R. v. Mathieson, 2010 ONCJ 616

Information No. 10 – S1870 Citation: R. v. Mathieson , 2010 ONCJ 616 ONTARIO COURT OF JUSTICE (at St. Catharines, Ontario) B E T W E E N: HER MAJESTY THE QUEEN - and - BOBBY MATHIESON Reasons for Sentence Mr. M. Shea for Bobby Mathieson Ms. P. Vadacchino for the Crown Nadel J.: [ 1 ] On October 7, 2010, Mr. Mathieson pleaded guilty, by indictment, to one count of making child pornography and one count of possession of child pornography. [ 2 ] A statement of admitted facts in support of these pleas was styled as a “Prosecution

Summary” and filed as Exhibit 1. Shortly stated, Mathieson had 1,774 different pictures of child pornography on his computer. The majority of the images were of prepubescent female children, between the ages of four to ten posing with their legs spread apart, exposing their genitals. A number of images depict young girls being vaginally, anally and digitally penetrated by adult male predators.

Other images appear to have been taken at nudist colonies or nude beaches where the photographer has used a zoom lens to focus on the vulvas of unsuspecting prepubescent females. [ 3 ] Mathieson was identified after he went to a local Wal-Mart store on April 10, 2010. There, using an external storage device, he printed some of his horde of child pornography at a self-serve photo kiosk. The self-serve kiosk required that he identify himself for the purpose of billing and Mathieson inputted an alias, calling himself S. Culp. In addition he did not provide his real telephone number.

He then printed and thereby made child pornography. After a walk around the store he moved to another machine and repeated the process, once again misidentifying himself as S. Culp. He viewed some of his child pornography concentrating the machine’s focusing mechanism on the vaginal area of the images of female children while attempting to conceal the screen when other customers walked by. [ 4 ] Wal-Mart staff told him to leave. He did so but insisted on paying for the prints he had run off. Mathieson returned to Wal-Mart on April 12, 2010 to run off pictures of his cat.

When he did that he used his real name and actual telephone number. [ 5 ] Mathieson’s identity and his cache of child pornography was discovered because a Wal-Mart customer distressed by what she had seen on April 10 th called the police about the events. The police investigated and discovered his identity and obtained a search warrant leading to the discovery of his collection of child pornography.

[ 6 ] Like many others charged with similar offences, Mathieson has no prior criminal record. He is thirty-three years old. A very thorough pre-sentence report filed as an exhibit outlines his background and biography. Of singular note, Mathieson has severe intellectual deficits and has suffered a life filled with misfortune. When he was three, Mathieson underwent open-heart surgery and contracted the HIV infection from transfused blood. As a result of this and his intellectual deficits he receives a Provincial and a Federal pension that are sufficient to allow him to live comfortably, as a single man.

Nonetheless, he needs the ongoing assistance of his mother so that he is not actually living fully independently. Despite being allowed to graduate from Grade 12, the accused apparently reads and writes at a primary school level. His arithmetic abilities are substantially more modest. [ 7 ] Mathieson requires his mother’s assistance because he has been developmentally delayed since birth, as a result of oxygen deprivation. He is also afflicted by mild cerebral palsy. His cognitive level was assessed in 2010 during investigations into an allegation of assault against a girlfriend that was ultimately withdrawn.

That assessment was filed as Exhibit 3. That testing attributed him with IQ scores in the 60’s and 70’s depending upon what component of intellectual ability was being scored. Those assessments stand in marked contrast to his apparent facility with computers and his obvious appreciation of the wrongness of his possession of child pornography. Perhaps that is why the psychological assessment that is Exhibit 3 concludes “[i]n brief, this 32-year-old man has a mild intellectual disability, but he can appear more capable sometimes.

Based on his mother’s report, Bobby has some well developed community use and leisure/social skills, as described in detail above. However, his immaturity, impulse dyscontrol, irresponsibility, and self- involvement can overshadow his cognitive deficits.” [ 8 ] The pre-sentence report contains extended comment from Mathieson’s mother about several attempts Mathieson made to get prepubescent females to remove their panties when he was a child and a further incident that occurred when he was a teenager.

Further, his mother described his only adult relationships as having occurred with two physically “childlike” women, both of whom were also intellectually retarded. [ 9 ] Offences related to child pornography are regrettably common. They are a scourge of society generally and the harm to the victims depicted is likely incalculable. Many prior cases describe the harm done by the production of this material, as outlined at endnote 1. These dangers, detailed in many of the judgments, dealing with child pornography, include the ease with which this material can be disseminated.

As the prior decisions note, the damage and danger of child pornography begins at the individual level.The children who are abused in the original production of the pornography are traumatized in a variety of ways including being traumatized by physical pain and physical injury caused by insertions into orifices not designed or adapted to receive them at that stage in life. Additionally, being subjected to sexual assault and abuse as a child necessarily brings with it psychological damage.

Moreover, the permanence of the imagery created continues to perpetuate the child’s victimization and contributes to the victim’s ongoing fear of recognition. [12] In arriving at a proportionate sentence for these types of offences the mitigating factors that have been identified and that need to be weighed have been described variously but include the following concerns.

(1) The absence of a criminal record: this applies to the accused.

(2) The youthful age of the offender: this does not apply to Mathieson, who is thirty-three. However, his intellectual abilities are substantially compromised through physical insult rather than by a lack of maturity so that this mitigating factor, in his unique circumstances must be accorded some weight.

(3) The existence of a plea of guilty: this applies in its most mitigating form. The matter was never set for trial. The prosecution proceeded in the Ontario Court of Justice without a preliminary inquiry.

(4) Insight into the problem: this does not apply to Mathieson who has no insight into his attraction to child pornography. Indeed, the pre-sentence report contains his mother’s observation that when she has visited him a number of times during his pre-sentence detention he was reluctant to take any responsibility for his actions. Likewise his biological mother reports that Mathieson does not seem to understand the seriousness of his actions.

(5) Evidence of voluntary treatment prior to arrest or sentence is a further mitigating factor that is absent in this case.

(6) Likewise, evidence of a willingness to comply with future treatment is also absent so that it does not have any mitigating weight in the final assessment in this case.

(7) Equally, there is no psychiatric testing that establishes or even tends to suggest that Mathieson is not a paedophile.

(8) Moreover, there is no psychiatric testing or testimony establishing that the offender does not otherwise pose a threat to the community.

(9) Further, Mathieson cannot point to the consequential impact of these criminal charges including loss of employment or reputation, effect on familial relationships or economic consequences as mitigating factors to moderate the sentence to be crafted.

(10) As Mathieson has been detained in custody after his arrest, he has no especially onerous judicial interim release conditions to point to in mitigation of his sentence.

(11) Hence, he can point to extended pre-sentence custody as a substantial mitigating factor to be taken into account in determining a proportionate sentence. [13] The aggravating factors that have been identified and that need to be weighed have been described variously but include the following concerns.

(1) Evidence of production or distribution of child pornography: this applies in a minimal way. Mathieson pleaded guilty to making child pornography. As noted above, he copied a very small portion of his cache onto an external storage device (an SD card from a Nintendo DSi) and then used that device at a self-service photo kiosk at a Wal-Mart store. He printed up copies of the images at two separate kiosks at the store. The number of copies was not identified in Exhibit 1 and the number of copies that Mathieson made is not identified in the Crown’s brief.

However, there is no suggestion in the evidence that these were other than for his personal prurient use. There was no commercial motivation. Nor is there any indication that Mathieson was involved in chat-room discussions or that he made his collected materials available to anyone else. Further, the evidence is silent as to whether he purchased any of his child pornography. From all of that, I conclude that, to the extent that one can characterize cases of making child pornography as more or less serious, this case is at the less serious end of the spectrum of this offence.

(2) Evidence the offender is a paedophile with the attendant risk that the pornography may in some way be instrumental in the physical victimization of children is not an aggravating factor that the Crown has clearly demonstrated exists in this case, although the spectre of this risk exists. While there is anecdotal commentary from the accused’s mother that the accused may be or at least have paedophilic tendencies, there is no psychiatric evidence to that effect.

(3) T he degree of intrusion and repulsiveness of the sexual acts depicted is an aggravating factor. It applies to some extent given that a number of images depict young girls being vaginally, anally and digitally penetrated by adult male predators. However, there is a hierarchy of horrors in these crimes and less than half of Mathieson’s material involved this most serious form of child pornography. Additionally, all of Mathieson’s material are digital stills. He did not have any movies of any sort and therefore none with a sound-track.

(4) The very youthful age of the children photographed is an aggravating factor. The majority of the images in this case were of prepubescent female children, between the ages of four to ten posing with their legs spread apart, exposing their genitals. Once again, this is an aggravating feature but not the worst case as described in other decisions.

(5) T he quantity of the images possessed can be an aggravating feature and here the catalogue of imagery disclosed in Exhibit 1 is substantial; viz 1,774 discrete images of child pornography, albeit they are all

photographs and not videos.

(6) T he nature of the media depicting the pornography can be an aggravating factor. As noted previously, his was a collection of photos, not movies and not movies with a sound-track.

(7) The manner of acquisition - simple receipt or non- commercial acquisition versus purchases, internet site purchases or international connections is an aggravating factor. The evidence in this case does not point to anything other than searching out and downloading photographs available without cost from internet sites.

(8) A criminal record for related offences would be an aggravating feature but it does not exist here. Mathieson has no prior criminal record. The Position of the Defence [13] Mr. Shea points to the many mitigating factors noted above and submits that a sentence in the nine to twelve months range after due credit for pre-sentence custody would be appropriate. He urges that since maximums are not reserved for the worst case committed by the worst offender, likewise the minimum is not reserved for the most minimal facts and the best offender.

In this case, given the amount of disclosure and scheduling conflicts between him and the officer-in-charge, this guilty plea was entered very quickly. Indeed, once he met the officer-in-charge to review the seized child pornography, the accused entered his plea of guilty the very next day, so that this should be seen as an extremely early guilty plea given the circumstances of this case. Further, Mathieson was very co-operative with the police. He directed them to his computer and made inculpatory admissions when interrogated. [14] While conceding that Mathieson had a sizeable collection of child pornography Mr.

Shea notes that it is not dissimilar in size to other collections identified in the precedents and most importantly it did not contain any videos. Further, given Mathieson’s cognitive limitations while collecting this amount of material was not a spontaneous occurrence, the recognition of the gravity of the act of doing so and the consequences of doing so were surely less obvious to a man of Mathieson’s limitations and that must be taken into account.

Mathieson, he submitted, simply does not have the intellectual wherewithal to easily have empathy for the children being abused nor does he have the intelligence to appreciate that his collection of this material and the offence of possession of child pornography feeds the production of like material. [15] Despite the relatively large collection of child pornography, Mr. Shea stresses that Mathieson was not involved in pornography chat-rooms and did not make his collection available to anyone else via the internet.

His collection contained no videos of any sort and while he “made” child pornography, he did so solely by printing out copies of photos that he had collected electronically, which he placed into albums that were located and seized when he was arrested. He did not independently “create” any new child pornography. His making was not for commercial use or for distribution; it was for his viewing. In sum, this is a very minor or modest form of the offence of making child pornography. The Position of the Crown [16] On behalf of the Crown, Ms. Vadacchino takes a markedly different view.

Her position is that while there were no videos this was a very large collection of child pornography and a very significant percentage of it was of the particularly vile kind that depicts young children actually being sodomized or raped. Of the twenty representative photos made available to the court eight of them depicted young children being subjected to that kind of sexual assault.

The best that can be said of this collection is that only a relatively small percentage of the images were of infants being abused, which is to say that this was vile and nauseating stuff. [17] In the Crown’s submission, given the size of the collection seized, were it not for Mathieson’s intellectual deficits a penitentiary sentence in the three year range after taking pre-sentence custody into account would be appropriate. However, Ms. Vadacchino acknowledges that in his case a penitentiary sentence may simply be too dangerous for a man as intellectually challenged as Mathieson.

Moreover, having made inquiries of the relevant penal authorities the Crown submits that the accused would be best served by incarceration at the Ontario Correctional Institute that has a specialized unit designed to meet the needs of those with cognitive disabilities who have committed sex or sex-related crimes. Accordingly, the Crown submits that a sentence of time served plus two years less a day followed by three years of probation on protective and rehabilitative terms is appropriate. [18] It was the Crown’s submission that this range is consistent with other cases decided in this Region.

She points to two relatively recent cases where young first offenders received substantial reformatory terms for much smaller collections. In R. v. Alcorn , [2008] O.J. No. 4386, (OCJ) D.A. Harris J. imposed a sixteen month sentence, plus three years’ probation on a nineteen-year-old first offender who pleaded guilty to possessing and making child pornography. Alcorn made his cache available to others via a peer-to-peer file sharing programme and burned many of the images that he had collected onto a compact disc.

His collection consisted of 437 unique images of child pornography, much of it of the kind collected by Mathieson and some even more depraved. In R. v. Rivers , an unreported sentence imposed by me on January 15, 2009, Mr. Rivers was sentenced on one count of possession of child pornography and one count of making it available. He was also a nineteen year old first offender. His cache consisted of 233 images and ten videos depicting child pornography. He was also sentenced to sixteen months of imprisonment. Finally, Ms. Vadacchino points to R. v. Tinkler , [2010] O.J.

No. 2811 where I sentenced a retired university professor to twenty months incarceration after pleas of guilty to one count of possession of child pornography and one count of distributing child pornography. He possessed 342 images and two videos of child pornography. [19] In essence, the position of the Crown is that the inordinately large collection amassed by Mathieson requires that he be sentenced to a substantially greater sentence than that imposed on others in this Region for collections that are mere fractions of the size of the one at issue here.

Further, Mathieson’s making of child pornography by copying a portion of his collection and taking it into a public place and then making copies of it in a public place merits censure and exhibits a dangerous lack of self-control and judgment. [20] Finally, while there is no formal psychiatric evidence, the psychological evidence of impulsivity, together with the anecdotal evidence from family and the physical evidence seized from his computer, (which also contained 2,042 photographs of child nudity and another 2,698 photographs of non-nude children,) demonstrates Mathieson’s attraction to children and hence his risk to the community.

The Crown submits that the danger Mathieson represents needs to be dealt with and controlled through a sentence that deters and denounces his behaviour and through a sentence that will promote his rehabilitation at the specialized unit at O.C.I., to which he ought to

be recommended by the Court. The Sentence Imposed [21] In R. v. C.A.M ., 1996 CanLII 230 (SCC) , [1996] S.C.J. No. 28 at [28] Chief Justice Lamer described the duty cast on a sentencing judge to draw upon all of the legitimate principles of sentencing to determine a just and appropriate sentence, which reflects the gravity of the offence committed and the moral blameworthiness of the offender. That duty is now circumscribed by the Code . Beyond the purposes of sentencing set out in s. 718 the fundamental principle that must animate any sentence is described in s. 718.1.

A sentence must be proportionate to the gravity of the offence and proportionate to the offender’s degree of responsibility in the commission of the offence. [22] Moreover, when, as here, a court imposes a sentence for an offence that involves the abuse of a person under the age of eighteen, s. 718.01 of the Code mandates that primary consideration shall be given to the objectives of denunciation and deterrence of such conduct. [23] Additionally, any sentence must take into account all of the aggravating and mitigating principles and circumstances including evidence that the offender, in committing the offence abused a person under the age of eighteen years and a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [24] Generally, there is no one-and-only fit and correct sentence for any case because judges may reasonably attribute varying weight to particular facts or circumstances.

Nonetheless, “… it is appropriate for trial judges to consider a starting point or range of sentence for a particular offence committed in particular circumstances. This approach accords with the principle that like crimes will attract like sentences. In many if not most cases, after considering all the relevant factors that affect sentence, a trial judge will impose a sentence that is within the developed range.” ( see R. v. Devaney , 2006 CanLII 33666 (ON CA) , [2006] O.J. No. 3996 (C.A.) at [13]) The starting points here are the minimum mandatory sentences required to be imposed.

Those points are a floor and not a ceiling. [25] At paragraph [8] of R. v. Brandridge, an unreported OCJ decision from Newmarket released on October 1, 2010, Mr. Justice Blouin notes that the recent decisions of R. v. Smith , [2008] O.J. No. 4558 and R. v. Bock , 2010 ONSC 3117 (CanLII) , [2010] O.J. No. 2277 review the range of sentences that have been imposed in these kinds of cases.

Further, as noted in the Crown’s submissions, there have been a number of recent cases in this jurisdiction where sentences in the sixteen to twenty month range have been imposed. [26] While I accept that the size of Mathieson’s trove is a factor to be taken into account, it is merely one factor and not necessarily the engine that drives this sentence. There are, as Mr. Shea submitted, a number of other cases where the collection at issue was as large or even larger and yet the sentence imposed did not reach the limits urged by the Crown in this case. For example, in R. v.

Strohmeier , 2007 ONCJ 141 (CanLII) , [2007] O.J. No. 1250 (OCJ) , De Filippis J. imposed a sentence of eighteen months’ imprisonment for possession of a collection that was orders of magnitude larger than Mathieson’s. Equally to the point, in the often referred to decision of R. v. Kwok , 2007 CanLII 2942 (ON SC) , [2007] O.J. No. 457 where Malloy J. imposed a sentence of one year’s imprisonment for possession of a larger and more virulent collection than Mathieson’s. In noting these precedents, I have not lost sight of the fact that there is a second count charged of making child pornography.

Further, I think it is fair and accurate to note that sentences for possession of child pornography are getting longer, albeit on a gradual and not a precipitous basis. It may well be that part of the impetus for this gradual increase is the failure of shorter sentences to stem the tsunami of filth that is oscillating through the internet. The comments of Feldman J.A. in R. v. D.G.F. , 2010 ONCA 27 (CanLII) , [2010] O.J.

No. 127 at [21] make the process c ourts having been going through patent: 21 Over the last two decades, courts have been on a learning curve to understand both the extent and the effects of the creation and dissemination of child pornography over the internet and to address the problem appropriately: see , for example, R. v.

Sharpe , 2001 SCC 2 (CanLII) , [2001] 1 S.C.R. 45 ; ... . (ellipsis added) A number of relatively lenient sentences had been imposed in cases where child pornography was downloaded or distributed, there was no sexual abuse or making of child pornography involved, and there were many mitigating circumstances: see for example, R. v. Schan (2002), 2002 CanLII 41613 (ON CA) , 155 O.A.C. 273 ; R. v. Weber (2003), 2003 CanLII 28579 (ON CA) , 175 O.A.C. 138 ; R. v. Kim (2004), 2004 CanLII 32118 (ON CA) , 181 O.A.C. 88 .

However, in cases that involved making child pornography and child sexual abuse, significant custodial sentences were imposed: see, for example, R. v. Jewell; R. v. Gramlick (1995), 1995 CanLII 1897 (ON CA) , 100 C.C.C. (3d) 270 (O.C.A.) ; R. v. R.W. , [2001] O.J. No. 2810 . [27] Counsel are agreed that Mathieson has been detained a total of 229 days since his arrest. He pleaded guilty before me on October 7, 2010. Today is December 16, 2010. The period of October 7 th to December 15 th is period of 69 days. Had I sentenced Mathieson on October 7 th he would have earned remission for that period.

He also would have been likely to have commenced rehabilitative treatment at O.C.I. My view is that he is entitled to accelerated credit for that period and I give him 100 days credit for that period. He is also entitled to credit on a one for one basis for the further 160 days of pre-sentence custody that he has served.

Accordingly, the total pre-sentence credit against the sentences to be imposed is 260 days, which is a period of slightly more than eight months. [28] Few cases are exact templates of each other but in my view Mathieson’s moral turpitude, i.e. his degree of responsibility for these offences, given his intellectual frailties, is certainly no worse than that of the accused in Tinkler , where the accused was a retired university professor. The intellectual disparity between them could not be greater.

Nonetheless, Mathieson’s abiding interest in and devotion to child pornography is demonstrated by the extent of his collection, which remains an aggravating factor to take into account. [29] As noted above in D.G.F. , significant custodial sentences will be imposed in cases that involved the actual making of child pornography. That is not the case here. This was a case of “making” by printing on a modest scale. Further there was, as noted previously, no commercial motivation and no dissemination of the child pornography possessed or made.

However, the size of the collection is substantial and Mathieson lacks insight into his crime, which increases the risk that he represents to the community. An example of that risk is his brazen printing of paper copies of child pornography in a public place, which was the incident that led to his exposure.

[30] Returning once again to D.G.F. I note Justice Feldman’s observation at [22] that “the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution.

The victims are innocent children who become props in a perverted show, played out for an ever-wider audience not only of voyeurs but of perpetrators.” [31] Applying the principles described above to the facts and circumstances of this case, (including balancing and weighing the mitigating and aggravating features that exist,) but for the pre-sentence custody as noted previously at [27], I would have imposed the maximum reformatory sentence on the possession count and a concurrent minimum sentence on the count of making child pornography.

In the result, giving Mathieson eight months’ credit for pre-sentence custody, I impose a sentence on the possession of child pornography count of sixteen months’ imprisonment. I impose a concurrent sentence of one year on the making count, on these facts, in Mathieson’s circumstances. [32] I will deal with the victim fine surcharges and the various ancillary orders including s. 161, S.O.I.R.A., DNA, extended concurrent probation on appropriate terms and a forfeiture order of the computer equipment used by the offender after delivering this portion of my judgment.

The warrant of committal will be endorsed with my recommendation that Bobby Mathieson serve his sentence at the Ontario Correctional Institute. Dated at St. Catharines this 16 th day of December, 2010 _________________________ J.S. Nadel, (OCJ) [7] Possession of child pornography is a crime of enormous gravity, both for the affected victims and for society as a whole. For that reason, the courts have repeatedly recognized that the most important sentencing principles in cases involving child pornography are general deterrence and denunciation.

Further, the offence of possession of child pornography requires the imposition of sentences which denounce the morally reprehensible nature of the crime, deters others from the commission of the offence, and reflects the gravity of the offence: …