Her Majesty the Queen - v. -, 2011 SKPC 111

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 111 Date: July 4, 2011 Information: 43170288 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Eran Michael Pinsky Appearing: M. Segu For the Crown B. Pfefferle For the Accused JUDGMENT ON SENTENCING B. SINGER , J Introduction [ 1 ] Mr. Pinsky pled guilty to two charges, that he did on the 31 st of May 2011, have in his possession child pornography and on the same date that he breached his undertaking that he shall not possess pornography of any kind.

The Crown and Defence agree that he should receive a sentence of incarceration followed by three years probation. At issue is the length of his term of incarceration. The Crown seeks eighteen months, the Defence requests a much shorter sentence. [ 2 ] In 2009, the Accused was charged with possession and distribution of child pornography and was released from custody on an undertaking that included a term that he not possess any pornography. That original charge remains outstanding. I am mindful of section 725(1) of the Code .

The Accused has not pled guilty to that offence, and the Defence has not consented to this Court reviewing the circumstances of that offence, therefore those circumstances are not part of this decision. However, knowledge of the identity of that previous charge is important to help determine the appropriate sentence on the charge of breach of undertaking and to address arguments

particularly concerning specific deterrence made by the Defence in this case. Circumstances of the Crime [ 3 ] On May 31, 2011, the Accused, contacted the police to advise that he was flying to his parents’ home in Vancouver. He was met at the Saskatoon airport by the police who searched his backpack and located several USB drives. Two of those drives held massive amounts of child pornography, over 69,000 image and video files. The police have reviewed a small percentage of these files and determined of the files reviewed that 5,036 files were child pornography. The remaining images still must be assessed.

The files were extremely well organized, indexed and placed into descriptive folders. [ 4 ] The police were able to determine that these files were collected, sorted and organized, all within the four or five months prior to their discovery. During those months the Accused was dealing with his previous charges of possession and distribution of child pornography in the Court of Queen’s Bench. [ 5 ] The nature and content of the seized files depict thousands of young girls who were abused and victimized. Some of these children were infants.

The images include all manner of sexual acts with adult males, including bondage and bestiality. [ 6 ] Exhibit P-2 is a disk of copies of five of the videos that were in the Accused’s possession. From the descriptions given to me of the other images, the ones shown in Court were not the most vile. I viewed P-2 in Court and the images are shocking and horrible. The children are very young. Circumstances of the Accused [ 7 ] The Defence reiterated much of the personal information about the Accused that was presented in the pre-sentence report. He is 27 years old with no criminal record.

He is originally from Vancouver and lived in Montreal for a number of years while he attended McGill University earning a degree in history and religion. After taking a year off from university he began law school in Saskatoon. He has now written all his exams for his final year. [ 8 ] By all accounts he comes from a stable family.

While shocked and disappointed over these charges his parents have remained supportive, hoping he can get treatment for whatever is causing his criminal behaviour. [ 9 ] As a result of these charges the Accused believes he will never be able to practice law and feels largely ostracized by his fellow students in law school and as well by the Jewish community, of which he was an active member. [ 10 ] He has seen a psychologist for assistance with insomnia and panic attacks. Just prior to his arrest, he saw a medical doctor for prescription medication for depression.

He indicated he felt too ashamed about his behaviour to seek help directly for his conduct. Comments in the Pre-sentence Report [ 11 ] The author of the pre-sentence report noted that the Accused may minimize the offence in the sense that he overestimated, the ages of the children involved and suggested that the acts depicted did not extend beyond oral sex, even though the police report indicated they included actual bondage and torture. The author of the report concluded that the Accused was suitable for both community supervision and sex offender programming. Legal Analysis [ 12 ] In R. v.

Kwok , ( [1] ) Molloy J. reviews many but not all, of the aggravating factors and some possible mitigating factors that

apply in cases such as this. He lists as aggravating factors the following: criminal record for similar or related offences; whether there was production or distribution involved; the size of the pornography collection; the nature of the collection (including the age of the children and the relative depravity or violence of the acts depicted); the extent to which the offender is a danger to children; and whether the Accused purchased the material. [ 13 ] Mr.

Justice Molloy lists as generally mitigating circumstances: the relatively youthful age of the offender; the otherwise good character of the offender; the extent to which the offender has demonstrated insight into his problem; genuine remorse; willingness to submit to treatment and counselling; the existence of a guilty plea; and the extent to which the offender has already suffered for his crime (for example in his family, career or community). [ 14 ] These suggested aggravating and mitigating circumstances are a useful guide to begin an analysis of an appropriate sentence.

I must also consider the general principles of sentencing and in particular follow the guidance found in

section 718.01 of the Criminal Code , which, in effect, states that when a Court imposes a sentence for an offence that involves the abuse of children, such as possession of child pornography, it shall give primary consideration to the principles of denunciation and deterrence of such conduct. [ 15 ] There are several serious aggravating circumstances. The first and most striking is the vast number of files collected by the Accused – over 69,000 images and videos depicting girls from infants to 14 or 15 year olds. These images show graphic and disturbing acts and include violent sexual acts, bondage, torture and bestiality. The sexual acts were performed on young girls by adult males. A

summary review of Canadian cases satisfies me that rarely have this many images been found in any one person’s possession. [ 16 ] It is an aggravating circumstance that these pictures were collected, viewed and organized while the accused was awaiting trial on a similar offence and while on an undertaking to prevent his possession of any pornography.

This demonstrates that he was either prepared to take the risk of collecting this material, knowing the consequences of getting caught, or that he was unable to stop himself. [ 17 ] A few months ago, when the Accused assembled these images, he demonstrated little insight into his own behaviour and into the fact that each one of the images he was collecting represented a child being abused.

According to the pre-sentence report, “It is also apparent that Michael became desensitized to the images he was viewing and dissociated to the point of not viewing the children being depicted in the child pornography as victims.” [ 18 ] The Crown also suggests that it is an aggravating factor that the Accused admitted that he was using the images for his own sexual gratification. [ 19 ] The Defence points out as mitigating circumstances, the relatively young age and past good behaviour of the Accused.

He suggests that the Accused now recognizes that his past behaviour was deviant and he looks forward to working with probation services and enrolling in the sex offender program. He says he can never be a lawyer, in spite of completing law school and that he has had to face the condemnation of his classmates and his religious community. [ 20 ] The Defence argues that this social disapproval and career consequence are sufficient deterrence to this Accused.

Unfortunately, they were not sufficient deterrence after being charged with a similar offence in 2009. [ 21 ] The Defence calls this a “stigma crime” that carries with it notoriety out of proportion to the harm caused and suggests that I can take that stigma into account in emphasizing the issue of deterrence. The Defence suggests it is a “stigma crime” because the public does not understand it, finding it difficult to understand why anyone would commit this crime. [ 22 ] I disagree with the position of the Defence.

It is a “stigma crime” because the public finds the offence morally repugnant as it flies in the face of one of the fundamental principles of our society, the protection of children. Each image collected by the Accused represents a child being abused. There were almost 70,000 images. [ 23 ] What the public abhors is the fact that the Accused, for his own sexual pleasure, was either unable to stop himself from collecting and viewing these images or chose to flaunt the court order so that he could continue to look at these images.

For that reason I would expect that his classmates would ostracize him and that the Jewish community would exclude him from some of their events.

This is an expected consequence of his conduct. Because this crime goes against society’s general view that children are to be protected and not victimized, the Accused’s conduct is to be denounced. [ 24 ] Deterrence is also of primary concern, both general and specific. I take the breach of undertaking charge very seriously. While his case was before the Court of Queen’s Bench, he collected, viewed and organized a vast amount of material. He was caught transporting it to his parents’ home in Vancouver where he had access to a computer.

Specific deterrence, greater than the serious social consequences he has already felt, is required to prevent him from reoffending. While I am hopeful that a lengthy period of probation and the sex offender program will have a salutary effect on the Accused, Parliament has decreed that this is not my primary consideration. His specific deterrence by way of incarceration may be the only way to impress upon him the significance of committing this crime again. [ 25 ] General deterrence is of great importance in this case.

The circumstances here demonstrate that a knowledgeable offender is able to quickly access and collect huge amounts of child pornography, much of it previously unknown to the police. If a longer sentence for this Accused result in fewer people committing this offence, then the object of general deterrence is met.

The theory of general deterrence suggests, that if people who suffer from an illness that affects their ability to restrain themselves from committing this offence, know of the lengthy sentence they might receive as a result of getting caught, as well as society’s disapproval of this behaviour, then perhaps they will seek treatment rather than take the chance of committing the offence.

And of course, if fewer people collect child pornography, perhaps there will be less of it produced and fewer children will be assaulted and abused. [ 26 ] Because denunciation and deterrence are the primary sentencing principles, I am left with little room for the consideration of other sentencing principles. I do not wish to give this Accused such a long sentence that he is dissuaded from cooperating with sex offender programming on his release. I recognize the remorse he must feel as demonstrated by his plea of guilty.

I appreciate that as a result of this offence he must seek a new career and always face the social disapproval of his peers. I will take into account the one month he has been on remand. I will take into account that I will be giving him the maximum period of probation available under the Code and that his behaviour will be monitored for that time. I will take into account his present desire for treatment which, if honestly undertaken, is a lengthy and difficult process which will require the support which will be given to him by his family and remaining friends.

I will also take into account similar cases in this province, though I have been unable to find any that reflect the sheer number and nature of these images. Conclusion [ 27 ] I have decided that his sentence for both offences to which he has pled guilty, should be one year followed by probation, to be served concurrently. I will give him credit for the one month on remand. Therefore his total sentence will be 11 months in custody followed by three years probation on each charge to be served concurrently.

The terms of which will be the statutory conditions and the following: -Report to the probation officer on the last day of your custodial sentence and thereafter as required by the probation officer or his/her designate; -Attend and participate in a sex offender treatment program as directed by the probation officer and not give cause to be discharged from any such program; -Live at an address approved by the probation officer; -Not reside in any residence where there is a computer or any Internet access; -Not possess or use any computer, computer equipment, or communication device capable of accessing the Internet, except for the purposes of employment and then only on the employer’s premises, which may not be your home; -You shall not maintain any account with an Internet service provider; -You shall not possess any pornography; -You shall submit to a search of your person, residence, vehicle or computer found in your possession, without warrant, by any police officer checking to ensure compliance with the terms of this order. [ 28 ] I have considered the Crown’s request for an order under

section 161 of the Code and I have decided not to make such an order. There is nothing in the circumstances or in the reports that would cause me to make such an order.

[ 29 ] In addition there will be the following orders: -There will be an order for his registration under the provisions of the Sexual Offender Registry for 10 years. -There will be an order that he supply a sample of his DNA. -There will be an order for the forfeiture of all exhibits seized. I will sign this upon receipt of a consent order prepared by counsel. Dated at Saskatoon this 4 th day of July, 2011. _____________________________ B. Singer, J