R. v. Smart Date:, 2015 BCPC 100

Citation: R. v. Smart Date: 20150410 2015 BCPC 0100 File No: 79269-1 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. David Gerald Smart REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE R. SMITH BAN ON PUBLICATION 486.4(3) CCC RESTRICTED ACCESS Counsel for the Crown: D. Grabavac

Counsel for the Defendant: A. Vandersluys Place of Hearing: Kelowna , B.C. Date of Judgment: April 10, 2015 [ 1 ] THE COURT: Age 43, David Smart pled guilty to making child pornography, contrary to s. 163.1(2), and possessing child pornography, contrary to s. 163.1(4) of the Criminal Code . The Crown proceeded by indictment. [ 2 ] The offences occurred between November 2007 and July 2008.

The minimum sentence for making child pornography is one year in jail, the maximum is 10 years' jail. [ 3 ] In 2007 and 2008 when these offences occurred, the minimum sentence for simple possession of child pornography was 45 days' jail and the maximum was five years' jail. People facing this particular offence currently would be facing a six-month minimum for simple possession of child pornography. [ 4 ] MR. GRABAVAC: Your Honour, the maximum was 10 -- 45 days to 10 years. [ 5 ] THE COURT: Thank you.

So counsel points out that the maximum for the simple possession was 10 years and not five years. [ 6 ] The accused has no prior court history. [ 7 ] The possession charge involved over 700 child pornography images. The making child pornography charge involves one image of an eight-year-old child where the accused was in a position of trust as loco parentis . He considered himself a stepfather figure to the child. [ 8 ] On November 4, 2015 [sic], the accused voluntarily turned himself in to custody and has now been in custody 158 days.

When applying proper enhanced credit, I give him a credit of eight months' pre-sentencing jail time. [ 9 ] Crown seeks a global federal sentence of two years' jail, in addition to the dead time that he has already served. [ 10 ] Counsel for the accused seeks a global one-year to 18-month jail sentence, less the eight months' credit for time served. [ 11 ] All agree that a probation order should follow. [ 12 ] The accused was married twice before, once in 1992 and once in 2003, followed by two common-law relationships, the first being for two years, the latter being with D.D., who is the mother of the then eight-year-old victim, K.D. [ 13 ] All four former partners describe the accused as being extremely manipulative, controlling, and verbally and physically abusive to them and their children.

He posed as a Christian with family values when he met them, either through church or through friends or through online dating websites. [ 14 ] Three of the four women believed the accused related emotionally and otherwise better to preadolescent girls than to age-appropriate women. He spent an excessive amount of time on the computer. In hindsight, by his own admission and by what one or two of those former partners discovered, much of that online computer time of the accused involved viewing pornography. [ 15 ] He is now estranged from all of those former partners.

For the most part, he has been estranged from his own extended family, his mother, his siblings, although I am told that since he has been in custody, he has started making some contact with his mother. [ 16 ] In late 2007, the accused met D.D. through the dating website, Plenty of Fish. They started a romantic yet mostly non-sexual relationship. Often the accused stayed overnight at the residence of D.D., sleeping on the couch. As I said, he saw himself as a stepfather figure to the eight-year-old daughter. [ 17 ] There were elements of grooming and manipulation involved with regards to the eight-year-old.

There is no question that he had some pedophilic interests. I have viewed a photo where he is kissing the eight-year-old on the lips, both of them with their eyes closed, in what could only be described as giving the impression of a lovers' embrace. [ 18 ] At times, he entered into the bedroom of the eight-year-old and, in effect, told her that the mother had given permission for him to be there in circumstances where no such permission from the mother had been given. The accused took many, many photos, perhaps hundreds of photos of the child.

They were not pornographic in nature, but some could be described as somewhat lustful in nature. [ 19 ] However, he did take one photo that has led to the Count 1, making child pornography. That one photo involved his taking the picture of the eight-year-old while she was on a bed. He claims it was not a posed position, but it looks that way. She is wearing a housecoat with her legs spread widely apart with no panties and her genitals being fully exposed. There could be no question about what he was taking a picture of there.

That photo was clearly child pornography, and the focus of the photo was on the child's genitals. [ 20 ] This photo was found in possession of the accused in three locations: on the memory of his camera, on his home computer, and lastly a copy had been made on some type of floppy disc.

The copying and pasting to all three locations made it clear the making and keeping of that child pornography was intentional. [ 21 ] In January 2015, the accused was somewhat manipulative with the probation officer when being questioned about this, and gave some fanciful story about how the taking of the photo was an unintended accident. In court, the accused, in person and also through his counsel, acknowledged the child pornography photograph was intentionally taken. I made it clear that no guilty plea could

be accepted unless the accused was unequivocally acknowledging not only the actus reus of the offence, but also the mens rea . It is on this understanding that he is sentenced. [ 22 ] In the pre-sentencing report, the quote being referenced is as follows: Although he claims that after viewing the picture he realized that he had mistakenly taken an inappropriate photo and deleted it immediately. He claims that the camera he used was one that took rapid snapshots when taking photos and hence the picture in question was accidental.

He believes that [K.D.]'s Dad and [C.H.] . . . were jealous of his relationship with [K.D.] and therefore reported him to the police. When asked if he felt any remorse for having betrayed the trust placed in him by D.D. and K.D., [he] engaged in minimizing, rationalizing, and even blaming others for his culpability in the offence.

David does not feel he betrayed anyone's trust, stating that "they all trusted one another and therefore they all betrayed one another." This pattern of failing to have an empathetic insight into his offending against [the child] raises several concerns about David's ability to connect consequences to behaviour. [ 23 ] I found that particular reference troubling because today the accused is here for sentencing with a very large support group, his current fiancée, her parents, an aunt and an uncle, two pastors from his church, all who seemingly are aware of what he is pleading guilty to, believing that he has genuinely made significant changes for the better.

To use the spiritual wording, in effect, that he has repented. I think there is some truth to that, but it is in the context of him, as recently as late January, still somewhat manipulating and deflecting to the probation officer. [ 24 ] As I said, the accused is currently in a relationship with another female member of his church named M.S. I am told that they are planning on marrying once he is out of jail. She has been informed of some of the details of the offending, and she believes that he is a changed man.

As I said, he also has the support of the local pastors and church members who believe in his having made a transformation for good. [ 25 ] Now, back in 2008 when the RCM Police discovered the hundreds upon hundreds of child pornography photos possessed by the accused, seven of those photos depicted vaginal sexual assaults on female children. The child pornography was of prepubescent female children, often showing them fully naked and fully exposing their private parts. [ 26 ] For the past seven years, the accused has been employed for $20 an hour building custom furniture and cabinetry.

Since being in custody, he has taken education courses, attempting to get his Dogwood Grade 12 equivalent. He has participated in weekly cognitive behavioural therapy treatment, albeit in circumstances where the focus of that treatment is not for sexual offending, but rather for trying to change criminal mindset in general. [ 27 ] As I stated at the outset, simply for the making the child pornography charge, the mandatory minimum is one year jail and maximum is 10 years' jail. The minimum for the possession of the child pornography, given the offence date, is 45 days' jail minimum and 10 years maximum. [ 28 ] MR.

GRABAVAC: Your Honour, I'm sorry to interrupt, just so we're clear on that point, for the making child pornography in 2008, the minimum was one year of custody, maximum 10 years of custody. [ 29 ] THE COURT: Yes. [ 30 ] MR. GRABAVAC: In 2008, possession of child pornography was minimum 45 days in custody and maximum was five years. [ 31 ] THE COURT: That is what I said initially and you said I had it wrong. [ 32 ] MR. GRABAVAC: I apologize, Your Honour, I am sorry. [ 33 ] THE COURT: Okay, so I did have it right the first time.

I thought I had got it directly from the Criminal Code , but hey, I make mistakes, right, so I was not sure. [ 34 ] MR. GRABAVAC: I apologize, Your Honour. [ 35 ] THE COURT: But I will go back to that. For the simple possession charge all along throughout here the maximum is five years. [ 36 ] MR. GRABAVAC: Yes. [ 37 ] THE COURT: I do not think anything much would have turned on what I am doing with this, in any event, from that point of view, but I need to get it right. Thank you. [ 38 ] Children are one of the most vulnerable groups in our society.

Nearly all in society agree that child pornography is not only degrading and dehumanizing, but it is particularly disgusting because it involves victimizing innocent and vulnerable children. Even people who you might think have no morals at all often are disgusted by such victimizing of children. [ 39 ] Children in any position of trust are groomed for such victimization. Breach of that position of trust leads to significant emotional and mental violence, even if the child is never physically touched.

We often hear of children growing into adulthood and still struggling with such emotional and mental abuse. [ 40 ] It potentially puts other children at further risk for being victimized. The courts have held that even simple possession of child pornography contributes to the market for child pornography; a market which in turn drives production involving the exploitation of children.

[ 41 ]

Section 718 of the Criminal Code sets out a lot of the fundamental principles. The court is to denounce unlawful conduct and deter the offender and other persons from committing offences; to separate offenders from society where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [ 42 ]

Section 718.01 reminds the sentencing judge that when a court imposes a sentence for an offence that involves the abuse of a person under the age of -- I cannot remember if it is 16 or 18, but clearly this eight-year-old it applies to, it shall be given primary consideration to the objectives of denunciation and deterrence of such conduct. In other words, denunciation and deterrence loom large when dealing with sentences where children have been abused. [ 43 ]

Section 718.01 of the Criminal Code sets out other fundamental sentencing principles. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Similarly, sentences should be somewhat consistent with regards to what other accused for similar offences receive.

The court is to look at the totality principle and not be unduly harsh, in the sense that where there are two offences such as here, and if I am to make a consecutive sentence, that the overall time is not unduly harsh. [ 44 ] I am to look at the aggravating and mitigating circumstances, and to give emphasis on community sanctions where appropriate. Of course, that is not appropriate where there is a one-year minimum jail sentence. [ 45 ] I am to look at the circumstances of aboriginal offenders. I am told that this accused has some Cree First Nations through his natural father, someone who he never really knew.

He was never raised in an aboriginal home or in an aboriginal community, but in recent months he has reached out to that community more and is taking more of an active interest. However, his counsel says he is waiving his right to any Gladue report, given he was not raised as an aboriginal person. [ 46 ] The one-year minimum jail sentence for making child pornography reflects society's views of the seriousness of the offence. It sets the sentencing floor for the least culpable offender in the least culpable circumstances. Is this the least culpable circumstances? It involves but one photo.

It did not involve showing it to the greater public through the Internet; however, it did involve an accused who was in a position of trust in a stepfather role. Accordingly, while this is nowhere near the most culpable circumstances where a 10-year sentence could be imposed, this case cannot be the least culpable circumstances, given the position of trust. [ 47 ] Is this the least culpable accused? He has no criminal record. He has pled guilty. However, as recently as January with the pre-sentencing report, he was still, to a certain degree, minimizing and externalizing blame.

I say that in the context of his actually today, in open court, making it clear that the blame rests with him, but he was not so clear with the probation officer a couple of months ago. [ 48 ] He has been assessed as a moderate to high risk of reoffending. It is stated that this relates to his accessing and possessing child pornography, as well as the potential for contact-related sexual offences against children.

The expert believes he has pedophilic interests. [ 49 ] While he is nowhere near the most culpable accused, he cannot be said to be the least culpable. [ 50 ] That said, with regards to the most culpable accused and the most culpable circumstances, it is much closer to the lower end than to the higher end of that spectrum. [ 51 ] The Crown encourages an additional two years' jail, in addition to the eight months of dead time already served.

I pointed out to counsel that if that is the proper sentence, so be it, but I was not going to do it just because it is thought that there are better counselling facilities and opportunities through the federal institution. It is probably true that there are better counselling facilities through a federal sentence, but in our province, with a provincial sentence, there is the Ford Mountain Regional Correctional facility that expressly deals with sex offenders. [ 52 ] Ultimately, I believe the proper global sentence, before doing dead time, would have been 24 months.

I say that having had multiple cases referred to me here. [ 53 ] I think that the sentence should be consecutive, because the hundreds of child pornography photos that he had collected clearly was a different offence than the one where he was making the one photo of the one child. [ 54 ] Bearing in mind what I have already said, that I am going to give him enhanced credit of eight months' time having already been served, I say that but for the enhanced time, 16 months on Count 1, making of the child pornography, and eight months' consecutive on the Count 2, possessing the hundreds of photos of the child pornography, would have been the proper sentence, giving a global 24 months, less credit of eight months, meaning a balance of jail time owing of 16 months after deducting that enhanced credit. [ 55 ] Pursuant to s. 743.21, I prohibit you from communicating, directly or indirectly, with [K.D.] or her mother, [D.D.], or her sibling, [R.S.], during the period of time that you are in custody.

That will be an easy thing for you to comply with. [ 56 ] Pursuant to s. 743.2, I direct that the psychiatric report and the pre-sentencing report and a copy of my reasons for judgment be submitted to the institution where he will be serving, so they will know how best to assist him in rehabilitation. [ 57 ] I do not believe I have the authority to direct that he go to Ford Mountain, but I ask that the warrant of committal have endorsed on it the judge's recommendation that he go to Ford Mountain, given the reports stating that he is at moderate to high risk to reoffend. [ 58 ] I make an order under s. 161 for 20 years prohibiting you from attending a public park or public swimming area where the persons under the age of 16 are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground, or community centre.

I want to add one sentence to that, that says it is not intended to restrict your attendance at your church, provided the leaders of that congregation are made aware of your criminal record. [ 59 ] The next term of the 20-years. 161 order is I prohibit you from 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. [ 60 ] I prohibit you from having any contact, including communicating by any means, with a person who is under the age of 16 years, unless you do so under the supervision of a responsible adult person who is approved by your probation officer, and when you are no longer on probation, by a responsible adult person who is aware of your criminal record. [ 61 ] Lastly, for the next 20 years I, under this section, prohibit you from using the Internet or other digital network, except for work-related purposes. [ 62 ] Pursuant to s. 487.051, I order that you forthwith provide a sample of your DNA that is reasonably required for the purpose of forensic DNA analysis for that program. [ 63 ] Pursuant to s. 490.012 and 490.013(2.1), I make the so-called SOIRA order for life.

In effect, I order you to comply with the Sex Offender Information Registration Act for life. [ 64 ] Pursuant to s. 164.2 of the Criminal Code , I order forfeiture and destruction of all items seized after the appeal period expires. Similarly, with this section, I am directing that the exhibit disc filled with the child pornography, that exhibit will also be destroyed after the appeal period. [ 65 ] All that remains is the probation order. I do make a three-year probation order. This applies on both counts. The terms of the probation order are as follows: 1.

You shall report in person to the probation officer within 72 hours of your release from custody to the probation office at 1355 Water Street, Kelowna, B.C., and after that you shall report as and when directed by the probation officer. That is just right here in the courthouse, downstairs at the probation office. 2. You shall reside where directed by the probation officer, and you shall not change your residence at any time without first obtaining the written consent of the probation officer. 3.

You shall not contact or communicate, directly or indirectly, or be found in the company of any person known to be or reasonably appearing to be under the age of 16 years old, unless with the advance written consent of the probation officer. 4. You shall not attend at any 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.

I want to add that one exception to that, I forget how I worded it on the s. 161 wording, but I want to word it the same way, in effect that it is not intended to stop his attendance at church, however I worded it before, that same wording. 5. You are to have no contact or communication, directly or indirectly, with [K.D.], [D.D.], or [R.S.]. 6. You shall not attend at the residence, place of employment, or school of those same three named individuals. 7.

You shall not access the Internet anywhere or have a functioning Internet connection in your home, except for purposes directly and immediately related to your employment, while at your place of employment. 8. You will not possess, utilize, or access, or have in your home any device capable of accessing the Internet. 9. You shall not possess any pornographic materials or reside in a residence where there is any pornographic material. 10. You shall not possess a camera or a cellphone or other electronic device, portable or otherwise, capable of taking photographs or video recording.

That is not saying you cannot have a phone. There are some phones that you can get that do not have that capacity to take the picture, right, or that do not have capacity to have connections to the Internet. 11.

You are not to enter into any formal marriage or any common-law relationship with a woman, or into any other relationship that resembles marriage or involves cohabitation with a woman until you have identified to your supervisor the person - when it says supervisor, it should really refer to your probation officer - the person with whom you propose to enter into such relationship and your probation officer has informed that person of your history as described in your criminal record, pre-sentence report, if any, and prior reasons for judgment, if any. 12.

You shall attend, participate in, and successfully complete any assessment, counselling, or program as directed by the probation officer. Without limiting the general nature of this condition, such assessment, counselling, or program may relate to sexual offence prevention, psychiatric and psychological health, a full-time attendance program for sex offenders, including a sex offender treatment program and sex offender maintenance program, as may be directed by the probation officer, and you shall comply with all rules and regulations of any such assessment, counselling, or program. 13.

You shall grant a peace officer access to your residence to ensure your compliance with the conditions of your order. 14. You shall carry a copy of this order with you at all times when you are not in your residence, and produce it upon request of any peace officer, probation officer, or staff of Corrections Branch. 15. You shall not seek, obtain, or continue with any paid or unpaid activity that involves being in a position of trust or authority towards any persons under 16 years of age. 16. You shall not possess or use or access any cellphone that is Internet accessible.

17. You shall not possess, utilize, or access any memory cards, data storage devices, or portable media devices, except for those necessary for your work purposes. [ 66 ] I think I have covered all of the terms. [ 67 ] MR. GRABAVAC: Your Honour, I'm wondering on Condition 13, and I didn't canvass with my friend, could we add, after the word "peace officer", "and/or probation officer"? I think that it may be a peace officer -- [ 68 ] THE COURT: Yes, 13, peace officer and/or probation officer, sure. [ 69 ] MR.

GRABAVAC: And when you made the forfeiture order of the disc, could you also make an order that the two reports, Corporal Rostie and Corporal Giles' report get -- there's a picture of the images in Corporal Giles' report. [ 70 ] THE COURT: There is in the one. [ 71 ] MR. GRABAVAC: Yes. [ 72 ] THE COURT: In the one there is. [ 73 ] MR. GRABAVAC: Yes, so if that report could be included to be destroyed after the appeal period? [ 74 ] THE COURT: Sure, what exhibit number is that one? So Madam Clerk, tell us which ones we are talking about.

Not the addendum report, but the thicker report, Madam Clerk, whichever exhibit that was, the one that has some tabs stuck to the -- some temporary tabs. [ 75 ] THE CLERK: That is Exhibit 3, Your Honour. [ 76 ] THE COURT: So it is Exhibit 3 that is being referenced, then also the -- [ 77 ] MR. GRABAVAC: The disc. [ 78 ] THE COURT: -- the disc, those are the two things that are going to get destroyed after the appeal period. [ 79 ] You can do better when you get out of here. I hope you do. You have got a lot of people that are supporting you. That is tremendous.

Be honest with everybody and I do think you want to do better, I do. I believe you in that regard, but where the rubber hits the pavement, you have got to find a way to make it happen long term, right. Good luck. [ 80 ] MR. VANDERSLUYS: Your Honour, with respect to the victim fine surcharges, could those be waived, given the time involved? [ 81 ] THE COURT: I do waive it, given he is in jail. Thank you. THE HONOURABLE JUDGE R.R. SMITH