R. v. Pattison Date:, 2015 BCPC 409

Citation: R. v. Pattison Date: 20151029 2015 BCPC 0409 File No: 39320-2-C Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT JOSEPH PATTISON ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: J. Boccabella Counsel for the Defendant: A. McGarvey Place of Hearing: Courtenay , B.C. Date of Hearing: October 29, 2015 Date of Judgment: October 29, 2015

Introduction [ 1 ] THE COURT (orally): Robert James Pattison is before the court for sentencing on three charges to which he has entered pleas of guilty. [ 2 ] The first is an allegation on Count 1 of Information 39320-C-2 that he did, between September 8, 2013, and December 4, 2014, inclusive, possess child pornography contrary to s. 163.1(4) of the Criminal Code . [ 3 ] On Count 2, to which he has entered a plea of guilty, is an allegation that he did have in his possession for the purposes of distribution or sale, child pornography, and that is contrary to s. 163.1(3) of the Criminal Code . [ 4 ] The third matter for which he is before the court for sentencing, and to which he has entered a plea of guilty is on Count 5, which is an allegation that he did possess a firearm, being a non-restricted long gun, while not being the holder of a licence under which he may possess the firearm, and that is contrary to s. 91(1) of the Criminal Code . [ 5 ] The matter is before me to determine a fit sentence with respect to these three significant offences.

I have before me a joint submission that has been thoughtfully discussed and presented to the court by both Crown and defence. Facts Circumstances Surrounding the Offences [ 6 ] The circumstances have been outlined by Crown. No issue is taken with those circumstances. I find those circumstances as outlined by Crown to be the facts in this matter, and they are sufficient to support the guilty pleas with respect to the three matters for which Mr. Pattison must be sentenced. [ 7 ] By way of a brief

summary, the circumstances giving rise to the charges are as a result of a police search. They became aware of peer-to-peer sharing of child porn videos. They were able to go to an intranet site which apparently was hosted on Mr. Pattison's computer and were able to download ten videos. This resulted in the police attending at the residence of Mr. Pattison to conduct a further investigation and search and to arrest him in connection with these matters. [ 8 ] He was cooperative throughout the investigation. He indicated very early on that he was intending to enter guilty pleas with respect to these matters.

He made a spontaneous admission to the police. As a result of the police search of his computer, they were able to locate 27 video files of child pornography which were available for sharing; apparently those had been shared over 100 times. [ 9 ] The videos that had been shared portrayed children ages between 5 and 15 years engaged in graphic sexual acts. In a separate video folder, 251 further videos were found and identified, and which have been characterized as child pornography, by the police authorities. [ 10 ] The matter has been under discussion between counsel for some time.

Sentencing has been deferred in order to permit Mr. Pattison to place his financial affairs in order and to ensure that there are sufficient monies available to his common-law spouse, who faces some health issues, so that she can maintain a residence during his period of incarceration. Circumstances of the Offender [ 11 ] I am fortunate to have before me two very detailed and comprehensive reports. One is a presentence report. It is dated August 27, 2015, completed by Rick Hine, probation officer in the Courtenay office of the Corrections Branch of the Ministry of Justice. It details the circumstances of Mr.

Pattison, his educational and vocational background, and his behaviour. There is an indication of prior criminal convictions. However, one dates back to 1986, which was a fraud conviction, and then in 1991, a possession of narcotics, for which he received a fine. With respect to the fraud conviction, he received a conditional discharge with six months of probation and 75 hours of community service. [ 12 ] The second report has been prepared by B.C. Mental Health and Substance Abuse, in particular by the Nanaimo Forensic Psychiatric Services Commission. The report is authored by Dr. Edward A.

Clark, Ph.D., a registered psychologist, who practices in clinical and consulting psychology at the Nanaimo Regional Clinic of the Forensic Psychiatric Services Commission. It is, again, a very detailed report. It is complete with the psychological assessment that has been completed after a number of tests and discussions with Mr. Pattison. [ 13 ] In both reports, there was initially a suggestion that there was a lack of insight on the part of Mr.

Pattison as to the gravity of the child pornography offences and the significant adverse impact child pornography has on the community and the promotion of the abuse and also the victimization of young children. However in the psychological assessment report, there is an indication that Mr.

Pattison, after demonstrating some reluctance to admit to a problem or to demonstrate self-awareness about this problem and his involvement in it, has now started to demonstrate some awareness and has made an indication that he does now accept that the offences have a very dramatic effect in an adverse way on the community. [ 14 ] At page 5 of the forensic report, in the bottom paragraph, it says as follows [as read in]: Mr. Pattison describes his current offence as the possession and distribution of child pornography.

He believes that the charges related to the possession and unsafe storage of an unlicensed firearm had been dropped. He added that his real offence is the endangerment of children by accessing child pornography. He said that by so doing he has contributed to the perpetuation of the exploitation of children. [ 15 ] I do accept that he has progressed during the time that he has been waiting to be sentenced and has come to some insight into his

offending behaviour and some of the implications of that offending behaviour. [ 16 ] He has been a hard-working member of society. He has supported his family. He has had a number of friends and colleagues who have written letters for him containing a number of very positive reports. The common theme throughout these reports is he is a very generous individual. He is a person who takes every effort to help others who may be in financial need. He is community minded, and he is generally described as a good friend to those people who know him within the community.

That is a common theme that runs throughout all of the letters. [ 17 ] Another fairly common theme in the letters is that most of the people are totally shocked by the fact that Mr. Pattison would find himself in the present situation, and they deem this behavior to be totally out of character from the individual that they know and with whom they have had personal dealings and relationships for many years. [ 18 ] Mr. Pattison does have some health issues that are referred to in both of the professional reports.

I understand from submissions today that there is a potential issue of a brain tumour which is being dealt with; he is being monitored and having a MRI conducted upon him in order to deal with the potential of that problem. [ 19 ] The other important thing is that I understand that Mr. Pattison has come to terms with the fact that if I accede to the joint submission he will be doing custodial time and will then be bound by a fairly comprehensive and detailed probation order for a lengthy probation period.

My sense is from both his direct submissions to the court and also from what I have been told by counsel and as contained in the reports that he will be taking advantage of the opportunities to receive the type of treatment that he clearly needs in order to deal with some of the underlying concerns that specifically have given rise to the child pornography charges. Joint Sentencing Position [ 20 ] With respect to the gun offence, it was a gun that unfortunately was loaded, in his possession and contrary to the applicable sections to which he has been charged.

However, on the whole, the matters that require the most attention and with which the sentence primarily will be dealing and directed at are the child pornography charges. [ 21 ] The joint sentencing position that is placed before me is that there should be the mandatory minimum sentence for the distribution of child pornography, which would be a 12-month custodial sentence.

With respect to the possession of child pornography, that would be a three-month sentence, and then with respect to the firearms offence, that would be a one-day custodial sentence. [ 22 ] Crown and defence suggest that those sentences would run on a concurrent basis, having regard for proportionality. Hence Mr. Pattison would be looking at actual custodial time of 12 months, less any earned remission. [ 23 ] Crown and defence have also applied their minds to the terms and conditions of a probation order.

It is agreed that an appropriate duration would be three months [sic], and the terms and conditions have been drawn from and modified slightly from those recommended in the presentence report prepared by Rick Hines. [ 24 ] It is said to me and agreed between counsel that an appropriate sentencing range in matters of this nature, depending on the severity and the circumstances, may run from 12 months or to some 36 months or even longer. It is agreed that, given these circumstances and given this offender, it is being suggested to me that the appropriate range is in the 12-month range.

Analysis and Conclusions [ 25 ] The Criminal Code of Canada sets out the purposes and principles of sentencing at s. 718 . Although not directly applicable

Section 718.01 deals with objectives of denunciation and deterrence for offences against children. Also, the Criminal Code of Canada under s. 718.1 , deals with the fundamental principle of proportionality and that there are other statutory sentencing principles under s. 718.2 . [ 26 ] I am obliged to consider both aggravating factors and mitigating factors. The aggravating factors would be the nature of this type of crime and the destructive effect it has on society and the resulting victimization of children. [ 27 ] The mitigating factors are that Mr.

Pattison has dealt with this matter in an appropriate fashion. He has gained some insight through the journey of having to deal with the author of the presentence report and with the author of the forensic assessment. He has expressed, and I take it to be, real remorse. [ 28 ] He has placed himself in a very difficult position. But as importantly he has also betrayed to a significant extent his common- law spouse of many years and placed her in a very difficult and vulnerable position.

Also he has betrayed the trust of many of his friends who he has met through the years and through his involvement in the community; he has betrayed them and the trust that they placed in him. They still remain supportive of him, as evidenced by their appearance in court today. He can take some comfort from that. He understands that what he will have to do is to re-earn that trust they have placed in him. He has obviously disappointed them through the matters which have brought him before the court. [ 29 ] I will accept the joint submission. Accordingly, I will get you to stand, Mr. Pattison, please.

Sentence and Orders [ 30 ] I will accept the joint submission as a fit sentence. The sentence on Count 2, which is the possession for the purposes of distribution or sale of child pornography, will be a sentence of 12 months on that charge. [ 31 ] With respect to the possession of child pornography, on Count 1, there will be a sentence of three months on that charge.

[ 32 ] With respect to the possession of the firearm while not being a holder of a licence, there will be a one day sentence on that charge. [ 33 ] The sentences will be served on a concurrent basis. [ 34 ] There will be a three-year period of probation. [ 35 ] I will say this briefly to you, Mr. Pattison. You have been in court all day, and you have heard me say to other individuals that court orders are court orders, things you must do. You cannot treat them as inconvenient suggestions.

Accordingly, you will be bound by very strict conditions, and you must abide by these conditions, or else you face the potential of further charges for breaching. [ 36 ] We have also discussed the fact that Crown and defence have come to a joint submission and have suggested the minimum penalty that can be imposed on the distribution of child pornography. However, that may not be the Crown position in the future, if there should ever be a future occasion where you find yourself back before the court on these types of charges. [ 37 ] THE ACCUSED: There won't be. [ 38 ] THE COURT: Thank you.

All right, so with respect to the conditions that have been suggested, I will draw from both the presentence report, as well as the suggested changes that have been placed before me. [ 39 ] So with respect to the probation terms, they will be as follows. [ 40 ] You shall keep the peace and be of good behaviour. You shall appear before the court when required to do so by the court.

You shall notify the court or your 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. [ 41 ] Condition 202: within 72 hours after completion of your jail sentence, you shall report in person to the probation office here in Courtenay, British Columbia, at the address that will be provided to you, and after that you shall report as directed. [ 42 ] The next condition is, you shall reside in a residence approved by your probation officer and not change that place of residence without the prior written permission of the probation officer. [ 43 ] Just pausing for a moment. [ 44 ] Condition number 3 is attend at the door, but there is no curfew being suggested.

Am I correct in that regard? [ 45 ] MR. BOCCABELLA: That's correct. I think it's more of an internet -- [ 46 ] THE COURT: Oh, I see. Okay. [ 47 ] MR. BOCCABELLA: More for the internet conditions here. [ 48 ] THE COURT: Right. All right. [ 49 ] And the next condition is, you shall present yourself at the door of your residence and allow access to the residence when requested by a probation officer or peace officer for the purposes of monitoring -- is it "your compliance"? Is that the term, "your compliance with the terms of this order"? [ 50 ] MR.

BOCCABELLA: Yes. [ 51 ] THE COURT: Thank you. [ 52 ] And the next condition, so is this supposed to be in the nature of a Rogers order? [ 53 ] MR. BOCCABELLA: No, Your Honour. No, not a Rogers order. It's a -- [ 54 ] THE COURT: It says "after consenting in court". [ 55 ] MR. BOCCABELLA: I think that's preferred because it includes the word "treatment" in it. [ 56 ] THE COURT: I see. [ 57 ] MR. BOCCABELLA: So my understanding is that he doesn't have a problem with consenting or stipulating that consent. [ 58 ] MR. McGARVEY: We consent to treatment. [ 59 ] THE COURT: All right.

So, having consented to treatment, you shall attend, participate -- I think it will be: you shall attend appointments, assessment, counselling and/or treatment, including but not limited to psychiatric, psychological assessments, counselling, including but not limited to substance abuse management, as directed by your probation officer, and including sex offender treatment (SOTP) and subsequent sex offender maintenance programs (SOMP). Have I captured the agreed changes? [ 60 ] MR.

BOCCABELLA: Yes. [ 61 ] THE COURT: Thank you. [ 62 ] The next condition is, you shall not have any contact or communicate with any children under the age of 16 unless the place

where you are is a public place which is open to all members of the general public and is actually being frequented by other members of the general public. [ 63 ] You may have contact with your grandchildren, but only in the presence of their mother and with her consent. Their mother must be advised of your offences as confirmed by your probation prior -- is it prior by your probation officer? [ 64 ] MR. BOCCABELLA: Yes, please.

Sorry. [ 65 ] THE COURT: -- probation officer prior to any contact. [ 66 ] Next condition is, you shall not attend within 30 metres of any playground, school ground, swimming area, recreation or community centre, library, or any other place where children under the age of 16 may be present, except with the prior written agreement of your probation officer. [ 67 ] Next condition is, you shall not view or access any pornography, whether in magazines, photographs, DVDs, literature or online, unless part of a directed treatment process. [ 68 ] Next paragraph, or next condition is, you shall not have a functioning internet connection in your home or on your property.

You shall not exercise access to the internet anywhere, except as follows: (

a) for purposes directly and immediately related to your employment with a third party employer, the nature and time of said usage to be approved of by your probation officer in advance, or (

b) with the advance written consent of the probation officer. [ 69 ] The next paragraph, or next condition is, you are not to have in your possession any firearm, imitation firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance and any related authorizations, licenses and registration certificates. [ 70 ] Those are the conditions which I understand were agreed to. Is that correct? [ 71 ] MR. McGARVEY: Correct. [ 72 ] MR. BOCCABELLA: Yes. Sorry, we got the change to condition 8, and I didn't -- I was looking at something else.

Yes, okay. [ 73 ] THE COURT: Yes, I think I read the condition 8 in with the additional probation concerning "on your property". [ 74 ] MR. McGARVEY: Yes. [ 75 ] THE COURT: All right. Then there will be the ancillary orders being sought. There will be a DNA order.

There will be a SOIRA registration for life, and there will be a s. 110 firearms prohibition for a duration of five years. [ 76 ] There will be an order for the forfeiture of the computer used in the commission of the offence pursuant to s. 164.2, and there is also the forfeiture of the firearm which is the subject of the offence. [ 77 ] Do I have all the terms and conditions and orders that are being sought? [ 78 ] MR. BOCCABELLA: Yes, Your Honour.

I think -- when I look at condition 6, I'm a little worried that it's overbroad in its current state by saying "or any other place where children under the age of 16 may be present". In my submission, it should reflect what s. 161 suggests, and that is, any place where children can reasonably be expected to be present. [ 79 ] THE COURT: All right. So you're suggesting we change -- so that's condition 6, so it will be the same -- you shall not attend within 30 metres of any playground. So all of that is good right up to -- [ 80 ] MR.

BOCCABELLA: Right up until "may be present", if we could change "may be present" to -- what did I just say, [inaudible] -- yes, "can reasonably be expected to be present". [ 81 ] THE COURT: Okay. So under the age of 16, may be reasonably be expected to be present. [ 82 ] MR. BOCCABELLA: Yes. [ 83 ] THE COURT: Is that right? [ 84 ] MR. BOCCABELLA: Yes. [ 85 ] THE COURT: Mr. McGarvey, you're happy with that? [ 86 ] MR. McGARVEY: Yes. It's from the Code , yes. [ 87 ] THE COURT: Mr. McGarvey, I should say -- [ 88 ] MR. McGARVEY: Yes. [ 89 ] THE COURT: ... is you agree with that? [ 90 ] MR.

McGARVEY: Yes. [ 91 ] THE COURT: Okay, and that tracks the language of s. 161?

[ 92 ] MR. McGARVEY: Yes. [ 93 ] THE COURT: All right. So that's -- settled -- we’re agreeing; we're settled on the conditions? Correct? [ 94 ] MR. BOCCABELLA: Yes. [ 95 ] MR. McGARVEY: Yes. [ 96 ] THE COURT: And this will all be given to you in writing, Mr. Pattison. All right. [ 97 ] MR. BOCCABELLA: One minor point, Your Honour -- three years, not three months. [ 98 ] THE COURT: Sorry, did I say -- [ 99 ] MR. BOCCABELLA: Three months. [ 100 ] THE COURT: On the -- on the which? [ 101 ] MR. BOCCABELLA: Duration of probation -- [ 102 ] THE COURT: Oh, I thought I said three years, but -- [ 103 ] MR.

BOCCABELLA: Well, I thought -- it should be three years. [ 104 ] THE COURT: -- I -- if I said three months, I intended to say years, as was put to me in the joint submission. [ 105 ] MR. BOCCABELLA: Yes. [ 106 ] THE COURT: All right. [ 107 ] MR. BOCCABELLA: Primary DNA, SOIRA life, 110 five years, and forfeiture of the computer and firearms? [ 108 ] THE COURT: Correct. [ 109 ] MR. BOCCABELLA: Thank you. [ 110 ] THE COURT: I made those as ancillary orders. All right. [ 111 ] Mr. Pattison, I wish you well in your recovery and in the programs that you take.

I know that if you make the effort, you will be able to return to the community and without a risk of reoffending. The presentence reports indicate that you are at low risk to reoffend, but that is unknown. The only test for greater certainty will be whether or not you take the treatment that is offered to you and then return to the community and re-join your place within the community, supported by your friends and your family. [ 112 ] THE ACCUSED: Thank you. [ 113 ] THE COURT: Thank you. [ 114 ] THE CLERK: [Indiscernible] confirm Counts 3 and 4, Your Honour. [ 115 ] MR.

BOCCABELLA: [Indiscernible]. [ 116 ] THE COURT: Stay of proceedings on Count 3 recorded. Stay of proceedings on Count 4. And I believe that concludes all the matters with respect to these charges. Is that correct? [ 117 ] MR. BOCCABELLA: Yes. Thank you, Your Honour. [ 118 ] MR. McGARVEY: Thank you, Your Honour. [ 119 ] THE COURT: Thank you. I thank staff for their indulgence and -- [ 120 ] MR. BOCCABELLA: Yes. Thank you. [ 121 ] THE COURT: Thank you. (REASONS FOR SENTENCE CONCLUDED)