R. v. Snow Date:, 2014 BCPC 27

Citation: R. v. Snow Date: 20140204 2014 BCPC 0027 File No: 231368-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DONALD WILLIAM SNOW EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. BAGNALL Counsel for the Crown: M. Peacock Counsel for the Defendant: E. Warren Place of Hearing: Vancouver , B.C. Date of Hearing: February 4, 2014 Date of Judgment: February 4, 2014

[ 1 ] THE COURT: On October 8, 2013, before another judge, Donald Snow entered a plea of guilty to one charge of possessing child pornography on September 16, 2013. Sentencing was adjourned until January 17, 2014. On that day, I heard submissions and reserved my decision respecting sentence until today. [ 2 ] The Crown proceeded by indictment. The minimum sentence available is six months. The maximum sentence is five years. The Crown submits that the appropriate range of sentence here is three-and-a-half to four years.

The defence submits that a sentence less than two years is appropriate. [ 3 ] The circumstances are as follows. Mr. Snow came to the attention of the police as a result of a motor vehicle accident in which he was involved. Because of concerns about his sobriety, which were apparently legitimate but ultimately found to be groundless, Mr. Snow's vehicle was searched. In his vehicle, Mr.

Snow had dozens of DVDs that contained child pornography. [ 4 ] The videos were all viewed by Detective Kate Caprarie, a member of the Vice Unit of the Vancouver Police Department who has significant training and experience as an Internet Child Exploitation investigator. Detective Caprarie testified about what she saw contained in the DVDs found in Mr. Snow's possession. She provided two reports describing the material. Those reports are Exhibit 2 in these proceedings. [ 5 ] Two examples of the material described by Detective Caprarie as "average" child pornography were played in court.

Detective Caprarie described the specifics of material found in the offender's possession which she characterized as "very severe." One of the videos she described as "the second worst" she had ever seen. [ 6 ] The videos played during sentencing proceedings depict repulsive assaults on children, one, a child of seven or eight years of age, the other, an infant approximate four to six months of age. [ 7 ] The physical and emotional damage done to the children who are used to create child pornography is impossible to overestimate. The acts depicted in all of the videos possessed by Mr.

Snow are nothing less than the torture of children. [ 8 ] Mr. Snow has a criminal record which is set out in the Pre-Sentence Report prepared by one Danny Kung. I will not recite the details of his record. It is serious and includes many convictions for what may be termed related offences. Of particular concern is that Mr. Snow was convicted of breaching a probation order on November the 2nd, 2011. He had spent 13-and-a-half months in custody before being sentenced and he received a sentence of a further 45 days' incarceration. He was also placed on probation for three years.

One condition of that order was that he not possess child pornography. That order bound his conduct when he committed the offence which concerns me today. [ 9 ] The Pre-Sentence Report and psychological/psychiatric reports respecting Mr. Snow, which are Exhibit 3 in these proceedings, support the conclusion that he is a pedophile, that he has no insight into his illegal sexual preferences, and that he is virtually untreatable. [ 10 ] Mr. Kung, the probation officer of whom I have spoken, noted that Mr. Snow twice completed the high-intensity sex offender program while in custody. However, Mr.

Kung wrote: . . . due to the subject's lack of insight, lack of understanding of his sexual problems, and lack of victim empathy, he did not benefit or gain anything from the programming. [ 11 ] Mr. Snow expressed to Mr. Kung his willingness to comply with court orders and, of course, that is a positive aspect of these matters. I have regard, though, to his criminal record in this respect. [ 12 ] Mr. Snow continues to say that he is not sexually attracted to children. This is nonsense. [ 13 ] Mr.

Snow attributes at least some of his difficulties to a brain trauma he experienced in 1981 as a result of a motor vehicle accident. I am satisfied on the basis of the chronology of his offending and his current abilities and activities while in the community that this is not a factor in his history of criminal offences. [ 14 ] Dr. Bartel examined Mr. Snow in May, 2011 in preparation for a sentencing on that breach of probation charge to which I have referred. I am reading from page 6 of the report prepared May the 27th, 2011: Based on collateral information and his own history, Mr.

Snow clearly meets the diagnostic criteria for pedophilia. Although he denies and has consistently denied sexual attraction towards children, his behaviours would suggest otherwise as he has a longstanding history of child-oriented sexual offences dating back to the 1970s and apparently continuing unabated. His pedophilia and sexual attraction would also appear to involve both male and female children. It is not likely that Mr. Snow is exclusively pedophilic, however, given his history of adult sexual relationships and assumed normal adult sexual attraction. On the issue of risk and prognosis, Mr.

Snow presents as high risk for future sexual offences.

Factors related to his high risk include: serious sexual deviance, i.e., longstanding sexual attraction to children; chronicity of sexual offending; problems with insight and self-awareness; extreme minimization or denial of sexual offending; impulsivity; poor self-management around risk; problems with treatment, i.e., failure to benefit from previous treatment and no appreciation of the need for further treatment or risk management; and problems related to supervision, i.e., a history of poor reliability in attending and lack of compliance with court-ordered conditions.

The most likely scenario for future sexual offending will involve impulsive sexual acts where he has a brief opportunity to either expose himself or sexually touch a child victim. [ 15 ] Mr. Snow was examined by Dr. Bartel again in relation to the charge before the court. His assessment now is the same as it

was in 2011. [ 16 ] Counsel for the Crown referred to a number of cases. I am going to file the index from the Crown's book of cases as Exhibit 4. [ 17 ] I have read and considered all of these cases. I do not consider it necessary to refer specifically to any of the cases. As a group, these cases set out the factors to be taken into account in cases involving child pornography and they set out the appropriate range of sentence. [ 18 ] On behalf of the accused, Mr. Warren submitted that some weeks before the police dealt with him, Mr.

Snow found the DVDs scattered in an alley as if they had been discarded and he put them in his vehicle in which he was living at the time. Mr. Warren told me that Mr. Snow looked at the disks, but that they did not interest him, that he intended to discard them, and then he just forgot to do so. I do not accept Mr. Snow's explanation. [ 19 ] There are many reasons to decline to accept this explanation in respect of the DVDs. First of all, Detective Caprarie testified that the material in question here is rare and not easily obtained. [ 20 ] Second, Mr.

Snow gave a different explanation for his possession of the disks when asked about them at the time by the police. He said then that his companion, an elderly woman who may accurately be described as his benefactor, gave the disks to him along with the equipment needed to view the disks. [ 21 ] Third, Mr. Snow has repeatedly over the years of his involvement with the justice system minimized his criminal behaviour, denied his culpability, and denied any sexual attraction to children. [ 22 ] So I do not accept Mr.

Snow's minimization of his possession of the child pornography on September 16, 2013. [ 23 ] I accept the characterization of the aggravating circumstances as submitted by the Crown: Mr. Snow's lack of insight and consequent high risk to reoffend, the difficulties there are in treating him, the quantity and depravity of the materials in question here, and his significant criminal record for related offences. [ 24 ] The mitigating factor is that he has recorded a plea of guilty at an early stage of proceedings with respect to this charge. [ 25 ] The overarching concern here is for protection of the public.

The sentence suggested by the defence would be wholly inadequate to address specific deterrence, denunciation, general deterrence, and the promotion of a sense of responsibility in the offender. I am satisfied that the range suggested by the Crown is the appropriate range and a sentence at the high end of that range is the appropriate sentence. [ 26 ] Mr. Snow, would you stand up, please, sir. [ 27 ] A four-year sentence is the appropriate sentence and it will be reduced by the amount of time that you have already served which is now five months.

You will, therefore, serve three years and seven months with respect to this charge. [ 28 ] There will be no surcharge. [ 29 ] I will make the order with respect to your DNA that has been requested. That is under s. 487.051(1)(b). [ 30 ] I will make the order requested under s. 161 for the period of your life. [ 31 ] I will make the order requested with respect to forfeiture and destruction of the material seized from you. [ 32 ] I will make the order requested under s. 490.012 that you comply with the Sex Offender Information Registration Act for the period of your life. [REASONS FOR SENTENCE CONCLUDED]