Court Information

Court: Ontario Court of Justice, Old City Hall - Toronto

Between: Her Majesty the Queen

And: James Hutchings

Counsel:

• J. Gibson, for the Crown
• J. House, for the Defendant

Heard: January 19, April 10, and May 25, 2012

Released: June 4, 2012

Judge: Melvyn Green, J.

Reasons for Sentence

A. Introduction

[1] James Hutchings pled guilty in January 2012 to four child pornography related offences and two further offences involving breaches of probation conditions intended to prevent him from accessing or distributing child pornography. The offences to which he has pled are very serious. Their gravity is exacerbated by their repetition in the wake of recently imposed court-ordered prohibitions. Further, several of the offences carry significant minimum penalties. Mr. Hutchings has accepted responsibility for his offences, he has no history of directly assaultive behaviour towards children or adolescents, and he has been in custody for more than a year. There is a wide divide between the positions advanced by Crown and defence as to the appropriate global disposition in this case.

B. Background

[2] This is not Mr. Hutchings' first visit to a criminal court. In February of 2010 he pled guilty to a single count of possession of child pornography some four years earlier, in June 2006. Only a relatively small number of images were involved, the Crown had proceeded by way of summary conviction and Mr. Hutchings was the beneficiary of a very favourable pre-sentence report. On May 25, 2010, he was sentenced to four and half months in jail followed by three years of probation. Among other conditions, Mr. Hutchings' probation order prohibited him from:

• Using or possessing a computer absent software to monitor for the presence of child pornography;
• Accessing the Internet absent software to monitor for the presence of child pornography;
• Possessing, accessing or making available to others any child pornography or erotica;
• Possessing or accessing any images of children who are under or apparently under the age of 18 and who are naked or sexually portrayed;
• Utilizing or possessing any wiping or encryption software or device that could preclude forensic examination of his computer.

Within weeks of his release from custody, and in direct violation of his probationary conditions, Mr. Hutchings began to access and possess child pornography through the Internet. When finally arrested on May 5, 2011, Mr. Hutchings was in the process of accessing child pornography images on the Internet and in possession of several "thumb drives" containing many thousands of images and hundreds of videos of similar material, chiefly involving prepubescent boys.

[3] He was charged with a number of related offences and has been in custody for thirteen months pending the disposition of these matters. Following systemic delays for which he was not responsible, Mr. Hutchings (hereafter, the offender) pled guilty on January 19, 2012 to six counts spanning the period between March 30 and May 5, 2011: one count each of possession of child pornography and accessing child pornography, two counts of distributing child pornography, one count of failing to comply with his probation order by using or possessing a computer absent software designed to monitor for child pornography and, finally, a further count of failing to comply with his probation order by utilizing or possessing wiping or encryption software or other device that could preclude forensic examination of his computer. Sentencing was then adjourned to permit the preparation of a pre-sentence report.

[4] The Crown proceeded by indictment on this occasion. As a result, two of the child pornography offences to which the offender has pled guilty carry mandatory minimum sentences of 45 days imprisonment. The remaining two – those of distributing child pornography – are subject to mandatory minimum sentences of one year. The Crown seeks the equivalent of a penitentiary sentence in the range of four to five years. Defence counsel argues that a reformatory-length disposition of eight to twelve months, when added to his client's thirteen months of pre-sentence custody and when followed by a lengthy period of probation, adequately meets the goals of sentencing. Crown and defence counsel both provided me with helpful collections of Ontario sentencing authorities arising from child pornography prosecutions. The offender, of course, is still on probation and will be until August 2013 irrespective of any sentence I impose.

C. Evidence

(a) Introduction

[5] The evidence of the offender's conduct subsequent to his release from custody in mid-2010 is set out in an Agreed Statement of Fact. The nature and organization of the images seized by the police from the defendant were reviewed by one of the investigating officers in the course of her testimony. Approximately sixteen representative images were also screened and entered as an exhibit. The offender's antecedents and more immediate circumstances are described in considerable detail in two pre-sentence reports, one prepared for his sentencing hearing in 2010 and a second prepared for the current proceedings. In addition, a highly regarded forensic psychiatrist, Dr. Julian Gojer, assessed the offender. His report was also filed at this sentencing hearing. I began with a brief canvass of the offences.

(b) The Offences

[6] Within a month of his release on probation in August 2010, the offender created an online identity and a number of user accounts through which he traded child pornography images. He employed computers at Internet cafes to evade police detection. The offender lived with his parents in Orillia and his Internet cafe visits would frequently coincide with trips to Toronto during which he met with a social worker as directed by his probation officer. He did not advise his social worker during the course of his counseling sessions that he had resumed viewing child pornography, focusing, instead, on self-esteem issues.

[7] An undercover officer observed the offender accessing and trading child pornography on an online account on March 30, 2011. Similar observations followed on May 5, 2011. The offender was then traced to a business premise in Toronto where he was arrested at a rented computer. At the time he was carrying two USB or thumb drives (tiny digital storage devices) and had two others plugged into the computer that was linked to downloading child pornography websites. Further, the offender was using encryption software to thwart police detection. Once returned to the station, the offender provided the police with a fully inculpatory statement, his encryption codes and passwords, and access to his accounts to facilitate police undercover operations against other suspects.

[8] One of the thumb drives found on the offender at the time of his arrest contained no inculpatory material. The second contained 701 independent child pornography images and 57 video clips pertaining to the same subject. One of the thumb drives contained more than 26,000 different child pornography images and several hundred related video clips. The second held close to 35,000 unique child pornography images and about 150 video clips involving similar subject matter. Based on the investigator's testimony and the representative stills and videos entered as exhibits, it appears that the vast majority of the images were of the genital areas of prepubescent boys or of such youths engaged in the sexual fondling of themselves or each other. Occasionally an adult hand or penis can be observed. There are some images of pubescent children and a few particularly disturbing images of naked female toddlers being touched or penetrated in their vaginal and anal regions. Approximately 190 images of child bondage were located; none were included on the representative digital files entered as exhibits. The police witness testified that the magnitude of the offender's collection, as seized on his arrest, was exceeded by only a handful of those identified over the course of the approximately 200 child pornography investigations she has conducted over the past 5½ years.

(c) The Offender

[9] The offender was 43 years of age at the time of these offences. His only prior criminal conviction, as earlier noted, relates to a single count of possession of child pornography in May 2010 for which he was sentenced to 4½ months in custody followed by three years probation. As also noted, he has pled guilty to the offences that bring him before me and has been held in protective custody at the Don Jail since his arrest, some thirteen months in total.

[10] The offender was raised in a pro-social, middle-class home in Orillia. There is no family history of mental health issues, substance abuse or conflict with the criminal justice system. The offender's family remains supportive and his parents continue to offer him a place in their home upon his eventual release from custody.

[11] The offender was the youngest of five children. He was closest with his sister who was a few years his senior. She was murdered when the offender was only 14. His remaining siblings were by then no longer residing at the family home. Unsurprisingly, the loss of his sister and the circumstances surrounding that loss took a heavy toll on the offender's confidence, sexual identity and maturation. He recovered sufficiently to complete high school as an Ontario scholar and later secured a Bachelor of Fine Arts degree from York University. He worked for the following eight years, until 2000, as a musician on a cruise line. He then worked as web designer and joined a friend in developing on-line games and services. From 2003 until his first arrest in 2009, the offender was a new media specialist and educational program developer for an Ontario television network. His earlier offence led to the termination of this position and his further crimes have likely compromised any related career options.

[12] The offender does not use drugs and his consumption of alcohol, although sometimes excessive in the past, does not appear to be related to his offences. He has recognized musical, photographic and linguistic talents and was described in the pre-sentence report prepared for his 2010 sentencing hearing as "decent, genuine, sincere, forthcoming, eager, professional and confident". He was also open about his sexual disposition and his accumulation of child pornographic images to fuel his erotic fantasies. Those who had socialized with the offender over the years, including teachers, confirmed that he had never volunteered to assist children or otherwise endeavoured to insert himself in organizations or services that catered to children, such as schools, coaching or scouts. Other than a single, very dated and ultimately aborted instance that he candidly disclosed (and about which there would otherwise be no evidence), the offender has apparently never engaged in "grooming" behaviour.

[13] The offender seems eager to participate in both custodial and community-based treatment programs to learn the skills necessary to avoid relapse. He has also expressed a fresh commitment to changing his behaviour and a willingness to participate in group counseling and to take medication to address his problems. The offender recognizes, as set out in his pre-sentence report, that he has "wasted a lot of opportunities". However, he appears (at least to his probation officer), to have failed, thus far, to fully appreciate the nexus between his compulsion for child pornography and the harm suffered by children exploited to serve his and others' sexual appetite for such material. This reflects a troubling empathic deficit, particularly when combined with what the author of both pre-sentence reports characterizes as the offender's pattern of "minimization, justification and rationalization".

[14] Dr. Gojer's assessment suggests a greater degree of insight – at least more recently – on the part of the offender. In the fall of 2010 he succumbed, again, to his craving for child pornography. According to Dr. Gojer, the offender has come to recognize, if only retrospectively, that "his thinking was flawed and that he was creating excuses for himself to re-offend and continue to re-offend". Unlike the author of the pre-sentence report, Dr. Gojer discerns in the offender an appreciation that his pursuit of child pornography "perpetuates the abuse [of] children". The offender, he reports, "wants to make sure he does not do it again". This sentiment is echoed (sincerely, I find) in the offender's final comments to the Court. He apologized for the harm he had caused, repeated his desire for professional help, and volunteered that until his most recent arrest he had been "too afraid and ashamed to admit the extent of his problem".

[15] In Dr. Gojer's expert opinion, the offender presents as a man of average intelligence with intact cognitive functions and no major mental illness, personality disorder or psychopathic traits. By way of "Diagnosis", Dr. Gojer concludes:

Mr. Hutchings likely suffers from pedophilia. His shyness and low self esteem has made it difficult for him to relate to adults in a healthy sexual manner. His sexual interests have taken him to his erotic preference, i.e., young males, and this has manifested in his use of child pornography.

As to the offender's "Prognosis" and his own professional "Recommendations", Dr. Gojer reports:

Mr. Hutchings should have counseling to help him develop a relapse prevention plan. This should include counseling to help him identify and correct cognitive distortions he has about children and offending, improve his self-esteem and learn techniques to deal with substance abuse (alcohol).

If on probation and released, he can attend formal sex offender group counseling at the Centre for Addiction and Mental Health or at my office.

Dr. Gojer, it should be noted, has for many years operated a respected sexual offender-counseling program, one recommended by the offender's probation officer. He is also contracted with Ontario probation services to provide such counseling.

D. Analysis

[16] Sentencing is an individualized process, more craft than science. There is almost always a variety of dispositions that fits the particular circumstances of an offender and the offences he has committed. An appropriate sentence is one that observes the purposes, objectives and principles of sentencing, as set out in s. 718 and the provisions that follow in the Criminal Code and as supplemented by the common law. In the case, as here, of offences related to child pornography, the goals of denunciation and deterrence are of primary consideration. Others, however, including rehabilitation, must be assigned appropriate weight, as must the principles of totality, restoration and restraint and, of course, the fundamental principle of sentencing, that of proportionality to the gravity of the offence and the degree of the offender's responsibility. A number of aggravating and mitigating factors must also be considered in arriving at a proper sentence.

[17] It is the nature of the offences themselves that largely drive the severity of sentence in child pornography cases. The phenomenon is profoundly harmful. I can do no better than repeat the comments of now-Chief Justice McLachlin in R. v. Sharpe, 2001 SCC 2, 150 C.C.C. (3d) 321, at para. 158:

The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code, is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography erotizes the inferior social, economic and sexual status of children. It preys on pre-existing inequalities.

No party, of course, claims any redeeming quality for the sordid materials that ground this prosecution.

[18] The Criminal Code alone dictates a substantial sentence in the case at bar. The offences of distributing child pornography to which the offender has pled guilty each carry minimum sentences of one-year imprisonment. No challenge is here taken to the constitutionality of the mandatory minimum prescribed by Parliament. As said by Arbour J. in R. v. Morrissey, 2000 SCC 39, 148 C.C.C. (3d) 1, at para. 75, with respect to mandatory minimum sentences (albeit in the context of the penalties for firearms offences), such sentences,

… must act as an inflationary floor, setting a new minimum punishment applicable to the so-called "best" offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances.

In addition, the evolving jurisprudence in this area of the law reflects a tendency toward enhanced penalties. Blouin, J. commented in R. v. Brandridge, 2010 ONCJ 450, at para. 9, that there is "an emerging judicial trend focusing on the gravity of these types of offences".

[19] The offender's violations of his bail conditions are particularly aggravating and, in the circumstances of this case, argue strenuously for the imposition of consecutive terms. The nature of the offences, their swift recurrence following the offender's earlier and related conviction, the sophistication and conscious evasiveness with which they were committed and the nature and very large number of the images seized by the police are further considerations that buttress the Crown position that a penitentiary length disposition – that is, one well in excess of two years in this case – is appropriate. On the other hand, the defendant's amenability to custodial and post-custodial treatment, his otherwise normative and productive conduct, his immediate acceptance of responsibility, his sincere expressions of remorse and pleas for help, the lengthy duration and quality of his pre-sentence custody and recognition that a period of conditioned probation can only be attached to sentences of no greater length than two years all lend support to the defence view that a reformatory-length disposition, going forward, best meets the ends of justice.

[20] In R. v. Kwok, at para. 7, Molloy J. compiled a helpful compendium of aggravating and mitigating sentencing factors germane to child pornography cases. Reformatted for ease of reference (but otherwise unaltered), they read:

Generally speaking, any of the following are considered to be 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 merely collecting it by free downloads from the Internet.

Generally recognized mitigating factors include:

(i) the youthful age 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 counseling 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).

Molloy J.'s inventory has since been applied by a number of sentencing courts (see, by way of example only, R. v. Yau, 2011 ONSC 1009 and R. v. Lynch-Staunton, [2012] O.J. No. 313 (S.C.J.)) and referenced without negative qualification by the Court of Appeal: R. v. D.G.F., 2010 ONCA 27, 250 C.C.C. (3d) 291, at para. 15. It serves as a useful if inexhaustive guide to the factors that attract consideration and weight at this sentencing hearing and one to which I pay heed.

[21] The most egregious aggravating circumstances do not obtain in the matter before me. As said by the Court of Appeal in D.G.F., supra, at para. 21, the most "significant custodial sentences" are imposed "in cases that involved making child pornography and [hands-on] child sexual abuse" in such production – neither of which characterize the conduct at issue. However, the recent record for a similar offence and the failure to comply with related probation conditions intended to protect the public and advance rehabilitation are matters that attract profound concerns and that, to date, only rarely arise in the developing jurisprudence. The magnitude of the offender's collection of images is also disturbing, although the case law includes references to some personal archives that dwarf that described in this case. More important, in my view, are the nature of the images possessed and, almost certainly, exchanged by the offender. As earlier noted, most portray pre-pubescent males between the ages of ten and thirteen but, more distressing, are those involving very young children and the report of close to two hundred images of child bondage. There is no evidence that the offender purchased the child pornography he amassed or that he distributed these images for profit or (as distinguishes the most grievous offences in this category) that he manufactured the images in his possession or directly abused children in their production. Although diagnosed as "likely" pedophiliac, there is no evidence that he has, as put by Molloy J., "acted on his impulses in the past by assaulting children". This remains, however, a concern and one that must be addressed as part of any sentencing disposition.

[22] Apart from his obsession with child pornography, the offender appears of good character and, until his initial arrest, a productive member of the community. However, he is no longer a young man, nor has he thus far positively embraced opportunities to develop anti-relapse strategies. He immediately co-operated with the police, pled guilty and spent more than a year in remand custody under very difficult circumstances. He is, I accept, deeply remorseful and has, if only over the past year, developed some genuine insight into the nature of his problems and his likely fate if he fails to effectively remedy them. Fortunately, he continues to enjoy the support of his family (particularly his parents, whose patience he has undoubtedly tested) and has, through Dr. Gojer, a promising treatment plan.

[23] In the end, as in almost all cases, the offender will inevitably return to the community. The long-term security of that community in a case such as this ultimately depends on the offender's rehabilitation and his supervision and continuing treatment once released. Bearing in mind both the time the offender has already served and the protective value of a lengthy and closely monitored period of community supervision, a prospective penitentiary term is not required, in my view, to meet the ends of justice. Rather, a substantial reformatory length sentence followed by a protracted period of probation and supplementary ancillary orders constitutes a fit global sentence and one that, in all the circumstances, serves the goals of deterrence, denunciation and community safety while fostering the offender's rehabilitation.

[24] Applying the totality principle, along with those principles and considerations I have earlier invoked (including the oppressive nature of the offender's pre-sentencing custody), I conclude that an appropriate effective global sentence in this case is one equivalent to a penitentiary sentence of 36 months. Extending approximately 1.5 days of credit to each day of the offender's pre-sentence custody on the basis of lost remission (see s. 719 of the Code and R. v. Johnson, 2011 ONCJ 77, 268 C.C.C. (3d) 423), those 36 months are here reduced by 19 months. Accordingly, Mr. Hutchings is sentenced to a total of 17 months going forward from today's date. Of those 17 months, 14 months are assigned to each of the two distributing offences, to be served concurrently, six months to each of two additional child pornography offences (concurrent to each other and to the distributing offences), and three months, concurrent to each other but consecutive to the child pornography offences, to each of the two offences of failing to comply with probation conditions. In compliance with s. 719(3.3), the 13 months Mr. Hutchings spent in pre-trial custody as a result of the second offence of distributing child pornography (that dated May 5, 2011) is treated as the equivalent of 19 months towards a sentence of 33 months that would have been imposed but for that period of detention.

E. Sentencing Disposition

[25] Three-year terms of probation, concurrent to each other and to the probation order to which he is now subject, attach to each of the six custodial sentences imposed on Mr. Hutchings. Some conditions of these probation orders are identical to those prescribed in the offender's current probation order, a copy of which is to be attached to order I endorse. By way of additional probationary conditions, Mr. Hutchings is required to:

• reside at a place approved by his probation officer;
• seek and maintain employment; and
• attend for counseling with Dr. Julian Gojer, if feasible, and to sign such releases as may be necessary to permit his probation officer to monitor his attendance and progress in such program and any other therapeutic program to which he is directed.

He is also prohibited from:

• using any computer or other device capable of browsing or searching the Internet unless such use is part of a supervised therapeutic program or unless expressly authorized by his probation officer and equipped with software capable of monitoring and/or blocking child pornography;
• attending at any place a primary purpose of which is the sale, lease, rental or repair of computers or other digital devices capable of browsing or searching the Internet;
• associating or communicating, directly or indirectly, with any person under the age of 16 unless that person is a relative and the association or communication is authorized by a parent of the person under 16;
• leaving the Province of Ontario unless so authorized by his probation officer.

[26] By way of ancillary orders, Mr. Hutchings is required to provide a sample of his bodily substance for purposes of DNA analysis and archiving. Subject to any subsequent judicial variation or termination, Mr. Hutchings is also required to comply with the terms of the Sex Offender Information Registration Act (SOIRA) for the rest of his life. Further, he is prohibited, pursuant to s. 109 of the Criminal Code, from possessing any of the firearms, ammunition, explosives and other offensive devices listed in that provision for the rest of his life. In addition, and pursuant to s. 161 of the Code, he is absolutely prohibited for the twelve years commencing upon his release from imprisonment from attending any daycare centre, schoolground, playground or community centre and, unless accompanied by an adult relative aware of his convictions, from attending any public park. He is also prohibited from seeking or obtaining employment, whether remunerated or volunteer, that involves being in a position of trust or authority towards persons under the age of 16 years, and from using a computer system to communicate with a person under the age of 16 years unless that person is a relative and the communication is authorized by a parent of the person under 16.

[27] Importantly, I strongly recommend that Mr. Hutchings be positively considered for admission into an appropriate treatment program at OCI Brampton. Further, I direct that this recommendation be noted on his Warrant of Committal and that a copy of my Reasons for Sentence accompany that Warrant and are conveyed to the Provincial correctional authorities.

[28] Finally, in view of the offender's current circumstances, the victim fine surcharge is waived.

E. Conclusion

[29] Mr. Hutchings' effective carceral sentence is 36 months. In view of his extensive pre-trial detention, he is sentenced to a global disposition of 17 further months of incarceration, commencing today, followed by three years of probation. Ancillary orders intended to secure the protection of the public supplement this sentence.

Released on June 4, 2012

Justice Melvyn Green