Court File and Parties

ONTARIO COURT OF JUSTICE

CITATION: R. v. Prendivoj, 2022 ONCJ 257

DATE: 2022 06 06

COURT FILE No.: 3111-998-19-18170

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

TOMISLAV PRENDIVOJ

Before Justice K.L. McLeod

Heard on February December 17, 2021, February 14, 2022, March 17, 2022

Oral Reasons for Judgment released on June 2, 2022

Written Reasons for Judgment released on June 6, 2022

Shazin Karim....................................................................................... counsel for the Crown

Anthony De Marco................................. counsel for the defendant Tomislav Prendivoj

Reasons for Judgment

K.L. McLeod J.:

[1] Mr. Prendivoj is here for sentencing on one charge of possession of child pornography. Ms. Karim for the Crown, elected to proceed by way of summary conviction and is seeking a sentence of between 6 and 9 months of custody plus probation for 12 months and the following ancillary orders: DNA, a Forfeiture order and a SOIRA order for 10 years.

[2] Mr. Prendivoj is represented by Mr. De Marco who submits that a sentence of custody is appropriate, but that given the circumstances of his client, particularly as someone who is suffering from schizophrenia and anxiety, argues the appropriate sentence is one that is served in the community by means of a conditional sentence.

[3] There is no issue that in terms of the principles of sentencing for offences such as these general deterrence and denunciation are the primary objectives. When the focus is general deterrence “the offender is punished more harshly in order to send a message to the public or, in other words, to serve as an example." (See R. v. Bissonnette, 2022 SCC 23 para. 47) (R. v. Inksetter, 2018 ONCA 474, R. v. Friesen, 2020 SCC 9.)

[4] There is also no issue that in any sentence a judge must impose a sentence that is proportionate to the seriousness of the crime and the moral culpability of the offender.

[5] The possession of child pornography is a very serious offence. It is not a passive offence of just downloading and watching; it involves the abuse of real children in the most horrific of ways which are committed to the internet. The memory of the internet is infinite: it never expires. A child victim will live with the knowledge for the rest of his or her life that these images will be forever in the public domain, they will have the psychological scars of abuse. Additionally, each and every time a video or image of a child is viewed, downloaded and/or saved, it perpetuates and indeed fuels a market for this type of image and more children are abused. However as with so many offences, within the spectrum of awful, there must be an assessment of on what end of the “awful spectrum” a particular offence falls.

[6] The issue for me to decide therefore is whether the circumstances of this offence and this offender require a sentence of real incarceration.

[7] I will turn to the circumstances of this offence.

[8] In March of 2019 the IXE (internet Child exploitation unit were investigating those who accessed and possessed child pornography on the internet. Mr. Prendivoj "collection" came to their attention, the officers believed that between February and March of 2019 he had at least 6 what are described as child notable files. A warrant was obtained an executed at Mr. Prendivoj's address. The police seized a computer, USB, DVD and X box. Mr. Prendivoj admitted to possession of child pornography: 20 videos were found on his computer, 4 images on the USB. In total there was 5 and a half hours of videos ranging in length from 4 minutes to 50 minutes of child pornography on his device.

[9] The representative sample of those videos prepared by the Officer, submitted under seal as an exhibit show videos of girls being involved in all kinds of sexual activity and of boys with boys many depicting repeated acts of fellatio, anal and vaginal penetration. All of the children appear to be between the ages of 6 and 16.

[10] I will now turn to the circumstances of this offender which I have gleaned from the following medical documents:

• Letters from Mr. Prendivoj’s psychiatrist,

• Halton Health care discharge notes from Oakville Trafalgar Hospital,

• A letter from Credit Valley Hospital,

• A letter from Mississauga Hospital.

[11] Additionally, I have received a report from Dr. Julian Gojer which is, as usual, thorough in providing the history of this man from various sources.

[12] Mr. Prendivoj is 45 years old. He is from Toronto, his mother is deceased, his father who is now in his late 70's, is a retired aerospace engineer. Mr. Prendivoj has a brother, who is 52 and a dentist. They have, what is described as a good relationship.

[13] Mr. Prendivoj is a graduate of George Brown College and has worked in warehouses almost exclusively performing general labour through agencies.

[14] At the age of 30 Mr. Prendivoj was diagnosed with schizophrenia (paranoid type). He has a history of hospitalizations. He has not worked since October 2021 and is now a recipient of ODSP, living independently in a subsidized apartment in Mississauga with the assistance of a Care Manager through Trillium Health partners with whom he meets one per month. He is also under the care of a psychiatrist and receives an injection of 400 mg of Abilify once per month and also takes Olanzapine.

[15] Dr. Gojer’s report describes Mr. Prendivoj’s symptoms of schizophrenia as being both negative and positive: the negative being slowness of thought, withdrawn and apathy, the positive symptoms are described as thought disorder and hallucinatory experiences which are under control as a result of his medication.

[16] Mr. Prendivoj Snr assisted Dr. Gojer in compiling his son’s psychiatric history. It appears that Mr. Prendivoj was first hospitalized in 2006, was released and did well on medication. When his mother died in 2008, Mr. Prendivoj tried to take his own life by overdosing on his medication. He was hospitalized for 2-3 weeks.

[17] According to Mr. Prendivoj Snr and his son’s psychiatrist Dr. Suny Johnson, Mr. Prendivoj is unable to care fully for himself. The father provides him food, cleans his apartment as it is in poor condition and untidy when he visits him. He also takes his son to receive his monthly injections.

[18] Mr. Prendivoj was arrested on July 23rd, 2019; he had not been taking his medication leading up to arrest. On July 25th, 2019, while in custody Mr. Prendivoj apparently was assaulted by a blow to the head, from which he lost consciousness.

[19] On August 10, 2019, Mr. Prendivoj was admitted to hospital on a Form 1 from Maplehurst. The discharge notes of August 16 states:

[20] The discharging Doctor’s final note stated:

He denies any overt auditory hallucinations but continues to have underlying beliefs relation to extra terrestrial external control in the past but does not quite allude to some of those passivity symptoms current. The patient has limited insight but was willing to comply with his treatment plan.

[21] Throughout his incarceration Mr. Prendivoj received a cocktail of medications: Seroquel 100 mg, Cogentin 2 mg, Risperidone two doses - one of 1 mg and one of 3mg., Abilify 15 mg and Cipralex 20 mg.

[22] Most indicative of Prendivoj’s unwellness at the time of his arrest, however, was that he refused to sign his release papers which had been put in place on July 23rd, the date of his arrest, until August 27th, 2019 and once released was hospitalized at Credit Valley until September 19th 2019. His father described him as being extremely withdrawn upon his release.

[23] In terms of medication compliance since his release, Mr. Prendivoj is described as compliant except on one occasion in March of 2021 when he skipped his monthly injection to see how he did off it. He went to his father’s home, disoriented and was subsequently hospitalized on a Form 1.

[24] Overall Dr. Gojer diagnoses Mr. Prendivoj as suffering from a schizophrenic illness of "moderate severity and not fully controlled", he also opines "It appears that the presence of a poorly treated mental illness can see some individuals have limited ability to control their impulses and it is quite possible that Mr. Prendivoj was cognitively impaired at the time of his offending".

[25] In terms of risk: Dr. Gojer found that Mr. Prendivoj’s pedophilia is independent from his mental illness but that he had never acted on it. Indeed Mr. Prendivoj told Dr. Gojer that he did not interact with children as he did not like interacting with them.

[26] Dr. Gojer concluded that Mr. Prendivoj is "isolated, has no friends and lives a secluded life" and that “his risk of reoffending is depending on two aspects: 1. taking treatment for his schizophrenia and 2. counselling for his pedophilia and use of child pornography. At the present time given his compliance with medication he is of low risk to reoffend”.

[27] As to life in jail for Mr. Prendivoj, Dr. Gojer concluded the following:

Mr. Prendivoj is a vulnerable man and is likely to be taken advantage of in jail. He reports being assaulted once before when in custody. If there is any prospect to manage him in the community with the maximum period of probation, this will assist him in complying with the law and will also allow for his rehabilitation. He is not a good candidate for group counseling ant this is what is usually offered in custody. His treatment in the community can be arranged by his treating team at the trillium or with the assistance of a probation officer.

[28] In terms of community supports: Mr. Prendivoj is fortunate: he has a father who is committed to assisting him, he has a brother who describes him to be an overall good and decent human being who is here today with him and who will continue to ensure he follows all that he is ordered to do. He has a psychiatrist, Dr. Sunny Johnson who detailed in a letter stated November 25, 2021, his knowledge of Mr. Prendivoj's diagnosis and medication and believes that his prognosis is good if he is compliant with medication.

[29] Also, Mr. Prendivoj has a Case manager at Trillium Health Partners which organization has assisted with housing and with whom Mr. Prendivoj continues to meet as scheduled.

[30] I will now finally turn to the balancing I must do.

[31] There is no doubt that the seriousness of Mr. Prendivoj's crime is uncontested for all the reasons explained earlier in this judgment. However, in terms of the factors I must take into account in respect of the assessment of seriousness: (see R. v. Kwok, 2007 2942 (ON SC), [2007] O.J. No. 457) the number of aggravating features of this case that are apposite are few: the size of the collection and the nature and extent of the child pornography.

[32] As the internet expands, so do the number of downloads of images and videos in many child pornography cases; in the previous quoted Inksetter case (supra) there were 28,052 unique images and 1,144 unique videos. The police stopped their investigation at that point before they reviewed a further 1.2 million other images and 40,000 other videos.

[33] There have been cases subsequently that I have rendered judgment over which include many multiples of the Inksetter “collection” (see R. v. Dienaar, 2022 O.J. No. 2011). Additionally, the nature of Mr. Prendivoj’s “collection” while deeply disturbing, does not contain many of the most horrific and vile images that we see in more recent collections. Thus both the size and nature of images and videos are far from the extreme end of the “awful spectrum”.

[34] I now turn to the issue of the extent of Mr. Prendivoj’s moral culpability.

[35] In Friesen (supra) the Supreme Court issued a clarion call for increased sentences to be imposed to represent the seriousness of the offences of the abuse of children including the downloading and viewing of child pornography. The language of the court was direct - courts must increase sentences - but there was a caveat. At paragraph 91 the Court stated:

These comments should not be taken as a direction to disregard relevant factors that may reduce the offences moral culpability. The proportionality principle requires that the punishment imposed be "just and appropriate and nothing more".

[36] The Court goes on to say:

The personal circumstances of offenders can have a mitigating effect. For instance, offenders who suffer from mental disabilities that impose serious cognitive limitations will likely have reduced moral culpability.

[37] Obviously not every offender’s mental illness in every crime will have a mitigating effect. There must be a causal link established between that illness and the commission of the offence. In Mr. Prendivoj's case, his downloading and possession of child pornography was committed during a period of abstinence from his needed medication. The evidence of his unstable state at the time of his arrest and at a more recent time when he went off his medication is indicative of how unwell he is when he is abstinent.

[38] The proximity of Mr. Prendivoj’s offending to his very impaired mental state, I believe, allows me to find his active schizophrenia played a significant role in his offending

[39] The principles of sentencing also require me to consider that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances and that all available sanctions that are reasonable in the circumstances and consistent with the harm done should be considered for all offenders. This is known as the principle of restraint (see Criminal Code S. 718.2)

[40] For guidance on sentencing in this case, I refer to R. v. Batisse, (2009 ) O.J. No. 452) in which the Court of Appeal stated (at para. 38):

Here the appellant's mental health problems played a central role in the commission of the offence. In such circumstances, deterrence and punishment assume less importance. As this court emphasized in R. v. Robinson (1974), 1974 1491 (ON CA), 19 C.C.C. (2d) 193, at p. 197, where offenders commit offences while they are out of touch with reality due to mental illness, specific deterrence is meaningless to them. Further, general deterrence is unlikely to be achieved either since people with mental illnesses that contribute to the commission of a crime will not usually be deterred by the punishment of others. As well, severe punishment is less appropriate in cases of persons with mental illnesses since it would be disproportionate to the degree of responsibility of the offender. In such circumstances, the primary concern in sentencing shifts from deterrence to treatment as that is the best means of ensuring the protection of the public and that the offending conduct is not repeated.

[41] Another factor in determining the degree of responsibility of an offender and the appropriateness of a real jail sentence is that I must also take into account the fact that the impact of incarceration on someone like Mr. Prendivoj can lead to a disproportionate effect. In this case that is not a speculative assessment: it is obvious as Mr. Prendivoj was incarcerated for over a month and the account of how unwell he became has already been recounted in this judgment.

[42] Conditional sentences have been imposed in cases of child pornography: I will refer to one in particular: a decision of Justice D. Harris: R. v. Rytel, 2019 ONSC 5541 of the Superior Court in this jurisdiction, in which he imposed a 15-month conditional sentence. This was a case of a man with severe mental and cognitive illness who had a large collection 4000 movies and 10,000 still images including a high number of very young children including babies.

[43] I do not have any results of cognitive testing on Mr. Prendivoj but given his history of menial work and his present lifestyle, which is significantly limited by his illness, it is fair to assume he cannot function well in society.

[44] Like Justice Harris in Rytel therefore: I have a well founded and established concerns that should Mr. Prendivoj be committed to jail, it is highly likely this health will deteriorate, and his safety will be compromised despite the best efforts of the institutions.

[45] The principles and objectives of sentencing allow for flexibility dependent on the circumstances, that flexibility must allow for a “just” sentence for each offender. The principles of sentencing including, those of restraint do not dictate that a sentence of real jail is the only appropriate sentence for this offence and a man such as Mr. Prendivoj who is seriously mentally ill, whose illness was obviously particularly florid upon his admission to jail - an indication that his medication was either non-existent or no longer effective - who is a first offender who has pleaded guilty.

[46] This man is not a complicated man: he leads a simple life supported by a small group of family and community, he is stable but not in remission and not able to function like a normal person - he has no job, no social life, he cannot keep his home clean, he does not cook and is reliant on an elderly father and his brother for much.

[47] Proportionality requires that his man be allowed to remain in the community, with stipulations of state monitoring and assistance.

[48] There will be a conditional sentence for 6 months followed by 2 years of probation. The conditions for both orders will be the same:

He will report as directed, with special consideration given mode of reporting given his limitations.

He will abide by the statutory terms and in addition:

He will continue to see his psychiatrist or designate on a monthly basis.

He will take counselling for pedophilia as recommended by his supervisor/probation officer in consultation with his case manager at Trillium Health partners, possibly at the CAMH Sexual Behaviours Clinic and provide proof of attendance and completion of any assessments, counselling or programmes. He will not however be mandated to undergo phallometric testing.

He will not access any child pornography websites or chat rooms that discuss child abuse.

[49] Finally, there will be the ancillary orders of DNA, SOIRA for 10 years and a Forfeiture Order.

[50] Given Mr. Prendivoj subsists on ODSP, the Victim Fine Surcharge will be waived.

Released: June 6, 2022

Signed: Justice K. L. McLeod