COURT FILE NO.: 11-10000282
DATE: 20121030
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KENNETH DAVIES
Defendant
N. Golwalla, for the Crown
C. Cawkell, for Kenneth Davies
HEARD: September 28, 2012
SPIES J.
REASONS FOR SENTENCE
Overview
[1] On June 21, 2012, following a trial before me, I convicted Kenneth Davies of one count of possession of child pornography contrary to section 163.1(4) of the Criminal Code and one count of possession of a controlled substance, namely methamphetamine (crystal meth), contrary to section 4(3) of the Controlled Drugs and Substances Act. I acquitted Mr. Davies of the charge of making available child pornography contrary to section 163.1(3) of the Criminal Code. On September 28, 2012, counsel appeared before me for the sentencing hearing.
The Facts
(a) Circumstances of the Offences
[2] Mr. Davies was arrested on February 3, 2010 at his apartment at L[…] Street in the City of Toronto. His apartment was on the second floor and included a third floor loft bedroom (hereinafter “loft bedroom”) where Mr. Davies slept and had a computer desk. At the time of his arrest, this apartment was searched. In addition, a room Mr. Davies rented out on the second floor was searched, although no child pornography was found on the roommate’s computer located in that room. Mr. Davies’ roommate had access to the kitchen, living room and bathroom on the second floor.
[3] With respect to the child pornography charges, the basis of the conviction was child pornography images and movies found on two CDs seized by D.C. Blackadar from a small plastic box from the bottom of Mr. Davies’ bedroom closet and a box of loose CDs seized in a plastic box which was bolted closed with a nut found by D.C. Manherz under Mr. Davies’ bed. These CDs contained 4,254 child pornography images and 449 child pornography movies.
[4] At trial, D.C. Warnock, the officer in charge, testified about how he classified the child pornography with the assistance of D.C. Irish. D.C. Warnock has been with the Internet Child Exploitation Unit for two years. His unchallenged evidence was that the child pornography ranges from what he described as “mild child pornography” with a child posed in a certain way with the image focused on the child’s genitalia up to children being penetrated anally and adults engaged in oral sex with children and children performing oral sex on adults. The children are primarily male; boys ranging in age from toddlers to pubescent boys aged 12-14. He only classified the images as child pornography if they involved a prepubescent child.
[5] Also found in Mr. Davies’ bedroom was a silver box of CDs which was not seized because it contained legal adult pornography. 99.9% of the adult pornography was male on male. Mr. Davies testified that at least 50% of this pornography collection was downloaded from the Internet using the computer he owned in order to burn the disks. This collection was very organized and individual CDs have white labels with numbers. Mr. Davies had prepared an Excel spreadsheet that categorized each of these disks by title, type of pornography, comments etc.
[6] At the sentencing hearing, Mr. Cawkell objected to the proposal of Mr. Golwalla to present for viewing a sample of the child pornography found in Mr. Davies’ bedroom. Mr. Cawkell relied on R. v. P.M., 2012 ONCA 162, [2012] O.J. No. 1148, a recent decision from the Court of Appeal. In that case the court upheld the trial judge’s decision not to view the video of the child pornography. It is clear from the decision that the Court of Appeal deferred to the trial judge for two reasons, one, his concern that the victim, who was actually portrayed in the video, was present for the sentencing and secondly, that the trial judge had extensive experience with child pornography in his practice and then as a judge and was, therefore, aware of what the disk contained. The court made it clear, however, that ordinarily, if requested, a judge should view this kind of evidence if asked to do so.
[7] After hearing submissions, I determined that I should permit the Crown to have me view a sample of the child pornography. Section 723 of the Criminal Code provides that before determining sentence the court shall give the prosecutor and the offender the opportunity to make submissions with respect to any facts relevant to the sentence imposed and that the court shall hear any relevant evidence presented. Although I have discretion to exclude relevant evidence where the prejudicial effect of the evidence outweighs its probative value, in my view that was not the case here. There was no identifiable victim with respect to the child pornography found in Mr. Davies’ home. Furthermore, I do not have much experience with child pornography in my practice or as a judge. As Justice Molloy said in R. v. Kwok, 2007 CanLII 2942 (ON SC), [2007] O.J. No. 457, at para. 48: “While the description and words of such disturbing images is shocking, nobody can fully appreciate the sickening horror of such pornography without actually looking at it.”
[8] For these reasons, I concluded that I should view the child pornography. I was also satisfied that I could disabuse myself of any prejudice to Mr. Davies apart from an objective consideration of the nature of the images relevant to his sentencing.
[9] D.C. Warnock prepared a sample disk of the child pornography for the sentencing hearing. He testified that he had viewed the 449 movies and they total some 15½ hours of child pornography. With respect to the 4,254 child pornography images, D.C. Warnock described mild child pornography as naked children posing, with no sign of physical harm in that they were not being touched, with the focus of the image on the genitalia area. The extreme child pornography D.C. Warnock described as pornography involving babies, bondage and/or bestiality. In the middle, he said that the child pornography involves children in various sexual acts with one another or performed to them by adults or by them to adults.
[10] With respect to Mr. Davies’ collection, D.C. Warnock said there was not very much of the “mild” child pornography. There is a lot of the middle range as I’ve described it. There are also some images involving bondage and children being urinated on. He said one image is an adult male urinating into the mouth of a child. He described another image where a child between the ages of 12 and 14 is being forced to perform oral sex on an adult male while being tied to a chair. There is, as well, an image of a young boy who was bound and hung from the top of a doorframe with his anus exposed. These images were shown to me.
[11] The two disks found by D.C. Blackadar were quite organized, according to D.C. Warnock. The index of one of them contains fourteen folders which are named and, according to D.C. Warnock, the names are generally accurate for the kinds of images found within the folders.
[12] D.C. Warnock did not find a lot of what he described as the “mild” child pornography in Mr. Davies’ collection. Most of what he found in Mr. Davies’ collection he considered medium to bad. Although he did not determine that any bestiality images involved child pornography, there were images of children being bound and gagged, and at the extreme end, anal penetration by adult males. The only images involving babies were adult males touching the genitals of babies.
[13] D.C. Warnock described the images in the movies to be in the same range, from mild with children bouncing around naked to boys masturbating themselves up to anal penetration by adult males of boys. D.C. Warnock said what he would consider the “bad” child pornography was a smaller amount in Mr. Davies’ case. I, therefore, concluded that the bulk of Mr. Davies’ collection was in the moderate category.
[14] D.C. Warnock said that the child pornography collection of Mr. Davies represented 10-15% of his total pornography collection. He described the collection as being average for cases the police prosecute and he described it as moderate in size. The police do not typically prosecute individuals with fewer than a thousand images.
[15] At trial the theory of the Crown was that Mr. Davies was also guilty of “making” child pornography as he downloaded the child pornography found on the disks in question, from the Internet, and burned it onto the disks seized by police. However, as Mr. Golwalla fairly conceded, there was no direct evidence as to how the CDs of child pornography seized by police were made. Since there were no computers in Mr. Davies’ apartment at the time of the search, the Crown was not been able to establish that it was Mr. Davies who created these CDs or that he copied the images from the Internet, by pointing to a source on a computer. Although I concluded that I was satisfied that CDs containing child pornography were in Mr. Davies’ possession, I found that the Crown had not proven beyond a reasonable doubt that the CDs that contain child pornography were copied by Mr. Davies from the Internet.
(b) Impact on Impact on the Community
[16] On the nature of the offence of child pornography and its impact on the community it is useful to consider the words of McLaughlin J. in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 at para. 158:
The very existence of child pornography, as it is defined by section 163.1(1) of the Criminal Code, is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. 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 eroticizes the inferior social, economic and sexual status of children. It preys on pre-existing inequalities.
(c) Circumstances of Mr. Davies
[17] Mr. Davies is 52 years old and single. He has no dependents. Until he became seriously ill with leukemia, Mr. Davies was gainfully and successfully employed in various capacities including group homes for children, working with young offenders, Kids Help Phone, homeless shelters, and the Ministry of Housing and Correctional Services. Mr. Davies testified that as a result of his illness, he eventually could not work and he lost his employment in March 2008. After Mr. Davies used up his savings, he testified that he started fixing computers in his apartment to earn an income.
[18] Mr. Davies testified that he had never had any accusations of any impropriety when he was working with youth. After his diagnosis with leukemia, he became addicted to crack cocaine and ended up using crystal meth. He said that he quit using crystal meth and had no idea he had any of it left in the house. He testified the amount in the jar would not even be enough for a “hit”.
[19] Mr. Davies testified to his sexual orientation and said that he is gay and prefers men that do not have a lot of body hair. He denied being “into children” or ever having sex with anyone who was under 18, to his knowledge. Mr. Davies admitted having two “party and play” parties at his house but denied there would have been both drugs and sex or alcohol and sex at those parties.
[20] A Pre-Sentence Report was filed with the Court. The relevant information from that report is as follows:
• Mr. Davies’ parents separated when he was three years old and he only saw his father three times after that separation.
• Mr. Davies disclosed verbal and emotional abuse from his stepfather.
• Mr. Davies moved in with his maternal grandparents when he was thirteen. He lived with them until he was eighteen. He then lived on his own in Peterborough for a few years and moved to Toronto where he lived until these charges.
• Mr. Davies’ relationship with his mother became strained after he disclosed that he was homosexual. That relationship has fortunately strengthened, however, since Mr. Davies’ recent move to live with her in Strathroy as result of the conditions of his release. After release, Mr. Davies will be able to return to live with his mother.
• Mr. Davies has a very close and supportive relationship with his brother.
• Mr. Davies has had at least four significant relationships. Mr. Davies said all of these relationships were age appropriate. He is not currently in a relationship.
• Mr. Davies reported that he was diagnosed with leukemia in 2008 and has been in remission for two years. He also disclosed heart problems and asthma to the Probation Officer. This information was not confirmed by any information from Mr. Davies’ doctor or any other medical records.
• Mr. Davies completed Grade 12. He has no formal post-secondary education but has completed various training programs and received certificates during his employment experiences. This training has included training in the areas of sexual abuse, health and safety as well as a certificate in mental health education.
• Mr. Davies’ employment has been varied including a shelter coordinator in a men’s shelter, program manager for housing supports for persons with mental health challenges and a manager in a housing support program. He always maintained full-time employment until he was faced with medical challenges.
• Mr. Davies has admitted that he was addicted to cocaine and then crystal meth. He reports that he stopped using drugs in January 2010 and has been clean since then, apart from one episode when a relationship ended. Alcohol is not a concern.
• On the advice of his counsel, Mr. Davies refused to discuss the offence with the Probation Officer. Understandably, Mr. Davies wishes to preserve his rights with respect to an appeal. Mr. Davies maintained his position with the Probation Officer, that he does not have a sexual attraction to children under the age of eighteen. As he would not discuss the offence it is unknown whether or not he acknowledges child pornography is a threat to children.
• Mr. Davies has not received any programming for relapse prevention.
• There is a possibility that Mr. Davies is suffering from depression as a doctor has recommended medication in the past which he has not wanted to take. As a result, the Probation Officer recommended consideration of referral to a counsellor to deal with possible depression without the use of medication.
• The Ministry of Community, Safety and Correctional Services Sex Offender Protocol provides that Mr. Davies would be supervised at a maximum level of risk in the community. He would normally be required to report a minimum of twice per month for the duration of the term of his community supervision. A further requirement would include attending a 17-week program specific to sexual offending.
• The Probation Officer also recommended sex offender programming, substance abuse relapse prevention programming, that Mr. Davies continue to reside with his mother and abstain from the use of a computer.
[21] Letters from Mr. Davies’ brother and mother were also filed. Daniel McRae expressed a fear that if Mr. Davies goes to jail he will not come out alive. Mr. Golwalla objected to this portion of the letter as no medical evidence has been provided in support of this position. Mr. McRae reported information from his mother that every time Mr. Davies came to court he would be sick for one to two weeks thereafter simply by being in the same room as someone with a cold.
[22] Mr. Davies’ mother, Sandra Burridge, also reported concerns about Mr. Davies’ medical issues. She said in her letter that over the past two years while he has lived with her in Strathroy his health and attitude towards life has improved immensely. She has seen no evidence of drug or alcohol abuse.
[23] Finally, a copy of Mr. Davies’ CV was filed which confirmed his evidence at trial. From March 2001 to March 2008 Mr. Davies was the Program Manager for Houselink Community Homes with overall responsibility for developing and managing housing and support services for single men, women and families living with mental illness. From 1991 to 1998, Mr. Davies was a Shelter Coordinator for a men’s shelter. He has training certificates in sexual abuse, troubled and difficult youth. He has extensive volunteer experience with youth and other organizations.
[24] Mr. Davies has no criminal record. He chose not to make a statement to the court.
Legal Parameters
[16] The minimum sentence for possession of child pornography pursuant to section 163.1(4)(a) of the Criminal Code (effective November 2005) is 45 days; the maximum is five years. The maximum sentence for methamphetamine, a Schedule I substance is seven years pursuant to section 4(3) of the Controlled Drugs and Substances Act.
Principles of Sentencing
[25] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which the sentence I impose should attempt to achieve. These are denunciation, deterrence; both specific and general, separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and acknowledgment of the harm which criminal activity brings to our community. In this case section 718.01 of the Criminal Code requires that since the child pornography offence involved the abuse of children under the age of eighteen, the primary consideration must be denunciation and deterrence. Certainly by having child pornography in his possession Mr. Davies was participating in and encouraging the existence of these types of images which can only be made by victimizing children. In addition, in imposing sentence I must take into account the principle of proportionality and the applicable aggravating and mitigating circumstances relating to the offences as set out in s. 718.2.
Positions of Crown and Defence
[26] Mr. Golwalla’s position is that the appropriate global sentence in this case is two to two and a half years followed by three years probation. He submitted that for the drug conviction, Mr. Davies receive time served plus one day concurrent to his sentence for possession of child pornography.
[27] Mr. Golwalla also requested certain ancillary orders. Possession of child pornography is a primary DNA offence and Mr. Golwalla sought a mandatory DNA order pursuant to section 487.051(1). Mr. Golwalla also asked for a ten year Sex Offender Information Registration Act (“SOIRA”) order. He also requested a forfeiture order with respect to the child pornography on the disks that were filed as exhibits during the course of the trial and the sentencing hearing as well as the crystal meth. In addition, he submitted that a section 161 prohibition order be imposed for life.
[28] Mr. Cawkell submitted that six months as a starting point is too high. The statutory minimum is 45 days. He submitted that a 45 day sentence to be served intermittently was appropriate in this case, less a credit for time served. He agreed with a three year probation term provided the length of sentence is in the range he proposed. Mr. Cawkell did not object to the ancillary orders requested by the Crown save for the section 161 order. He submitted there is no evidence that Mr. Davies is a known risk to children and that between SOIRA and Christopher’s Law, a section 161 order or for that matter a term of probation, is not necessary. He suggested that issues with respect to recidivism were not appropriate for a first time offender.
Case Law
[29] Both counsel provided cases to me dealing with sentencing in child pornography cases in support of their respective positions. No case is on all fours with the case before me. Although the law is clear that each case turns on its own specific facts, a careful review of the relevant cases, to the extent I can find similarities to the case before me, does assist in determining what an appropriate range is for sentence on the possession of child pornography conviction. In determining the significance of cases that have some relevance to the case at bar, I was careful to distinguish cases where the offender was only being sentenced for simple possession of child pornography from the more usual case where there was, in addition, other convictions for making child pornography and/or the distribution of child pornography. These offences are more serious than simple possession.
[30] Mr. Golwalla acknowledged that for simple possession of child pornography, his proposed sentence was at the higher end. He asked me to “inch the law forward”. From the cases he provided, the following are of assistance.
[31] Considering first the cases where the minimum sentence has been imposed, in R. v. Somogyi, [2011] O.J. No. 253 (S.C.J.), the offender was sentenced for convictions on three charges of luring two children under the age of fourteen and for possession of child pornography. The child pornography consisted of 113 images and six video clips that had been deleted. The offender had medical issues, he had been assessed by Dr. Gojer, a forensic psychiatrist and had participated in a treatment program. The offender had one prior conviction for sexual touching. His pre-sentence report was considered positive. Although the offender did not have much insight into the harm his activity caused the children involved, J.M. Wilson J. concluded that the minimum sentence of 45 days in addition to three years probation was appropriate for the possession conviction. She imposed a conditional sentence of 22 months for the three luring charges concurrent to be served consecutive to the possession of child pornography sentence.
[32] In R. v. G.R., [2011] O.J. No. 4989 (O.C.J.) the Crown proceeded summarily so the minimum penalty was 14 days and the offender’s consent to an order that he pay $3,000 to a charity in lieu of a fine was imposed. The offender pleaded guilty. The child pornography consisted of 85 images or movies; considered to be a very small collection. The court concluded that the offender did not access or view child pornography for his own sexual gratification based on expert evidence. The court also concluded that the offender no longer needed treatment and that the likelihood of re-offence was slim. None of these mitigating factors are present in the case at bar.
[33] In R. v. Charron, [2007] O.J. No. 5128 (O.C.J.), the offender pleaded guilty to possession of child pornography consisting of 561 images. The offender was 67 years old with no record. The court concluded the offender was clearly remorseful and a low risk to re-offend based on an assessment done by a physician. The Crown must have proceeded summarily as the minimum sentence of 14 days was imposed.
[34] Mr. Cawkell provided three Court Marshall cases in support of his position, but they all date between 2006 and 2008. In each case the 14-day minimum sentence was imposed which suggests the prosecution proceeded summarily. There were guilty pleas in all cases and in some cases a joint submission as to penalty as well. The collections in each case were small, to the extent that could be determined; in one there was only one image. I did not find these cases of assistance.
[35] There are a number of cases where the penalty imposed has been considerably higher than the minimum, even in the case of a first time offender. Considering the most recent cases first, and focusing on the cases from this court, in R. v. Pelich, 2012 ONSC 4100, [2012] O.J. No. 3262 (S.C.J.), Dunnet J. sentenced the offender on one count of child pornography, one count of making child pornography available and one count of accessing child pornography. The child pornography consisted of 125 unique images of 136 total images, another 1,617 unique images of 4,730 total images and an additional 3,518 images and 92 videos. It included female toddlers depicted in sexual acts with adult males. The offender viewed the images, downloaded them, created a permanent collection on disks, labelled the disks innocuously and made the child pornography available to others via the Internet. The offender continued to maintain his innocence and there was no evidence of insight or remorse. Justice Dunnet concluded that a four year sentence was appropriate given the amount and nature of the images, the extended length of time over which the offender accessed and collected the images and the vast number of individuals to whom the images were made available. On the offence of possession of child pornography, Dunnet J. imposed a two year sentence to be served concurrently to the other sentences. Given the court had no information on the risk that the offender posed, a section 161 order was made for life.
[36] In R. v. Lynch-Staunton, [2012] O.J. No. 313 (S.C.J.) the offender pleaded guilty to possession and distribution of child pornography consisting of 297 pictures, 1,763 stories, 574 movies or movie clips. The collection contained a high proportion of very young children, including infants and a baby penetrated by an erect male penis with ejaculate visible. The offender’s true character was unclear.
[37] At para. 79 Justice Ratushney concluded that the authorities counsel had referred her to (as set out in para. 78) between R. v. Kwok, as the earliest and ending with R. v. Oakley 2011 ONCJ 404,[^1] indicate a general range of sentence for possession of child pornography between nine months and four years’ incarceration. I have reviewed the more recent decisions she referred to from this court and the highest sentence imposed was in one of her cases, R. v. Dean, [2010] O.J. No. 5305, where the sentence imposed was three years. In any event in Lynch-Staunton, Justice Ratushney imposed a total sentence of five years but the allocation, stated to be arbitrary, was two years consecutive for the possession offence. She recognized that this sentence was higher than other cases but that it was meant to reflect the gravity of the offence, the accused’s high degree of moral blameworthiness and the need to protect the public and to denounce and deter.
[38] R. v. Dumais, 2011 ONSC 276, [2011] O.J. No. 116 (S.C.J.) the offender pleaded guilty to possessing child pornography consisting of 170 images and 44 movies depicting fellatio, penetration and voyeurism of intimate parts of young female bodies. There were numerous mitigating circumstances including no prior criminal record, voluntarily attending a sexual behaviours assessment, complying with recommendations and attending ongoing therapy sessions. Ratushney J. found that the offender had accepted full responsibility for what he had done and was remorseful and that the reason child pornography was found was due to his curiosity, not to satisfy his own sexual deviancies. She found the offender would not re-offend and that he was otherwise a solid citizen and not the typical type of offender seen before the criminal courts, but could be regarded as the typical type of person who commits this type of offence, committed in the solitude of the home computer room.
[39] At para. 13 Justice Ratushney J. approved of R. v. W.A.E., 2009 CanLII 42861 (NL PC), [2009] N.J. No. 218 (Newfoundland and Labrador Provincial Court) at para. 77, where the court stated: “By possessing these images of child pornography, he [the offender] was creating a link between his possession and the sexual abuse of children beyond those depicted in the images on his computer.” She went on to comment at para. 14 that:
Children around the world are extremely vulnerable to violence and particularly to sexual violence. The Internet enables an easy market for child pornography. All children are to be protected from being trafficked, exploited and abused by this kind of predatory and violent marketplace.
[40] At para. 15 Justice Ratushney referred to R. v. D.G.F., 2010 ONCA 27 at paras. 21 and 22 where the Ontario Court of Appeal commented on the “learning curve” experienced by courts in the last two decades in understanding the extent and effects of child pornography found on the Internet and in addressing the problem appropriately. While that case was dealing with a much more serious offence, nowhere near the circumstances of Mr. Dumais’ crime, she noted that the court emphasized the need for denunciation and deterrence in all cases of child pornography derived from the Internet. At para. 23 Justice Ratushney stated:
More recent cases in the last five years with roughly comparable circumstances to those of Mr. Dumais have imposed jail terms starting at six months and more for a first time offender. Most offenders in those cases received more than six months and had other circumstances that presumably aggravated their sentence including charges of luring and/or production in addition to possession, the involvement of guns, and extremely large or very small collections. No case, and this is not surprising at all, exactly matches Mr. Dumais’ circumstances.
[41] Ratushney J. considered that the sentencing objectives of denunciation and general deterrence were paramount and that a jail term was required to adequately serve those objectives. She sentenced the offender to nine months in jail and one year probation.
[42] In R. v. Bock, 2010 ONSC 3117, [2010] O.J. No. 2277 (S.C.J.) the offender was sentenced for possession of child pornography and making available child pornography consisting of 381 images and 1,007 unique child pornography videos described by the investigating officer as an “astounding number”. The collection was described as “extremely vile and depraved child pornography.” The children depicted in the images were victimized sexually, physically and emotionally by the adults who produced the pornography. There was evidence before the court that the collection was a sophisticated one in that the investigating officer had never seen some of it before, that it took a lot of time and effort for the offender to gather such a collection and that the child pornography was well organized. The offender was 67 years old, married for over 44 years and had five children. He had no criminal record.
[43] Henderson J. stated at para. 31 as follows:
Those who wish to possess child pornography encourage the sexual abuse of children and encourage the recording of this abuse by providing an audience or a market for those that produce child pornography. Therefore simple possession of child pornography is a very serious offence. If the court can deter or reduce the market for child pornography the court may in turn effectively reduce the sexual abuse of children.
[44] Justice Henderson concluded that the range of sentence for simple possession by a first offender with a significant number of pictures or videos in the collection is a jail term in the range of six to eighteen months (at para. 54). He found that the offender was not likely to re-offend but he was not able to determine whether the offender remained a danger to children which was considered a neutral factor. He also found there were no mitigating factors that related to the offender showing insight or genuine remorse, seeking treatment or counselling. He had no knowledge if the offender had acknowledged his problem or obtained treatment. The main aggravating factor was considered to be the size of the collection, the nature of the collection and frequency of file sharing.
[45] On the offence of possession of child pornography Henderson J. sentenced the offender to one year in jail to be served concurrently to the longer penitentiary sentence for making available child pornography. A section 161 order was also made.
[46] In R. v. Smith, [2008] O.J. No. 4558 (S.C.J.), after a late guilty plea to one count of possessing child pornography and one count of making child pornography available the offender was sentenced to 20 months after time served of one month for the making child pornography charge and 12 months concurrent for the possession charge in addition to three years probation. The ancillary orders included a section 161 order for five years. The child pornography consisted of 997 images, 153 movies. In this case the offender relied on evidence of a forensic psychiatrist to the effect that he was not a pedophile and not a risk to his own children or other children in the community. This opinion was rejected by Clark J. who found beyond a reasonable doubt that the offender had a “profound and abiding obsession with child pornography as a source of sexual stimulation.” (at para. 35)
[47] In R. v. Kwok, Justice Molloy convicted the offender for possession of child pornography consisting of over 2,000 images and 60 videos. In this case the Crown put the range of sentence at six to eighteen months for offences of this nature (at para. 2). Molloy J. accepted this range (at para. 5) although she noted that cases in which longer terms have been imposed have typically involved either the making and distribution of pornography or a prior criminal record for sexually assaulting children or both. Mr. Golwalla disputes this range as he points out courts have imposed sentences above this range. This case is also now several years old.
[48] Justice Molloy sentenced the offender to imprisonment for one year and probation for three years. A request for a conditional sentence was rejected because, due to the nature and size of the collection, a conditional sentence was not appropriate; there was no minimum at that time. The relevant aggravating and mitigating factors as set out at para. 7 included the fact that there had been some progress towards treatment and some limited recognition of the harm caused by child pornography but the court did not accept that insight, remorse and treatment were strong mitigating factors. There was no evidence the offender had participated in the production of pornographic material and no direct evidence he engaged in the distribution of pornography. Molloy J. was of the view however, that while not distribution of pornography as we usually regard it, the offender’s storage of his child pornography was such that it was readily accessible to anyone using his computer. He shared his apartment with multiple roommates all of whom contributed to the cost of Internet service and had free use of the computer. This was considered an aggravating factor albeit not as serious as full scale distribution on the Internet. (at para. 46) The size of the collection, the age of the victims, the depravity of the acts depicted and the bondage associated with some of the images were considered all extremely aggravating factors.
[49] There was no evidence the offender ever sexually abused a child. There was expert evidence that the offender was not a pedophile and not sexually attracted to children but this was not accepted by Molloy J. as she queried why someone would collect so much of this material unless he found the subject matter attractive. Without a comprehensive assessment by an expert in the field she could not rule out the possibility of the offender being a pedophile and without some indication of his successfully completing a treatment program, with demonstrated insight into his problem, would not rule out the possibility of his being a danger to children in the future. (at para. 47) Molloy J. did not see these as aggravating factors but could not say their absence was a mitigating factor. Her ancillary orders included a s. 161 order for five years.
Determination of an Appropriate Sentence
[50] Parliament has set the floor for the offence of possession of pornography at a jail term of 45 days and the ceiling at 5 years. I agree with Mr. Cawkell that this is the possible range of sentence. The actual sentences imposed by the courts however, particularly in this court, have been in the range of six months to two years, in addition to probation, with the exception of Somogyi which I have already referred to.
[51] Based on the cases drawn to my attention by counsel, the highest sentence imposed for possession of child pornography has been two years; both of those cases being decided in 2012. In all but Somogyi the offender had no criminal record. Many of the offenders were older men. This might suggest that in general terms the sentence for possession of child pornography has increased since 2007 but there are really too few cases that I have been given to draw any reliable conclusions in that regard. There is no express statement in any of the cases that the court’s learning curve has resulted in a deliberate increase in the upper end of the range of sentences actually imposed for possession of child pornography. That said, as the Court of Appeal stated in D.G.F., the incidence of this behaviour is increasing; obviously the court’s repeated messages that general deterrence and denunciation will govern its sentencing decisions, has not been heard by those individuals who are committing these types of crimes.
[52] Pelich, the most recent case, is quite close to the facts of the case at bar insofar as the possession charge is concerned. The size and nature of the collection is comparable and there was no evidence of insight or remorse. In that case however, the sentence for possession was to run concurrent to sentences on other more serious convictions. Many of the cases I reviewed include sentencing on more serious charges related to the same collection of child pornography. I recognize that this may mean that the sentence imposed by the court for the less serious offence of possession of child pornography may have been somewhat arbitrary as the court likely focused on the sentence for the most serious charge given the other sentences were to run concurrently. In fact, in Lynch-Staunton, Ratushney J. expressly recognized this.
[53] Dumais, a case decided in 2011, the sentence was nine months and one year probation and there were numerous mitigating factors not present here. In the same year however, in Somogyi, in the case of a very small collection of images that had been deleted; 6 videos and 113 images, the court imposed only the minimum sentence plus three years probation. Although the collection in that case was very small and there were some mitigating factors not present in the case at bar, the offender did not have much insight into the harm his activity had caused and he had one prior conviction for sexual touching. This case seems to be outside the expected range of sentence based on the other cases from this court that were drawn to my attention. It may be that the sentence was driven by a desire to impose a conditional sentence.
[54] In Bock decided in 2010, another case with a smaller collection, a case where there was no evidence of insight or remorse, the offender received a sentence of one year for the possession charge but again it was concurrent to the sentence for a more serious charge. This is consistent with the sentences in Smith and Kwok.
[55] In my view the very serious nature of the offence, even when there is no evidence of distribution or sharing is a significant aggravating factor given that possession of child pornography encourages the abuse and exploitation of children. In addition, the following facts are additional aggravating factors relevant to sentence in this case:
(i) The child pornography was of a moderate size, not small.
(ii) The nature of the child pornography was mostly in what D.C. Warnock described as the middle range.
(iii) The collection of disks was stored in a box held closed only by a nut under Mr. Davies’ bed. Given the evidence of Mr. Davies at trial that others used the computer that he had in his bedroom, they were readily accessible to others. That said, there is no evidence of Mr. Davies making them available to anyone or sharing them.
(iv) Mr. Davies’ evidence that he does not feel any sexual attraction to children and that he is not a threat is consistent with his denial of any knowledge of the disks containing child pornography. However, in light of my findings at trial, the only possible explanation for the presence of the child pornography disks in his bedroom is that he, in fact, does have such an attraction.
(v) Mr. Davies’ moral blameworthiness is higher because of his training in sexual abuse and his involvement as a volunteer with youth. He should have a better appreciation about the serious harm child pornography inflicts on innocent children.
(vi) The disks are all disks that were manufactured and it is therefore clear that someone burned or created the content from the Internet. I do not know however, that that was Mr. Davies.
[56] Mr. Golwalla submitted that Mr. Davies has a high degree of responsibility here given the size of the collection and the organization of the collection. I have already commented on the size of the collection. Mr. Golwalla acknowledged that the organization found on the two disks found by D.C. Blackadar could have been done by someone else who then gave the disks to Mr. Davies. However, he submitted that there is a very strong inference to be drawn that Mr. Davies did this organization given the way he organized the adult pornography. In my view the organization of the adult pornography was different as all disks were clearly collected in an orderly fashion in a box and there was a paper and computer catalogue record of the contents of the box. I am certainly not able to conclude that any organization on individual child pornography disks was done by Mr. Davies.
[57] Mr. Golwalla suggested that since Mr. Davies was addicted to drugs, that he might be addicted to pornography. In my view, that is not an inference that I can draw from the evidence, without some expert evidence. Mr. Golwalla also pointed out that Mr. Davies had volunteered with respect to a number of youth organizations, but he agreed that I could not draw an adverse inference from this.
[58] As for mitigating factors, Mr. Davies is a first time offender and has been a law abiding citizen for all of his 52 years, with the exception of these offences. For most of that time he was a productive member of society employed in various positions. As I have already stated, I am not able to conclude that Mr. Davies created the disks and movies of child pornography by downloading this material from the Internet.
[59] In Kwok, Molloy J. stated that consideration ought to be given to the extent the offender has already suffered for his crime in his family, career or community. Mr. Davies was already unemployed because of his health issues and although his bail required him to move to a new community, that is where he now wants to live. Apart from the expected stigma of this conviction there was no evidence of any particular harm to Mr. Davies as a result.
[60] Mr. Cawkell submitted that there was evidence at trial that Mr. Davies’ computer was checked when he worked for various computer agencies and that there is no evidence of any impropriety ever being found. He submitted that one would expect there would be if there was a problem and that with the kind of employment Mr. Davies had, any issue would not have gone unnoticed. I have no recollection of any evidence that Mr. Davies’ computers were checked by his employers although he did speak to the security he needed for computers he used at work and could bring home. In any event, he has no criminal record and so I have assumed that the offences before this Court are the first time that Mr. Davies has committed offences.
[61] There is no evidence that Mr. Davies was sharing the disks of child pornography or exchanging them for money or sharing files on the Internet. There is no evidence that he purchased any of the DVDs or that any of them were made by him. It is strictly a simple possession case.
[62] Mr. Davies cannot be penalized for insisting on his right to a trial and raising his defence of no knowledge, but he does not get the benefit of a reduced sentence because of a guilty plea. This, however, is a neutral factor.
[63] With respect to the concerns about Mr. Davies’ medical condition, there is no authority to reduce the sentence for Mr. Davies that I would otherwise consider fit. In the Ontario Court of Appeal’s decision in R. v. Aquino, [2002] O.J. No. 3631, the accused was seriously disabled and required rehabilitative therapy. In relation to his medical condition, the Court of Appeal stated:
The correctional authorities are obliged under the Corrections and Conditional Release Act to provide inmates with essential healthcare. For that purpose, the respondent should be assessed immediately and appropriate steps taken to provide the proper medical care, including the rehabilitative treatment which the evidence indicates that the respondent requires.
[64] There is no evidence before me that Mr. Davies will not receive proper medical treatment/care while incarcerated. In any event, I cannot give much weight to the medical issues given they are all based on Mr. Davies’ self-declarations. Although I understand that Mr. Davies’ mother and brother genuinely have concerns about his health, and I accept Mr. Davies’ evidence that he has leukemia, I have no supporting letter from his doctor explaining the risk, if any, of his being incarcerated. I, therefore, cannot conclude that incarceration would likely adversely impact on his life expectancy. In the circumstances of this case, Mr. Davies’ health is a matter for the correction authorities.
[65] Concerns about Mr. Davies’ safety in jail were also raised given the nature of the offence but this is true for this type of offence generally; not something specific to Mr. Davies. There is nothing that a court can do to address this.
[66] Mr. Golwalla submitted that Mr. Davies has shown very little insight but that is as a result of his decision not to talk about the offence with the probation officer. It is true however, that as a result I have no evidence on which I could assess that risk that Mr. Davies might re-offend. Furthermore, given his position Mr. Davies has not expressed any remorse or taken any steps towards treatment. Although these factors therefore provide no mitigation, they are neutral not aggravating factors.
[67] The fact the offender had been on bail is a factor to be taken into account; see R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555 (C.A.). There is no evidence before me on the impact of the bail conditions on Mr. Davies but he has been on bail for more than two years. Up to August 2010 he was subject to complete house arrest. He was then permitted to live in Strathroy with his mother who is his surety. He has not been permitted to use computers. There is no evidence before me that these bail factors had any real impact on Mr. Davies, particularly as it seems he now wants to live in Strathroy. I have therefore not considered this to be a significant mitigating factor.
[68] In a number of the cases, the offender is over 50 years old. Age is not considered a mitigating factor in terms of any reduced risk of re-offending. On the Internet, age is not a barrier to this type of offence.
[69] I turn then to what is an appropriate sentence in this case. Clearly denunciation and deterrence, both general and specific, given the nature of this offence are paramount considerations in this case. I must express society’s abhorrence of this type of conduct. This is a somewhat unusual case in that I have no direct evidence as to how Mr. Davies came to be in possession of this child pornography. Considering all of the aggravating and mitigating factors I have identified, and the cases that have been drawn to my attention, I have concluded that a sentence of 15 months is appropriate in this case for the conviction of possession of child pornography. Mr. Davies has served eight days in custody and is still entitled to the two for one credit which would result in a credit of sixteen days.
[70] I would strongly recommend that Mr. Davies be placed at the earliest opportunity in the Ontario Correctional Institute in Brampton and that he be assessed and have access to the treatment programs available there, including if at all possible the Intensive Treatment Program, which is available to inmates who have at least eight months remaining in their sentence.
[71] As for the drug offence, I agree with counsel that a sentence of time served, to be served concurrently is appropriate. The amount of crystal meth found was very small.
[72] That leaves the question of probation. In my view a period of two years probation is appropriate in this case.
[73] The only ancillary order that Mr. Cawkell objected to was the request for an order pursuant to section 161(1) of the Criminal Code, that Mr. Davies shall be prohibited from attending at the various places set out in that section where children might reasonably be expected to be present. He submitted that the SOIRA order would be sufficient. Section 161(1), while not obliging the court to prohibit an offender from attending at the enumerated places, nonetheless obliges the court to at least consider the imposition of such a prohibition where the offender has been convicted of possession of child pornography. There is no evidence that Mr. Davies has ever sexually assaulted a child. However, I have no evidence as to whether or not there is a risk of Mr. Davies re-offending and having found that he must have an interest in child pornography, in my view such an order is appropriate in this case as I cannot rule out the risk of harm to children.
Disposition
[74] Mr. Davies would you please stand.
[75] With respect to the conviction of possession of child pornography, I sentence you to 15 months in jail less a credit of sixteen days for time served.
[76] With respect to the conviction of possession of crystal meth, I sentence you to time served, to be served concurrently to your other sentence.
[77] Pursuant to section 487.051 (1) of the Criminal Code, I make an order in Form 5.03 that you provide such samples of your DNA as may be required for forensic analysis.
[78] Pursuant to sections 490.012(1) and 490.013(2)(b) of the Criminal Code, I make an order in Form 52 that your name be added to the Sex Offender Registry and that you comply with the Sex Offender Information Registration Act for 10 years. My reason for making this order is that you have been convicted of possession of child pornography which is a designated offence under section 490.011(1)(a)(vii) and your counsel has not suggested that this order would have a disproportionate impact on your privacy or liberty interests.
[79] Pursuant to section 161 of the Criminal Code I also make and order prohibiting you from:
(a) attending a public park or public swimming area where persons under the age of 16 are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;
(b) seeking or obtaining 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 16 years; or
(c) using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 16 years.
This order will take effect on the day you are released from custody and will continue in force for a period of 10 years.
[80] Pursuant to section 164.2 of the Criminal Code, you shall forfeit the disks containing child pornography that were marked as exhibits at the trial and on your sentencing hearing and the crystal meth that was seized at the time of his arrest.
[81] Once you are released from custody there will be a term of probation of two years. In addition to the compulsory statutory conditions provided for by section 732.1(2) of the Criminal Code, the additional conditions of the order are as follows:
a) Report to a probation officer within two business days of your release from custody and thereafter as required by the probation officer;
b) Reside at an address that is approved of in writing by your probation officer;
c) Remain within the Province of Ontario unless written permission to leave the Province is obtained from your probation officer, or approval is given by the Court;
d) Abstain absolutely from the purchase, possession or consumption of any alcohol or any other intoxicating substances;
e) Abstain absolutely from the purchase, possession or consumption of any drugs or other substances prohibited by law, except in accordance with a medical prescription;
f) Abstain from owning, possessing or carrying any weapon including any offensive weapon, ammunition, explosive substance as defined in the Criminal Code;
g) Attend and actively participate in such programs for the addiction to drugs and/or take any recommended treatment or counselling programs as determined by your probation officer and undergo any recommended assessments. Sign releases or any other form required by the probation officer to monitor your attendance and/or your progress at any assessment, counselling or treatment sessions.
h) Actively pursue education or employment to the best of your ability and provide proof of your progress to your probation officer on each reporting;
i) As there appears to be no effective way to monitor Mr. Davies’ access to the Internet, he is prohibited from possessing or using a computer or other device that can access the Internet for the period of probation. If he requires the use of a computer, a device or the Internet in some particular setting for employment purposes, he may do so subject to the approval of his probation officer or the court;
j) Do not access the Internet, directly or through a third party, with any device where Internet services can be obtained for a fee;
k) Do not have any association, either directly or indirectly, with anyone known to you to have a criminal record.
l) Do not possess any pornographic imagery or pornographic material in any form or medium whatsoever.
SPIES J.
Released: October 30, 2012
COURT FILE NO.: 11-10000282
DATE: 20121030
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
KENNETH DAVIES
Defendant
REASONS FOR SENTENCE
SPIES J.
Released: October 30, 2012
[^1]: In this case the offender pleaded guilty to possession of child pornography and making it available. The collection was fairly small and most of the images were cartoons although extremely graphic and violent. Mitigating factors including no criminal record, positive pre-sentence report, receiving counselling and low risk to re-offend. Sentence of 9 months and 3 years probation imposed.