Her Majesty the Queen - v. -, 2017 SKPC 19

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 019 Date: February 17, 2017 Information: 43175774, 46622816, 36657322, 45442408, 45442409, 35708093, 33305798, 45585454, 36657634, 4475889, 33306610 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Robin Henry Leier Appearing: Evan Thompson For the Crown Mike Nolin For the Accused JUDGMENT B.M.

KLAUSE , J [ 1 ] Robin Leier stands charged with numerous counts on several Informations including breach of probation, breach of undertaking and the two substantive sets of offences of making or possessing child pornography. [ 2 ] Guilty pleas were entered and the matter was subsequently adjourned at the request of the defendant for a Pre-Sentence Report and a Psychological Assessment.

[ 3 ] The matter proceeded to sentencing submissions on December 7, 2016. There was no agreement as to what the appropriate sentence should be. The Crown is suggesting a further six years minus a credit of 313 actual days or at the usual remand credit of 1.5 to 1, a credit of 470 days for a total global sentence from todays date of four and a half years. [ 4 ] The defence, while not agreeing with the sentencing position of the Crown, was reluctant to give an actual suggested sentence.

Counsel for defence did suggest that if federal time was imposed, that the remand warrant recommend that the accused be sentenced to serve a portion of his sentence at the Regional Psychiatric Facility in Saskatoon. The History [ 5 ] The accused had previously been sentenced on October 31, 2013 to a sentence of nine months time served for possession of child pornography contrary to s. 163.1(4) of the Criminal Code of Canda ( CCC ) to be followed by three years probation and a s. 161 order for eight years.

On the same date, he was sentenced to 18 months concurrent for importing, distributing, selling or possessing for the purpose of distribution or sale child pornography contrary to s 163 .1(3) of the CCC and sentenced to 18 months concurrent followed by the same three year probation order. [ 6 ] He was released from jail on January 23, 2014 to the Community Training Residence (CTR) and initally did well.

Unfortunately, compliance eventually, and relatively quickly, deteriorated resulting in three charges of breach of probation on October 3, 2014, November 5, 2014 and November 12, 2014 on Information #43175774 to which he has entered guilty pleas in regard to counts 2 and 3 for failing to complete his sexual offending programming and failing to see his medical consultants as directed by his probation officer. His therapist reviewed his situation and attendance and he was advised that if he continued to miss his appointments, he would be dropped from the program.

On November 14, 2014 he was dropped from the program. [ 7 ] He was ultimately released by consent on that Information on February 17, 2015 to report to his probation officer and to reside at a specified address. [ 8 ] On April 20, 2015 he failed to attend court on that Information and was charged accordingly on Information #46622816 to which he has now plead guilty. [ 9 ] Things went completely off the rails on November 18, 2015. He was charged with causing a disturbance on a city bus, assaulting the transit supervisor, and breaching his probation order on Information #36657322.

On the same date, he was also charged with possession of marijuana on Information #45442408. He has plead guilty to all these charges. That incident also generated Information #45442409 resulting in four counts of breach of undertaking and/or probation including a charge of breach of Probation by possessing the drugs in Information #45442408 to which he has plead guilty. [ 10 ] A contested bail hearing was conducted on November 20, 2015.

Despite these numerous charges and significant Crown opposition, he was released on an undertaking with a referral to the Mental Health Strategy Court and numerous other conditions including no alcohol or drugs, no contact with Doug Gryba and reporting once again to Probation Services. [ 11 ] As a result, that interaction with police on November 18, 2015 he was found in possession of a tablet computer. This was, of course, seized and subsequently analysed by the police.

On January 6, 2016, Information #35708093 was sworn charging the accused with making child pornography, on October 23, 2015 contrary to s. 163.1; possession of child pornography between July 6, 2015 and November 18, 2015 contrary to s. 163.1(4) ; breach of probation between those same dates by having the computer tablet in his possession; and failing to keep the peace and be of good behavior contrary to s. 733.1. He has entered guilty pleas to counts 2 and 3 .

The possession charge in count two carries with it a mandatory minimum of six months; the Crown however is requesting two years consecutive. [ 12 ] In regard to these charges, the tablet seized revealed 52 images of female children aged 8 to 12, all displaying their vaginal or anal areas and 184 images of nude females. The Crown is concerned that the accused is now focusing on enlarging vaginal images of

children under the age of 12. [ 13 ] He also was charged with breaching his undertaking on December 10, 2015 by not living at an approved residence and has now plead guilty to that charge on Information #33305798.

On January 4, 2016, he failed to attend court and was charged with that offence to which he has entered a guilty plea. [ 14 ] He was ultimately apprehended January 30, 2016 and charged with possession of marijuana on Information #36657634 and obstruct peace officer, breach of undertaking , failing to keep the peace, breach of probation for consuming alcohol or drugs and breach of probation for possessing a computer all on Information #44752889 and to which he has entered guilty pleas. [ 15 ] The result of the seizure of the second computer tablet lead to charges being laid on Information #33306610 of possession of child pornography on January 30, 2016, accessing child pornography between December 1, 2015 and January 30, 2016 , making child pornography between the same dates and a fourth charge of accessing child pornography between July 6, 2015 and November 18, 2015.

He has now plead guilty to counts two and three on Information #33306610, making and possessing child pornography. [ 16 ] The tablet was difficult to access and the accused declined to provide the password.

It was finally accessed by the police and was found to contain a new collage of child pornography including 647 child pornographic images, over 5000 of child nude images which do not meet the definition, five new images created by the accused which appear to be superimposing an image of his own penis overtop the images of young girls, and four videos of young girls taken in a food court without their knowledge or consent. [ 17 ] The Crown was obligated to show these images, in court, on both tablets. I accept without reservation the conclusions of Cpl.

Jarrod Clark that the images complained of meet the definition in the Criminal Code of Canada of child pornography. [ 18 ] A Pre-Sentence Report (PSR) was prepared. Unfortunately, it does not appear to offer much in the way of a positive outcome for this accused. He has little or no family support at this time and has burned many of these bridges due to drug and alcohol abuse. His reporting while on probation was absymal and he seems to have almost zero insight into his offending behaviors or what is needed for a successful reintegration into mainstream society.

To further compound matters, he obtained Internet devices twice while on probation in direct contravention of a court order and continued to collect child pornographic images. [ 19 ] In regard to his criminogenic risk assessment, he is assessed at a very high risk to reoffend.

His major risk factors include: Criminal history, residence stability, unemployment and employment stability, financial situation, family situation, drugs and alcohol, antisocial behavior, attitude and self management. [ 20 ] The writer of the PSR concludes at page 10: Robin Leier is a 43 year old male offender before the court for numerous breaches of community based orders and newly acquired criminal code charges. He has a history of non compliance in community based sexual offender treatment programs and he has ongoing disrespect for community based orders and conditions.

It is also of importance to note that given Robin does not acknowledge any wrong doing, he would also not be eligible for community based treatment. If Robin was sentenced to a federal sentence, he would be case managed by federal parole upon release who does offer ongoing support, supervision and treatment in the community. [ 21 ] A referral was made by the Court, at the accused’s request, to the Saskatchewan Hospital in North Battleford where he was admitted on October 20, 2016 and subsequently assessed.

That report further demonstrates his complete lack of insight into his situation: Robin did not share the idea that he did anything wrong by having pictures of child pornography. He basically describes them as having nude pictures of some girls from the Internet, downloaded on to his computer with no malicious aims. He argued that he has never been found sexually molesting any girls, and it is his right to watch nude pictures of girls, if he chose to. He pointed out that if were to be at a beach and there were naked girls, would he be restricted from watching them.

He blatantly refused to reason along the line of under age girls, and stated that the justice system should get their laws straight, it is a free world. He was never convinced that the he has ever done anything wrong, instead the police or the justice system should get things straight.

[ 22 ] This is a common refrain throughout Mr. Leier’s case in his interaction with Probation, medical professionals and the Court. In my opinion, he has to somehow accept that the vast majority of individuals believe that it is illegal and immoral to possess images of child pornography. The Predicate Offence [ 23 ]

Section 718 of the Criminal Code of Canada sets out: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender ’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence; or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 24 ] The defendant was found in possession, on two occasions, of a tablet computer containing numerous images which the defence agrees meet the standard of child pornography. He came into possession of these while he was on probation and was prohibited from owning a computer or accessing the internet.

The court was shown a sampling of the images in court. The collection is not as graphic or as comprehensive as many and could be accurately described as a reasonably modest collection of moderately depraved child pornography. His collection does not offer any suggestion of violence, blood or bondage that many collectors of child pornography seem to gravitate toward. Of some concern to the Court is an apparent acceleration of interest in that he is now seen to be imposing a photo of his own erect penis over the images of extremely young females although this was a small component of his collection. [ 25 ] Mr.

Leier has little to no insight into his apparent disregard of the law, maintaining that the images are not much different than what one might see at a beach or on television and that since these images are widely available on the Internet, society should get over it and not seek to penalize the viewing of naked photos. What he does not seem to understand is that the general public not only does not engage in these activities, but finds those who do to be in a category of extreme disapproval and degenerate criminal behaviour. From the various reports I have read and which form part of the file, Mr.

Leier wants what he wants, when he wants it, with little or no thought to the consequences of his actions to other members of his family or the situation of the young females whose photographs he gravitates to despite court orders and probation orders. [ 26 ] Counsel has filed numerous case authorities but suffice it to say sentencing in these cases, as in most, is a very individualized effort and a great number of factors must be weighed.

In this case however, it is clear that his sentence must be increased from his last sentence where clearly he was dealt with reasonably and has chosen to ignore the mercy extended to him at the time. There is little in the way of mitigation other than his guilty pleas which saved the state the trouble and expense of a trial.

There are significant aggravating factors, the most serious of which is his failure to respond to his probation conditions and then, while on probation for possessing child pornography, he obtained, not once but twice, two more devices capable of accessing the Internet and downloading child pornography. As the Crown has pointed out, his previous record is an aggravating factor, his ignoring court orders and the fact that he still maintains his position that he has done nothing wrong. His PSR indicates he is a high risk to re-offend and that he is not a good candidate for rehabilitation.

Finally, the inference that his behaviour is escalating as he is in pursuit of larger collections of photographs while on probation, has placed a photograph of his penis on cropped photos of pornographic images, and has taken videos of young females in a public place. [ 27 ] In mitigation, he has plead guilty, but he is not a youthful offender. He has not cooperated with the authorities.

He does have a diagnosed mental disorder but since he has continued to refuse treatment, this cannot be considered as a mitigating factor. [ 28 ] Therefore, in my opinion, bearing in mind the above factors, and considering the specific sections in s.718 of the Criminal Code of Canada it is my view that an appropriate sentence is as follows: Information #43175774 2) s. 733.1 Sex offender treatment 6 months 3) s. 733.1 Medical doctor/psychologist 1 month concurrent to count 2 Information #46622816 1) s. 145(2)(

b) Fail to attend court 30 days concurrent to all other sentences Information #36657322 1) s. 175(1)(a)(i) 30 days concurrent to all other sentences 2) s. 266 30 days concurrent to all other sentences

3) s. 733.1 Keep the peace 30 days concurrent to all other sentences Information #45442408 1) s. 4(1) CDSA 30 days concurrent to all other sentences Information #45442409 1) s. 733.1 - drugs 30 days concurrent to all other sentences Information #35708093 2) Possess child pornography 6 months mandatory minimum 18 months consecutive 3) s. 733.1 (computer) 3 months concurrent Information #33305798 1) s. 145(3) residence 30 days concurrent to all other sentences Information #45585454 1) Fail to attend court 30 days concurrent to all other sentences Information # 4475889 1) s. 129(a) 30 days concurrent to all other sentences 2) s. 733.1 drugs 30 days concurrent to all other sentences 3) s. 145(3) computer 30 days concurrent to all other sentences Information # 36657634 1) s. 4(1) CDSA 30 days concurrent to all other sentences Information # 33306610 2) Possess child pornography 1 year mandatory min. 3 years consecutive to all other sentences 3) Make child pornography 1 year mandatory min. 3 years concurrent to count #2 [ 29 ] There will be a DNA order attached to counts 2 and 3 on Information #33306610 and count 2 on Information #35708093.

There will be a SOIRA order which attaches to counts 2 and 3 on Information #33306610 and count 2 on Information #35708093. [ 30 ] As regards s. 161 a lifetime order shall be applied as set out below: Order of prohibition 161.

(1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under

section 730, of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or

any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender 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, schoolground, 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 being in a position of trust or authority towards persons under the age of 16 years; (

c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or (

d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court. ________________________ B.M. Klause, J