DATE: 20060424

DOCKET: C44143

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – ROBERT ALLYN NEILLY (Appellant)

BEFORE:

McMurtry C.J.O., Doherty and Cronk JJ.A.

COUNSEL:

Robert Sheppard

for the appellant

Debbie Calderwood

for the respondent

HEARD & RELEASED ORALLY:

April 21, 2006

On appeal from the sentence imposed by Justice John C. Kennedy of the Superior Court of Justice on August 24, 2005.

E N D O R S E M E N T

[1] The appellant was convicted of possession and distribution of pornographic materials involving young children. He received a sentence of one year concurrent on each charge, plus two years probation.

[2] The appellant argues that the sentencing judge erred in imposing a custodial sentence, rather than a conditional sentence, by failing to undertake any assessment of whether allowing the appellant to serve the sentence in the community would have endangered the safety of the community, or of whether the imposition of a conditional sentence would be contrary to the purpose and principles of sentencing.

[3] In our view, the sentencing judge made no error in principle in fashioning an appropriate sentence for this offender in view of these offences; nor is the sentence imposed unfit.

[4] The sentencing judge concluded, on the facts here, that the objectives of denunciation and deterrence were paramount and that they could not be adequately addressed by a conditional sentence. That holding was open to the sentencing judge on this record. In particular, the overwhelming volume of pornographic materials seized, the appellant’s purchase and distribution of such materials, the young ages of the children involved, the horrific nature of the subject matter of the photos, and the lengths to which the appellant was prepared to go to obtain such materials (including the creation of photographs suggesting the involvement of young girls in sexual acts with him and the fact that he went into the community and surreptitiously made sexually-explicit photographs of young girls), all support the sentencing judge’s conclusion that the governing sentencing principles could not be satisfied in this case by a conditional sentence.

[5] Finally, the sentence in this case is within the range of sentences imposed for similar offences and similar offenders.

[6] Accordingly, leave to appeal sentence is granted and the sentence appeal is dismissed.

[7] All copies of the supplementary appeal book filed by the Crown shall be returned to the Crown.

“R.R. McMurtry C.J.O.”

“D.H. Doherty J.A.”

“E.A. Cronk J.A.”