R. v. Zuccato, 2018 BCPC 370

Citation: R. v. Zuccato 2018 BCPC 370 Date: 20181025 File No: 16219-1 Registry: Powell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTOPHER STEVEN ZUCCATO ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Crown: R. Opel Counsel for the Defendant: J. Garrett-Rempel Place of Hearing: Powell River , B.C. Dates of Hearing: August 14, 2018 & October 23, 2018 Date of Judgment: October 25, 2018 [ 1 ] Christopher Steven Zuccato has entered a guilty plea on August 14, 2018, that on or about April 12, 2018, at or near Powell River, in the Province of British Columbia, did possess child pornography, contrary to

Section 163.1 (4) of the Criminal Code of Canada . [ 2 ] The facts are such that on March 23, 2018, Flipogram in the United States reported that a user was targeting underage persons in the United States. That report was forwarded to Canada where Canadian authorities tracked the IP address to Powell River, British Columbia, and identified a person of interest. At that time, investigating authorities determined that persons under the age of 10 years were being targeted and that the person of interest had posted messages that included “You’re real pretty. Message me” amongst others.

Powell River RCMP attended the residence and spoke to Mr. Zuccato, who permitted them entry into his home where he resides with his

parents and, to wit, Mr. Zuccato was cooperative with the police and confessed to possessing child pornography. He was chartered , arrested, and thereafter provided a warned voluntary statement to the police where he admitted to possessing both images and video of child pornography. He admitted that he first started several years ago, first with adult pornography; however that no longer satisfied him and he thereafter viewed and possessed pornography of teenagers, and thereafter it escalated to pre-teen pornography, again both images and videos.

A search warrant was obtained, and the police located a number of images and videos. The external hard drive contained 66,481 images, there were a number of live stream videos and videos of children of ages approximately 4 - 14 years of age. That hard drive contained an image of an adult male with both vaginal and anal penetration with a child, there was one video of beastiality of a child and a dog and another similar in nature. The One Plus Cell phone contained a 25 minute video of Mr.

Zuccato communicating with a child, that the child specifically told him that she was 10 years of age, he asked her to finger herself and she did so, in turn he sent her a video of himself masturbating, however, he had difficulties sending back his own video. That same phone contained text messages wherein he told the purported 10 year old that he wished to have sex with her, that she told him in actual fact that she was 16 years of age and in turn, he told her that her breasts looked like that of a 10 year old.

In addition, the phone had webcam images of children ages 6 - 10 years of age exposing their vaginas, there were 260 live cam feeds of children ages 10 - 16 with the sound of Mr. Zuccato breathing heavily and telling some of those young people that he was a grade 9 boy. There was a Samsung phone which contained 39 videos containing live webcam feed involving young children approximate ages 7 - 14 years of age including Mr. Zuccato self-recording himself. The RCMP also located children’s underwear that had sticky residue and stains on them, children’s books, lingerie, and condoms. Initially, Mr.

Zuccato denied viewing any infant pornographic material, however, then self-admitted to the officers that he had deleted it. An aggravating factor for consideration was that some of the pornographic material had been purchased by Mr. Zuccato. [ 3 ] I have had the benefit of a Pre-Sentence Report dated October 18, 2018. Personal background information included that Mr.

Zuccato grew up in Powell River, he and his father do not currently communicate with one another with minimal interactions, he self- described his mother as hard working, he is close to an aunt who is a physician and with whom he has been chatting with her about the offence and his concerns since his arrest, he currently resides with his mother and father where he has done so since 2014, he self- reported that he only has one friend, he has not been in an intimate relationship with anyone since 2000, and to the writer of the PSR, it did not appear that he was interacting with any persons with a criminal lifestyle.

His mother disclosed in the PSR that he struggled during high school, including feeling rejected by his peers, and who was smart but lacked a strong work ethic at his academics. He has completed his grade 12. His last place of employment was at an auto parts business in Powell River, and he has not been employed since his arrest. The writer of the PSR noted concerns about Mr. Zuccato’s overall general mental health wellbeing and social abilities, including that he self-reported that he suffers from depression and anxiety and is on an anti-depressant medication.

He spends most of his time in front of a computer screen and his mother reported that she was “…happy that he will be going away because he needs help” (page 4). Mr. Zuccato expressed concern about how he will be judged in the community when seeking employment and said “this is a lot different than if I had robbed a store” (page 4). He self-reported that he turns to food and video gaming to escape reality. He currently has medical conditions such as type 2 diabetes, high blood pressure and high cholesterol, including being on medication for all of such ailments. He also suffers from sleep apnea.

In terms of substance misuse, he self-reported that he has not consumed alcohol since Christmas 2017. Mr. Zuccato appears before this court with no criminal record and there have been no breach allegations since being placed on bail. He reported to the writer of the PSR that he is receptive to counselling, therapy, and supports; and his aunt, who is a physician, reported to the writer that “he really seems to want to work on his obsession with children with a counsellor” (page 5). Page 6 of the PSR discloses that Mr.

Zuccato was “shocked” when the police attended his residence, that he admitted to the police “I knew it was a possibility, but I did not expect to get caught”, that he blamed Flipogram for being caught and thus was quick to blame others for his own illegal activity, that knowing it was illegal he admitted to the police that he knew that he should have deleted it and when asked why he did not delete it he said, “because I had enough hard-drive space for it”, thus even knowing what he was doing was illegal, until caught he was content to continue engaging in such activity believing that his hard drive would not be detected with such pornography, both of images and videos.

He admitted to the writer of the PSR that he made a poor decision, however, page 6 of the PSR states that he “demonstrated very little insight in regards to his behaviour. When he expressed shame or disappointment in his behaviour it was because those around him are going to become aware of the offences.” There was no acknowledgement, recognition or understanding of the gravity and severity of this illegal activity upon the victims.

He does self-report that he understood the “horrors” the children must experience (page 6), however when asked if he felt guilty about what the children experience and endure, on page 6 he stated, “I may have felt guilty but not enough to not continue looking at and downloading the videos”, thus supporting Crown counsel’s position that he has little to no insight into the gravity of the offence and the harm it causes and re-causes to victims. The writer of the PSR, on page 6, expressed concern that Mr.

Zuccato told the writer that the offence is “being wrong in the eyes of our society” and thus showed little to no identifiable empathy to the offence and to the impact upon the many victims. Those concerns of the writer were supported by his aunt, with whom he has spoken to about the offence and whom is a physician including that she told the writer on page 6 of the PSR, “when he speaks about the offences, he makes them sound a little more innocent then they are.” [ 4 ] Mr. Zuccato underwent an assessment by the B.C. Mental Health and a written report was prepared with a psychological assessment undertaken by Dr.

Wiebe, who is a psychologist with the Forensic Psychiatric Services. That report is dated October 16, 2018. In the report, the police report contains an admission by Mr. Zuccato that he had been viewing child pornography for several years and that he had been in conversations with young girls, ages 10 - 12 years of age, while posing himself as a ten year old.

Pornographic images and videos were located by the RCMP of children ages 3 to 14 years of age, including children in sexually provocative positions, including a child masturbating, a male performing oral sex on another male child, two female children mutually engaging in sexual activity, female children performing oral sex on adult males including the males ejaculating into the children’s mouths, and a number of young female children engaged in both vaginal and anal intercourse with adult males, and a female child performing oral sex on a dog and engaging in vaginal intercourse with the said dog.

The RCMP located hundreds of live-stream videos of females between the ages of 8 to 15 years of age and logs of chats between many of the young females and Mr. Zuccato himself. Those video logs revealed that he made a number of overtures to these underage females including “lift your bra”, “dare you to flash” and a 25-minute video wherein Mr. Zuccato asked the young girl to use her finger to digitally penetrate herself wherein, in turn, he sends a video of himself standing naked in front of the camera masturbating. Dr. Wiebe found that Mr.

Zuccato’s self-reporting to him did not deviate from the contents of the warned police statement that he provided to the RCMP. In terms of his family background, he denied any physical beatings as a child, he attended a Catholic elementary school, he admitted that he was admonished by peers due to his weight, that he was never diagnosed with any learning disabilities, that he completed his grade 12 in 2011, attended a pre-apprenticeship for mechanics and currently has his Red Seal ticket in automotive parts.

He self-reported that he never had any long-term relationships and that his last relationship ended in 2001. He revealed a history of social anxiety since his early twenties and it escalates when in social settings where he knows very few

people. He ceased alcohol consumption approximately ten months ago and ceased cannabis use in the summer of 2018. His sexual history disclosed that he denied any casual sexual encounters, however, admitted that he had two sexual encounters with sex-trade workers in the mid-2000s. He denied any physical, sexual activity with children, and admitted to viewing child pornography regularly and masturbating to it, as well as having sexual thoughts and fantasies about children. Dr. Wiebe acknowledged that Mr. Zuccato may have been suffering from a major depressive disorder earlier in 2018; however, Dr.

Wiebe was unable to find any evidence of any levels of clinical depression at the time of being interviewed and evaluated. Dr. Wiebe found indications of an introverted personality, an aloof interpersonal style and a low self-esteem. An aggravating factor found within the report of Dr. Wiebe is found on page 6 of the report, wherein Mr. Zuccato was not clear as to when he started viewing child pornography and that, in his words, he “accidentally” came across child pornography. One does not “accidentally” come across child pornography. He reported to Dr.

Wiebe that viewing naked women for him, “lost their appeal” (page 6), and thereafter viewed both adult and child pornography. He admitted that he would lie about his age, however, disclosed that many of his conversations were what he called “just normal” (page 6) and not sexual in nature. The sheer number of images and videos found by the RCMP contradicts that statement, again, an aggravating factor that Mr. Zuccato continues to not acknowledge the significance of his actions. He admitted to having sexual fantasies about children. What is an aggravating matter for consideration is that when Dr. Wiebe asked Mr.

Zuccato about his thoughts about the offences, on page 7 he said that he was very ashamed and sorry, however, when asked about the impact this has upon the victims, he said, “I’m aware it’s not a victimless crime… you hear the news…I guess I never put much thought into it…how they might feel…what they were going through…I haven’t spent a lot of time thinking about it…I imagine it’s not positive.” Mr. Zuccato was interviewed by Dr.

Wiebe on September 12, 2018, and thus well after his arrest and after his guilty plea, it remains extremely concerning that he remains unable or unwilling to appreciate the gravity of his actions. Dr. Wiebe reports on page 7, “It is interesting to note that while Mr.

Zuccato has expressed shame and regret in relation to the offence, most of his thoughts and emotions are centred on himself, including expressions of regret or remorse, and he seems to display little empathy for the victims or understanding of how the sexual activity portrayed in the photos or videos may have impacted them.” In assessing the risk for sexual violence, Dr.

Wiebe finds that there are both direct and indirect contributing factors to the offence including an introverted personality, being socially withdrawn, society anxiety symptoms, low self-esteem, poor stress- coping skills, life stressors and sexually deviant thoughts and fantasies, including arousal to children, including noting that this last factor is a significant weighted factor (page 8). Dr.

Wiebe acknowledges that there is no well-validated and established measure to use with child pornography offenders to clearly assess risk, and defence counsel respectfully has reminded this Court to such, however, I am satisfied that the report of Dr. Wiebe is to be accepted and he concludes that there is evidence of sexual deviance and attitudes including sexual interest in children and concludes that Mr. Zuccato is at a moderate risk for future re-offending with child pornography and his risk for future contact offences is low to moderate (page 9). Dr.

Wiebe makes a particularly important notation that because there was a lack of collateral file information, he was limited. [ 5 ] Mitigating factors before me include that Mr. Zuccato was fully cooperative with the police and that this is an early guilty plea. He appears before me with no criminal record and is a young person. His mother disclosed to defence counsel that her son is a compassionate person. He suffers from a number of medical ailments. [ 6 ] Aggravating factors include that this is child pornography, both with an extensive number of images and videos, that Mr.

Zuccato knew what he was doing was wrong but continued doing so for a number of years. He disclosed that he had no interest in having an in-person sexual encounter, however, the sheer number of both video and still images, including a 25-minute video, does cause this Court concern. He fully and knowingly enticed minors to expose themselves, digitally penetrate themselves, and he masturbated in front of children. That is little comfort that merely a computer screen separated the victim from Mr. Zuccato.

He denied being insensitive to the many children that he victimized and dehumanized, however, that is contrary to the contents of both the PSR and the report of Dr. Wiebe. He denied having knowledge of some of the material on his computer, however, one has to proactively search to find child pornography. It simply does not pop up on your Google or Safari search. Further aggravating is the number of images, the number of devices in which he had such materials, and that he paid for some of the pornographic material, thus enabling a dark and illegal industry to continue to profit, with no regard to the victims.

Crown counsel seeks to convince this Court that Mr. Zuccato engaged in grooming, of which defence counsel refutes. Dr. Wiebe did not conclude such, however, so, too, the report of Dr. Wiebe makes no observation or statements that in addition to the mobile phones and computer and hard drive, that the police seized children’s underwear that was sticky with stains. When asked in Court, Mr. Zuccato admitted that he utilized such as part of his sexual pleasure. There were children’s books retrieved. Mr. Zuccato has no children and when asked in Court the purpose of such books, he was defensive in his tone and answer.

The police seized women’s lingerie and condoms. I am unable to conclude that this was grooming, however, it clearly is deviant in nature and troubling as to the children’s underwear that he used and the presence of women’s lingerie, given he has not had a relationship since 2001. An additional aggravating consideration is his self-disclosure that he did look at infant pornography, but that he deleted it. Mr. Zuccato had been engaging in this activity for a number of years and his lack of empathy as noted in both the PSR and the report of Dr.

Wiebe is very concerning. [ 7 ] The decision of Regina v Allen, 2012 BCCA 377 , addresses the harm caused by those engaging in child pornography and citing the trial Judge, at paragraph 21, the British Columbia Court of Appeal stated: The root of child pornography is the sexual abuse of children. The sexual exploitation of innocent children has severe consequences, not only to the victim, but to society as a whole. Society has a strong interest in safeguarding this most susceptible and vulnerable group from the sexual predators.

Any violation carries high moral blameworthiness and society repugnance at the highest degree. It is notable that with widespread internet distribution of child pornography…exploited are re-victimized with every click of the mouse as the images of their abuse live forever in the public domain. The protection of children and their entitlement to their innocence is a value held around the globe. Child pornography at its very basic level degrades, dehumanizes, and re-victimizes children. That damage and harm is not lessened simply because it is through online and computer access.

In the decision of Regina v Sharpe, 2001 SCC 2 (Can LII), [2001] SCJ No. 3 , the then Chief Justice McLachlin at paragraph 28 stated: …The links between possession of child pornography and harm to children are arguably more attenuated then are the links between the manufacture and distribution of child pornography and harm to children. However, possession of child pornography contributes to the market for child pornography, a market that in turn drives production involving the exploitation of children.

Possession of child pornography may facilitate the seduction and grooming of victims and may break down inhibitions or incite potential offences…

[8] Mr. Zuccato possessed a number of images, both in video and still format. The number of images is an aggravating factor forconsideration, in addition to his participation in those live-video feeds and that he purchased some of the pornographic materials. InRegina v Kwok, (ON SC), 2007 OJ No. 457, Mr. Justice Molloy addressed the aggravating factor of such whencrafting a sentence and identified: …certain factors that speak to aggravating factors on sentencing for purposes of the possession of child pornography.

These include thesize of the collection; the nature of the collection, including the age of the children involved in the relative depravity and violencedepicted; the extent to which the offender is seen as a danger to children, including whether the offender is a diagnosed pedophile; and,whether the offender has purchased child pornography rather than downloading it for free from the internet.

These factors are notexclusive and they are not exhaustive, but they do provide guidance. [9] Defence counsel seeks to rely upon the decision of Regina v TJRM, 2016 BCPC 177 , 2016 BCPC 0177, from theProvincial Court of British Columbia. In the TJRM (supra) decision, this was a guilty plea, it had been continuing for a number of years,there were three videos including recent downloading, however, there were found to be 82 images and 56 videos of child pornography,which is a significant difference from the 66,481 images found that Mr. Zuccato possessed.

More so distinguishing is that TJRMdisclosed that he had been sexually abused over a two-year period as a child and that prior to sentencing, TJRM had attended some 50counselling sessions. None of that is before me. [10] Both counsel draw upon the British Columbia Provincial Court decision of The Honourable Judge Gaffar of Regina v Campbell,[2017] BCJ No. 2150, wherein Mr. Campbell was sentenced to ten months of imprisonment to be followed by a two-year ProbationOrder.

Of particular note, this was a joint submission and the Court particularly noted correctly that an offender is to be sentenced asnoted in paragraph 3, “…not based on emotion, not based on outrage, but to sentence….on a reasonable and principled basis.” That istrue of any and all sentencings to be undertaken.

I would draw both counsel, particularly, to the relevant fact that the Judge waspresented with a joint submission, and joint submissions have strict parameters if one wishes to deviate from such, and, in particular, atparagraph 14, the Judge stated, “but for the joint submission, I might have been inclined to impose a higher sentence.” The matter beforeme is not a joint submission. Defence counsel respectfully submits that it would be appropriate to sentence Mr.

Zuccato to a period ofsix months imprisonment and Crown counsel submits that it is wholly appropriate to impose a period of twelve months of incarceration. Given the significant number of aggravating factors before me, I would have been inclined to impose a higher period of incarceration, butfor Crown counsel asking for twelve months. Simply because the actions of Mr. Zuccato were done electronically does not lessen theimpact upon its victims. This is not a victimless crime. They may have been anonymous to Mr.

Zuccato, but these children have namesand personalities in their day-to-day lives and his participation in this activity re-victimizes these children. I am guided by case law, thePSR, the report of Dr. Wiebe, the individual factors before me, and the principles in applying

Section 718 to 718.2 of the Criminal Codeof Canada. This offence triggers specific provisions of the Criminal Code of Canada. Sentencing is a craft and each individual factormust be carefully considered, however, this offence draws particular application of portions of the Criminal Code of Canada. Theprimary sentencing principles in this offence include deterrence and denunciation, which is the community’s condemning of yourconduct.

General deterrence must too be considered, given the prolific nature of child pornography online in society as a whole and thusthe sentence must also deter others from engaging in such conduct. I am not satisfied that Mr. Zuccato understands the gravity of thisoffence when considering the contents of both the PSR and the report of Dr. Wiebe. This is troubling.

This was an offence that occurredover a number of years, it included in excess of 66,000 images, it was an ongoing participation in a crime involving young children, heparticipated in online chats with young girls, one video was of beastiality, and he had purchased some of the child pornography. Otheritems seized outside of the electronic medium were also aggravating, including stained children’s underwear. I am not convinced that theimposition of the mandatory minimum six-month period of incarceration is appropriate and satisfies the principles of sentencing thatmust be applied.

I draw to the attention of counsel the decision of Regina v Smart, 2015 BCPC 100 , [2015] BCJ No. 851,wherein The Honourable Judge R. Smith noted that before the application of credit, he would have imposed a period of incarceration of24 months for someone assessed at a moderate-to-high risk of re-offending. Child pornography is significantly offensive. Thesechildren were very young. Mr. Zuccato engaged in a 25-minute video believing initially that the child was 10 years of age and stillcontinued to engage in masturbating. There was one video of beastiality.

This had been ongoing for a number of years and some of ithad been purchased, thus continuing the cycle of re-victimizing the most vulnerable people in our society. [11] After carefully considering the foregoing, I will impose the following: Mr. Zuccato shall be imprisoned to a period of 12 months of incarceration. This is to be followed by a 24-month period of a Probation Order with the following terms and conditions:

a) Keep the peace and be of good behaviour;

b) Appear before this court as and when required to do so;

c) You are required to report in person to your Probation Officer in Powell River, British Columbia within 72 business hours ofyour release and thereafter no less than one time per month in person;

d) At your first reporting you are required to provide your Probation Officer with your residential address and telephone numberand do not change those without the prior written consent of your Probation Officer;

e) You must enroll, attend, participate in and successfully complete all counselling as so directed by your Probation Officer,specifically addressing your mental health, including but not limited to Forensic Psychiatric Services;

f) You shall not access the internet by any means, including wireless, handheld devices such as Blackberry’s, IPads or IPods,IPhones, mobile devices, or any web-enabled internet-enabled electronic devices, except solely with the prior written case specificwritten consent of your Probation Officer;

g) You shall not own, possess, or use a computer system, including a cellular phone, with access to the internet, except with theprior written consent case specific written consent of your Probation Officer;

h) You are not to seek or obtain any employment or volunteer work that involves being in a position of trust or authority towards persons under the age of 16 years of age;

i) You shall not attend at any public park or public swimming area, community centre or at a day-care, school ground or playground, where persons under the age of 16 years of age are present or can reasonably be expected to be present;

j) You must provide your Probation Officer with the carrier information and phone number of any mobile device that you possess and the make, model, colour, and IP address of any internet or web-enabled devices that you may obtain your Probation Officer’s written consent to own, possess and access at any time and produce it upon demand by your Probation Officer and a peace officer forthwith;

k) You must sign any waiver of confidentiality or release of information forms as will enable your Probation Officer, counsellor or treatment providers to monitor your attendance, and completion of any intake, assessment, counselling, or treatment programme and to collaboratively discuss your treatment needs;

l) You must not possess any pornographic material and you must not access any pornographic material in any manner;

m) You must carry a copy of this Order on your person at all times when you are outside your place of residence and produce it forthwith upon demand to a peace officer; [ 12 ] You will be required to comply with the Sex Offender Information Registry for a period of ten years pursuant to

Section 490.012(1) of the Criminal Code of Canada ; This is a primary designated offence and you shall be required to provide a DNA sample forthwith; [ 13 ] There will be an Order pursuant to Sections 161 a), b),

c) and

d) of the Criminal Code of Canada for a period of five years; [ 14 ] There will be a forfeiture Order. [ 15 ] Defence counsel has submitted that Mr. Zuccato has no ability to pay the victim surcharge; however, the factual information submitted in the reports is such that he was residing with his parents and living on his savings. The victim surcharge fine is payable within 60 days of today’s date, failing which, there will be one day of incarceration to be served consecutively. ____________________________ The Honourable K. Arthur-Leung Provincial Court of British Columbia