R. v. Large, 2020 BCPC 216

Citation: R. v. Large 2020 BCPC 216 Date: 20201109 File No: 46399-1 Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KENNETH DANIEL LARGE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G. KOTURBASH Counsel for the Crown: A. Lerchs Counsel for the Defendant: J. Pennington Place of Hearing: Penticton , B.C. Date of Hearing: September 8, 2020 Date of Judgment: November 9, 2020

Introduction [ 1 ] Mr Large entered a guilty plea to possessing child pornography. [ 2 ] On October 30, 2018, police executed a search warrant at Mr Large’s residence. They found over 26,000 images and over 400 videos of various degrees of child abuse, including anal intercourse and bondage of very young children. The ages of the children systematically categorized the collection. [ 3 ] Mr Large was arrested, released on bail and has been compliant. Positions of the Parties [ 4 ] The Crown seeks a two-year jail sentence, followed by probation for three years and a 10-year

section 161 order. [ 5 ] The defence agrees that a jail sentence is appropriate but argues that it should be served in the community in the form of a conditional sentence. Mr Large’s Background [ 6 ] Mr Large is 49-years-old. [ 7 ] He was sexually abused as a child by an extended family member and a neighbour.

His relationship with his father is a fractured one. [ 8 ] He lives in his parents’ basement. [ 9 ] He does not drink much, nor does he do drugs. [ 10 ] He worked as a chef but was dismissed because of the nature of the charges. [ 11 ] He is single and does not have any children. [ 12 ] A psychological report describes Mr Large as being addicted to pornography. He previously spent six to eight hours online every day, of which three to four hours were spent looking at and downloading child-abuse images and adult pornography. With work, this left very little time for anything else.

Mr Large acknowledges that his addiction consumed him to the point where he would think about it all the time. He said he looked forward to coming home from work to view more images. [ 13 ] The psychologist concluded that Mr Large has obsessive-compulsive disorder, anxiety, and post-traumatic stress disorder symptoms.

Although the psychologist opined that Mr Large’s need to catalogue all of the images might have derived from his obsessive- compulsive disorder, his conditions do not mitigate the situation in any meaningful way. [ 14 ] Mr Large is a low to low-to-moderate risk for sexual recidivism, moving towards the moderate when he abuses substances, socially isolates himself, or lacks support. [ 15 ] Following his arrest, Mr Large engaged in a half dozen counselling sessions with a local counsellor.

He said the purpose of the counselling was to gain insight into why he did what he did and to understand his thought processes, to avoid doing it again. He said he stopped attending because he could no longer afford it. [ 16 ] Mr Large demonstrates insight into his offending behaviour.

He understands how mere viewing of child-abuse images feeds the broader depraved industry and consequential abuse of children worldwide, including our community. [ 17 ] He is remorseful for his actions and pleads for “mercy” to not send him to jail. [ 18 ] He plans to continue living in his parents’ basement and, with their support and the support of Community Corrections, carry on with counselling and address his mental health. He assures me he will not engage in this type of behaviour ever again.

Objectives of the Sentence [ 19 ] The phrase “child pornography” dilutes the true meaning of what these images and videos represent to some degree. The term “pornography” reinforces the perception that what is occurring is consensual and a mutual experience between the viewer and the actor. These are not actors. It is not consensual. These are images and videos of child sexual abuse. [ 20 ] The downloading, sharing and production of these images and videos is a pervasive social problem that affects the global community and its children.

Each time an image is viewed, the child is victimized. [ 21 ] The problem is so pervasive that police are required to triage and pursue only those with extensive collections or those involved in dissemination. One judge describes it as a virtual firehose spewing depraved and disturbing images across the internet. In addition to the ever-increasing supply, changes in technology make fighting its growth increasingly challenging. [ 22 ] The images themselves are becoming more aggressive, to whet the depraved appetite of those that view them - the fresher and more extreme, the better.

Mr Large, himself, acknowledged how over time it got to the point where the images were not even arousing him anymore.

[ 23 ] Because of the harm to children, the repulsiveness of the crime, and the challenges in detecting and prosecuting these matters, the primary objectives of sentencing are denunciation and general and specific deterrence. When these objectives are paramount, the primary focus must be on the offence or the offender’s conduct, rather than on the offender. Although factors personal to the accused and rehabilitation remain essential, they necessarily take on a secondary role in the analysis. Mitigating and Aggravating Factors Mitigating Factors 1.

Mr Large entered what is described as an early guilty plea, sparing the Crown the expense of a complex trial. 2. Mr Large is remorseful and has insight into his offending behaviour. 3. It is commendable that Mr Large initiated counselling on his own and has expressed a willingness to engage in whatever counselling or treatment I direct. 4. Fortunately, despite the nature of the conviction and the embarrassment he has brought upon his family, Mr Large’s family supports him. His brother attended the sentencing. This support bodes well for future rehabilitation. Aggravating Factors 1.

Although the statutory aggravating factor concerning the abuse of children under the age of 18 is contained within the offence's essential elements and would not typically be considered a further aggravating factor, because the possession involved images and videos of exceptionally young children, it is aggravating. 2. The nature of the collection is disturbing. It contained videos of adults engaged in fellatio and anal intercourse with very young children and an image of a young girl in bondage.

In R v Schulz, 2018 ONCA 598 , the Ontario Court of Appeal described 45 unique images and 111 unique movies as a “significant” collection. Mr Large had over 26,000 pictures and over 400 videos. Its volume no doubt represents the abuse of thousands of children across the globe. The sheer volume and systematic organization demonstrated Mr Large's level of commitment to his deviant behaviour. Collateral Consequences [ 24 ] Following his arrest, Mr Large lost his job as a chef.

The loss of his job is a significant consequence and does not naturally flow due to being charged. [ 25 ] His case has garnered the attention of the media. This attention has resulted in the public shaming of Mr Large and his family. He will never escape the reporting of his crimes on the internet; it will be there forever. As his counsel points out, this attention will likely impede his ability to get employment in his trade. [ 26 ] However, the fact that Mr Large’s offending behaviour resulted in widespread media attention does naturally flow from his offending conduct.

Offenders who engage in similar behaviour must expect their crimes to be widely exposed by the media. [ 27 ] The fact that his crime details will remain public on the internet troubles me less, knowing that the invasive photographs of the children he downloaded and viewed will also remain public on the internet. [ 28 ] I accord little weight to the public shame brought upon Mr Large as a result of his behaviour. Range of Sentence [ 29 ] After a careful review of the cases provided by counsel, it is clear that the range for these types of offences is broad.

Judge Doulis, in her usual thorough approach, provides an excellent review of the cases from our jurisdiction in a case called R v Neasloss, 2020 BCPC 161 . Our Court of Appeal described the range as being 4 to 24 months. Most courts have said that it will be rare where a conviction for the possession of child pornography is not met with incarceration. For a while, the Criminal Code made it mandatory that judges impose jail sentences.

Is a Conditional Sentence a Fit Sentence? [ 30 ] No. [ 31 ] Since the striking of the mandatory minimum sentence for possession of child pornography, the full panoply of sentencing options is available to the court. [ 32 ] Mr Large’s counsel argues that even though conditional sentences are rarely imposed for this type of crime, his client’s insight, efforts at rehabilitation and ability to turn his life around have earned him the opportunity to serve his sentence in the community. [ 33 ] The Crown argues that before the court can even consider imposing a conditional sentence, it must be satisfied that the circumstances are exceptional.

It draws upon a line of cases where jail or suspended sentences were the only two real options because the law prohibited the court from imposing conditional sentences. [ 34 ] That is not the case here. A conditional sentence is available. I disagree that “exceptional circumstances” are a threshold that must be met before I can consider imposing a conditional sentence. Except for those crimes that are statute-barred from the imposition of a conditional sentence, the court must always consider the option.

[35] Even if not raised by counsel for the offender, failing to consider a conditional sentence if it is available may well constitutereversible error.

Except for offences expressly excluded, there is no presumption favouring or against the imposition of a conditionalsentence. [36] If a judge’s preliminary assessment of a fit sentence excludes both a suspended sentence and a penitentiary sentence and thestatutory prerequisites in s 742.1 are met, then the judge is required to consider a conditional sentence. [37] The fact that a conditional sentence for the possession of child pornography will typically only be justified in “exceptional”circumstances is a consequence of applying the statutory provisions relating to conditional sentences and not a precondition of itsavailability. [38] In Proulx, 2000 SCC 5, the Supreme Court described a two-stage process to decide whether to impose a conditional sentence. [39] First, I must be satisfied the sentencing range is less than two years in jail, and I am. [40] Second, I must consider whether a conditional sentence can keep the community safe and whether such a sentence is consistentwith sentencing objectives and principles. [41] In regards to the safety of the public, there are two main factors: 1.

The risk of reoffending; and 2. The gravity of the damage of reoffending. [42] There is no evidence that Mr Large has ever sexually abused a child. [43] He initiated counselling on his own and is commended for this. However, he only engaged in six sessions before, as he says, themoney ran out. We know very little about the counselling, what it entailed, or even the counsellor's qualifications. [44] Mr Large has spent almost two years on bail without incident. He does not have a criminal record or history of this type ofbehaviour.

He has insight into his offending behaviour and a willingness to carry forward with any counselling and treatment the courtdirects. [45] The psychologist described Mr Large as a low to low-to-moderate risk to reoffend. [46] He possessed a very substantial and troubling collection. It would have taken some time to collect and catalogue everything.Some of the images and videos are very aggressive and disturbing and many involve children at the lower end of the age spectrum. Whywould someone possess such a collection unless he found the images and videos stimulating?

It is not to say Mr Large presents animminent danger to children, or that he will return to his obsession with videos of young children being sexually abused. But withoutsome indication that he has completed treatment, I cannot discount that this risk exists. [47] The simple possession of similar images and videos poses a grave risk to children. Even a small chance of a grave offence canpreclude a conditional sentence.

In a case like this, even a minimal risk of reoffending is offset by the gravity of the damage of harm thatcould follow. [48] Because of the nature of his collection, its size, cataloguing method, admission to the hours spent viewing the images and theminimal counselling undertaken, I am not satisfied that a conditional sentence will keep the community safe. [49] However, if I am wrong, I am not satisfied that a conditional sentence in this case is consistent with sentencing objectives andprinciples. [50] I cannot reconcile the details of Mr Large’s criminal offending with the need to impose an exemplary sentence and denounce thistype of conduct.

The facts in Mr Large’s case, including his mental-health issues, differ significantly from those established in R vSwaby. It also differs from many other instances in which the collection was much smaller or less aggressive. [51] To suggest that Mr Large’s circumstances are in any way exceptionally mitigating would conflate the ordinary withextraordinary. [52] I must balance Mr Large’s plea for mercy with

section 718(f), which requires his sentence to acknowledge the harm done tovictims and the community. There is nothing within my power that would redress the damage done to the children in all of these images,but Mr Large’s sentence can and should to some degree reflect this damage. The only way to adequately acknowledge the harm is tosend him to jail. [53] I recognize that Mr Large did not take the pictures, make the videos, or disseminate them, but there is no market for any of whathe was collecting without people like him.

Justice Molloy said in R v Kwok, (ONSC), at para 52, "It is crucial to deterpeople at the entry level from ever possessing child pornography. Perhaps by killing, or at least diminishing, the market for childpornography, the production side can also be curbed." [54] Mr Large proposes that he serve his sentence under house arrest in his parents’ home.

His parents’ basement is the same placewhere he spent most of his waking hours downloading and cataloguing disturbing images and videos of young children. [55] Although one should not underestimate the stigma of house arrest, one should also not minimize the potential disrepute broughtupon the administration of justice by imposing a sentence that merely mimics an offender’s reality. [56] Currently - and before his arrest - Mr Large does not dread spending time in his parents’ basement; however, he does dread going

to jail. [ 57 ] A conditional sentence which would require Mr Large to spend time at home for several months, unless at work or school, exercising or shopping, would not be seen by many deviant personalities as much of a deterrent when weighed against the strength of their urges to access these types of depraved images. Hopefully a message that if you are caught, you will go to jail, will resonate with those who are merely tempted to take a peek. [ 58 ] As the Crown points out, there is a time and a case when a conditional sentence is appropriate. This is neither that time nor that case . Is a

Section 161 Order Appropriate? [ 59 ] Yes. [ 60 ] The Crown seeks a 10-year prohibition order under s 161(1)(a)-(

d) of the Criminal Code . Orders made under s 161(1)(a)-(

c) can limit where an offender may go, whom he may contact, and the type of employment he may undertake. Section 161(1)(

d) authorizes the court sentencing a person convicted of the possession of child pornography to make an order prohibiting the offender from “using the internet or other digital network unless the offender does so under conditions set by the court.” The Crown seeks an order under s 161(1) (

d) containing similar limitations on internet access as recommended for the probation order. [ 61 ] Mr Large’s counsel opposes neither the order nor its terms. [ 62 ] The overarching protective function of s 161 of the Criminal Code is to shield children from sexual violence: R v KRJ , 2016 SCC 31 , para 44 .

An order under s 161 constitutes punishment and is not available as a matter of course: there must be an evidentiary basis upon which to conclude that the particular offender poses a risk to children; the specific terms of the order must constitute a reasonable attempt to minimize the risk; and the content of the order must respond carefully to an offender’s particular circumstances: KRJ , at paras 48-49. [ 63 ] In the case at hand, I am satisfied that Mr Large poses a risk to children, justifying an order under

section 161. In reaching this conclusion I have considered Mr Large’s circumstances, including: his offending behaviour; the psychologist's opinion; the enormous volume of images and videos; their violent content; the tender ages of the children depicted; the period of time over which Mr Large must have viewed them to download and catalogue them; and the lack of meaningful treatment. [ 64 ] I remind myself that the order must be carefully measured and crafted to minimize the risk Mr Large poses to children and to not reach beyond what is necessary. I am also mindful that treatment and counselling can have varying degrees of success. For this reason,

section 161 orders are amendable as the risk diminishes. [ 65 ] The conditions being proposed mirror those put forward by Community Corrections for the probation order. I am satisfied the conditions proposed with some slight modifications are reasonable and not overreaching. The length proposed is also appropriate. [ 66 ] The modifications I have made to both the proposed probation conditions and the

section 161 order relate to accessing a computer or digital network. Both orders have as their primary objective protection of the public and rehabilitation. When it comes to prohibiting access to the internet, it can be very challenging to balance the two. [ 67 ] Computers have become an essential part of our everyday lives. As Madam Justice Karakatsanis J. observed in R v KRJ , 2016 SCC 31 , at para 54 , “depriving an offender under s. 161(1)(

d) of access to the Internet is tantamount to severing that person from an increasingly indispensable component of everyday life …”. The internet is used for such commonplace activities as shopping, corresponding with friends and family, transacting business, finding employment, banking, reading the news, watching movies, attending classes and so on. [ 68 ] In United States v.

Peterson , 248 F3d 79 (CA2 NY 2001), the court described the impact this way: Although a defendant might use the telephone to commit fraud, this would not justify a condition of probation that includes an absolute bar on the use of telephones. Nor would a defendant's proclivity towards pornography justify a ban on all books, magazines, and newspapers. What is a Fit and Proper Sentence? [ 69 ] Although I am satisfied that a jail sentence is appropriate, I am not satisfied the top of the range as recommended by the Crown is appropriate.

Acceding to the top of the spectrum would be to ignore all the mitigating factors and the impact of the

section 161 order on Mr Large’s liberty. However, I do agree a substantial period of incarceration is warranted. A fit and proper sentence is 18 months or 540 days, followed by probation for three years. I am satisfied that both its length and the conditions recommended are necessary to protect the public and support Mr Large’s rehabilitation. [ 70 ] The conditions of the probation order are as follows: 2001 You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or your probation officer of any change of employment or occupation. 2104 You must report in person to a probation officer at 105 Martin Street, Penticton, British Columbia, within two business days after your release from custody, unless you have obtained, before your release from custody, written permission from the probation officer to report elsewhere or within a different timeframe. After that, you must report as directed by your probation officer.

2203 You must live at an address approved in advance by your probation officer and provide them with your phone number. You must not change your address or phone number without prior written permission from your probation officer. 2303 You must not go to any public park, public swimming area, community centre, or theatre where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school, or playground. The exceptions are as follows : a. With the prior w ri tten pe r m i s s i on o f your probation officer.

Such permission is to be given only for compelling reasons . You must carry the permission, which can be in electronic format, with you at all times when you are in the prohibited area. 2304 You must not have any contact, or communication directly or indirectly, or be in the presence of any person under the age of 16 years . The exceptions are as follows: a. With the prior w ri tten pe r m i s s i on o f your probation officer . Such permission is to be given only for compelling reasons. You must carry the permission, which can be in electronic format, with you at all times; or b.

They are your children. 2306 You must not enter into or continue any dating relationship, or marriage, or common-law relationship with any person who has children under the age of 16 years , or who has the care of or access to children under that age, until you have identified to your probation officer the person with whom you are in, or propose to enter into a relationship, and your probation officer has informed that person of your convictions and this order and your history as described in your criminal record. 2501 You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer. 2502 Having consented in court , you must attend, participate in and complete any intake, assessment, program, treatment, or a full time live-in treatment program as directed by your probation officer.

This may include programming or treatment for: a. psychiatric and psychological health; b. sexual-offending treatment. 2601-3 You must not access any computer network including the internet to: 1. Access any content that violates the law; 2. Access, directly or indirectly, or maintain any personal profile on any social media sites, social networks, internet discussion forums or chat rooms; 3. 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, unless they are members of your family. 4.

Having consented in court , you must, upon the request of a peace officer, 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. DNA [ 71 ] The possession of child pornography is a primary designated offence. Pursuant to

section 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily substances from you.

Section 164 Order: Forfeiture [ 72 ] Pursuant to

section 164.2(1) of the Criminal Code , I am satisfied on a balance of probabilities that the computer seized by the police that contained the images was used in the commission of the offence and is your property and I order it forfeited to Her Majesty to be disposed of at the direction of the Attorney General.

Section 490.012 Order: Sex Offender Information Registration Act [ 73 ] Pursuant to

section 490.012 of the Criminal Code , you are required to comply with the Sex Offender Information Registration Act for 20 years.

Section 161 Order [ 74 ] Pursuant to

section 161 of the Criminal Code , you are prohibited for 10 years commencing on the date you are released from prison from: 161.(1)(

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; 161.1(1)(

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;

161.1(1)(

c) having contact or communicating by any means with a person who is under the age of 16 years; The exceptions to a, b, and c, are if they are your children or you have the advanced written approval by the court, your probation officer, your parole officer, or the person to whom you are reporting under the Sex Offender Information Registration Act . You must carry a copy of the written approval with you which can be in an electronic format. 161.1(1)(

d) You are also prohibited from using the internet or other digital network, except in the following circumstances: 1. You do not access any content that violates the law; 2. You do not access, directly or indirectly, or maintain any personal profile on any social media sites, social networks, internet discussion forums or chat rooms; 3. 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, unless they are members of your family. 4.

And you must, having consented in court , upon the request of a peace officer, 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. Victim Surcharge [ 75 ] The surcharge legislation was not in force and effect at the time. Warning [ 76 ] Mr Large, if you fail to comply with your sentence you could be charged with a breach and a warrant could be issued for your arrest to bring you back to court to deal with the new breach charge.

If you want to change a condition, you must make an application to a judge. ______________________________ The Honourable Judge G. Koturbash Provincial Court of British Columbia