R. v. Robertson Date:, 2015 BCPC 300

Citation: R. v. Robertson Date: 20150720 2015 BCPC 0300 File No: 204676-2C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CLYDE ROBERT ROBERTSON REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P. D. GULBRANSEN

Counsel for the Crown: K. Wendel Counsel for the Defendant: G. Bowen Place of Hearing: Surrey , B.C. Date of Hearing: July 20, 2015 Date of Judgment: July 20, 2015 [ 1 ] THE COURT : Thirty-nine-year-old Clyde Robertson has pleaded guilty to one count of possession of a large amount of child pornography.

The Crown seeks a sentence of nine to 12 months in prison while the defence seeks a somewhat lesser prison sentence. [ 2 ] The parties agree that the paramount factors on the sentence are deterrence and denunciation. [ 3 ] However, the defence points out that the defendant is not a paedophile, has no criminal record, has been gainfully employed most of his life despite very difficult personal circumstances. CIRCUMSTANCES OF THE OFFENCE [ 4 ] Briefly, the circumstances are as follows.

The RCMP received information that the defendant's activities on a social media service suggested that he was downloading or using child pornography. They investigated further, eventually obtaining a search warrant which was executed at his home on June 11th, 2014. On his laptop computer, on an external hard drive and another storage device, the police found that he had several hundred thousand pornographic images, as well as perhaps over a hundred videos.

Not all of these images were videos of child pornography but the police identified eight videos as child porn; otherwise, it is not possible for the police to examine every image but a significant portion of them were child pornography. They were in the order of the magnitude of several hundred thousand. Clearly, there were far more images than the defendant could ever actually look at. [ 5 ] The defendant was cooperative with the police immediately. He confessed.

He said that he would spend up to two to three hours a day cataloguing and categorizing his collection of child pornography. [ 6 ] The police examination of the material indicated that he had been collecting it since about 2005. [ 7 ] The Crown filed a few of the most disturbing examples of child porn that the police located, including a video of a man forcing intercourse on an infant, a man forcing intercourse on a prepubescent girl and images of a naked prepubescent girl who had been forcibly bound.

The Crown did not suggest that all of the other pictures were as bad as those but I have to say that it is undeniable that any pictures of adults engaging in sexual activities with children can only be described as being vile. CIRCUMSTANCES OF THE ACCUSED [ 8 ] The defendant filed a thorough and very useful report from a psychologist, Dr. Robert Lee. From that, the court learned the following. Throughout his adult life, Mr. Robertson has led a particularly lonely and isolated existence. He has never had an intimate relationship and really has never had any true friends.

This is despite the fact that he has attended university and worked for many years as a successful career and employment counsellor and teacher. [ 9 ] All this problem may stem from what happened to him as a child. His mother suffered and perhaps suffers from a significant mental illness. The defendant was born in Germany in 1966 when his mother was working at a U.S. Armed Forces base. The father has never been involved in the defendant's life. His mother moved away from Germany back to Canada when he was a few months old.

When he was about 18 months old, his mother, then suffering from sort of psychotic episode, attacked him with a knife, cutting him very badly. It can be described as, I think, an attempted murder. Fortunately, he was taken to the hospital and eventually recovered. His mother was, as a result, confined to a mental institution for a number of years.

Apparently when he was treated at the hospital, doctors found that he had other "healed" injuries consistent with him being abused by his mother on a fairly consistent basis before the stabbing incident. [ 10 ] Subsequently, after he recovered, he was placed with foster parents and then his maternal grandparents. Eventually, at age five, he was returned to live with his mother and her husband, who eventually adopted the defendant. [ 11 ] He and his sister, who was born some years later, remained in the family home until they reached adulthood.

It was not until he was 25 years old that the defendant's mother told him what had happened when he was about 18 months old and what the source was of the scars on his body. As well, it appears that although the family remained together, it was quite dysfunctional. Mr. Robertson's sister filed a letter which stated that that was the best description of the family dynamic. However, it does appear that Mr.

Robertson never suffered significant physical abuse at the hands of his mother again. [ 12 ] The psychological report confirms that the defendant has none of the characteristics that one usually finds among paedophiles. That is, he has not had any identifiable involvement with children, such as obtaining employment where he is working with children, volunteering to work with children as a coach or trusted adult; he has not befriended families with children with the intention of becoming involved in their lives; there is no evidence that he has become connected with children over the internet. [ 13 ] Dr.

Lee concludes in his report that Mr. Robertson is a very low risk to offend against children. Not surprisingly, the psychologist is unable to point to anything definite as something which caused Mr. Robertson to take this unfortunate turn in his life. That is, the turn to becoming involved with possession and use of child pornography. [ 14 ] However, Dr. Lee comes to a number of important conclusions. First, Mr. Robertson was sexually aroused by viewing and

collecting child pornography; second, spending hours each day classifying and organizing his collection provided some relief from the profound isolation and feelings of depression that he has experienced most of his adult life; third, viewing child pornography was a reaction to his complete lack of success in forming relationships with adult women. As well, there may be some connection between the terrible events of his mother's attack on him and the use of child pornography in that he may be, as Dr.

Lee puts it, psychologically stuck in some ways at that development level and needs to have psychological treatment to break that connection. I have classified these conclusions as an intelligent speculation, as opposed to definite findings, because this is such a complex issue of relating terrible childhood trauma to adult activities many years later. [ 15 ] Dr. Lee believes that Mr. Robertson is unlikely to view child pornography again, if he remains involved in psychological treatment.

This is quite essential to prevent him from falling back into the pattern of isolated and secret viewing of child pornography as a method of coping with his profoundly isolated and his unsatisfying life. ANALYSIS [ 16 ] This sentencing presents two issues which really cannot be reconciled in a sentencing context. First, all the cases on sentencing on child porn stress how important it is to denounce and deter the distribution and possession of child pornography. Such material is disseminated throughout the internet millions of times. The degradation and abuse of children in that material is unspeakable.

While prison sentences for those who use child pornography will not deter those who make and distribute this material, prison sentences will hopefully do something to deter those who are its end users. [ 17 ] On the other hand, Mr. Robertson is the victim of particularly horrendous child abuse himself. It is likely that he suffered crippling psychological consequences from his mother's attack on him when he was 18 months old, which probably never will be ameliorated. His use and collection of child pornography is somehow likely connected in some complex but ultimately unidentifiable way to this child abuse.

One, therefore, cannot help but be sympathetic to Mr. Robertson's difficult existential circumstances. [ 18 ] Despite his intelligence and otherwise good character, he is and has been completely isolated from the most important part of human existence - some intimate connection with other human begins. Nonetheless, Mr. Robertson is an intelligent person, well- educated and by all appearances a practising Christian. Despite that, for about ten years, he engaged in the collection and viewing of some of the most vile material available on the internet. He knew what he was doing and he knew it was wrong.

He also must have known that the sources of the pornography, that is, the children depicted, were suffering abuse probably as bad as the abuse he suffered. Thus, despite Mr.

Robertson's very difficult circumstances, his moral culpability in this case is quite high. [ 19 ] It seems to me that the Crown has taken much of his personal circumstances into account by deciding to proceed summarily and by taking the position that the prison sentence that I should impose should be at the lower end of the range for the sentence imposed for this kind of offence, particularly given the enormous amount of child pornography in his possession, as well as the relatively low risk that he presents to actually offend against children. CONCLUSION [ 20 ] Mr. Robertson, I'll ask you to stand up, please.

I, therefore, sentence Mr. Robertson to nine months' imprisonment. In the circumstances, this is the lowest term of imprisonment that I can impose in these circumstances. Dr. Lee makes the remark that Mr. Robertson would be a prime candidate for a sentence in the community. I agree. Parliament has long ago removed that option from the courts. [ 21 ] I place Mr. Robertson on probation to follow the prison term and it will be a probation term of two years.

I will give the mandatory conditions and I will ask counsel to address me on some of the other terms I have to impose. [ 22 ] You have to keep the peace and be of good behaviour, appear before the court when required to do so by the court, advise the court or the probation office of any change of name, change of address or change of occupation. [ 23 ] You must report within two working days of your release from prison to a probation officer; thereafter, as directed by the probation officer. [ 24 ] You must take such counselling as directed by your probation officer, which may include psychological counselling and which may include psychological counselling with Dr.

Lee or other qualified psychologist. [ 25 ] Now, at this point, Ms. Wendel, I am in your hands as to what other terms you want. I know we have got the 161 order, which I will make so we do not have to put that in the probation order. What other terms are you seeking? [ 26 ] MS. WENDEL: I have prepared a document, Your Honour, with the conditions on it. I'm not sure if you still have a copy but I can pass up my copy. I've just made a few check marks on it but it doesn't have any other notes. [ 27 ] THE COURT: Well, just read out what you want. [ 28 ] MS.

WENDEL: You have the address -- provide your address provision. [ 29 ] THE COURT: No, no, that is a mandatory term; he must advise the court of any change of name, change or address or change of occupation so you do not need that again. [ 30 ] MS. WENDEL: Do not maintain or possess any account with an internet service provider or wireless telecommunication carrier that includes internet access. [ 31 ] THE COURT: Okay. That terms is -- that -- that --

[ 32 ] MS. WENDEL: Do not own, possess or use a computer system, as that term is defined in s. 342.1(2) of the Criminal Code , or any cellular telephone communication device, data storage device, game console or any device capable of accessing the internet except with the written permission of your probation officer. [ 33 ] THE COURT: Okay. [ 34 ] MS. WENDEL: Do not access the internet by any means unless approved in advance, in writing, by your probation officer. [ 35 ] THE COURT: All right. [ 36 ] MS.

WENDEL: Allow any peace officer or probation officer to examine any computer system, cellular telephone, communication device, data storage device, game console or any device capable of accessing the internet to determine compliance with this order. [ 37 ] THE COURT: All right. That term -- we can give the -- when we are finished going through it, you can just give your list to the clerk. What else? [ 38 ] MS. WENDEL: Yes, Your Honour. Have no contact, directly or indirectly, with any child under the age of 16 years, unless in the immediate presence of another adult person. [ 39 ] THE COURT: Yeah. [ 40 ] MS.

WENDEL: Do not seek or obtain employment or volunteer work that involves being in a position of trust or authority towards persons under the age of 16 years. [ 41 ] THE COURT: All right. [ 42 ] MS. WENDEL: The last one I had was the equivalent of the 161 orders. [ 43 ] THE COURT: I will put it in there. I do not think -- we do not need the 161 order. What else? What is the last term? [ 44 ] MS. WENDEL: Do not attend within 100 metres of any park, public swimming area, daycare centre, school ground -- [ 45 ] THE COURT: Yeah. [ 46 ] MS.

WENDEL: -- playground, community centre or library where persons under the age of 16 years are present or would reasonably be expected to be present. [ 47 ] THE COURT: Those terms are all acceptable. I am not going to make a 161 order because you have included all the terms there and provided some flexibility with the participation of the probation officer which is what I want. [ 48 ] MS. WENDEL: Then there's the SOIRA order, Your Honour. [ 49 ] THE COURT: Yeah, I have to order that Mr.

Robertson be bound by the Sex Offenders Information Registration Act for ten years. [ 50 ] I direct that DNA samples may be taken pursuant to s. 487.051 of the Criminal Code . I guess that is a secondary designated offence when you go summarily, is it? [ 51 ] MS. WENDEL: I believe it's still primary. [ 52 ] THE COURT: Primary. It is a primary designated offence, I think. All right. [ 53 ] I also have to order that you pay a $100 victim fine surcharge. Mr.

Robertson appears to have some financial resources so he should be able to pay it within the two-month time allowed so he has two months to pay. [ 54 ] Anything else? [ 55 ] MS. WENDEL: That's everything, Your Honour. [ 56 ] MR. BOWEN: Your Honour, it is going to be a little difficult for him to pay that whilst he's in jail. [ 57 ] THE COURT: No, I go through this all the time. I think most of us in the justice system do not really appreciate the surcharge legislation but what happens is, if he does not pay it, I mean I am assuming he has got some access to funds, Mr. Bowen.

But if he does not pay it, the authorities have to go through a whole process in which somebody looks at the situation, decides that it would not be appropriate, for example, to enter a judgment in Small Claims Court or -- and then to determine somehow that he has wilfully failed to pay it and then to determine that he will have to serve some time instead of -- which would be about a day instead of dealing with him. I think in these circumstances what will happen is nothing. [ 58 ] MR.

BOWEN: Yes. [ 59 ] THE COURT: And at the end, he may be expected to pay if he becomes employed when he gets out of jail and he should pay. I would normally give a lot more time but I think it does not make much sense in the circumstance, okay? [ 60 ] MR. BOWEN: Thank you.

[ 61 ] MS. WENDEL: Your Honour had signed the forfeiture order last day. Madam Registrar, is it signed in the file? [ 62 ] THE CLERK: I don't think it is. [ 63 ] MS. WENDEL: It should be there. Is it possible to take that to take a photocopy and bring it back to you? [ 64 ] THE CLERK: Yes. [ 65 ] MS. WENDEL: Because I'll come back to get the document I gave you. [ 66 ] THE COURT: Okay. [ 67 ] MS. WENDEL: Okay. I'll bring that back right away. Thank you. [ 68 ] THE COURT: I also order that the exhibit that was filed containing the images of child pornography be sealed. [ 69 ] MS.

WENDEL: That was in this order. [ 70 ] THE COURT: Yes, I want to make sure that is done. (REASONS FOR SENTENCE CONCLUDED)