Court File and Parties

Date: May 24, 2017

Information No.: 13-11874 & 16-11537

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Nashwan Masho

Before: Justice G.A. Campbell

May 24, 2017

Counsel:

• Rene Puskas for the Crown
• Patrick Ducharme for the Accused

CAMPBELL J.: REASONS FOR SENTENCE

Facts

[1] The offender was found guilty on April 11, 2017 of possessing child pornography on two counts contained in two separate informations. The first offence arose in December 2013 after the RCMP received information from the International Centre for Missing and Exploited Children. The local police force obtained a warrant to search Mr. Masho's home where he resided with his parents. The 24 year old was found sleeping in his bed with a laptop computer nearby. One hundred photographs of underage males engaging in sexual activity was initially identified at the time of the offenders' arrest.

[2] Following the arrest, Mr. Masho's computer was analyzed further and determined to contain a total of 10,613 images, 4,908 were unique, and 5,703 duplicates. There were also 257 videos, with only 23 of those being duplicates. The images and videos depicted pre-pubescent males as young as age six in explicit poses and engaged in sexual activity, sometimes alone and also with others including older boys and adult males.

[3] In November 2015, while Mr. Masho was on bail with conditions not to possess a computer or device with internet access except in certain circumstances, authorities received information Mr. Masho had again uploaded or somehow gained access to images of child pornography. Upon executing a search warrant at Mr. Masho's home, the offender was again found asleep in his bed, this time with a cell phone nearby. That phone had approximately 700 sexually explicit photos and videos of young males ages 7 to 16. A pellet gun was also found under his bed in violation of one of the conditions of his release.

[4] In addition to submissions from counsel, I had the benefit of a pre-sentence report and medical reports from a forensic psychiatrist, Dr. Johnson. Also filed were dated medical reports from 2012 and 2013 that addressed what was then a concern about the offender being forgetful and struggling to concentrate. The dated reports aren't relevant for the purpose of this sentencing.

Background of Offender

[5] Mr. Masho was 24 at the time of the first offence and 26 when he was arrested and charged again for committing the same offence. He is now 28 years old. He's the youngest of five children. His siblings are all quite a bit older. He comes from a well-off family that has been able to provide for his needs, education and a good quality of life. Mr. Masho emigrated from Iraq via Jordan to Canada at the age of nine but returned to Jordan to complete his high school studies. He was attending the University of Windsor at the time of these offences, initially enrolled in the Science department studying biochemistry. However, he changed directions when his grades slipped a bit but managed to complete his degree in social sciences in 2016 while these matters were pending before the Court. It would appear from what I have read and heard that the offender is a fairly intelligent individual and has the potential to succeed further in academics.

[6] Mr. Masho is in good physical health with no thought disorders or cognitive deficits. Although he has struggled socially with group acceptance and finding comfort in settings outside of school, church and home, he has no anti-social personality disorder. In 2012 or 2013 Mr. Masho was prescribed anti-depressant medication which he continues to take with another medicine to assist him with sleep and anxiety. There is no history of experimental, elicit or prescription drug abuse.

[7] He comes from a strong Christian family, is well-versed in theology and has been very involved with his church. As a consequence of his religious and cultural background, Mr. Masho has struggled until recently with being able to disclose his sexual predilection. He described himself as feeling different while he was growing up and is now self-described as bisexual but with an affinity for feminine males. Until recently he had never disclosed his sexual orientation to his family, priest or members of his community for fear of bringing shame to his family.

Analysis

[8] The Crown proceeded by way of indictable offence on both prosecutions. The first offence occurred on December 13, 2013. Section 163.1(4) provided at the time for a mandatory minimum penalty of six months custody. The section was amended effective July 16, 2015. Accordingly, the second offence dated November 4, 2015 provides for a mandatory minimum penalty of one year custody.

[9] It is clear from my review of the objectives of sentencing in the Criminal Code and the case law before me that the primary consideration for sentencing offenders convicted of possessing child pornography is denunciation and deterrence. This is because these offences involve the abuse of children which society of course has an interest to protect. They are among the most vulnerable in society. Possession and distribution of these images moves beyond morally unacceptable behavior. These acts contribute and bring about real harm to real people, in this case innocent children. The objectification of children in this manner tends to dehumanize them and as a consequence promotes exploitation. The images are used as instruments to bring about further victimization.

[10] It may very well be that Mr. Masho did not initially understand the illegality of his offending conduct when he first began to access child pornography, but he did gain an appreciation for the illegality and the effect of his offending conduct prior to being charged with the first offence. The subsequent offence was aggravating not only because Mr. Masho had by that point clearly understood the consequences of his actions but also because he was on bail with conditions which he flagrantly violated.

[11] With the emphasis for sentencing in these circumstances being on denunciation and deterrence and the aggravating factors including the commission of a second offence while on bail and the an extraordinary amount of images and videos found in Mr. Masho's possession, I am hard pressed to find justification for a lesser custodial sentence than what has been proposed by the prosecution, namely, two years less a day. However, sentences are not imposed exclusively on the basis of the nature of the offence and the surrounding circumstances associated with the commission of the offence. Notwithstanding the primary considerations, public safety remains an important objective not only in the short term but also the long term as well. While denunciation and deterrence in circumstances such as these stand in priority over rehabilitative objectives, it would be contrary to the purpose of sentencing to overly diminish the importance of rehabilitation when the offender is a good candidate. Reasonably foreseeable chances at success in rehabilitative programming ought to be given appropriate weight as it tends to serve the long-term interest of protecting society.

[12] Regrettably, the offences committed by Mr. Masho are not unfamiliar to me. Mr. Masho presents as a bit of an aberration. It is rare to read reports from professionals so replete with candor. And I would say more – even Mr. Masho himself was frank about how he came to do what he did during his remarks after counsel concluded their submissions. Mr. Masho has spoken openly about his offending conduct and has offered some background and insight about the circumstances surrounding the commission of his offences, his sexual orientation, his desires and practices. While there may be one or two reasons to be cautious about the accuracy or completeness of Mr. Masho's own assessment, there is far more reason to be optimistic about his candidacy for rehabilitation than there is to be cynical. There can be no doubt that Mr. Masho has taken responsibility for his actions, not only by his pleas but also by his straightforward and open discussions with the probation officer, the forensic psychiatrist and his remarks to this court. He has gained insight and a better understanding about the consequences of his actions. There is a willingness to participate in counselling and rehabilitative programming. He is intelligent, capable of gaining greater insight, has had no past history of conflict with the law and not only is he a first time offender, there is no history of criminality in his immediate family and they are supportive.

[13] As a consequence of his offences and taking responsibility for them, Mr. Masho has opened up to his family about his own internal conflict which I understand was a near impossibility for him previously in part because of his family's cultural and religious background. He now has enormous support from his family and this was evident in court during his sentencing hearing. And while as I say there is a reason for caution based on one or two remarks he made about trying to explain why he may have acted in the manner he did, including a perceived undiagnosed psychiatric condition or perhaps not taking his medication as prescribed, Mr. Masho at least appears on the face of what I have read and heard to be the best candidate I have seen for rehabilitation in regard to these particular these offences.

[14] I am not discounting the importance of denunciation and deterrence. As I said, the custodial sentence the Crown seeks is very reasonable with those objectives in mind but in the circumstances of this case and this offender, I hold the opinion that it is in the long-term best interests of the protection of the public to recognize the value of rehabilitation. I am therefore persuaded that a lesser period of custody will not only meet the primary considerations but will go further toward the long-term protection of society. It may be noteworthy to add that although Dr. Johnston didn't engage in any extensive clinical analysis or actuarial testing to address Mr. Masho's likelihood to reoffend, he appeared to entertain the belief that Mr. Masho might likely be a low-risk to reoffend having regard to certain findings he's familiar with from a Canadian study on recidivism of men charged with child pornography offences.

Sentence

[15] On information 13-11874, (count #3) you are sentenced to 16 months custody followed by 3 years of probation on these conditions (See Probation Form).

[16] On information 16-11537 (count #3) you are sentenced to 18 months custody followed by 3 years of probation on the same conditions outlined in 13-11874 (See Probation Form). This sentence is concurrent to Information 13-11874.

[17] Ancillary orders will be the same on both counts in both informations; namely, registration as a sex offender is mandatory for life pursuant to the SOIRA. A sample of bodily fluid for DNA is also prescribed by the code as mandatory. A prohibition order pursuant to s. 161 will be in place for 15 years (See separate form with conditions).

Released: May 24, 2017

Greg A. Campbell, Justice