R. v. Allen Date:, 2013 BCPC 69

Citation: R. v. Allen Date: 20130326 2013 BCPC 0069 File No: 57854-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JONATHAN SCOTT ALLEN REASONS ON SENTENCE OF THE HONOURABLE JUDGE P. CHEN Counsel for the Crown: J. Hermanson Counsel for the Defendant: E. Warren Place of Hearing: Richmond , B.C. Dates of Hearing: February 14 and March 12, 2013 Date of Judgment: March 26, 2013

[ 1 ] The Accused has pled guilty to possession of child pornography contrary to

Section 163.1(4) of the Criminal Code . The Crown has proceeded summarily and seeks a sentence of 9 months to 1 year incarceration in a provincial correctional institute. This offence carries a mandatory minimum sentence of 90 days. The Accused seeks the minimum sentence to be served intermittently on weekends. [ 2 ] The Accused’s offence was discovered after a police investigation that involved members knowledgeable in the area of computers and high technology. Computer images, according to the Crown submission, all carry an identification element known as a “hash-tag”.

Police carrying out child pornography investigations regularly search the internet for hash-tags that they have identified as being related to child pornography. Whenever a download of any such hash-tag is discovered, an investigation is launched. Six downloads of hash-tags related to child pornography were traced to a computer IP address located in the Accused’s home.

A search warrant was then obtained to search the Accused’s home and computer. [ 3 ] I have considered the submissions of Counsel, the pre-sentence and psychiatric reports, the case authorities presented and the Accused’s statement to the Court provided at the close of submissions in this sentencing. [ 4 ] Both the pre-sentence report and the psychiatric report stated that the Accused told the report-writers that any images or videos of child pornography that may have been found in his computer or his home had been downloaded unintentionally.

Because the Accused took this position with both report-writers, the Crown called evidence in this sentencing hearing. [ 5 ] RCMP Corporal Lorena Rostie was qualified by the court as an expert in the forensic examination of computer systems and in internet-based child pornography. A technical examination report that she had prepared was filed as an exhibit in these proceedings. [ 6 ] According to Corporal Rostie, when she attended at the Accused’s home to execute the search warrant, she found a desktop computer in the living room connected to a television and a laptop computer.

After she had departed the scene with the two computers she had seized, one of the officers still at the house called her to report the discovery of an external hard drive that had been hidden under one of the speakers. [ 7 ] Corporal Rostie determined, after examining the computers, that when she was knocking on the door and announcing police presence, the desktop would have been on and running, the external hard drive would have been connected to it and files were being downloaded.

By the time the Accused opened the door, the desktop had been turned off and the external hard drive had been disconnected and hidden under the speaker. [ 8 ] Corporal Rostie’s forensic examination of the external hard drive revealed a very large amount of child pornography. These included: 2091 images of child pornography 2902 images of child nudity 353 other images (such as child modelling) 456 videos of child pornography [ 9 ] The victims in the child pornography images and videos were as young as 3 to 5 years old.

The images included anal and vaginal penetration of young girls by adult males, bondage, bestiality and sex acts involving children who appeared to be under the age of six years. [ 10 ] The 456 videos of child pornography represented approximately half of the videos stored. Approximately half of all the files on the external hard drive consisted of child pornography. According to the evidence of Corporal Rostie, this was one of the larger collections of child pornography that she had seen in the five years that she has been doing such investigations.

The child pornography files were neatly organized into folders, sub-folders and sub-sub-folders. The external hard drive storage was organized into top level folders labelled A, B, C, D and E. Below that were various sub-folders bearing innocuous label names. The next level of sub-sub- folders carried label names suggestive of child pornography and it was in those sub-sub-folders that the child pornography was found. Examples of the sub-sub-folders’ label names found on the external hard drive were: (a) 3596 best pthc little and pedo preteen virgin girls incest rape pics and photos (By NaNik) (

b) NEW PTHC preteen Lolita 2010 (BEST PICS) – (2000 pics) 11 yo 12yo 13yo (

c) Cambodian gracel series – Gracel 34 [ 11 ] Corporal Rostie testified that these represent common terms, acronyms and initialisms used by people searching for child pornography on the internet. “PTHC” is an abbreviation for “pre-teen hard core”, “pedo” stands for pedophile and “yo” stands for the age, i.e. “years old”. [ 12 ] Corporal Rostie also testified that there were a number of file-sharing programs installed on the desktop, including one called Shareaza.

One of the user-created folders in the external hard drive containing child pornography – Folder G - was added to the Shareaza program as a file to be shared. Corporal Rostie explained that when the external hard drive was connected to the desktop computer - and through the desktop, to the internet - Folder G, and all of the child pornography files in it, would be available to anyone

and everyone on the internet with the Shareaza program installed on their computer. Corporal Rostie further testified that all of thesettings she saw indicated that the child pornography in that folder were being shared and that there was no evidence that the sharing offiles was restricted in any way. [13] Corporal Rostie testified that the Accused would have had to take positive steps to organize the sharing of the childpornography, including selecting Folder G as a folder to be shared on the Shareaza program.

She also testified that the level oforganization of the child pornography found would have required the expenditure of a considerable amount of time and effort by theuser/operator of these computers, i.e. the Accused. Corporal Rostie concluded that there had been a purposeful download of a largevolume of child pornography. [14] Also found in the dvd-player in the desktop computer tower was a user-burned computer disc containing child pornography.

Inaddition, 6 more user-burned computer discs were found in a closet in the Accused’s home that also contained child pornography. [15] The external hard drive was nearly full. Of the 320 gigabytes of storage space on the external hard drive, only 9 gigabytes werestill available.

Approximately half of the used storage contained child pornography. [16] Defence Counsel submitted that the child pornography was initially downloaded accidentally together with adult pornographybut, not only did the Accused not delete these files, he eventually began watching those as well. [17] I find that the Accused downloaded a large volume of child pornography, and that this downloading was purposeful and notaccidental. [18] The Crown has provided 2 cases from the Ontario Superior Court of Justice and one from our Court. [19] In R. v. Kwok, (ON SC), [2007] O.J.

No. 457, the court imposed a sentence of one year imprisonment plus 3years probation for possession of child pornography. The pornography consisted of 2,000 still images and 60 video clips. Mr. Kwokhad no prior criminal history, had pled guilty and had numerous letters of support from family and friends attesting to his good character. Molloy, J. rejected Mr. Kwok’s justification for viewing the materials and found that he had failed to demonstrate any insight into hisoffence nor genuine remorse. The court considered the size of Mr.

Kwok’s collection of child pornography, the age of the victims andthe depravity of the acts depicted including bondage to be extremely aggravating factors. [20] In R. v. C.W.F., [2009] B.C.J. No 560, my brother Judge MacArthur (as he then was) imposed a sentence of 9 monthsimprisonment followed by 3 years probation for possession of 4 video files containing child pornography involving very young childrenand teens. The accused had a previous conviction in 1997 for sexual assault on a child. A psychiatric report concluded that the accusedwas a pedophile.

In imposing sentence, MacArthur, P.C.J. tried to balance the aggravating factor of Mr. Dumais’ prior related convictionwith the limited extent of child pornography possessed. [21] In R. v. Dumais, 2011 ONSC 276 , [2011] O.J. No. 116, the court imposed a sentence of 9 months imprisonment forpossession of 170 images and 44 movies of child pornography on Mr. Dumais’ computer. Ratushny, J. found a number of mitigatingfactors, including:

(1) The accused was co-operative with police after his arrest and entered an early guilty plea.

(2) The accused was genuinely remorseful, had accepted full responsibility for his offence and had voluntarily attended sexual counselling while on bail.

(3) The accused had lost his career as a teacher as a result of being charged.

(4) A psychiatric report concluded that the accused was not a pedophile and was a low risk to re-offend.

(5) The accused had no prior criminal history and had the support of his parents, girlfriend, family and friends. [22] The court concluded that the primary sentencing principles for possession of child pornography were those of generaldeterrence and denunciation. The court decided that a sentence of 9 months imprisonment was the least that those principles required,notwithstanding all the mitigating circumstances. [23] It should be noted that C.W.F. and Dumais both post-dated the introduction of a 45-day minimum mandatory sentence for thisoffence.

That mandatory minimum sentence was increased to 90 days shortly before the charges were laid in the case at bar. [24] None of the case authorities that have been presented to me have imposed a sentence of less than 9 months incarceration. Defence Counsel mentioned in submissions a case by the name of R. v. Melville of my brother Judge Gouge, where a 90 day intermittentsentence was imposed on facts similar to those in the case at bar. However, I was never provided a copy of the Melville case. I havesince learned that this was an oral decision of which transcripts have never been ordered.

I do not know what facts were considered, thecircumstances of that offender, nor the circumstances of that offence. Accordingly, I am not able to consider that decision. [25] In R. v. Morrisey, 2000 SCC 39 , [2000] S.C.J. No. 39, the Supreme Court of Canada addressed the regard that courtsshould give to mandatory minimum sentences. That case involved fire-arms related offences but the instruction provided is applicable,in my view, to all offences which carry a mandatory minimum sentence.

At paragraph 75, Gonthier, J. stated: “...Therefore, in my view, the mandatory minimum sentences for fire-arms related offences must act as an inflationary floor, setting anew minimum punishment applicable to the so-called “best” offender whose conduct is caught by these provisions. The mandatoryminimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence in the very

worst circumstances. The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but would also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions.” [ 26 ] In the case at bar, it cannot be said that the Accused stands in the place of the “best” offender who has possessed child pornography in the least aggravating circumstances.

The volume of child pornography possessed by the Accused is massive and far exceeds that involved in any of the case authorities that have been presented to me. Apart from the sheer volume of pornography, the files in the Accused’s external hard drive were meticulously organized.

Much work had been done to arrange the pornography into sub- sub folders filed under sub-folders with innocuous names, each of which in turn were organized under main folders named A, B, C, D and E. [ 27 ] Unlike the situations in the case authorities provided, the Accused had taken steps to link his child pornography files to a file- sharing program that enabled anyone on the internet with that program installed to access them. [ 28 ] Unlike the situation in Dumais , the Accused has not undertaken any counselling while on bail.

In his address to the court at the close of submissions, the Accused said he has made contact with counsellors and that he wants counselling but provided no details. Also unlike the situation in Dumais , the Accused’s arrest on these charges has had no effect on his employment. Indeed his employer was in court to support him and confirm that his employment would continue should he be allowed to serve his sentence on weekends.

The Accused has also not demonstrated the strong network of family and community support that would assist him in his rehabilitation as was the case in Dumais . [ 29 ] The Accused had told the writers of the pre-sentence and psychiatric reports that the child pornography he possessed had been downloaded unintentionally, that he had planned to delete the material but had not – because of “laziness” (as stated to the writer of the pre-sentence report) or because he had forgotten to (as stated to the writer of the psychiatric report).

In both reports, the Accused denied being attracted to such material and in fact was repelled by it. According to the psychiatric report the Accused stated that he found the material “sick and twisted”. [ 30 ] This characterization of his actions by the Accused minimizes his conduct and demonstrates an inability or refusal to fully come to terms with the gravity and the depravity of what he has done. It also demonstrates a lack of insight and genuine remorse. [ 31 ] The Accused’s characterization of his role in this offence, in my view, is inconsistent with a number of external facts that are not in dispute: 1.

The sheer, massive volume of child pornography possessed - nearly half of a nearly full 320 gigabyte hard drive containing 456 videos and thousands of images. 2. The sophisticated user-directed organization of the child pornography on his external hard drive into folders, sub-folders and sub-sub folders. 3. The labels of the child pornography sub-sub files used, such as “pthc” and “Lolita”, which are common search terms used by persons who search for child pornography. 4.

The fact that the external hard drive containing the child pornography was connected to the Accused’s computer when the police were knocking on his door to announce their execution of the warrant but hidden under a speaker to conceal it from the police by the time the police entered. As there was no one else in the house, I infer that it was the Accused who tried to conceal the external hard drive. 5. The user-burned disc containing child pornography found in the dvd player in the Accused’s computer and the 6 other user-created discs found in the Accused’s closet, all containing child pornography. 6.

The fact that the Accused had installed file sharing software on his computer and linked one of the child pornography folders in his hard drive to that program, enabling anyone on the internet with that file sharing software to access it. [ 32 ] Dr. Kropp’s assessment at page 4 of the Accused’s psychiatric report is as follows: The primary risk factor in this case is Mr. Allen’s absolute denial of interest in child pornography. His stated disinterest in the material seems improbable given the large volume of child pornography found on his computer.

Such denial can certainly interfere in therapeutic success, as it is linked to drop out and poor results in sex offender treatment. Other risk factors in this case are Mr. Allen’s isolation, his preoccupation with pornography (and probably sex in general), his lack of social support, his financial instability, and his apparently poor insight into his sexual problems. It is also apparent that he does not believe that sex offender treatment is necessary.

On a more positive note, mitigating risk in this case is the lack of past criminal behaviour (including sexual offences), his lack of access to children, his generally prosocial outlook, and his recognition that he needs help for his depression. Overall, it is my opinion that Mr. Allen is a relatively low risk for contact or predatory sexual offences. I base this on available information that he has never attempted this in the past and there is no compelling evidence that he is escalating towards approach behaviours currently.

However, it appears that without sex offender treatment he is a moderate risk to continue accessing child pornography due primarily to his preoccupation with pornography in general, and his denial of responsibility for the child pornography found on his computer.

[ 33 ] Similarly, the pre-sentence report concludes at page five that: “...Of concern, is Mr. Allen’s denial and lack of appreciation for the serious nature of his actions.

His lack of insight, minimization and denial could potentially put him at risk of repeating this type of behaviour in the future.” [ 34 ] In my view, the Accused’s inability and/or unwillingness to properly acknowledge his interest in child pornography reflects an inability and/or unwillingness to take full responsibility for his conduct and makes him a poor candidate for rehabilitation at this time. [ 35 ] The mitigating factors are that the Accused has entered a guilty plea and has no prior criminal history. However, I find that the aggravating factors far outweigh the mitigating factors.

The harm done to the children exploited and tortured to serve the pleasure of people who would collect and possess child pornography is life-shattering. These children are abused again and again, each time someone downloads and views images and videos of their suffering. Once loaded onto the internet, it is there forever. There is no end to their abuse and suffering. Clearly, denunciation and general deterrence are the primary sentencing principles that must be addressed in this type of offence. [ 36 ] Mr. Allen, please stand.

I hereby sentence you to a term of one year, to be served in a provincial correctional institute. Upon your release you will be placed on the terms of a probation order. The probation order will be for a term of 3 years and will contain the following conditions: 1. Report to a probation officer in person, within 72 hours of your release, and thereafter as and when and in the manner directed by your probation officer. 2. On your initial report to your probation officer you will provide the probation officer with your residential address and any contact telephone numbers you may have.

You will thereafter not change either your residential address or your contact telephone numbers without the prior written consent of your probation officer. 3. Attend, participate and complete such counselling as you may be directed to by your probation officer. 4. Do not maintain or possess any account with an internet service provider or any account with a wireless telecommunication carrier that includes internet access. 5.

Do not access the internet by any means, including wireless handheld devices such as Blackberries, Ipods, Iphones, android phones or any web enabled cellular phones unless approved in advance in writing by your probation officer. 6. Have no contact directly or indirectly with any children under the age of 16 unless in the immediate presence of an adult approved of in advance by your probation officer. 7. Seek and maintain suitable employment or education as directed by your probation officer. 8.

Do not loiter within a radius of 100 metres or, where there are city blocks, within 1 city block, of any park, public swimming area, daycare centre, school ground, playground or community centre, where persons under the age of 14 years are present or would reasonably be expected to be present. 9. Do not seek or obtain any employment or volunteer work that involves being in a position of trust or authority towards persons under the age of 14 years. 10.

Do not own, possess or use a computer, except for the purpose of legitimate employment and while at your place of employment, or with the written permission of your probation officer. 11. Between the hours of 8 am and 10 pm, allow access to your residence to your probation officer and/or any peace officer, or any persons delegated by such persons, who may attend without prior notification and in your presence, for the purpose of monitoring your compliance with the foregoing conditions. [ 37 ] Pursuant to

Section 487.051(1), I order that you provide such samples of bodily substances as are reasonably required for forensic DNA analysis. [ 38 ] Pursuant to

Section 490.012(1), I order that you comply with the Sex Offender Information Registration Act for a period of 10 years. [ 39 ] I order forfeiture of the items seized by the police from the Accused’s home including the computer tower, the external hard drive and the computer discs. [ 40 ] As the Accused is receiving a custodial sentence, I will waive the victim fine surcharge. ________________________ P. Chen Provincial Court Judge