WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Date: November 3, 2017
Between:
Her Majesty the Queen
— and —
M.M.
Before: Justice M. Speyer
Heard on: August 23 and September 20, 2017
Reasons for Judgment: Delivered orally on October 30, 2017; written reasons released on November 3, 2017
Counsel:
- S. Olver, counsel for the Crown
- J. Rabinovitch, counsel for M.M.
Judgment
M. SPEYER J.:
Introduction
[1] On August 23, 2017, M.M. pled guilty to the following offences: making available child pornography, possessing child pornography and making child pornography. These offences occurred between July 2016 and February 2017. He also pled guilty to sexual assault and sexual exploitation of his step daughter K.M. These offences occurred between August 2014 and August 2016 when K.M. was approximately 13 to 17 years of age. She is now 19 years old. These offences came to light following a search of M.M.'s home and computers.
Circumstances of the Offences
[2] Prior to his arrest, M.M. lived with his common-law wife T.S. for approximately 14 years, with her daughter K.M., and their 9-year-old biological daughter, A.M. M.M. and T.S. had an open relationship where extramarital sex was permitted. The details of their sex lives were openly discussed with K.M. Both M.M. and K.M. would routinely walk around their house dressed in underwear, including a thong. M.M. and his wife gave K.M. a dildo when she was 14 years old.
[3] In a statement to police, M.M. admitted that he had a longstanding sexual attraction to his stepdaughter from the time she was 13 years old. He admitted that over the years he has given K.M. over 60 massages while she was lying on her bed in her bedroom. He initially denied any sexual impropriety during these massages. However, a search of the accused's computer revealed hundreds of child pornography images of K.M., in which she is lying on her bed, with her anal and vaginal areas exposed to the camera. In some of these images, M.M.'s hands are seen touching K.M.'s vagina. In other images, M.M.'s penis is seen touching K.M.'s exposed buttocks. K.M.'s face is visible in some of these images.
[4] K.M. provided a statement to police in which she confirmed that M.M. would give her massages in the evening, while she lay on her bed in her bedroom. She would sometimes fall asleep during these sessions and was not aware that he had touched her genital areas or taken photographs of her. She told police that M.M. would talk about sex with her and would send her texts asking to massage her because he was horny. On other occasions, when she was 16 to 17 years old, M.M. would rub her upper thigh while teaching her how to drive. On one occasion, in front of her mother, M.M. told K.M. "I want to fuck you".
[5] A search of M.M.'s computer revealed a total of 958 images of child pornography, 894 of which were images of K.M. posed in a sexualized manner and several depicted the accused sexually touching K.M. with his hands or penis. Of these, 188 were unique images and the rest were duplicates. M.M. also had 21 unique child abuse photographs and 18 unique child abuse videos of other female children. These images consist of girls posed to show their genital areas, girls performing fellatio on adult men, and girls, some as young as two, being vaginally penetrated by adult males.
[6] M.M. admitted that he had downloaded these child abuse images from an internet chat room called "ChatStep". He also admitted that he had uploaded onto this site, child pornography images of K.M., including images where K.M.'s face is visible. There is evidence that M.M. talked to other users of this site about K.M. and shared images of her.
Impact on the Complainant
[7] K.M. told the writer of the pre-sentence report that these offences have had a devastating effect on her. She feels betrayed by the accused, who she was close to. She now finds it difficult to trust people. She reported that she thinks about these offences constantly and finds it hard to stay focused. She is in counselling to help her cope with the emotional toll of these offences. Moreover, her family has been torn apart because her younger half-sister, A.M., has been placed by the Children's Aid Society in the foster care of the accused's eldest brother.
[8] M.M.'s relationship with T.S., his common law spouse, ended as a result of these charges. T.S. declined to provide a victim-impact statement.
Circumstances of the Offender
[9] M.M. is 41 years old with no prior criminal record. He was raised in a close family, free from any emotional, physical or sexual abuse. His family is aware of these charges and is still very supportive of him. M.M. has a high school education and has maintained steady employment as a labourer. He does not have any substance issues. He describes himself as an honest person who is always ready to lend a hand. He told the writer of the pre-sentence report that he considers himself to be a family man who prefers to stay home with family members than to go out. He reported having few close friendships, although he did have a close friend who passed away in 2008.
[10] M.M. has not been diagnosed with any sexual paraphilia. He reported to the author of the pre-sentence report that he is attracted to adult females. He acknowledged that he developed a strong interest in internet pornography and chat rooms where sex with step-daughters was discussed. He admitted to viewing pornography about 3 times a week and masturbating to step-daughter related pornography. However, he minimized the extent to which he sexually abused his own step-daughter and the number of sexualized images he had taken of her. He also seemed to have no appreciation for the harm done to the other children in the images that did not involve K.M. At one point, he told the author of the pre-sentence report that he believed that all the pornography he viewed was consensual. The author of the pre-sentence report noted that while M.M. expressed shame and remorse for his behaviour, it was more because of the effect that these offences have had on his own life, rather than the damage he has inflicted on K.M.
Position of the Parties
[11] Both parties agree that a jail sentence is required to give effect to the objectives of denunciation and deterrence, and to reflect the seriousness of the offences. The issue is the length of time that is appropriate in the circumstances of this case. The Crown is advocating for a global sentence of between 4 and 5 years, less credit from pretrial custody, which as of today is 244 days, or one year on a 1.5 to 1 credit basis. The Crown argues that given the aggravating factors and the high moral culpability of the defendant, a significant penitentiary sentence is required to send a strong message of denunciation and deterrence.
[12] Counsel for M.M. argues that a sentence of 3 years less pretrial custody, is appropriate in these circumstances. He submits that such a sentence would serve to not only deter and denounce these offences, but also help promote M.M.'s rehabilitation and protect the community through the imposition of a lengthy period of probation.
Analysis
[13] 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
[14] When dealing with crimes against children, s. 718.01 of the Code requires courts give primary consideration to the objectives of denunciation and deterrence of such conduct.
[15] Section 163.1(2) of the Criminal Code, making child pornography and s. 163.1(3), making available child pornography, carry a one year minimum jail sentence, as does s. 163.1(4), simple possession of child pornography, when proceeded by indictment. Section 271, sexual assault, and s. 153(1.1)(a), sexual exploitation of a person under the age of 16 years, also carry a one-year minimum jail sentence when the Crown proceeds by indictment, as it did in this case. Further s. 718.3(7), requires that a sentence for an offence pursuant to s. 163.1 shall be served consecutively to any other sentence of imprisonment imposed for a sexual offence against a child. Accordingly, the sentences for count 1 making available child pornography; count 2, possessing child pornography and count 5 making child pornography, may be served concurrently to each other, but must be served consecutively to count 6, sexual exploitation and count 8, sexual assault.
[16] Section 718.1 of the Code states that a fundamental principle of sentencing is that the sentence imposed must be 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. This entails an analysis and balancing of the aggravating and mitigating circumstances of the offence. A sentence will be increased or reduced to account for aggravating or mitigating factors.
[17] Courts have recognized that accessing and possessing child pornography is a morally reprehensible crime that must be penalized for the protection of children everywhere in the world. 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 abuse in an electronic image, creates a record of that abuse, and permits the perpetrator to share that abuse with others throughout the world. By downloading these images the offender also participates in and encourages the existence of a market for these terrible kinds of crimes. Chat-rooms, such as the one frequented by M.M., provide a forum in which purveyors and consumers of child abuse can exchange their stories and images. These forums encourage participants to believe that what they are doing is accepted and admired by others. This perpetuates and compounds the problem by fuelling the growth in creation and distribution of child pornography. See: R. v. Sharpe (2001), 2001 SCC 2, 150 C.C.C. (3d) 321 (S.C.C.); R. v. Bock, 2010 ONSC 3117, [2010] O.J. No. 2277 (Ont. S.C.), at paragraphs 30 and 31; R. v. Dumais, 2011 ONSC 276, [2011] O.J. No. 116 (Ont. S.C.) at para. 13; R. v. Kwok, [2007] O.J. No. 457 at paragraph 50.
[18] Similarly, appellate courts have repeatedly emphasized that when dealing with sexual crimes against children, absent exceptional circumstances, the objectives of denunciation, deterrence and separation of the offender from society must take precedence over other recognized sentencing objectives. This approach is required to protect children and to recognize the long term damage done to them by offenders. Predators who abuse children to satisfy their own deviant sexual needs must know they will pay a heavy price. See R. v. D.D., [2002] O.J. No. 1061 (C.A.).
[19] In R. v. Kwok, supra, at para. 7, Justice Molloy set out a number of applicable mitigating and aggravating factors to consider when determining the appropriate sentence for child pornography offences:
Generally speaking, any of the following are considered to be aggravating factors: (i) a criminal record for similar or related offences; (ii) whether there was also production or distribution of the pornography; (iii) the size of the pornography collection; (iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet. Generally recognized mitigating factors include: (i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community).
Mitigating Factors
[20] Turning first to the mitigating factors present in this case:
[21] M.M. has pled guilty and has spared K.M. from testifying. In pleading guilty he accepted responsibility for his crimes. He has expressed his remorse to the court and to the author of the pre-sentence report. However, I agree with the observation made by pre-sentence report writer that M.M.'s expression of remorse is more about the consequences of these offences on his life, rather than an acknowledgement and remorse for the harm he has inflicted on K.M. Furthermore, he minimized his offending behaviour to the author of the pre-sentence report, suggesting he has not fully come to grips with the enormity of his crimes.
[22] On the other hand, I acknowledge that M.M. was co-operative with the police and made inculpatory statements to them. He was forthcoming in admitting responsibility for the child pornography images found on the family computer. He admitted his attraction to K.M. and his participation in the step-daughter related chat-rooms. He was visibly shaken when the officers confronted him with the seriousness of putting K.M.'s images on the internet.
[23] M.M. has not been diagnosed as a pedophile and he has indicated a willingness to submit himself to counselling and treatment. I do not have the benefit of a risk assessment, however, I agree that M.M.'s willingness to undergo treatment is a positive step. It suggests that his risk to reoffend in the future is reduced. Indeed, the main argument made by his counsel is that he would get better treatment in a reformatory setting such as at the Ontario Correctional Institute, than in a penitentiary.
[24] M.M. has no previous record and is otherwise of good character. He was employed at an automobile shop and said that this work will still be available to him upon his release from custody. He also has a supportive, pro-social family who will continue to support him when he is released. This should make re-integration into society easier for him once he is released from custody.
[25] I also appreciate that these offences have had a significant impact on M.M.'s family and his relationship with them. His marriage has broken down. His youngest daughter, A.M., was taken from the family home and he is prohibited from contacting her. M.M. told the author of the pre-sentence report that the loss of his daughter causes him emotional grief on a daily basis.
Aggravating Factors
[26] Turning now to what I view as the aggravating factors in this case.
[27] Section 718.2(a)(ii.1) states that an offence against a person under the age of 18 is an aggravating factor. It is also an aggravating factor when an offender abuses a position of trust or authority in relation to the victim – see s. 718.2(a)(iii). Clearly, both of these aggravating factors are present in this case.
[28] In perpetrating offences against his step-daughter, M.M. abused his position of trust as a father figure. There is evidence that he groomed K.M. from an early age to accept that sexual contact between them was normal. I refer here to the openness with which he discussed sex with K.M.; the fact that K.M. and he would be in various states of undress in the home; his sexually suggestive text messages; rubbing K.M.'s thigh as he taught her to drive; telling K.M., in front of her mother, that he wanted to have sex with her; purchasing her a sex toy to encourage sexualization; massaging her while she was in various states of undress late in the evening when they were alone. These are all indicators that M.M. was grooming K.M. to have sex with him.
[29] M.M. exploited K.M.'s vulnerability for his own sexual needs. The court heard evidence that K.M. suffers from mental health disorders. M.M. gave her massages to relieve her stress and anxiety. The sexual abuse of K.M. occurred during these massage sessions and escalated when she was asleep. I agree with the Crown's submissions that the fact that K.M. was unaware of the sexual touching or the photographs, does not lessen the gravity of the offences. It merely allowed M.M. to continue his criminal behavior without risk of detection.
[30] These offences occurred over a long period of time. In relation to K.M., the abuse began when she was approximately 13 years of age and continued until she was 17. They were not momentary or isolated incidents. Similarly, M.M.'s access and possession of child pornography occurred over many months and with some frequency.
[31] Another aggravating factor in this case is the nature of the child pornography images found on M.M.'s computer. A sampling of the images viewed by the court are extremely disturbing. Some of these images depict fellatio and penetration of very young girls, some as young as two. These types of images must attract a lengthier sentence to reflect the seriousness of the abuse perpetrated on the children.
[32] The images of K.M. are equally disturbing, all the more so because K.M.'s identity is discerned in some of them. M.M. created these images not only for his own sexual gratification but also for the sexual gratification of other like-minded individuals, thereby perpetuating the sexual degradation of K.M. in perpetuity. Once these images are on the internet, they are very difficult, if not impossible, to eliminate. In my view, this is the grossest breach of trust that a parent can inflict on a child. The Criminal Code and the courts have recognized that making child pornography and making available child pornography are more serious offences than simple possession of child pornography, and attract lengthier sentences.
[33] M.M. is wholly responsible for these offences and his moral culpability in them is significant. He took great care in grooming and exploiting K.M. for his own sexual gratification over a lengthy period of time. He also went to great lengths to photograph his abuse of K.M., store them on his computer and share them with others for their sexual gratification. His behaviour was reprehensible.
Sentencing Decision
[34] Counsel for M.M. urges me to consider a global sentence of three years less pretrial custody of one year. Such a sentence will allow him to serve the sentence at the Ontario Correctional Institute where he will be required to take treatment. He could also be placed on probation to continue counselling. Counsel argues that this will ensure the safety of the community and M.M.'s safe reintegration into the community. He also submits that M.M.'s sexual preferences are ingrained and can explain why he committed these offences.
[35] I do not accept defence counsel's submission. In my view a total sentence of 3 years for these offences is simply inadequate to reflect the seriousness of the offences and the degree of harm done to K.M. and to the other children who are depicted in the child abuse images in M.M.'s possession.
[36] There is no evidence before me that M.M. is a pedophile who is predisposed to be sexually attracted to children. To the contrary, he told the author of the presentence report that he is attracted to adult females. He also told police that he was never attracted to his own biological daughter A.M. This indicates that M.M. made a deliberate choice to target and sexually abuse K.M.
[37] There is no evidence before me that M.M. would be sent to the Ontario Correctional Institute to serve his sentence or that he could not access similar programs in a penitentiary setting. I am aware, from other cases in these courts, that treatment for sexual offending behaviour is available in the penitentiary. M.M. has indicated he is prepared to participate in these programs and there is no reason to think he will not have those opportunities in a penitentiary setting. Moreover, appellate courts have expressly instructed sentencing judges that denunciation and deterrence must be given priority over other sentencing principles such as rehabilitation.
[38] In my view an appropriate global sentence in this case is one of 4 and ½ years. This is based on the applicable provisions of the Criminal Code, my assessment of the seriousness of the offences, the mitigating and aggravating factors identified above, the moral culpability of M.M. and the principle of totality of sentence. The sentence will be apportioned as follows:
On count 1, s. 163.1(3) make available child pornography: 36 months
On count 2 s. 163.1(4) possess child pornography: 18 months, concurrent
On count 5 s. 163.1(2) making child pornography: 36 months concurrent
On count 6 sexual exploitation of K.M.: 18 months consecutive to counts 1, 2 and 5
On count 8 sexual assault of K.M.: 18 months concurrent to count 6
Total sentence of 48 months, less pre-trial custody of 12 months, leaving a balance to serve of 42 months (3 ½ years).
Ancillary Orders
[39] In addition, I make the following ancillary orders:
- DNA – all offences are primary designated offences
- SOIRA – lifetime order
- s. 109 – Firearm prohibition order for 10 years
- s. 743.2(1) – order prohibiting contact with K.M. while serving sentence
- s. 164.2 – forfeiture of computers
[40] In light of the SCC decision in R. v. K.R.J., and other appellate authorities, I will hear counsel's submissions regarding which subsections of s. 161 apply, and how they may be tailored to apply to the specific risks posed by M.M.
Released: November 3, 2017
Signed: Justice M. Speyer