Court Information

Ontario Court of Justice

Her Majesty the Queen v. Lee Hughes

Reasons for Sentence

Delivered by: The Honourable Madam Justice K.L. McKerlie Date: March 24, 2014 Location: Stratford, Ontario

Appearances

Crown: M. Murdoch, Counsel for the Provincial Crown

Defence: K. Van Drunen, Counsel for Lee Hughes

Reasons for Sentence

McKerlie, J.: (Orally)

Lee Hughes, on Information 1017, you are being sentenced today for two offences:

1. The October 3rd, 2013 offence of having in your possession child pornography, namely computerized graphic images of child sexual abuse, contrary to section 163.1(4) of the Criminal Code of Canada.

2. The October 11th, 2013 offence of making available child pornography by sharing computerized graphic images of child sexual abuse, contrary to section 163.1(1)(3) of the Criminal Code of Canada.

The Crown proceeded summarily. Accordingly, the minimum sentence on the possession of child pornography charge is 90 days and the maximum sentence is 18 months. On the charge of making available child pornography, the minimum sentence is six months and the maximum sentence is two years less a day.

Mitigating Factors

To your credit, you have accepted full responsibility for the offences and have entered early guilty pleas. Your decision to enter early guilty pleas is a strong mitigating factor for sentencing.

Facts

Your guilty pleas are based on the following facts. The Department of Homeland Security in the State of Utah commenced an investigation into the trading of child pornography on an internet website by the name of "motherless.com". Investigation revealed that using the name "The New Bigginz", you sent images of child pornography to another user on that website. Specifically, on October 3rd, 2013, you sent an email to another user containing 18 images of child pornography. On October 11th, 2013, you sent five files containing videos of child pornography to another user.

The Department of Homeland Security forwarded the information they had gleaned to the Ontario Provincial Police, who continued the investigation and identified you and your residence through the IP address that was captured.

A search warrant was executed and the items listed in the Computer Exhibit Log, marked as exhibit number two, were seized. Those items are the subject matter of a consent forfeiture order pursuant to section 164.2 of the Criminal Code and include two cell phones, four DVDs, two laptop computers, an iPod and an external hard drive.

The external hard drive contained 355 accessible images of child pornography and 242 accessible videos of child pornography. Of those files, 354 images were unique and 228 videos were unique.

Nature of the Material

A representative sample of the photographic images and videos found on your external hard-drive reveals a disturbing and extensive collection of explicit child sexual abuse. The photographs and videos show very young female children estimated to be between two and eleven years of age, with many of the children toward the lower end of that age range.

The images are graphic and very explicitly show young female children being sexually abused by mature adult males. The range and extent of the explicit sexual abuse is disturbing. The children are specifically posed. The images include a child who is blindfolded and bound at her wrists and ankles. Erect male penises are shown against the genitals and mouths of toddlers. A very young child is being penetrated by the erect penis of an adult male.

The videos range in length from seconds to just under nine minutes. The videos depict children being sexually abused by adult males. The adult males force the children to perform fellatio and/or penetrate the children vaginally and anally. The videos include children being abused by sexual aids, adult males ejaculating onto the faces and bodies of the children and a very young child being forced to perform a sexual act on a dog.

Crown and Defence Submissions

The Crown seeks a sentence of four months for the offence of possession of child pornography and a further eight months for the offence of making available child pornography. The Crown also seeks a forfeiture order, a primary DNA order, a probation order, a life-time Sex Offender Information Registration Act order and a section 161 order for 20 years with respect to (a), (b) and (c) and a lifetime order with respect to (d).

Defence counsel strongly advocates for the minimum sentence of 90 days for the offence of possession of child pornography and six months for the offence of making available child pornography. The ancillary orders are not opposed, but defence counsel submits that the s. 161 order should contain a number of exceptions to allow you to attend the YMCA and to continue to use a computer and access the internet under supervision. Defence counsel submits that the appropriate length for all categories under s. 161 is 20 years.

Psychological Assessment

In determining the appropriate sentence and the terms of the ancillary orders, I take into account as strong mitigating factors your lack of prior record and your acceptance of responsibility by entering early guilty pleas. Your decision to arrange for and participate in the Psychological Assessment is another strong mitigating factor for sentencing, as is the support you have from your parents.

The Assessment prepared by Psychologist David Howard is marked as Exhibit 1 on sentencing. The stated purpose of the assessment is to address risk assessment and relapse prevention programming.

At the age of 32, you presently reside with your parents. You were married in 2008, but separated from your spouse following being charged with these offences. Your spouse is the parent of two children, ages 11 and 18. You report a varied work history with 16 different employers and frequent periods of unemployment. The work is mainly seasonal on construction based projects. You describe yourself as being in good health. You report minimal use of alcohol, but daily use of marijuana.

Your sexual history is detailed in the report. You describe fantasizing or associating during intercourse to thoughts and images including "child content". You admit to being drawn to taboo images, particularly involving teenage females with some father-daughter content. Mr. Howard reports that you acknowledge that your fantasy content is "wrong" and you do not appear to make any attempt to rationalize or justify its presence.

Risk Assessment Findings

Mr. Howard reports that on the Sexual Violence Risk-20 Instrument, which evaluates 20 "risk indicators" of future sexual violence, offence or misbehavior, the following indicators were determined to be "present" or "qualified presence":

1. Sexual Deviation. Present. Defined as a relatively stable pattern of sexual arousal to inappropriate stimuli causing distress or social dysfunction.

2. Substance Abuse Problems. Present.

3. Relationship Problems. Qualified presence.

4. Employment Problems. Qualified presence.

5. High Density Offences. Qualified presence.

Mr. Hughes has demonstrated a 'committed resourcefulness' associated with retaining access to computer-based pornographic materials.

6. Extreme Minimization/Denial of Offence. Qualified presence. Mr. Hughes is not denying his offences. However there is some question as to whether he appreciates the seriousness of the consequences of same to the online victims.

7. Attitude that Supports or Condones Offences. Qualified presence. In discussion with Mr. Hughes, there is some question as to whether he fully grasps the damage and social implications associated with his offence. He does not condone the behavior; however, his core attraction to such material remains.

With respect to the Cognitive Disowning Behavioural Distortion Scale (SO-CDBD), Mr. Howard noted that Mr. Hughes reportedly was less than forthright regarding the complete volume of material resident on his computer and that there was an indication that Mr. Hughes does not fully view the computer-based offence as "harmful". Mr. Howard assessed the "Depersonalizing/Ownership" factor as a level three, which reflects a high level of distortion or disowning. He notes this factor refers to objectifying victims with an indication that victims are experienced as images or stimuli rather than individuals or victims.

Psychologist's Summary and Concerns

In summary, Mr. Howard reports that:

Mr. Hughes has participated well and complied fully with treatment offered to date.

A principal concern with this man centres on his view and interpretation of the offences he has committed. On the positive side, he is well able to discriminate between 'acceptable' behaviour and illegal activity. There is no observed attempt to rationalize or justify his actions... He is suitably remorseful for his behaviour. He recognizes that it has significantly altered his life direction, essentially costing him a relationship with his wife, quite possibly both step children, and compromising his social friendships.

Three areas of concern, however, do present. In the absence of any direct, physical and/or violent interaction with the victims, Mr. Hughes is seen as not fully internalizing the victim-status of the subject matter of online pornography that he has viewed and circulated. Intellectually able to characterize his behaviour as 'wrong' and 'illegal', he appears to stop short of seeing it as 'harmful'. The result is a common cognitive distortion associated with sexual offence, minimization. Closely aligned is the objectifying of victims, depersonalizing them and failing to see the subjects as individuals; and more as images to be traded and viewed.

A second area of acute, ongoing concern is the admitted attraction that Mr. Hughes continues to have to underage females. There is no evidence that he has been physically inappropriate or actively engaged in any impropriety with girls in this age group. Nevertheless, he is quite clear that is comprises a major component of his sexual fantasy. This aspect of his function presents a significant and perhaps intractable treatment issue.

Finally, unlike other forms of predatory sexual behaviour, access to pornographic materials is very difficult to monitor and control...

All three concerns underline the importance of attitude change in this man. While assessed as a relatively low risk in a conventional sense, it would seem to be critical that Mr. Hughes be compelled to understand and appreciate the harm his practices support and endorse – albeit at 'arm's length'. He is agreeable to continuing in treatment while completing his sentence, and following. A suggested focus is that of relapse prevention with an emphasis on controlling and containing his exposure to destabilizing situations; and cultivating and maintaining a network of good personal support stressing transparency in these relationships. Ultimately Mr. Hughes will need to become responsible for policing his own behaviour.

Defence counsel emphasizes your cooperation in the assessment process and your demonstrated commitment to ongoing therapy and treatment. She submits that the recently increased mandatory minimum sentences for these offences provide a clear message of denunciation and deterrence, both specific and general deterrence, and that such message is further reinforced by the ancillary orders sought by the Crown. Defence counsel submits that your criminal conduct and personal circumstances fit squarely within the parameters of the mandatory minimum sentences, particularly given your early guilty pleas and lack of prior record.

In seeking sentences in excess of the mandatory minimum sentences, the Crown emphasizes the size and extent of your collection of images and videos of child pornography and the vulnerability of the very young victims depicted in that collection. Some of those victims were as young as 2-4 years of age.

Sentencing Principles and Analysis

In determining the appropriate sentence, I have considered the circumstances of the offences, your personal circumstances, the psychological assessment report and the sentencing submissions of counsel, together with the purpose and principles of sentencing in sections 718, 718.01, 718.1 and 718.2 of the Criminal Code.

The sentencing objectives of denunciation and deterrence must be given primary consideration for the offences of possession of child pornography and making available child pornography. As so aptly expressed by Justice Malloy in R. v. Kwok, [2007] O.J. No. 457:

Vast strides have been made by dedicated law enforcement officials worldwide to curb this ever-increasing Internet plaque. However, catching the perpetrators and abusers after they have violated children and spread their pictures all over the Internet is not enough. Ways must be found to deter would-be pornographers. One way of doing so is by deterring those who are interested in acquiring the pornography... People who set about to access and collect pornography victimizing children must be made aware that the courts do not see this as a minor, or victimless, crime. It is a reprehensible crime and must be dealt with severely for the protection of society as a whole and of its most vulnerable members, our children. It is crucial to deter people at the entry level from ever possessing child pornography. Perhaps by killing, or at least diminishing, the market for child pornography, the production side can also be curbed.

In this case, not only did you possess a considerable collection of child pornography, you also made it available to others. When you viewed, possessed and shared the child pornography in your collection, you were literally viewing, possessing and sharing crime scene images of child sexual abuse. The children are vulnerable, the abuse is horrific and the abuse does not end. As the images are posted and shared on the internet, the children are re-victimized over and over again.

The sentence imposed today must focus on denunciation and deterrence to address the morally reprehensible nature of the offences. The sentence must be proportionate to the gravity of the offences and your high degree of responsibility. The sentence must also address the need for rehabilitation and promote a sense of responsibility and acknowledgement of harm done to victims and to the community. It must reflect your status as a first time offender and your decision to enter early guilty pleas.

Parity Analysis

On the issue of parity, Crown counsel relies upon the February 26th, 2013 Ontario Court of Justice decision in R. v. Twigg [2013] ONCJ 96. Counsel did not refer me to any other case authorities. I have also considered the Ontario Court of Justice decisions in R. v. Oakey [2011] ONCJ 404 and R. v. Mack [2014] ONCJ 29, both of which contain helpful summaries of a number of sentencing decisions in this area.

Each sentence must be determined based on the particular circumstances of the offender and the particular circumstances of the offence. There is no identical set of circumstances. It is not a matter of counting the number of images possessed or made available by a particular offender, but the extent and type of collection is relevant in determining proportionality.

In this case, it is aggravating that the images you possessed and made available to others were of live children being sexually abused, rather than animated images of child sexual abuse as discussed in some of the decisions cited. The very young age of the children, namely children as young as 2-4 years of age, and the extent of the explicit sexual abuse, including anal and vaginal penetration, sexual aids, bondage and the involvement of an animal, are also aggravating factors for sentencing.

Having reviewed the sentencing decisions summarized in the cases cited in these reasons, bearing in mind the dates of those decisions as they relate to the current increased mandatory minimum sentences, I am satisfied that the custodial sentences sought by the Crown address not only proportionality, but also give appropriate weight to principles of restraint, totality and the mitigating factor of an early guilty plea by a first time offender. This is not a case where I can accept defence counsel's submission for imposition of the mandatory minimum sentences.

Section 161 Prohibition Order

I have considered the extent of the limitations sought by the Crown respecting contact with children and use of computers and the internet. I have considered the attempts this court and others have made to fashion exceptions to permit offenders to function in the digital age of computers and the internet.

The Psychological Assessment realistically notes that, "ultimately, Mr. Hughes will need to become responsible for policing his own behaviours". That "self-policing" will start following a 12-month jail sentence and a lengthy period of probation, during which you will attend offence-specific therapy and treatment focusing on relapse prevention. It is not possible for me to forecast your success in that process. Risk factors have been identified. Of continuing concern is your admitted attraction to what the report describes as "underage females" and "teenage females". The representative sample of the child pornography catalogued by the investigating officer reflects an emphasis in your collection on images of very young children, as young as 2-4 years old, not teenagers. The risk here is to vulnerable, very young children, who are not able to protect themselves from predators.

Given those circumstances, the orders sought by the Crown will be granted with exceptions for employment purposes and with the permission of your probation officer. I appreciate that such a limitation on computer and internet access is significant for anyone in today's society. However, I am not satisfied that the exceptions suggested by defence counsel, which would permit supervision by your mother or using a computer at a public library would be effective. In R. v. Mack, for example, the offender used computers at cyber-cafes and the library to attempt to avoid detection.

A prohibition order under s. 161 may be for life or for any shorter duration that the court considers desirable. Subsection 161(3) explicitly provides that the court may vary the conditions prescribed if the variation is desirable because of changed circumstances after the conditions were prescribed. Those changed circumstances could include measured progress in treatment and therapy or changes in technology which render access to computers and the internet essential for day to day life. Although it is difficult for an offender in today's society to function without access to computers and the internet, it is not impossible.

Those who abuse the internet to possess and share child pornography must understand that not only do they put their physical freedom in jeopardy, but their freedom to use computers and the internet is also at risk. A prohibition on the use of the internet for an offender who has used the internet to share and make available child pornography is a realistic and proportionate consequence for that intentional and morally reprehensible criminal conduct.

Accordingly, with the exceptions noted, the Crown's request for an order under s. 161 is granted for a period of 20 years, recognizing that the order may be varied in the future because of changed circumstances, which then can be assessed with the benefit of that further information.

Sentence Imposed

Accordingly, Mr. Hughes, I impose the following sentence.

On count number two, the offence of possession of child pornography contrary to section 163.1(4) of the Criminal Code, there will be a sentence equivalent to 120 days. You submitted to custody on the date you entered your guilty pleas. Sentencing was adjourned to permit me to further consider the ancillary orders sought. You have now served eight days in pre-sentence custody, which will be credited on a 1.5 to 1 basis as the equivalent of 12 days. Therefore, the sentence imposed today will be 108 days in addition to 12 days in pre-sentence custody, which is equivalent to a 120 day sentence or approximately four months. The custodial sentence will be followed by three year's probation which will be concurrent on count number five.

On count number five, the charge of making available child pornography, contrary to section 163.1(3) of the Criminal Code, the sentence will be 240 days consecutive, which is approximately eight months. The total sentence therefore is 348 days in addition to 12 days of pre-sentence custody. There will be a recommendation on the warrant for committal that you receive offence-specific counseling and treatment while in custody.

DNA Order

Counts two and five are primary designated offences and there is a primary DNA order, which requires you to provide samples of bodily substances for the DNA data bank. Such samples are to be provided by you while you are in custody.

Sex Offender Information Registration Act Order

Under sections 490.012 and 490.013(2.1), you have been found guilty of more than one designated offence. You are ordered to register and comply with the Sex Offender Information Registration Act for life. The order requires that you report in person to the registration centre referred to in section 7.1 of the Sex Offender Information Registration Act. The registration centre is at the Stratford Police Service. You are to report within seven days from your release from custody. You must subsequently report to the registration centre for your lifetime. Information relating to you will be collected. When you report, you shall provide information under sections 5 and 6 of the Sex Offender Information Registration Act. That information will be registered in the database. You will receive a paper copy of the order, which will explain to you the appeal rights you have in terms of correcting information contained in the database. You have a right to apply to terminate the order and to appeal that decision. If you are found to have contravened this order by failing to report or by providing false or misleading information, you will be committing an offence and may be subject to a fine or imprisonment or both.

Forfeiture Order

Under section 164.2 of the Criminal Code, the items listed in the Computer Exhibit Log marked as exhibit number 2 are forfeited to Her Majesty and shall be disposed of as the Attorney General directs. The Crown is to provide a formal order approved as to form and content by defence counsel. I confirm that you have expressly consented to that order.

Section 161 Prohibition Order Details

Under subsections 161 (a), (b), (c) and (d), there will be an order for 20 years which prohibits you 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 or playground;

(b) seeking, obtaining or continuing any employment, whether or not that 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, unless the offender does so under the direct supervision of a responsible adult who is aware of the terms of this order;

(d) using the internet or other digital network, unless the offender does so under the direct supervision of his probation officer or a person designated in writing by his probation officer or except as required to fulfill the duties of lawful employment.

The prohibition order under section 161 of the Criminal Code is for a period of 20 years.

Probation Order

The probation order will be for three years. The probation order requires that you keep the peace and be of good behaviour, appear in court when required to do so and notify the probation office in advance of any change of name, address, employment or occupation. You are to report forthwith upon your release from custody in person to a probation officer and thereafter be under the supervision of the Probation Officer and report at the times and places required.

You are to attend and actively participate in such rehabilitative programs and mandatory assessments for all issues recommended by your probation officer, including offence-specific counseling focused on relapse prevention and substance abuse counseling. You are to sign release forms required to allow your probation officer to confirm your attendance at counseling or treatment and you are not to discontinue that counseling or treatment without the consent of your probation officer.

You are to make reasonable efforts to find and maintain suitable employment.

You are not to associate, contact or hold any communication with any person under the age of 16 years, unless under the direct supervision of a responsible adult who is aware of the terms of this order and the s. 161 order.

You are not to use the internet or other digital network, unless under the direct supervision of your Probation Officer or a person designated in writing by your Probation Officer, or except as required to fulfill the duties of lawful employment.

You are not to possess any computer or device capable of storing data in a digital format, including digital cameras, camcorders or camera phones, unless required to do so in order to fulfill the duties of lawful employment and with the specific approval in writing of your Probation Officer.

You are not to access or possess child pornography or any images of any child or children depicted to be or appearing to be under the age of 18 years, who are naked or are portrayed in a sexual manner.

You are to reside at a residence approved of by your Probation Officer and not change that residence without the prior written approval of the Probation Officer.

Final Remarks

Please remember that the probation order, the Sex Offender Information Registration Act order, the section 161 order and the DNA order are all orders of the court made under the Criminal Code of Canada. Any breach of those court orders is an offence under the Criminal Code, punishable upon conviction by a jail sentence. The Victim Surcharge for each offence is $50.00 and is required to be paid by you within 90 days of your release from custody.

Thank you.

Released: March 24, 2014 Justice K.L. McKerlie