ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-50000653-0000
DATE: 20120710

BETWEEN:

HER MAJESTY THE QUEEN – and – OLDRICH PELICH Accused

Amanda Camara, for the Crown
Christopher Biscoe, for the Accused

HEARD: July 9, 2012

DUNNET J.: (orally)

REASONS FOR SENTENCE

[1] Oldrich Pelich has been convicted following a trial before me of three counts of possession of child pornography, two counts of making child pornography available and one count of accessing child pornography.

[2] The facts giving rise to these convictions are that on June 5, 2008 and on July 15, 2008, Officer Christopher Purchas was conducting an undercover investigation of a publicly available internet file sharing network called Gnutella that allows users of a peer to peer file sharing program called LimeWire to search for and share files with other internet users of the same or similar program.

[3] On both days, Officer Purchas made a direct connection with Mr. Pelich’s computer which was actively downloading child pornography files. As the officer captured them on June 5, 2008, the number of files increased from 27 at 5:25 pm to 50 at 5:35 pm. On July 15, 2008, the number increased from 38 at 5:49 am to 96 at 6:13 am.

[4] Officer Purchas downloaded a number of child pornography files from Mr. Pelich’s computer. The child pornography files that he downloaded on July 15, 2008 were different from those he downloaded on June 5, 2008.

[5] During a search of Mr. Pelich’s apartment, a laptop, computer tower and eight disks were seized, all of which contained child pornography. On the laptop, there were 125 unique images of 136 total images. On the tower, there were 1,617 unique images of 4,730 total images. On the disks, there were 3,518 images and 92 videos and the dates on which they were last modified covered a period of seven years from June 2001 to July 2008.

[6] The vast majority of the images and videos depicted six to 10 year old girls in oral, vaginal and anal acts with adult males. In addition, there were female toddlers depicted in sexual acts with adult males. On the videos, there were actual rapes of young girls with adult males.

Aggravating Factors

[7] Mr. Pelich not only possessed child pornography; he made it available to others via the internet. On June 5, 2008, the officer was “queued on position 8” for the file “6yo PTHC Preteen Showing Pussy Spread Open”, meaning that seven other users were ahead of him in line to obtain the same image.

[8] Given the number of files that Officer Purchas was able to observe and download on June 5, 2008 and on July 15, 2008, as well as the number of files that the automated police investigative tool was able to log on June 20, June 21 and July 13, 2008, there is no issue that Mr. Pelich was actively engaged in amassing a sizeable collection of child pornography.

[9] This was not a case where he simply viewed the images. He downloaded them and created a permanent collection on disks in order to free up space on his computer so that could download more images. He labelled the disks innocuously, using the name of an American rock band in order to hide the contents from others.

[10] Mr. Pelich was a sophisticated computer user. Indeed, this sophistication and knowledge was a requirement of his occupation working as a master control operator for a television network. For years, he had been using his knowledge of computer programs to conduct this activity involving prepubescent girls engaged in various acts of depravity with adult males.

Mitigating Factors

[11] Mr. Pelich is before the court as a first-time, although not a youthful, offender. He is 45 years of age and he has been gainfully employed in the film and television industry since he completed his education. He appears to be of good character, although there is no pre-sentence or psychiatric report or any other evidence before the court to demonstrate whether Mr. Pelich has insight into these serious crimes or whether he is willing to undergo treatment or counselling. There is no evidence of remorse. When he was asked if he wished to address the court today, he continued to maintain his innocence.

[12] His counsel submits that as a result of these charges, Mr. Pelich lost his job and has declared bankruptcy. His counsel also submits that Mr. Pelich has been separated from his wife since 2004 and his girlfriend left him in 2009. He has no children. It is alleged that he suffers from anxiety and depression.

The Positions of the Parties

[13] The Crown relies on the following cases: R. v. D.G.F., 2010 ONCA 27, 250 C.C.C. (3d) 291; R. v. Kwok, [2007] O.J. No. 457, 2007 2942 (Sup. Ct. J.); R. v. Lynch-Staunton, 2012 ONSC 218, [2012] O.J. No. 313; R. v. Dumais, 2011 ONSC 276, [2011] O.J. No. 116; R. v. Dean, [2010] O.J. No. 5305 (Sup. Ct. J.); R. v. Bock, 2010 ONSC 3117, [2010] O.J. No. 2277; R. v. Connor, [2009] O.J. No. 6369 (Sup. Ct. J.); R. v. Smith, [2008] O.J. No. 4558 (Sup. Ct. J.); R. v. Mathieson, 2010 ONCJ 616, [2010] O.J. No. 5588; and R. v. L.B., 2010 ONCJ 450, [2010] O.J. No. 4224.

[14] The parties agree that given that the actus reus is identical, by virtue of the technology involved, for count one (possession) and count two (making available) on June 5, 2008 and similarly, for count three (possession) and count four (making available) on July 15, 2008, counts one and three should be stayed pursuant to R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729.

[15] It is the position of the Crown that a five year penitentiary term is warranted in this case because, unlike the charges in Smith, Bock and L.B., there are two separate transactions where child pornography was downloaded. It is submitted that for this reason, those offences should be given consecutive terms.

[16] On behalf of Mr. Pelich, it is submitted that an upper reformatory sentence is appropriate and that the sentences should be served concurrently, because they form part of the same transaction whereby Mr. Pelich was building his collection of child pornography. The defence contends that the number of images and videos in this case does not warrant a penitentiary sentence.

[17] I note that in Connor, there were two charges of possession of child pornography and two charges of making child pornography available. A large volume of child pornography was found on Mr. Connor’s computer. He had obtained the pornography through a file sharing program and had also made his collection available to others over the internet using that program. The offences related to a period of time between January and December, 2006 and the court held that they were appropriately treated as one ongoing offence covering that time span.

[18] At paragraph 78 in Connor, Molloy J. held:

There is considerable overlap between the possession counts and the making available counts, although they are not identical. Both counsel agree that in these circumstances the pornography sentences should be concurrent.

[19] The defence submits that Mr. Pelich should also receive some credit for four years of house arrest, because he lost his employment as a result of these charges.

[20] The Crown contends that no credit should be given for time spent on house arrest, because there was an exception to his conditions of bail permitting Mr. Pelich to be able to look for employment with a letter of permission from his surety, so long as his work did not require him to access the internet.

Analysis

[21] Denunciation and general deterrence are the primary sentencing objectives for these crimes.

[22] In R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at paragraph 8, the Supreme Court of Canada held:

To be sure, offences involving child pornography are particularly insidious. They breed a demand for images that exploit vulnerable children, both economically and morally. Understandably, offences of this sort evoke a strong emotional response. They generate widespread condemnation and intense feelings of disapprobation, if not revulsion.

[23] The Ontario Court of Appeal in R. v. D.G.F. commented on these crimes as they relate to the dissemination of child pornography over the internet. Feldman J.A. stated at paragraphs 21-22:

Over the last two decades, courts have been on a learning curve to understand both the extent and the effects of the creation and dissemination of child pornography over the Internet and to address the problem appropriately…

Unfortunately, the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution. The victims are innocent children who become props in a perverted show, played out for an ever-wider audience not only of voyeurs but of perpetrators.

[24] In our own court, Clark J. held in R. v. Smith at paragraph 37:

… In recent years the advent of the internet has greatly augmented the production and distribution of this vile and pernicious material. The ability to access child pornography in the privacy of one's own home makes it all the more insidious. Therefore, sentences that serve to deter people from accessing this material are required to reduce, in some measure at least, the exploitation of children for this purpose.

[25] In R. v. Bock at paragraph 32, Henderson J. discussed why the offence of making child pornography available is more serious than possession:

…the offence of making available child pornography is incrementally more serious than simple possession as the distribution of child pornography creates a broader market and puts more images in circulation. Each possession, viewing, sharing, downloading, or uploading can be seen as a repetition of the initial hands-on abuse. The more pornographic images that are in circulation and the greater the distribution, the more significant the abuse of the child becomes.

[26] In R. v. Dumais, Ratushny J. explained how the internet enables an easy market for child pornography. She stated that by downloading and possessing these images, a user is participating in the re-victimization of the children in the pictures. The user is viewing their non-ending “virtual rape”. Further, by downloading these images, the user is participating in and encouraging the existence of a market for these kinds of crimes and encouraging others to victimize and commit similar violence against more children (paras. 13-14).

[27] More recently, Ratushny J. reiterated the harm caused by the possession and distribution of child pornography in R. v. Lynch-Staunton at paragraphs 51, 54 and 56:

51 … to view pictures of this kind of violence against children and especially the terrible forced violence against babies and very young children and to not be immediately horrified and driven away from viewing the pictures speaks to a great moral culpability on the part of an offender for having failed to grasp the obvious physical violence being committed against these innocent young lives. Possession of child pornography is not simply an example of a viewing of sexual “naughtiness” or experimentation by others. It is, always, a portrayal of terrible abuse of real children with real and life-long serious consequences.

54 It is the “business” of the possession of child pornography that perpetuates the cycle of the physical and mental abuse of children, even though the possessor is rarely, and certainly not in the present case in terms of the images, the original abuser. As Detective Coakley testified, it is the “new” children being portrayed in child pornography images that attract the most demand in terms of the “trading card mentality” surrounding collections of child pornography. This “value” only means that new and real children are being abused to satisfy the demand.

56 The availability and use of the internet as an easy, fast and relatively anonymous distribution system for child pornography is an additional factor that adds to the gravity of these offences.

[28] I have considered the amount and nature of the images, the extended length of time over which Mr. Pelich accessed and collected the images and the vast number of individuals to whom the images were made available.

[29] There is no evidence before the court that demonstrates remorse or any insight into the offences. There is no evidence that Mr. Pelich is willing to take counselling or treatment.

[30] In all the circumstances, I have concluded that a penitentiary term of four years is appropriate to reflect society’s repugnance and abhorrence of these crimes and to deter Mr. Pelich and others from perpetuating the electronic dissemination of images of vulnerable young girls being vaginally, anally and digitally penetrated by adult male predators.

[31] In determining the length of sentence, I have also considered the time spent on bail under house arrest in determining the length of sentence. During the past four years, Mr. Pelich has been required to live with his parents. He has lost his employment. I recognize that there is no evidence before the court to suggest that he ever attempted to obtain employment. Nonetheless, the sheer length of time under house arrest would have impacted his liberty.

[32] Having regard to all the circumstances, Mr. Pelich will received a credit of six months, which includes seven days spent in pre-trial custody.

Disposition

[33] Mr. Pelich, please stand.

[34] For the offence of making child pornography available on June 5, 2008, I sentence you to forty-two months in federal penitentiary.

[35] I am of the view that the principles of consecutive and concurrent sentences give way to the principle of totality and, therefore, for the offence of making child pornography available on July 15, 2008, I sentence you to a concurrent sentence of forty-two months.

[36] In accordance with Kienapple, I direct a conditional stay on the offences of possession of child pornography on June 5, 2008 and on July 15, 2008.

[37] For the offence of possession of child pornography on July 16, 2008, relating to the material contained on the compact disks, I sentence you to two years to be served concurrently to the other offences.

[38] For the offence of accessing child pornography between June 5 and July 16, 2008, I note that in Morelli, at paragraphs 25 to 27, Fish J. held that accessing child pornography is a separate crime, different from possession. He stated that possessing a digital file and viewing it are discrete operations. Thus, viewing and possession should be kept conceptually separate, lest the criminal law be left without the analytical tools necessary to distinguish between storing the underlying data file and merely viewing the representation that is produced when that data, residing elsewhere, is decoded. Accordingly, for the offence of accessing child pornography, I sentence you to one year, to be served concurrently to the other sentences.

[39] Pursuant to s. 487.051 (b) of the Criminal Code, R.S.C. 1985, c. C-46, I order that you provide such samples of your bodily substances as may be required for forensic analysis.

[40] Pursuant to s. 164.2 of the Criminal Code, I order that the Toshiba laptop, computer tower, eight disks marked Exhibit 8a to 8h, the disk containing the child pornographic images downloaded by Officer Purchas marked Exhibit 13 and the disk containing representative samples of child pornographic images marked Exhibit 20 are forfeited to the Crown.

[41] Pursuant to s. 490.012(1) of the Criminal Code, I order that you comply with the requirements of the Sex Offender Information Registration Act, S.C. 2004, c. 10 for twenty years.

[42] Given that the court has no information on the risk that you pose, I order, pursuant to s. 161 of the Criminal Code, that you are prohibited for life from attending a public park or public swimming area where persons under the age of sixteen are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre.

[43] You are also prohibited for life from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, 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 sixteen years. Finally, you are prohibited for life from using a computer system within the meaning of s. 342.1(2) of the Criminal Code for the purpose of communicating with a person under the age of sixteen years.

Dunnet J.

Released: July 10, 2012

COURT FILE NO.: 10-50000653-0000
DATE: 20120710

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – OLDRICH PELICH Accused

REASONS FOR sentence DUNNET J.

Released: July 10, 2012