COURT FILE NO.: CR-11-10000028-00AP

DATE: 20120802

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Man-Keung Hui

BEFORE: Clark J.

COUNSEL:
R. Nathanson, for the Crown
T. Breen, for the Appellan t

HEARD: August 1, 2012

ENDORSEMENT

INTRODUCTION

[ 1 ] This is a summary conviction appeal. The appellant pleaded guilty to the offence of possessing child pornography. He was given a three month conditional sentence and required to register with the Sex Offender Registry. He appeals, arguing that he should have been granted a conditional discharge and should have been exempt from the requirement that he register as a sex offender.

THE FACTS

[ 2 ] For purposes of this appeal, the facts of this matter may be briefly stated.

[ 3 ] On March 21, 2009, the appellant was involved in an internet chat with someone at an email address, “ryan2006@yahoo.com” (“ryan2006). In the course of that exchange, ryan2006 sent the appellant several images of child pornography. The appellant promptly notified Yahoo’s “report abuse” button and notified an enterprise known as Cybertip.ca as well as the F.B.I. The appellant was contacted by a representative from Cybertip.ca and told to contact the local police, which he did.

[ 4 ] On March 26, 2009, the appellant met with the police. After the meeting, the police secured a search warrant and seized the appellant’s computers that evening.

[ 5 ] The appellant attempted to save the images he had been sent, but somehow managed to lose them. The police asked him to contact ryan2006 and ask him to send the images again. When the appellant did as the police asked, ryan2006 insisted that he would only send the images again if the appellant first sent him something equivalent. Without any knowledge on the part of the police, the appellant obliged, sending ryan2006 an image of child pornography that he had had stored for some time on his own computer.

[ 6 ] Subsequent investigation led the police to discover a total of four images of child pornography in the appellant’s possession: two on his computer, saved to a folder entitled, Pornmasterarchives/pornmasterarchive05/kids, and two more on an external hard drive. According to the appellant, one of the images he possessed had been used by someone who, more than a decade earlier, when the appellant was approximately 17 years of age, had abused him sexually. He told police that he had kept the image as a reminder of that bitter and painful experience in his life. As for the other images, the appellant contended that he had no memory of acquiring them, but admitted that, given the way they were stored, he must have knowingly possessed them at some earlier point in time.

[ 7 ] Further police investigation led to the arrest and prosecution of ryan2006. It is conceded by the Crown, that the prosecution of ryan2006 could not have taken place but for the appellant having alerted the police in the first place and having subsequently cooperated with them.

[ 8 ] As for the appellant, the police charged him with possession of the child pornography respecting the found images and with distribution of child pornography vis a vis the one image that he sent to ryan2006.

[ 9 ] On November 1, 2005, Parliament amended s. 163.1 (4) (b) of the Criminal Code to provide a mandatory minimum sentence of 14 days incarceration for the offence of possession of pornography. After some negotiation, the Crown agreed to change the date on the information charging the appellant to reflect a time period before the amendment in order to give the trial judge an unfettered discretion in terms of the sentence to be imposed. I hasten to add two points in this regard: (i) such a change was available on the facts of the case because it was clear that the appellant had possessed the material from a point in time well prior to November 1, 2005 and (ii) the fact of the change was made known to the trial judge. The appellant then pleaded guilty to possession of child pornography and the Crown agreed to withdraw the count of distributing child pornography.

POSITION OF THE APPELLANT

[ 10 ] In terms of the sentence imposed, Mr. Breen suggests that the trial judge made several errors in principle, failed to adequately consider a relevant factor and, as a consequence of those errors, imposed a sentence that was manifestly unfit.

[ 11 ] In terms of the order under s. 490.12 of the Criminal Co de, requiring the appellant to register according to the provisions of the Sex Offender Registration Act (“ SOIRA ”), Mr. Breen contends that the effect of the order on the appellant is grossly disproportionate to the interests that the order is meant to protect.

POSITION OF THE RESPONDENT

[ 12 ] As for the sentence, the respondent asserts that the trial judge made no error in principle, gave adequate consideration to all relevant factors and, in the result, imposed a sentence that was fit in all the circumstances. As such, the sentence is entitled to appellate deference.

[ 13 ] As for the SOIRA order, while acknowledging that the respondent has suffered certain negative effects as a consequence of the proceedings, the respondent asserts that those effects are a function of the fact that he was convicted of this offence and not the fact that he is subject to the SOIRA order per se .

ANALYSIS

Conditional discharge versus Conditional Sentence

[ 14 ] To begin, in sentencing matters, absent (i) an error in principle, (ii) a failure to consider or, in the alternative, overemphasis of a relevant factor, and/or (iii) the sentence being demonstrably unfit, an appellate court must show deference to the sentencing court: R. v. Shropshire , 1995 47 (SCC) , [1995] S.C.J. No. 52, at para. 46 .

[ 15 ] The first error the trial judge made, according to the appellant, is that he considered a range of sentence for the offence of distributing child pornography whereas the appellant was being sentenced for the lesser offence of possession. I disagree.

[ 16 ] In support of his argument, Mr. Breen relies on a passage from the trial judge’s reasons wherein he sets out the range for the distribution offence as being from one to 18 months’ incarceration. He also relies on a remark the trial judge made to the effect that the fact that the appellant pleaded guilty to the possession offence was “a mitigating factor”.

[ 17 ] In R. v. Morrissey , 1995 3498 (ON CA) , [1995] O.J. No. 639, (C.A.)at paragraph 28 , Doherty J.A. stated:

[I]t is wrong to analyze a trial judge's reasons by dissecting them into small pieces and examining each piece in isolation as if it described, or was intended to describe, a legal principle applied by the trial judge. Reasons for judgment must be read as a whole.

[ 18 ] Similarly, in R. v. Davis, 1999 638 (SCC) , [1999] 3 S.C.R. 759, Lamer C.J. spoke of the inappropriateness of “simply plucking colloquial elements [from a] trial judge's thorough reasons” and agreed with the comment of Green J.A., in the judgment of the Newfoundland Court of Appeal who held [1] at p. 316:

It is not sufficient to "cherry pick" certain infelicitous phrases or sentences without enquiring as to whether the literal meaning was effectively neutralized by other passages. This is especially true in the case of a judge sitting alone where other comments made by him or her may make it perfectly clear that he or she did not misapprehend the import of the legal principles involved. As McLachlin J. said in [ R. v. B. (C.R.), 1990 142 (SCC) , [1990] 1 S.C.R. 717 , at p. 737 ]: "[t]he fact that a trial judge misstates himself at one point should not vitiate his ruling if the preponderance of what was said shows that the proper test was applied and if the decision can be justified on the evidence."

[ 19 ] When one reads his reasons as a whole, it is clear that the trial judge knew full well that the appellant had pleaded guilty only to the offence of possession and not to distributing child pornography. The trial judge was entitled, however, to consider in the overall sentencing context the acknowledged fact that the appellant had in fact distributed the one image of child pornography to ryan2006.

[ 20 ] As for the trial judge’s comment that the guilty plea was a “mitigating factor”, I am of the view that this was simply an example of an “infelicitous” remark.

[ 21 ] Mr. Breen alleges further error on the part of the trial judge. While acknowledging that this is a serious offence, counsel contends that a sentencing court must look at an offence in the full context of its surrounding facts. When one does that in this case, Mr. Breen suggests, a number of factors, including the psychiatric evidence to the effect that the appellant is unlikely to be a recidivist, put the appellant at the low end of a continuum of offenders of this sort, such that a conditional discharge was the appropriate disposition. In that vein, Mr. Breen asks rhetorically, if not this offender, then who should be entitled to a conditional discharge? Within that framework, the appellant contends that the trial judge must necessarily have failed to give appropriate consideration to two relevant factors, namely, that the appellant was a first offender and that he contributed to the apprehension and prosecution of ryan2006. I disagree.

[ 22 ] Obviously, a trial judge is obliged in passing sentence to consider the fact that an accused is a first offender. Likewise, where an offender renders meaningful assistance to the authorities leading to the apprehension and prosecution this must be reflected in the sentence.

[ 23 ] In considering that submission, I note that the trial judge made specific mention at several points in his reasons of the fact that the appellant was a first offender and the further fact that the appellant assisted the police in bringing ryan2006 to justice. That said, even prior to the amendment to the Criminal Code , accused persons, including first offenders, were not infrequently sent to prison for possession of child pornography. Since the 2005 amendments, of course, incarceration is mandated even for a first offender.

[ 24 ] While some persons were discharged as opposed to being incarcerated, as reflected in the cases relied upon by the appellant, it does not follow the trial judge could only have refused to grant a discharge in this case by first failing to take the factors enumerated by Mr. Breen into consideration or, in the alternative, by having failed to give them the appropriate weight. On the contrary, while it is not lost on me that the appellant only came to be prosecuted by virtue of having brought the ryan2006 matter to the attention of the police, I am nonetheless of the view that the sentence was fit. Put another way, what I consider to be the leniency of the sentence confirms for me the proposition that the trial judge gave full consideration to both the appellant being a first offender and his having assisted the police.

The SOIRA Order

[ 25 ] Turning to the SOIRA issue, the appellant filed an affidavit at trial outlining the impact on him of the conviction and sentence for this offence. On consent, the appellant supplemented that affidavit with a further affidavit filed on this appeal. I have considered the contents of both affidavits and I agree with Crown counsel that the impact of which the appellant complains, which I agree is not insignificant, has much more to do with the stigma attached to having been convicted of this offence as opposed to the impact of the SOIRA order. The appellant has failed to demonstrate that the effect of the order on him is grossly disproportionate to the important interest the order seeks to protect: R. v. Debidin , 2008 ONCA 868 () , [2008] O.J. No. 5219 (C.A.). I am firmly of the opinion that the trial judge was correct to make the order.

RESULT

[ 26 ] In the result, the appeal is hereby dismissed.

Clark J.

Date: August 2, 2012

[1] 1998 18030 (NL CA) , 159 Nfld. & P.E.I.R. 273, at 316