R. v. Walther, 2013 ONCJ 107

COURT FILE NO.: 2811 998 DATE: March 5, 2013 Citation: R. v. Walther , 2013 ONCJ 107 ONTARIO COURT OF JUSTICE (Central East Region) B E T W E E N: ) ) Her Majesty The Queen ) ) ) D. Slessor, Counsel for the Crown ) ) ) - and - ) ) ) Kevin Walther ) ) ) F. Fedorsen, Counsel for Mr. Walther J. Hawkins, Counsel for the Mr. Walther ) ) ) ) ) HEARD: January 31, 2013 REASONS FOR SENTENCE BELLEFONTAINE, J: [ 1 ] These are my reasons for sentence in the matter of Mr. Kevin Walther who has plead guilty to one count of luring a child by computer in April and May of 2012, contrary to s.172.1(1) of the Criminal Code of Canada . [ 2 ] In

summary, the admitted facts show Mr. Walther to have communicated with a police officer who he believed was a 14 year old girl on a number of occasions over a two-week period of time. During the course of the conversations, Mr. Walther asked the 14 year old girl if she would like to touch his penis, he exposed himself to her, masturbated to ejaculation, and arranged to meet with her. He attended an arranged meeting place but drove off when the girl was not immediately present. Mr. Walther states he realized that what he was doing was wrong and abandoned the intended meeting at the last moment.

The Crown has not sought a hearing to disprove that position. A search of Mr. Walther’s home on arrest found him to be in possession of five images of a child between 12 and 16 years of age posing naked in a fashion that would be child pornography. [ 3 ] Mr. Walther is 40 years of age and grew up in a stable and supportive family environment. He has no criminal record. Following high school he attended college for a Gas Fitters Certification Program and has been steadily employed or self employed. He has been

married for 16 years and has children aged five and eight. Mr. Walther has suffered from low self-esteem and became emotionally andintimately estranged from his wife who is a successful career person. During a period of depression, he became involved in using internetchat groups primarily with adult females, but with at least one female child besides the 14 year old girl the officer pretended to be. Hebelieves the pornography he was in possession of to be photos provided to him by another young female that he had chatted with. Thereis no history of substance abuse or violence in Mr.

Walthers’ past. [4] I have extensive reports from Dr. Gojer, an experienced Forensic Psychiatrist. While confirming the pedophilic nature of Mr.Walthers’ offence, he views Mr. Walther to be at low risk of re-offending given his emotional, and sexual reconnecting with his wife,and his ability to have a satisfying relationship with her. Mr. Walthers’ wife and extended family are supportive of him. Mr. Walther hasbeen on house arrest for eleven months since he was charged with the offence. For the first nine months, it was a complete house arrestorder which resulted in him giving up his employment.

For the last two months, the house arrest terms have permitted him to attend foremployment. Mr. Walther has been actively involved in group therapy and relapse prevention counseling over the course of the housearrest. [5] At the time of the offence, the available penalty, given the Crown’s indictable election, is a period of imprisonment of ten yearswith no minimum penalty.

I note this is an increase from an earlier five year maximum sentence that was in place at the time of some ofthe cases relied upon by the defence. [6] The Crown submits a sentence of two years less one day is required given the steps taken by Mr. Walther to meet a young girl andthe possession of child pornography. The defence submit that given the mitigating factors and the lengthy house arrest, a sentence ofunder one year would be appropriate. [7] In determining an appropriate sentence Mr.

Walther, I consider our general sentencing principles which require me to appropriatelydenounce the unlawful conduct and deter you and others from committing crimes in the future. As well, the sentence should be similar tosentences imposed on similar offenders for similar offences committed in similar circumstances. To that end, we look for guidance fromour Court of Appeal. The offence of Child Luring is a relatively new one and as a sentencing pattern developed for it, sentences ofbetween one and two years in prison were being most commonly imposed for first offenders like yourself.

Some suggested that a rangeof one to two years imprisonment was established for the offence. Our Court of Appeal subsequently considered the range of sentencefor internet luring in Regina v. Woodward 2011 ONCA 610 , 2011 O.N.C.A. 610. The Court references Regina v. Folino andRegina v. El-Jamel and a number of earlier decisions. The Court questioned whether a range of one to two years in jail was settled inprevious decisions and stated that such a range would need to be revised upwards given Parliament’s doubling of the maximumpunishment from five years to ten years.

The Court went on to state that if evidence was lead to the pervasiveness of the problem, arange of sentence of three to five years for a first offender might well be warranted. The Court criticized cases that had granted aconditional sentence as not referring to or being in accord with the principles of Regina v.

D.D. (2002) (ON CA),163 C.C.C. (3d) 471 in which the Court of Appeal emphasized the need to protect vulnerable children from sexual predators by givingprecedence to general deterrence and denunciation over other objectives of sentencing which include the need to consider therehabilitation of individual offenders. [8] More recently in Regina v. Dragos 2012 ONCA 538 , [2012] O.J.

No. 3790 (OCA) the Court of Appeal reaffirmed that tothe extent a one to two year range of sentence was established, the range needed to be revised upwards given the doubling of themaximum sentence from five to ten years. [9] Further, although not binding on me for Mr. Walthers’ sentencing, the Crown notes that Parliament has recently enacted aminimum sentence of one year for this offence and urges that it be used as a measure of the level of incarceration required fordenunciatory purposes. Mr. Walther, given our Court of Appeal’s s reaffirmation of Regina v. Woodward in Regina v.

Dragos I feelobligated to raise the sentence in this matter above that of Regina v. Parr – an earlier decision of mine that Mr. Fedorsen has reliedupon. At the time of Regina v. Parr, Regina v. Woodward could be interpreted as a tentative step towards an increase in the upper endof the sentencing range in the context of the internet luring being used to commit a horrific sexual assault on a 12 year old child. As aresult of Regina v.

Dragos however, an increase in the range of sentence, both at the upper and lower end, has to be acknowledged. [10] These decisions, and Parliament’s more recent imposing of a one year minimum sentence, reflects society’s deep-rooted need toprotect vulnerable children and denounce this conduct. As McMurtry J in Regina v. Folino stated: “…The offence of child luring must be dealt with seriously by the Courts. The social policy underlying the enactment of this offence is clear. Many Canadian families have home computers with internetaccess. Children are frequent users of the internet.

Children, as vulnerable members of our society, must be safe-guarded againstpredators who abuse the internet to lure children into situations where they can be sexually exploited and abused. In most circumstancesinvolving the offence of child luring, the sentencing goals of denunciation and deterrence will require a sentence of institutionalincarceration.”

[11] There are a number of mitigating factors in this matter which merit consideration. Significantly, there has been no real victim ofthe charge that Mr. Walther has plead to who has been physically or emotionally harmed by the offence. Mr. Walther has plead guilty atan early stage of the process, and the matter has been delayed only by virtue of the time required for his counseling and psychiatricreports to be prepared. He has been involved in intensive counseling and there are positive reports with respect to its effects on him.

Hisearly acceptance of responsibility is consistent with the immediate co-operation he gave to the police which supports his immediaterecognition of the wrongfulness of this crime, which distinguishes it from many cases where the offender does not recognize thecriminality of his conduct. Mr. Walther comes from a stable and supportive family upbringing, and has been a long-contributing memberto the community with no previous record of criminal conduct.

The offence can be seen as being out of character for him and occurredduring an emotionally fragile period of time where he was suffering from depression as a result of the failing relationship with hisspouse. His family remains supportive and notwithstanding the clearly pedophilic nature of the conduct, the best assessment of thesituation is that he is at very low risk of re-offending.

I accept that there is no need for incarceration for specific deterrence purposesgiven the extreme effects of the charge on him by virtue of the loss of employment income and the extreme embarrassment that he hassuffered in the community by virtue of the charge. Jail will be counter-productive to any rehabilitative component of sentencing. [12] Of great significance as a mitigating factor, which I am obligated to consider, is the house –arrest bail. See R. v. Downes (2006), (ON CA), 79 O.R. (3d) 321 and R. v. Dragos, 294 O.A.C.371.

For nine of the eleven months where evenemployment was prohibited, it was more restrictive than most any conditional sentence. Even the last two months, where he has beenemployed, has resulted in a punitive element to his bail which is as restrictive as most conditional sentences. While no mathematicalformula is appropriate for this mitigating factor, it has been in my view a very punitive sanction which affects not only specificdeterrence but addresses at a very significant level general deterrence and denunciation. To the communities benefit Mr.

Walther hasused the time to participate in intensive counseling which has included relapse prevention counseling. The Crown has submitted that noreduction should be given for the restrictive bail as a result of it being a proposed or agreed-upon term from the outset, and was varied toallow employment upon request by the Crown. The Crown’s argument is analogous to a defendant’s obligation to take steps, whenundue delay is occurring in proceedings to apply to vary bail terms that are causing undue prejudice.

The bail terms do, however, havethe approval of the presiding Justice and the punitive element of the bail term is a reality whether it is imposed and not appealed oraccepted by a defendant. I consider the better analogy to be whether a sentence is served as a result of a guilty plea or imposed followinga trial. I do not consider there to be an obligation on an accused to mitigate or reduce this punitive element in order to have it consideredas an appropriate factor in determining an appropriate penalty at the sentencing stage.

The willingness of an individual defendant to havea punitive bail imposed on them may, however, inform the level of punishment as it is subjectively experienced by that defendant.Accordingly, the willingness of a defendant to suffer punitive pre-sentence house arrest bail may affect the extent of the mitigation to begranted for it. In all events consideration of house arrest bail is required, and some mitigation likely recognized even if it is consensuallyentered into to. [13] There are a number of aggravating features which also have to be considered.

There were a significant number of contacts over ashort number of weeks that show Mr. Walther to have been actively luring and grooming a 14 year old to have sex with him. Hiscommitment to using the internet for the purposes of luring the child into a meeting is demonstrated by his arranging a meeting with herwhich could quickly have lead to a sexual assault on a child. While Mr.

Walther is not to be punished for the luring contact with anotherchild, this offence is not an isolated one given his admission that he had committed a similar crime with at least one other child, who heunderstood to be a 12 year old girl.

He was also in possession of child pornography which is an offence which merits a significantpenalty in its own right. [14] While the absence of a real victim in this matter places this offence at the lower end of the appropriate range, in my view, theculpability associated with him taking steps to actively meet with the believed-to-be 14 year old and his possession of child pornographyrequire an elevated sentence in this matter. [15] If you would stand please, Mr. Walther.

I view this matter to have merited a sentence of 16 months, however to reflect themitigation associated with the house arrest in this matter, the sentence will be one of 12 months in jail, to be followed by probation for aperiod of two years. The probation order will include many statutory terms and conditions including one that you keep the peace and beof good behavior, and others which I will direct the Court staff to explain to you before you leave the building today.

Additionally youwill have to report once per month or as often as required to a probation officer and you will reside at a place approved of by yourprobation officer, and you will attend and actively participate in any assessment and counseling that may be required of you by yourprobation officer to the satisfaction of your probation officer, which should include counseling for pedophilic behaviours. I haveconsidered but will not include a term that you not communicate with children under age 18 given your daughters age.

You will be bound by an order under s.161 of the Criminal Code of Canada for a period of 20 years from today’s date. As well, you will comply with the Sex Offender Information Registration Act provisions of the Criminal Code for a period of 20years. [16] You will provide a sample of your bodily substances for DNA typing purposes and the computer that was seized in this matter willbe forfeited to the Durham Regional Police Service for destruction purposes.

P.L. Bellefontaine Justice