Court File and Parties

Court File No.: St. Catharines - 2111-998-12-S4316-00

Date: 2013-09-24

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Bobby Terry Mathieson

Before: Justice D.A. Harris

Heard: April 30, 2013 and August 20, 2013

Reasons for Sentence: September 24, 2013

Counsel:

R. Monette for the Crown

M. Shea for the Defendant, Bobby Mathieson

Reasons for Sentence

HARRIS J.:

Introduction

[1] Bobby Terry Mathieson has entered guilty pleas to one count of possessing child pornography and one count of printing child pornography and one count of breaching his probation. Crown counsel elected to proceed by indictment with respect to all charges.

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

[3] Crown counsel suggested that the appropriate global sentence would be imprisonment for four years less pre-sentence custody credited on a 1:1 basis.

[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 seized;
3. an order compelling Mr. Mathieson to comply with the Sex Offender Information Registration Act for life; and
4. an order pursuant to s. 161 of the Criminal Code, limiting Mr. Mathieson's access to children under the age of 16 years.

[5] Counsel for Mr. Mathieson suggested that the appropriate sentence would be one of time served, being 334 days, credited as one year plus imprisonment for a further two years followed by probation for three years. He agreed that the ancillary orders would be appropriate.

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

The Law

[7] I have had to address this issue with respect to child pornography cases on a number of previous occasions. Rather than repeat everything that I have said in those cases, I will limit myself to adopting those reasons and to making the following observations.

[8] 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.

[9] 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.

[10] 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.

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

[12] Justice Molloy of the Ontario Superior Court of Justice stated at para. 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.

[13] She goes on to say in paras. 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."

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

[15] In light of all 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. The same principles are even more applicable in cases of printing child pornography while on probation for similar offences.

[16] The minimum sentence for possessing child pornography is imprisonment for 45 days if prosecuted by indictment. The maximum sentence is imprisonment for five years.

[17] The minimum sentence for printing child pornography is imprisonment for one year if prosecuted by indictment. The maximum sentence is imprisonment for ten years.

[18] There is no minimum sentence for breach of probation. The maximum sentence is imprisonment for two years if prosecuted by indictment.

The Offences

[19] The facts in this case are that on September 23, 2012, Mr. Mathieson went to a photo store in St. Catharines where he used their machine to print 56 photos from digital images files. A store employee saw that these included child pornography and a self portrait and called the police.

[20] The police obtained and executed a search warrant for Mr. Mathieson's residence. They found more hard copy photographs that qualified as child pornography, digital storage devices and two video game consoles that were capable of accessing the Internet.

[21] Mr. Mathieson was on probation at the time. He was to keep the peace and be of good behaviour. He was not to possess any digital storage devices.

[22] He had been convicted of one count of possessing child pornography and one count of printing child pornography. On December 16, 2010, he was sentenced to time served, being 260 days of pre-sentence custody plus imprisonment for 16 months, followed by probation for three years.

[23] An employee at a computer store read the press release following Mr. Mathieson's arrest and realized that he had left a computer at the store to be repaired.

[24] The police obtained a new search warrant authorizing them to seize and examine the computer. The subsequent search turned up 908 images of child pornography and two short video clips of child pornography. Mr. Mathieson had downloaded these from the Internet and saved them.

[25] These images included photographs of very young children who were naked and had their legs spread and their genitals exposed. There were similar pictures with an adult hand touching the children's genitals. Others showed these children in close proximity to erect adult penises. There were photographs showing young female children having vaginal and anal intercourse with adult males. Two photos showed a prepubescent male and female simulating intercourse. Another photo showed a young child with a foreign object inserted into her anus.

[26] Clearly then, the offences committed by Mr. Mathieson are serious ones that cry out for a sentence that will make it clear to everyone that such crimes will not be tolerated in our community.

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

Background of Mr. Mathieson

[28] 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.

[29] Few of these factors are applicable in this case.

[30] I have been provided with the following information about Mr. Mathieson.

[31] He is 36 years old.

[32] He is the youngest of five male siblings born to his mother. All five had different fathers. He was placed in the care of his maternal aunt at two years of age and adopted by her at 13.

[33] He has been developmentally delayed since birth.

[34] He reported "a really good childhood" despite his adoption and open heart surgery at age three where he contracted HIV through a blood transfusion.

[35] He finished high school but is functioning at a grade five level.

[36] He receives approximately $40,000 from the compensation fund as a result of contracting HIV from tainted blood.

[37] He has a history of inappropriate behaviour towards young female children. This began when he was five years old and continued until he was 20.

[38] While incarcerated in November 2012, he acknowledged a sexual attraction to children and that he needed help with his urges.

[39] During his Pre-Sentence Report interview, he denied this. He is unsure of why he offended and indicated that he needed help but could not say what help that would be.

[40] He expressed a desire, following completion of this sentence, to reside in Niagara Falls close to one of his half-brothers. This brother has a criminal conviction for sexually inappropriate behaviour towards a minor female. He believes his half-brother's claim that he was innocent of the offence.

[41] While on probation, Mr. Mathieson attended the Basic Cognitive Sex Offender Relapse Prevention Group Program between January and June 2012. He missed three of 20 sessions due to illness. He attended the follow up maintenance program from June 2012 until his incarceration in November 2012.

[42] In June 2012, he failed to inform his probation officer that new tenants, with young children, were moving into the upper unit of his rental property.

[43] He attended for counselling with a psychiatrist in Ottawa. He went twice for phallometric testing. He opted out the first time because of a headache. On the second occasion, he left to go for coffee and did not return for three hours. He then completed part of the assessment only before declining to proceed further.

[44] The Pre-Sentence Report states that Mr. Mathieson "is considered at an elevated risk to reoffend" and "Based on the aforementioned concerns including sexual deviance, non-compliance and his refusal to reside long-term in a supervised environment upon release the subject is considered an unsuitable candidate for community supervision".

Analysis

[45] Child pornography is a serious matter and the number of child pornography cases is growing to such an extent that it is like a plague that needs to be stamped out.

[46] Accordingly, general deterrence and denunciation must be emphasized in determining the appropriate sentence. That sentence must make it absolutely clear to any like-minded individuals that such behaviour will not be tolerated, but rather will result in imprisonment for a significant length of time.

[47] In this case, Crown counsel has argued that this is also one of those cases where the offender must be separated from society for a long time in order to protect that society.

[48] Mr. Mathieson committed these offences after he had been imprisoned for the equivalent of two years or more for the very same offences. In addition, he was still on probation for those offences.

[49] These are very aggravating circumstances that call for the imposition of a longer period of imprisonment this time.

[50] As I said before, Mr. Mathieson does not qualify for much in the way of mitigation of his sentence.

[51] He is not youthful although I recognize that 36 is not nearly so old as to warrant giving up on his rehabilitation entirely.

[52] He is not otherwise of good character.

[53] He has shown little or no insight into his problem.

[54] Other than pleading guilty, he has not demonstrated genuine remorse.

[55] He has not been truly willing to submit to treatment and counselling and has so far undertaken only such treatment as he was compelled to.

[56] It cannot be said that he has already suffered for his crime, for example in his family, career or community.

[57] I point out that none of these are what I would classify as aggravating factors. They represent mitigating factors that, were they present here, would provide a reason for me to impose a lighter sentence than might otherwise be justified. Their absence simply means that Mr. Mathieson is not entitled to any such mitigation of his sentence.

[58] The only true mitigating feature here is the fact that Mr. Mathieson entered guilty pleas. I take that to be an expression of some remorse and an acceptance of responsibility on his part. It also saved considerable time on our overcrowded criminal docket.

[59] Even giving him credit for that, however, I find that the appropriate sentence here is imprisonment for four years.

Pre-Sentence Custody

[60] Counsel for Mr. Mathieson asked me to give enhanced credit for the 334 days Mr. Mathieson spent in pre-sentence custody.

[61] During his submissions on this point, I made reference to the recent decision of the Ontario Court of Appeal in R. v. Summers, 2013 ONCA 147, paraphrasing para. 117 which reads

That said, nothing in these reasons should be understood as suggesting that enhanced credit will be available under s. 719(3.1) to every remand offender on the basis of the absence of remission and parole eligibility. There must be some basis in the evidence or the information before the sentencing judge to support the conclusion that this factor merits enhanced credit for a particular offender in a given case.

[62] Counsel however declined to call any such evidence in support of this request.

[63] I also noted that the Information contains the endorsement "Detention order – secondary".

[64] This is important because s. 719(3.1) of the Criminal Code, sets out when enhanced credit greater than 1:1 may be given. It states

Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8). (emphasis added)

[65] Section 515(9.1) states

(9.1) Despite subsection (9), if the justice orders that the accused be detained in custody primarily because of a previous conviction of the accused, the justice shall state that reason, in writing, in the record.

[66] The secondary ground for detention is of course the protection of the public. I find accordingly that the endorsement indicating that Mr. Mathieson was detained on the secondary ground is a clear statement, in writing, that Mr. Mathieson was detained because of his previous conviction for the same offences. I am therefore precluded from crediting Mr. Mathieson's pre-sentence custody at anything other than a rate of 1:1.

Sentence

[67] Accordingly, I sentence Mr. Mathieson as follows.

[68] With respect to printing child pornography, I sentence him to time served, being 334 days of pre-sentence custody credited as 11 months plus imprisonment for a further 37 months.

[69] With respect to possessing child pornography, I sentence him to imprisonment for one year, to be served concurrently.

[70] With respect to breaching his probation, I sentence him to imprisonment for one year, to be served concurrently.

[71] I also make the following ancillary orders with reference to both child pornography offences.

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

[73] I am not satisfied that Mr. Mathieson 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. Mathieson comply with the provisions of the Sex Offender Information Registration Act for the rest of his life.

[74] The behaviour of Mr. Mathieson, together with the absence of any explanation for it, causes me concern about the risk that Mr. Mathieson may present to children in general. Therefore I make an order pursuant to s. 161 of the Criminal Code prohibiting Mr. Mathieson for life, from

(a) 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, schoolground, playground or community centre;

(b) 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;

(c) having any contact – including communicating by any means – with a person who is under the age of 16 years, except under the supervision of a responsible adult who has knowledge of his offending;

(d) using the Internet or other digital network.

[75] 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, computer parts, loose media storage devices and all Internet access devices shall be forfeited to Her Majesty and disposed of as the Attorney General directs.

[76] In light of the time to be spent in custody and the financial position of Mr. Mathieson, I waive the surcharges.

Released: September 24, 2013

Signed: "D.A. Harris J."

D.A. Harris J.