COURT OF APPEAL FOR ONTARIO

DATE: 20030828

DOCKET: C39612

CATZMAN, FELDMAN and GILLESE JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Gillian Roberts and

Michael Demczur

for the appellant

Appellant

• and -

Keith Geurts

for the respondent

RANDALL WEBER

Respondent

Heard: July 7, 2003

On appeal from the sentence imposed by Justice Roy E. Bogusky of the Ontario Court of Justice on February 5, 2003.

FELDMAN J.A.:

1The Crown seeks leave and if leave is granted, appeals from the conditional sentence of fourteen months plus three years’ probation imposed by the trial judge on three charges of distribution of child pornography and one charge of possession of child pornography. The Crown seeks a custodial sentence.

2The respondent pled guilty to the charges. Following his plea, a two and one half day sentence hearing was held. At the hearing, the Crown called the officers involved in the investigation and entered into evidence a book of photos of the material that was the subject of the charges as well as nine video clips from the respondent’s computer. The defence presented two psychiatric reports. One report was from Mr. Conforto, the respondent’s psychotherapist; the other was from Dr. Butler, an expert in sexual deviations, who testified at the hearing. These experts agreed that the respondent is not a pedophile. The Crown presented no psychiatric evidence.

3The sentencing judge gave reasons for the sentence he imposed. In his reasons, he referred to the respondent’s collection of photographs as “disgusting”. Reiterating this reaction in his subsequent discussion with counsel regarding the disposition of the appellant’s computer, the judge remarked that when he went home during the hearing, he had to shower immediately because of his reaction to seeing the photographs.

4In his reasons for sentencing, the trial judge noted that both counsel had agreed that a term of detention was required in order to satisfy the sentencing principles of specific and general deterrence, and that the term should be something less than two years. He then considered whether the sentence should be served in the community, and in that context, whether the respondent posed a danger to the community. The trial judge identified children as the relevant community potentially in danger, then accepted the only available psychiatric opinion evidence that indicated the respondent is not a pedophile. He expressed some skepticism about this conclusion in the face of the respondent’s possession of “such a large quantity of disgusting pictures,” but deferred to the expert opinion evidence presented to him. He concluded as well that the respondent was therefore not a threat to the children in the community.

5The trial judge then referred to the decision of the Court of Appeal in R. v. Cohen (2001), 2001 3862 (ON CA), 144 O.A.C. 340, where this court, setting aside a sentence of fourteen months in custody for similar charges, substituted a conditional sentence of fourteen months to be served in the community on strict house arrest conditions, plus three years’ probation. The trial judge noted that the circumstances in Cohen were almost identical to those in this case, except that the respondent had shown contrition by pleading guilty, while Mr. Cohen had not.

6The trial judge then imposed the same sentence on the respondent as this court had imposed on Mr. Cohen including a three-year period of probation following a fourteen-month conditional sentence on strict terms of house arrest.

GROUNDS OF APPEAL

7The Crown submits that the trial judge made three errors which entitle this court to set aside the sentence and impose a sentence of incarceration:

(1) The trial judge misapprehended the circumstances of the offences and failed to consider aggravating factors.

(2) The trial judge fundamentally failed to grasp the nature of the offences.

(3) The trial judge failed to give adequate consideration to the sentencing principles of general deterrence and denunciation.

(1) Misapprehension of the circumstances of the offences

8In his reasons for sentence the trial judge begins by stating that the respondent pled guilty to possessing child pornography and distributing four pictures on three occasions over the Internet. This statement is accurate. The Crown objects that this bare statement fails to reflect the fact that the pictures were not just sent to three people, but to the people who had asked to be listed within a chat room to receive pornographic material. Including the police officers who asked to be listed, on the first occasion there were 16 recipients, on the second 61 and on the third 94 recipients. On the third occasion, it was the respondent who initiated the list making program, and therefore the distribution of the child pornography.

9The Crown also suggests that the trial judge misapprehended the circumstances in this case by equating them to those in the Cohen case and by distinguishing the case of Lisk, 1998 4737 (ON CA), [1998] O.J. No. 1456 (C.A.). In Lisk, this court held that it would not be appropriate to impose a conditional sentence where the offender distributed material in exchange for more child pornography. The Crown argues that the respondent’s behaviour in the chat rooms, including identifying himself using a profile of a thirteen-year-old swimsuit model looking for an older female, suggests he was looking to contact pedophiles. The Crown also points to one of the images found on the respondent’s computer of a young girl with a caption: “Hi. You want to trade? My age only or you will get no reply.” The Crown submits that the existence of this image stored in the respondent’s computer is strong evidence that he sought to exchange child pornography.

(2) Failure to grasp the nature of the offences

10The Crown submits that, by identifying children as the members of society harmed by the respondent’s conduct, the trial judge focused only on the children in the pictures and failed to appreciate the numerous ways in which possession of child pornography fuels the market for the illegal material and therefore the creation of more material.

(3) Failure to give adequate consideration to the factors of general deterrence and denunciation

11The Crown submits that the trial judge focused on the respondent’s circumstances more than on how the sentence would address the factors of general deterrence and denunciation. He erred by equating the circumstances of this case with those in Cohen. Further, he accepted the psychiatric opinion evidence that the respondent is not a pedophile without addressing its weaknesses, such as the fact that the psychiatrist did not conduct phallometric testing on the respondent.

12The Crown submits that the aggravating circumstances in this case consist of the nature of the photos, their indiscriminate distribution over the Internet, the accessibility of the respondent’s stored material to his family (although there was no suggestion that any of them ever saw it), and the inference from his Internet activity that he was seeking to exchange child pornography with other pedophiles.

ANALYSIS

13Although the trial judge’s reasons were succinct, he dealt with the issues that were pertinent to his determination of the appropriate sentence. Crown counsel fairly points out in her factum that this court has imposed and approved a broad range of sentences for the offences of possession and distribution of child pornography. These include periods of reformatory incarceration and conditional sentences. The trial judge was made aware of some or all of these cases. He was well aware of the circumstances of the offences as well as of the offender. He was clearly concerned about the conclusion reached by the psychiatric opinion evidence, but was entitled to accept it, especially when there was no contradictory opinion evidence presented. In any case, the respondent did obtain counselling and continues to do so.

14Finally, the trial judge did not err in comparing the circumstances of this case to those in Cohen, and in concluding that the circumstances were so alike that a similar sentence would be appropriate and would achieve the necessary sentencing objectives.

15In Cohen, the accused distributed a total of eleven different photographs, which graphically portrayed the sexual abuse of children, on four occasions to different undercover officers. Although he did this in response to requests from the officers and did not initiate any of the transmissions, the accused did not know the identity of the officers or what they would do with the material including whether they would retransmit it to others or use it for grooming children. The accused in Cohen frequented Internet chat rooms used to discuss and exchange child pornography, and entered into private chats discussing activities he had or wished to engage in with young women. He was found in possession of a computer disc containing stories advocating sex with children as well as a graphic image file, all of which were admitted to be child pornography. As in this case, the evidence showed that Mr. Cohen was also not a pedophile. As with the respondent, the charges had had a very serious impact on the accused, his work as well as on his family.

16The major difference, as noted by the trial judge was that in Cohen, the accused did not demonstrate any remorse; he did not plead guilty and he appealed his conviction as well as his sentence.

17Both these men engaged in despicable activity. Because they operated through the Internet, the scope for the dissemination of the pornographic material was unbounded once it was sent out to one person. As Crown counsel pointed out in her submissions, albeit for a different purpose, one of the pictures in this case seems to be the same as one picture described in the case of R. v. Fox, [2002] O.J. No. 3548 (O.C.J.), aff’d, Nov. 4, 2002, unreported endorsement per Weiler, Charron, and Moldaver JJ.A., which suggests that these materials are in full circulation through the Internet.

18In our view, the trial judge made no error in equating the situations of these two men. In the present case, the respondent and his family have probably suffered even more than in Cohen. The fresh evidence, admitted without objection, is that the respondent, because of the publicity, lost not only his original employment, but also the job he obtained following the charges. Further, his family is estranged from him and he is suicidal.

19As this court stated in Cohen, the offences of possession and dissemination of child pornography are very serious and require a sentence which clearly denunciates the conduct and deters others. As the court also stated in that case, a conditional sentence with strict house arrest conditions can adequately serve the objectives of general deterrence and denunciation and is appropriate for certain offenders.

20Substantial deference is owed to trial judges on matters of sentencing because they are the individuals most familiar with, not only the facts of the case and the evidential record, but also the accused and the accused’s family, and the needs of their own communities.

21We see no error in the decision of the trial judge to give the respondent the same sentence given to Mr. Cohen by this court, in circumstances that were substantially similar including the need for denunciation and general deterrence.

RESULT

22Leave to appeal the sentence is granted but the appeal is dismissed.

Signed: “K. Feldman J.A.”