photographs in the allocated area of the computer in the aMSN program on Clayton’s Mac, and 34 on M.s’ Mac. In addition, there were 1879 unique photographs in the unallocated part and 2611 thumbnail sized photographs and a video on Clayton’s Mac that were all of child pornography.

In total there were about 4600 pieces of child pornography material that were in Mr. Clayton’s possession. [ 4 ] The description of the content of the pornography is found at para. 10 and 11 of my previous decision where I said: Again there was no issue that the images were child pornography - I reviewed the images and I agree that they fit the definition in the Code .

They are mostly of naked young girls posing in sexual ways with their legs spread open or bending over, young naked boys in various poses, acts of vaginal and anal intercourse and attempted intercourse on young children by adult males (mostly only the penises are in the photographs) including on some babies, and oral sex of every combination. There were a few pictures of children bound by rope or other binding agent with their legs spread apart. These hundreds of young victims were not identified but for the most part their faces were identifiable. The children were of many ethnic origins.

Two of the same child pornography photos found on Clayton’s Mac were also found on M.s’ Mac. One was of a young girl’s vagina and the other of oral sex being performed on a female child of 1 or 2 years old. [ 5 ] Chat logs were also found of the Gigatribe program which showed that Mr. Clayton had chatted with at least 213 persons on 34 different days, including with two different undercover officers - one from Toronto and the other from Edmonton. During these chats, various child pornography preferences were discussed such as age (0 to 12 being Mr.

Clayton’s preference), sex (girls or boys), various combinations (mom and son for instance) and whether the material was “private” or “new”, etc. The material would then be shared and comments were made about its quality. The behaviour of seeking and sharing “new” material was referred to in R v. Lynch-Staunton 2011 ONSC 218 at para. 54 as a “trading card mentality”. Mr. Clayton’s circumstances [ 6 ] A pre-sentence report (“P.S.R.”) was prepared at my request. It outlined Mr. Clayton’s circumstances as follows. Mr. Clayton was born in England. His mother, who passed away in the year 2000, was a Canadian so Mr.

Clayton was able to enjoy dual citizenship. Mr. Clayton was physically abused as a child and he believes that his mother was a victim of domestic violence. [ 7 ] He left home at 15 and joined the British Army as a private. He served in Iraq and Afghanistan and Borneo. He received a Purple Ribbon for being injured in battle. He received letters for exemplary service. He also managed to finish high school and obtain an undergraduate and graduate degree in justice and business administration respectively. [ 8 ] He married in 2003 and they had a son.

He left the military at 23 years old with the rank of Lance Corporal. He worked for a couple of years in the security business until he was hit by a roadside bomb. He decided to leave this line of employment. He separated from his wife after she had a child which he felt could not have been his, and decided to move to Canada in 2005.

[ 9 ] Between January 2006 and September 2010, Mr. Clayton worked in the risk management area - in two different businesses. The charges in this case made his business difficult and accordingly he is now working as a consultant. His employment prospects will continue to be good. [ 10 ] Mr. Clayton started a new relationship in Canada in 2008 and was engaged to be married. His arrest postponed the wedding. His fiancée has stood by him but in the last 6 months her status has changed to girlfriend. [ 11 ] Many friends and colleagues were interviewed for the PSR and they spoke about Mr.

Clayton in glowing terms such as: creative, caring, generous, thoughtful, trustworthy, reliable and dedicated. [ 12 ] The probation officer who prepared the report also noted that Mr. Clayton does not suffer from any psychological or emotional difficulties, he is an occasional alcohol consumer and does not smoke or do drugs. He felt that there would be some benefit in Mr. Clayton attending for a forensic assessment. Further, Mr. Clayton does not have a criminal record and has complied with strict conditional release conditions since his arrest on April 16, 2010. As such, he recommends that Mr.

Clayton would be a suitable candidate for a period of community supervision. Positions of the parties [ 13 ] The Crown is seeking a federal penitentiary sentence of five to six years as well as several ancillary orders that I will discuss later. [ 14 ] The Defence seeks a sentence of two years or less along with a period of probation. He objected to the s. 161 order (the ban on attending locations where children are found) as being unnecessary. Authorities [ 15 ] The parties provided me with many authorities to consider the fair and just sentence that should be imposed in this situation.

Remarkably, with only a few exceptions, many of the men described in these cases who were convicted of similar crimes, were hard working, well respected and productive members of the community who had no prior criminal record - just like Mr. Clayton. Yet unfortunately, they embarked on a criminal course of conduct that, because of the easy access to the Internet through private computers, has become a plague in our society. This plague exploits and abuses the world’s children. Much has been written about this tragic situation by authors better versed than me so I will leave it at that.

The need for denunciation and deterrence in any sentence in this area is clear (and indeed is mandated by s. 718.01). [ 16 ] In response, governments internationally have attempted to quell the tidal wave by imposing criminal sanctions. In Canada, our Parliament started this process in 1993, and has increased the penalties for this criminal behaviour in 2005 and this will again when Bill C-10 is proclaimed in force. In this situation for Mr. Clayton, the minimum that I can sentence him to, is 45 days for accessing, 45 days for possessing, and 1 year for distributing the child pornography in question.

If the pertinent

section of Bill C-10 was in force, the minimum sentence for possession and accessing would be six months each instead of 45 days. The maximum sentence for distributing is ten years, and five years for possession and accessing. The maximum sentences have not been increased over the years. [ 17 ] Prior to the imposition of the minimum sentences for these child pornography offences, the sentences tended to be what has recently been described by the courts as “lenient”. No starting point has been discussed by the Court of Appeal for any of the offences in question to date. [ 18 ] A good

summary of the range of sentences before the minimum sentence changes is described in the Alberta Court of Appeal decision, R. v. Shelton, 2006 ABCA 190 , a case heavily relied on by the Defence. In that case, the Court increased the trial decision of a conditional sentence order to one of 15 months for possession and very extensive distribution (by way of the accused’s own server) plus two years’ probation. Justice Fruman described the range of sentences at that time as follows at para 12:

Cases submitted by the parties reveal a general range of sentence for distribution of child pornography of three to 18 months’ incarceration, usually followed by one to three years’ probation on strict terms. Conditional sentence orders in cases of distribution are rare, particularly if the volume of material is significant; they are more often imposed in cases of limited, short term distribution or mere possession. [ 19 ] Subsequent to the changes in the minimum sentences, the Court of Appeal in the 2008 decision of R. v. Gauthier 2008 ABCA 39 imposed a 12 - month jail sentence for possession alone.

Then in 2009, after discussing the fact that a minimum sentence should constitute an “inflationary floor” for sentencing, the Court of Appeal indicated in R. v. Hammond, 2009 ABCA 415 , that the 90 - day intermittent trial sentence imposed for accessing child pornography should be increased to 12 months. And in R. v. Tootoosis 2010, ABQB 574 , a possession case, 18 months for possession was imposed based on the latter two cases because there was no mitigating guilty plea (and the accused had a related record). [ 20 ] In 2010, our Court of Appeal said this in R. v.

P.J.B. 2010 ABCA 49 at para. 10 : As recently reflected by the Supreme court’s decision in R. v. M. (L.), 2008 SCC 31 ...and as expressed by the Ontario Court of Appeal in R. v. (D.G.) 2010 ONCA 27 , at paras 21 and 22 , the initial sentencing response of the courts to the child pornography provisions was relatively lenient. As the courts and society as a whole are increasingly becoming aware of the extent and effects of such abuse of children, the level of sentencing should be responsive to the gravity of the crime revealed... [ 21 ] Mr.

Justice Hawco commented on this issue in a possession and distribution case, R. v. Secreti , unreported, February 18, 2010 at p. 4: A sentence of two years [proposed to him by way of a joint submission in a similar case to this one] may be within a range that existed prior to or at a time when there was, for some unknown reason, a certain leniency being displayed by some of our Courts. In my respectful view, such a sentence is simply not appropriate in a case when one considers the number of photographs and videos depicting children being abused and horribly violated.

The impact on hundreds of children must be devastating. [ 22 ] I do note, the Court of Appeal decision in R. v. Johnson 2009 ABCA 74 that upheld a trial decision of 15 months for possession of a small amount of pornographic material (less than 300 pieces) and for luring. I note however that luring did not at the time have a minimum sentence and although it is not clear when the offences occurred there, the defence was arguing for a conditional sentence which is clearly no longer available here. [ 23 ] Most recently, in February 2012, the Court of Appeal in R. v.

Tettersell 2012 ABCA 57 imposed a sentence of 8 years for a serious case of making, possessing and distributing child pornography along with a conviction of sexual touching that occurred during the making of the pornography. Two years for each conviction consecutively was imposed, so with respect to the similar convictions before me, two years was imposed for possession and two years for distribution. [ 24 ] The defence argued that Shelton has not been overturned by the Court of Appeal and is therefore still good law.

With respect, although I agree that Shelton has not been specifically overturned, in my view, in light of the ranges of sentences and discussions in the more recent Court of Appeal decisions since the imposition of minimum sentences, the ranges discussed in Shelton no longer represent the appropriate sentence range being imposed today. [ 25 ] For example, the range of “three to 18 months incarceration” for distribution is no longer possible since the minimum sentence is now at one year - so all former sentences between three and twelve months for distribution alone are not available.

Further, conditional sentence orders are no longer available for either possession or distribution. Accordingly, the 15 month sentence imposed for distribution and possession in that case should be taken into the context of the law in place at that time. [ 26 ] In my view, the other recent Alberta cases provided to me, discussed below, along with the recent Court of Appeal decisions, show a range of between 2 and 4 years in cases with a combination of indictable possession and distribution convictions. They are:

- R v. Secreti , unreported, February 18, 2010, Alta. Q.B ., 3 years for the distribution and one year concurrent for the possession of a similar amount of material, with a guilty plea. - R.v. Patko, unreported, April 13,2011, Alta. P.C., 2 years and 10 months for distribution and 2 years concurrent for the possession of a low to medium scale of particularly violent and repulsive material through the similar Gigatribe peer to peer program as in this case. Two months was credited from what otherwise would have been a global 3 year sentence for the guilty plea. - R. v.

McArthur, 2010 ABPC 231 , 2 years for possession and 2 years for distribution, concurrent, along with 3 years’ probation. A very large volume of material was involved. The accused was of limited intellectual capacity and the need for rehabilitation along with the guilty plea was a significant factor. - R. v. McCausland , unreported, February 23, 2010, Alta. P.C., 36 months for possession and 45 months for the distribution (concurrent) of a large volume of material through the Gigatribe program.

This also involved a mitigating guilty plea. [ 27 ] The Crown also relied on the Ontario Superior Court case of Lynch-Staunton where five years was the sentence for the guilty plea to possession and distribution of a large amount of material, as here.

The judge there recognised that the sentence was higher than has been imposed in other cases (at para 85) but imposed such a sentence “to reflect the gravity of the offence, the accused high degree of moral blameworthiness and the need to protect the public and to denounce and deter.” In my view, this case is outside of the range of the sentences presently being imposed in Alberta. Aggravating and Mitigating Factors [ 28 ] There are many factors to consider in sentencing Mr. Clayton. The aggravating factors here are: - there was a relatively large amount of material found on both Mr.

Clayton’s old and new computers. The amount of approximately 4600 pieces of child pornographic material is not in the highest range seen but is significant nonetheless. - the nature of the material is for the most part of the “posing” nature but it also includes acts of aggravated sexual assault and violence. - In addition, the age of most of the children range between several months and pre-pubescent. Pursuant to s. 718.2 (ii.1) the abuse of a persons under 18 years old is a relevant aggravating factor. - Mr.

Clayton was involved in this endeavour for several months (10). - the method of distribution was sophisticated and multifaceted which fosters and provokes the need for new material which in turn compounds and incites the exploitation and abuse of children [ 29 ] There are no mitigating factors here to be considered other than the time served in Remand to date which I understand to be 58 days. However, it is noted that Mr. Clayton has no criminal record, is well educated, has been steadily employed in the community, and has the support of his friends and colleagues.

Further, he complied with his bail conditions for just over two years without fault. Determination [ 30 ] Mr. Clayton has been convicted of three offences which in his case intertwine with each other in the sense that in order to access other people’s pornography on the Gigatribe site for instance, one needs to have something to share, or distribute, which means

that one had to possess a certain amount of material. It is a true vicious circle. The sentences for possession and accessing are shorter than those for distributing usually however in this situation, like in the Tettersell case where each conviction had similar sentences, I don’t believe that there is much difference between the offences when all three have been committed in this fashion. [ 31 ] Nonetheless, I note that the distribution of the material over the Internet is ultimately the offence that allows the two other offences to occur and ultimately is the engine that helps fuel the cycle of child abuse.

Hence the sentence for distribution has a higher minimum and maximum than the other two. [ 32 ] With respect to the cases discussed above, in my view, the sentences imposed in the Secreti and Patko cases are on point with this situation. In Secreti the amount and type of material was very similar and three years was imposed - but there was a guilty plea to take into account. In Patko , where three years, less two months for the guilty plea, was imposed, the use of the peer to peer Gigatribe program was similar, but there was less volume involved, and the material was for the most

part violent and repulsive. Certainly not all of the material found on Mr. Clayton’s computers were violent, but they were all, by definition, repulsive and upsetting. In McCausland , where 45 months globally was imposed, although also involving a Gigatribe peer to peer sharing situation, it involved over 50,000 pieces of material, so this situation was more serious than here. Finally, in McArthur , where the lower end of the range I discussed was imposed, I note that the guilty plea and the need for rehabilitation of the young intellectually impaired accused played a mitigating part that is not present here.

Sentence [ 33 ] Accordingly, in my view, the fit and appropriate sentence for Mr. Clayton is three years’ imprisonment as a global sentence, divided as follows: on count 3, one year’s imprisonment for accessing, on count 1, one year’s imprisonment for possession, and on count 2, two years imprisonment for the distribution of the child pornographic material in question. The sentences for counts 1 and 3, the accessing and possessing convictions, shall be served concurrently, and the sentence for count 3, the distributing conviction, shall be served consecutively. [ 34 ] From that sentence I am prepared to give Mr.

Clayton credit for time served in the Calgary Remand Centre. I was advised that for 39 of the 48 days he had spent in custody awaiting his sentencing hearing he was forced to sleep on the floor because of overcrowding in the Centre. This is unacceptable practice in my view. He has spent a further 10 days awaiting his sentence since the hearing. Accordingly, I exercise my discretion pursuant to s. 719 (3.1) to grant Mr.

Clayton one and a half days for each day spent in the Remand Centre - which amounts to 87 days, or approximately three months credit. [ 35 ] The net sentence left to be served therefore at this point will be approximately two years and nine months. The Crown and defence counsel can double check the exact calculation of credit based on my comments. [ 36 ] In addition, I make the following ancillary orders: - a prohibition order pursuant to s. 161 for 20 years. I make this order in light of the age of the children depicted in Mr. Clayton’s child pornography. Pursuant to s. 161 (3) Mr.

Clayton may apply to have this order amended if his circumstances change, - a DNA order pursuant to s. 487.04 since these offences automatically attract such an order with exceptions which were not asked for here, - a lifetime order pursuant to s. 490.012 requiring Mr. Clayton to comply with the Sex Offender Information Registration Act . This is a mandatory order if one is convicted of the offences in question, - an order forfeiting the two computers seized pursuant to s. 490.01, subject to Mr. Clayton’s right to retrieve his business documents

within two months, and - a victim fine surcharge of $100 globally for all the convictions. [ 37 ] Finally, I agree that a forensic assessment of Mr. Clayton is warranted and I would recommend to Corrections Canada that such an assessment be undertaken with the hope that Mr. Clayton can receive some psychological treatment while in custody or thereafter. Heard on the 9 th day of May, 2012. Dated at the City of Calgary, Alberta this 18 th day of May, 2012. K.M. Eidsvik J.C.Q.B.A. Appearances: Jennifer Rees for the Crown Balfour Der for the Defendant