R. v. Johnston, 2011 NLCA 56

Date: 20110823 Docket: 10/95 Citation: R. v. Johnston , 2011 NLCA 56 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : HENRY EARL JOHNSTON APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Green, C.J.N.L., Rowe and White, JJ.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division (General), 200905T0215 Appeal Heard: December 15, 2010 Judgment Rendered: August 23, 2011 Reasons for Judgment by White, J.A. Concurred in by Green, C.J.N.L. and Rowe, J.A. Counsel for the Appellant: Gerald R.

Ralph Counsel for the Respondent: Stephen Dawson White, J.A.: [ 1 ] The Appellant pleaded guilty to possession of child pornography contrary to s. 163.1(4) of the Criminal Code . The sentencing judge imposed a sentence of 15 months’ incarceration, followed by 3 years’ probation and an order under s. 161 of the Code prohibiting

certain activities for ten years. In addition, an order was made for sex offender registration, samples of bodily substances, forfeiture of computer equipment and pornographic materials, and a victim fine surcharge. [ 2 ] The Appellant seeks leave to appeal and if granted, appeals the period of incarceration, the length of the period of the probation order, and the s. 161 order. FACTS [ 3 ] This matter arises from a national investigation of internet protocol addresses through which child pornography images were shared across Canada.

This investigation resulted in the Appellant’s internet protocol address being identified as a candidate for suspected child pornography files over one hundred times between October 9, 2008 and March 20, 2009. Following the execution of the search warrant the Appellant was found to be in possession of twenty videos categorized as child pornography.

The Appellant advised police that his practice was to download the videos, view them, and then delete them. [ 4 ] A sample of the videos presented to the sentencing judge depicted pre-teen females undergoing sexual assaults by adult males and numerous other aspects of child pornography. None of the children depicted in the videos were from the general community area of Gander or the Province of Newfoundland and Labrador. [ 5 ] There was no evidence that the Appellant produced or caused to be produced any of the images that were obtained from his computer.

The images were downloaded free from the internet and did not involve any commercial activity associated with the Appellant’s obtaining possession of the videos. Apart from the violence intrinsic to any sexual assault, the videos did not depict physical violence against the children. [ 6 ] The Appellant was seventy-two years old at the time of sentencing. He had retired in 1992 after a lifelong career in the RCMP. At the time of his retirement he was a staff sergeant and the head of the Gander detachment of the RCMP.

He has been married to his present wife since 1973. [ 7 ] The sentencing judge noted that: - the Appellant had no substance abuse problems. - the probation officer stated that all the people interviewed were shocked to hear about this offence and indicated that the Appellant had lived an exemplary life. - the Appellant’s wife stated that the marriage was very positive and that there was no history of violence. She described the Appellant as a good husband and father.

He had a pleasant personality. - the Appellant was very co-operative and expressed remorse for his behaviour. - the Appellant recently began counselling sessions with a psychologist in an attempt to deal with his propensity for viewing child pornography. At the time of the sentencing hearing, he had had four counselling sessions and had advised his probation officer that he is committed to continuing with counselling. [ 8 ] The Appellant elected to be tried by Supreme Court judge alone and waived a preliminary inquiry.

He entered a guilty plea on the second count of the indictment, i.e., possession of child pornography. The first count (a charge of distributing child pornography contrary to s. 163.1(3) of the Code ) was withdrawn. ISSUES [ 9 ] The issues, as set out in the Notice of Appeal, are: 1. Whether the Sentencing Judge failed to appropriately consider the mitigating factors in passing sentence, or alternately, under- emphasized the mitigating factors in passing sentence; 2. Whether the Sentencing Judge erred in considering the nature of the crime itself an aggravating factor; 3.

Whether the Sentencing Judge erred in considering that the [Appellant]’s former employment as a Staff Sergeant of the RCMP and head of the Gander Detachment was an aggravating factor; 4. Whether the Sentencing Judge erred in considering that the nature and content of the pornographic material was an aggravating factor, or alternatively, over-emphasized the nature and content of the pornographic material as an aggravating factor; 5.

Whether the Sentencing Judge erred in considering the quantity of pornographic material as an aggravating factor, or in the alternative, over-emphasized the quantity of the pornographic material as an aggravating factor; 6. Whether based upon the Sentencing Judge’s foregoing errors in principle, under-emphasis on mitigating factors and over- emphasis on aggravating factors, the Sentencing Judge has rendered a sentence which is demonstrably unfit, clearly unreasonable and outside the range of sentencing for this type of offence.

LEAVE TO APPEAL [ 10 ] Leave to appeal is required when an appeal relates only to sentence. The test, in such circumstances, is whether the appeal is frivolous in the sense of having no arguable basis or sufficient merit: see R. v. Jesso , 2008 NLCA 30 , 276 Nfld. & P.E.I.R. 147 and R. v. Perrier , 2009 NLCA 1 , 282 Nfld. & P.E.I.R 171.

[11] I would grant leave to appeal, as a significant issue is raised as to whether the sentencing judge appropriately consideredmitigating and aggravating factors in determining sentence. SENTENCING JUDGE’S DECISION [12] The sentencing judge stated at para. 15: The case law involving possession of child pornography states that the primary principles in sentencing for such offences aredenunciation and general deterrence. [13] The sentencing judge then went on to set out what he considered to be the mitigating and aggravating factors: [17] The mitigating factors include the following: (

a) the advanced age of the Offender and his present health problems, (

b) the good character of the Offender, (

c) the fact that the Offender has shown insight into his problem and has undergone counseling sessions with a psychologist, (

d) the Offender accepted full responsibility and pleaded guilty to the charge, (

e) the Offender has been publicly humiliated and is shunned by most members of this community, (

f) the Offender downloaded the videos free of charge from the internet and therefore he did [not] contribute to the sexual victimizationof children depicted in the videos for profit, and (

g) he has no criminal record. [18] The aggravating factors include the following: (

a) the nature of the crime itself which involves the victimization of children and the utter destruction of their lives, (

b) the fact the Offender was a Staff-Sergeant in the RCMP and was head of the Gander Detachment, (

c) the nature and content of the pornographic material, including the age of the children and the abhorrent sexual activity portrayed inthe sample videos, and (

d) the quantity of pornographic material, which consists of twenty videos. [14] In imposing a period of 15 months’ incarceration the sentencing judge referred to a recent decision of this Court: [19] Our Court of Appeal recently considered the appropriate sentence for possession of child pornography in R. v. W.E., 2010 NLCA4. The Court held that sentences for possession of child pornography generally range from twelve to twenty-four months.

STANDARD OF REVIEW [15] The standard of appellate review of sentencing decisions, and the justification for showing a degree of deference to the originalsentencing judge’s determination was stated by Chief Justice Lamer in R. v.

M.(C.A.), (SCC), [1996] 1 S.C.R. 500 asfollows: [90] … absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appealshould only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit… [92] Appellate courts, of course, serve an important function in reviewing and minimizing the disparity of sentences imposed bysentencing judges for similar offenders and similar offences committed throughout Canada… But in exercising this role, courts of appealmust still exercise a margin of deference before intervening in the specialized discretion that Parliament has explicitly vested insentencing judges.

It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. See Mellstrom,Morrissette and Baldhead. Sentencing is an inherently individualized process, and the search for a single appropriate sentence for asimilar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

As well, sentences for a particularoffence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate"mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crimeoccurred.

For these reasons, consistent with the general standard of review we articulated in Shropshire, I believe that a court of appealshould only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and markeddeparture from the sentences customarily imposed for similar offenders committing similar crimes. [16] This approach is well-summarized by Drapeau, C.J. in the decision of the New Brunswick Court of Appeal in R. v.

Steeves,2010 NBCA 57, 360 N.B.R. (2d) 88: [25]…. a court of appeal is not at liberty to substitute its view of fitness for that of the sentencing judge unless the sentence imposed is aproduct of either an error of law or an error in principle, or unless it is clearly unreasonable … If the sentence at issue is the result ofreversible error, the court of appeal bears the burden of prescribing the punishment that it considers fit in the circumstances. ANALYSIS

[17] While the Appellant sets out six issues, the essence of the appeal is that the sentencing judge erred in principle in relation to theaggravating factors he considered. I will begin by dealing with these aggravating factors. - the nature of the offence [18] It is self-evident that an aggravating factor is one that induces a court to impose a sentence that is longer than it wouldotherwise impose for an offence of the type before it.

In order for a factor to be aggravating in a particular case, there must be anothercase in which it is not present. [19] Since the nature of the offence itself is patently the same in every case, the nature, in and of itself, cannot be said to beaggravating. If it were, the nature of the offence would be aggravating in every case. It is not.

Instead, the nature of the offence isreflected in minimum and maximum sentences set by Parliament, and ranges of sentences outlined in jurisprudence. [20] The sentencing judge, in finding as an aggravating factor “the nature of the crime itself which involves the victimization ofchildren and the utter destruction of their lives”, made an error in principle. - former employment [21] In general, a good work history indicates a prior good character—a mitigating factor.

No cases were cited on appeal whereprior work history as a police officer was considered an aggravating factor. [22] There have been cases in which it was deemed an aggravating factor that an accused who was convicted of possession of childpornography was currently employed as a teacher: See R. v. Gardiner, 2009 BCPC 358.

The idea underlying such cases appears to bethat the accused was in a position of trust. [23] In principle, the nature of an offender’s employment could be regarded as an aggravating factor in sentencing where theexistence of that employment background makes the commission of the crime in question all the more shocking, disgusting orhorrendous. This is particularly so with respect to persons involved in professions or jobs where the public expects the incumbent to beparticularly vigilant in enforcing the law, not breaking it. The job of police officer is one such category of employment.

Such a person isa symbol of the integrity of the law and, as such, bears a higher responsibility for rectitude. [24] The symbolism of the integrity of the law can continue for such a person even after he or she has left the job throughretirement. To a degree, a person is defined by his job or former job. A retired policeman who is known in the community may continueto wear the aura of respect and rectitude with which he or she was invested while working.

As such, the fact that a supposedly lawabiding individual who should know better commits a crime could, in principle, be regarded as an aggravating factor on sentencing eventhough he is retired at the time of the offence. [25] In the current case, however, the appellant had been retired from his job as RCMP staff sergeant for 17 years at the time of hisconviction for the offence.

Had he been currently employed as a police officer, one might not quarrel with the sentencing judge’sapplying that fact as an aggravating factor, provided, of course, he balanced that fact against the other positive aspects of his otherwise30 years of exemplary service in the RCMP. [26] Even the fact that he was retired would not, in principle, insulate him from having his former employment regarded asaggravating, for example, if he had retired the previous year.

However, where, as here, the retirement occurred over 17 years ago, thetemporal connection is so slight that it cannot reasonably be considered appropriate to regard it as a factor that could have anyappreciable effect on the determination of sentence. In this context, therefore, the sentencing judge erred in applying it as an aggravatingfactor.

This is especially so where the judge failed to give any apparent consideration to other aspects of the appellant’s employment as apolice officer which by all accounts was exemplary. [27] In proceeding as he did, the sentencing judge effectively transformed what would ordinarily be considered a mitigating factor—some 30 years of exemplary service in the RCMP which concluded some 17 years earlier—into an aggravating factor.

He erred in sodoing. - nature and quantity of the pornographic material [28] The sentencing judge properly regarded the age of the children, the sexual activity portrayed and the quantity of the material asaggravating factors. In finding that the video depicted “pre-teen females undergoing sexual assaults”, and in describing these assaults,the number of videos, and the extent of access of them – over one hundred times over a six month period – he addressed his mind tothese factors as aggravating. There is no error of principle here. - effect of the errors [29] In R. v.

W.E., 2010 NLCA 4, 293 Nfld. & P.E.I.R. 52 Rowe J.A. stated the approach of this Court where there is an error inprinciple: [30] I would note the following passage from R. v. Provost, 2006 NLCA 30 at para. 12: In R. v.

M.(C.A.), (SCC), [1996] 1 S.C.R. 500 Lamer, C.J.C. stated at para. 90: Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court ofappeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. … An error in principle justifies appellate intervention and substitution of an appropriate penalty. As Laskin, J.A. stated in R. v. Rezaie(1996), (ON CA), 31 O.R. (3d) 713 (C.A.) at 719: “… [i]f the sentencing judge commits an error in principle, the

sentence imposed is no longer entitled to deference and an appellate court may impose the sentence it thinks fit”. [30] As noted, the sentencing judge made an error in principle relative to his consideration of two aggravating factors. It cannot besaid that the errors were not material and could not have affected the resulting sentence. Accordingly, the sentence is not entitled to anydeference and may be varied pursuant to s. 687(1)(

a) of the Code in accordance with this Court’s perception of what is a fit sentence. A FIT SENTENCE [31] On appeal, the Appellant argued that: (

a) The period of incarceration of the Appellant should be reduced to 6 months plus the two days pre-sentence custody served; (

b) The period of Probation of the Appellant should be reduced to 12 months from the three years imposed by the Sentencing Judgeon the same terms and conditions as set out by the Sentencing Judge; (

c) The

Section 161 Order should be struck out in its entirety, or in the alternative, it should be varied such that the Appellant isentitled to attend a public park, public swimming area, or daycare centre, school yard, playground or community centre while personsunder the age of 16 years are present or can reasonably be expected to be present as long as he is in the presence of another adult; and (

d) The Appellant be permitted to use a computer system within the meaning of Subsection 342.1(2) of the Code for the purposes ofcommunicating with a person under the age of 16 years provided he is in the presence of another adult. [32] The Crown submitted that the decision of the trial judge should be upheld in its entirety, but counsel did acknowledge that thes. 161 order might be less restrictive. [33] In determining a fit sentence, the court must consider s. 718.2(

b) of the Code, which states: [A] sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [34] Immediately before announcing the length of sentence to be imposed in this case, the sentencing judge referred to this Court’srecent decision in R. v. W.E. as having considered the “appropriate sentence for possession of child pornography” and stated that theCourt “held that sentences for possession of child pornography generally range from twelve to twenty-four months”.

On appeal, Crowncounsel stressed that the 15 month sentence imposed by the sentencing judge fell clearly “within the lower end of that general range”. By implication, Crown counsel’s submission was that a fit sentence should be grounded within the range of sentence identified by theCourt in R. v. W.E. – at 15 months or at the very least at the bottom end of that range, namely 12 months. [35] By contrast, appellant’s counsel submitted that, properly interpreted, R. v. W.E. did not fix or establish (in a prescriptive way) a12-24 month range of sentence for possession of child pornography.

Thus, this Court could, and should, impose a sentence outside ofthat range in the circumstances of this case. He submitted a sentence in the range of 4-6 months would be appropriate. [36] In considering the legal effect of the comments on range of sentence in R. v. W.E., it is important to appreciate that, as SteeleJ.A. pointed out in R. v.

O’Flaherty (1997), (NL CA), 155 Nfld. & P.E.I.R. 150 (NFCA) at para 20, “The phrase‘range of sentence’ is susceptible to different meanings.” At its simplest, it is merely a descriptive term used to identify, in the course ofthe exercise of applying the parity principle, the range of sentences previously imposed in other similar cases, as a check to ensure thatthe sentence imposed in the case under consideration is not unduly harsh or lenient when judged against what has been done in the past.Usage of the phrase “range of sentence” in this context merely “reflects individual cases, but does not govern them” (Clayton Ruby,Sentencing, 7th ed. (Markham, ON: LexisNexis, 2008) at p. 753). [37] The phrase “range of sentence” may also be used in a prescriptive sense.

This usage is employed in exercise of an appellatecourt’s functions of minimizing disparity of sentence by “ ‘fixing a range’ … which reflects the generally appropriate penalty for acategory of crime” (per Cameron J.A. in R. v. R.W.B., 2000 NFCA 13, 185 Nfld. & P.E.I.R. 212 at para. 9). Such ranges are thenintended to constitute “guidelines for lower courts” for application in future cases (per Bastarache J. in R. v.

Stone, (SCC), [1999] 2 S.C.R. 290 at para. 244). [38] Even where “range of sentence” is used in a prescriptive sense, however, it does not mean that a sentencing court may neverdepart from that range. As noted by Lebel J. in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at para 44: … it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judgecan order a sentence outside that range so long as it is in accordance with the principles and objectives of sentencing.

Thus, a sentencefalling outside the regular range of appropriate sentences is not necessarily unfit. [39] The situations under which such a deviation can occur have been variously described by this Court as “special circumstances”(R. v. Vokey, 2000 NFCA 14, 186 Nfld. & P.E.I.R. 1, per Cameron J.A. at para. 19) or “unusual” (R. v. R.G., 2003 NLCA 73, 232 Nfld.& P.E.I.R. 273, per Cameron J.A. at para. 19).

Absent such a determination, a sentence imposed outside the prescribed range exposes itto a conclusion that the sentence amounts to a “substantial and marked departure from the sentences customarily imposed for similaroffenders committing similar crimes” (R. v. M.(C.A.) at para. 92). [40] Thus, while the range of sentence referred to in an appellate judgment, whether used in the descriptive or prescriptive sense,may be departed from in appropriate subsequent cases, there is a difference as to when the deviation can occur.

Where the phrase is usedas a descriptive term, the usage is based on a distillation of previous precedents cited to or analyzed by the court – the raw data, so tospeak – to determine what has been done in the past. While a prescriptive sentencing range will tend to be fixed until it is varied by theappellate court, a descriptive range (even when identified by the appellate court) will evolve as sentencing decisions accumulate,especially should new trends manifest themselves. The 12-24 month range used in R. v. W.E. should be seen in this latter light.

[ 41 ] Accordingly, usage of a range of sentence in a prescriptive sense means that the range is generally controlling, absent special circumstances that will make a sentence outside the range nevertheless conform to proper sentencing principles and objectives. [ 42 ] As well, use of ranges in a prescriptive sense can raise problems in defining parameters. See R. v. Murphy , 2001 NLCA 16 , 304 Nfld. & P.E.I.R. 266. Caution is therefore called for before taking the step of prescribing a definitive range for future cases. [ 43 ] The sentencing judge in this case treated the reference to range of sentence in R. v.

W.E. as prescriptive in nature. Crown counsel on this appeal did likewise. In my view, such a conclusion is not justified. [ 44 ] A careful analysis of R. v. W.E. suggests that the range of sentences to which it refers was intended to be flexible and leaves particular room for sentences below the described range.

The discussion of sentences in previous cases was undertaken in the context of the sentencing judge’s conclusion in that case that the imposition of a 45-day minimum sentence for possession of child pornography had resulted in a rule that the offence “should normally result in at least a period of incarceration of twelve months being imposed”.

This was regarded by Rowe J.A. as a “clear error” (para. 20). [ 45 ] Rowe J.A. summarized the length of sentences described in the cases relied on by the sentencing judge and, after noting that about a third of the sentences were less than 12 months, observed that “most” were in the 12 to 24 month range (see para. 16). Later in his judgment, having already decided that the judge had made errors justifying variation of the sentence, he turned to consideration of what would be a fit sentence.

Although he alluded to the use of sentencing ranges as promoting the parity principle, he then stated (at para. 35): “ As noted above , sentences for possession of child pornography generally range from 12 to 24 months” [emphasis added]. It was not necessary, when considering what sentence it would be fit to impose, to state the range in prescriptive terms.

He was simply relying on his previous descriptive analysis of the sentences in existing case law that had been at play in that case to determine what would be a fit sentence in accordance with the application of the parity principle. [ 46 ] In these circumstances, it cannot be said that this Court was identifying, in prescriptive terms, what the general range of sentence for possession of child pornography should be for future cases.

That being so, it is open to this Court, relying on the extensive array of sentencing precedents that were cited in this case and analyzed in argument, to fashion a fit sentence without being bound by the “range” referred to in R. v. W.E. The case remains relevant, however, as a sentencing precedent in the sense of being an indicator of a sentencing level for a case with the factual background that it involved. [ 47 ] It is necessary to consider some of the other key cases cited in argument to ensure that the parity principle is respected. [ 48 ] In R. v. W.E. the facts were egregious.

The offender had a vast collection of images and videos portraying violent conduct and extremely young children, often infants. He paid for videos, feeding the international market in child abuse. He failed to accept responsibility for his actions, and felt victimized by the police. Finally and most significantly, in my view, as a result of his actions, the offender’s young daughter was exposed to these videos.

On appeal a fit sentence of 20 months incarceration was imposed. [ 49 ] A review of the extensive jurisprudence cited on this appeal indicates that sentencing judges frequently impose sentences shorter than 12 months. The Appellant provided a

summary of forty-eight sentencing decisions. Included are seven conditional sentences and two sentences that include other offences. Excluding these, the results indicate a significantly lower range of sentences. Of the thirty- nine sentences, twenty are too short to fall within the range of 12–24 months; twelve are at the very lowest extreme of that range, and none exceed it. Twenty-eight of the thirty-nine custodial sentences fall within the narrow range of 6–12 months. I turn now to a review of a few sentencing decisions which I view as relevant. [ 50 ] In R. v.

Schneider , 2008 ONCJ 250 , the accused pleaded guilty to possession of 689 videos and 85 images of child pornography. Aggravating factors included the size of the collection; its brutality, including bestiality; a prior conviction for making child pornography; and the offender’s lack of insight into his problem. On the other hand, the material had been collected over a short period. The accused cooperated with police and complied with his bail conditions.

He had good reference letters and a positive employment history; he financially supported his wife; he was amenable to counselling; he suffered from depression and stress, both in the past and at the time of sentencing; and he had no history of violence. Balancing these factors and taking account of the accused’s three days in custody, Wong, J. imposed a sentence of six months’ imprisonment followed by a three-year probation order. [ 51 ] In R. v. C.W.F. , 2009 BCPC 85 , the accused pleaded guilty to possession of four videos.

The small size of his collection was offset by the depravity of two videos, which were at the “worst end of the spectrum” (para. 4). The offender was a pedophile and had a prior conviction for sexually assaulting his 5–10 year old female niece on numerous occasions over several years. Expert evidence suggested he had a high risk for future sexual violence. The accused was seeking support through a church group. The sentencing judge imposed a nine-month sentence and a three-year probation order. [ 52 ] The lowest sentence in the Appellant’s materials was R. v.

Aylesworth , 2008 ONCJ 68 , in which the accused pleaded guilty to possession of slightly over a thousand images of boys from the age of 7–10 in suggestive positions or touching each other. The accused was an accomplished violinist who played with the Canadian Opera Company and the National Ballet of Canada. He had been attracted to young boys since adolescence. He was frightened by his desires, and used child pornography as an outlet. His job involved contact with children in groups, but not alone; his co-workers were aware of his interests. He suffered from depression and alcohol abuse problems.

He had been in counselling for these problems and for his sexual preferences for a long time. A medical analysis found, oddly, that he was not a pedophile, but had “some underlying pedophilic interest” (para. 22). The accused’s insight into his problems, progress in therapy, and remorse were exemplary. Aggravating factors included the “significant” size of the collection, the purchase and long- term use of child pornography, and, in Bovard J.’s opinion, the nature of the offence itself.

As the offence pre-dated the minimum sentence requirement, Bovard J. imposed a suspended sentence and a three-year probation order. [ 53 ] The fifteen-month sentence can also be compared to the similar facts in R. v. Dragani , 2007 BCPC 452 , in which a widely- respected retired police officer pleaded guilty to possession of 20 videos and about 2,000 images of child pornography. The nature of the collection, which was “relatively hard-core”, was the only aggravating factor. The accused had been married several times and had children.

He accepted counselling, was remorseful, had no criminal record, and was not a pedophile. The offence was considered an isolated act. Gulbranson Prov. Ct. J. imposed a conditional sentence of twelve months followed by twelve months’ probation.

[54] These decisions illustrate that the circumstances of the offence and the offender may warrant a sentence lower than a range of12-24 months.

While a range of sentences is a useful tool or guideline to help determine a sentence that is “proportionate to the gravityof the offence and the degree of the offender’s responsibility”, to be applied properly account must always be taken of the relativegravity of the offence and the relative degree of the offender’s responsibility having regard to comparable cases. [55] In addition to these decisions, I also note two recent decisions of Newfoundland and Labrador courts. [56] In R. v.

Butler, 2011 NLTD 5, the accused was convicted of possession of child pornography, making child pornography and ofa firearms offence. He was found in possession of over 11,000 child abuse images, including images of bondage. He had manufacturedchild abuse images by imposing the face of an eleven-year-old girl whom he knew over the face of other victims. The photos includedcaptions indicating his intention to rape that child, with whom he had a “sexual obsession” (para. 28). He showed no insight into hisproblem, did not seek out treatment, and showed no shame.

The only mitigating factors were a guilty plea and the absence of a criminalrecord. There was no evidence that the accused was not a pedophile; on the contrary, Goulding J. said at para. 32, “I feel the likelihoodof re-offending must be addressed by the Parole Board before his release, and by the Probation Division after his release”. A sentence of18 months incarceration was imposed. In my view, this decision is based on a factual situation much closer to R. v. W.E. (a sentence of20 months) than to the sentence on appeal. [57] In R. v.

Robin Barrett, an unreported decision of Power P.C.J. delivered September 10, 2010 and referred to in Butler, theaccused was convicted of one count of possessing child pornography and one count of distributing child pornography. The accused wassympathetic—a former clergyman who was remorseful, insightful, and sought treatment—but his offence was far more serious. Hetraded pornography online. His collection included 3,000 videos and 30,000 images, among them images and videos of bestiality,bondage, torture, and urination and defecation on children by adults.

A sentence of 30 months incarceration was imposed. [58] Both Butler and Barrett were joint submission cases with facts dissimilar to the case on appeal. As well, in neither case did thesentencing judge reach a considered decision on what a fit sentence would be. It is noted that sentences resulting from an accepted jointsubmission are considered to have little or no precedential value. See R. v. Johnson, 2010 ABQB 546 and R. v.

Benlolo (2006), (ON CA), 81 O.R. (3d) 440 (C.A.). [59] Neither Butler nor Barrett can stand for any more than what was decided: that the joint submission did not “bring theadministration of justice into disrepute” and was not “contrary to the public interest”. See R. v. Druken, 2006 NLCA 67, 261 Nfld. &P.E.I.R. 271. [60] In the case on appeal, there is a lengthy list of mitigating factors, some of which are usually very significant in determining a fitsentence. In particular, the Appellant has no criminal record, has shown insight, has accepted full responsibility and pleaded guilty.

Heis of advanced age and has health problems. [61] Considering the sentencing precedents, the existence of a minimum sentence in the Code, the aggravating and mitigatingfactors and the general principles of sentencing, I would impose a sentence of 10 months’ incarceration. This period appropriatelyexpresses denunciation of the crime and should deter others from possessing child pornography. [62] There remains the issue of the probation and

section 161 orders. [63] The sentencing judge imposed a period of probation of 3 years. While this is the maximum, I have formed a similar view. Theorder includes continuation of counselling by a psychologist, which should assist the Appellant in dealing with his interest in childpornography. [64] The sentencing judge made an order under s. 161 of the Code prohibiting the Appellant (for a period of 10 years) from: (

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably beexpected to be present or a daycare center, school ground, playground or community center; (

b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being avolunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years; and (

c) using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under theage of 16 years. [65] There was no evidence before the sentencing judge indicating that any of the risks contemplated exist with respect to thisAppellant. The offence consisted of private viewing of child pornography – nothing else. There is no evidence that the Appellant is apedophile. The pre-sentence report states that personality testing by a psychologist “reveals no obvious psychopathologies”.

As theorder is not necessary for the protection of society, I would not impose it. [66] Other aspects of the sentencing judge’s decision were not appealed. These are a Sex Offender Information Registration Actorder, a DNA order, a forfeiture order, and a Victim Fine Surcharge. The sentence, varied by this decision, should continue to containthose orders on the same terms imposed by the sentencing judge as outlined in para. 20 of his sentencing decision. CONCLUSION [67] Leave to appeal the sentence is granted.

The appeal is allowed and the sentence is varied by substituting a period ofincarceration of 10 months followed by 3 years probation and deleting the s. 161 order. Other ancillary sentence matters as described inpara. 66 above remain.

_________________________ C.W. White, J.A. I concur: _______________________ J.D. Green, C.J.N.L I concur: ________________________ M. Rowe, J.A.