Her Majesty the Queen v. D.G.F. [Indexed as: R. v. F. (D.G.)]

98 O.R. (3d) 241

Court of Appeal for Ontario,

Feldman, Blair and Watt JJ.A.

January 18, 2010

Criminal law -- Sentence -- Child pornography -- Accused pleading guilty to three counts of making child pornography using his four-year-old daughter, two counts of sexually assaulting that daughter, and other counts of possessing and distributing child pornography -- Accused transmitting still images of daughter, bragging of sexually assaulting her and transmitted live video of sexually assaulting her to another participant in chat room -- Accused possessing thousands of images of child pornography including sexually violent images -- Accused having no criminal record -- Victim impact statements from mothers of two girls appearing in pornography transmitted by accused revealing impact of offences and expressing concerns about children's images being circulated among pedophiles around world -- Sentencing judge emphasizing principle of totality and imposing sentence of 20 months' incarceration (in addition to credit of 28 months for pre-trial custody) and three years' probation -- Accu sed having been released for nine months when appeal heard and adducing fresh evidence from therapist about progress and adverse effects of re-incarcerating accused -- Crown's appeal allowed -- Trial judge failing to give sufficient weight or effect to overall gravity of accused's conduct and to interrelation of offences -- Sentence so far below appropriate range that re- incarceration required despite delay in perfecting Crown appeal -- Sentence varied to seven years' imprisonment.

The accused pleaded guilty to two counts of sexually assaulting his four-year-old daughter, three counts of making child pornography using his four-year-old daughter, one count of possessing child pornography and one count of distributing child pornography. He participated in a chat room in which people traded child pornography. In the course of a conversation with an undercover police officer, he boasted of sexually assaulting his daughter and transmitted photos depicting the assaults. He also transmitted pictures of his daughter exposing her genitals. He disclosed his daughter's real name. Finally, using a Web camera, he took and immediately transmitted pictures of his daughter, who was naked and bent over a chair beside his desk while he was spreading her labia and anus. A large quantity of child pornography was found in his possession, including photographs of sexual assaults and demeaning aggression. The members of the group who viewed and exchanged child pornography encouraged each other to sexually a ssault their own children. The offender stated that it was this encouragement that led him to assault his own young child. The sexual assaults against his four-year-old were escalating. The victim impact statements noted the ongoing harm caused to the victims, including the concern that the pornographic images taken of them continued to circulate among persons who trade such pornography worldwide. The accused had no criminal record. The trial judge found that the sentence had to reflect the need for general deterrence and denunciation and that totality was the most important factor. He sentenced the accused to 20 months' incarceration in addition to a credit of 28 months for pre-trial custody, followed by three years' probation. The Crown appealed.

Held, the appeal should be allowed. [page242]

In focusing on the totality principle, the trial judge failed to give sufficient weight or effect to the overall gravity of the accused's course of conduct, the interrelation of the crimes and the cumulative circumstances that put the offences at the high end of moral culpability. This case called for a very significant sentence in order to adequately meet the essential sentencing objectives of denunciation and deterrence. The sentence imposed by the trial judge was manifestly unfit. The court noted the increasing evidence that dissemination of child pornography over the Internet is increasing, including images in which children are being sexually assaulted. This offence involved the most egregious breach of trust that a parent can inflict on a child. He started grooming his daughter for more serious assaults and the abuse escalated. It was stopped only by his arrest. He disclosed her real name to another participant in the chat room and displayed images of him sexually assaulting her for the pleasure of ot hers. The accused had been released nine months before the appeal was heard, as there was some delay in perfecting the Crown appeal. Usually the court is reluctant to re-incarcerate an accused. Fresh evidence was admitted indicating that the accused was making progress in therapy and his therapist believed that re- incarcerating him would have adverse effects on this progress. However, the sentence imposed was so far below the appropriate range of sentence that the accused will be re- incarcerated. Because the trial Crown asked for a sentence of seven years, and the guilty plea was entered on that basis, it would be inappropriate to impose a sentence higher than that. The sentence was varied to seven years' imprisonment.

APPEAL by the Crown from the sentence imposed by McGarry J. of the Superior Court of Justice dated December 20, 2007. [page243]

Cases referred to R. v. M. (L.), [2008] 2 S.C.R. 163, [2008] S.C.J. No. 31, 2008 SCC 31, EYB 2008-133843, J.E. 2008-1117, 77 W.C.B. (2d) 463, 374 N.R. 351, 231 C.C.C. (3d) 310, 293 D.L.R. (4th) 1, 56 C.R. (6th) 278, consd Other cases referred to R. v. Banci, [1982] O.J. No. 58 (C.A.); R. v. Cheng, [1991] O.J. No. 1026, 50 O.A.C. 374, 13 W.C.B. (2d) 387 (C.A.); R. v. Crazybull, 1993 ABCA 197, [1993] A.J. No. 473, 141 A.R. 69, 20 W.C.B. (2d) 181 (C.A.); R. v. H. (C.N.) (2002), 2002 7751 (ON CA), 62 O.R. (3d) 564, [2002] O.J. No. 4918, 167 O.A.C. 292, 170 C.C.C. (3d) 253, 9 C.R. (6th) 103, 56 W.C.B. (2d) 426 (C.A.); R. v. Jewell; R. v. Gramlick, 1995 1897 (ON CA), [1995] O.J. No. 2213, 83 O.A.C. 81, 100 C.C.C. (3d) 270, 28 W.C.B. (2d) 48 (C.A.); R. v. Kim, 2004 32118 (ON CA), [2004] O.J. No. 119, 181 O.A.C. 88, 60 W.C.B. (2d) 112 (C.A.); R. v. Kwok, 2007 2942 (ON SC), [2007] O.J. No. 457, 72 W.C.B. (2d) 533 (S.C.J.); R. v. Mann, [1995] O.J. No. 474 (C.A.); R. v. Schan, 2002 41613 (ON CA), [2002] O.J. No. 600, 155 O.A.C. 273, 53 W.C.B. (2d) 60 (C.A.); R. v. Sharpe, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3, 2001 SCC 2, 194 D.L.R. (4th) 1, 264 N.R. 201, [2001] 6 W.W.R. 1, J.E. 2001-294, 146 B.C.A.C. 161, 88 B.C.L.R. (3d) 1, 150 C.C.C. (3d) 321, 39 C.R. (5th) 72, 86 C @@.R.R. (2d) 1, 48 W.C.B. (2d) 287; R. v. W. (R.), [2001] O.J. No. 2810, [2001] O.T.C. 537 (S.C.J.); R. v. Weber, 2003 28579 (ON CA), [2003] O.J. No. 3306, 175 O.A.C. 138, 178 C.C.C. (3d) 17, 58 W.C.B. (2d) 494 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 718 [as am.] Authorities referred to Ruby, Clayton C., et al., Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008)

Allison Dellandrea and Lisa Joyal, for appellant. Robert Upsdell, for respondent.

The judgment of the court was delivered by

[1] FELDMAN J.A.: -- The respondent pled guilty to seven sexual offences against children, including two counts of sexual assault of his four-year old daughter, three counts of making child pornography using his four-year old daughter, one count of possession of child pornography and one count of distributing child pornography. The horrific details will be described below, but the culminating act was a live sexual assault of his daughter transmitted by webcam in an Internet chat-room set up for pedophiles.

[2] The respondent spent 14 months in pre-trial custody pending the plea and pronouncement of sentence. The trial judge imposed a sentence of 20 months after the pre-trial custody, which was counted as 28 months, plus three years' probation. The Crown asked for a sentence of seven years at trial (including pre-trial custody) and says on appeal that the range for these offences is seven to ten years.

[3] In my view, the sentence imposed was manifestly unfit and the appeal must be allowed. Facts

[4] In November 2005, law enforcement officials began an investigation of a worldwide Internet chat room created to facilitate the exchange of child abuse images and films among its members. The investigation revealed that children were being abused in order to create new child pornography images for the specific purpose of the room. Over the course of the investigation, 82 members were arrested and over 30 children who had been sexually abused were rescued. The respondent became a member of this chat room some time before March 2006, when the chat room was closed down by law enforcement. The respondent was not one of the people arrested during this first major takedown, but he knew that the chat room had been disabled by the authorities.

[5] Nevertheless, when the chat room was resurrected, the respondent rejoined the chat room group using a different "nickname". On October 29, 2006, he initiated an on-line conversation with an undercover police officer who was posing as an adult pedophile. The conversation lasted one hour and 23 minutes and was recorded by the police. The respondent began by transmitting 147 child pornography images, describing them as a "sampling". [page244] The officer asked if the respondent had his own children and if he was active with them. The respondent told him he had two daughters, ages four and 12 and transmitted an image of his young daughter when she was three, exposing her genitals in the bathtub. While boasting about sexually assaulting his daughter by licking her privates on the day that photograph was taken, he transmitted an additional two nude images of his daughter. I note here that these boasted acts did not form the basis for any of the charges to which the respondent pled guilty. However, they form part of his conduct in the chat room with the person he believed was a pedophile.

[6] The respondent then transmitted eight photos depicting sexual assaults on his daughter that took place on January 19, 2006. His hand is shown exposing the child's private parts or rectum to the camera while her legs are spread or she is bent over. These photos formed the basis for the charges of sexual assault and making child pornography.

[7] The officer then asked if the respondent had pictures from another day. In response, the respondent transmitted 17 more pictures of his daughter taken on October 24, 2006, exposing her vagina or rectum, and, in several cases, she is touching her vagina. These acts constituted the basis for another count of making child pornography.

[8] In the course of the conversation where the respondent asked the officer if he was "wanking over [his] little girl", the respondent disclosed his daughter's real name and transmitted 12 more photos. He then described how he laid his daughter on his bed after her bath, put a towel over her head and licked her for five minutes while he "beat off". He explained that he decided to sexually abuse his daughter after receiving active encouragement by his on-line peers.

[9] When the officer attempted to terminate the chat, the respondent said he had a surprise for the officer. Then, using the Web camera, he took and immediately transmitted three pictures of his daughter, who was naked and bent over on the chair beside his desk while he was spreading open her labia and anus.

[10] The respondent was arrested that day, and his daughter was rescued by the authorities.

[11] The respondent also possessed DVDs and CDs containing 3,454 child pornography photographs, 58 child pornography videos, 2,096 child nudity images, ten child nudity videos, 1,116 images of obscenity and 57 videos of obscenity (obscenity was agreed by the parties to be material where the dominant characteristic is the undue exploitation of sex or sex depicting crime, horror, cruelty or violence), including depictions of the respondent [page245] sexually abusing his daughter. Some of the images included children in bondage or engaging in explicit sexual activity. One was a naked girl, tied, gagged and bound, hanging upside down with an object inserted into her vagina. Another showed a child lying on her back with the words "slut" and "cut me" written across her naked torso with red ink and a sharp knife-like instrument pointed at her exposed vagina.

[12] Victim impact statements from the respondent's wife and 12-year-old stepdaughter revealed the terrible effect of the break-up of the family and the complete lack of trust caused by his acts. A statement was also filed by the mother of another child who appears in some of the photos. She describes the long-term effect on her daughter, knowing the pictures are a source of continuing exploitation, existing in the public domain forever.

[13] The respondent was 35 years old at the date of sentencing. He had no criminal record. His education consisted of completion of grade 12 and one year of college. When the respondent married his wife, she already had a daughter. They then had their own child, the victim. The respondent and his wife separated shortly after his arrest. He was sentenced approximately 14 months after his arrest, all of which time was spent in pre-trial detention, some of which was in protective custody. At the sentencing, he expressed profound remorse, regret and shame.

[14] The Crown proposed a sentence of seven years in the penitentiary, less the time spent in pre-trial custody, calculated as two-for-one. The defence asked for a total sentence of 30 months, less time served. [See Note 1 below]

[15] In his reasons for sentence, the trial judge described the horror of the photographs, the actions of the respondent, the effect on the victims, the instigating effect of participating in a chat room with like-minded perpetrators, the permanence of sending [page246] images out on the Internet and the effect of that permanence on the victims. He also doubted the sincerity of the respondent's stated remorse and noted that without any psychological or psychiatric assessment, he did not know whether the respondent was a pedophile and therefore the type of danger he presented to the public for the future. He took into account the guilty plea and the fact that the respondent did not have a record. He referred to the decision of Molloy J. in R. v. Kwok, 2007 2942 (ON SC), [2007] O.J. No. 457, 72 W.C.B. (2d) 533 (S.C.J.) and to para. 7, where she listed the factors relevant to sentencing on charges involving possession of child pornography. [See Note 2 below]

[16] The trial judge described this as a gross case, and a sickening case of breach of trust, noting that other cases he had read did not involve a perpetrator's own daughter. He mentioned that the sentence had to reflect the need for general deterrence and denunciation and that totality was the most important factor.

[17] He then imposed a total sentence of four years minus time served, broken down as follows with the sentences to run concurrently: count 2, sexual assault: 12 months; count 3, making child pornography: 20 months; count 4, making child pornography: 20 months; count 6, possession of child pornography: 18 months; count 7, making child pornography: 20 months; count 10, making child pornography: 20 months (this appears to be an error as the indictment lists count 10 as a charge of sexual assault); count 11, distributing child pornography: 20 months. The sentence also included three years' probation with terms including counselling and an assessment for pedophilia. [page247] Issue: Is the Sentence Imposed too Low for these Offences and Therefore Manifestly Unfit?

[18] In order to determine a fit sentence, the sentencing judge must consider and assess the overall gravity of the offence or offences committed and the circumstances in which they were committed. This reflects the basic tenet of fairness that the punishment fit the crime. In his text, Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008), Clayton Ruby puts it this way, at p. 27:

The nature or gravity of the offence is, properly, the central factor in sentencing. It is and must be the "first rule that prompts the magistrate". Our basic notion of fairness demands that every sentence be primarily and essentially appropriate to the offence committed, having regard to the nature of the crime and the particular circumstances in which it was committed.

[19] There are, of course, many other principles that must also be applied in order to arrive at a fit sentence for the particular offender in the specific case, including aggravating and mitigating factors, criminal record and the directives in s. 718 of the Criminal Code, R.S.C. 1985, c. C-46.

[20] In this case, the sentencing judge referred to many aspects of these offences that make them extremely serious transgressions calling for a significant penalty. However, in focusing on the totality principle, he failed to give sufficient weight or effect to the overall gravity of the course of conduct of the respondent and the cumulative circumstances that put his offences at the high end of moral culpability.

[21] Over the last two decades, courts have been on a learning curve to understand both the extent and the effects of the creation and dissemination of child pornography over the Internet and to address the problem appropriately: see, for example, R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3; Kwok. A number of relatively lenient sentences had been imposed in cases where child pornography was downloaded or distributed, there was no sexual abuse or making of child pornography involved, and there were many mitigating circumstances: see, for example, R. v. Schan, 2002 41613 (ON CA), [2002] O.J. No. 600, 155 O.A.C. 273 (C.A.); R. v. Weber, 2003 28579 (ON CA), [2003] O.J. No. 3306, 175 O.A.C. 138 (C.A.); R. v. Kim, 2004 32118 (ON CA), [2004] O.J. No. 119, 181 O.A.C. 88 (C.A.). However, in cases that involved making child pornography and child sexual abuse, significant custodial sentences were imposed: see, for example, R. v. Jewell; R. v. Gramlick, 1995 1897 (ON CA), [1995] O.J. No. 2213, 100 C.C.C. (3d) 270 (C.A.); R . v. W. (R.), [2001] O.J. No. 2810, [2001] O.T.C. 537 (S.C.J.). [page248]

[22] Unfortunately, the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution. The victims are innocent children who become props in a perverted show, played out for an ever-wider audience not only of voyeurs but of perpetrators.

[23] Since the respondent was sentenced, the Supreme Court of Canada delivered its decision in R. v. M. (L.), 2008 SCC 31, [2008] 2 S.C.R. 163, [2008] S.C.J. No. 31, upholding a sentence of 15 years for an accused who sexually assaulted his four-year-old daughter and used her and her friend for making child pornography, which he distributed for profit over the Internet, and who also possessed a huge collection of other child pornography.

[24] In his reasons, LeBel J. made an important observation about the proper approach to sentencing in a situation involving multiple charges of sexual assault of a child and making, disseminating over the Internet and possessing child pornography, at para. 31:

The judge also correctly understood the close relationship between the offences, the overall situation they gave rise to and the need to impose a global sentence suited to that situation. Viewed as a whole, the crime was complex. The offence of sexual assault was closely connected with three other offences of making, possessing and distributing child pornography that are subject to express sanctions under the Criminal Code. Each aspect of the offender's conduct could be considered only in light of all these charges, viewed as a whole. As Judge Wilhelmy concluded, the global sentence was the crucial factor in determining the sentence in the case at bar.

[25] In order to apply the Supreme Court's global sentence approach to the facts of this case, the following are the significant connected circumstances of the respondent's offences to be taken into account: (1) The respondent was participating in a child pornography chat room with like-minded adults. (2) People participating in the chat room traded child pornographic pictures. (3) These pictures included depictions of sexual assaults as well as other violence and other demeaning aggression against victimized children. (4) Victim impact information from one of those children showed that the pictures were made currently, that is, they were not historical material just being recirculated in cyberspace. [page249] (5) The participants discussed committing sexual assaults on children and encouraged other participants to do the same. The respondent acknowledged that it was this encouragement that caused him to act out his fantasies on his own child. (6) The respondent sexually assaulted his own daughter on an ongoing basis. He was grooming her to participate in this activity by touching herself and posing for pictures. (7) The respondent's daughter was a captive victim under his care and control. The abuse was ongoing and escalating, and further assaults and abuse were only prevented because he was caught. (8) The fact that the victim was the respondent's own child is the most egregious breach of trust there can be. (9) The respondent disclosed his daughter's name to the other participant in the chat room, another extension of his breach of trust. (10) Not only did the respondent transmit pictures of his daughter being sexually assaulted by him to a stranger over the Internet, he escalated the nature and extent of the criminal activity level by assaulting her as a live show to another participant. Had the other person in the chat room not been an undercover officer, it is likely that such a situation could escalate into more aggressive and prolonged sexual activity with the other person encouraging the activity. (11) By his live assault of his daughter in front of his new "friend", a person he believed to be a pedophile, the respondent was sharing his child as an object of pleasure for both men for a criminal purpose. This constitutes an entire new aspect of the nature of the abuse that underlies the crime of making and distributing child pornography. The trial judge found that the respondent enjoyed being able to show off his daughter. (12) The victim impact statements show the long-term effect of all the aspects of this activity. 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 [page250] 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.

[26] This confluence of factors clearly required a very significant sentence to meet the sentencing objectives of general deterrence and denunciation as well as specific deterrence. While acknowledging many of these factors, the trial judge did not refer to the live broadcast as an act that raised the respondent's conduct to a new level of criminality. Furthermore, by focusing on the totality principle and imposing concurrent sentences for each of the offences, the trial judge failed to address the interrelation of the crimes and the need for a sufficiently long global sentence to address the seriousness and moral blameworthiness of the respondent's overall criminal conduct.

[27] Although the totality principle must always be considered when sentencing for multiple offences, the sentence imposed cannot thereby become inadequate to properly recognize the overall gravity of this conduct that victimizes children in the most horrendous way.

[28] In his reasons, the trial judge referred to the decision in Kwok for the principles to be applied in a case of possession of child pornography. However, the circumstances in that case were not at all similar to this case, and the sentence of 12 months, which Molloy J. stated to be in the middle of the applicable range, may have misled the trial judge in assessing the range of sentence applicable in the egregious circumstances found here.

[29] By upholding the 15-year sentence imposed by the trial judge in M. (L.), the Supreme Court made it clear that the range can reach well into the double-digit level, depending on the number of offences and the confluence of circumstances that may exist in each case.

[30] In my view, this case called for a very significant sentence in order to adequately meet the essential sentencing objectives of denunciation and deterrence for this category of crimes. The effective sentence of four years imposed by the trial judge was, in these circumstances, manifestly unfit and in error. However, because the trial Crown asked for a sentence of seven years, and the guilty plea was entered on that basis, I would not impose a sentence higher than seven years on this appeal. [page251] The Issue of Re-incarceration

[31] The respondent had been on release for nine months at the time this appeal was heard. While the Crown was responsible for the delay in perfecting this appeal, the respondent was also pursuing a cross-appeal until that proceeding was abandoned in July 2009. The Crown appeal was heard at the end of October 2009.

[32] Fresh evidence was filed regarding the respondent's progress in the community. This evidence shows that he is receiving treatment and making progress, that he is living on his own and that he has had some employment. His therapist states that re-incarceration would be counter-productive to his rehabilitation progress.

[33] In most cases, this court is reluctant to re-incarcerate an offender who has served the sentence originally imposed and has been released into the community: see, for example, R. v. H. (C.N.) (2002), 2002 7751 (ON CA), 62 O.R. (3d) 564, [2002] O.J. No. 4918 (C.A.); R. v. Mann, [1995] O.J. No. 474 (C.A.). The factors referred to, Crown delay and the respondent's progress in the community, would also militate against an order that would require the offender to be re-incarcerated: R. v. Crazybull, 1993 ABCA 197, [1993] A.J. No. 473, 141 A.R. 69 (C.A.); R. v. Banci, [1982] O.J. No. 58 (C.A.).

[34] However, this is a case where the sentence imposed was so far below the sentence that was required and was "so inadequate that the interests of justice require the court's intervention": see R. v. Cheng, [1991] O.J. No. 1026, 50 O.A.C. 374 (C.A.), at para. 5.

[35] I would therefore grant leave to appeal [the] sentence, allow the appeal, set aside the sentence imposed of four years plus three years' probation and substitute a sentence of seven years. The respondent will of course be given credit for all time already served. A warrant may issue for the arrest of the respondent.

Appeal allowed.

Notes

Note 1: Both at trial and on the appeal, respondent's counsel objected that Crown cousel at trial had changed her poition from the pre-trial when she spoke to sentence, and that the Crown's position at the pre-trial was five years less time served in the case of a guilty plea and five years plus time served if the matter went to trial. Crown counsel stated to McGarry J. that she had not changed her position. In his reasons, McGarry J. stated that the Crown position was seven years. On this appeal, the respondent has filed the pre-trial summary sheet that may explain the misunderstanding. The Crown position with respect to the effect of pre-trial custody on a guilty plea was five years, "subject to reduction (some)", and after trial, is was five years with no reduction. By asking for seven years at trial following the plea (i.e., five years plus 24 months), Crown counsel was reflecting "some reduction", four months, for the pre-trial custody of 28 months.

Note 2: In Kwok, Molloy J. set out the following to be considered as aggravating factors: (i) a criminal record for similar or related offences; (ii) whether there was also production or distribution of the pornography; (iii) the size of the pornography collection; (iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merly collecting it by free downloads from the Internet. Mitigating factors include (i) the youthful ago of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (v) whether the offender is willing to submit to treatment and counselling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community).