R v JSM, 2013 ABPC 296

In the Provincial Court of Alberta Citation: R v JSM, 2013 ABPC 296 Date: 20131108 Docket : 120664925-01-01-008 Registry: Calgary Between: Her Majesty the Queen - and - JSM Restriction on Publication Identification ban – See the Criminal Code,

section 486.5. By Court Order, information that may identify [Mi.M.; Mo.M.; Mi.M2], must not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. NOTE: This judgment is intended to comply with the restriction so that it may be published. Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment.

Reasons for Sentence of the Honourable Assistant Chief Judge Ogle Introduction [ 1 ] The accused JSM, a married man currently age 44, and the father of three children, has pled guilty before me to two counts of making child pornography in relation to his two daughters, as well an offence of assaulting his 11 year old son. The admitted facts are fully set out in an Agreed Statement of Facts filed as Exhibit 1 in these proceedings. They are summarized in the Crown ’ s sentencing brief as follows: 1.

On December 11, 2012, JSM (the Accused) entered guilty pleas to two counts of making child pornography contrary to s.163.1(2) and assault contrary to s.266 of the Criminal Code of Canada . 2. Between October 1, 2011 and June 7, 2012, Mr. JSM used his Blackberry to surreptitiously record his two daughters while

they were undressed and showered in the washroom of their family home. The accused used these video recordings of his daughters to create 79 still digital images focusing on their breast and buttocks area. During this period, his daughters were respectively 16 and 17 years of age. These videos and images were kept and viewed by the Accused for purposes of his sexual gratification. Mr. JSM confronted his 11 year old son MaM after he had discovered the images of his sisters on the family computer. During the confrontation, Mr.

JSM physically struck his son a couple of times on the side of the head with his knuckle and struck him three times on the arm. [ 2 ] The video of the accused’s younger daughter, Mi.M., was created on October 18, 2011, when Mi.M. was 16 years old. The video of the accused’s older daughter, Mo.M. was created five days later on October 23, 2011, when Mo.M. was 17 years and 10 months old. AGG ravating Factors [ 3 ] The aggravating factors in this matter include the following: i. The accused abused his high position of trust and authority in relation to his two daughters who were the victims of his actions; ii.

The videos were taken of the two daughters surreptitiously in their own home, in a location where they would reasonably expect their privacy to be intact. Thus, the violation of their personal privacy is significant, and the trust broken is severe. iii. These child pornography offences were carefully planned and calculated. The accused inserted the recording device in a carefully concealed location of the bathroom that he knew his daughters regularly used for showering. On the first occasion he then called in his daughter Mi.M., to take a shower.

There was a five day period between the making of the two recordings. In addition, the accused thereafter made still images of his disrobed daughters from the original videos. iv. The child pornography offences were continuing offences. The accused copied the videos to a different device, the family computer. He also made still images of his undressed daughters from the original videos. By his own admission, he viewed these videos and images repeatedly for his own sexual gratification. v.

While I am fully satisfied the accused never intended these videos and images of his daughters to be viewed by anyone other than himself, he increased the risk significantly that this would occur when he stored the videos and images on a computer which he knew other family members were using regularly. In fact, that is exactly what happened when the accused’s son Ma.M., a child himself, came across the images of his sisters in the family computer. vi. These child pornography offences involve the abuse of a person under the age of 18 years.

Normally, this is a separate aggravating factor (see s.718.2(ii.1)), However, the fact the victims are under age 18 is itself an element of the child pornography offences to which the accused has pled guilty. Thus, it is important not to count this factor twice. vii. As to the assault charge, it is aggravated by the fact that the motivation for the assault was anger with the son that the criminal activities of the accused had been discovered, and the possible consequences to the accused that may flow from the son advising others of his discovery. viii.

The assault on MaM was committed on a victim under the age of 18 years, and for whom the accused occupied a position of trust and authority. The Criminal Code specifies both of these as specific and separate aggravating factors (see sections 781.2(ii.1) and (iii) CC). Mitigating Factors [ 4 ] The mitigating factors in this case are as follows: i. The accused readily admitted his crimes when first confronted, and provided a full confession to the police. He provided the password to his computer, and was generally cooperative in the investigation. ii.

The accused has entered a prompt guilty plea to the offences before me. A guilty plea in cases such as this, involving child victims and family members who are thus spared the additional trauma of reliving the event by testifying, and in this case by testifying against their own father, is always an important mitigating factor. Further, a prompt guilty plea saves the state the time and expense of a full prosecution. iii. The accused has no prior criminal record. iv. The accused appears otherwise to have been a good husband, having been married for 18 years to his wife, A.

He has been a good provider to his family throughout the marriage, steadily employed. He and his family are regular church goers, and continue to attend church services together as a family since the charges. All three children of this marriage have provided a letter to the court indicating that they forgive their father for his actions, and it is clear that the family hopes to reunite as a family unit following whatever sentence this court imposes. v. The accused has expressed remorse for his actions. In court, he publicly apologized to his family members who were present.

However, it must be noted that in his interviews for the preparation of the forensic assessment for sentencing purposes in this matter, the accused appears not to fully accept responsibility for his actions. He seeks to explain or even justify his video recording of his daughters by claiming that his purpose in installing the video camera device in the bathroom ceiling fixture was due to concern as to his daughters possibly bringing alcohol in to their rooms. This is not a remotely believable explanation for his actions. He fails to fully acknowledge

that his actions were to record his daughters in states of undress for his own sexual gratification. The fact he immediately told one of his daughters to come in to the bathroom where he had just installed the recording device and have a shower, is but one of several factors that leave no doubt about his actual motivation.

Further, it must be noted that at the time the three victims of his crimes wrote their letter to this court asking for leniency for their father (almost two years after the accused made the illegal videos, and over one year after he assaulted his son) they indicate they had yet to receive an apology from their father. Other FActors: [ 5 ] Although not a mitigating circumstance, it must be noted that the making of child pornography offences here do not involve the deliberate depiction of actual sexual activity imposed upon a child.

They are more of the “ peeping Tom ” variety, where the victim was likely to be captured unclothed on the video, but not more. In this sense only, the actual criminal activity here lacked the additional depravity normally associated with the vast majority of child pornography making crimes. Applicable Law: [ 6 ] All sentencing decisions are to be guided by the fundamental principle of sentencing that is set out in s. 718.1 of the Criminal Code , namely that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.

This is often referred to as the “proportionality principle”. The “gravity of the offence” portion of this principle requires the court to consider not only the harm to the individual victims of these crimes, but also the harm to society and its values. ( see R. v Arcand,

(2010) ABCA 363) . [ 7 ] In this case, involving as it does the abuse of persons under the age of 18, the Court is to give primary consideration to the objectives of denunciation and deterrence. The enunciation of this principle of sentencing in s.718.01 of the Criminal Code is a reflection of Parliament’s clear intent that the protection of children is a basic value of our society that the courts must vigorously defend.

That is not to say that rehabilitation of the offender has no place in sentencing for these type of offences, but rehabilitation is to be a secondary consideration to these primary sentencing objectives. These sentencing principles of denunciation and deterrence are clearly reflected in Parliament’s imposition of a mandatory one year minimum sentence for each of the offenses of making child pornography that are before me. [ 8 ] Each of the two offences of making child pornography occurred on separate days, five days apart.

The assault offence is further separated in time by a number of months from the child pornography offences. Each of the three offences involves a different victim. For these reasons, the sentences imposed for these offences ought to be served consecutively. Indeed, counsel for the accused did not argue otherwise on this matter in relation to the two child pornography making offences.

ANALYSIS: [9] Dealing firstly with the two offences of making child pornography, I am of the view that the aggravating circumstances of these offences outweigh the effect of any mitigating circumstances and call for a sentence beyond the minimum required by law. The abuse of the accused’s very high position of trust as the father of his two daughters is grave. The level of invasion of their personal privacy, by filming in the bathroom location where they regularly showered, is high. The level of planning and deliberation for these offences is significant.

The continuing nature of the offences, including the making of still images, and the transferring of the original videos at some later date to the family computer heighten the accused’s culpability. Viewed individually, I am of the view that each of these two offences of making child pornography should attract a sentence of 15 months, to be served consecutively. [10] With respect to the assault of Mr. JSM’s then 11 year old son Ma.M, this was entirely unprovoked in any rational sense.

While the assault itself was not serious and did not result in any physical injury, its motivation and surrounding circumstances are quite aggravating. The Agreed Statement of Facts state that the accused indicated to his son that he was sorely tempted to assault him more seriously, and he accompanied the assault with a threat to banish Ma.M. from the family home. The motivation for the assault was essentially anger that the boy had discovered the accused’s criminal activity of making child pornography.

The assault would be likely to have at least the effect, if not also the intent, of discouraging the boy from revealing this illegal activity. These factors heighten the seriousness of the assault. This offence is entirely separate from the offences of making child pornography.

I consider an appropriate sentence for this offence to be 30 days’ imprisonment, to be served consecutively. [11] All the above being said, the totality principle must now be considered to determine if the sentences for each of the child pornography making offences, and the assault, should be reduced from what might otherwise be appropriate if they stood in isolation, to ensure that the overall sentence is not excessive for the full matter before the Court.

In my view, the totality principle is a particularly important principle in a case where, as here, there is a requirement for the imposition of mandatory minimum sentences for two of the offences. [12] I am of the view that a proper application of the totality principle in this case ought to reduce somewhat the overall sentence I would otherwise impose for these three offences.

Although the two offences of making child pornography ought to attract consecutive sentences for the reasons set out above, they occurred close in time, and were two parts of an overall scheme to photograph his daughters in a state of undress over a short period of time. While by law each such incident must attract, at least, the minimum one year sentence, I consider it an appropriate application of the totality principle to reduce the sentence I would otherwise impose for the second incident involving the older daughter Mo.M., from 15 months’ to 12 months’ consecutive.

I would make no further adjustment to the sentences beyond this.

[13] In so deciding, I am mindful of the able submissions of Mr. Ouellette on behalf of the accused to consider a global sentence oftwo (2) years for the three offences before me, which would then allow me to add on a period of probation as well. Such an option is notavailable where the sentences imposed will result in a total sentence in excess of two years (see s. 731(1)(

b) CC). [14] This option is at first blush attractive, as a probationary period following Mr. JSM’s imprisonment may incorporate terms thatcould assist him and his family in their stated present desire to reunite as a family once the accused has served his sentence. However, toarrive at a global two (2) year sentence for the matters before me would require me to impose only the minimum sentence for each of theoffences of making child pornography, thus ignoring the aggravating features that accompany the commission of those offences.

Further,such a global sentence would require any sentence I impose for the assault charge to be served concurrently with the child pornographymaking sentences (so as not to exceed the global 2 year minimum sentence effectively required for the two separate child pornographyrelated offences). This approach would ignore the aggravating features of the child pornography making offences, and would be contraryto the principle that the assault charge should attract a consecutive sentence in view of its separation by both character and time from thechild pornography making charges.

Stated otherwise, the offences to which the accused has pled guilty collectively require a globalsentence greater that the minimum effectively prescribed by law for the child pornography offences alone. CONCLUSION: [15] In the result, JSM, you are sentenced as follows: i. On Count 6, the offence of making child pornography involving your younger daughter MiM, I sentence you to imprisonment fora period of 15 months. ii.

On Count 7, the offence of making child pornography involving your older daughter MoM, I sentence you to imprisonment for aperiod of 12 months, to be served consecutively to the sentence imposed on Count 6. iii. On Count 1, the offence of assaulting your son MaM, I sentence you to imprisonment for a period of one month to be servedconsecutively to the sentence imposed on Count 7. [16] The overall sentence imposed for the three offences to which you have pled guilty is thus 28 months’ imprisonment.

As thesesentences total more than two years imprisonment, there is no jurisdiction to impose a period of probation thereafter, an option I wouldhave otherwise considered if a lesser sentence were justified here. [17] With respect to Counts 6 & 7, the Child pornography making offences, I make the following additional orders: [18] Pursuant to S. 490.1 of the Criminal Code, I order that all property containing prohibited child pornography material beforfeited to Her Majesty to be disposed of according to law following any applicable appeal periods. [19] I order the sealed Exhibit 4, containing still images excerpted from the offending material in this case be returned to theCrown upon the expiration of any applicable appeal period, to be then destroyed forthwith [20] Pursuant to s.487.051(1) of the Criminal Code, I make an order authorizing the taking from JSM such number of samples ofbodily substances as are reasonably required for the purpose of forensic DNA analysis in relation to these primary designated offences,and direct that that be done before he is released from custody. [21] Pursuant to s. 490.012 and

section 490.013(2.1) of the Criminal Code, I make an order in Form 52 requiring JSM tocomply with the Sex Offender Information Registration Act (SOIRA) for life for the two “designated offences” as defined ins.490.011(1), for which he has been convicted . Although the Crown in its submissions sought this order for a period of 20 years, relyingon s.490.013(2)(b), I am of the view that the governing

section as to the term that must be imposed is s.490.013(2.1), which requires thatthe term be for life where, as here, the offender has been convicted of more than one of the listed “designated offences”. (See also R.v.Burns (2012) 2012 SKCA 52 , 285 CCC (3d) 328 (Sask. CA)). [22] I decline to impose a s.110 weapons prohibition order in this case, as I am not satisfied on what is before me in thiscase that such an order is “desirable”.

In this regard, I note that no weapons of any sort were used or threatened to be used in any of theoffences before me, nor is there any suggestion on the material before me that there is any danger that this accused even has readyaccess to such weaponry, let alone that he might employ such weapon related items inappropriately. [23] Finally, I decline to impose victim fine surcharges for the offences for which the accused has been convicted, inview of the fact that he will be losing his job and will be incarcerated for some time. [24] In closing, I wish to thank counsel for their able submissions in support of their respective positions on sentencing.

Dated at the City of Calgary, Alberta this 8th day of November, 2013.

J.J. Ogle A Judge of the Provincial Court of Alberta Appearances: Ms. A. Beland For the Crown A. Ouellette for the Accused