R. v. Waygood, 2017 BCSC 2692

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Waygood, 2017 BCSC 2692 Date: 20170626 Docket: 166950-3 Registry: Victoria Regina v. Kelly Robyn Waygood Before: The Honourable Mr. Justice Schultes Oral Reasons for Sentence Counsel for the Crown: L. Baskerville Counsel for the Accused: D. Lyon Place and Date of Hearing: Victoria, B.C. June 26, 2017 Place and Date of Judgment: Victoria, B.C. June 26, 2017 Introduction [ 1 ] On December 19 of last year, following a trial, I found Mr.

Waygood guilty of: • Count 1: possessing child pornography, contrary to s. 163.1(4) of the Criminal Code ; • Count 2: accessing it, contrary to s-s (4.1); and • Count 3: making it available, contrary to s-s (3). The dates in the indictment were “on or between” July 14 and December 2, 2014. Circumstances of the Offences [ 2 ] The full circumstances are set out in the reasons for judgment, which have the neutral citation of 2016 BCSC 2607 .

For the purposes of sentencing, it is sufficient to summarize them. [ 3 ] In the course of an RCMP Child Exploitation Unit investigation into internet addresses that appeared to be accessing child pornography and making it available online, a search warrant was obtained for Mr. Waygood's home. The investigators seized the desktop computer that he was using. It was later examined by Cpl. Hack of the Technological Crime Unit. He found images and videos that met the Criminal Code 's

definitions of child pornography. By means of the settings of the file-sharing software that had been installed on the computer, this material was accessed, downloaded and also made available for sharing with other users. [ 4 ] Cpl. Hack has prepared a further supplementary report for sentencing. It indicates that 100 images and 71 videos that meet the definition of child pornography were found on the computer. The file creation dates of these items span the dates in the indictment.

The images and videos show various forms of sexual contact between adults and prepubescent females, including full sexual intercourse and acts of bestiality being performed by and upon children. Circumstances of the Offender [ 5 ] Mr. Waygood is now 43 years old. He has no previous criminal record. He has been employed for the last 12 years with car rental agencies at the Victoria Airport.

He currently lives with his parents, but has maintained his relationship with the woman with whom he was living at the time of these offences. [ 6 ] He submitted reference letters from his aunt, his sister, and his brother-in-law. Those family members describe his character and behaviour in very positive terms and express their shock and disbelief at learning of his involvement in activities like these, which are so different from what they have experienced from him.

As an example of his usual behaviour, his sister describes the strong support that he provided to her and her children during the time that she was a single parent. [ 7 ] Mr. Waygood’s counsel has submitted a psychological report from Andrew McWhinnie, who holds a Master's degree in psychology and has extensive experience in treating adult male sex offenders (including users of child pornography) and in carrying out risk

assessments. He applied two very well-known and well-validated assessment tools to address Mr. Waygood’s level of risk. On the Static-99R, Mr. Waygood was found to present a low risk to reoffend. On the Stable-2007, he was found to be in the “low category”, related to sexual offending risk. When these well-validated measures are combined, Mr. McWhinnie concludes that Mr. Waygood is in the “low priority category” for intervention, compared to other sex offenders. On two more recently developed and less extensively validated measurements of recidivism risk, Mr.

Waygood essentially registered no measureable score at all. [ 8 ] In response to inquiries from Crown counsel about his testing, Mr. McWhinnie acknowledged that he was not provided with specific information about the contents of Mr. Waygood's child pornography collection, especially the amount of that offending material in relation to the overall amount of pornography that he possessed. He says it is possible that such information would move Mr. Waygood to an average risk category on the best-validated risk assessment tools. Nevertheless, he emphasizes that while a sexual interest in children (which he says Mr.

Waygood clearly, has despite his denials) is a factor influencing treatment, it does not in itself increase the risk of reoffending. Positions [ 9 ] Crown counsel submits that in light of the primacy of deterrence as a sentencing principle in child pornography offences, the statutory aggravating features that are present here (ss. 718.2(ii.1): abusing a person under 18 and (iii.1): the offence had significant impact on the victim) and the presence of particularly disturbing material in this collection, a global sentence in the range of 20 to 24 months could have been considered.

To achieve a fit sentence however, the Crown submits that it would be appropriate to moderate that total to something in the range of 18 months' imprisonment, with the possession and accessing sentence running concurrently to each other, but consecutive to the one year mandatory minimum applicable for making the material available.

A three-year probation period should follow, in the Crown's submission, along with the usual ancillary orders for convictions of this kind. [ 10 ] The Crown provided helpful sentencing authorities, emphasizing the inherent seriousness of child pornography offences [i] and offering specific examples of sentences of two years less a day [ii] and three years' imprisonment [iii] that were imposed for possessing and making available child pornography in relation to roughly comparable numbers of computer files to those possessed by Mr. Waygood.

As further examples of the seriousness with which these kinds of offences are viewed by the courts, Crown counsel submitted cases involving nine [iv] and ten-month [v] sentences that were imposed for comparably sized collections when the conviction was for possession alone. [ 11 ] Mr. Waygood's counsel submits that in all the circumstances the minimum sentence of 12 months for making child pornography available, with concurrent sentences on the other counts, is sufficient to address all the applicable principles of sentencing here.

He stresses that the determination of a fit sentence in cases of this kind involves more than simply identifying the number of videos or images involved. He also asks me to consider the significant impact that a sentence of actual incarceration would have on a person of Mr. Waygood's background, even if only the minimum sentence is imposed. Even though Mr. Waygood continues to deny his involvement in these offences, counsel points out that he may well prove amenable to treatment over time, and the availability of treatment at that point should be ensured through his probation conditions.

Discussion [ 12 ] It is obvious that child pornography offences are, by their very nature, extremely serious. A visual record of the sexual abuse of a child, preserved and shared among those who hold a sexual interest in children, perpetuates the original abuse and helps sustain a continuing market for such records.

The ease with which such items can be shared and distributed over the internet makes the problem even more acute. [ 13 ] A sentence imposed for such an offence must reflect society's collective condemnation of these activities, and send a clear message to those who may be inclined to become involved with them of the kind of significant penalties they can expect to receive if they are convicted. Parliament's increase in the minimum penalties that attach to child pornography offences reflects an even greater emphasis on these objectives.

Nevertheless, however important denunciation and general deterrence may be, they should not be emphasized to the point where they effectively extinguish meaningful prospects of rehabilitation, especially when the offender involved has no previous criminal history. [ 14 ] The mitigating factors here are Mr. Waygood's lack of criminal record, his stable record of employment, and the strong support he enjoys from his family. [ 15 ] I do not think the statutory aggravating features pointed to by the Crown apply here.

However much the use and distribution of child pornography perpetuates the original abuse in a different form, I do not think it can be said, except in the most general sense, that Mr. Waygood himself abused a person under 18.

Nor is there specific evidence of the impact of his possession, accessing, and distribution on the exploited children here, although I have no doubt that those victims, if they could be identified, would find his use of the recordings of the offences that were committed against them most disturbing. [ 16 ] Depictions of very intrusive actual sexual activity with children and bestiality, such as Mr.

Waygood possessed, are farther along the scale of seriousness than more static but still sexualized images of children might be, so the nature of the images that were possessed, accessed and made available is a legitimate aggravating factor here. But as is shown by the circumstances of R. v. Allen , one of the cases referred to by the Crown, there are even more serious and disturbing recordings that could be possessed, so I cannot place Mr.

Waygood at the very highest end of the scale. [ 17 ] Some of the aggravating factors that are found in the cases cited by the Crown, such as bail breaches or a higher risk or reoffending, are also not present here and that should also influence where Mr. Waygood and his actions are situated. [ 18 ] His position that he did not commit these offences, which he was entitled to put forward during the trial and is entitled to maintain now, is certainly not an aggravating factor. Nevertheless, Mr. McWhinnie's conclusion that he is a person with a still-unacknowledged

sexual interest in children is something that needs to be reflected in the sentence imposed, in particular in its rehabilitative elements. [ 19 ] If Mr. McWhinnie had been provided with the details of Mr. Waygood's collection it is possible, he fairly concedes, that his risk assessments could have placed Mr. Waygood in the average rather than the low category. I think I must moderate the weight attached to the report accordingly. But it is still overall a factor in Mr. Waygood's favour that he possesses no heightened or aggravated risks of reoffending, as was found for some of the offenders in the cases cited.

There were also no actual physical sexual offences carried out by him, and no solicitation or luring of prospective victims, as sometimes accompany child pornography offences. The sharing of the material here was done passively, rather than through overt communication or solicitation of like-minded users. Nevertheless, as Cpl. Hack's evidence revealed, the software used by Mr. Waygood had to be set by him in order to make the material available. [ 20 ] It is common ground that Mr. Waygood is subject to the minimum sentences as they existed at the time of these offences.

As I discussed during submissions, I think that the correct way to approach mandatory minimum sentences, in arriving at a fit sentence, is to acknowledge them as legislative indications of the seriousness with which certain conduct is viewed. While the Court of Appeal has more recently rejected a rigid concept of the minimum sentence as an inflationary floor, one that is available only to the most favourable offence and offender [vi] , I cannot automatically impose the minimum solely on the basis that a pre-minimum sentence might have been lower.

The sentence must be a fit and proportionate one overall, including taking into account the increased seriousness that Parliament has signalled. Conclusion [ 21 ] In my opinion, considering the aggravating and mitigating factors, as well as the seriousness of the offence and Mr.

Waygood's degree of responsibility, and balancing the need for denunciation and deterrence with the prospects of rehabilitation that are demonstrated by his previous offence-free history and the likely significant impact of a period of incarceration of any length on a person without a previous criminal background, the following sentences should be imposed: • Count 1, nine months' imprisonment; • Count 2, nine months' imprisonment concurrent to Count 1; and • Count 3, 14 months' imprisonment concurrent to all other counts. [25] Mr.

Waygood will then be on probation for three years with the following conditions, some of which were proposed by the Crown from standard conditions that I gather have been developed for offences of this nature: • You must keep the peace and be of good behaviour. • You must appear before the court when required to do so by the court. • You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. • You must reside at a residence approved in advance by the probation officer.

You must provide your probation officer with your phone number, and you must not change your residence or your phone number without written permission from your probation officer. • You must not go to any public park, public swimming area, or community centre where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground. The only exception is with the written permission of your probation officer.

You must carry the written permission when you are in the prohibited area. • You must have no contact or communication directly or indirectly with, nor be alone in the presence of, any person (you know to be or who reasonably appears to be) under the age of 16 years, except if you have the written permission of your probation officer in which case, you must carry the permission. • You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer. • You must not own, possess, or use any device capable of accessing any computer network including the internet, except as permitted by this order.

While owning, possessing, or using any such device pursuant to this order:

- You must not delete your browsing history. - You must not access, directly or indirectly, any social media sites, social networks, internet discussion forum or chat rooms, or maintain a personal profile on any such service, including Facebook, Twitter, Tinder, lnstagram, Linkedln or any similar service. - You must not communicate or attempt to communicate with any person you know to be, or who reasonably appears or represents themselves to be, under the age of 16 years through a social networking website, instant messaging service, or chat room program. - Having consented, you must sign any release of information forms as will enable your probation officer to monitor your compliance with this term.

Any information obtained by the probation officer can be given to a peace officer. - Having consented, you must provide the device and any password used to lock the device to your probation officer or peace officer, upon their request, in order for him or her to monitor your compliance with this order. • You are permitted to (own, possess, use) any device capable of accessing any computer network including the internet if: - You are in the immediate presence of a person approved of in writing by your probation officer. - You have the written permission of your probation officer; - You are accessing the internet for the sole purpose of paying bills, banking, searching or applying for employment, searching for books at a public library, or communicating with a government agency; - You are required by an employer, other than yourself, to use a computer or other device that is owned and controlled by the employer.

The device must only be used in the course of your employment, and with the permission of the employer, and only after the employer has confirmed with your probation officer that she or he has read copy of this order; or - It is required for purposes directly and immediately related to your employment, not including self-employment. • You must not enter into any agreement or contract with any internet service provider for any internet access or any form of data plan, mobile or otherwise. • You must not possess any device capable of storing data as defined in the Criminal Code , unless: - You have the written permission of your probation officer; or - You are required by an employer, other than yourself, to use a device that is owned and controlled by the employer.

The device must only be used in the course of your employment, and with the permission of the employer, after the employer has confirmed with your probation officer that she or he has read this order. • You must not possess any pornographic material, or access any pornographic material by electronic means.

[26] Pursuant to s. 487.04 of the Code, Mr. Waygood will provide such samples of bodily substances as are reasonably required for thepurposes of forensic DNA analysis. [27] Pursuant to the Sex Offender Information Registration Act and s. 490.013 (2.1) of the Code, he will be subject to an order for 20years. [28] Finally, there is the forfeiture order. There has been an issue raised about whether Mr. Waygood’s desktop computer itself needs tobe forfeited, if the hard drive is what contains the prohibited material.

I am going to modify the proposed order and say that pursuant to s.164 of the Code, the single hard drive, Police Exhibit Number 001A, contained inside the HP model P6000 desktop computer, PoliceExhibit Number 001, will be forfeited to the E Division Major Crimes

Section Integrated Child Exploitation Unit to be destroyed. TheHP model P6000 desktop computer, Police Exhibit 001, may be returned to Mr. Waygood, unless that desktop computer in itself, minusthe hard drive, contains in some fashion information or material constituting child pornography within the definition of the CriminalCode that cannot be removed from it prior to its return. “The Honourable Mr. Justice T.A. Schultes” [i] R. v. Allen, 2012 BCCA 377 at paras. 57-60, 64 [ii] R. v. Osi, 2015 BCPC 132 , 2015 BCPC 0132 [iii] R. v. Carlos, 2015 ONSC 8085, aff’d 2016 ONCA 920 [iv] R. v. Dumais, 2011 ONSC 276 [v] R. v. M.O.C., 2016 BCPC 273 , 2016 BCPC 0273 [vi] See R. v. Veinotte, 2016 BCCA 21