DATE: 20030224

DOCKET: C38913

COURT OF APPEAL FOR ONTARIO

CRONK, GILLESE AND ARMSTRONG JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Rosella Cornaviera, for the respondent

Respondent

• and -

E.O.’

Peter Thorning, for the appellant

Appellant

Heard: February 18, 2003

On appeal from the sentence imposed by Justice J. J. Douglas of the Ontario Court of Justice on June 17, 2002.

CRONK J.A.:

[1] The appellant, E.O.’, applies for leave to appeal and, if leave be granted, appeals against his sentence of 18 months imprisonment on his conviction for one count of possession of child pornography contrary to s. 163.1(4) of the Criminal Code, and 6 months imprisonment, concurrent, on his conviction for one count of breach of probation contrary to s. 733.1 of the Criminal Code, followed by 3 years probation.

[2] In support of his appeal, the appellant argues that:

(1) the trial judge misapprehended the Crown’s submissions at trial concerning sentence in connection with the possession of child pornography conviction and, in doing so, failed to respect a negotiated joint submission, despite his stated intention to the contrary;

(2) the trial judge erred by imposing a sentence designed to punish the appellant for past lenient sentences concerning other crimes; and

(3) the Crown’s inadvertent late disclosure of a psychiatric report authored by Dr. R. W. Hill in May 1998, which was not disclosed to the defence until the conclusion of the sentencing hearing, resulted in an unfair hearing. The appellant submits that the report should be admitted as fresh evidence, and considered by this court on this appeal.

(1) Misapprehension of the Crown’s Sentencing Submissions and the Alleged Joint Sentencing Submission

[3] At trial, Crown counsel sought a custodial term of 12 to 18 months in connection with the appellant’s conviction for possession of child pornography, with appropriate weight to be given to pre-trial custody, together with probation for 3 years. Defence counsel argued that the appellant should receive 9 months credit for 138 days of pre-trial custody, together with an additional 4 months of imprisonment, followed by probation.

[4] In his reasons for sentence, the trial judge stated:

I have before me, in essence, a joint submission as to the appropriate range, as it were, or nearly. The Crown proposes a sentence of 12 to 18 months in addition to time served. The defence say the appropriate range is in the area of 9 to 12 months, but less time served.

While I intend to abide by what I see to be a joint submission in all of these circumstances, that is with respect to the nature of the form of incarceration, my own reasoning would suggest an increased period of time and it leads me to adopt, here, the outside range of the Crown’s submissions [emphasis added].

[5] The Crown argues that there was no joint submission at trial concerning the appropriate range of a custodial sentence. We agree. While both counsel appear to have agreed that the upper end of the appropriate range of incarceration should be less than 2 years, their positions as to an overall appropriate range or duration of sentence were divergent. The sentence imposed by the trial judge, while at the highest end of the range proposed by the Crown at trial, was less than 2 years imprisonment, thus permitting imposition of a term of probation. In arriving at that sentence, the trial judge recognized that the agreement of counsel related only to the nature of the form of incarceration, namely, incarceration in a reformatory setting. That required a custodial term of less than 2 years. The trial judge accepted that proposal.

[6] On this appeal, the Crown concedes that the trial judge misstated the trial Crown’s position regarding credit for pre-trial detention when he said that the Crown’s proposal was a sentence of 12 to 18 months “in addition to time served”. The Crown’s proposal contemplated 12 to 18 months incarceration before any credit for time served. Notwithstanding that misstatement, the Crown argues that the sentence imposed was fit, having regard to the nature of the offence and the circumstances of this offender. We agree.

[7] Possession of child pornography is a crime of enormous gravity, both for the affected victims and for society as a whole. For that reason, the courts have repeatedly recognized that the most important sentencing principles in cases involving child pornography are general deterrence and denunciation. Further, the offence of possession of child pornography requires the imposition of sentences which denounce the morally reprehensible nature of the crime, deters others from the commission of the offence, and reflects the gravity of the offence: see R. v. Sharpe (2001), 2001 SCC 2, 150 C.C.C. (3d) 321 (S.C.C.) and R. v. Stroempl (1995), 1995 2283 (ON CA), 105 C.C.C. (3d) 187 (Ont. C.A.). In this case, as observed by the trial judge and as discussed later in these reasons, the record of the appellant disclosed actual abuse of children. His accumulation of violent pornographic material involving young children, and the timing of his access to such material, support the trial judge’s conclusion that the appellant poses a danger to the community. For those reasons, we conclude that the appellant’s sentence is entirely fit.

[8] The appellant asserts that the trial judge intended to credit 138 days of pre-trial custody but, in error, allowed a credit for only 106 days. The Crown submits that the trial judge, in fact, credited the appellant with 138 days of pre-trial custody, on a two-for-one basis.

[9] We conclude, on a careful reading of the trial judge’s reasons for sentence, that he credited the appellant with 138 days of pre-trial custody, on a two-for-one basis.

[10] The trial judge indicated that, in his view, the appropriate starting point for a fit sentence was in the range of 3 years. He then stated:

From three years, if one took the approximately 138 days of pre-trial custody as the equivalent to about four and a half months and awarded that on the usual two-for-one basis, … that would be the equivalent of about nine and some months, which would reduce that disposition to something in the range of 27 months.

[11] The appellant had been placed while in pre-trial custody in a “lock down” situation, which segregated him from the general inmate population and reduced his time out of his cell to approximately one or two hours a day. The trial judge recognized that consideration of that aggravating factor would further reduce the sentence. Finally, the trial judge considered the desirability of imposing a term of probation, which required imposition of a sentence of imprisonment of 2 years or less in duration. In the result, the trial judge reduced the 27 month sentence to an 18 month sentence of imprisonment, followed by 3 years probation. The trial judge’s stated approach to arriving at that sentence indicates that he clearly credited the appellant with 138 days of pre-trial custody, on a two-for-one basis.

(2) Consideration by the Trial Judge of Past Sentences

[12] In May 1992, the appellant was found guilty of having forced his 3-1/2 year-old daughter to fellate him. He was also found guilty of having forced his 4 year-old niece to fellate him. In respect of those offences, he was sentenced to a custodial term of 4-1/2 months, concurrent, followed by 3 years probation. Approximately 6 years later, in May 1998, the appellant, while impaired, broke into his sister’s residence and abducted his 9 year-old niece. After he was apprehended, the appellant was convicted of the offences of abduction and impaired driving. He received a 90 day intermittent sentence in addition to 14 days time served, followed by 3 years probation. While serving that term of probation, he purchased the pornographic images at issue in this case.

[13] In commenting on the 4-1/2 month concurrent custodial sentence received by the appellant in 1992 upon his conviction for the 2 counts of sexual interference involving his daughter and one of his nieces, the trial judge stated:

Why such a disposition was imposed in that case is lost in the murk of time I suppose.

[14] He later observed:

In my view, the accused has not served a significant period of time for whatever reasons were operative on an earlier occasion. That was, perhaps, looking back and retrospectively, which is always dangerous, a mistake. The community ought to have been better protected from this gentleman than it has been in the past. However, that brings into play what is loosely called the jump principle, that sentences ought not to significantly go from low amounts to high amounts. One must, of course, consider the totality of the sentence and one must, in the end, consider the nature of sentences being given by such as the Court of Appeal in Ontario and senior courts throughout the province.

[15] The appellant submits that those statements by the trial judge indicate that he sought to punish the appellant for what he perceived to be lenient sentences imposed in connection with past offences. We do not accept that submission. The full context of the trial judge’s comments make clear that his references to sentences previously received by the appellant were directed to consideration of the “jump principle”, whereby sentences for a repeat offender should increase gradually, rather than by large leaps. The reasons for sentence of the trial judge, in our view, do not demonstrate that he erred in analysis of that principle, or that he attached any improper significance to the sentences received by the appellant for past offences.

(3) The Proposed Fresh Evidence

[16] The appellant argues that Dr. Hill’s report of May 1998 undermines the trial judge’s finding that the appellant “remains a persistent danger” to the community, and that the Crown’s late disclosure of the report, although inadvertent, prejudiced the appellant at his sentencing hearing. The Crown opposes admission of the report as fresh evidence on this appeal, on the basis that the appellant has not satisfied the pre-conditions for admissibility of fresh evidence set out in R. v. Palmer and Palmer (1979), 1979 8 (SCC), 50 C.C.C. (2d) 193 (S.C.C.). In particular, the Crown argues that the appellant has not met the due diligence and relevance pre-conditions for admissibility of the report.

[17] While the due diligence requirement for the admission of fresh evidence may be less stringently applied in criminal, as opposed to civil, cases, it is significant that the report in question was generated for and with the participation of the appellant, and that a copy of the report was filed as an exhibit at his sentencing hearing in connection with his conviction for abduction in 1998. The report, therefore, was a public court document, the existence of which was known to the appellant.

[18] Nonetheless, we have reviewed the contents of Dr. Hill’s report. In our view, the report is not relevant to the determination of a fit sentence for the present offence. The report was prepared in 1998, approximately 4 years before the appellant’s sentencing hearing in this case. Accordingly, it does not concern, and does not take into account, the offence now at issue, which had not been committed by the appellant when the report was authored. In addition, the report does not take detailed account of the appellant’s past criminal convictions for the sexual abuse of his daughter and his niece. Finally, as asserted by the Crown before us, the fact that the author of the report concluded, shortly before the appellant committed the offence now at issue, that the appellant was not a dangerous risk diminishes the value of the report in assessing the future dangerousness of the appellant. For all of those reasons, it cannot reasonably be expected that the report would have affected the result at the appellant’s sentencing hearing.

(4) Disposition

[19] Accordingly, for the reasons given, leave to appeal sentence is granted and the sentence appeal is dismissed. In accordance with the order of Catzman J.A. of this court dated October 31, 2002, Crown counsel is directed to collect and destroy the supplementary appeal books filed with this court.

RELEASED: FEB 24 2003 Signed: “E.A. Cronk J.A.”

“I agree. E.E. Gillese J.A.”

“I agree Robert P. Armstrong J.A.”