) Ms. S. Doe ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. R. Bharath - v. -, 2019 MBPC 22

Citation Number: 2019 MBPC 22 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Ms. S. Doe ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. R. Bharath - and - ) for the Accused ) ROBERT GLENN WINTERBURN, ) ) Sentence delivered Accused. ) January 18, 2019 POLLACK, P.J. (Orally) Having elected to be tried in this court, Robert Glenn Winterburn has entered guilty pleas to one count of distributing child pornography between March the 2nd, 2017 and May 29th, 2017, and to one count of possessing child pornography between March 2nd, 2017 and September 25th, 2017 in Winnipeg.

He has also entered a guilty plea to one count of failing to comply with a recognizance in an indictable proceeding. In this hearing, I have been shown samples of 99 image files and 299 video files seized from the computer used by Robert Winterburn. The seized files are his child pornography inventory. Using more than one identity, he joined peer networks and this enabled him to acquire his collection. Using Internet chat he was able to communicate with others who had child pornography and make trades.

In conversation with his pre-sentence report writer, he described his preference as "teen girls that look almost 18 but younger and girls with other guys". Although he had been interested in videos that depicted male children and bestiality, he later became disgusted with these materials but kept those files as "good trade material". No one should think that a judge can see and hear the evidence in this case with the detachment and dispassion of a traffic court case. Over the years, there have been notable judicial expressions of this, such as R. v.

Morelli , 2010 SCC 8 , in which Justice Fish wrote: "To be sure, offences involving child pornography are particularly insidious. They breed a demand for images that exploit vulnerable children, both economically and morally. Understandably, offences of this sort evoke a strong emotional response. They generate widespread condemnation and intense feelings of disapprobation, if not revulsion." Observing those samples and listening to the prosecutor's vivid descriptions against the background of the overall duty to judge proportionately is a challenge. As Justice Menzies observed in R. v.

Proulx , 2010 MBQB 58 , at paragraph 22 : "Courts must be careful not to allow personal abhorrence to an offence to unduly sway the decision to be rendered on sentence. However, the repulsive nature of a particular offence is not to be totally disregarded."

Forensic classification of child pornography in this case was presented with reference to the COPINE scale. COPINE is an acronym for Combating Pedophile Information Networks in Europe, a 10 level scale developed to categorize child abuse images.

The Sentencing Guidelines Council of the United Kingdom has reduced the levels to these five: Level 1 - images depicting erotic posing with no sexual activity Level 2 - non-penetrative sexual activity between children or solo masturbation by a child Level 3 - non-penetrative social activity between adults and children Level 4 - penetrative sexual activity involving a child or children or both children and adults Level 5 - sadism or penetration of or by an animal The five-level approach has been adopted by Manitoba courts, such as R. v. Basov , 2015 MBCA 22 .

Suffice it to say that the files seized from this offender contained examples of all categories. Although there was room for discussion whether some may have been closer to a lower level, there can be no disputing the level 4 and level 5 classifications. In managing his collection, this offender had two classes of inventory: one for his own gratification and one for use in trading with others. That distinction is important. Every authority presented confirms that the primary objective of protecting the public will be by application of the principles of deterrence and denunciation.

The defence acknowledges that the children who were photographed and videographed are truly victims. Powerful victim impact statements have been provided to me in two formats. I should add at this point that Mr. Winterburn sat in the prisoner's box with appropriate respect during the entire proceeding. The first was the reading of a victim impact statement by a woman in a video. Her childhood images, made by her father as he abused her, are all over the Internet. Among users like this offender they have acquired a reputation for elements that make them desired.

Police investigators around the world are quite familiar with this series. Upon prosecution in the United States, her offender was jailed for 50 years. The next was a written statement from one of three siblings from a total of seven family members who were exploited for the gratification of people like Robert Winterburn and who also have become known as a series of sought after acquisitions. These statements explain, to borrow an adjective from Justice Fish, just how insidious it is to put child pornography on the Internet. The victims know that they will be available and shown to users forever.

Knowing this, the victims fear recognition which is a very real threat and suffer every day of their lives. Despite their articulate expressions of the victimology involved, I cannot imagine what their lives must be like. Information about the offender is found in a pre-sentence report dated November 14th, 2018. One of the collateral sources was a counsellor who confirmed in writing meeting with the offender in the months following his initial arrest. In the pre-sentence report, some mitigating factors are described, although none is elaborated upon in a psychological risk assessment.

The pre-sentence report certainly depicts a young adult who has had a terrible home life and has had his tiny social life and meager employment prospect erased by his arrest and prosecution. He still lives with his mother who is now in her second relationship in which addiction, anger and tension are household constants. Without any higher education or job training, the offender has had a couple of minimum wage jobs, the last of which he lost as soon as he was arrested at work.

Although no diagnostics have been provided, the offender is described by others as someone with obvious limits to his learning ability as someone who is immature. He was unable to cope with a school curriculum and suffered bullying. He described himself as being suicidal in the past. After an attempt in 2014 he was detained in hospital for a month. Since then he has been on medication.

Like many offenders, he assured the probation officer writing his report that he understands that his child pornography represented real harm to the victims, while at the same time assuring the probation officer that he would never offend against a child. That said, he did say that he fantasized about what it would be like to be with a teenage girl who was inexperienced. And, like similar offenders, he has lived in the community for 26 years without a criminal record until his arrest in 2017.

He was immediately released on typical conditions for someone facing these charges, including a condition that he not have any cameras capable of making images. During a compliance check in May 2018, the police found a video camera in his room. He claims to have forgotten that it existed and the prosecution does not press that issue. He has entered a guilty plea to failing to comply with that term of his interim release and agrees that he ought to have taken every necessary step to scrutinize the home to make sure that he had no such access.

In stating that the offender poses a medium risk to reoffend, the pre-sentence report writer elaborated in this way: "The significant criminogenic need areas include; Education and Employment, Family/Marital, and Leisure/Recreation. Other factors that may have an impact on case management include; mental health concerns, problem solving/self-management skill deficits, poor social skills, interpersonally anxious, low self-esteem, and accommodation problems." I note that his risk assessment did not include a sex offender specific scale such as the Static-99R.

The pre-sentence report concludes with some optimism about the offender being a candidate for supervision and this is the fulcrum of the defence submission, that a sentence of less than two years should be applied so as to enable a probation order to follow. If rehabilitation is a high value sentencing objective in this case, then tailoring a sentence to enable probation to follow a jail sentence

would be appropriate. Within the past year the Ontario Court of Appeal considered that submission in R. v. Inksetter , 2018 ONCA 474 . That offender kept and shared a collection much larger than that of Mr. Winterburn. He too was a first offender but his pre-sentence evidence indicated substantial remorse and insight into his offending. In setting aside the two-year sentence followed by three years of probation, Associate Chief Justice Hoy held that such a sentence addressed rehabilitation but failed to make denunciation and deterrence the "paramount sentencing objectives".

Soon after it was released, that reasoning was approved of in this court. In R. v. Sovak , not yet reported, on June 14th, 2018, Judge Heinrichs stated: "While Inksetter 's collection of child pornography was more substantial, he also showed more remorse and insight into his behaviour after being charged. I find that an appropriate sentence for Scott Sovak should be a similar sentence.

While the Ontario Court of Appeal did not comment on this but simply imposed concurrent sentences, I do agree with the Crown's analysis that I am dealing with two separate and distinct offences and that in a first look they should be considered as consecutive sentences with the appropriate amount of time allocated to them." Of course my first task is to determine whether sentencing ought to be concurrent or consecutive.

The seized files indicate clearly that the offender was collecting child pornography by associating online with those of similar interests, who gratify themselves sexually watching children being abused. And then there were those images and video files that he was not using to gratify himself but to trade. So in exchange for his distributing some of those items, he accepted the distribution of similar material from other users. He explained this freely and voluntarily to the probation officer and his counsel urges me to consider his candor with the probation officer to be a mitigating factor.

That he was cooperative with the probation officer is not an issue but this investigation began with hard evidence that he was distributing child pornography when he shared six videos and three images with a Swiss police officer posing as a user. In my opinion, the distribution of images and videos in which the offender was no longer interested, some of which were in guideline level 5, is sufficiently distinct from mere possession such that sentences should be served consecutively. The defence does not agree, arguing that the offender was engaged in a continuing series of transactions to maintain his collection.

That is too simple a view of the offender's criminal decision making. For failure to comply with his recognizance, counsel agree that there should be a consecutive sentence. My initial assessment of the sentence for possession is in accord with the assessment of Judge Heinrichs in the Sovak case. Accordingly, the sentence for possession should be two and a one half years. Distribution is a more serious offence because it compounds the harm to the victims by involving yet another user and helps to maintain an outlaw gang of users who continue the victimization. That is no metaphor.

Consider what Chief Justice Fraser and Justice Watson wrote in R. v. Andrukonis , 2012 ABCA 148 : "We reject the proposition that because the possession of child pornography involves use of technology to view the sexual abuse of children elsewhere in the world, it is somehow much less culpable than abetting the sexual abuse of the same children in person. The reality is that the children captured for life in the child pornography have been abused somewhere.

Therefore, the fact that child pornography allows perpetrators to take in the sexual abuse of children virtually through the Internet does not change its essential character. The unvarnished truth is this: possession of child pornography is itself child sexual abuse. To fail to recognize that this is so improperly diminishes the gravity of this offence." those justices concluded. Therefore, those who use computers to unite and commit offences are not that different from those who do so with sewn on patches and weapons. My assessment is that the sentence for distribution should be three years.

I have given a great deal of thought to the recognizance breach. The offender had never before been subject to a bail order and there is no suggestion that he used the camera for any purpose, much less an illegal or prohibited purpose. In my opinion, the punishment should be a modest one and had he not been facing the prospect of a lengthy jail sentence, I would have assessed a fine. In the circumstances, a sentence of seven days is appropriate. These calculations yield a total sentence of five and a one half years plus a week.

While by American standards such a sentence would be ridiculously low and probably illegal, in Canada every sentence for a first offender like Mr. Winterburn should carry with it some optimism that the offender can be reformed and that he will no longer be a danger to the public. In his interview with the probation officer, Mr. Winterburn has indicated a willingness to undergo counselling. I do not know anything about Vanderwater Counselling Services in Winnipeg or Alan Vanderwater, but the probation officer "strongly recommends he continue to access counselling through Mr.

Vanderwater to address his mental health concerns, offending, and to develop communication skills". Indeed, the probation officer clearly stated that "the subject is a suitable candidate for community supervision" with the appropriate conditions. For this sentencing to include any aspect of probation, Criminal Code clause 731(1) (

b) would prevent me from imposing a term longer than two years from today. Mr. Winterburn has served 170 days in pre-trial detention upon his initial arrest and as a result of his being arrested for the recognizance breach. He is entitled to credit for one and one half times that amount which is 255 days or eight and a half months. Therefore, if it was my intention to include probation as a component, the maximum sentence would be one of eight and a half months plus two years for a total of 32 and a half months followed by probation.

Under the circumstances of this prosecution, incarceration for 32 and a half months, even if followed by probation, would be a disproportionate sentence. It would reflect rehabilitation in disproportion to the contribution of this offender to the sexual abuse of children. While it is my opinion that a sentence of five and a half years plus seven days is disproportionate to the antecedence of the offender, a last look does not persuade me to make so substantial a reduction to the total sentence.

Upon reflection, it is my opinion that the following sentences are proportionate to the gravity of each offence and the degree of responsibility of Robert Glenn Winterburn. Please stand. For distribution of child pornography, your sentence is imprisonment for 30 months. For possession of child pornography, your sentence is imprisonment for 20 months to be served consecutively. For failing to comply with a recognizance, your sentence is imprisonment for seven days to be served concurrently with the first sentence. The total term of imprisonment is therefore 50 months. Mr.

Winterburn is to be given credit for having served eight and one half months, leaving a sentence of 41 and a half months to be served commencing today. Having been convicted of child pornography offences, Robert Glenn Winterburn is ordered to comply with the Sex Offender Information Registration Act for life. In accordance with the provisions of the Child and Family Services Act, the court will take all necessary steps to provide information to facilitate Robert Glenn Winterburn being placed on the Manitoba Child Abuse Registry.

Upon being convicted of primary offences involving child pornography, Robert Glenn Winterburn is ordered to provide a DNA sample on demand by a qualified peace officer for entry in the national DNA databank. Pursuant to Criminal Code

Section 486.4, it is ordered that any information that could identify any victim shall not be published in any document or broadcast or transmitted in any way. Pursuant to Criminal Code

Section 109, it is ordered that Robert Glenn Winterburn be prohibited from having a series of weapons and ammunition for a period of 10 years. I have considered the provisions of Criminal Code

Section 161 and it is ordered that Robert Glenn Winterburn will be prohibited 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 day care centre, school ground, 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 communication by any means with a person who is under the age of 16 years unless he has done so under the supervision of a parole officer, a person approved of by a court having jurisdiction to protect children, or the guardian of such a person; (

d) using the Internet or other digital network unless the offender does so under the supervision of a prison authority, parole officer, or another person approved of by a court having jurisdiction to protect children, but this clause is subject to one exception, that he may use a telephone provided that he uses it only to communicate by voice, either using what is customarily known as a dialed number or by answering a voice telephone call. I have no expert opinion evidence as to the effect that these prohibitions will have upon this offender or the term within which the concerns prompted by Criminal Code

Section 161 can be addressed. Under these circumstances, child protection is the only objective that I can address and therefore the prohibitions will be for life. These prohibitions will commence on the date on which the offender is released from imprisonment, including release on parole, mandatory supervision or statutory release. They will remain in effect unless varied by the court upon cause being shown that variation is desirable because of changed circumstances. The prosecution has made application on behalf of the victims for an order of restitution. In some jurisdictions an order would be mandatory.

In Canada the decision whether to order restitution to a crime victim is discretionary and the means of the offender, as well as the nature of the offender's sentence, are always significant factors to be considered in the exercise of that discretion. The application did not come at the last minute and I was aware of it as I considered the background of the offender and the length of sentence to be imposed.

In my opinion, this is not a case of an offender with any real prospect upon release from imprisonment of having an income that could support a meaningful contribution to restitution, whether by way of a payment to a trust fund for victims or a community based advocacy group for victims. Accordingly, without suggesting that there is any jurisdictional impediment, I respectfully decline to make such an order. Finally, all of the files and related computer hardware and peripherals seized by police are ordered to be forfeited. That is all. _____