WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(3) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(3), read as follows:

486.4 (3) Child pornography. — In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Cayuga - 1111-998-11-505-00

Date: 2012-11-15

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Richard Andrew Young

Before: Justice D.A. Harris

Heard on: May 30, 2012 and July 25, 2012

Reasons for Sentence delivered on: November 15, 2012

Counsel

For the Crown: A. Paparella and J. Ayre

For the Accused, Richard Andrew Young: J. Manishen

Reasons for Sentence

HARRIS J.:

Introduction

[1] Richard Young has entered a guilty plea to one count of possessing child pornography and one count of careless storage of ammunition. Crown counsel elected to proceed summarily with respect to both charges.

[2] Mr. Young is before me today to be sentenced.

[3] Crown counsel suggested that the appropriate sentence would be imprisonment for four to six months. This would be followed by probation for three years.

[4] In addition, he proposed that I make the following ancillary orders:

1. a DNA order;
2. forfeiture orders for the computer and the media and the ammunition seized;
3. an order compelling Mr. Young to comply with the Sex Offender Information Registration Act for 10 years;
4. an order pursuant to s. 161 of the Criminal Code, limiting Mr. Young's access to children under the age of 16 years; and
5. a firearms prohibition order pursuant to s. 110 of the Criminal Code.

[5] Counsel for Mr. Young suggested that the appropriate sentence would be imprisonment for 90 days, to be served intermittently.

[6] He agreed that this should be followed by probation, and that the ancillary orders would be appropriate subject to certain exceptions with respect to s. 161 and with respect to any forfeiture order.

[7] My task then is to determine the appropriate sentence here.

The Law

[8] I have had to address this issue on a number of previous occasions. Rather than repeat everything that I have said in those cases, I will limit myself to the following observations.

[9] It is universally accepted that simple possession of child pornography is a serious offence. By its very definition, child pornography is created by recording the sexual abuse and sexual exploitation of children. These children are victimized for the first time when the pornography is created. They are re-victimized time and time again whenever someone views those images.

[10] This is occurring more frequently than in the past. The advent of digital cameras and the development of the Internet have made more child pornography available to more people, all at the push of a few buttons or keys on their computers, and this is all available in the comfort and safety of the offender's own home.

[11] With greater sophistication on the part of law enforcement officials, more of these offenders are being apprehended and, hence, the number of child pornography cases coming before the courts is increasing at a horrendous rate.

[12] I note the comments of Justice De Filippis at paragraph 6 in R. v. Strohmeier, 2007 ONCJ 141 where he said, "... there is a link between images of child pornography and inhibitions about the sexual abuse of children."

[13] Justice Molloy of the Ontario Superior Court of Justice stated at paragraph 49 of her reasons in R. v. Kwok that:

Collectors of child pornography seek to distance themselves from the direct physical and emotional harm caused to children. However, the collectors of this filth are a vital part of the evil menace it represents and bear responsibility for its malignant growth right along with its creators.

[14] She goes on to say in paragraphs 50 and 52 that the existence of this ready and eager consumer base could only be seen as an incitement to, "[those] ... depraved individuals who ... obviously get some kind of extra "kick" out of photographing and videotaping these atrocities and having other people look at them."

[15] She suggests that one way to deter would-be pornographers would be, "... by deterring those who are interested in acquiring the pornography."

[16] In light of this it should come as no surprise that courts have consistently held that the primary focus for sentencing in cases of simply possessing child pornography must be denunciation and general deterrence. The Criminal Code amendments providing for minimum jail sentences reinforce this sentiment.

[17] The minimum sentence for possessing child pornography is imprisonment for 14 days if prosecuted summarily. The maximum sentence is imprisonment for 18 months.

The Offences

[18] The facts in this case are that police officials became aware that Mr. Young, using file sharing software on his personal computer had possibly uploaded to "the cloud" 17 images that clearly fit the definition of child pornography. The "cloud" is a service available to computer users. It enables them to store files online and to access them from any web browser.

[19] This led the police to obtain a search warrant, which was executed. Pursuant to the warrant, they seized Mr. Young's computer and other storage devices.

[20] The police also found a part box of .303 British rounds of ammunition. These were live rounds capable of being fired. The box was located on a table beside the furnace. The box was dusty, suggesting that it had been there for some time.

[21] Subsequent examination of the computer revealed the presence of the original 17 images that qualified as child pornography. There was more however. There were 1,780 unique images amongst a total of 13,959 still images. Amongst these, 1,115 were accessible and 12,844 were inaccessible. In addition, there were 210 unique movies amongst a total of 280 movies. Amongst these, 135 were accessible and 145 were inaccessible.

[22] All images and movies depicted young prepubescent females posing with the main focus being the vaginal or anal area or a penis. In some images and movies, young children are engaged in explicit sexual acts with adult males and/or other children. These children range in age from 2 years to 12 years of age.

[23] Clearly, the offence committed by Mr. Young is a serious one that cries out for a sentence that will make it clear to everyone that such crimes will not be tolerated in our community.

[24] Having said that, I must not lose sight of the other principles of sentencing, including rehabilitation. I must not ignore the circumstances that mitigate against what might otherwise be an even longer sentence.

Background of Mr. Young

[25] In Kwok, supra, Justice Molloy lists a number of generally recognized mitigating factors, including:

1. the youthful age of an offender;
2. the otherwise good character of an offender;
3. the extent to which the offender has shown insight into his problem;
4. whether he has demonstrated genuine remorse;
5. whether he is willing to submit to treatment and counselling or has already undertaken such treatment;
6. the existence of a guilty plea; and,
7. the extent to which the offender has already suffered for his crime, for example in his family, career or community.

[26] I find that many of these factors are equally applicable in this case.

[27] I have been provided with the following information about Mr. Young.

[28] He is 49 years old.

[29] He graduated from high school and subsequently completed an electrical apprenticeship. He has been employed with the family electrical business for 20 years. He is considered to be an essential asset to the business.

[30] He has been with his wife Sandra since they were 19 years old. They have an 11-year-old daughter and a 7-year-old son.

[31] His wife continues to stand by him.

[32] The daughter suffered neonatal seizures and a stroke. The result is that she has cognitive issues, and processing issues and is language impaired. She suffers from anxiety. More particularly she suffers from separation anxiety with both parents. According to her mother, her anxiety levels went up following her father being removed from the family home. She returned to her normal state after he returned. Dr. Robyn Westmacott, a neuropsychologist at The Hospital for Sick Children wrote that "her father's presence is central to [her] mental health".

[33] Mr. Young told the author of the Pre-Sentence Report that the dynamic of his relationship with his wife changed following the birth of their daughter. "He started to turn to porn for sexual gratification while still maintaining a sexual relationship with his wife."

[34] Apparently this expanded to include child pornography.

[35] After being charged, he began to see a counsellor, Mr. Paul Ricketts. They have met on very many occasions. According to Mr. Ricketts, "Mr. Young has been diligent and compliant" in his efforts to deal with his "sexual addiction". He "has attained a greater awareness of his sexual addiction and how to manage it".

[36] In addition to seeing Mr. Ricketts, Mr. Young has also been attending the Sex Addicts Anonymous group. This is a 12-step program similar to AA or NA.

[37] Mr. Ricketts also referred Mr. Young to Alan Kaine for a phallometric assessment. The first assessment was inconclusive but a second one "corroborated Mr. Young's sexual preference to the adult female category and the test was not conclusive of pedophilia". Mr. Young has consistently insisted that he has no sexual interest in children.

[38] Mr. Ricketts testified before me and stated that the therapeutic process will be a lengthy one for Mr. Young.

[39] So Mr. Young has begun what I consider to be meaningful counselling and he is entitled to some credit, on the basis that he has shown some insight into his problem and started to do something about it.

[40] He has demonstrated genuine remorse, both in the comments he made to the therapists, to the court and through his guilty plea.

[41] I am taking his guilty plea into account as a mitigating factor.

[42] I will give similar effect to the fact that he has already suffered for his crime, in that he has lost status in the community. He has in fact fallen a long way in that regard. He lives in a small town. The local newspaper published the fact that he had been charged. The case became somewhat notorious.

[43] Many in the community continue to support him however. I was presented with 35 reference letters. These came from family members, friends, the pastor and other members of his church and others in the community. All speak highly of the man even as they express their revulsion for the crime he has committed.

[44] I am aware that he has no prior criminal record and that up until now, he appeared to be an otherwise upstanding man.

Analysis

[45] If I were to consider only the offence committed by Mr. Young, and not give any consideration to who he is and what he has done to rehabilitate himself, I would consider the Crown position to be too lenient.

[46] The number of child pornography cases is growing to such an extent that it is like a plague that needs to be stamped out.

[47] As I said before, however, I must also take into account Mr. Young's personal circumstances.

[48] He is an otherwise upstanding citizen who has been brought down in the eyes of his community as a result of his wrongdoing.

[49] He is a loving husband and father and a long jail term will hurt his wife and his children, especially his daughter, almost as much as it will hurt him. I am mindful of the fact that Mr. Young is fully aware of the pain that he has caused his loved ones already and of how his actions might well have even greater repercussions for them. I believe that this too has had a significant impact on Mr. Young.

[50] He has taken steps to gain insight into his problem, and to ensure that he will not reoffend. He is now aware of the harm that he has caused to the children captured for all time in the pornographic images in his collection.

[51] Having considered all of the above, I find that this is an appropriate case for a sentence that I might well consider to be overly lenient under other circumstances. I find that an intermittent sentence of 90 days will suffice here. I intend however to structure this so that it runs for an extended period of time. To be more precise, I estimate that it will take approximately 30 weeks for Mr. Young to complete the intermittent sentence in the way that I have structured it. I also intend to place severe restrictions that pretty well qualify as house arrest, on Mr. Young throughout that period.

[52] It is my intention that for more next seven months, give or take a few days, Mr. Young will be given regular reminders of the seriousness of his crime and the consequences that flow from it.

Sentence

[53] With respect to the charge of possessing child pornography, I sentence Mr. Young to imprisonment for 90 days, to be served on an intermittent basis.

[54] He will be taken into custody today for processing and then released. He will then surrender himself into custody at the jail at 7:00 a.m. on Saturday, November 17, 2012 and remain in custody until 7:00 p.m. on Sunday, November 18, 2012 and thereafter between each subsequent Saturday at 7:00 a.m. until the following Sunday at 7:00 p.m. until the sentence is completed.

[55] He will be placed on probation for three years, commencing today.

[56] The terms of the probation will require that Mr. Young:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

4. report to a probation officer within two working days and thereafter when required by the probation officer, and in the manner directed by the probation officer;

5. remain within Ontario unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;

6. attend for and actively participate in, to the satisfaction of his probation officer, any assessment, treatment or counselling as required by his probation officer, including but not restricted to counselling with Paul Ricketts or any sex offender specific therapy such as the Sexual Offender Treatment Program involving relapse treatment at the Centre for Addiction and Mental Health in Toronto, and he will sign whatever consents or releases that may be required by his probation officer to monitor and verify compliance with said assessment, treatment or counselling, and provide written proof of completion of said assessment, treatment or counselling to his probation officer;

7. not use a computer system within the meaning of s. 342.1(2) of the Criminal Code, or any other device capable of connecting to the Internet;

8. not possess or access child or adult pornography;

9. not possess or access any images of children who are, depicted to be or appear to be under the age of 18 years who are naked or who are portrayed in a sexual manner;

10. for the duration of the intermittent sentence, be in his place of residence daily at all times except for serving his intermittent sentence of imprisonment or for reporting to his probation officer, or for purposes of employment that has been confirmed by his probation officer, or for attending any assessment, treatment or counselling as required by his probation officer, or for the purpose of attending Sex Addicts Anonymous group meetings, or when accompanied by his wife Sandra Young, or with the written permission of his probation officer;

11. appear at the jail on time and in a sober condition;

12. not apply for or accept admission into any temporary absence program at the jail.

[57] I also make the following four ancillary orders.

[58] This is a primary designated offence and I make an order pursuant to s. 487.051 of the Criminal Code, authorizing the taking from Mr. Young of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

[59] I am not satisfied that Mr. Young has established that if an order were made, the impact on him including on his privacy or liberty would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act. Accordingly, I make an order pursuant to s. 490.012 of the Criminal Code, that Mr. Young comply with the provisions of the Sex Offender Information Registration Act for a period of 10 years.

[60] I am making an order pursuant to s. 161 of the Criminal Code, prohibiting Mr. Young for the next 10 years from:

1. attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre, except when in the immediate company of his wife Sandra Young for the purpose of attending events or activities involving one or more of their children;

2. seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years; or,

3. using a computer system within the meaning of s. 342.1(2) for the purpose of communicating with a person under the age of 16 years other than his children.

[61] I make an order pursuant to s. 164.2(1) of the Criminal Code, directing that the property seized by the police, including any computer, hard drive, CDs, or other media shall be forfeited to Her Majesty and disposed of as the Attorney General directs. Should the appropriate authorities choose to, they may, but are not required to preserve and return to Mr. Young copies of data that was lawfully possessed by Mr. Young, upon payment by him of the reasonable costs of preserving such data.

[62] With respect to the charge of careless storage of ammunition, I am imposing a fine of $500. I am giving Mr. Young six months in which to pay that fine and the surcharges for both offences.

[63] Also with respect to the charge of careless storage of ammunition, I am making an order pursuant to s. 110 of the Criminal Code and for the next 10 years, prohibit Mr. Young from owning, possessing or carrying any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.

[64] Finally, I make an order directing that the ammunition seized by the police shall be forfeited to Her Majesty and disposed of as the Attorney General directs.

Released: November 15, 2012

Signed:

Justice D.A. Harris