R. v. Landon, 2022 BCPC 133

Citation: R. v. Landon 2022 BCPC 133 Date: 20220510 File No: 41822-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DEREK JOHN LANDON ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. CUTLER Counsel for the Crown: M. Giri Counsel for the Accused: J. Arndt Place of Hearing: Duncan , B.C. Date of Hearing: April 6, 2022 Date of Sentence: May 10, 2022

[1] THE COURT: The 59-year-old offender is before the court for sentencing after having pled guilty to possessing childpornography contrary to s. 163.1(4) of the Criminal Code. The Crown has proceeded by way of indictment. [2] The offender was found to be in possession of child pornography on September 12, 2019, when his car was searched by thepolice. The police located various electronic devices and USB thumb drives. When the data was extracted from these items, extensivechild pornography was located. [3] Crown counsel seeks a term of imprisonment of five years for the commission of the offence.

Counsel on behalf of the offendersubmits that an appropriate sentence would be approximately three-and-a-half to four years imprisonment. [4] In determining a fit sentence for this offender, the court must apply the fundamental principles set out in s. 718 of the CriminalCode. As this matter involves the abuse of children, s. 718.01 of the Code is engaged which directs the court to give primaryconsideration to the objectives of denunciation and deterrence of such conduct.

The Criminal Code further addresses sentencing for theindictable offence of possession of child pornography in s. 163.1(4) and establishes a maximum sentence of imprisonment of 10 years. [5] As in all sentencing cases, the court must be mindful that sentencing is an individualized exercise in which the court must takeinto account the specific circumstances of the offender and the offence for which they are being sentenced. The sentence must beproportionate to the gravity of the offence and degree of responsibility of the offender.

The court must also be mindful of principles ofparity, totality, and restraint. [6] Recent jurisprudence provides extensive analysis confirming the violence inherent in child pornography and its sexual abuse ofchildren who are re-victimized each time the images are viewed. It is also accepted that child pornography incites offenders to offend. Aswell, there has been a recognition that collectors of this vile material are critical to the existence of this repugnant industry, and everyeffort must be made to reduce the market for those predators producing and distributing such material, R. v.

Inksetter, 2018 ONCA 474R. v. Prince, 2018 BCSC 987, and R. v. Kwok, . [7] The production, distribution, and possession of child pornography are among the most heinous crimes one can commit; not onlydue to its depravity, but as a result of the long-term harm to the innocent and vulnerable children victimized by the actions of all thoseengaged in the production, marketing, and consumption of the horrific material being circulated. The harm to our children and ourcommunities as a whole is devastating and incalculable. [8] In the recent past, both Parliament and the Supreme Court of Canada in R. v.

Friesen, 2020 SCC 9, have made it clear tosentencing judges that sentences for sexual offences against children, including possession of child pornography, must be increased andsubstantial. In 2015, Parliament, in the Tougher Penalties for Child Predators Act, amended the Criminal Code to increase the maximumsentence for possession of child pornography from five years to 10 years.

In assessing the amendments, the court in Friesen stated “...,courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences”(paras. 98 to 100). [9] The court in Friesen emphasized the importance to “send a strong message that sexual offences against children are violentcrimes [and] wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences forthese crimes must increase” (para. 5). [10] A recent decision, R. v.

C.C.C., 2020 BCSC 1367, provides a thorough analysis of the approach trial courts ought to adopt as aresult of these amendments and the Supreme Court of Canada's decision in R. v. Friesen. In R. v. C.C.C., Justice Marchand, as he thenwas, provides a very helpful analysis for sentencing judges. The reasons confirm that the gravity of an offence has both subjective andobjective elements. A subjective analysis will focus on the circumstances surrounding the commission of the offence including theoffender's likelihood to reoffend, the nature and duration and frequency of same, and the age of the victims.

The objective gravityrequires the court to consider the relevant legislation and that: Parliament’s decisions to increase maximum punishments and to prioritize denunciation and deterrence reflects society’s increasingrecognition of the seriousness of sexual offences against children and the need to impose more severe sanctions. [para. 58] [11] It is important to note, however, as recognized in the reasons, that while deterrence and denunciation have priority pursuant tothe legislation, the sentencing judge retains discretion to accord significant weight to other factors in arriving at a fit sentence inaccordance with the overall principle of proportionality. [12] Counsel's submissions before me underline a mutual understanding that this offender is subject to a period of incarceration inexcess of two years both as a result of the offender being a repeat offender and his previous incarceration of two years for a similaroffence, as well as the significant change in the law and how trial judges are to approach sentencing of child sex offenders.

In assessingan appropriate sentence for this offence, the circumstances of the offence and the offender are critical to the court's considerations. [13] With respect to the pornographic material, the data extracted from the items possessed by the offender contained thousands ofimages and thousands of videos depicting children of various ages involved in various sexual activities with other children and adults,including oral sex as well as vaginal and anal intercourse. Some of the materials showed individuals engaged in sex acts with infants.

Thematerial also depicted bestiality. [14] The jurisprudence in this province has accepted the gradations of child pornography described in R. v. Missions, 2005 NSCA 82,which identified five levels of child pornography from the least to the most serious depictions. Levels four and five on the scale are themost serious and include depictions of penetrative sexual activity between children and adults, and bestiality, respectively.

It is clear onthe evidence that the material possessed by this offender falls within the most serious pornographic depictions. [15] The offender indicates that much of the material located on his devices by the police in this matter was the same material that he

possessed resulting in his sentence of two years in 2016. He indicates that, some time after being released from custody in 2018, he managed to obtain a job with his former employer. Upon attending to work, he was given his old computer which the employer had been keeping in a locker. When the offender opened the computer, he found the pornographic material which triggered his deviancy and he commenced collecting more material. [ 16 ] At the time of committing the offence before this court, the offender was on probation pursuant to his 2016 sentence.

He was on conditions not to possess any pornographic material nor access any pornographic materials by electronic means. The conditions also prohibited him from possessing electronic devices including iPhones and iPads which had internet access.

It is clear on the evidence that he was in breach of these terms as the evidence indicates that he not only possessed pornographic material, he was downloading pornographic material from the internet with his personal devices. [ 17 ] As well, during his probationary period, he was reporting to his probation officer and misleading the probation officer with respect to his accessing of pornography. Further, the offender was engaged in a forensic sex offender program while he was continuously downloading and viewing child pornography from the internet.

This was one of many programs, as well as counselling, the offender has engaged in over the years to address his sexual deviancy. [ 18 ] Of particular concern in this matter is that this offender has been convicted and sentenced for sexual offences against children on numerous occasions. He was sentenced to a conditional sentence order of six months for sexual assaulting a child in July 2004. As well, he was sentenced for possession of child pornography in 2005 and received a conditional sentence order of 18 months less a day.

As indicated, more recently in 2016, he was sentenced to a two-year period of incarceration and three years’ probation for possession of child pornography. I note that the offender, when sentenced in 2016 to two years’ incarceration, was being sentenced pursuant to the old regime, as this earlier offence was committed prior to the 2015 amendments. [ 19 ] Forensic Psychiatric Services prepared a psychological opinion for the court in this matter.

The conclusion of the report is that the offender meets the diagnostic criteria for Pedophilic Disorder and his risk for reoffending by accessing child pornography remains high in the long term and is driven by his deviant sexual interests involving prepubescent children, particularly females. [ 20 ] The material filed with the court also indicates the offender was subject to physical and psychological abuse as a child, including physical abuse from his father in his early years before being placed in four foster care homes of which some were highly abusive.

He has little contact with any family members and has few friends. He apparently has not been in intimate relationships since his late 20s. He has engaged with a local church which provides most of his social contact. His pastor indicates he is a valued member of the congregation, although the offender initiated distancing himself from the church in the hope of limiting any negative impact caused by these proceedings. [ 21 ] Counsel provided the court with numerous precedents where offenders like the offender before me had prior related offences for possession of child pornography: R. v.

Snow , 2014 BCPC 27 , R. v. Stupnikoff , 2013 SKPC 57 , R. v. Hudec , 2016 SKPC 176 and R. v. Rotman, 2015 ONCA 663 . As is usually the case in these matters, while these decisions have similarities to the case before me, they also have distinguishing features. However, along with the common factor that all the offenders were repeat offenders, each of these cases involved aggravating factors similar to the circumstances before me.

These include the offender being on probation at the time of the offence, the offender commencing to collect the pornographic material shortly after being released from custody, and the extensive volume of the images and videos possessed. [ 22 ] All these cases imposed sentences under the former regime before the maximum term of imprisonment had been increased.

These cases indicate that prior to the amendments increasing the maximum sentence for possession of child pornography from five years to 10 years, it was not uncommon for offenders with previous cognate records, who committed offences in similar circumstances as the offender before me, to receive sentences of incarceration in the area of four years.

The court was not provided with any cases where sentences were imposed on similar repeat offenders pursuant to the current sentencing regime. [ 23 ] In determining a fit sentence for this offender, I am mindful of the mitigating factors including his entry of a guilty plea, and as a result of the pandemic, he has waited well over a year after entering his guilty plea to have the sentencing hearing.

As well, as indicated, the reports prepared for this hearing indicate the troubled childhood of the offender. [ 24 ] There are a number of aggravating factors, some of which have been referred to earlier in these reasons and include: 1. the volume of child pornography possessed by the offender; 2. the egregious nature of the pornography possessed by the offender; 3. his prior record for similar offences; 4. the offender was on probation for a previous conviction of possessing child pornography when he committed this offence, and he breached various conditions of the probation order; 5. the offender has participated in numerous treatment programs which have obviously been unsuccessful; and 6. he has been assessed as a high risk to reoffend by accessing child pornography. [ 25 ] A further concern of the court is the apparent lack of insight the offender appears to have with respect to his sexual deviancy.

When the offender addressed the court at the sentencing hearing, he indicated his desire to engage in further treatment to help him, albeit criticizing earlier treatment which failed to help him. Yet when speaking to the probation officer preparing the presentence report for this matter, he described his "current interests in accessing child pornography as non-existent." He claimed he had prayed to God and repented and that God had removed all impulses and desire from the offender.

The offender stated it is "almost like it never happened." It is not clear to me whether the offender is fooling himself or attempting to fool those around him, but in either case, it is most disconcerting that, despite his extensive record and the assessment placing him at a high risk to reoffend, he seems to have adopted the

view that it is "almost like it never happened." It further shows a complete lack of empathy for the victims. [ 26 ] Further, with respect to his sincerity to address his deviancy, the registered psychologist who assessed the offender in 2016 and again in 2021 and concluded he suffered from Pedophilic Disorder and was a high risk to reoffend, indicated that particularly problematic is the high likelihood of insincere participation in treatment efforts in the future.

The doctor was concerned with the offender's ingratiating presentation during the clinical interview. [ 27 ] After assessing the various factors relevant to this sentencing including the applicable legal principles, recent legislation and jurisprudence, as well as the circumstances of the offence and the offender before me, I am satisfied, although at the lower end of the sentencing range for an individual with the offender's record, that a sentence of five years' incarceration is a fit sentence for this offender.

This will address the primary considerations of denunciation and deterrence, both general and specific, while recognizing the mitigating factors including the offender's difficult childhood. [ 28 ] In the result, after being given credit for 53 days served, I am sentencing him to a further four years, 10 months, and seven days in jail. [ 29 ] As well, I am making the following ancillary orders. [ 30 ] As the offence before the court is a primary designated offence, pursuant to s. 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily substances from you.

The samples will be taken from you while you are in custody and you must submit to the taking of the samples. [ 31 ] This is also a designated offence for the purpose of s. 490.012 of the Criminal Code , and as you have been previously convicted of other designated offences, pursuant to s. 490.013(2.1) , you are required to comply with the Sex Offender Information Registration Act for life. [ 32 ] As well, pursuant to s. 161 of the Criminal Code , you are prohibited for life commencing as of today's date 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 daycare centre, school ground, playground, or community centre; (

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

c) having contact or communication by any means with a person who is under the age of 16 years; and (

d) using the internet or other digital network except in the following circumstances: as approved in advance in writing by the court or the person to whom you are reporting under the Sex Offender Information Registration Act, and in such case, you must carry a copy of the written permission with you. [ 33 ] Lastly, there will be a forfeiture order in favour of the Province of British Columbia of the seized electronic devices pursuant to s. 164.2(1) of the Criminal Code . [ 34 ] As a result of the period of incarceration I have ordered, there will be no victim fine surcharge. (REASONS FOR SENTENCE CONCLUDED)