R. v. Massini, 2021 BCPC 302

Citation: R. v. Massini 2021 BCPC 302 Date: 20211029 File No: 73955-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CLAUDIO TULIO MASSINI REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. DOULIS Counsel for the Crown: B. Martin Counsel for the Defendant: D. Jenkins Sr., Q.C. Place of Hearing: Prince George , B.C.

Date of Hearing: October 29, 2021 Date of Judgment: October 29, 2021 [ 1 ] THE COURT: On May the 8th, 2020, Claudio Tulio Massini was charged indictably under Information 73955-1 with Count 1: possessing child pornography contrary to s. 163.1(4) of the Criminal Code ; Count 2, charging him with accessing pornography contrary to s. 163.1(4.1) of the Criminal Code ; and Count 3 with making child pornography contrary to s. 164.1(2) of the Criminal Code . All these offences are alleged to have occurred on March 10, 2019, at or near Prince George, B.C. [1] On January 29, 2021, Mr.

Massini entered a guilty plea to Count 1 on Information 73955-1, which is the charge of possessing child pornography. At that time, the court ordered a pre-sentence report and a forensic psychological risk assessment. This matter has come before me for sentencing today. I heard submissions of the Crown and of Mr. Jenkins Sr. on behalf of Mr. Massini. I have also heard from Mr. Massini on his own behalf.

[2] The court has received into evidence the following exhibits: Exhibit 1: an agreed statement of facts which the parties have entered into and signed today, October 29, 2021. I have read these agreedstatement of facts and I have taken them into consideration in this sentencing hearing. I am not going to repeat them in court today; Exhibit 2: a presentence report of Probation Officer Christie Crothers that was completed on January 4, 2021. P.O. Crothers is with thePrince George Community Corrections.

Again, I have had an opportunity to read this report and take it into consideration in thissentencing hearing; Exhibit 3: the psychological risk assessment of Dr. Gatner and Dr. Kropp of the Forensic Psychiatric Services Commission. I have readthese reports and I have taken into consideration their opinions on risk assessment as set out in that report; Exhibit 4: a booklet of medical records of Drs. Michael O'Malley, Jana Sidorov, and Dr. Hampole. Dr.

O'Malley, although a familyphysician, is recognized in this community as having acquired considerable expertise in treating addictions including sex addictions; and Exhibit 5: a booklet of character reference from Mr. Massini's family members, his employer, and fellow participants in a SexaholicsAnonymous 12-step rehabilitative program of which he has been involved now for some time. [3] As I said, I have had an opportunity now to review these reports and I have taken them into consideration, but in the interests oftime, I am not going to recite from them.

Counsel has brought to my attention those portions that they thought relevant and I have alsotaken into consideration my own views on what I thought relevant. [4] The Crown and the defence jointly propose a sentence of 10 months jail followed by two months probation, two s. 161 orders, aDNA order, and a SOIRA order - a Sex Offender Information Registry Act order, which is mandatory. They have drafted a forfeiture orderand provided the court with a very detailed

summary of what it is that they are proposing, not only the length of a jail sentence, but alsothe terms of the probation and ancillary orders. [5] The Crown relies upon R. v. Alexander , 2019 BCCA 100 , which is a 2019 B.C. Court of Appeal decision suggestingthe appropriate custodial range for first-time offenders is between four to six months and 15 months. Both the Crown and defence cite R.v Capewell, 2021 BCSC 904 , a 2021 Supreme Court decision, as authority for the appropriateness of the sentence they havejointly submitted to the court.

I have read Capewell, a decision of Madam Justice Gerow, and I agree the circumstances in Capewell aresufficiently similar that it is very good authority on the appropriate range of sentence. [6] I pause to say that the defence had originally wanted to propose a conditional sentence order which, given the fact the statutoryminimum sentence associated with the possession of child pornography has been struck down as unconstitutional, is a sentence availableto the court. I have in the past have imposed such a sentence.

I concur with the defence, a CSO is not an appropriate sentence in this case.If proposed, I would not say that I would never sanction a CSO, but it would be highly unlikely that I would accept such a proposal.

So, Ithank the defence for recognizing the appropriate sentence in these circumstances does require a period of jail - not in the community,but behind real bars. [7] I note that in recent years, the courts have developed a greater appreciation of the harm caused to children by the possession ofchild pornography and it has led to a greater emphasis on denunciation and deterrence, as the Crown has pointed out in R. v. R.L.W.,2013 BCCA 50 , a 2013 decision of the B.C. Court of Appeal.

I am citing from a decision of one of my brother judges about thedeeper social understanding of harms caused by child pornography because sometimes people do not appreciate what it is. Judge Hickssays R. v.

S.D.M., 2015 BCPC 112 at paragraph 49: [49] Children are victimized in the most brutal and intrusive way at every stage of the child pornography continuum; from the groomingto the undressing, to the posturing, to the exposure, to the forceful intrusion into their most private places, to the physical force andrestraint of the child, to threats and physical violence, and to the emotional struggle many of these children will endure over a lifetime.There is a concern that this offending against children is increasing and that the easy ability to circulate this material over the internet isencouraging that growth.

Once these images are introduced to the internet, there is no ability to control where they appear, what use ismade of them, how often they are re-sent and viewed. Those who possess, view, chat about and exchange child pornography provide theencouragement and the audience for those who abuse children in order to produce that content. Thus the emphasis on deterrence anddenunciation as the primary sentencing objectives in cases involving those who possess and circulate this material. [8] I also am mindful that last year the Supreme Court of Canada in R. v.

Friesen, 2020 SCC 9 , emphasized that sexualoffences against children are violent offences that wrongfully exploit children's vulnerability and cause profound harm to children,families, and communities. Incarceration will be necessary in all cases of possession of child pornography except in exceptional cases toproperly emphasize the principles of denunciation and deterrence.

I concur with counsel this is not an exceptional case. [9] The aggravating circumstances, as the Crown has described, includes the nature of the images that are at issue including imagesthat were edited in a disturbing manner and the fact that the images included very young children. [10] As to mitigating circumstances, I am just going to defer to the defence submissions. Mr. Jenkins Sr. has been very thorough insetting out what he considers to be the mitigating factors , many of with which I concur: a. Mr.

Massini has no criminal record for similar related offences or, for that matter, any criminal record whatsoever; b. Also mitigating is the fact Mr. Massini did not distribute the child pornography or send pictures to anyone or upload the photographsthat he created to the Internet; c. Mr. Massini did not himself take any of the photographs, although he did workshop them, which was one of the aggravating facts towhich I have referred;

d. The size of Mr. Massini’s collection was relatively small compared to some of the cases. I do not necessarily say this is mitigating, but it is not as aggravating as if it involved thousands of images that sometimes come before the court; e. Mr. Massini stopped accessing child pornography in March of 2019, when he was arrested, but before he was charged with the offence; f. The psychiatric reports indicate that Mr. Massini was not, and is not anticipated to be, a danger to children; g. Mr. Massini says he has never purchased child pornography or contributed to the sexual victimization of children for profit.

I do not necessarily agree with him because the sexual victimization is done by people who distribute these sort of images for people such as Mr. Massini who would possess them. If there was no market for them, they would not be traded; h. Mr. Massini has shown insight into his problems; i. Mr. Massini has demonstrated remorse in court today and I accept it is genuine; j. Mr. Massini has been diligently attending Sexaholics Anonymous since July 24, 2019. He has embraced the program. He says he read all the literature that he could get his hands on; k. Mr.

Massini, in the time between his arrest and the sentencing, has progressed a fair distance on his rehabilitative journey; l. Mr. Massini has abided by his bail conditions without incident. This is not necessarily a mitigating factor. We expect people to abide by their bail conditions, but if he had not, it might be aggravating; m. In addition to embracing his rehabilitation early on, one of Mr. Massini's most significant mitigating factors, is his early guilty plea which the court appreciates as a sign of remorse. As I said, I accept Mr. Massini's remorse is genuine; n. Mr.

Massini's family members, who are here today, are aware of the charges and they continue to support him, as does his employer. He has lived his entire life in a prosocial manner and has been a productive member of society; and o. Mr. Massini does have a few health conditions that, as Mr. Jenkins Sr. points out, are not determinative in terms of the sentence.

He has a heart condition and a diagnosed prostate cancer which will probably make serving a sentence a little more difficult, but Corrections often have people with medical conditions and they are attuned to the needs of their inmates who have such conditions. [ 11 ] Considering the mitigating factors I am satisfied the proposed sentence the Crown and defence has offered the court is an appropriate sentence.

I reiterate, that although in some cases conditional sentences have been ordered, they are extraordinary and exceptional and many of them predate Friesen wherein the Supreme Court of Canada makes it clear that a CSO is not generally appropriate in these matters. [ 12 ] In sum, I am prepared to accept the joint submission in terms of sentence which I will pass at this time. [ 13 ] Mr.

Massini, you have entered a guilty plea that on March 10, 2019, at or near Prince George in the Province of British Columbia, you did possess child pornography contrary to s. 163.1(4) of the Criminal Code and you were charged with that offence on Count 1 of Information 73955-1. I accept your guilty plea to that offence, I find you guilty of that offence, and I am imposing the sentence that has been jointly submitted by your counsel and the Crown. It will be a sentence of 10 months' custody in jail and followed by a two-year’s probation order.

The terms and conditions of which I will go over in a minute. [ 14 ] There will also be some mandatory ancillary orders such as the sex offender information registration, the SOIRA order, for ten years. There will be some orders under s. 161.1(

b) of restrictions on the terms of your employment or use of the Internet and, again, I will go over those conditions. There will be a DNA order as this is a primary designated offence that requires the court to order that DNA samples be taken of you, and there will be a forfeiture order for the items that the police seized in their investigation of this matter. [ 15 ] Now, I have not been advised by counsel that there is any presentence credit. [ 16 ] CNSL B. MARTIN: I do not understand that there is. [ 17 ] THE COURT: All right.

So these will be the terms and the conditions of your probation, once you have served your sentence: There are statutory conditions for probation: a. You must keep the peace and be of good behaviour; b. You must appear in court when required to do so by the court; and c. You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation.

Do you understand those conditions? [ 18 ] THE ACCUSED: I do. [ 19 ] THE COURT: All right, and the next condition, the Crown has asked a reporting condition by telephone. Given the probation order will not come in to effect for some time, I am going to ask that the reporting be in person. You must report in person to the probation officer at Prince George Community Corrections at 101 - 250 George Street, Prince George, B.C., within two business days after your release from custody unless you have obtained, before your release, prior written permission

from the probation officer to report elsewhere or within a different time frame. After that, you must report as directed by your officer.

Do you understand that condition? [ 20 ] THE ACCUSED: I do, Your Honour. [ 21 ] THE COURT: Okay, and with respect to an address: When first reporting to your probation officer, you must provide them with the address where you live and your phone number, and you must not change your address or phone number without notifying your officer about that change, all right, in advance. [ 22 ] THE COURT: You must not engage in any volunteer work or employment that would bring you in contact with persons under the age of 16 years without the written permission of your probation officer.

You must carry this permission, which can be in electronic format, when you are engaged in the activity. You understand that condition? [ 23 ] THE ACCUSED: Yes, Your Honour. [ 24 ] THE COURT: You must not have any contact/communication directly or indirectly or be in the presence of any person under the age of 16, except in the immediate presence of their guardian and supervised by their guardian or with the permission of their guardian.

Aright? [ 25 ] THE ACCUSED: Yes. [ 26 ] THE COURT: So no contact or communication with any person under the age of 16 except supervised by their guardian or with the permission of their guardian. You are not to possess or view any pornography.

Do you understand that condition? [ 27 ] THE ACCUSED: Understood. [ 28 ] THE COURT: There is an Elton Hubbs , condition: 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 old 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, a relationship and your probation officer has informed that person of your convictions and this order and the history as described in your criminal record, presentence report, if any, and these reasons for judgment. [ 29 ] So now you have not specified, counsel, a term under 2501 about attending counselling?

Was that anticipated to be part of the probation order, that Mr. Massini would attend and participate and complete counselling? [ 30 ] CNSL B. MARTIN: Yes, that was the intention and I apologize, the sheet I provided was not clear on that. I did not provide the specific term for attending counselling, but that was the intention, to attend as directed. [ 31 ] THE COURT: All right, and Mr. Jenkins, that is the intention? [ 32 ] CNSL D. JENKINS: I would encourage it. [ 33 ] THE COURT: Yes, okay. I thought so since it speaks loudly in his attempts at self-rehabilitation.

You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer, and this counselling or programming include counselling or programming for sexual offence prevention. Do you understand that condition? [ 34 ] THE ACCUSED: Yes, yes. [ 35 ] THE COURT: Having consented in court, you must sign any document that is necessary for your probation officer, counsellors, or treatment providers to check your attendance and completion of any assessment, counselling, or treatment program. All right. [ 36 ] THE ACCUSED: Yes.

[ 37 ] THE COURT: So you understand that condition? [ 38 ] THE ACCUSED: I do, Your Honour. [ 39 ] THE COURT: Also, having consented in court, if asked by your probation officer, you must provide proof of your attendance and completion of any assessment, counselling, or treatment program. While possessing and using any device capable of accessing any computer network including the Internet: i. You must be in the direct and immediate presence of the person approved of by the probation officer and only for the purpose specifically listed in writing by the probation officer. ii.

You must carry a copy of the written permission with you at all times and present it without request by the peace officer who stops you for any reason without being requested to do so. Do you understand that condition? [ 40 ] THE ACCUSED: I understand. [ 41 ] THE COURT: You are not to use the Internet except in accordance with the conditions that I described and one is in the course of lawful employment where you are required by an employer other than yourself to use a device that is owned and controlled by the employer.

The device must only be used in the course of your employment and with the permission of the employer after the employer has confirmed with your probation officer that he or she has read this order and the probation officer has approved the circumstances of the employment in advance of writing. So do you understand that condition? [ 42 ] THE ACCUSED: I do understand, yes. [ 43 ] THE COURT: a. You must not delete your browsing history or use any program to hide your browsing history; b.

You must not access directly or indirectly any social media sites, social networks, Internet discussion forums or chatrooms, or maintain a personal profile on any such service including, but not limited to, Facebook, Twitter, Tinder, Instagram, LinkedIn, or any similar service. c. You must not communicate or attempt to communicate with any person you know to be or who reasonably appears or represent him or herself to be under the age of 16 years; d. You must not access any content that violates the law; e. You must not access any pornography; f.

You must not subscribe to or possess or access any file sharing programs; and g. You must not possess or utilize any encryption-capable software. Do you understand those conditions? [ 44 ] THE ACCUSED: I do understand, Your Honour. [ 45 ] THE COURT: Okay, and are there any conditions, counsel, that have not been included that you say ought to be included or that I have somehow overlooked? [ 46 ] CNSL B. MARTIN: That covered the probation conditions for the Crown. [ 47 ] THE COURT: Okay. So these will be the conditions of your probation order that will come into force upon your release.

It will be for two years and you have told me that you understand them -- [ 48 ] THE ACCUSED: I do. [ 49 ] THE COURT: -- and do you promise that you will obey all those terms? [ 50 ] THE ACCUSED: Absolutely, Your Honour. [ 51 ] THE COURT: And you understand, should you fail to do so, you could be arrested, you could be charged with failing to comply with the terms of your probation order? [ 52 ] THE ACCUSED: I understand.

[ 53 ] THE COURT: there is also a s. 161 order that I am going to read out, pursuant to s. 161 of the Criminal Code , there is going to be a prohibition for 10 years: Pursuant to 161(1)(b): You are prohibited for a period of 10 years commencing on the date you are released from prison from seeking, obtaining, 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 a person under the age of 16.

Do you understand that -- [ 54 ] THE ACCUSED: I do, Your Honour. [ 55 ] THE COURT: Pursuant to s. 161(1)(d): You are prohibited for a period of 10 years, from using the Internet except under the following conditions: • you must not delete your browsing history or use any program to hide your browsing history; • you must not access any pornography; • you must not subscribe to or possess or access any file sharing programs, and • you must not possess or utilize any encryption-capable software. Do you understand those conditions? [ 56 ] THE ACCUSED: I do. [ 57 ] THE COURT: there will be a DNA order.

This is a primary designated offence. Count 1 on Information 73955-1 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. The samples will be taken while you are in custody and you must submit to the taking of the samples. Do you understand those conditions? [ 58 ] THE ACCUSED: I do, Your Honour. [ 59 ] THE COURT: There will also be a SOIRA order for a period of 10 years: Pursuant to s. 490.013(2) (

a) of the Criminal Code , you are required to comply with the Sex Offender Information Registry Act for a period of 10 years, and this is pursuant to s. 490.012(1). All right. So there is a going to be 10 years that you have to comply with the sex offender registry. Do you understand that condition? [ 60 ] THE ACCUSED: I do. [ 61 ] THE COURT: There is also going to be a forfeiture condition, and this is pursuant to s. 164.2 and s. 490.1 of the Criminal Code .

There will be a forfeiture of : a. the silver Seagate external hard drive, serial number NA7LDTMZ; b. three images of child pornography; c. a blue WD storage device with 100 total images of child pornography; an HP PC tower, serial number 2UA3450MT5 with 245 total images of child pornography which were used in the commission of the offence that belonged to, you, Mr. MASSINI; and I order that they be forfeited pursuant to s. 164.2(1) of the Criminal Code ; d.

I am also ordering a forfeiture order of a Dell PC tower, serial number 5Y3BFY1, and a silver-white Dell PC tower. [ 62 ] The Crown has provided me with a copy of the forfeiture order and I am going to sign that. [ 63 ] So those are the conditions of the orders -- ancillary orders that you will be on upon your release. All right? [ 64 ] THE ACCUSED: Yes. [ 65 ] THE COURT: Now, there is a victim fine surcharge associated with this offence and I will give you a year to pay that given the period of incarceration. [ 66 ] Is there any counts on which the Crown is going to direct a stay? [ 67 ] CNSL B.

MARTIN: Yes, Crown directs a stay on the remaining counts. [ 68 ] CNSL D. JENKINS: Your Honour, would you make a recommendation that his time be served at Ford Mountain?

[ 69 ] THE COURT: I can make that recommendation -- [ 70 ] CNSL B. MARTIN: Crown takes no position. [ 71 ] THE COURT: -- Given how far that Mr. Massini has travelled along his rehabilitative journey and the efforts that he has made in the last two years to deal with his issues, and I will make a recommendation that his time be served at the Ford Mountain Institute where they are known for having these sexual offender programs that are very helpful. (REASONS FOR SENTENCE CONCLUDED)