Court File and Parties
COURT FILE NO.: 09-A9665 DATE: 2012-12-19
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen Kevin Phillips, for the Crown
- and -
Andrew Burke Oliver N. Abergel, for the Accused
HEARD: November 20, 2012, at Ottawa, Ontario
Madam Justice B. R. Warkentin
Reasons on Sentence
[1] Mr. Burke was found guilty of possessing child pornography images on his computer, contrary to s. 163.1(4) of the Criminal Code of Canada. That section imposes a minimum sentence of 45 days and a maximum sentence of 5 years' incarceration.
[2] Mr. Burke was arrested on March 24, 2009, after a search warrant had been executed at his residence. The police found 24 pornographic movies depicting children and 17 photos of child pornography on Mr. Burke's computer. The images depicted young girls involved in various sex acts with other children and with adult males including fellatio, penetration and voyeurism of intimate parts of young female bodies.
[3] Mr. Burke is a 47 year old man with no prior criminal record. He has never been married, has no children and has not had any significant or longstanding romantic relationships. He is a computer software developer/programmer and has held positions in the high tech industry for most of his adult life with some periods of unemployment due to economic downturns. He lost his employment with a major technology company as a result of his conviction for possession of child pornography.
[4] Mr. Burke is a recovering alcoholic. He has not consumed alcohol since 2008 and he attends AA meetings three times each week. Mr Burke has no history of suffering any kind of abuse, no problems with anger or significant medical illnesses.
[5] There have been serious personal repercussions as a result of the charges. Mr. Burke has lost his career in the high tech industry and it will no doubt be difficult for him to find work in the future. His friends, family and colleagues are aware of his conviction and he has lost some of those relationships. He is fortunate to have support of some members of his family and of friends and sponsors from AA.
[6] Mr. Burke initially pled not-guilty and through his counsel argued that the search warrant of his home and computer violated his Charter rights and should be vacated. When that application was denied, Mr. Burke chose not to contest the charges against him and was found guilty.
[7] After his conviction, Mr. Burke participated in a Pre-Sentence Report and a Sexual Behaviours Assessment was conducted at the Royal Ottawa Hospital by Dr. Brad Booth. Mr. Burke was co-operative and candid in both settings. Additionally, he was referred to Dr. Fedoroff at the Royal Ottawa Hospital for treatment and Dr. Booth agreed to provide treatment to Mr. Burke in the future.
[8] Mr. Burke reported to Dr. Booth that his primary sexual outlet was through the internet and that at the time of his arrest he regularly viewed pornography on the internet. He also confirmed that he was sexually aroused by teenage and adult women and had begun experimenting by viewing prepubescent children. Mr. Burke claimed that he was not aroused by watching child pornography.
[9] In the report prepared by Dr. Brad Booth, the claims by Mr. Burke that he was not aroused by child pornography were not borne out. Mr. Burke was in fact aroused by watching child pornography. After Dr. Booth’s psychiatric assessment and test results he diagnosed Mr. Burke as having an underlying diagnosis of pedophilia. Dr. Booth found that Mr. Burke was sexually aroused by viewing adult consenting situations and by viewing children. Dr. Booth diagnosed Mr. Burke as being in the subtype of "heterosexual nonexclusive type", which is a subtype of pedophile at somewhat lower risk of reoffending than exclusive pedophiles.
[10] Dr. Booth also diagnosed Mr. Burke with hebephilia, which is characterized by recurrent arousal to teenagers at a level that causes dysfunction. Dr. Booth noted that while a large portion of the male population can get aroused by teenagers, most would not act on that arousal and would not seek out adolescent pornography. In Mr. Burke's case, he reported a significant arousal to teenagers and he sought out adolescent pornography; as such he qualified for the diagnosis of hebephilia.
[11] Dr. Booth placed Mr. Burke in a low risk category to re-offend compared to hands-on offenders. Dr. Booth recommended that Mr. Burke not have unsupervised contact with children but did not recommend a prohibition from attending parks and playgrounds. Because Mr. Burke is a computer programmer/software designer, Dr. Booth did not recommend a restriction from using a computer because that would prevent Mr. Burke from becoming gainfully employed in his field in the future. He did recommend that Mr. Burke be restricted from accessing illegal pornography on his computer.
[12] According to both Dr. Booth and the probation officer who conducted the pre-sentence report, Mr. Burke accepts responsibility for his actions and expresses regret and remorse. He has indicated a desire to obtain treatment and to accept the sanctions against him including his sentence for these offences.
Analysis
[13] The mitigating factors include some of the facts I have already reviewed. Mr. Burke has no prior criminal record. He was employed at a good company with a very good salary and lifestyle until his conviction after which he was fired. He has the support of family, friends and his AA sponsor. Mr. Burke has complied completely with bail conditions since his arrest in 2009 and he cooperated fully with a sexual behaviours assessment and has complied with Dr. Booth’s recommendations for treatment. Mr. Burke has shown remorse, an understanding of the seriousness of his offences, and a desire to attend therapy sessions and obtain treatment for his dysfunctions.
[14] It was noted by his counsel that the number of pornographic photos and videos found on Mr. Burke's computer were at the very lowest end of those typically found for this type of offence. Mr. Burke did not create or produce child pornography and it appears that he never paid for these images and videos. Mr. Burke has never acted on his fantasies towards children.
[15] Both Crown counsel and defence counsel agreed that specific deterrence, one of the sentencing objectives, appears to have been accomplished for Mr. Burke. He realizes that his conduct was wrong and has expressed remorse. Dr. Booth reports that he is at low risk of re-offending. Mr. Burke has lost his job and no doubt much of his self-esteem. Mr. Burke has now also acquired a criminal record and will have to deal with the ancillary orders that apply to offences of this nature, not the least of which is to be added to the national sex offender registry.
[16] There are a number of aggravating factors that are specific to the nature of the offence of possession of child pornography itself and not necessarily related to Mr. Burke’ personal circumstances.
[17] The images Mr. Burke possessed are of unspeakable conduct and violence being committed against innocent children. Mr. Burke who is in many ways an intelligent man, nonetheless actively sought out images and videos of this sexual violence against children. The fact that he was able to do this from the privacy of his home and without paying for those images does not excuse his conduct. He would have known from the information disclosed on the photos and videos before he downloaded them that he was accessing child pornography. He chose to take the step of downloading those images and saving them on his computer where he was able to view them repeatedly for the purpose of sexual arousal.
[18] While Mr. Burke did not testify on his sentencing hearing, it is impossible to believe that Mr. Burke, a computer programmer, did not know that what he was doing was both illegal and a violation of the children who were victimized in those images. By accessing this sort of imagery on his computer he has, perhaps unwittingly, contributed to the demand for child pornography and therefore he must take some responsibility for the supply of child pornography.
[19] Courts have long found that it is irrelevant that those, like Mr. Burke who access child pornography, are not themselves the perpetrators of the violence. Justice Ratushny in the case of R. v. Dumais[^1] commented that courts have determined that the reason why possession of child pornography is such a serious offence is that by downloading and possessing these images, the offender is participating in the re-victimization of those children in the pictures and videos. As in the case of Dumais, Mr. Burke was watching the non-ending “virtual rape” of the victims. Justice Ratushny referred to the case of R. v. W.A.E.[^2], a case that was also referred to by counsel for the Crown in his submissions, in which it was noted that by possessing these images of child pornography, the person who possesses is creating a link between his possession and the sexual abuse of children beyond those depicted in the images on his computer.
[20] The Ontario Court of Appeal[^3] has emphasized the need for denunciation and deterrence in all cases of child pornography derived from the internet, commenting that its “victims are innocent children who become props in a perverted show, played out for an ever-wider audience”.
[21] Children must be protected from being trafficked, exploited and abused and then continually re-victimized by those who seek out this type of pornography. As a result, the crime of possession of child pornography is viewed very seriously by the courts and the sentencing objectives of denunciation and general deterrence take precedence over the objective of specific deterrence. The Criminal Code requires, upon conviction, a minimum jail term of 45 days and a maximum term of 5 years imprisonment.
[22] Counsel for the Crown is seeking a sentence of 12 months incarceration, followed by 3 years' probation.
[23] Counsel for Mr. Burke agrees that a period of incarceration of more than the minimum of 45 days would be necessary to adequately serve the principles of denunciation and general deterrence and has suggested a period of incarceration of 90 days would be the appropriate sentence.
[24] In addition to the period of incarceration, counsel for the Crown has requested that Mr. Burke be subject to a DNA Order, a 20 year Order under the federal Sex Offender Information Registration Act and an Order under s. 161 of the Criminal Code to include a prohibition that Mr. Burke not be able to attend parks or playgrounds where those under the age of 16 would normally be present, that Mr. Burke not be in a position of trust over children under the age of 16, that he have no unsupervised involvement with children under the age of 16 and that he not use his computer for the purposes of communicating with someone under the age of 16.
[25] Even though Dr. Booth did not believe that it was necessary to impose a prohibition preventing Mr. Burke from attending at parks and playgrounds where children would normally be, the Crown was seeking such a prohibition on the basis that a sexual interest in the young is unpalatable and intolerable in the eyes of the community and to permit a person in Mr. Burke's situation to be in parks and playgrounds would be contrary to the public interest. It was the Crown's position that failing to make this prohibition would permit Mr. Burke to be in the cohort of the community that caused him to become interested in child pornography in the first place.
[26] The Crown also sought a Forfeiture Order of Mr. Burke's computer, which was unopposed and which I have already granted.
[27] I have reviewed the case law submitted by the Crown and defence and note that a sentence of 12 months is at the maximum range for similar cases to Mr. Burke's for convictions of possession of child pornography. The sentences of that range typically involved dramatically higher quantities of child pornography than was found on Mr. Burke's computer; the offenders were not before the court for the first time and there were typically more aggravating factors at play.
[28] I accept that Mr. Burke is a low risk for reoffending and I acknowledge that he has taken steps to obtain treatment and I believe that he will continue to receive treatment regardless of whether or not I make such an order. I also accept that Mr. Burke is remorseful and is now fully aware of the reasons why possession of child pornography is such a serious crime.
[29] Mr. Burke did not plead guilty, although he did not contest the Crown's case after his Charter application was dismissed. It was acknowledged by the Crown that the failure to plead guilty is not an aggravating factor. Mr. Burke did not purchase, sell or produce child pornography and has not sought to act out his fantasies of children by luring or physically touching children with whom he may have come into contact.
[30] Notwithstanding Mr. Burke's personal circumstances; as previously set out, it is the principles of denunciation and deterrence that are the paramount principles to be considered in this type of offence when crafting a sentence. Mr. Burke moved from viewing adult pornography among consenting adults to downloading and viewing child pornography. As counsel for the Crown noted, the vernacular "child pornography" mischaracterizes and minimizes the seriousness of the abuse and violence that is occurring particularly in contrast to adult pornography among consenting adults.
[31] I sentence you to six months of incarceration, followed by 18 months of probation.
[32] I considered the ninety day sentence requested by your counsel and am aware that there have been judges who have ordered custodial sentences of this length of time in somewhat similar situations. However, I find that your circumstances are such that a longer sentence is necessary. You are a mature professional man, working in the computer industry. You did not stumble upon child pornography but actively sought it out. Your maturity and life circumstances should have informed you of the seriousness of your actions. A shorter sentence would inadequately reflect the seriousness of the crime.
[33] I have decided to impose a lower sentence than Justice Ratushny in the Dumais case where she imposed a sentence of 9 months incarceration and one year probation, primarily because Mr. Dumais, was a teacher and in a position of trust over children a combination particularly repugnant to society and deserving of a longer sentence in order to fully satisfy the principles of denunciation and deterrence.
[34] Had the quantity of child pornography found on your computer been greater and had you not cooperated fully with the sexual behaviours assessment and the therapeutic recommendations flowing from that assessment, I would have considered the one-year sentence requested by the Crown.
[35] The terms of your 18 months of probation are the following:
a) While on probation you shall cooperate with and take direction from Dr. Booth or his designate, regarding treatment and that you will continue to take treatment from Dr. Federoff and Dr. Booth or their designates
b) You shall sign whatever releases may be necessary for your probation office to monitor your compliance.
[36] I am also making an order under s. 161 of the Criminal Code prohibiting you from being in the presence of children under the age of 16 unless you are supervised and prohibiting you from seeking employment or maintaining employment, including volunteer positions, where you would be in a position of trust over persons under the age of 16. You are also prohibited from using your computer for the purposes of communicating with any person under the age of 16.
[37] Notwithstanding Dr. Booth's opinion that it is not necessary for an order prohibiting you from attending parks or playgrounds where children are usually found, I am also making that order. I accept the Crown's submissions that failing to make this order would not be in the interests of justice. Being prohibited from using your computer to access images of and from interacting with children under the age of 16 might increase the risk that you would choose to frequent places where children are at play. Prohibiting you from being in those locations will hopefully allow you to move forward in your treatment and keep you from risking the benefits of your treatment and attempts at recovery. Even if there is little risk, it is necessary to make this order in keeping with the general principles of denunciation and deterrence.
[38] I am not making an order preventing you from using a computer in light of the fact that you need to be able to use a computer in order to obtain employment in your field. I do not believe that I need to stress the consequences to you should you be found to be using your computer for purposes that are in violation of these orders or to access child pornography in the future.
[39] There shall also be a DNA Order, and
[40] I am making an Order registering you under the federal Sex Offender Information Registration Act for a period of 20 years.
Madam Justice B. R. Warkentin
Released: December 19, 2012
COURT FILE NO.: 09-A9665 DATE: 2012-12-19
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and –
ANDREW WILLIAM BURKE Applicant
REASONS FOR SENTENCE
Warkentin J.
Released: December 19, 2012
[^1]: 2011 ONSC 276, [2011] O.J. No. 116, para 13.
[^2]: [1997] N.J. No. 218 (Newfoundland and Labrador Provincial Court), at para. 77
[^3]: R. v. D.G.F., 2010 ONCA 27, at paras. 21 and 22