R. v. L.H.H., 2023 BCPC 82

Citation: R. v. L.H.H. 2023 BCPC 82 Date: 20230412 File No: 43747-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. L.H.H. BAN ON PUBLICATION pursuant to s. 16(4) of the Sex Offender Information Registration Act REASONS FOR SENTENCE OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Crown: W. Silliker Counsel for the Defendant: S. Runyon Place of Hearing: Campbell River , B.C. Date of Hearing: January 30, 2023 Date of Judgment: April 12, 2023 [ 1 ] L.H.H. has pleaded guilty that on or about May 28, 2021, he possessed child pornography contrary to s. 163.1 (4) of the

[ 1 ] L.H.H. has pleaded guilty that on or about May 28, 2021, he possessed child pornography contrary to s. 163.1 (4) of the Criminal Code .

Crown proceeded by way of Indictment reflecting its view that this was a serious offence. [ 2 ] Crown asks that I impose an 18 month custodial sentence followed by one and one-half years of probation, a ten year prohibition order pursuant to s. 161 of the Criminal Code as well as a twenty year order to comply with the Sex Offender Information Registry Act . [ 3 ] L.H.H. says that a two year Conditional Sentence Order, which is a custodial sentence but served in the community, followed by one year of probation is a fit and just sentence that recognizes L.H.H.’s particular circumstances.

The conditional sentence order would include a house arrest condition for nine months as well as counselling and a referral, if recommended by his conditional sentence order supervisor or probation officer, for a forensic psychiatric assessment and treatment. [ 4 ] Turning to the circumstances, Microsoft reported to the National Centre for Missing and Exploited Children that a user had uploaded an image that appeared to be child pornography. On October 21, 2021 the police obtained and executed a search warrant at L.H.H.’s home.

They recovered six devices containing hundreds of thousands of videos as well as images of child pornography. [ 5 ] Sentencing judges are not always required to actually view these videos or images and Crown, with my agreement, summarized what was shown on thirteen videos and images, a very tiny sample of the kind of child pornography in L.H.H.’s possession. I accept that they are representative of L.H.H.’s collection of child pornography. [ 6 ] I need not explicitly summarize these images and videos.

They are graphic, explicit and disturbing depictions of sexual abuse and sexual assault of little girls, the youngest estimated to be five years of age up to an estimated age of thirteen or fourteen years old. Eight of these thirteen samples involved girls estimated to be between five and ten years. [ 7 ] They involve all categories of child pornography ( R. v.

Booth , 2019 BCPC 160 ), from the least serious to the most serious: one image depicting erotic posing with no sexual activity, sexual activity between children; non-penetrative sexual activity between adults and children, penetrative sexual activity (oral, vaginal and anal) between children and adults and one example I would classify as sadism which depicts bondage. All the adults are male. All the children are girls.

Some of these images/videos include commentary that furthers the sexual objectification, degradation and sexual abuse of these girls. [ 8 ] I am mindful that the primary purpose of sentencing is to contribute to a just, peaceful and safe society by imposing just sanctions that will serve one or more of the following objectives: denunciation; deterrence; removal of an offender from the community where necessary; rehabilitation of an offender; reparation to victims and the community; promotion of responsibility on the part of the offender and acknowledgment of the harm to victims and the community. [ 9 ] Assessing a fit and just sentence is one of the most difficult and challenging tasks for judges.

A sentencing judge must consider the unique characteristics of the person who has been convicted of an offence, the person or community harmed by the offender’s actions, and the circumstances of the offence. A just sentence cannot be based upon anger or community outrage and cannot be based on sympathy for the person before the court.

A just sentence must reflect previous sentencing decisions to ensure that sentences for similar offences in similar circumstances are predictable and based upon the law. [ 10 ] A sentence must also properly reflect the seriousness of the offence and the offender’s own level of moral culpability, keeping in mind that a sentence should be similar to sentences imposed in similar circumstances upon other offenders so there is consistency; a sentence should not be overly harsh and all alternatives other than jail should be considered. [ 11 ] Aggravating factors tending to increase a sentence as well as mitigating factors tending to decrease a sentence must be considered. [ 12 ] A sentence must not be based upon sympathy or outrage, but must properly reflect and achieve the objectives of a sentence as expressed in our laws. [ 13 ] Sentencing guidelines were revisited by The Supreme Court of Canada in its decision R. v.

Friesen , 2020 SCC 9 . The Court was very clear and explicit that sentences for sexual offences involving children, including offences of sexual interference, must increase to reflect the serious potential and actual harm to children and the wrongfulness of these offences (para 76). Sexual offences against children will attract greater punishment precisely because they are vulnerable to exploitation by an adult.

The Court in Friesen also noted the sad fact that “children are disproportionately vulnerable to sexual offences and that girls and young women are disproportionately victimized relative to boys.” (para 54). [ 14 ] Furthermore, lest people consider that sexual offending against children is rare, the Court also cited statistics that in Canada “… both the overall number of police-reported sexual violations against children and police-reported child luring incidents more than doubled between 2010 and 2017 ...”, even though the number of actual offences are clearly understated (para 46) likely because many victims never report them. [ 15 ] The court’s comments included reference to the pervasiveness of online access to children and child pornography: [47] New technologies have enabled new forms of sexual violence against children and provided sexual offenders with new ways to access children.

Social media provides sexual offenders “unprecedented access” to potential child victims ( R. v. K.R.J. , 2016 SCC 31 , [2016] 1 S.C.R. 906, at para. 102 ). The Internet both directly connects sexual offenders with child victims and allows for indirect connections through the child’s caregiver. Online child luring can be both a prelude to sexual assault and a way to induce or threaten children to perform sexual acts on camera (see R. v. Woodward , 2011 ONCA 610 , 107 O.R. (3d) 81; R. v. Rafiq , 2015 ONCA 768 , 342 O.A.C. 193). The Internet has also “accelerated the proliferation of child pornography” ( R. v.

Morelli , 2010 SCC 8 , [2010] 1 S.C.R. 253, at para. 114 , per Deschamps J.). [48] Technology can make sexual offences against children qualitatively different too. For instance, online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that

others may be accessing the films or images, which may resurface in the child’s life at any time ( R. v. Sharpe , 2001 SCC 2 , [2001] 1 S.C.R. 45, at para. 92 ; R. v. S. (J.) , 2018 ONCA 675 , 142 O.R. (3d) 81, at para. 120 ). [49] Both Parliament and the courts have begun to respond to the prevalence of, new forms of, and qualitative changes in sexual violence against children. Parliament has attempted to keep pace with these developments by amending sentencing provisions for sexual offences against children ( K.R.J. , at para. 103 ).

Courts too have been on a “learning curve” to understand both the extent and the effects of sexual violence against children and sentencing has evolved to respond to the prevalence of these crimes (R. v.

F. (D.G.), 2010 ONCA 27 , 98 O.R. (3d) 241 , at para. 21 ). [ 16 ] While all objectives of sentencing must be considered, weighed and balanced in accordance with the gravity of the offence and the moral blameworthiness of the offender, denunciation and deterrence must be given primary consideration for sexual offences against children which, includes the offence of possession of child pornography. [ 17 ] With the legal framework in mind, I turn back to the circumstances of this case and L.H.H. [ 18 ] L.H.H. is 66 years of age.

He had a normal upbringing, has and had close ties with his six siblings and attended post-secondary education, graduating from BCIT as a boilermaker. By all accounts, he has been a hard-working, productive member of his community. He has two sons from his first marriage. He has been with his second wife for fourteen years and is now retired. He enjoys travel in his RV with his family. [ 19 ] I have reviewed all the authorities that counsel provided although I will not mention them all in these reasons.

What struck me about the factual basis summarized in each of these sentencing cases was that the accused were all male and the majority were men who did not have a prior record and led, on the surface, a normal life. They were employed, had families and friends. Common to these individuals was the belief that viewing child pornography was victimless. Also common was the assertion that the child pornography “popped up” while they were viewing adult pornography and it was simply accidental. They were usually cooperative with the police when their offences were discovered. They were compliant with bail conditions.

They were, for the most part, remorseful and had, through counselling after their arrest, acquired insight into the harms that child pornography causes its victims. [ 20 ] L.H.H. initially believed that watching child pornography was a victimless crime and that it was not real, “like fiction”. He told his wife that saving all the child pornography was a game and that he initially viewed child pornography by accident. He told his wife he knew it was wrong. [ 21 ] I had the benefit of a Pre-Sentence report and a report from the Upper Island Sex Offender Program.

The latter report advised that L.H.H. was experiencing “increasing remorse towards both his family and his victims.” He was encouraged to use this remorse to “combat his cognitive and behavioural distortions” noting that “in most cases, he is doing this” and when he was not, he was challenged by the group members.

The report writers state that L.H.H. has made considerable progress in the past seven months but “still had a lot to learn” including while in a Forensic Sex Offender Program offered during any period of incarceration and/or probation. [ 22 ] I accept that with the appropriate counselling he is likely a low risk to reoffend. I also keep in mind that the Upper Island Sex Offender Program is similar to the program offered in the correctional system and that Mr.

Owen (RSW Upper Island Sex Offender Program) has been advised by former clients that their group sessions are much more confrontational and intensive. [ 23 ] I have also reviewed the psychological assessment and report provided by Dr. Farstad of the Forensic Psychiatric Services Commission. L.H.H. reported to her that he had “rare” thoughts or fantasies about sexual activity with children or teenagers. Dr.

Farstad was of the opinion that L.H.H. was at low to moderate risk of future child pornography offences and a low risk of future contact sexual offences, if he remains engaged in sex offender treatment and “continues to make improvements in risk relevant factors (i.e. challenging attitudes that support accessing child pornography, perceiving the children in the images/videos as human beings who are being victimized) …”. [ 24 ] The sentences imposed for this offence typically involves custody. I agree with L.H.H. that there are some cases in which a conditional sentence order has been imposed. In R. v.

Dutchession, 2021 ONCJ 480 , the offender was 52 years old. A one year conditional sentence order was imposed but a large factor was the fact that during the pandemic, no treatment or counselling would be provided while in custody. Furthermore, there were no videos in his collection, only images. R. v. Vandermeer , 2021 BCPC 94 , involved a 78 years old man. Crown sought four months of custody and a ten month conditional sentence order was imposed. There were only 91 images, no videos and those were found to be at the lowest category of child pornography in terms of severity. Mr.

Vandermeer was in poor health and the sentencing judge concluded that incarceration would risk a “serious adverse impact on his physical health.” [ 25 ] R. v. Doucette , 2021 ONSC 371 , involved a 53 year old man. The

summary appeal court varied a six month jail term and the offender was allowed to serve the remaining four months on a conditional sentence order. That case involved a collection consisting of four videos, nine images and fictionalized accounts of child pornography. The offender had completed his three year probationary term, was in poor health and the Pandemic was also considered an important factor. [ 26 ] I agree that exceptional circumstances are not required for a court to impose a sentence outside an accepted or suggested range.

What is required is a focus on the individual before the court, in addition to a consideration of the circumstances of the offence and the other considerations that the sentencing judge must assess in crafting a fit sentence. [ 27 ] Based on my review of the authorities, the suggested range set out in R. v. Kreibom , 2020 BCPC 155 , for possession of child pornography is between six months to fifteen months but the sentencing judge relied on some case authority that pre-dated Friesen (R. v. Alexander , 2019 BCCA 100 ). Mr.

Kreibom, who was 63 years old, received a ten month custodial sentence which was between the one year sought by Crown and six months sought by Mr. Kreibom. He was remorseful, had undergone eight months of counselling with Upper Island Sex Offender Program, had insight but had been warned previously by the police during an investigation for child pornography. The videos depicted all categories of child pornography except for bestiality.

[28] R. v. Perry, 2022 BCPC 251, involved a 40 year old man. He received a custodial sentence of eighteen months followed bytwenty-four months of probation. He had no prior record and had lived a pro-social life. He had approximately 1500 images in hispossession, there was a luring aspect involved and he was found to be a risk to children. Judge Mrozinski, at para. 22 suggested that theeight month custodial sentence in Alexander was likely low and possibly no longer fit post Friesen.

After an extensive review ofauthorities, she concluded at para. 28 that “mitigating and aggravating factors have served in many of these cases to anchor a sentencewith the range of four months to two years.” [29] In R. v. Adams, 2022 BCSC 2289, the 31 year old offender was sentenced to eighteen months less two months due to his heartcondition. The sentence was between the two years sought by Crown and the twelve to fifteen months suggested by Mr. Adams. He hadlittle to no insight, no remorse and was at high risk to reoffend.

His collection was comprised of 357 images and five videos. [30] As it typically is the situation, the circumstances in L.H.H.’s case are not exactly the same as the case authorities counselprovided. However, they provide some guidance. L.H.H. says that a conditional sentence order would satisfy the principles ofdenunciation and deterrence.

He asserts that a house arrest condition for the first nine months would be a meaningful punitive sanctionbecause he would not be able to enjoy his RV or pursue his love of the outdoors, hunting and travel. [31] However, I must also consider the admonition of the Supreme Court of Canada in Friesen that sentences involving abuse ofchildren must reflect the gravity of the offence. I recognize that Friesen involved a sexual assault of a child but accept that I shouldconsider the court’s ruling that sentences for sexual offences against children must be increased to reflect their seriousness.

Possession ofchild pornography, particularly where the collection contains videos of the most severe categories, is a serious and grave offence. It is,itself, child sexual abuse: R. v. Andrukonis, 2012 ABCA 148 , 2012 A.J. No. 481 at para. 29. [32] There are a number of mitigating factors. L.H.H. has no prior criminal record except for very dated offences 30 years ago that Iwould consider minor. He pleaded guilty at an early stage and has spared the state the expense of a trial.

He started counselling with theUpper Island Sex Offender Program in June, 2022 and has attended twenty-five of the scheduled twenty-nine sessions up to the date thereport was written on January 26, 2023. The absences were due to illness and a three week hunting trip. He has developed some insightinto the harm that child pornography perpetuates against children. He has remorse which he expressed to his wife and to this court at theconclusion of the sentence hearing. [33] There are aggravating factors. First is the size of L.H.H.’s collection which was described as being in the hundreds ofthousands.

Second is the nature of the videos and images which include all five categories of child pornography. These are horrificvideos and images which include penetration, fellatio, and bondage which I would consider sadistic in nature. In one image a little girlestimated to be 11 or 12 years old is naked, seated on a floor and is wearing a dog collar and chain, has duct tape over her mouth and herhands are bound behind her back. I also consider the very young age of many of the victims shown in the video, some were estimated tobe as young as five years old. [34] L.H.H.’s moral blameworthiness is high.

Viewing child pornography for his own sexual gratification was a deliberate choice. He knew it was wrong and conducted his viewing and collecting of these videos and images in secret. The makers and distributors ofchild pornography are in business because they have customers like L.H.H. The internet has provided an easy way to publish thesehorrific videos and images and spread them across the globe.

It is difficult to investigate, track and find the vast network of those whoproduce, publish and consume these depictions of the worst sort of child abuse. [35] I am not persuaded that a Conditional Sentence Order is appropriate given the gravity of this offence, the horrific nature of thescenes depicted in the videos and images which reflect L.H.H.’s collection and L.H.H.’s own moral blameworthiness. Denunciation,deterrence both general and specific must be primary considerations. Rehabilitation is also an important objective and the sentence Iimpose, and conditions following will support that.

L.H.H.’s circumstances are not as serious as in Adams and I conclude that eighteenmonths is too high. [36] After considering the steps that he has taken in counselling as well as balancing that with the gravity of this offence and his highdegree of moral blameworthiness, I sentence L.H.H. to a custodial period of thirteen months. I recommend that this sentence be served atFord Mountain where he will obtain additional treatment and counselling. [37] This will be followed by a period of probation for two years. The following conditions will apply:

a) You must keep the peace and be of good behaviour.

b) You must appear before the court when required to do so by the court.

c) You must notify the court or your probation officer in advance of any change of name or address and promptly notify the court or theofficer of any change in employment or occupation.

d) You must report in person to a probation officer at Campbell River within two business days after your release from custody, unlessyou have obtained before your release from custody written permission from a probation officer to report elsewhere or within a differenttime frame. After that, you must report as directed by your probation officer.

e) When first reporting to a probation officer, you must provide them with the address or location where you live and regularly sleepand your phone number. You must not change them without notifying your probation officer in writing at least 7 days before making thechange.

f) You must not have any contact or communication directly or indirectly with, or be in the presence of, any person under the age of 16years of age. [38] The exceptions are as follows:

a) With a court order made by a master, judge or judicial justice who has reviewed this order.

b) In the immediate presence of an adult person over the age of 16 years, who is also in the immediate presence of the person under 16 years.

c) In the immediate presence of a guardian of the child.

d) Incidental communication, contact or presence in the course of your or the child’s employment.

e) Incidental communication, contact or presence in a public place where other adults are present.

f) You must not seek, obtain, or continue with any volunteer position or employment that involves being in a position of trust or authority towards a person under the age of 16 years, unless you have the advance written permission of your probation officer.

g) If you are given permission, you must carry it with you in paper or electronic format at all times when you are engaged in the activity requiring permission.

h) If a peace officer finds you engaged in the activity and requests to see the permission, you must show it to the officer.

i) You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer.

j) You must not possess or use any device capable of accessing any computer network including the internet, unless: i. you do not delete the history of the internet use from the device; ii. the device you use retains and displays the history of internet use; iii. you do not install or have any applications or platforms on the device that automatically deletes messages, videos, or photos viewed from the device; permits incognito internet browsing; or allows data to be deleted from the device remotely; iv. you do not communicate or attempt to communicate with any person you know to be or who reasonably appears or represents themselves to be under the age of 16 years through any electronic means, including, but not limited to, telephones, social media and computers, unless they are members of your family; v. upon the request of your probation officer or a peace officer, you must give them access to any device in your possession that is capable of accessing the internet or any computer network so they can verify compliance with this condition; and vi. you must not possess any pornographic materials or access any pornographic material by electronic means. [ 39 ] Count 1 Information 85773-1 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. [ 40 ] The samples will be taken from you while you are in custody and you must submit to the taking of the samples. [ 41 ] Pursuant to s. 490.012 of the Criminal Code , you are required to comply with the Sex Offender Information Registration Act for 20 years. [ 42 ] Pursuant to s. 161 of the Criminal Code , you are prohibited for 3 years commencing on the date you are released from prison from:

a) 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;

b) having contact or communicating by any means with a person who is under the age of 16 years. [ 43 ] The exceptions are as follows:

a) incidental contact or communication in the course of yours or the employment of the person under the age of 16 years;

b) You are in the immediate presence of an adult person over the age of 18 years, who is also in the immediate presence of the person under 16 years.

c) You are in the immediate presence of a guardian of the child.

d) Incidental communication, contact or presence in a public place where other adults are in your immediate presence or in the immediate presence of the person under 16 years.

e) or as approved in writing by the Court, your probation officer, or the person to whom you are reporting under the Sex Offender Information Registration Act . You must carry a copy of the written permission with you. [ 44 ] Pursuant to s. 164(4) there will be a forfeiture order in the terms set out in the draft order provided by counsel. All items set out in that draft order are forfeited to His Majesty in Right of the Province of British Columbia to be disposed of at the direction of the Attorney General.

[ 45 ] A copy of the report from North Island Sex Offender Program and Dr. Farstad’s reports are to be provided to the appropriate correctional authority. [ 46 ] The victim fine surcharge is waived. _______________________________ The Honourable Judge B. Flewelling