R. v. V. Date:, 2017 BCPC 347

Citation: R. v. V. Date: 20170519 2017 BCPC 347 File No: 218636-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. N.A.P.V. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Crown: K. Wendel Counsel for the Defendant: R. Dusanjh Place of Hearing: Surrey , B.C. Date of Hearing: May 3, 2017 Date of Judgment: May 19, 2017

[ 1 ] I heard sentencing submissions on May 3, 2017, and these are my reasons for the sentence that I am going to impose. It is rather lengthy, but I would like you to bear with me, because I just want to go through some of the law and some of the facts so that you have a clear picture of why I have come to the decision that I have. I know you are all anxious about this and it is difficult, but that is the way it is. I. INTRODUCTION [ 2 ] So by way of introduction, by Information number 218636-2, Mr. N.V. (“Mr.

V.”) was charged with, and he has pled guilty to, the following three charges: Count 1 : that he, between September 10, 2016 and September 14, 2016 inclusive, did make child pornography, contrary to s. 163.1(2) of the Criminal Code ; Count 2 : that he, between September 10, 2016 and September 14, 2016 inclusive, did transmit, make available, distribute or have in his possession for the purpose of transmission, making available or distribution, child pornography, contrary to s. 163.1(3) of the Criminal Code ; and Count 3 : that he, between September 10, 2016 and September 14, 2016 inclusive, did possess child pornography, contrary to s. 163.1(4) of the Criminal Code.

II. CIRCUMSTANCES OF THE OFFENCE [ 3 ] The parties filed an Agreed Statement of Facts. The salient facts are as follows: 1. At the time of the offences, namely in September of 2016, the victim, A.G. (“A.”), was [omitted for publication] years old. 2. A.'s mother, S.H. (“Ms. H.”) and Mr. V., were long-time childhood friends since they were about 11 years old; that is, they have been friends for about 14 years. 3. Mr. V. was godfather to A. and A.'s younger sister, both of whom referred to Mr. V. as "Uncle B." 4. Mr.

V. has known A. since he was about one year of age, and it was common for A. and his sister to sleep over at Mr. V.'s residence on average of about three times a month. 5. On one such sleepover weekend, with A. alone at Mr. V.'s residence, Mr. V., between 5:00 p.m. on Saturday, September 10, 2016, and 4:00 p.m. on Sunday, September 11, 2016, took 216 digital photographs consisting of the following; (a) 162 photographs of A. wearing only underwear; (b) 16 photographs of A.'s underwear; (

c) six photographs of A.'s underwear placed on top of Mr. V.'s penis; and (d) 32 photographs of A. in the process of changing his underwear, and in which A.'s penis is both visible and the focus of the image, each of which is child pornography. 6. During the same period I just mentioned, Mr. V. also recorded one 22-second digital video showing A. changing his underwear, in which A.'s penis is both visible and the focus of the video. Again, the video is child pornography. 7. Between September 10, 2016 and September 14, 2016, Mr.

V. uploaded 87 of the 162 digital photographs of A. wearing only underwear to a website based in Russia, which then became publicly available for viewing. The photographs posted were divided into albums with the names "A. ([omitted for publication] yr) in underwear," "A. ([omitted for publication] yr) getting ready for bed," and "A. changing preview." 8. Mr. V. used the user name "[omitted for publication]" and the email address [omitted for publication]@hotmail.com when posting the photographs on the Russian website. He posted the following message to the Russian website: "Godfather of 4 kids. 1 boy, 3 girls!

There [sic] so much fun to play with! Looking for likeminded people! Boy/girl! Have videos upon videos of them N and NN! Send to email if you want more! Will update with new albums!" The "N" and "NN" meaning "nude and not nude". 9. Between September 12, 2016 and September 14, 2016, an Australian police officer viewed the photographs of A. that Mr. V. uploaded to the Russian website. In his undercover capacity, he engaged in email communication with Mr. V. in which Mr. V. informed the undercover police officer that he had "underwear pics" and was looking to trade photographs.

When the undercover officer asked whether Mr. V. had "nudes," Mr. V. replied, "I do have nudes" and sent via email to the undercover officer one of the 32 photographs of A., in which A.'s penis is both visible and is the focus of the image, being child pornography. 10. Upon receiving the single image of child pornography, the undercover officer conducted internet queries of Mr. V.'s email address and determined that it was connected to a Facebook account in Mr. V.'s name, on which there were photographs of a young boy matching the single image of child pornography the undercover officer received from Mr. V. 11.

The Australian law enforcement authorities determined that the internet protocol address; that is, the IP address for the device associated to the emails Mr. V. used was in Canada, and they informed the Canadian law enforcement authorities, which led to Mr. V.'s arrest on September 15, 2016. 12. Upon Mr. V.'s arrest, the police seized various items from his person and his apartment, including Mr.

V.'s iPhone 4S cellular phone (Police Exhibit #B1, - "The iPhone"), a black iPod 3 (Police Exhibit #5 - "The iPod3"), a white iPod 4 (Police Exhibit #6 -"The iPod 4"), and a USB storage device ("Police Exhibit #9 - "The USB Stick"), all of which contained child pornography.

13. The contents of the iPhone, the device from which Mr. V. uploaded the 87 photographs of A. and shared the child pornography image of A. with the Australian undercover police officer include the following: (

a) the 216 photographs of A. that Mr. V. took between September 10 and 11, 2016 that I referred to earlier; (

b) the 22-second video of A. that Mr. V. took between September 10 and 11, 2016 that I also referred to earlier; (

c) one video of child pornography, six minutes and 12 seconds in length, of a male child, aged 10 to 12 years, laying naked on a bed while an adult male used his hand to masturbate the boy; and (d) 55 images of child pornography, descriptions of some of which are detailed in Appendix A to the Agreed Statement of Facts that the parties filed. I do not intend to repeat those descriptions, as the acts described are vile and repugnant, and a gross violation of the young children depicted in those images. 14.

The contents of the iPod 3 included the following: (a) 401 images of child pornography, which included depictions of penile/anal and penile/vaginal penetration by adults upon children, oral sex upon children by adults and upon adults by children, and sex acts conducted upon children who were bound. Male and female children, as young as infants up to pre-pubescence (10 to 12 years), were depicted. Descriptions of some of these images are detailed in Appendix B to the Agreed Statement of Facts the parties filed. Again, I do not intend to repeat those descriptions for the reasons I mentioned earlier. (

b) Two videos of child pornography. Descriptions of these videos are contained in Appendix C to the Agreed Statement of Facts the parties filed. Again, for the same reasons I said earlier, I will not repeat those descriptions. 15. The iPod 4 included 35 images of child pornography. 16. The USB Stick included 15 videos of child pornography, ranging in length from 40 seconds to 23 minutes, depicting penile/anal and penile/vaginal penetration by adults upon children, oral sex upon children by adults and upon adults by children and children performing sex acts upon other children.

Male and female children between the ages of four and 10 were depicted. 17. During the relevant period, Mr. V. was the sole resident of his apartment and he had possession of and control over The iPhone, The iPod 3, The iPod 4 and The USB Stick, and knew of the child pornography on those devices. III. CIRCUMSTANCES OF THE ACCUSED [ 4 ] I will provide a brief

summary of Mr. V.'s circumstances gleaned from the Pre-Sentence Report dated April 20, 2017, which I will refer to as the PSR, the report of Dr. Mel Stangeland, a Registered Psychologist with Forensic Psychiatric Services of B.C. Mental Health, dated April 18, 2017, which I will refer to as the Psych Report, and counsels' submissions. [ 5 ] Mr. V. was [omitted for publication] years of age at the time of these offences. He is of mixed ancestry, with a darker complexion. He was raised by his mother and does not know who his father is.

He was bullied by his peers throughout his life and had difficulty making friends. At a very young age, he attempted suicide and was diagnosed with Attention Deficit Hyperactive Disorder; that is, ADHD, for which he received medical attention. He had difficulty with schoolwork, but managed to graduate from high school, and thereafter also attend a criminology program at college, but dropped out through his second semester. He never took any vocational training. He has a spotty work history. He worked as a retail cashier, a cook, and a worker on a roofing job. He also worked in A.'s parents' cleaning company.

He has been on Employment Insurance from time to time. He has been using marihuana on a daily basis since he was about 14 or 15 years of age, although he has experimented with other illegal substances. [ 6 ] He was the only child, and was very close to his mother until about six years ago when his mother gave birth to his brother, D., who suffers from Downs Syndrome, requiring a lot of his mother's time for caring for D. [ 7 ] He resided with his mother until 2011 when she asked him to move out, as he was not working and he was unable to pay his bills. That is when he moved in with Ms. H. and her husband, Mr.

J.G. (“Mr. G.”). He lived with them until October 2013. From October 2013, he has been living in his apartment in Surrey.

He often felt lonely and depressed. [ 8 ] His sexual background and encounters include the following: between the ages of five and eight, he was involved in some mutual exposing and touching with other boys and girls; when he was about eight years of age, his cub camp counsellor touched him sexually and took pictures of him; as a teenager, he started viewing pornography on the internet, including adult heterosexual, lesbian, bondage and group sex content, hentai (Japanese anime cartoons with explicit sexual content), and content involving children; he was attracted to content involving nudity; during high school, he had a two-month homosexual relationship, but he describes himself as a bisexual and prefers being with a woman; and he has had a few failed relationships with women, but has been with his current girlfriend from about December of 2015 (for about a year and a half).

His only support is his mother and his current girlfriend who helps him financially, including paying his rent, as he has no source of income. IV. CROWN'S SUBMISSIONS [ 9 ] Ms. Kim Wendel, on behalf of the Crown, submits that the offences Mr. V. has committed are serious in nature.

She set out the range of sentencing prescribed by the Criminal Code for these offences, and they are, for Count 1, the making of child pornography, which is an indictable offence under s. 163.1(2) , a minimum of one year and a maximum of 14 years; Count 2, for the transmitting, making available, distributing or having in possession for the purpose of transmission, making available or distribution, child pornography, also an indictable offence, under s. 163.1(3) , a minimum of one year and a maximum of 14 years; and Count 3, for the possession of child pornography, a hybrid offence (in this case the Crown is proceeding by indictment) under s. 163.1(4) , a minimum of one year and a maximum of ten years.

[ 10 ] The Crown, however, seeks the following custodial sentence and does not take any position as to whether or not it should be served concurrently: on Count 1, 15 to 18 months; on Count 2, 15 to 18 months; and on Count 3, 12 months. [ 11 ] Mr. V. was arrested on September 14, 2016 and released on September 15, 2016, and then re-arrested on a bench warrant on February 11, 2017 (with a s. 524 finding having been made), and then released on February 14, 2017. He has already served six days in custody.

The Crown submits that he is entitled to a credit of nine days at the enhanced rate of 1.5. [ 12 ] The Crown also seeks a two-to-three-year probation order with certain conditions, which I will outline later in my reasons. [ 13 ] Finally, the Crown seeks a number of ancillary orders; namely, a no-contact order, a DNA order, a Sex Offender Information Registration Act (SOIRA) order, a prohibition order under s. 161(1) and a forfeiture order. [ 14 ] Ms.

Wendel reviewed the codified sentencing principles and pointed out that when it comes to offences against children, the objectives of denunciation and deterrence, both general and specific, are paramount and rehabilitation is only secondary. [ 15 ] In speaking to the range of sentences imposed by the courts for similar offences, she thoroughly reviewed the following cases: R. v. Lewis , 2013 ONCJ 579 , R. v. Fulton , 2005 ABCA 423 , R. v. M.R. , 2014 NLTD(G) 30, R. v. D.C. , 2009 NBCA 59 , R. v. J.S.M. , 2013 ABPC 296 , R. v. R.B. , 2014 ONCA 840 , R. v. Smart , 2015 BCPC 100 , R. v. Kidd , 2015 ONSC 2391 , R. v.

Ravneck , 2015 MBQB 122 , and R. v. Isaacs , [ 2015] N.J. No. 96 (P.C.) . She cautioned that many of these cases were decided prior to the latest legislative amendments in 2015, providing for the current sentencing range for the offences at issue. She pointed out that there is no perfect precedent, and that over the years there has been incremental sentencing and various ranges, depending on the particular circumstances. [ 16 ] In Mr.

V.'s case, she submits for consideration the following aggravating and mitigating factors, and other relevant considerations that are neither aggravating nor mitigating. [ 17 ] First, the aggravating factors are: 1. Breach of position of trust – Mr. V. was the godfather to A. and his sister. He was essentially a member of the G. and H. families. He had known Ms. H. ever since she was [omitted for publication] years of age. He essentially grew up as a member of the H. family. Ms. H. considered him her brother and her parents treated him as their own son. That is why he was known as Uncle B.

They implicitly trusted him and allowed him unsupervised overnight visits with A. and his sister, but he broke that trust by taking pornographic images of A. – not an unknown child, but a child he knew and had a close relationship with – and posting them on a website for the public to view. 2. Production and distribution – he produced 216 digital photographs and one digital video of A., and distributed by uploading 87 digital photographs to the Russian website, which became publicly available for viewing, and he also emailed one image to the undercover police officer. 3.

Possession – i n addition to the images of A., he possessed images of other children, as young as infants to 10 to 12 years of age, in bondage and in other compromising and violent sexual acts. 4. The size of the collection – while the size of his pornography collection cannot be said to be small, and in this day and age of increasing technology when collections are increasing, Mr. V.'s collection is not close to the outer parameters of the collections of other offenders; however, as the Psych Report indicates, he had a pattern of behaviour of collecting these materials over a lengthy period of time. 5.

Nature of the collection – the nature of his collection is, as Ms. Wendel put it, "worst of the worst," depicting children ranging from infants to 10 to 12 years of age, again in bondage and other compromising and violent sexual acts. [ 18 ] She then went through the mitigating factors: he has no criminal record, he entered an early guilty plea, and he expressed remorse, as noted on page 2 of the Psych Report, wherein Dr.

Stangeland states: It was evident that he had considerable remorse about his actions and he did not make any effort to rationalize or justify his behaviour. [ 19 ] The third category of factors that Ms. Wendel pointed out was other relevant considerations, but they are neither aggravating nor mitigating. They are: 1. The distribution involved only one image of A. to the undercover police officer, and fortunately it has not been released to the world on the internet. 2. The Russian website has been taken down and probably no one took a screen shot of A.'s images while they remained on the website. 3.

The conclusion of the forensic assessment (at page 18 of the Psych Report) is that Mr. V. poses a risk for re-offending; that is, child pornography offences. 4. Mr. V. is diagnosed with depression-related disorders, namely Dysthymia (which is Major Depressive Disorder) and Social Anxiety Disorder. As noted at page 14 of the Psych Report, he is also diagnosed with Pedophilic Disorder (it is described as non-exclusive type), and Cannabis Dependence (which apparently is in brief remission), and Hallucinogenic Abuse (noted as episodic). [ 20 ] In

summary, the Crown submits that Mr. V. is neither the least nor the most morally culpable offender, and his offences are also neither the least nor the most culpable offences. In these circumstances, Ms. Wendel says the mandatory minimum sentences alone are not appropriate and that something more is required due to the aggravating factors. [ 21 ] As I said earlier, the Crown seeks 15 to 18 months for each of the making and distributing offences, which are more than the minimum prescribed by the Code .

V. DEFENCE'S SUBMISSIONS [22] I now turn to the defence's submissions. [23] Mr. V.'s counsel, Mr. Dusanjh, submits that while Mr. V.'s conduct is reprehensible, it falls on the lower spectrum forsentencing purposes. He pointed out some of the distinguishing features in the cases Ms. Wendel reviewed. He also referred to thedecision of the Ontario Superior Court of Justice in R. v. Kwok, (ONSC), not for the range of sentence to be applied,but for the aggravating and mitigating factors generally at play in cases dealing with child pornography offences.

At paragraph 7 of theKwok decision, the court said: Not surprisingly, each case turns on its own particular facts. However, an analysis of the case law does reveal an emerging consensus onthe relevant factors to be taken into account: see, in particular, R. v. Parise, [2002] O.J. No. 2513 (Ont.C.J.); R. v. Mallett, [2005] O.J.No. 3868 (S.C.J.). Generally speaking, any of the following are considered to be aggravating factors: (

i) a criminal record for similar orrelated offences; (ii) whether there was also production or distribution of the pornography; (iii) the size of the pornography collection;(iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (

v) theextent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on hisimpulses in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to thesexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet. Generally recognizedmitigating factors include: (

i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to whichthe offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (

v) whether the offender is willingto submit to treatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent towhich the offender has already suffered for his crime (for example, in his family, career or community). [24] Mr. Dusanjh submits that in Mr. V.'s case, while there are some aggravating factors, including the breach of trust and thepossession of repugnant material which were contained on the devices the police seized from Mr.

V.'s apartment, the gravity of hisoffences are in the lower end of the spectrum compared to the circumstances in some of the cases the Crown reviewed. He says Mr. V.distributed only one image of A. changing, in response to a specific request from the undercover officer, and that Mr. V. did notphysically abuse A.. Furthermore, the size of his collection of child pornography was not large. [25] Mr. Dusanjh says there are many mitigating factors in Mr. V.'s case. He points to the following: 1. Mr.

V. is a first-time offender; 2. he has pled guilty to all the charges; 3. he is not minimizing what he has done, but has taken responsibility; 4. he is remorseful, as evident from his letter of apology to the victim and his family, which he read in court; 5. he is young – he is only 25 years of age; 6. he is law-abiding and of good character, as evident from the victim impact statements read in court – none of those persons saidanything negative about Mr.

V. other than their disappointment with his breach of trust; 7. he acknowledges that he needs help and is willing to submit to counselling and treatment; 8. due to the significant negative stigma attached to these types of offences, he has already suffered a lot – he has lost his job, his friendsand family, including the H. family; he will be listed on the National Sex Offender Registry; and his future employment prospects willbe limited. [26] Mr. Dusanjh submits that Mr.

V. has had a troubled background: he was bullied throughout his life and had difficulty makingfriends; the reason he was active online, communicating and trading images, was because he was looking for attention and was receivingpositive feedback, and he felt he was with a community of like-minded people who did not judge him, but treated him equally; he tried tocommit suicide at a very young age of about five or six; he was sexually abused when he was about eight years of age; he has substanceabuse issues; and he suffers from a long list of mental health problems. In essence, Mr.

Dusanjh says, he is crying out for help. [27] Therefore, on the whole, Mr. Dusanjh says the court should focus on Mr. V.'s rehabilitation, rather than imposing a lengthycustodial sentence. He says the objective of denunciation is already reflected in the minimum sentence that the Code prescribes. [28] For all of these reasons, Mr. Dusanjh submits that only the minimum sentence of one year for each of the three counts, to beserved concurrently, is appropriate in Mr. V.'s case.

He does not oppose a three-year probation order, with slight modifications to theterms proposed by the Crown. [29] I will now turn to the effect Mr. V.'s conduct has had on the victim, A., and his family members. VI. EFFECT ON THE VICTIM(S) [30] Mr. V.'s conduct has profoundly affected A.'s family and some of the friends of the H. family. The following persons presentedin court their victim impact statements: T.C., a close friend of Mr. V. and Ms. H., who described the three of them as a trio; J.H., A.'sgrandfather; T.H., A.'s grandmother; and Ms. H., A.'s mother.

The common sentiment echoed in each of their statements is the hurt,pain, and above all, the betrayal or breach of trust Mr. V. had committed on them. Other impacts included guilt, fear, anger, conflict,physical ailments, loss of sleep and loneliness. [31] Ms. T.C. said:

I might forgive you one day, but I could never hold the same trust, love and respect for you. I could never trust you around any of my babies. [ 32 ] Mr. J.H. said: [Mr. V.], you have turned our lives upside down . . . Because of you we all look at life in a totally different way now. We are forever changed . . . I had to seek professional help to manage the rage welling up inside me like a storm . . . My [omitted for publication]-year- old daughter is now terrified to take the bus or SkyTrain out of fear because of you. You have affected so many lives in so many ways with this betrayal. [ 33 ] Ms.

T.H., fighting her uncontrollable tears, said: What this has done to my family, my daughter and I will take time, maybe years to get over. We fight so much more because of this betrayal. I often ask myself, will we ever be the same again? . . . I could never love and trust people the way I did before. [ 34 ] Ms. H., also choking her tears, said: I have been so angry, upset and at a loss about all of this for months! I argue with my family, my friends, and especially myself. I thought it was just me, but what I didn't realize, it was affecting all of us in similar ways.

We have all been dealing with this pain in different ways. One betrayal of trust caused us so much pain and sadness and most of all fear! We struggle every day hoping this pain and anger will lessen and subside. I was a very outgoing person before . . . Since this, I distanced myself with my friends and family. I feel like I am in a brick room with one window and it's always raining. I am all alone. . . . I wonder what [A.] thinks every day; I think about how this betrayal will change his life and the way he looks at life and his family and friends.

I wonder if my family and I will ever get past this pain, this anger, this betrayal. Will we ever get back to our daily lives again and feel whole once more? [ 35 ] Of course, the most delicate of all of the persons affected by Mr. V.'s conduct is A., but due to his very young age, there is no direct statement of the impact on him that is before the court. Ms. H. said that he was sad, angry and confused as to why he was not allowed to see Uncle B. At this point, no one can say how, when or if Mr. V.'s conduct towards A. will manifest itself into any harm to A. [ 36 ] Mr.

Dusanjh submits that because of A.'s young age, he does not appreciate what happened to him. Ms. S.H’s statement indicates that A. still misses Mr. V. He says the impact on A. is minimal, if any; however, he argues that Mr. V.'s sexual encounter with his camp counsellor when he was about eight years of age had a significant negative impact on him. [ 37 ] While every child is unique and will respond in his or her own way to life's adversities, the caselaw is replete with examples of child victims tormented throughout their lives by their abuser's conduct. As the court noted in R. v.

Smart at paragraphs 38 and 39 : 38. Children are one of the most vulnerable groups in our society. Nearly all in society agree that child pornography is not only degrading and dehumanizing, but it is particularly disgusting because it involves victimizing innocent and vulnerable children. Even people who you might think have no morals at all often are disgusted by such victimizing of children. 39. Children in any position of trust are groomed for such victimization. Breach of that position of trust leads to significant emotional and mental violence, even if the child is never physically touched.

We often hear of children growing into adulthood and still struggling with such emotional and mental abuse. I cannot speculate what impact Mr. V.'s conduct has had, or will have, on A. as he grows up and understands what had happened to him. However, as the H. family members said in their victim impact statements, their lives have been devastated and changed as a result of Mr. V.'s conduct. VII. PURPOSE, OBJECTIVES AND PRINCIPLES OF SENTENCING APPLICABLE TO CHILD PORNOGRAPHY CASES [ 38 ]

Section 718 of the Criminal Code states that "[t]he fundamental purpose of sentencing is to contribute to respect for the law, and the maintenance of a just, peaceful and safe society by imposing just sanctions that include a number of objectives including the following: (

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 acknowledgement of the harm done to victims and to the community." [ 39 ]

Section 718.01 states that "[w]hen 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." [ 40 ]

Section 718.1 sets out the fundamental principle in sentencing. It states "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." [ 41 ]

Section 718.2 sets out other sentencing principles that a sentencing judge must take into account in imposing a sentence. It

states, in part, as follows: 718.2 A court that imposes a sentence shall take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant, aggravating or mitigating circumstances relating to theoffence or the offender, and without limiting the generality of the foregoing, . . . (ii.1) evidence that the offender, in committing the offence, abused a person under the age of 18 years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation . . . shall be deemed to be aggravating circumstances; (

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

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. [42] There can be no doubt that denunciation and deterrence are the paramount sentencing objectives in child pornography cases. The objectives of rehabilitation and acknowledgment of the harm done to the victims are also important in these types of cases.

Inaddition, as in all cases, the court must take into account the fundamental principle of proportionality set out in s. 718.1 and thesecondary principles set out in s. 718.2, including consideration of aggravating and mitigating circumstances and the principles of parity,totality and restraint. VIII. APPLICATION OF THE SENTENING PRINCIPLES TO MR. V.'S CIRCUMSTANCES Objectives of denunciation, deterrence and acknowledgment of harm to victims and principle of proportionality [43] As the courts have repeatedly said, child pornography is a predatory crime. The court, in R. v.

D.C., at paragraph 24, noted asfollows: In R. v.

Sharpe, 2001 SCC 2 , [2001] 1 S.C.R. 45, McLachlin, C.J.C. commented that "[p]arliament's main purpose in passingthe child pornography law was to prevent harm to children by banning the production, distribution and possession of child pornography,and by sending a message to Canadians 'that children need to be protected from the harmful effects of child sexual abuse and exploitationand are not appropriate sexual partners'". [44] With the explosion of internet activity and the increase in the incurrence of child pornography offences, Parliament has seen fitto steadily increase the minimum and maximum sentences for these types of offences. [45] The court, in R. v.

Lewis, said at paragraph 20 that: There is little doubt that the making available distribution of child pornography gives rise to a greater need for denunciation anddeterrence tha[n] does mere possession. Still the role possessors play in fuelling the market must be considered carefully. In R. v.Stroempl, (1995) (ON CA), 105 C.C.C. (3d) 187 at page 191, the Ontario Court of Appeal held: The possession of child pornography is a very important contributing element in the general problem of child pornography.

In a very realsense possessors such as the appellant instigate the production and distribution of child pornography - and the production of childpornography, in turn, frequently involves direct child abuse in one form or another. The trial judge was right in his observation that ifthe courts, through the imposition of appropriate sanctions, stifle the activities of the prospective purchasers and collectors of childpornography, this may go some distance to smother the market for child pornography altogether.

In turn, this would substantially reducethe motivation to produce child pornography in the first place. [46] In Mr. V.'s case, he has been viewing adult and child pornography ever since he was a teenager. He then progressed intocollecting and possessing, and thereafter into making and distributing. His foray into the child pornography world does not appear to becircumstantial, impulsive or sporadic. Sadly, there has been a gradual escalation from his youth to active involvement, at least since2011. Dr. Stangeland, in the Psych Report at page 7, notes that Mr.

V. started watching content with children in his teenage years andfound nudism natural and appealing, and his interest in nudity expanded as he got older up until the time he was charged with the currentoffences. [47] While the size of his pornography collection cannot be said to be large compared to some of the collections referenced in thecases the parties referred to, Mr. V. did amass his collection over a lengthy period of time. He frequently visited online chat rooms andcommunicated with like-minded people in an effort to trade images and increase his collection.

In posting A.'s images, he used A.'s realname and age without any regard for A.'s identity or privacy. [48] Based on the psychological testing conducted of Mr. V., Dr. Stangeland opines, at page 21 of the Psych Report, that Mr. V."represents a moderate risk for future involvement with child pornography, but a low to low moderate level of risk for sexual offencesinvolving direct contact with children." He notes at page 20 of the Psych Report that Mr.

V. appears to have a fairly chronic pattern ofinterest in nude and/or sexual images of children, and his offences represent an escalation in his pedophilic sexual behaviour.

[ 49 ] I find that Mr. V. does pose a danger to children. In my view, the gravity of his conduct is not at the lower end of the spectrum as Mr. Dusanjh submits. In fact, his conduct deeply affected the H. family, as I have detailed above. His possession of the images of the children found on his various devices also victimizes those children every time their images are viewed or used in any way, whether or not Mr. V. appreciates that affect. There are far-reaching implications to his behaviour than meets the eye. [ 50 ] While no one can deny that Mr.

V.'s conduct was reprehensible, I agree with the Crown's submission that Mr. V. is neither the least nor the most morally culpable offender, and his offences are neither the least nor the most culpable offences when compared to the other offenders and their circumstances in the cases the parties referred me to. [ 51 ] In Mr.

V.'s circumstances, I agree with the Crown that the mandatory minimum sentence alone of one year each for each of the three offences is not appropriate, and something more is required to satisfy the denunciation and deterrence objectives and the aggravating factors. [ 52 ] In coming to this conclusion, I have taken into account the principle of proportionality, which is central to the sentencing process. As noted in R. v.

Ravneck , at paragraphs 41 and 42 , this principle has a constitutional dimension in that s. 12 of the Charter of Rights and Freedoms forbids the imposition of a grossly disproportionate sentence that would outrage society's standards of decency; and, in the context of sentencing, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. Aggravating and mitigating factors [ 53 ] I generally agree with the aggravating and mitigating factors the parties outlined, and which I have already set out above.

I will make a few additional comments. [ 54 ] Regarding the breach of trust factor, although there was no grooming involved in Mr. V.'s case, unlike in some of the cases the Crown referred to, Mr. V. did abuse his position of trust as A.'s and his sister's godfather. Therefore, this factor would weigh heavily against his mitigating factors. On this point, I refer to R. v.

D.C. wherein the New Brunswick Court of Appeal, at paragraph 29, said: …this Court has, on more than one occasion, made it clear that in sexual crimes involving breach of trust between parents or adults and children, the primary focus for sentencing is denunciation and general deterrence. This weighs heavily against any mitigating factors. Although such cases usually involve sexual assaults rather than child pornography, the principles are nevertheless applicable in this case. [ 55 ] While I am sympathetic to Mr.

V.'s troubled childhood and the challenges he faced throughout his life, he did have a supportive network in his mother, his current girlfriend and the H. family and friends. However, he continued with his substance abuse and failed to continue to be gainfully employed and be a productive member of society. Objective of rehabilitation [ 56 ]

Section 718 (

d) of the Criminal Code sets out the objective of assisting in rehabilitating offenders. It can be seen to achieve the objective of protecting the public as it assists in preventing further offences. While rehabilitation is an important objective, I disagree with Mr. Dusanjh that it should be the primary focus of this court in Mr. V.'s case, contrary to the specific provision in s. 718.01, which states that when imposing a sentence for an offence involving the abuse of a child, the court shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [ 57 ] I agree that Mr.

V. may benefit from rehabilitation, but that is a secondary consideration, as also noted in R. v. J.S.M. , at paragraph 7 . In this case, involving as it does the abuse of persons under the age of 18, the Court is to give primary consideration to the objectives of denunciation and deterrence. The enunciation of this principle of sentencing in s. 718.01 of the Criminal Code is a reflection of Parliament's clear intent that the protection of children is a basic value of our society that the courts must vigorously defend.

This is not to say that rehabilitation of the offender has no place in sentencing for these type[s] of offences, but rehabilitation is to be a secondary consideration to these primary sentencing objectives. . . . [ 58 ] As you will see momentarily, I have considered and have provided for Mr. V.'s rehabilitation for his benefit. I have not lost sight of the fact that the H. family members expressed in their victim impact statements that they hoped that Mr. V. will receive the help he needs to address his issues. In the long run, rehabilitating Mr.

V. will contribute to the maintenance of a safe society, which is one of the fundamental purposes of sentencing. Principle of parity (s. 718.2(b)) [ 59 ] I now turn to the principle of parity, which I must also consider. Under s. 718.2(b), the principle of parity means that a sentence should be "similar to sentences imposed on similar offenders for similar offences committed in similar circumstances". This principle ensures fairness between similarly-situated cases. However, it does not override the individualized approach to sentencing. [ 60 ] I have already referred to the ten cases Ms.

Wendel reviewed to assist with determining the range of sentence to be applied to Mr. V.'s case. As she rightly cautioned, many of these cases were decided prior to 2015 when the range of sentencing was different. As is often the case, the facts of these cases as well vary in different degrees, except for the fact that they all, of course, deal with child pornography offences. I have reviewed all of them, but as Ms.

Wendel put it, "there is no perfect precedent." [ 61 ] A number of these cases had more egregious factors, such as parent/child breach of trust, grooming, planning, manipulation, vitiation of consent by fraudulent representation and procurement by financial inducement, and they attracted sentences of varying lengths. They do not lend any meaningful comparison due to the many variables. Other than the breach of trust, none of the other factors are applicable to Mr. V.'s situation.

[ 62 ] The R. v. Isaacs case was decided under the current sentencing regime. Mr. Isaacs was 53 years old, had a dated and unrelated criminal record, pled guilty to two charges: one for making and the other for possessing child pornography between December 30, 2013 and March 8, 2014. He had 1,017 images and 305 movies of child pornography on his computer, and he made 208 files available for download. The majority of the files involved young females being subjected to sexual abuse. He expressed remorse.

He was sentenced to 18 months for making available and 16 months for possession, to be served concurrently, followed by an 18-month probation. That is the only closest case that I could relate to Mr. V.'s situation. Principle of totality (s. 718.2(c)) [ 63 ] The principle of totality is another principle that I must also consider. Where consecutive sentences are imposed, under s. 718.2(c), the combined sentence should not be unduly long or harsh. The principle of totality comes into play where there is a sentence for multiple offences, as is the case here.

This principle requires that the court craft a global sentence of all offences that is not excessive. It was intended to avoid sentences that cumulatively are out of proportion to the gravity of the offences. Principle of restraint (s. 718.2(

d) and (e)) [ 64 ] Finally, I turn to the principle of restraint under ss. 718.2(

d) and (e). The principle of restraint requires that in all cases, but in particular in cases of first-time offenders, as Mr. V., that there be no loss of liberty, that prison be a sanction of last resort, and that the court seek the least intrusive sentence, and the least quantum which will achieve the overall purpose of being an appropriate and just sanction. [ 65 ] I now turn to the sentence to be imposed on Mr. V. IX. SENTENCE [ 66 ] Having reviewed and considered the circumstances of Mr.

V. and his offences, their effect on the victims, the Victim Impact Statements, the case authorities presented, the submissions of the Crown and the defence, and the sentencing objectives and principles, and applying the approach to sentencing for multiple offences endorsed by the courts, I find the following to be an appropriate and just sentence for Mr. V.: On Count 1, 16 months; On Count 2, 16 months; and On Count 3, 12 months, all to be served concurrently. I have kept in mind the various mitigating factors.

There are certainly aggravating factors, and that is why I have gone over the minimum sentence required by the Code , but the sentence that I am imposing will provide an opportunity for Mr. V. to take advantage of the services that will be available to him. [ 67 ] This period of incarceration will be followed by a three-year probation, with the conditions that I will outline below, but before that, I want to indicate that he will have credit for the nine days (including the enhanced credit) that he has already served for the pre- sentence time. Probation Order [ 68 ] I turn now to the probation order.

I make a three-year probation order, including conditions towards counselling and treatment to assist in Mr. V.'s rehabilitation. The probation conditions are as follows. [ 69 ] The mandatory conditions set out in s. 732.1(2) are as follows: 1. You shall keep the peace and be of good behaviour. 2. You shall appear before the court when required to do so by the court. 3. You shall 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.

I also impose the following additional conditions: 4. You shall report in person within two business days of your release from custody to the probation officer at unit 102, 14245 56th Avenue in Surrey, B.C., and thereafter as and when directed by your probation officer. 5. You shall reside where directed by your probation officer, and not change your residence without the prior written permission of your probation officer. 6. You shall have no contact, directly or indirectly, with any of Ms. H., Mr. G., A.G., J.G., T.H., J.H., T.C., N.C., K.L. or S.S. 7.

You shall not attend within 100 metres of any place known to you to be a place of residence, employment, education or day care of any of the persons that I just mentioned.

8. You shall not possess or maintain any account with an internet service provider or wireless telecommunication carrier that includes internet access. 9. You shall 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. 10. You shall not access the internet by any means unless approved in advance in writing by your probation officer. 11.

You shall not contact or communicate with, directly or indirectly, or be alone in the presence of any person you know to be, or who appears to be, under the age of 16 years, including your sibling, D.V., except as approved of in writing by your probation officer. [ 70 ] THE COURT: Is that condition, Mr. Dusanjh, satisfactory or does that need to be amended any further? [ 71 ] MR. DUSANJH: Well, I – originally I wanted that amended because I was hoping that it wouldn't be left to the discretion of the probation officer. [ 72 ] THE COURT: I think Ms.

Wendel, you said – this wording still leaves "the discretion of the probation officer," so if the probation officer approves of the meeting, then they can arrange wherever it is appropriate. [ 73 ] MS. WENDEL: Yes, Your Honour, we had made some submissions on this on the last date, and there was a secondary proposal that the Crown had suggested, which would be as approved in advance by a social worker or the Ministry of Children and Family Development. [ 74 ] THE COURT: Oh, I see. [ 75 ] MS.

WENDEL: So I had written – or just changed condition number 9 in a draft I prepared with bullet points as possible alternatives. Those were the wordings we had discussed last time. I can pass it up to Your Honour to see, but – [ 76 ] THE COURT: Okay. Yeah, if you could. [ 77 ] MS. WENDEL: – it could be except as approved of in advance in writing by your probation officer, or as approved of in advance in writing by a social worker, by the Ministry of Children and Family as – [ 78 ] THE COURT: Okay. [ 79 ] MS. WENDEL: – meaning that it could be either or both, but I'll leave it in your hands.

It was condition 9. [ 80 ] MR. DUSANJH: Your Honour, I've just been instructed by my client that the order as is is acceptable. They would like it to remain with the probation officer – [ 81 ] THE COURT: Okay. [ 82 ] MR. DUSANJH: – as opposed to a social worker. [ 83 ] THE COURT: Okay. All right, so it will just be except as approved of in advance in writing by your probation officer.

Is D.’s last name V. as well? [ 84 ] UNIDENTIFIED SPEAKER: V.- [omitted for publication]. [ 85 ] THE COURT: [omitted for publication]? [ 86 ] UNIDENTIFIED SPEAKER: V.- [omitted for publication]. [ 87 ] THE COURT: Yeah, okay. [spelling of name omitted for publication]? [ 88 ] UNIDENTIFIED SPEAKER: Yes. [ 89 ] THE COURT: Okay. So the next condition is that 12. You shall not attend at any park, public swimming area, community centre or library where persons under the age of 16 years are present or would reasonably be expected to be present, or any day care centre, school ground or playground. 13.

You shall not seek, obtain or continue any employment, whether or not the employment is remunerated, or become or continue to be a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years. 14. You shall attend, participate in and complete to the satisfaction of your probation officer any counselling and/or programming as directed by your probation officer, which may include the Sex Offender Program and the Sex Offender Maintenance Program. Ancillary Orders [ 90 ] The Crown seeks further ancillary orders, and Mr.

Dusanjh did not have any objection to that, so I am going to make the following ancillary orders: 1. Non-communication order under s. 743.21 – You are prohibited from communicating, directly or indirectly, with any of the

people that I mentioned earlier, which is Ms. H.., Mr. G., A.G., J.G., T.H., J.H., T.C., N.C., K.L. or S.S., while you are in custody. 2. DNA Order under s. 487.051(1) – The second order will be the DNA order under s. 487.051(1). This will be on a primary designated offence basis. I make an order in Form 5.03 authorizing the taking of a number of samples of bodily substances by any peace officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the National DNA Databank from Mr. V. 3.

Sex Offender Information Registration Act (SOIRA) order under ss. 490.012(1) and 490.013(2)(b) – And the next order is the Sex Offender Information Registration Act order under ss. 490.012(1) and 490.013(2)(b). [ 91 ] THE COURT: Ms. Wendel, you did mention (

b) as in "boy," right? [ 92 ] MS. WENDEL: Yes. [ 93 ] THE COURT: That refers to 20 years, when I looked at it, but I understand – [ 94 ] MS. WENDEL: Oh, sorry, Your Honour. [ 95 ] THE COURT: – you wanted it for life. [ 96 ] MS. WENDEL: Yes, Your Honour, if I could have one moment. Yes, it should be sub (c), Your Honour. [ 97 ] THE COURT: Sorry? It should be – [ 98 ] MS. WENDEL: 490.013(2)(

c) applies – actually, no, it's not. It's – [ 99 ] THE COURT: Okay, (

c) is life then, is that correct? [ 100 ] MS. WENDEL: That is not the right section. I'll come back to that, Your Honour, in a moment. [ 101 ] THE COURT: Okay, all right. 4. Forfeiture order under ss. 164.2 and 490.1 – So I will make the next order, a forfeiture order under ss. 164.2 and 490.1. I make an order for the forfeiture of all the items seized by the RCMP from Mr. V. in relation to the subject offences, and their subsequent destruction upon the expiry of the appeal period in this matter. [ 102 ] THE COURT: Now, are you wanting any destruction of the exhibits? [ 103 ] MS.

WENDEL: Yes, Your Honour, I filed a draft forfeiture order on the last date, but in light of the fact that we got a new date, I can forward that and pass it up to Your Honour. It was the exhibit referred to as well as the other exhibits in the possession of the police – [ 104 ] THE COURT: Okay. [ 105 ] MS. WENDEL: – which I understand was by consent. [ 106 ] MR. DUSANJH: Your Honour, the defence was opposed to the forfeiture of the X-box and the destruction of the X-box. I think that is in the list. [ 107 ] MS. WENDEL: It's not. [ 108 ] MR. DUSANJH: Because there was no – it's not?

Okay. [ 109 ] THE COURT: So I'll just read it, just for your – the police exhibit number – the black iPod, the Olympus camera, the Fuji film camera, black iPod, white iPod, LP laptop, USB stick, five – [ 110 ] MR. DUSANJH: Your Honour, this is acceptable. [ 111 ] THE COURT: All right. Okay. 5. Prohibition orders under ss. 161(1)(a), (a.1), (b), (

c) and (d) – And finally, the prohibition order is under s. 161(1), that for a period of ten years, I prohibit you from: (

a) 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 day care centre, school ground, playground or community centre; (a.1) And then under s. (a.1), you are prohibited from being within 100 metres of any place known to you to be a place of residence, employment, education or day care of any of the persons that I mentioned earlier; (

b) you are prohibited from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years; (

c) you are prohibited from having any contact, including communicating by any means, with a person who is under the age of 16 years, unless you do so under the supervision of a responsible adult person who is approved by your probation officer, and when you are

no longer on probation, by a responsible adult person who is aware of your criminal record; and (

d) you are prohibited from using the internet or other digital network unless approved of in advance in writing by your probation officer, and when you are no longer on probation, only for your employment-related purposes. [ 112 ] THE COURT: Now, I added those two. I assume counsel has no objection to that? [ 113 ] MS. WENDEL: No, Your Honour. [ 114 ] THE COURT: Okay. [ 115 ] MR. DUSANJH: No, Your Honour. [ 116 ] MS WENDEL: And Your Honour, with respect to the SOIRA order, it is 490.013(2.1) – [ 117 ] THE COURT: Okay. [ 118 ] MS.

WENDEL: – which provides when a person is being sentenced for more than one designated offence, they – the period of time is life. [ 119 ] THE COURT: All right. So I make an order in Form 52, requiring you to comply with the Sex Offender Information Registration Act for life. Directions to Court Registry [ 120 ] Finally, I will make a direction to the court registry. I direct the court registrar to attach a copy of the Psych Report and the PSR to the warrant of committal so that those documents are available to B.C. Corrections when they are conducting their assessment for Mr.

V. in terms of the resources and programming that he may require towards his rehabilitation. Victim Fine Surcharge [ 121 ] Finally, the victim fine surcharge? [ 122 ] MR. DUSANJH: Your Honour, the defence would ask that the court waive the victim fine surcharge on the basis that my client is essentially at this point almost – and is – he's not had employment in a long time, and he's – [ 123 ] THE COURT: Okay. [ 124 ] MR.

DUSANJH: Essentially he's penniless. [ 125 ] THE COURT: Okay, I cannot waive it, according to legislation, but what I will do is I will order the victim fine surcharge be payable immediately, and on the basis that Mr. V. is unable to pay and is in default, I impose a committal of one day, and I deem that one day served by him being present in court today. (REASONS FOR SENTENCE CONCLUDED)