Court File and Parties

Court File No.: 2811 998 Date: March 5, 2013

Ontario Court of Justice (Central East Region)

BETWEEN:

Her Majesty The Queen

D. Slessor, Counsel for the Crown

- and -

Kevin Walther

F. Fedorsen, Counsel for Mr. Walther J. Hawkins, Counsel for Mr. Walther

HEARD: January 31, 2013

Reasons for Sentence

BELLEFONTAINE, J:

Facts

[1] These are my reasons for sentence in the matter of Mr. Kevin Walther who has plead guilty to one count of luring a child by computer in April and May of 2012, contrary to s.172.1(1) of the Criminal Code of Canada.

[2] In summary, the admitted facts show Mr. Walther to have communicated with a police officer who he believed was a 14 year old girl on a number of occasions over a two-week period of time. During the course of the conversations, Mr. Walther asked the 14 year old girl if she would like to touch his penis, he exposed himself to her, masturbated to ejaculation, and arranged to meet with her. He attended an arranged meeting place but drove off when the girl was not immediately present. Mr. Walther states he realized that what he was doing was wrong and abandoned the intended meeting at the last moment. The Crown has not sought a hearing to disprove that position. A search of Mr. Walther's home on arrest found him to be in possession of five images of a child between 12 and 16 years of age posing naked in a fashion that would be child pornography.

Background

[3] Mr. Walther is 40 years of age and grew up in a stable and supportive family environment. He has no criminal record. Following high school he attended college for a Gas Fitters Certification Program and has been steadily employed or self employed. He has been married for 16 years and has children aged five and eight. Mr. Walther has suffered from low self-esteem and became emotionally and intimately estranged from his wife who is a successful career person. During a period of depression, he became involved in using internet chat groups primarily with adult females, but with at least one female child besides the 14 year old girl the officer pretended to be. He believes the pornography he was in possession of to be photos provided to him by another young female that he had chatted with. There is no history of substance abuse or violence in Mr. Walther's past.

[4] I have extensive reports from Dr. Gojer, an experienced Forensic Psychiatrist. While confirming the pedophilic nature of Mr. Walther's offence, he views Mr. Walther to be at low risk of re-offending given his emotional, and sexual reconnecting with his wife, and his ability to have a satisfying relationship with her. Mr. Walther's wife and extended family are supportive of him. Mr. Walther has been on house arrest for eleven months since he was charged with the offence. For the first nine months, it was a complete house arrest order which resulted in him giving up his employment. For the last two months, the house arrest terms have permitted him to attend for employment. Mr. Walther has been actively involved in group therapy and relapse prevention counseling over the course of the house arrest.

Applicable Law and Sentencing Range

[5] At the time of the offence, the available penalty, given the Crown's indictable election, is a period of imprisonment of ten years with no minimum penalty. I note this is an increase from an earlier five year maximum sentence that was in place at the time of some of the cases relied upon by the defence.

[6] The Crown submits a sentence of two years less one day is required given the steps taken by Mr. Walther to meet a young girl and the possession of child pornography. The defence submit that given the mitigating factors and the lengthy house arrest, a sentence of under one year would be appropriate.

[7] In determining an appropriate sentence Mr. Walther, I consider our general sentencing principles which require me to appropriately denounce the unlawful conduct and deter you and others from committing crimes in the future. As well, the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. To that end, we look for guidance from our Court of Appeal. The offence of Child Luring is a relatively new one and as a sentencing pattern developed for it, sentences of between one and two years in prison were being most commonly imposed for first offenders like yourself. Some suggested that a range of one to two years imprisonment was established for the offence. Our Court of Appeal subsequently considered the range of sentence for internet luring in Regina v. Woodward 2011 ONCA 610. The Court references Regina v. Folino and Regina v. El-Jamel and a number of earlier decisions. The Court questioned whether a range of one to two years in jail was settled in previous decisions and stated that such a range would need to be revised upwards given Parliament's doubling of the maximum punishment from five years to ten years. The Court went on to state that if evidence was lead to the pervasiveness of the problem, a range of sentence of three to five years for a first offender might well be warranted. The Court criticized cases that had granted a conditional sentence as not referring to or being in accord with the principles of Regina v. D.D. (2002), 163 C.C.C. (3d) 471 in which the Court of Appeal emphasized the need to protect vulnerable children from sexual predators by giving precedence to general deterrence and denunciation over other objectives of sentencing which include the need to consider the rehabilitation of individual offenders.

[8] More recently in Regina v. Dragos 2012 ONCA 538 the Court of Appeal reaffirmed that to the extent a one to two year range of sentence was established, the range needed to be revised upwards given the doubling of the maximum sentence from five to ten years.

[9] Further, although not binding on me for Mr. Walther's sentencing, the Crown notes that Parliament has recently enacted a minimum sentence of one year for this offence and urges that it be used as a measure of the level of incarceration required for denunciatory purposes. Mr. Walther, given our Court of Appeal's reaffirmation of Regina v. Woodward in Regina v. Dragos I feel obligated to raise the sentence in this matter above that of Regina v. Parr – an earlier decision of mine that Mr. Fedorsen has relied upon. At the time of Regina v. Parr, Regina v. Woodward could be interpreted as a tentative step towards an increase in the upper end of the sentencing range in the context of the internet luring being used to commit a horrific sexual assault on a 12 year old child. As a result of Regina v. Dragos however, an increase in the range of sentence, both at the upper and lower end, has to be acknowledged.

[10] These decisions, and Parliament's more recent imposing of a one year minimum sentence, reflects society's deep-rooted need to protect vulnerable children and denounce this conduct. As McMurtry J in Regina v. Folino stated:

"…The offence of child luring must be dealt with seriously by the Courts. The social policy underlying the enactment of this offence is clear. Many Canadian families have home computers with internet access. Children are frequent users of the internet. Children, as vulnerable members of our society, must be safe-guarded against predators who abuse the internet to lure children into situations where they can be sexually exploited and abused. In most circumstances involving the offence of child luring, the sentencing goals of denunciation and deterrence will require a sentence of institutional incarceration."

Mitigating Factors

[11] There are a number of mitigating factors in this matter which merit consideration. Significantly, there has been no real victim of the charge that Mr. Walther has plead to who has been physically or emotionally harmed by the offence. Mr. Walther has plead guilty at an early stage of the process, and the matter has been delayed only by virtue of the time required for his counseling and psychiatric reports to be prepared. He has been involved in intensive counseling and there are positive reports with respect to its effects on him. His early acceptance of responsibility is consistent with the immediate co-operation he gave to the police which supports his immediate recognition of the wrongfulness of this crime, which distinguishes it from many cases where the offender does not recognize the criminality of his conduct. Mr. Walther comes from a stable and supportive family upbringing, and has been a long-contributing member to the community with no previous record of criminal conduct. The offence can be seen as being out of character for him and occurred during an emotionally fragile period of time where he was suffering from depression as a result of the failing relationship with his spouse. His family remains supportive and notwithstanding the clearly pedophilic nature of the conduct, the best assessment of the situation is that he is at very low risk of re-offending. I accept that there is no need for incarceration for specific deterrence purposes given the extreme effects of the charge on him by virtue of the loss of employment income and the extreme embarrassment that he has suffered in the community by virtue of the charge. Jail will be counter-productive to any rehabilitative component of sentencing.

[12] Of great significance as a mitigating factor, which I am obligated to consider, is the house-arrest bail. See R. v. Downes (2006), 79 O.R. (3d) 321 and R. v. Dragos, 294 O.A.C.371. For nine of the eleven months where even employment was prohibited, it was more restrictive than most any conditional sentence. Even the last two months, where he has been employed, has resulted in a punitive element to his bail which is as restrictive as most conditional sentences. While no mathematical formula is appropriate for this mitigating factor, it has been in my view a very punitive sanction which affects not only specific deterrence but addresses at a very significant level general deterrence and denunciation. To the communities benefit Mr. Walther has used the time to participate in intensive counseling which has included relapse prevention counseling. The Crown has submitted that no reduction should be given for the restrictive bail as a result of it being a proposed or agreed-upon term from the outset, and was varied to allow employment upon request by the Crown. The Crown's argument is analogous to a defendant's obligation to take steps, when undue delay is occurring in proceedings to apply to vary bail terms that are causing undue prejudice. The bail terms do, however, have the approval of the presiding Justice and the punitive element of the bail term is a reality whether it is imposed and not appealed or accepted by a defendant. I consider the better analogy to be whether a sentence is served as a result of a guilty plea or imposed following a trial. I do not consider there to be an obligation on an accused to mitigate or reduce this punitive element in order to have it considered as an appropriate factor in determining an appropriate penalty at the sentencing stage. The willingness of an individual defendant to have a punitive bail imposed on them may, however, inform the level of punishment as it is subjectively experienced by that defendant. Accordingly, the willingness of a defendant to suffer punitive pre-sentence house arrest bail may affect the extent of the mitigation to be granted for it. In all events consideration of house arrest bail is required, and some mitigation likely recognized even if it is consensually entered into.

Aggravating Factors

[13] There are a number of aggravating features which also have to be considered. There were a significant number of contacts over a short number of weeks that show Mr. Walther to have been actively luring and grooming a 14 year old to have sex with him. His commitment to using the internet for the purposes of luring the child into a meeting is demonstrated by his arranging a meeting with her which could quickly have lead to a sexual assault on a child. While Mr. Walther is not to be punished for the luring contact with another child, this offence is not an isolated one given his admission that he had committed a similar crime with at least one other child, who he understood to be a 12 year old girl. He was also in possession of child pornography which is an offence which merits a significant penalty in its own right.

[14] While the absence of a real victim in this matter places this offence at the lower end of the appropriate range, in my view, the culpability associated with him taking steps to actively meet with the believed-to-be 14 year old and his possession of child pornography require an elevated sentence in this matter.

Sentence

[15] If you would stand please, Mr. Walther. I view this matter to have merited a sentence of 16 months, however to reflect the mitigation associated with the house arrest in this matter, the sentence will be one of 12 months in jail, to be followed by probation for a period of two years. The probation order will include many statutory terms and conditions including one that you keep the peace and be of good behavior, and others which I will direct the Court staff to explain to you before you leave the building today. Additionally you will have to report once per month or as often as required to a probation officer and you will reside at a place approved of by your probation officer, and you will attend and actively participate in any assessment and counseling that may be required of you by your probation officer to the satisfaction of your probation officer, which should include counseling for pedophilic behaviours. I have considered but will not include a term that you not communicate with children under age 18 given your daughters age.

You will be bound by an order under s.161 of the Criminal Code of Canada for a period of 20 years from today's date.

As well, you will comply with the Sex Offender Information Registration Act provisions of the Criminal Code for a period of 20 years.

[16] You will provide a sample of your bodily substances for DNA typing purposes and the computer that was seized in this matter will be forfeited to the Durham Regional Police Service for destruction purposes.

P.L. Bellefontaine Justice