Her Majesty the Queen v. D.L., 2012 ONSC 2791

ONTARIO

SUPERIOR COURT OF JUSTICE

(Toronto Region)

B E T W E E N:

Her Majesty the Queen

Allison MacPherson, for the Crown

• and -

D.L.

William Reid, for the Accused

Released: April 25, 2012

REASONS FOR SENTENCE

Thorburn J.

WARNING

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code.

1. Background

1D.L. was convicted by a jury of possession of child pornography, making child pornography available, counselling a fourteen year old person, K.R., to make child pornography, which she did not do, and communicating with K.R. for the purpose of making child pornography available.

2D.L. corresponded by email with K.R. and her adult boyfriend D.C. using the pseudonym writhe90210. In the emails, D.C. and K.R. discussed with D.L. the possibility of D.L. having sex with K.R. in exchange for child pornography. D.L. told them he had an extensive collection of child pornography. D.L. sent weblinks containing child pornography to K.R. knowing she was fourteen years old.

3On October 8, 2008, D.L. asked K.R.: “Is D.C. sending pictures of the 13 year old? [M.H.] Ah, got it via email. Do you get a lot of pics of young girls that you met online?”

4Later that evening, D.L. asked K.R.:

Writhe: Anyway, so yeah. If you want to snap a few nudes and close ups when you can and send them along, I’ll reciprocate with another batch of pics, until we work out a full deal as it were. naked. pussy shots. ass shots. it’s all good..

K.R.: Okay.

Writhe: ..as well, anything with you and a younger girl getting sexified is also good.

K.R.: lol i don’t know any younger girls, sadly that are sluts and would do that with me.

Writhe: again...planning ahead.

Writhe: maybe we could also work something out with pics of you and your sis... [K.R.’s sister was four years old at the time]

K.R.: Oh definitely not. Oh just pics? Erm...maybe...

Writhe: let the idea stew for a bit.

K.R.: sorry I read things wrong sometimes, I thought you wanted me to involve her lol. Um pics..eh..maybe..its hard to catch her alone.

Writhe: no involvement? Well..the dream is there. You don’t babysit?

5D.L. told K.R. he was attracted to teenagers and some younger girls too. He told her, “I am an equal opportunity perv, so basically any chic is fair game.”

6All of these conversations took place over a few days. There is no evidence of any further chats after October 2008.

7Approximately sixteen months later, on February 24, 2010, police executed a search warrant at D.L.’s home. Four of the five images on the disk seized during execution of the search warrant at D.L.’s home constitute child pornography. That disk was found next to D.L.’s computer and contained a copy of D.L.’s resume. Five images from D.L.’s computer matched the hyperlink images that writhe90210 made available to K.R. while they chatted. 5563 images of child pornography were found on D.L.’s computer in unallocated space and 2842 of those images were unique. None of the images found in the unallocated space contained pornographic pictures of K.R. or M.H. There were a number of animation images of child pornography.

8On D.L.’s home computer, police found email addresses for K.R. and “writhe” in unallocated space.

2. Circumstances of the Offender

9D.L. presented a report from Dr. Gojer, an expert in forensic psychiatry, and Dr. Gojer testified on the sentencing hearing. Dr. Gojer reviewed the on-line chats between D.L., K.R. and D.C., he interviewed D.L., he observed D.L. in group, he read the Pre-Sentence Report and reviewed a report of an interview with D.L.’s parents that was conducted by a social worker. He did not interview any of the women with whom D.L. had previous relationships nor did he speak to the therapist D.L. was seeing from 2008 to 2011.

10According to D.L. he grew up in a loving home. His parents are together and he has one sister. He has never been physically or sexually abused. D.L. is a graduate of the Ontario College of Art and Design. He has done design work for software development companies but his employment was terminated upon his arrest.

11D.L. was married in 2005 but he says that after his partner cheated on him several times, they stopped relating sexually and he began turning to the internet and pornography as a sexual release. D.L. and his wife separated in 2006 and D.L. said he became very depressed. He then began another relationship that was “not progressing well.”

12In 2008 (before these offences were committed) he began seeing a therapist to help deal with depression and anxiety. The sessions focused on support and dealing with his relations with adult women.

13In August 2008, he felt that pornography had become a compulsive outlet for him and he felt embarassed and fearful of discussing his use of child pornography with his therapist. He did not tell her about these charges until after his conviction and stopped seeing her shortly after his conviction.

14D.L. told Dr. Gojer “that he has no fantasies or interests in raping or physically hurting anyone.” He told Dr. Gojer that with the therapy he has had since coming to the clinic, he recognizes that he did have pedophilic thoughts more directed to pubescent females.

15However, D.L. told the probation officer who prepared the Pre-Sentence Report that he had no sexual urges toward children.

16Dr. Gojer concludes that, “Given his prior prosocial history and capacity to relate sexually to adult females, his remorse and his psychological mindedness, I believe that, with treatment while in custody, he will make excellent progress, will come out being a significantly lower risk to the public, will be able to establish healthy adult relationships, and will not reoffend. He will require sex offender treatment while in custody and I am happy to take him back into group counselling when released.”

3. The Law

17Child pornography is defined in s. 163.1(1) of the Criminal Code as:

(a) a photographic, film, video or other visual representation, …

(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;

(b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act; or

(c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.

18The physical acts related to making child pornography available are identical to those that pertain to the charge of possession of child pornography. As such, the rule against multiple convictions is engaged and a stay of proceedings is entered on the charge of possession of child pornography. (See R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.)

4. The Principles of Sentencing

19The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. All trial judges in Canada are required by law to impose a just sanction that meets one or more of the following six objectives:

i. to denounce unlawful conduct;

ii. to deter the offender and others from committing offences;

iii. to separate offenders from society where necessary;

iv. to assist in the rehabilitation of offenders;

v. to provide reparations for harm done to victims or to the community; and

vi. to promote a sense of responsibility in offenders, and acknowledge the harm done to victims and to the community.

20MacLachlin J. held in R. v. Sharpe, (2001), 2001 SCC 2, 150 C.C.C. (3d) 321 (S.C.C.), at paragraph 158 that:

[C]hild pornography … is inherently harmful to children and to society. … The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. … [Child pornography] preys on pre-existing inequalities.

21Without those who wish to possess child pornography, there is little reason to make it available or distribute it.

22The courts have held therefore that denunciation and deterrence must be a primary focus in cases involving child pornography (See R. v. Stroempl (1995), 1995 CanLII 2283 (ON CA), 105 C.C.C. (3d) 187 (Ont. C.A.)). Denunciation is important to reflect society’s condemnation of certain conduct by punishing those who disobey society’s basic values. Deterrence is important to deter the offender and others who commit such offences.

23The sentence imposed must also be proportionate to the gravity of the offence and the degree of responsibility of the offender. In passing sentence, the court must also be guided in part by similar sentences imposed on similarly situated offenders for similar offences. Counsel have provided me with a number of cases.

24In R. v. Blatchley, 2009 ONCJ 404, the offender pleaded guilty to possession of child pornography and possession for the purpose of distribution. The accused used an internet chat program to communicate with other individuals interested in child pornography and willing to exchange it. Police seized over 1 million images and 1400 videos, much of which was child pornography. Moreover, the offender traded more than 4,000 images of child pornography over a fourteen month period. The offender was sentenced to three years’ imprisonment for distributing child pornography and one year concurrent for possession of child pornography.

25In R. v. Woodward, 2011 ONCA 610, an offender was found guilty of luring a child he knew was only twelve years old for the purpose of committing sexual interference. He engaged in sexually explicit discussion. When he met the child, he put her hand on his penis, had her perform fellatio on him, told her to bend over and had sexual intercourse with her. He lured her to the meeting by promising her millions of dollars if she engaged in sex acts with him. In these circumstances, the Court of Appeal held that a six and one half year sentence was not excessive.

26In R. v. Kwok (2007), 2007 CanLII 2942 (ON SC), 72 W.C.B. (2d) 533 (Ont. S.C.), the offender was sentenced to one year of imprisonment for possession of 2,000 still photographs and 60 video clips of child pornography. (I note that this case was decided before the imposition of the mandatory minimum sentence for making available child pornography.)

27The offender was 29 years old, had no previous record, had lost his part-time job as a flight attendant as a result of these charges, had letters of support from family and friends and the psychiatrist examining him believed he was not a risk to children. On the other hand, the nature and extent of the pornography was determined to be an aggravating factor. Molloy J. found at paragraph 45 that, “It would be very unlikely for a person to have amassed a collection of the nature and size Mr. Kwok had without ever having distributed child pornography to another collector. … I am satisfied he did not produce any pornography himself; I am not satisfied that he did not distribute.” The offender failed to demonstrate any remorse or insight into the harm he had caused.

28In R. v. Vasic, [2009] O.J. No. 1968 (S.C.) the offender received a sentence of two years less a day to be followed by three years probation for making available child pornography and possession of weapons including brass knuckles and knives. The offender was not involved in counselling a minor to engage in pornographic acts or performing pornographic acts on others.

29In R. v. Bono (2008), 79 W.C.B. (2d) 697 (Ont. S.C.) the offender was sentenced to twenty months’ imprisonment for luring a child of fourteen into an on-line relationship that culminated in his asking and her providing images of herself nude committing masturbatory acts.

5. Positions of Crown and Defence

30The Crown and the Defence agree that the paramount principles of sentencing in a case involving child pornography are deterrence and denunciation. They disagree however, as to the length of sentence required to properly address those principles.

31There is a maximum penalty of ten years and a mandatory minimum sentence of one year for making child pornography available: s. 163.1(3)(a). There is a maximum penalty of five years and a minimum sentence of 45 days for possession of child pornography: s. 163.1(4)(a).

32Crown counsel seeks a global sentence of four to five years in a penitentiary.

33Crown counsel also seeks an order that D.L. comply with the requirements of the Sex Offender Information Registration Act for a period of twenty years, an order to provide samples of his DNA, an order to prevent D.L. from attending places likely to be frequented by children, and an order that D.L. forfeit the computer and disks wherein the pornographic material was found. Defence counsel does not contest these requests.

34D.L.’s counsel suggests that an appropriate global sentence is 18 months to two years less one day incarceration to be followed by three years’ probation.

5. Analysis and Conclusion

35In this case, the following mitigating factors are present:

i. D.L. has no previous criminal record;

ii. he has the support of his parents, sister and brother-in-law;

iii. D.L. has expressed his remorse and commenced counseling before trial (but did not acknowledge to the counselor that he was interested in child pornography).

iv. since his conviction he has begun treatment with a psychiatric clinic to attempt to overcome his propensity for child pornography;

v. D.L. was not arrested until 16 ½ months after these offences took place and there is no evidence he committed any further offences before or after these events in October 2008.

36The following aggravating factors are also present:

i. a great deal of offending material was seized;

ii. the material was both collected and distributed to others;

iii. there was a very troublesome email exchange over several days with a young woman D.L. knew to be fourteen.

37The offences in this case are very serious: they involve possession and sending child pornography to others and encouraging a girl D.L. knew to be fourteen to sexually exploit her four year old sister and send him pictures. The offender is a well educated man who had a good job and a supportive family. There was every expectation therefore that he would and should contribute in a positive way to society.

38When he responded to the advertisement “Looking for Lolita” and discovered that there was a fourteen year old girl in need of protection, he should have done his utmost to assist her.

39Instead, he engaged in a protracted internet chat with her over several days during which he counselled her to sexually exploit her little sister who was only four years old, take pictures of her and send them to him. Moreover, he knew the fourteen year old child was being exploited by her “boyfriend” who was a twenty eight year old man who was abusing her. While the fourteen year old child was engaged in sexually explicit conversations, it was clear that she was highly troubled and vulnerable, and D.L. promoted her cognitive distortions.

40I am also troubled by the fact that he did not acknowledge his interest in child pornography to the probation officer although he did acknowledge this to the psychiatrist after conviction and before sentencing.

41However, while denunciation and deterrence are of great concern in cases involving this type of behaviour, the possibility of rehabilitation must not be ignored. The offending behaviour that is the subject of these charges took place over a matter of days. Moreover, although more was to be expected of D.L. given his fortunate circumstances in life, I take some comfort from

the fact that D.L. will be able to rely on his parents to support him in any way they can upon his release from custody. Finally, D.L. has no previous record and has, albeit late in the day, acknowledged his egregious conduct. D.L. has since the time of his conviction seen the need for treatment.

42I also note that D.L. has been largely unemployed as a result of these charges.

43The facts in this case are not as serious as they were in Woodward, in part because there was no sexual assault on the victims and because at lease some of the images were animations that, while violent and pornographic, did not involve the sexual exploitation and degradation of living children. On the other hand, this case is more serious than many cases relied on by the Defence as it involves more than the possession and sharing of images.

44Given the serious nature of these offences, the sentences meted out in similar cases, the aggravating and mitigating factors and the principles of sentencing to be applied, I believe an appropriate global sentence on these charges is three years’ incarceration. Additional ancillary orders will also be imposed as set out below.

45I strongly recommend to the correctional authorities that D.L.’s sentence be served in a facility where he may have access to psychological and/or psychiatric counselling.

46From this thirty six month sentence is to be deducted four months’ credit for the two years and two months time spent on restrictive pre-sentence bail conditions. While he testified at the first bail hearing and indicated that he could continue his employment with these conditions, he soon realized he could not obtain employment and asked for a variation of his bail conditions which request was refused by the Crown.

47Finally, at the request of the Crown, no objection being made counsel for D.L., I make the following ancillary orders:

i. pursuant to section 490.013(2)(b) of the Criminal Code, D.L. shall comply with the requirements of the Sex Offender Information Registration Act for a period of twenty years from today’s date. Given the nature of these convictions, I do not believe this would have a disproportionately adverse effect on D.L.’s privacy or liberty;

ii. pursuant to section 487.051(b)of the Criminal Code, D.L. shall provide such samples of his DNA as may be required for forensic analysis on each charge;

iii. pursuant to section 164.2 of the Criminal Code, D.L. shall forfeit to the Crown the computer upon which some of the pornography was found and the compact disks that also contained child pornography;

iv. pursuant to section 161 of the Criminal Code, D.L. is prohibited from attending at the pools, parks and playgrounds, from seeking, obtaining or continuing

v. employment, whether remunerated or not, 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 fourteen years, or using a computer system within the meaning of section 342.1(2) of the Criminal Code for the purpose of communicating with a person under the age of fourteen for a period of five years from his release; and

vi. D.L. is to have no contact with either K.R. or M.H.

If any of the above conditions are breached, the breach may result in a fine or imprisonment for a maximum of two years or both.

48Upon hearing the submissions of counsel for D.L., his iPhone, the removable hard drive wherein no offending material was found, and D.L.s digital camera are to be returned to him.

THORBURN J.