Her Majesty the Queen - v. -, 2014 SKPC 200

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 200 Date: November 21, 2014 Information: 24484581 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kelly Beleznay Appearing: M. Segu For the Crown B. Pfefferle For the Accused SENTENCING DECISION R.D. JACKSON , J Background [ 1 ] The accused was convicted after trial of possession of child pornography and making available child pornography, contrary to ss. 163.1(4) and 163.1(3), respectively.

[ 2 ] The Crown proceeded by indictment and accordingly mandatory sentencing periods of incarceration apply as follows: s. 163.1(4) Every person who possesses child pornography is guilty of

a) an indictable offence and is liable to imprisonment for a term of not more than five years and to a minimum punishment of imprisonment for a term of six months; s. 163.1(3) Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation of any child pornography is guilty of

a) an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; [ 3 ] At issue is the length and terms of sentence to be imposed. The Crown seeks a period of 24 months on each count consecutive for a total of 48 months. The Defence contends that a global sentence of 24 months plus 3 years probation to follow is the appropriate disposition. [ 4 ] In addition to incarceration the accused will be subject to various ancillary orders addressed at the conclusion of this decision.

Crown [ 5 ] The Crown asserts that the two convictions must be treated as separate and distinct and send the appropriate message of denunciation and deterrence as mandated by s. 718.01 of the Criminal Code . [1] [ 6 ] On the possession charge, the Crown pointed out that the only mitigating factor is that the accused has no previous record. As far as aggravating factors, the Crown asserts:

a) there were roughly 60,000 files and images including photographs and videos;

b) the victims ranged in age from infants to early teens;

c) all manner of degrading abuse is depicted in those images including: digital penetration, vaginal and anal intercourse, fellatio and group sexual activity;

d) the level of participation necessary to amass this size of a collection in only a matter of months;

e) the utilisation of a variety of methods to access child pornography including Emule, chat sites and the Internet;

f) the utilisation of child pornography as wallpaper for his desk top computer demonstrating absolutely no effort to hide or keep such matters private;

g) the back up of images on disc and USB drives and, as well, downloading over 200 photographs to a binder evidencing not only intent to download but to preserve the images;

h) the “zero” insight into the nature and magnitude of harm caused to children or empathy for them as victims - Crown counsel points out that in the Pre-sentence Report reference is made only to his own feelings and how it affects him and how it may affect his parents;

i) the denial of his obvious issues and problems involving children for sexual gratification demonstrated at page 2 in the bottom paragraph of the Pre-sentence Report “ . . . Kelly indicates he does not feel he is sexually attracted to children and does not find himself attracted to children when he sees them in real life”;

j) the failure to take any personal initiative to this point to address his issues. [ 7 ] On the “make available” conviction the Crown refers to the following:

a) the accused shared 116 files with over 4,000 users;

b) each instance of sharing re-victimizes the child by depicting them as sexual objects and, significantly, by never in their life being able to gain control of such images in the hands of thousands and thousands of child pornography users;

c) each sharing enhances and contributes to the global demand for child pornography. [ 8 ] The Crown cites several unreported provincial court decisions out of this jurisdiction to demonstrate the range of sentencing for possession of child pornography alone:

a) R v James Boyle 2012 possession of 5,000 images entered guilty plea no previous record 12 months incarceration

b) R v Anthony Boyle 2012 possession of 8,000 images entered guilty plea no previous record 2 years incarceration

c) R v Collingridge 2012 possession of 314 files of images and videos entered guilty plea no previous criminal record joint submission for 18 months incarceration for possession

d) R v Gabriel Roy 2014 eight images on cell phones

1 previous conviction for possession guilty plea 21 months incarceration [ 9 ] The Crown however relies principally on the recent decision of my brother Judge Agnew, R v Stupnikoff . [2] The accused in this case had one previous conviction in 2005 for possession of child pornography and was found guilty the second time for possession in 2013 and for also making the images available.

Relying, inter alia , on the fact that the accused had been convicted once before and began collecting again almost immediately upon completion of his conditional sentence, Judge Agnew sentenced him to a global disposition of five years incarceration. [ 10 ] Mr. Stupnikoff on his second conviction was found in possession of 80,393 images or videos (nearly ten times the amount of images that he had when convicted in 2005). It does not state how many users the accused shared these files with. The Crown points out that the only distinguishing feature between his circumstances and that of Mr.

Beleznay currently before the Court is the one previous conviction for possession of child pornography in 2005. [ 11 ] The Court also notes the incisive comments of Agnew, J found in Stupnikoff at paras. 18 to 21 inclusive, referencing the insidious long term harm on the child victims when their images are shared at large: [18] The harm in possessing child pornography is then compounded by distributing or making available this material. Obviously, this either actually or potentially places the material in the hands of still more viewers.

The effects of having evidence of such abuse in the hands of others has been the subject of considerable judicial comment. In R. v. Kwok [3] , the Court received a victim impact statement from a girl (“M.A.”) whose abuse had been recorded and distributed. To quote the judge in that case, who in turn quotes M. A.: . . .the statement is a poignant description of the particularly heinous victimization of children that occurs when their degradation is photographed and placed on the Internet. I am confident that these feelings would be shared by any child, or indeed adult, who was treated in this way.

M.A.'s statement reads, in part, The absolute worse (sic) thing about everything that happened to me was that Matthew [her abuser] put my pictures on the internet. He traded them with other people like baseball cards. What kind of people want to see pictures of a little girl being abused in this way? ... I know that these pictures will never end and that my "virtual abuse" will go on forever. [4] [19] “What kind of people want to see pictures of a little girl being abused in this way?” Well, Mr. Stupnikoff wants to see it. As M.A. eloquently describes, her virtual abuse at the hands of Mr.

Stupnikoff and those like him will never end. [20] Even the possibility that distribution might occur is traumatic. As stated by the Ontario Court of Appeal in R. v. D.G.F. [5] : Obviously sexual abuse of a child by a parent is likely to have a significant psychological effect on the child. However, the additional trauma is caused by the child knowing that her photos are out in the public domain where unknown numbers of people around the world may be able to access them, and, in this case, know the child's name.

It was unclear on the evidence whether anything transmitted in the conversation with the officer to a chat room that was immediately disabled could be available to be seen in the future. However, the victims have ongoing fear and uncertainty regarding what remains accessible on the internet and to whom. It amounts to ongoing psychological victimization of all the children involved. [21] The idea that viewing child pornography is a harmless matter would be laughable, were it not so tragically harmful and wrong. Mr.

Stupnikoff has helped create the market for this harm, by collecting it, and has fed the market, by making child pornography available. He has managed to sin on both sides of the supply and demand equation.

Defence [ 12 ] The main focus of the defence position centred upon the decision of R v Kroeker [6] , from the Court of Queen’s Bench from the judicial centre of Swift Current. Defence counsel points out that in this case where the accused had even more images in his possession than Beleznay (153,000 compared to 60,000) and was convicted of making child pornography available as well, he nonetheless received a global sentence of 24 months incarceration plus three years probation to follow.

Defence counsel urges that this case cannot be distinguished from the case at bar and that this court is bound accordingly by the higher court authority to impose a similar sentence upon Mr. Beleznay. Determination [ 13 ] The Court has taken considerable time to review and consider the disparate sentencing positions put forward by Crown and Defence, paying particular attention to the Kroeker decision cited by Defence. [ 14 ] The sentence imposed in Kroeker is noted to be two years for possession of child pornography and one year for making it available which was then ordered to be served concurrently.

The Court notes however that the position taken by Crown counsel in Kroeker was that the possession of child pornography was the more serious of the two charges in their view. The Court then agrees at para. 52 of the decision that in this circumstance the possession was the more significant of the two convictions noting “. . . he nonetheless was not deliberately distributing the pornographic material. It is more of a situation of an omission.” Mr. Justice Keene also acknowledges that he is aware of the comments of Mr. Justice Gabrielson in R v Johannson [7] where it is stated at para. 9 “. . .

As mentioned in my judgment convicting Mr. Johannson, there are very few authorities concerning charges of making child pornography available through the use of Internet file sharing programs such as was the situation here. The offence here arose as a result of Mr. Johannson omitting to take steps which would prevent child pornography which he downloaded onto his computer from being available to others rather than an active step at distribution.

The result however may be no less harmful in respect to the exploitation or abuse of children”. [ 15 ] In the present case the accused was found guilty of making the pornographic images available to over 4,000 users, certainly making this an offence of commission rather than omission as was the case in Kroeker . Further, the sheer number of such files is extremely aggravating.

The multiplier effect of 4,000 users then in turn making them available (or even a portion thereof) with other users would escalate the number of files being shared in the tens and quickly the hundreds of thousands, and beyond. [ 16 ] One can readily imagine the anguish and horror of a victim knowing that such images are potentially being shared in this fashion and to this extent.

This is further exacerbated by the knowledge that the shared images can never be retrieved and will be an indelible stain in perpetuity. [8] [ 17 ] Accordingly, the Court finds the manner and magnitude of making the pornographic images available to others to be a major distinguishing factor between the Kroeker case and the case at bar that warrants a distinctive approach to this sentencing. Sentence [ 18 ] It is often said that children are our most precious commodity.

The fact that adult men for sexual gratification routinely defile and victimize them, some as young as infants, capitalizing on their innocence and inability to comprehend such depravity, is a sad commentary on our times. However, it is reality. For those caught and convicted, sentences must continue to reflect to the greatest extent possible society’s overriding concern and desire to protect these children. [ 19 ] Although Mr. Beleznay, as any such offender of this nature, may well benefit from taking counselling or programming, it does not

appear that he is motivated in any respect to do so. His lack of insight and remorse as reflected in the Pre-sentence Report is franklyappalling. Should Mr. Beleznay become inclined to participate, incarceral programming is certainly available and recommended. [20] Having regard to all of the foregoing, the accused shall serve 24 months incarceration for the possession of child pornography and12 months consecutive on making such available, for a total aggregate sentence of 36 months in a federal penitentiary. [21] Additionally, the following ancillary orders shall apply:

a) provision of a DNA sample in accordance with s. 487.05(1)(

a) of the Criminal Code;

b) a lifetime Sex Offender Information Registration Act Order pursuant to s. 490.012 of the Criminal Code;

c) an order pursuant to s. 161(1)(a) - (

c) of the Criminal Code for a period of 15 years;

d) a Forfeiture Order pursuant to s. 490.1 of the Criminal Code as per the draft Order filed and consented to by counsel. [22] As the charges pre-date the implementation of the mandatory surcharge regime and due to the lengthy period of incarcerationimposed, all surcharges are waived. _________________________________ R.D. Jackson, J [1] S. 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 shallgive primary consideration to the objectives of denunciation and deterrence of such conduct. [2] 2013 SKPC 57 , 2013 SKPC 057 [3][2007] O.J.

No. 457, , 72 W.C.B. (2d) 533 (Ont. S.C.J.) [4]Paragraph 51. [5]2010 ONCA 27, [2010] O.J. No. 127, 250 C.C.C. (3d) 291, 259 O.A.C. 364, 98 O.R. (3d) 241, 72 C.R. (6th) 299 at paragraph 25. [6] 2014 SKQB 137 [7] 2009 SKQB 12, 330 SaskR 51 [8] See paras. 18 to 20 in R v Stupnikoff referenced at para. 11 supra