R. V. D.J.L. Date:, 2016 BCPC 371

Citation: R. V. D.J.L. Date: 20161020 2016 BCPC 371 File No: 37484-2-C Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D.J.L. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: M. Giri Counsel for the Defendant: S. Sheets Place of Hearing: Duncan , B.C. Date of Hearing: October 20, 2016 Date of Judgment: October 20, 2016

[1] THE COURT: Mr. L, you are here today, pleading guilty to the charge that from the 22nd day of March 2012, through to the22nd day of May 2014, you had in your possession child pornography, contrary to s. 163.1(4) of the Criminal Code. [2]

Section 163.1(4) of the Criminal Code now carries with it a one year mandatory sentence. This is an enhancement of a prioramendment in which the mandatory minimum was six months, and before that when it was 45 days. It follows from the mandatoryminimums that nothing short of a custodial sentence can be imposed as a sentence for this offence.

The fact Parliament has revisited theminimum sentencing and raised it from 45 days to one year reflects what is, frankly, obvious and that is that this is an offence that isserious and it has to be treated as such. [3] In sentencing for the offence of possession of child pornography, the court must also impose various ancillary orders. Section163.1(4) requires the imposition of an order under the Sex Offender Information Registry.

This being your second conviction for thisoffence, you will be sentenced to a lifetime order under SOIRA. [4] This is also a primary designated DNA offence and a DNA order will follow at the conclusion of this sentencing, as will themandatory s. 109 firearms order. [5] This offence also confers upon the court a discretion, which I will exercise in this case, to order that the accused not be inplaces where persons under age 16 may be present.

Finally this offence also carries with it a mandatory victim impact surcharge in theamount of $200, which would be payable within 60 days of the date of your release from custody. [6] I am going to move on now to discuss the circumstances of this particular case for the purposes of the sentencing record. [7] I want to begin by noting that sentencing is a very individual exercise which has to be fine-tuned to the circumstances of theoffence and the nature of the offender that is before the court.

Sentencing requires courts to parse out certain facts in a case with a viewto arriving at a just disposition. [8] In cases involving the offence of possession of child pornography, sentencing courts are reminded that certain factors can beconsidered to be aggravating and certain other factors can be considered to be mitigating. These are the factors that I will highlight in myreasons for sentencing in your case, Mr. L. [9] In R. v. Kwok, (ON SC), [2007] O.J. No. 457, Justice Molloy identified certain factors that speak toaggravating factors on sentencing for purposes of the possession of child pornography.

These include the size of the collection; thenature of the collection, including the age of the children involved in the relative depravity and violence depicted; the extent to which theoffender is seen as a danger to children, including whether the offender is a diagnosed pedophile; and, whether the offender haspurchased child pornography rather than downloading it for free from the internet.

These factors are not exclusive and they are notexhaustive, but they do provide guidance. [10] In this instance, following a search of your home after you were clearly identified as the registered owner of a computerinvolved in the downloading of pornographic images of children, police seized a laptop and a hard drive. Following a statement that youmade to police, there was no doubt that these electronics belonged to you, and that you knew that they contained these images. [11] Police found 1,000 images on your laptop, as well as 13 videos, all of which contained child pornography.

Police found somephotographic images in a file folder, meaning you not only viewed these images online, but you saved them to a folder where they couldbe re-viewed.

The Crown also advised that police found a "peer-to-peer" file-sharing program which had been installed and was inregular use on your computer. [12] On your external hard drive, which police described as a repository for storing child pornography and videos, police found20,585 images, as well as 4,057 videos, all of which contained child pornography. [13] At page 96 of the police report, which was entered as Exhibit 2 in this sentencing, police described the materials found on ajump list, that being files containing data most recently reviewed.

A list of the titles of those files was also included in the report. [14] The evidence on this sentencing indicates that most recently at least, you were accessing child pornography from March 22,2012, to May 22, 2014, when police executed the search warrant at your residence. Your collection is substantial by any comparison. [15] The nature of the materials is described by police in their report. It is possible to get a sense of the materials also by the titlesunder which the images were stored and then downloaded. [16] Mr.

L, you do not disagree with much of the report, including that it contains many images of prepubescent boys and girls, butmostly of young girls between the ages of nine to 12. You deny downloading child pornography with the intention of capturing theimages of two infants under age six, who are clearly, as the description indicates, the subjects of horrific and frankly unspeakablesexually assaultive behaviour. [17] Still, the images you admit to knowingly and intentionally downloading include images of young children, some under 10 yearsof age, being raped and/or viciously sexually assaulted.

The titles of the images you downloaded, which number in the many, manythousands, are themselves disturbing to read. The titles describe images of great cruelty and inhumanity. They evidence such casualindifference to the suffering of these innocent and helpless children, all for the incomprehensible pleasure of a few very disturbedindividuals like yourself. [18] The children who are shown as being subject to this horror are young. They are also anonymous and one shudders to think oftheir fate.

[ 19 ] You, Mr. L, are 54 years of age. From the comfort of your home, you have pleasured yourself at the cost of the suffering of these anonymous victims whom you say you did not see as being real until quite recently. That may be something you tell yourself from time to time to ease what might even be guilt or a conscience on your part, Mr. L, but I do not believe you. [ 20 ] This is your second conviction for possession of child pornography. You have been convicted also of sexual assault contrary to s. 271 of the Criminal Code .

You have received treatment as part of what is now, in retrospect, a manifestly ineffective disposition of a conditional sentence order. [ 21 ] You know, and knew, what you were doing. You had to know the effect these assaults would have on these children, and yet you persisted. [ 22 ] Mr. Sheets emphasizes that you do not condone sexual violence. As I understand the submissions, it is that none of the images show children being physically assaulted in the sense that they are not seen being punched or slapped. [ 23 ] Firstly, Mr. L, these images are images of violence towards children.

They literally include, as the police report indicates, images of children being bound and raped. But beyond that, what you downloaded and viewed really were crimes of violence against children and, as I have said, some as young as six months of age. I am simply unable to accept the distinction that you try to make in this regard. [ 24 ] Mr. L, you are a diagnosed pedophile. You know this, and your knowledge has led you to undertake some counselling with Mr. Alistair Findlay. I do not know much about Mr. Findlay but that he is a registered clinical counsellor with recognized expertise in addiction counselling.

You have an addiction to child pornography, and I assume it is for that reason, among others, that you chose to take counselling with Mr. Findlay. [ 25 ] What I glean from Mr. Findlay's report is that you sought therapy in order to gain some understanding as to why you sought out child pornography. Mr. Findlay seems to think you have this insight, and you advised Dr. Dugbartey that you also have this insight. [ 26 ] Whether or not you do, and I note parenthetically that Dr. Dugbartey was not convinced of that, I accept Dr.

Dugbartey's opinion that simply understanding why you committed this offence does not therefore mollify or erase your risk. [ 27 ] Dr. Dugbartey gave the opinion that you are at high risk for criminal reoffending in the long term, and this is based on a number of factors.

Those include current problems with intimate relations; prior sexual offending; attitudes which condone sexual violence, which as I have noted I find inherent in the downloading of these images; a prior conviction for possession of child pornography; and, a long history of deviant pedophilic interests which have largely been treatment-resistant. [ 28 ] Knowing why you do what you do clearly does not address any of those factors. Still it is, I accept, a step in the right direction, as your counsel submits. Whatever insight you have and whatever remorse you may feel, Mr.

L, you are clearly labouring under a long- term unrelenting addiction to child pornography. It will take much more than a few dozen sessions with an addiction counsellor to address that issue. [ 29 ] With respect to sentencing, there is no dispute, as I will discuss in more detail shortly, about the sentencing objectives that apply in this case. They are specifically and primarily deterrence and denunciation. There is no question that this offence will attract a custodial sentence.

The issue in this sentencing hearing is the length of sentence. [ 30 ] The Crown seeks a sentence of two years, plus a three year probationary order, carrying with it strict limits on your ability to access computers and other electronic devices, and of course continue with counselling, including sex offender treatment. [ 31 ] Mr. Sheets, on your behalf, submits that a sentence of approximately nine months would be in the range, and would be appropriate. Mr.

Sheets does not take issue with the probationary period or the order, subject to some tinkering with the Crown's proposed language on your possession of electronic media. [ 32 ] In this sentence, as in every sentence, I take into account the purposes and principles of sentencing, and those are set out in

section 718 and 718.2 of the Criminal Code . The purposes of sentencing essentially, along with other crime prevention initiatives, is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society, and that is accomplished by imposing just sanctions that have a number of objectives. Those objectives are tailored to the nature of the offence and the nature of the offender. There are a number of objectives which are set out in the Criminal Code .

Not all apply in every case. [ 33 ] In this case, there is no dispute, as I have noted, that the sentencing objectives that are paramount are the objectives of denunciation and specific and general deterrence.

These objectives indicate firstly that there must be a custodial sentence, and secondly it must be of such a length as to deter yourself and others from engaging in this conduct, and that is really a reflection of the harms associated with the offence of accessing child pornography. [ 34 ] These harms have been referred to in many cases before me in this sentencing, and I do not propose to review all of them. I will, for the purpose of this sentence, make mention of a few. [ 35 ] Among other things, there is a statement given by the Supreme Court of Canada, and it can be found in many cases, including R. v.

Clayton , 2012 ABCA 384 , where the court notes that: The links between possession of child pornography and harm to children are arguably more attenuated than are the links between the manufacture and distribution of child pornography and harm to children. However, possession of child pornography contributes to the market for child pornography, a market which in turn drives production involving the exploitation of children. Possession of child pornography may facilitate the seduction and grooming of victims and may break down inhibitions and incite potential offences.

[ 36 ] In R. v. Hopps , 2010 BCSC 1875 , there is also a lengthy discussion of the harms of child pornography and the prevalence of child pornography, particularly as a function of the internet, and that applies in this particular case. [ 37 ] Some of the paragraphs I find most relevant are set out at 111 and 112, and they say as follows. Firstly: The possession of child pornography is not a victimless crime. It is an inherently serious, harmful and insidious offence, regardless of whether it involves any distribution.

Those who possess child pornography encourage the production of such material by providing a market for it even without the exchange of monies. Thus, they directly contribute to the harm caused to children in its production. The internet has exponentially facilitated access to child pornography to a degree which is frightening. ... The Alberta Court of Appeal described the use of the internet for accessing child pornography as constituting a 'profound and present danger to children around the world'. [They further note that]: ...

The sexual exploitation of children through child pornography and the use of the internet to distribute it constitute a profound and present danger. ... Canada, as part of the world community, must do its

part in ensuring that appropriate sentences are imposed on those who choose to exploit children in this fashion. This offence is difficult to prosecute given the relative degree of anonymity offered through the use of the internet, and the ease with which images of sexually exploited children can be transmitted through this instant, worldwide network adds to the gravity of the offence and the degree of victimization of the children. It takes only a click of a mouse for one child pornographer to spread graphic images of child sexual abuse internationally in seconds.

Thus, the primary sentencing principles that apply in sentencing those convicted of distributing child pornography must be deterrence and denunciation. [ 38 ] In addition to the principles of deterrence and denunciation, this sentence must ensure that you are given an opportunity for rehabilitation. This is important because you are someone who has a chronic addiction to child pornography, yet you will eventually be released back into the community. [ 39 ] Dr.

Dugbartey has given the opinion, which I accept, that as a person with a long history of deviant pedophilic sexual interests and arousal patterns, you present with high risk for criminal sexual reoffending in the long term. Treatment in your case, Mr. L, is critical and it is critical, in my view, that you get as much treatment as possible. [ 40 ] In addition to taking into account the sentencing objectives that are appropriate in this case, I also have to take into account in determining the length of sentence mitigating and aggravating factors.

I accept that a mitigating factor in this case is your guilty plea. [ 41 ] I will accept also that your attending counselling, however useful, is a step in the right direction and is a mitigating factor. [ 42 ] Still the fact that you have only recently realized that the children you are watching literally being violated before your eyes are real indicates that you have got a very, very long way to go in counselling. [ 43 ] The aggravating circumstances in this sentence hearing are many.

They include, as I have said, the nature of the material, the fact that it included content which was violent and assaultive, and of course the length of time in which the viewing took place and the fact that there is an element of chronicity in this particular offending behaviour. [ 44 ] Another significant aggravating factor includes that this is your second conviction for possession of child pornography.

The aggravating factors outweigh the mitigating factors in this case by a significant margin. [ 45 ] In addition to these considerations, the Criminal Code also provides that sentencing judges should impose similar sentences for similar offenders in similar circumstances. Pursuant to that, I have been provided with a number of cases in which accused persons have been sentenced for possession of child pornography. Those cases set out a sort of sentencing range that extends anywhere from 45 days to four years.

The more approximate sentencing range is six months to two years. [ 46 ] Of the cases relied on by the Crown, the court in R. v. Bock , 2010 ONSC 3117 , held at paragraph 54 that the range of sentence for simple possession of child pornography for a first-time offender, with a significant number of pictures of videos in the collection, was between six to 18 months. [ 47 ] In Bock , Justice Henderson sentenced the accused, a first-time offender, to 12 months for possession of child pornography. [ 48 ] This was similar to the sentence in R. v.

Allen , 2013 BCPC 69 , in which Judge Chen sentenced the accused to a period of 12 months for possession in an instance where the accused had no record but a substantial collection. [ 49 ] In R. v. Stupnikoff , 2013 SKPC 57 , the accused, a second-time offender with a prolific collection, was sentenced to four years in custody for possession, albeit the accused was sentenced simultaneously for possession for the purposes of distribution. [ 50 ] In R. v. Garcia , 2009 BCSC 407 , Justice Griffin sentenced an offender to two years plus three years' probation for possession of child pornography.

In that case, the mitigating factors included the plea, the defendant's remorse and the fact that he had taken counselling. Aggravating factors included that the accused had a prior record and the court in that case noted that the images were at the lower end of depravity. [ 51 ] I have already referred to the court's reasons in R. v. Hopps . There the court sentenced the accused to two years plus three years' probation again. The images in Hopps were fewer but highly graphic and at the high end of depravity, as in this case. [ 52 ] Like you, Mr. L, Mr.

Hopps claimed to have been the victim of abuse himself as a child, and to have been unable to control his addiction. He also had a previous record.

[ 53 ] The Crown relies on a few other cases which I have reviewed, and I find they add little more to the analysis. [ 54 ] On your behalf, Mr. L, your counsel has produced two cases in which the sentencing was much lower. In R. v. Donnelly , 2010 BCSC 1523 , Mr. Justice Schultes sentenced the accused to 10 and 11 months respectively and consecutively on two counts of possession of child pornography. [ 55 ] In Donnelly , the accused committed a second breach while out on bail for the first, and it is submitted that this is similar in a sense to your previous conviction for possession of child pornography.

The accused in Donnelly was 31 years of age, and among other things, appears to have suffered from a brain injury. [ 56 ] In R. v. R.Y. , 2013 BCPC 421 , Judge Giardini of this court sentenced an offender to 90 days for possession of child pornography, which content the court found was not at the high end of depravity. The accused in R.Y. presented as a low risk to reoffend, was 24 years old at the time of sentencing, and also had no record. [ 57 ] R. v. R.Y. does contain a lengthy

summary of other cases in which sentences have been imposed for possession of child pornography, and the range is as I have already discussed. [ 58 ] Bearing in mind all of the cases, I note that the sentences at the lower end of the range tend to be for younger offenders with no record, while those at the higher end are imposed in instances similar to this case where the offender is older and has a prior conviction for the same offence. [ 59 ] I have taken all of that into consideration in this sentencing, and having considered the principles of sentencing, the appropriate objectives, the offence in this case, and your circumstances, Mr.

L, I have determined the sentence in your case, and at this time, I would ask you to stand, sir. [ 60 ] Mr. L, for the offence of possession of child pornography, in the circumstances of this case, I sentence you to two years in custody. [ 61 ] Upon your release from custody, I sentence you to a period of probation for three years. [ 62 ] The terms of your probation are as follows. [ 63 ] First, the mandatory conditions are that you must keep the peace and be of good behaviour. You must attend court if and when required to do so by court.

Thirdly, you shall not change your name, address, employment or occupation during the period of probation without first notifying the court or your probation officer. [ 64 ] Within 24 hours of your release from custody, you will report in person to the probation office nearest the place of your release, and thereafter as directed by your probation officer, and in the manner directed by your probation officer. [ 65 ] When you report, you will advise your probation officer of your residential address and telephone number, and you will not change either of those without getting the prior written consent of your probation officer. [ 66 ] There are going to be restrictions on your use of electronic devices, and I will set out those terms as follows. [ 67 ] You are not to possess or use any computer system within the meaning of s. 342.1(2) of the Criminal Code for the purposes of communicating with any person under the age of 16 years. [ 68 ] In addition, you are not to possess any cell phone, smart phone or other personal electronic device, for example iPhone, BlackBerry, Android or iPad, which has internet access except at your place of employment, and then only for employment reasons. [ 69 ] You are to allow any peace officer or any probation officer having reasonable grounds to suspect you are in breach of this order access to your residence upon request, and allow any peace officer or probation officer to examine any computer equipment, peripheral devices, communication devices, data storage devices including removable media, and will provide any passwords, usernames or manuals that may be necessary to enable a peace officer or a probation officer to properly examine any of the above computers and devices to verify compliance with this order. [ 70 ] You are also not to engage in any activity that involves contact or communications with persons under the age of 18, including using a computer within the meaning of s. 342.1 of the Criminal Code , except as I have already indicated. [ 71 ] You are also not to be in a place where persons under the age of 18 can be reasonably expected to be present unless you are in the company of an adult approved of by your probation officer. [ 72 ] You are clearly prohibited from possessing any pornographic material or from accessing any pornographic materials by electronic means. [ 73 ] You will attend, participate in and successfully complete any counselling or program as may be directed by the probation officer that may include forensic assessment, counselling or treatment, through a forensic psychiatric centre as directed by your probation officer. [ 74 ] You are prohibited from possessing or consuming any alcohol or controlled drugs or substances, as defined in the Controlled Drugs and Substances Act , except those that may be prescribed for you by a medical physician. [ 75 ] As I indicated earlier in these reasons, I must make some other ancillary orders. [ 76 ] This is primary designated DNA offence, and therefore under s. 161.1(4) of the Criminal Code , I order that pursuant to

s. 485.05 of the Criminal Code , the authorities be permitted to take from you one or more samples of such bodily substance as they see fit for the purposes of obtaining a DNA analysis. [ 77 ] This offence also calls for a s. 109 mandatory weapons order. That provision provides that upon the date of your release from custody, you are prohibited from possessing any firearms, prohibited firearms or restricted firearms, and any crossbow, restricted weapon, ammunition and explosive substance for life. [ 78 ]

Section 161.1(4) is also a designated offence for the purposes of s. 490.012 of the Criminal Code . That provides that the court must make an order in Form 52 requiring you to comply with the Sex Offender Information Registration Act . Under s. 490.013(1)(c), the applicable period in this case, because of your previous conviction, is for life. I therefore order that pursuant to s. 490.012 of the Criminal Code , that you do comply with the Sex Offender Information Registration Act for life. [ 79 ] This then brings me to s. 161 of the Criminal Code .

As I indicated to you at the outset of this sentencing, offences under s. 161.1(4) provide the court with the discretion to order that you not be present at certain places where persons under the age 16 may be present, and I intend to make that order. [ 80 ] Under s. 161 of the Criminal Code , I order that for a period of 10 years from your date of release from custody, you are prohibited from attending at 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. [ 81 ] I prohibit you 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, or using a computer system within the meaning of s. 342.1(2) for the purposes of communicating with persons under the age of 16 years. [ 82 ] Finally, there is the issue of the victim fine surcharge.

Given the period of time that you are going to be spending in custody, I am going to waive that victim fine surcharge. [ 83 ] MS. GIRI : I'm sorry, Your Honour, would you consider a s. 164.2(1) forfeiture order? [ 84 ] THE COURT : Oh, I am sorry. I will order that the materials seized upon the execution of the search warrant be forfeited for destruction pursuant to s. 164.2(1) of the Code . [ 85 ] MS. GIRI : Thank you. [REASONS FOR SENTENCE CONCLUDED]