DATE: 20040119

DOCKET: C40206

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Applicant/Appellant) – and – YONG JUN KIM (Respondent)

BEFORE: WEILER, MOLDAVER and ARMSTRONG JJ.A.

COUNSEL: Christine Bartlett-Hughes for the appellant Michael G. Engel for the respondent

HEARD: January 9, 2004

RELEASED ORALLY: January 9, 2004

On appeal from the sentence imposed by Justice Richard D. Schneider of the Ontario Court of Justice dated May 28, 2003.

E N D O R S E M E N T

[1] Following his plea of guilty, the offender was sentenced to a 9 month conditional sentence plus twelve months probation for possession of child pornography and distribution of child pornography. In addition, the offender received a s. 161 order for two years prohibiting access to children. The Crown seeks leave to appeal the imposition of the conditional sentence and, if leave is granted, appeals that sentence.

[2] The imposition of a non-custodial sentence in this case does not address the gravity of the offence or the need for denunciation and deterrence. The decision in R. v. Sharpe (2001), 2001 SCC 2, 150 C.C.C. (3d) 321 (S.C.C.) explicitly recognized the link between the possession and distribution of child pornography and the harm occasioned by the sexual abuse and exploitation of children. The Supreme Court accepted that child pornography may fuel cognitive distortions normalizing this harmful conduct. The overwhelming amount of child pornography seized, the ages of the children involved, the nature of the acts in which they were involved and the respondent’s interest in the material, distinguish this case from R. v. Cohen and R. v. Weber where conditional sentences were imposed. In R. v. Lisk, [1998] O.J. No. 1456, this court stated, “We agree that the principles of deterrence and denunciation could only be adequately reflected in a sentence involving incarceration.” As in Lisk, this offender distributed pornographic material in exchange for more pornographic material. The basis here was a two-for-one exchange of pornographic material. The offender had over 12,000 images on his server and received between 5,600 and 6,400 images over an eight‑day period. He sent out 2,800 to 3,200 images.

[1] Despite the fact that the respondent was a youthful first offender with no prior record, this was an inappropriate case for a conditional sentence. It called instead for a substantial reformatory sentence. However, in view of the fact that the offender has already served seven and a half months of his conditional sentence and that he has, with some difficulty, only recently obtained an appointment for counseling at a psychiatric facility, we are reluctant to interfere and impose a period of incarceration at this stage.

[2] Accordingly, while leave to appeal sentence is granted, the appeal from sentence is dismissed.

“Karen M. Weiler J.A.”

“M. J. Moldaver J.A.”

“Robert P. Armstrong J.A.”