R. v. Buss Date:, 2014 BCPC 381

Citation: R. v. Buss Date: 20140610 2014 BCPC 0381 File No: 196047-3-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. WILL LEE BUSS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.A. OULTON Counsel for the Crown: M. Fortino Counsel for the Defendant: J. Michaels Place of Hearing: Surrey , B.C. Dates of Hearing: December 3, 4, 5, 2013; January 3, 13, 14, 15, February 27, 2014 Date of Judgment: June 10, 2014

[ 1 ] THE COURT : I found Mr. Buss, an American citizen, guilty of possession of child pornography, contrary to s. 163.1(4) of the Criminal Code on April 4th, 2014. In reasons for judgment delivered April 4th, 2014, I disbelieved Mr. Buss' exculpatory explanation for the presence of the child pornography on his laptop which he claimed not to know about, and I found his evidence did not raise a reasonable doubt. Mr. Buss' bail was revoked on April 4th, 2014 and he has been in custody since then. [ 2 ] The Crown proceeded by indictment on this Information.

The minimum sentence for possession of child pornography is six months’ jail, and the maximum sentence is five years’ jail. Counsel agree that in light of the Supreme Court of Canada decision in R. v. Summers , 2014 SCC 26 , Mr. Buss is entitled to one-and-a-half days’ credit for each day he has spent in custody. Counsel also agree that neither could find cases that specifically considered the appropriate sentence, in light of the increase in the mandatory minimum jail sentence for this offence from three months to six months' jail on August 9th, 2012.

That is, they found no cases in which the offence occurred after the mandatory minimum increased to six months. [ 3 ] Crown seeks a 15-to-18-month jail sentence; defence is asking for the minimum, six months’ jail. Both counsel agree that there should be no probationary period to follow this sentence. Mr. Buss is an American citizen and will be criminally inadmissible to Canada after the jail sentence is served. CIRCUMSTANCES OF THE OFFENCE [ 4 ] The charge arose when an image of a prepubescent naked girl was found on Mr.

Buss' laptop at a Customs secondary inspection at the Canadian border on September 14th, 2012. A search warrant which issued November 7th, 2012 led to a forensic examination of his laptop.

The laptop contained over 200,000 images of girls appearing to be between the ages of one and 14, and 210 videos; 770 of the images were child pornography, and 192 of the videos were child pornography. [ 5 ] The child pornography was located in two permanent folders on the laptop, the C:\Users\Will\Drivers folder (the Drivers folder) contained 189 child pornography videos, and the C:\Users\Will\Documents\FrostWire\Saved folder (the Frostwire Saved folder) contained 770 child pornography images and three child pornography videos. [ 6 ] The Drivers folder was “user-created” in the sense that it was not automatically made by the computer at installation.

Mr. Buss admitted he created the folder but claimed it was on the desktop. There was no Drivers folder on the desktop of his laptop. The Frostwire Saved folder was created when the user downloaded a version of Frostwire. Mr. Buss admitted downloading Frostwire. [ 7 ] The forensic expert demonstrated the active steps a user must go through to install Frostwire, including selecting where the downloaded files are saved to. She also explained the active steps a user must take to download a file from Frostwire. A user must search for the torrent he wants by physically typing in the search term.

He must then choose from the list of search results produced by Frostwire. Finally, he must manually click on the desired torrent. The only automatic downloading that Frostwire does is to download the next version of its software. Files do not automatically download from Frostwire and it is not possible that child pornography images could be automatically downloaded without the user actively doing something. [ 8 ] The 189 child pornography videos located in the Drivers folder were stored in “thumbnail view”, meaning that the first frame of each video was visible on the computer screen, with its title beneath.

In addition to the explicit nature of the first frame of each of these videos, the titles were graphic and included, for example, titles such as \ptchPedolandFriframToddle FuckingandCumShots3yogirl,Very Good!!!.mpg [ 9 ] Mr. Buss agreed that he downloaded 317 voyeuristic photos of adult women he took on his cellphone to the Phones folder within the Drivers folder on his laptop. To access the Phones subfolder Mr.

Buss would have had to scroll past the 189 images of the first frame of the child pornography videos with their accompanying explicit titles. [ 10 ] Some of the child pornography had been downloaded using the peer-to-peer software program Frostwire. [ 11 ] As I have said, Mr. Buss admitted downloading Frostwire to his laptop and using it to download popular movies or videogames. He had selected to download 15 items at a time. He said he had directed Frostwire to save files to the desktop but there was no file of saved Frostwire downloads on the desktop of his computer.

On one occasion, April 20th, 2012, child pornography was downloading within three minutes of a game, BioShock, that Mr. Buss admitted he downloaded. In other words, the evidence established contemporaneous downloading of child pornography with a game that Mr. Buss admitted being at the computer and downloading. [ 12 ] Mr. Buss bought the computer in August of 2010. The operating system was installed August 4th, 2010.

The 770 images of child pornography, part of a collection of over 200,000 images of girl children on his computer, were created as files on his computer from December 28th, 2010 to January 17th, 2012. The 192 videos of child pornography were downloaded, or created as files on his computer, between August 6th, 2010 and July 22nd, 2012. Forensic analysis showed that this password-protected laptop had evidence of only one user, Mr. Buss. [ 13 ] Mr.

Buss relied on his evidence of a transient lifestyle and purported generosity of access to his password-protected laptop in shelters which he claimed had no locked doors, to argue that a reasonable doubt as to his knowledge of the contents of his laptop should arise on these facts.

I found that given the quantity, the location, the organization, the method of saving (thumbnail view for the videos), and the period of time over which the images and videos were downloaded, the possibility that nefarious unnamed others were responsible for the child pornography on his laptop was so remote that it did not raise a reasonable doubt. I also noted that even if others downloaded the child pornography, which I did not accept because I did not believe Mr.

Buss nor did his evidence raise a reasonable doubt, I did not believe that he could have remained unaware of this volume of child pornography on his laptop. There was also no evidence raising a reasonable doubt to support the suggestion that the child pornography had been downloaded to his computer automatically as a result of a computer virus or malware.

[ 14 ] I viewed a representative selection of the images and videos found on Mr. Buss' laptop at the sentencing hearing, Exhibit 14. The child pornography images appeared to be professionally done in terms of the lighting and props and background used, and were of girls who were clearly prepubescent, appeared to be aged four to seven, being posed naked, with makeup and high heels, in provocative poses, showing their genitals to the camera in most, sticking their tongues out in some. [ 15 ] The videos depicted girls who appeared to be two to eight.

These were crudely shot, created by amateurs and were deeply disturbing. In one, five minutes and 45 seconds long although only an excerpt was viewed in court, a girl who looks two or three is visibly distressed as she is held down on the lap of an adult male filming himself digitally penetrating the naked child. The child is later shown tied to a bed by her ankles and bent over as a man penetrates her with his penis.

Later in the video, and this was not shown in court, the man ejaculates on the child's face while straddling her. [ 16 ] Another video, five minutes and 36 seconds long, shows a different girl of the same approximate age, two to three. The lack of expression on her face is as unsettling as the visible distress on the previous girl's face. A male hand is rubbing a stuffed teddy bear head on her vagina. Her legs are spread wide and her genitals look red, as if from rubbing.

The child is next shown performing fellatio on an adult erect penis. [ 17 ] A video of an older girl, 11 according to its title, is shown with her breast area and neck tied with rope. Both her hands are next tied with rope and she is shown hanging from the ceiling. An adult male appears behind her and roughly touches her vaginal area and her breast area. The video ends with the girl lying naked on a bench with her legs spread, facing the camera. Ropes can be seen around her stomach and thighs. An adult male hits and then grabs her vagina.

The adult male, naked from the waist down, then straddles the child's head and places his penis in her mouth. This was the first video Mr. Buss downloaded onto his computer on August 6th, 2010, and it is entitled "Vicky String Bikini." [ 18 ] In another video, described in Exhibit 14 but not shown in court, a girl of about ten is hit with a long, thin stick on her behind by an adult male. Both are naked. Previously, he has inserted his finger into her anus.

She is shown performing fellatio on him. [ 19 ] The videos depict acts of sexual assault, assault, unlawful confinement, sadism, bondage, anal and vaginal penetration by fingers, penises and objects, and oral sex performed on adult males involving girls ranging in age from two to three up to about 11.

The videos are at the extreme end of the classification scheme for child pornography described by the English Court of Appeal, which categorized levels of child pornography as follows: 1. images depicting erotic posing with no sexual activity; 2. sexual activity between children or solo masturbation by a child; 3. non-penetrative sexual activity between adults and children; 4. penetrative sexual activity between children and adults; and finally (5) sadism or bestiality. R. v. Oliver, [2002] E.W.J. No.

S441 THE PRE-SENTENCE REPORT AND PSYCHOLOGICAL ASSESSMENT [ 20 ] I ordered both a Pre-sentence Report and a psychological assessment to assist me in sentencing Mr. Buss (Ex. 3 and Ex. 4). The psychological assessment had the deficiency that no collateral information was gathered to critically assess the self-reporting of Mr. Buss. For the Pre-sentence Report, the persons spoken to, Pastor Eric Roberts and Mike O'Shaughnessy, did not appear to have an understanding of Mr. Buss' charge or conviction. Mr. Buss' wife provided her comments once the report had already been prepared, and I discuss them further below.

Defence counsel advised in submissions that Mr. O'Shaughnessy now knows what Mr. Buss' conviction is for. [ 21 ] With respect to the psychological assessment, Mr. Buss was interviewed by a psychologist for three hours by video conference. None of the information provided in the three hours was checked with any collateral contacts. It was all self-reporting. The psychologist noted: This self-report has not been directly corroborated by other sources.

If significant discrepancies between Will's report and other current objective information are discovered, the conclusions of the report might change. [ 22 ] Crown says this absence of critical assessment affects the weight I can give to the psychological report, and I agree. This is particularly so in that the context for this risk assessment was one in which Mr. Buss continued to deny committing the offence. The fact that Mr. Buss was found not to be a paedophile and was deemed to be at low risk to reoffend by the psychologist is of limited value, predicated as it was on Mr.

Buss' continued disavowal of knowledge of the contents of his laptop. In my view, it cannot be said that he is at low risk to reoffend when he offers no insight as to why he amassed this large collection of child pornography in the first place. [ 23 ] An example of a discrepancy between Will's report and other current objective information is: (1) to the psychologist Mr. Buss denied engaging in any non-contact type of sexual conduct such as voyeurism (page 7 of 17).

Under oath in this trial he admitted that the collection of 317 photos he had taken on his cellphone and then stored on the Phones folder on his laptop, of adult women he did not know, photographed in public, fully clothed and unaware they were being photographed, but captured on film by him in positions such as bending over, were all taken, collected and saved by him because of an immature interest in voyeurism that he said he has since outgrown. [ 24 ] Another example of a discrepancy between the psychological assessment and current objective information is: (2) the

psychologist had the factual basis for aspects of the offence incorrect. He wrote that the “creation dates for the various images found on (Mr. Buss’) computer ranged between about December 2010 and August 2011.” The comment does not reference videos, and it is inaccurate as to dates.

But based on this comment, the psychologist suggests, "It appears the files were accessed within a fairly circumscribed time, suggesting a chronic pattern of viewing child pornography is unlikely." I cannot accept this conclusion, based as it is on an erroneous premise. [ 25 ] I think it would have assisted the psychologist to have my reasons for judgment in this case to review, and I note that he did not have them.

In the future, I will ensure that this information is also provided to any professional who is asked to conduct a risk assessment of an offender. [ 26 ] In addition to the three-hour video conference interview, psychological testing was done by a psychological assistant. Defence counsel pointed out that the tests administered have validity, independent of the self-reporting for Mr. Buss' biographical details. I agree that the tests have some independent validity.

They reveal a man with at least average to high average range of intellectual ability (page 16) with employment that has not tended to match his abilities, with a tendency to present himself in a favourable light, and as someone who may feel somewhat special or superior in relation to other people (pages 9 and 10). Some narcissistic personality traits might be evident, according to the report. [ 27 ] These reported tendencies are borne out in Mr. Buss' self-reporting.

He reports that he “acted up in school because he was bored,” that he lost one job for not appearing busy when there was nothing to do, that he lost another data entry job for completing three to four months of work in a few weeks, and that he lost yet another job for being late for the second time in 14 months, and he expressed indignation to the interviewer at this.

His descriptions of his own life do reveal a tendency to present himself in the best light, and as somewhat superior to others, with a pattern of suggesting others are responsible for the conditions of his life, for example being fired either unfairly or because he was too good for a job. CIRCUMSTANCES OF THE OFFENDER [ 28 ] Mr. Buss is 38 years old with no criminal record. He has one offence in March 2010 of driving with his licence suspended or revoked in Pierce, Washington, for which he received a $250 fine, which he advised was originally a driving under the influence charge. [ 29 ] Mr.

Buss was raised in a military family and moved frequently as a child. He never knew his biological father and reported that he was conceived as a result of an affair. His stepfather, married to his mother when he was born, was physically and emotionally abusive to him. [ 30 ] He is estranged from his mother and sister, who reportedly both live in Washington State. He says he was in the military for two to three years, enlisting at age 18. He reported that he was injured in Iraq in 1995 when he was on a mission that he could not discuss because it was classified, and he did not re-enlist after.

In the 18 to 19 years since 1995, he reported a series of jobs lasting anywhere from a few days to a few years, and moving from Washington to California and back again. He lived with his mother for a month-and-a-half at one point in this 18 to 19-year period, he says. By 2010 he says he was homeless. He lived in his truck for about a year with no phone and no fixed address. [ 31 ] His letters of support come from two people he has only known for the last three to four years. One is from his wife, J.N. They met online in 2011.

He was on his way to marry her in Alberta when he was stopped at the border and arrested for this offence on September 14th, 2012. They married in Washington in October 2012. They have never lived together. They have visited in person five times. He visited Calgary once and she visited him in Bremerton four times. Most of their relationship has been conducted on Skype. J.N. has two children, R. aged nine, and C., aged four. J.N. advises this offence is “out of character” for him. She was not at the sentencing hearing. Counsel for Mr. Buss told me “she is aware of the allegations” at Mr.

Buss' sentencing hearing, when Mr. Buss was convicted and no longer facing allegations. My concern is that J.N. does not in fact know Mr. Buss very well yet and is not well-placed to assess what is and is not “out of character” for him. [ 32 ] Mr. Buss' other letter of support comes from Mike O'Shaughnessy, the program director for the Kitsap Rescue Mission, who describes himself as Mr. Buss' “brother in Christ.” He says he has known Will a little over three years, since 2011 when he “came to apply for our transitional housing program.” Mr.

Buss currently lives at the rescue mission and works as a house manager in return for room and board. Mr. O'Shaughnessy writes that: "In April of 2013, Will received Christ and was baptized." Mr. O'Shaughnessy is willing to provide Mr. Buss' position as house manager back to him on his release from custody. [ 33 ] Both letters of support are positive. Neither letter of support addresses the conviction specifically. In the Pre-sentence Report, both Mr. O'Shaughnessy and Pastor Eric Roberts, who married Mr. Buss to J.N., believed that the charge pertained to the fact that there were images of Mr.

Buss' wife, unclothed, on his computer. Defence counsel advised in submissions, as I have said, that Mr. O'Shaughnessy is now aware of the conviction. [ 34 ] Given that Mr. Buss continues to maintain his ignorance of the child pornography on his computer, and to deny that he committed the offence, I am concerned that the two people who wrote letters for him are both in faithful and ignorant support. It appears Mr. Buss will live in a cocoon of plausible deniability when he returns to the United States after serving his sentence for this offence. Mr. Buss was sobbing at points through counsel's submissions.

He addressed me and was tearful as to the impact incarceration was having on him and his family. He expressed no remorse regarding this offence. Absence of remorse is not an aggravating factor, it is the absence of a mitigating factor. IMPACT ON THE VICTIM [ 35 ] In the Supreme Court of Canada decision R. v. Sharpe , 2001 SCC 2 , [2001] 1 SCR 45 Chief Justice Beverly McLachlin wrote: The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code , is inherently harmful to children and to society.

This harm exists independently of any dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of all children. The harm of child pornography

is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children. It preys on pre-existing inequalities. [ 36 ] Without the broad base of persons who desire to possess this material, it would not exist, at least not on the scale that it presently does. Possession of child pornography contributes to the exploitation and degradation of children.

The internet has increased the quantity and availability of this vile material. The ability to download the abuse of children from around the world to a personal computer makes it all the more insidious, as does the ability to save the images or videos for repeat viewing, as occurred in this case. [ 37 ] At paragraph 88 of Sharpe , supra , the Chief Justice concluded that child pornography contributes to the production of cognitive distortions.

She said: Banalizing the awful and numbing the conscience, exposure to child pornography may make the abnormal seem normal and the immoral seem acceptable. [ 38 ] At paragraph 89 of the same decision, the majority in Sharpe , supra , recognized that child pornography has a fantasy-fuelling, offence-inciting effect. While there is no evidence in this case that Mr.

Buss has offended against a child directly, the emphasis on denunciatory and deterrent sentences for possession of child pornography reflect a concern that its possession can or may represent a first step in this process. [ 39 ] At paragraph 91, the majority in Sharpe , supra , accepted expert evidence that: Sexually explicit pornography involving children poses a danger to children because of its use by pedophiles in the seduction process. Again, there is no evidence that Mr.

Buss used his child pornography collection in this manner, but the sentences for possession of this material must reflect the danger it poses to all children. SENTENCING PRINCIPLES [ 40 ]

Section 718 of the Criminal Code sets out the fundamental purpose of sentencing, which is: . . . to contribute . . . to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community;and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 41 ] 718.01 of the Criminal Code is entitled "Objectives - Offences Against Children": When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. 718.1 A fundamental principle of sentencing is that: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Under 718.2, "Other Sentencing Principles": (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender . . . (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; . . .

(

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances . . . MANDATORY MINIMUM SENTENCES [42] There is a mandatory minimum sentence in this offence of six months. Mandatory minimum sentences are a “forcefulexpression of governmental policy in the area of criminal law” and a "clear statement of legislative intent.” Parliament, by its increase inthe mandatory minimum for this offence to six months in August of 2012, is expressing the collective community values of Canadiansociety about this crime. The range of available sentences for Mr.

Buss is six months’ jail to five years’ jail. The principles of sentenceas codified in ss. 718, 718.1 and 718.2, including the overriding principle of proportionality, continue to apply. The proportionate effect of a mandatory minimum sentence was explained by Madam Justice Neilson in R. v. B.C.M., 2008 BCCA,albeit in the context of certain sexual offences against children. Thus the least culpable offender in the least serious circumstances will now be sentenced to (the mandatory minimum)...

It would beinconsistent with proportionality if worse offenders in more serious circumstances... who might have received a more lenient sentence(before the increase in the mandatory minimum) continue to be sentenced to (the mandatory minimum).

The principle that similaroffenders should receive similar sentences requires acknowledgement that a minimum sentence has a proportionate inflationary effect onthe balance of the sentencing range. [43] When considering the range of possible sentences in the context of mandatory minimums and the principle of proportionality,Justice Arbour's comments for the Supreme Court of Canada in the R. v. Morrisey, 2000 SCC 39 at paragraph 76 provide someguidance: The search for the appropriate punishment is not an abstract exercise.

It is very much guided by the types of sentences that have beenimposed in the past on similarly situated offenders, and because of that, it changes over time, and may come to reflect the inflationaryconsequences of the proper application of mandatory minimum sentences for particular types of offences: R. v. Guha, 2012 BCCA 423,at paras. 33 - 35. [44] The defence submission for the minimum in this case fails to take into account the inflationary consequences of the properapplication of mandatory minimum sentences for this offence. It cannot be said that Mr.

Buss is the least culpable offender in the leastserious circumstances. [45] In R. v. R.L.W., 2013 BCCA 50, the court upheld an 18-month sentence for possession of child pornography. The offender hadadmitted that offence at the outset of the trial. Justice Harris for the B.C. Court of Appeal noted that the range of sentence identified bythe trial judge in that case was appropriate: four months to two years for possession of child pornography.

At paragraph 49, JusticeHarris wrote this about child pornography: Courts have over the years developed a greater appreciation of the harm caused to children by its manufacture, distribution andpossession. More recent cases place greater emphasis on denunciation and deterrence and sentences have tended to increase. [46] Crown provided a book of authorities and defence provided three cases, including the Summers, supra, case. The cases areuseful as an indication of how the principles of sentencing have been applied in particular cases and for comparison when some facts orcircumstances are similar.

But they reflect the diversity one would expect and each case is to be decided on its own circumstances, andin light of the mandatory minimum for this offence having increased over time. I read them all and will briefly summarize the ones Ifound most useful. [47] R. v. Stroempl, (ON SC), [1995] O.J. No. 2613 (O.C.A.) The accused was 67 years old, married for over 20years with two children, employed with the same government ministry for 34 years, pled guilty to possession of child pornographyrelating to 300 photographs as well as pornographic drawings and sketches.

The original sentence of 18 months’ custody was reduced onappeal to ten months. [48] R. v. Kwok, (ON SC), [2007] O.J. No. 457. The accused was 29 years old with no criminal record. He pledguilty to possession of child pornography, 2,000 images and 60 video clips. He lost his part-time job because of the charges and hadsupport in the community. He was sentenced to 12 months’ custody and three years’ probation. [49] R. v. Bowers, 2013 BCPC 383. The accused was 64 years of age at the time of sentencing. He pled guilty to possession of 253videos and 1,205 images.

The mandatory minimum was 45 days at the time, rather than the six months it is currently. Despite the guiltyplea, the accused initially claimed the material had been unintentionally downloaded. He minimized his conduct and lacked insight. The court observed that his specific deterrence remained to be fully addressed but that his conduct demanded a statement of denunciationin strong terms, and general deterrence had a significant place in his sentencing. He was sentenced to nine months’ imprisonment andtwo years’ probation. [50] R. v. Riffon, [2014] O.J.

No. 1114: The accused, 66, pled guilty to possession of child pornography, 7,677 images, and 26movies. Mr. Riffon had one prior conviction for impaired driving. The offence was committed in 2011. Mr. Riffon showed nounderstanding of the victimization of children through child pornography. He was sentenced to 15 months’ jail and 18 months’probation. It is interesting to note that in all these cases including R.L.W., supra, the offender had the mitigating factor of pleading

guilty. [ 51 ] The primary objectives in sentencing Mr. Buss are denunciation and deterrence. With respect to general deterrence, sentences that serve to deter people from possessing this material are required to reduce, in some measure at least, the exploitation and abuse of children around the world for this purpose. Sentences that denounce possession of child pornography affirm Canadian community values that this crime is abhorrent. Specific deterrence remains to be addressed. While Mr. Buss says he will take sex offender treatment, "anything to be with my family," it is clear Mr.

Buss lacks insight and takes no responsibility for this offence as he continues to deny its commission. His prospects for rehabilitation appear questionable, given his statements about the offence. Whether taking sex offender treatment in custody will assist to either specifically deter Mr. Buss in the future or help in his rehabilitation in the present I cannot say, but for the sake of society, and for the sake of Mr. Buss, an attempt must be made. [ 52 ] The mitigating factor in this case is Mr. Buss' lack of a criminal record. The aggravating factors are the nature of the child pornography possessed by Mr.

Buss, in particular the videos where the age of the victims and the acts depicted are at the extreme end of the categories described by the English Court of Appeal in the Oliver case; the quantity of child pornography possessed by Mr. Buss, 192 videos, 770 images.

The 770 images must be seen in the context of the over 200,000 images of girl children found on his computer, in which many were a series of photos showing a girl child progressively undressed; the organization of his collection, which was saved in permanent folders on his laptop with 189 videos stored in “thumbnail view.” This denotes that time and planning went into creating this abhorrent collection, and ease of access was a factor; the fact that he imported them into Canada; the period of time over which the collection of child pornography was created on his laptop. Mr.

Buss bought the computer in August 2010. The operating system was installed August 4th, 2010. The child pornography video "Vicky String Bikini" with its depiction of unlawful confinement, bondage and sexual assault of a naked prepubescent girl was one of the representative sample I viewed in court, and it was the first video downloaded to his laptop on August 6, 2010. NEUTRAL [ 53 ] The lack of a diagnosis of paedophilia I find a neutral factor, given that it happened in the context of Mr. Buss' denial of committing the offence in an interview process that lacked depth or rigour. The fact Mr.

Buss did not purchase the child pornography on his computer is also neutral, as is the fact that he neither made nor distributed child pornography, which are separate criminal offences not charged here. CONCLUSION [ 54 ] Having regard to the factors I must consider, the circumstances of this offence, the circumstances of this offender, the objectives and principles of sentencing, the aggravating and mitigating factors present, the submissions of counsel and the relevant authorities, I conclude that a total sentence of 15 months’ jail is appropriate.

Credit for time served 68 days at a rate of one-and-a-half days for each day in pre-sentence custody, which is 102 days or three months and 12 days.

That means remaining on the sentence, the effective sentence is 11 months and 18 days remaining. [ 55 ] With respect to the ancillary orders, under s. 487.051(1) I order that you provide such samples of bodily substance as are reasonably required for DNA analysis. [ 56 ] Under s. 490.012(1) I order that you comply with the Sex Offender Registration Act for a period of ten years. [ 57 ] I order forfeiture of the items seized by the police from you at the border on September 14th, 2012, and at the conclusion of a 90-day period from today's date if no appeal has been filed, destruction of those materials by the investigating agency. [ 58 ] Under s. 161 of the Criminal Code you are prohibited from attending a public park or public swimming area 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 or community centre. [ 59 ] You may attend if in the company of your stepsons C. and R. and if you are with an adult who is aware of your conviction. [ 60 ] You are prohibited from seeking, obtaining or continuing any employment whether or not the employment is remunerated, or becoming a volunteer in any capacity that involves being in a position of trust or authority towards persons under the age of 16 years. [ 61 ] You are not to access the internet or other digital networks.

This order will run for ten years. [ 62 ] I order Exhibits 14 and 15 sealed. [ 63 ] There is a victim fine surcharge in this case, and may I have submissions from counsel as time to pay. (PROCEEDINGS) [ 64 ] The date is such that I have discretion to waive the victim fine surcharge and I will waive it in this case. (REASONS FOR SENTENCE CONCLUDED)