Court File and Parties
Court File No.: Hamilton Information #
Date: 2014-10-02
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Ian Michael Elstub
Before: Justice M. Speyer
Heard on: August 12, August 26 and September 26, 2014
Reasons for Judgment given orally on: October 2, 2014
Counsel:
- E. Slater, for the Crown
- J. K. Venn, for the accused Ian Michael Elstub
Judgment
Speyer, J.:
Facts and Guilty Plea
[1] Mr. Elstub pled guilty on August 12, 2014 to one count of possessing child pornography contrary to s. 163.1(4) of the Criminal Code and one count of accessing child pornography contrary to s. 163.1(4.1) of the Code. The basis of the guilty plea was that between May 13, 2013 and June 10, 2013, Mr. Elstub used a computer tablet and a lap top to access and download child pornography from the internet.
[2] At the time he committed these offences, Mr. Elstub had an outstanding charge in Niagara Falls for possession of child pornography. He had been released on an undertaking with terms. Hamilton police seized the laptop and tablet on October 29, 2013 during the course of an investigation into allegations that Mr. Elstub had breached the terms of his undertaking. A forensic examination of these computers revealed that between May and June 2013, Mr. Elstub had searched for and downloaded several hundred child pornography images. The police discovered approximately 481 child pornography images, 437 of which are unique in nature (i.e. are not duplicates).
[3] The images depict very young girls, aged 2 to 6, being sexually assaulted. The images are suggestive of oral, vaginal and anal intercourse with adult men. A sample image shows a toddler with the tip of a dildo inserted in her vagina. To say that the images are disgusting and disturbing is an understatement.
[4] On August 27, 2014 Mr. Elstub pled guilty in Niagara Falls to one count of possession of child pornography. Taking into account the time he spent in pre-trial custody, he received a sentence equivalent to 10 months and 22 days followed by 3 years of probation.
[5] With respect to the charges before this court, Crown and defence counsel have made a joint sentencing submission for 90 days in custody followed by three years of probation. I advised counsel that I was not comfortable with this joint submission and adjourned the matter for the preparation of a presentence report and for counsel to present cases to support their joint submission.
The Offender
[6] Mr. Elstub is 43 years of age. He has born in England and he moved with his family to Canada when he was ten years old. He told the writer of the presentence report that he had an unstable childhood and was sexually abused by family friends a number of times. None of these incidents were ever reported to the police. He has struggled to deal with the sexual abuse throughout his life.
[7] Mr. Elstub has had two long term relationships with female partners and has four children aged 22 to 14 with these partners. He has been convicted of two domestic assaults and mischief against his second wife. That relationship ended in 2007. He told the writer of the presentence report that he turned to alcohol and drugs to cope. He was engaged to be married to a third woman when he was arrested in October of 2013 for the offences before this court. That relationship has also since ended. Due to the nature of the offences, Mr. Elstub has not spoken to any of his children since he was charged in 2011 in Niagara Falls. He hopes to reconcile with his family once he has been released from custody.
[8] Mr. Elstub has had a history of mental health problems including substance abuse, depression, anxiety and post traumatic stress disorder, likely due to the abuse he suffered as a child. He has contemplated suicide. Prior to his arrest on these charges, he was seeing a mental health counselor who believes he would benefit from dialectical behaviour therapy. Mr. Elstub denies having any sexual attraction to children and told the author of the pre-sentence report that he viewed the child sexual abuse images because he was curious about what had happened to him as a child. He is willing to attend any counselling ordered by this court.
[9] Mr. Elstub is not a Canadian citizen and may be facing deportation back to England. If so, he has indicated that he would live there with his parents. He plans to return to England voluntarily in any event once he has completed his sentences.
[10] Mr. Elstub had owned and operated a glass blowing business for approximately 11 years and worked in the construction industry before that. His employment has been sporadic since his arrest in 2011. He has since been supported by social assistance. He plans to work at a pizza restaurant with a friend once he is released from custody.
[11] Mr. Elstub has a criminal record dating back to 1995. It includes two domestic assault convictions, two convictions for mischief, one count of possession of controlled substances, 6 convictions for breach of bail terms and, recently, one count of possession of child pornography. He has also been convicted of driving while prohibited.
Position of the Parties
[12] The Crown and defence counsel have jointly advocated for a global sentence of 90 days in custody followed by three years of probation. The Crown elected to proceed summarily and therefore this is the minimum jail sentence I can impose under sections 163.1(4) and 163.1(4.1) of the Code.
[13] Counsel for Mr. Elstub and the Crown have argued that this sentence is justified on the basis of the relatively small number of images found on the two computers, the short period within which Mr. Elstub accessed the child abuse images and the fact that Mr. Elstub pled guilty. Mr. Venn advised the court that his client did not own the two computers and he did not have exclusive possession of them. By pleading guilty, Mr. Elstub waived any defences he could have raised in that regard. Counsel acknowledge that the usual range for these types of offences is in the 6 to 24 month range, but can include sentences as low as 90 days, depending on the individual circumstances of the offender and the offences.
Analysis
[14] Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
- to denounce unlawful conduct
- to deter the offender and other persons from committing offences
- to separate offenders from society, where necessary
- to assist in rehabilitating offenders
- to provide reparations for harm done to victims or to the community
- to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.
[15] Above all, a fit sentence must be one that is proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality requires the court to examine the particular circumstances of the offence as well as of the offender such that, ultimately, the punishment fits the crime.
[16] Dealing first with the gravity of the offences before the court, accessing and possessing child pornography is a morally reprehensible crime that must be penalized severely for the protection of children everywhere in the world. In R. v. Bock, 2010 ONSC 3117, at paragraphs 30 and 31, Justice Henderson observed that the evil at the root of all child pornography offences is the hands-on sexual abuse and sexual exploitation of children by those who produce it. Child pornography captures this sexual abuse of children in an electronic image, creates a record of that abuse, and permits the perpetrator to share that abuse with others. Those who wish to possess child pornography 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. Therefore, simple possession of child pornography must also be treated as a very serious offence. If the court can deter or reduce the market for child pornography, the court may in turn effectively reduce the sexual abuse of children.
[17] A similar observation was made by Justice Ratushny in R. v. Dumais, 2011 ONSC 276, at para. 13 wherein she observed that by downloading and possessing images of child sexual abuse, the offender participates in the re-victimization of the children in the images. By downloading these images the offender also participates in and encourages the existence of a market for these terrible kinds of crimes. Accessing and possessing child pornography therefore encourages others to victimize and commit similar violence against more children.
[18] Dealing next with the degree of responsibility of the offender, Mr. Elstub reported that he was himself a victim of child abuse and he downloaded these images out of curiosity about what had happened to him. He advised the writer of the presentence report that he has no sexual attraction to children and that he no longer has any interest in these types of images.
[19] I find Mr. Elstub's explanation troubling. I would have thought that having been arrested for a similar offence in 2011, Mr. Elstub would no longer be "curious" about child pornography. Mr. Elstub is wholly responsible for these offences and there is no reasonable explanation for repeating this offending behaviour. It is also troubling that Mr. Elstub repeated this offence when he was undergoing counselling.
[20] It is clear that for the crime of accessing and possession of child pornography, the sentencing objectives of denunciation and general deterrence are paramount and jail terms are required to adequately serve those objectives. The Criminal Code was recently amended to increase the minimum sentences to reflect the seriousness of these offences. Where the Crown has proceeded summarily, Parliament has set a minimum jail term of 90 days and a maximum jail term of 18 months. Mr. Venn has provided me with several court decisions wherein the sentences are as low as 3 months, or lower in older cases, depending on the particular circumstance of each offence and offender.
[21] In determining the appropriate sentence to impose in this case, I am taking into account that Mr. Elstub pled guilty at a relatively early opportunity, allowing for the time required to forensically examine the computers. By pleading guilty, he gave up his right to a trial and any defences he may have advanced. The guilty plea is worthy of considerable credit.
[22] Mr. Elstub has indicated that he is amenable to counselling to address his own victimization and the underlying causes of his behaviour. This is encouraging as it demonstrates to the court that he is amenable to rehabilitation.
[23] The aggravating factor in this case is that Mr. Elstub was on an undertaking for possession of child pornography when he committed these offences and has since been sentenced for that offence.
[24] As indicated, Crown and defence counsel have jointly advocated for a sentence of 90 days and three years of probation. I am unable to accept this submission. I am mindful that the Ontario Court of Appeal has instructed sentencing judges not to reject a joint submission unless it is contrary to the public's interest and the sentence would bring the administration of justice into disrepute. In R. v. Cerasuolo, the OCA held that this is a high threshold and is intended to foster confidence in an accused, who has given up his right to a trial, that the joint submission he obtained in return for the guilty plea will be respected by the sentencing judge. The court went on to emphasise that these agreements are not to interfere with the independence of the judiciary to independently evaluate the appropriateness of the proposed sentence. However, where the joint submission is rejected, the sentencing judge must explain in what way the proposed sentence is contrary to the public interest and bring the administration of justice into disrepute.
[25] It is the duty of this court to independently evaluate the appropriateness of the proposed sentence to ensure that it is in accordance with the principles and objectives of sentencing as set out in the Criminal Code and jurisprudence. When a proposed sentence is contrary to the fundamental principles of sentencing and does not achieve the appropriate sentencing objectives, it is an unfit sentence. An unfit sentence is, by its very nature, contrary to the public's interest and brings the administration of justice into disrepute.
[26] Considering all of the circumstances of this case, I am of the view that the joint submission of the Crown and defence counsel would result in an unfit sentence. A jail term of 90 days for a repeat offender does not adequately meet the objectives of denunciation and general deterrence. It would also not achieve the goal of specific deterrence. A lengthier sentence is required to bring home the point to Mr. Elstub and others like him that repeated use of the internet to perpetuate the continued abuse of children will result in sentences in excess of the minimum mandated by Parliament.
[27] Crown and defence counsel argued that 90 days would be adequate given the number of photographs in Mr. Elstub's possession and that the offences were committed over a relatively short period of time. I do not agree that 481 images is a small collection. In my view, it is a sizeable collection of child abuse images and must be treated as such. Moreover Mr. Elstub accessed these images on the internet, not only once, but repeatedly over the course of a month.
[28] Crown and defence counsel ask the court to give great weight to Mr. Elstub's guilty plea. They point out that he had a possible defence and he saved the state a great deal of police and court resources by waiving his right to trial.
[29] I accept that Mr. Elstub's guilty plea is a mitigating factor that must be weighed heavily in his favour. However, it cannot be given so much weight as to result in an unfit sentence. In this case the sentence proposed is the minimum I could impose on Mr. Elstub. Yet such a sentence completely ignores the fact that Mr. Elstub has a criminal record for this type of offence and for other violent offences. He also has a history of breaching court orders. Moreover, a minimum sentence would not give effect to the "step principle" that subsequent similar offences should generally result in longer sentences.
[30] The cases relied on by defence counsel where minimum sentences were imposed are distinguishable from Mr. Elstub's case. In those cases, the offenders had no prior record, had undertaken counselling to address the underlying cause of their behaviour, had good social supports in the community and were low risk to re-offend. I am not satisfied that Mr. Elstub is in that category of offenders.
[31] Lastly, saving court and police resources is a commendable objective. However, it cannot deflect from the seriousness of the crime or overshadow the duty of the court to impose a sentence that is proportionate to the gravity of the offence and the responsibility of the offender.
Sentence
[32] In my view an appropriate sentence in this case is one of 12 months followed by 3 years of probation. I give Mr. Elstub credit for pre-trial custody of 8 days which I will calculate as 12 days. There will also be an order for his DNA, a s. 161(1)(d) order prohibiting him from using the internet for 5 years, and an order pursuant to s. 490.012(1) requiring Mr. Elstub to comply with the SOIRA. As this is a second offence, the length of the SOIRA order is for life.
Released: October 2, 2014
Signed: "Justice M. Speyer"