Court File and Parties

Court File No.: Toronto Region

Ontario Court of Justice

Between:

Her Majesty the Queen

P. Kelly, for the Crown

— And —

Geoffrey Heffernan

V. Scaramuzza, for the accused

Heard: March 7, May 11, June 15, 2012

FELDMAN J.:

Background

[1] Geoffrey Heffernan is to be sentenced following his guilty plea to Possessing Child Pornography. The Crown has proceeded by Indictment. In Code s. 163.1(4), every person who possesses child pornography is liable to imprisonment for up to five years and to a minimum punishment of forty-five days.

[2] Counsel have submitted a joint Agreed Statement of Facts which reads as follows:

On August 24, 2010, the accused's roommate, Rose Salonia, was using his laptop computer. She came across a folder entitled, "Books". She opened the folder and found numerous files that contained pornographic images of children.

As a result, she confronted the accused's girlfriend, Ashley Calia, with the pornographic files. The next day, Ashley told her friend, Tanya Sperr, what had been discovered.

Ms. Calia and Ms. Sperr then confronted the accused. He told them that his computer had been "hacked" and that this was how the images likely got there, but that he was not responsible. At the time, the women were satisfied with the explanation and nothing more was immediately done.

However, about one week later, Ms. Sperr attended 43 Division and told investigators what she had seen the week before. She described seeing approximately 100-200 images inside a word document entitled, "Books".

At this time, the accused was out of province but told by his girlfriend that he had to come home without being provided an explanation. Upon his arrival, members of the Toronto Police Service Child Exploitation Section attended at the accused's address for further investigation having commenced an investigation earlier.

When confronted with what had been found, the accused ultimately provided a full confession, stating that he had at first stumbled across the child pornography through pop-ups and internet links and that, as he characterized it, was "dumb enough" to download it to his computer. He said further that over the months of July and early August 2010 he was accessing and downloading additional images from a well-known child pornography site.

He additionally advised police that he saved 70-100 child pornography files and placed them in the "Books" folder. He said he was saving them for a later date. He also admitted masturbating to the images in the files.

The accused's laptop was seized by the police and searched. Investigators found 300-500 images of child pornography. There were, in addition, numerous other images of nude children. These latter images are not categorized as child pornography as they lack the requisite focus on the genitalia.

The images of child pornography found include vaginal and anal penetration of females as young as 2 years with an adult male penis; digital penetration of young females; penetration of a 3-6 year old female with a sexual aid by an adult male wearing a mask to hide his identity; defecation by a 3-5 year old female in the immediate presence of a naked adult male; fellatio being performed on adult males by a female as young as two years; ejaculation on the face, buttocks and in the mouth of numerous female children.

The Offender

[3] Mr. Heffernan is 31 years old. He lives with his retired parents who are steadfast in their support of him. He recently found out he was adopted.

[4] The defendant has no criminal record. He has worked steadily in the security field for almost 6 years. Since being charged, he has been studying culinary arts on a part-time basis at a community college in order to develop a new career given the likelihood he will lose his employment. The head of security at his firm described him as a trustworthy and reliable employee with a good moral character and pleasant nature.

[5] Mr. Heffernan has had two serious relationships with women, the last of which ended following his arrest. He has also lost most of his friends. He indicates he feels the burden of the disgrace he has brought on himself and his family. He expresses remorse for his crime and the harm it brings to children. With ongoing counselling and the support of his parents he says he is determined to deal with his issues and start over.

[6] Grant Heffernan, the defendant's father believes his son would never hurt a child. His mother, Jane Heffernan, read a letter into the record in which she implored the court to have compassion for her son. She says he has spent over a year being alone in shame and remorse while invested in intensive therapy, having fear of being near a school, functioning without use of a computer or cell phone and knowing he will lose his job.

Medical Evidence

Counselling with Dr. Gojer

[7] Mr. Heffernan was assessed by Dr. Julian Gojer, a forensic psychiatrist with expertise in sexual offences. He has been in group therapy with Dr. Gojer for over a year and is "participating well". He is also working with David Feder, a social worker, for individual counselling.

[8] He is currently on anti-depressant medication. Dr. Gojer believes the defendant has carried depression and low self-esteem for many years and makes reference in his report to acts of self-harm by Mr. Heffernan during his teen years and more recent thoughts of suicide.

[9] In erotic preference testing, the defendant "showed a robust response to sexual activity towards adult females". No pedophilic responses were noted on the test.

[10] In his diagnosis, Dr. Gojer was of the view that while the defendant's behaviour was indicative of pedophilic interest in female children, it was limited to fantasy and imagery. He reported that Mr. Heffernan is aroused to adult females, which is a positive finding in terms of treatment strategies. He did not make a formal diagnosis of pedophilia.

[11] In his prognosis, Dr. Gojer reported that the defendant's "accessing and use of child pornography indicates some pedophilic interest in female children, solely at a fantasy level. He has no hands-on offending involving children and has been able to relate sexually to adult females. His primary erotic interest appears to be in adult females and any interest in children up to this time was limited to fantasy and imagery".

[12] Dr. Gojer concluded that the defendant presents as being at low risk to re-offend and believes he is keen to address his offending in treatment. He believes Mr. Heffernan will do well in counselling.

[13] In an updated report, Dr. Gojer wrote that although the defendant's history is consistent with an individual who is likely attracted to adult females, the fact that he has viewed child pornography and looked at some pictures of children to aid in masturbation indicates some pedophilic attraction and requires treatment.

[14] Following evaluation and testing, Dr. Gojer concluded that the defendant was not remotely close to being defined as a psychopath and was at low risk to offend against children. He finds Mr. Heffernan pro-social in attitude and willing to continue participating in treatment. Dr. Gojer is of the view that even if his risk is low, the nature of the charge requires that the defendant be monitored when in the presence of children.

Counselling with David Feder

[15] The defendant has been involved in individual therapy with Mr. Feder since December 2, 2010. Mr. Feder is of the view that Mr. Heffernan has gained important insights and made significant progress. He believes the defendant understands the harm he has caused and that his remorse is profound and sincere. He is encouraged that Mr. Heffernan is committed to his therapy.

[16] Mr. Feder says the defendant's history strongly suggests he has suffered from depression for most of his life, one that has been characterized by times when he has inflicted harm upon himself either physically or through various addictive behaviours. He has burned himself or succumbed to excessive consumption of alcohol and adult pornography and more recently to child pornography.

[17] It appears to Mr. Feder that the defendant has gained new coping strategies and begun to take productive steps towards improving both how he feels about himself and the quality of his life and relationships. He hopes that given Mr. Heffernan's progress in therapy he can continue to participate without an extended interruption.

Positions of the Parties

[18] Mr. Kelly, for the prosecution, acknowledges the mitigating factors that are present in this case, including the defendant's early guilty plea, his demonstration of remorse and his participation in counselling. At the same time, he submits that the quantity and nature of the images and the relatively prolonged period during which Mr. Heffernan actively sought out and acquired so many of them requires, on the authorities, a sentence in the range of 6-9 months imprisonment. He asks that this be followed by a probationary period of 3 years to monitor the accused and encourage his rehabilitation.

[19] Mr. Scaramuzza, for the accused, points out that Mr. Heffernan's collection of images was not large, there is no suggestion of other offences and no evidence permitting the inference of potential future harm to children. He says that there is an absence of aggravating features that in other cases justified a sentence in the six month range. He refers to the defendant's plea of guilt, age, insight, remorse and rehabilitative potential as important factors in mitigation. He submits that these circumstances support a sentence in the intermittent range.

The Authorities

[20] It is clear from the authorities that possession of child pornography is viewed as a morally reprehensible crime that must be severely sanctioned for the protection of society and its most vulnerable members. It follows that those in possession at the entry level need be deterred in order to diminish the market for this repugnant material and in turn to curb the production side: R. v. Kwok.

[21] Justice Henderson elaborated on this theme in R. v. Bock, 2010 ONSC 3117. There, at para. 30, he highlighted the inherent evil at the root of all child pornography in the "hands-on sexual abuse and sexual exploitation of children" by those who produce it. He explained that even simple possession is such a serious offence because it is the possessors who "encourage the sexual abuse of children and encourage the recording of this abuse by providing an audience or a market for those who produce child pornography". He expressed the hope that if the court can deter or reduce the market for child pornography, it may in turn reduce the sexual abuse of children. It is aggravating that possession drives the market for child pornography, see R. v. Stroempl; R. v. Sharp, 2001 SCC 2; R. v. Kwok, supra.

[22] From this, the same authorities direct that while rehabilitation of the offender remains an important consideration the paramount goals of sentencing for this offence must be denunciation and general deterrence: see also R. v. E.O.; R. v. Brunton, [2011] O.J. No. 323 (Ont. S.C.); R. v. Dumais, 2011 ONSC 276; R. v. Yau, 2011 ONSC 1009.

[23] In the context of these principles, sentencing requires an individualized approach that takes account of the circumstances of the offence and the offender. In Kwok at para 7, Justice Molloy provides a helpful template of aggravating and mitigating factors to weigh in the analysis.

[24] Aggravating features include: a criminal record for similar or related offences; whether there was production or distribution of the pornography; the size of the collection; the nature of it, including the age of the children and the violence and depravity depicted; the extent to which the offender is seen as a danger to children; and whether the offender has contributed to the victimization of children for profit by purchasing the pornography or merely collected it by free internet downloads.

[25] Mitigating factors include: the youthful age of the offender; his otherwise good character; the extent to which the offender has shown insight into his problem; whether he has shown genuine remorse; whether the offender is willing to submit to treatment and counselling or has already undertaken such treatment; the existence of a guilty plea; and the extent to which the offender has already suffered for his crime.

[26] A review of the numerous authorities submitted indicate a general sentencing range of six to eighteen months for possession, but include as well sentences in the intermittent range. In this regard, I view the phrase 'range of sentence' as "a descriptive term used to identify the range of sentences previously imposed in other similar cases as a check to ensure that the sentence imposed in the case under consideration is not unduly harsh or lenient when judged against what has been done in the past": R. v. Johnston, 2012 (88 C.R. (6th) 404) (Nfld. and Lab. C.A.). The phrase merely "reflects individual cases, but does not govern them" (Clayton Ruby, Sentencing, 7th ed. (Markham, ON: LexisNexis, 2008 at p. 753), referred to in Johnston, supra.

[27] It is also trite to say that each case is different and that the result is subject to a principled approach to weighing circumstances personal to each offender in the course of applying often competing notions of punishment, deterrence and rehabilitation in the context of protecting the public in both the near and long term. This is a difficult but human process.

[28] I approach sentencing in this case not bound by the dispositions in other cases but open to being persuaded by the analyses in those decisions where the circumstances are comparable. In that regard, I am mindful, in particular, that the nature and extent of the child pornography is a core aggravating factor: R. v. Kwok, supra; R. v. Dumais, supra; and that as set out in Code s. 718.2(b), the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[29] In Dumais, the 36 year old accused was found in possession of 170 images and 44 movies containing child pornography. He had three university degrees and was a productive member of society.

[30] The defendant was motivated by curiosity. He was not diagnosed as a pedophile and continued to attend the Sexual Behaviour Clinic at the Royal Ottawa Hospital. The court felt he would not re-offend. He suffered serious personal repercussions, including loss of his career as a teacher, as well as loss of his home, friends and self-esteem, although he had the support of his family and girlfriend. The court felt his rehabilitation had already been accomplished.

[31] Ratushny J. found the nature of the offence to be aggravating in that the images depicted "horrible violence committed against innocent children by depraved and anonymous individuals…" and by viewing the images, the accused was participating in the re-victimization of the children that encouraged a market for this crime.

[32] She was of the view that the enormity of the crime required more punitive consequences so as to strongly denounce the offence and deter others. Using a starting point of 6 months for cases with similar circumstances, the court imposed a sentence of 9 months. In determining the appropriate disposition, I would prefer to consider the range of sentence as a check on disparate sentences.

[33] In R. v. Yau, 2011 ONSC 1009, the 56 year old married accused was found in possession of 296 pictures, one video clip and 19 CDs depicting images of child pornography. MacDonnell J. referred to the morally reprehensible nature of the crime, its role in fueling production of this material and the need to deter others. Of significance, he observed that the defendant had not exhibited any remorse, inferentially indicating lack of insight and potential future risk. He sentenced Mr. Yau to 10 months.

[34] Justice Lafrance-Cardinal was more restrained in his emphasis on denunciation and deterrence in R. v. Brunton, [2011] O.J. No. 32, supra, where he sentenced the accused to 6 months for possession of a very large collection of 4,084 images and 7 videos. The 25 year old defendant had an aerospace engineering degree, had no social skills and suffered from Asperger's Syndrome and pedophilia. He had never had a sexual relationship and sought sexual gratification from viewing child pornography.

[35] Although Mr. Brunton demonstrated little insight into the harm being done to the children portrayed in the images and videos, his treating psychiatrist was optimistic that continuing therapy, treatment and counselling may result in him no longer having symptoms of pedophilia. The court was of the view that the defendant's chances of rehabilitation were very good.

[36] In light of this progress, Justice Lafrance-Cardinal sought to encourage the accused's continuing rehabilitation and might have been open to an intermittent sentence but for the disturbing nature and extent of the collection.

[37] Other courts have struck a similar balance in the exercise of their judicial discretion in sentencing individual accused while giving primacy to denunciation and deterrence of the offence. In R. v. Schneider, 2008 ONCJ 250, the accused pleaded guilty to possession of 689 videos and 85 images of child pornography. Significantly aggravating factors included the size of the collection; its brutality, including bestiality; a prior conviction for making child pornography; and the offender's lack of insight into his problem. He was cooperative, supported his family and was amenable to counselling and had no history of violence. He suffered from depression and stress. Wong J. imposed a sentence of 6 months.

[38] In R. v. Kostas, [2008] O.J. No. 1856 (Ont. C.J.), the 18 year old accused, a self-admitted pedophile, had amassed a collection of child pornography involving "extreme abuse" of children that contained 100 images, 50 videos, a scrapbook, compact discs and personal writings that included the exhibition of degrading and exploitative acts. He was co-operative with the police and extremely remorseful. He had become fully engaged in counselling. He had strong family support and had not committed a "hands-on" sexual offence. A forensic psychiatrist considered him, although sexually deviant, at low risk to re-offend.

[39] Acknowledging that denunciation and deterrence were the primary factors, Justice Hearn considered rehabilitation to be in play given the defendant's insight and remedial initiatives. Weighing the aggravating and mitigating factors, he sentenced the accused to an intermittent sentence of 90 days.

[40] In R. v. L.W., 2008 BCPC 281, the police found 26,000 images and 700 videos on the accused's computer that exhibited sexual assaults of children and explicit erotic depictions. The defendant was 37 years old but not active sexually. His pre-sentence report was positive and he had gained insight into the harm caused children by this sexual exploitation. He had no record, a supportive family, demonstrated remorse and was considered at low risk to re-offend. He was sentenced to 60 days to be served intermittently.

[41] In R. v. Lamb, 2011 BCSC 349, the 28 year old accused was found in possession of 6 videos, 2 still images and 20 stories in text files all depicting elements of child pornography. He admitted to a deviant interest in underage females but was forensically assessed as being at low risk for sexual recidivism. He was involved in ongoing treatment. Giving emphasis to denunciation and deterrence, the court imposed a sentence of 45 days.

Circumstances of the Offender

[42] Mr. Heffernan downloaded his collection of at least 300 unlawful images over a two month period, images that are vile and harmful to children. He was fully co-operative with the police.

[43] The defendant has the steadfast support of his parents with whom he resides. In heartfelt comments, his mother described the punishing impact of the charges on her son over the course of the past year, his commitment to therapy and his determination to start over.

[44] Mr. Heffernan works full time in security. He is described by his employer as trustworthy and reliable. He will lose his job. In anticipation of this pending change, to his credit, he has been enrolled part-time at a community college studying culinary arts. In addition to the loss of his girlfriend, he has lost most of his friends.

[45] The defendant has been in group counselling for over a year with Dr. Gojer, and in intensive individual counselling with David Feder, an experienced social worker, since December 2, 2010. It can be inferred Mr. Heffernan is committed to therapy and its continuation.

[46] Dr. Gojer's report is encouraging. As noted earlier, he says Mr. Heffernan is "participating well" in therapy and is "keen to address his offending". He believes he will do well in counselling. While the defendant has pedophilic interests which require management and monitoring, those predilections are limited to fantasy and imagery. By contrast, erotic preference testing indicated he had a "robust response to sexual activity towards adult females". Importantly, Dr. Gojer finds the accused pro-social in attitude and at low risk to re-offend.

[47] Mr. Feder reports that the defendant has gained important insights and made significant progress. Understanding the harm he has caused, Mr. Feder believes the accused's remorse is profound and sincere. He has gained new coping strategies to improve the quality of his life and relationships. The prognosis is encouraging.

Disposition

[48] In the context of comparable authority, the extent of the accused's collection of images is moderate in size. The content is troubling. None of the other aggravating factors discussed in Kwok apply.

[49] There is much that is mitigating in the defendant's circumstances that portend well and lend force to the ultimate principle of protecting the public. Those extensive mitigating factors have been set out in these reasons.

[50] In this regard, Mr. Heffernan's involvement with possession of child pornography was short-lived. He is remorseful, has insight, is committed to continuing therapy and counselling and has the support of his family. He is determined to remain a productive member of the community.

[51] The paramount sentencing principles that the offence be denounced and others deterred require that Mr. Heffernan be incarcerated. It is my view that the weighing of the aggravating and mitigating factors present in this case in line with the range of sentences imposed in comparable circumstances when considered together with this offender's personal circumstances supports a sentence at the lower end of the range.

[52] In the circumstances of this case and this offender, the public protection interest will be best served by a custodial term that permits Mr. Heffernan to continue his employment, education and intensive counselling uninterrupted and, as in Brunton, encourage his continuing rehabilitation.

[53] Mr. Heffernan will be sentenced to 90 days to be served intermittently. In addition, he will be placed on probation for 3 years, the terms of which will be discussed with counsel, but will include ancillary orders pursuant to Code ss. 161, 164, 487.051 and 490.012. There will, as well, be a forfeiture order in relation to the computer hard drives and electronic media seized from the defendant's residence.

Released: June 15, 2012

Signed: "Justice L. Feldman"