COURT FILE NO.: 1570/11
DATE: 20130617
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TIMOTHY MOROZ
N. Dietrich, for the Provincial Crown
Michael Robb, for the Federal Crown
C. Cawkell, for the accused Timothy Moroz
HEARD: May 16, 2013
DESOTTI, J.
Sentencing
A. Offences
[1] The accused has pleaded guilty on one indictment to four counts, which include the following:
That between the 1st day of July 2009 and the 31st day of August 2009, the accused committed an offence contrary to s. 151 (a) of the Criminal Code, that he did for a sexual purpose touch N. C., a person under sixteen years of age, directly with a part of his body, to wit, his penis;
That between the same dates, the accused committed an offence contrary to s. 163.1 (2) of the Criminal Code did make child pornography, to wit, a video of a naked 12 year old girl;
That on November 26th, 2009, the accused committed an offence contrary to s. 163.1 (4) of the Criminal Code in that he did have in his possession child pornography, to wit, pictures;
That on November 26th, 2009, the accused did attempt to smuggle into Canada goods, to wit electronic images containing prohibited and obscene materials contrary to s. 159 of the Customs Act.
[2] In addition, on a different indictment, the accused pleaded guilty to a 3 count indictment as follows:
That on the 7th day of January, 2010, in the city of Cambridge, the accused, while at large on a recognizance, breached one of the conditions, to wit not to be alone with children under the age of 14 years unless in the company of your surety, contrary to s. 145 (3) of the Criminal Code;
That on or between the 1st day of September, 2011, and the 17th of July, 2012, in the city of Cambridge, while at large on a recognizance, did fail to comply with a condition of that recognizance, to wit, that he was not to be alone in the company of anyone under the age of 14 years unless in the company of your surety and that he did fail to comply with that condition by being alone with an 11 year old girl and a 8 year old boy, contrary to s. 145 (3) of the Criminal Code;
That on or between the 1st day of January, 2012, and the 17th day of July, 2012, in the city of Cambridge, while at large on a recognizance, failed to abide by a condition, to wit, not be in possession of any cell phone, computer, or digital camera, and did fail to comply with that condition by having in his possession a Samsung Note cell phone, contrary to s. 145 (3) of the Criminal Code.
[3] Finally, on a separate one count indictment, the accused pleaded guilty to the following:
- That on or about the 17th, day of July, 2012, at the city of Cambridge, the accused did have in his possession child pornography, to wit, nude images of pre-pubescent girls, contrary to s. 163.1 (4) of the Criminal Code.
B. Position of Counsel
[4] Defence counsel seeks a global sentence for the accused of 21 months in custody, less time served of 11 months (12 months when the matter is to be returned to court on Jun 17th) with an enhanced credit, based on the decision of R. v. Summers, of 1.5 to 1. The rationale for this enhanced credit is as a result of the number of times that the accused has been physically assaulted while in prison by other inmates and because he has often had to be placed in secure custody to protect him from these same inmates.
[5] The net time to be served would thus be 3 and ½ months.
[6] Crown counsel seeks a prison term globally of 6 and ½ years to 8 years. His submissions are that the four count indictment with the sexual interference, the making, possession, and importation of pornography should attract a global sentence of 6 to 7 years. Then out of the 11 months in pre-sentence custody (now 12 months) that 5 months would be credited to the 3 breaches of probation. On the plea of guilt to the last count the accused would be sentenced to a further 6 – 12 months incarceration, but consecutive to other counts leave a net sentence range of 6 and ½ years to 8 years in penitentiary.
[7] From this range of sentence, then I would deduct the remaining six months (now 7 months) in pre-sentence custody, leaving an overall global sentence of six years or 7 and ½ years depending upon my determination of the exact period of incarceration. Crown counsel resists any enhancement for the accused’s time in pre-sentence custody based primarily on the reality that any delay was occasioned by the action or lack of action of counsel for the accused.
[8] Counsel have provided me with Book of Authorities reflecting various principles of sentencing with respect to offences of sexual assault on minors, and the possession of pornography. These decisions have been most helpful.
C. Analysis
[9] Fundamentally, with offences of this nature, the overarching principle is that of denunciation and deterrence. While rehabilitation is always a consideration, the offences themselves must reflect the absolute condemnation by the courts for this type of criminal activity.
[10] The accused brought a Charter application to exclude the seizure of his cell phone and the pictures found within at the Port Huron/ Sarnia border crossing. The application was dismissed. Eventually, he has pleaded guilty to certain significant counts in the three indictments before me and thus has spared this court a great deal of expense and ultimately avoided having the complainant testify at trial. While the Crown submits that the case against the accused was overwhelming and thus any mitigation by the accused should be thus limited (see R. v. Klassen), nevertheless, I do consider these pleas of guilty as a mitigating factor.
[11] In addition, further mitigating factors are the reality that the accused has no criminal record and has shown remorse for his actions as reflected in the pre-sentence report and through the submissions of his counsel. I should also add that the pre-sentence report was generally positive and indicated that the accused had been gainfully employed.
[12] That having been said, I want it made perfectly clear that the global sentence of 21 months sought by defence counsel, less 11 months (12 months upon the return of the matter for sentencing on June 17th) with enhanced credit of an additional 5 and ½ months (6 months upon the return of the matter on June 17th) or a total reduction of sentence of 16 and ½ months (18 months upon the return date for sentencing of June 17th) leaving a net sentence of 4 and ½ months ( leaving a net sentence of 3 months upon the return date for sentencing of June 17th) would not reflect the principles of general deterrence, specific deterrence or denunciation.
[13] With respect to the four count indictment that reflects the sexual interference with the female minor, which included intercourse and fellatio, and which took place over at least a two month period in the summer of 2009, I would conclude that the starting point of a sentence for this offence alone would be between 2 and 3 years.
[14] Case law referred to me by both counsel have differing ranges for this type of offence. Most importantly, as with all decisions, the case law is, to a greater extent, factually driven, with the higher sentences reflecting sexual contacts with usually more than one victim. In addition, there is sometimes an element of coercion or a threat to the victim and sometimes a pattern of severe emotional brutalization and usually over a longer period of time.
[15] For example, Justice Moldaver, in R. v. D. (D.), indicated precisely this type of sentencing structure. The four significant factors that a court must consider in determining an appropriate global sentence are:
a) The abuse of children;
b) The regular and persistent sexual abuse over a substantial period of time;
c) Where there other acts of physical violence or threats or extortion;
d) Where there are elements of a pattern of severe psychological, emotional and physical brutalization.
[16] Certainly, the victim impact statement would indicate that the female minor has been significantly emotionally scarred by this sexual interference and some 4 years later is still experiencing problems in self-esteem and with relationships with other men including her own father.
[17] She indicated in her victim impact statement that she cannot trust anyone and the knowledge that the accused had taken video recordings of her and their sexual activity made her feel “creepy”. N. C. indicated that she thinks about this abuse on a daily basis, she has nightmares about the offender, and there are days when she wants to die. Her final statement are as follows:
She doesn’t see the point in counselling. She said she has been dealing with sexual abuse for five years and she feels like she is getting worse. She reiterates that she trusts nobody, and she feels her whole life is messed up.
[18] Without unduly focusing on any particular case, I do consider the factual realities in the decision in R. v. B.C.M. to be similar in some ways to the facts in the case before me. There were two complainants in that case but the sexual interference fell short of intercourse. On the other hand, the offences occurred over a two year period. The accused also made videos and photos of his daughters but denied any distribution of the photos as was apparently the situation in the matter before me.
[19] In R. v. B.C.M., the accused pleaded guilty to two counts of sexual touching under s. 151 of the Criminal Code, 1 count of possession of child pornography, and 1 count of making child pornography. The accused was sentenced to three years on the sexual interference; 1 year consecutive to the charges of sexual interference with respect to the charge of possession of child pornography; and a further 3 years consecutive to the charge of sexual interference for the offence of making child pornography but concurrently with the charge of possession of child pornography. This resulted in a total global sentence of six years.
[20] Upon appeal, the British Columbia Court of Appeal affirmed this global sentence of 6 years as reflecting perhaps at the high end of a sentencing range, but nevertheless, an appropriate sentence result. The assessment report in that decision indicated that the accused’s likelihood to reoffend was high but not imminent and would be governed by opportunities to access children.
[21] Both defence counsel and the Crown attorney referred to the assessment report prepared by Dr. Woodside. Counsel for the defence targeted certain testing that indicated that the accused was at the lower end of scale such as the P.C.L.: SV test. The Crown attorney in particular cited a number of passages that reflected the concerns of the assessor. I will only refer to two such passages as follows:
a) At page 25 of the report, Dr. Woodside indicates that “there is strong evidence in support of Mr. Moroz suffering from pedohebephilia. Mr. Moroz denied any attraction to prepubescent or pubescent individuals. However, he was found to be in possession of child pornographic materials on two separate occasions, with the second set of charges coming almost three years later while he was already on bail regarding the previous charges.”
b) At page 27, Dr. Woodside states that “Mr. Moroz clearly presents with some of these variables including more significantly the presence of anti-social personality traits, the presence of sexual paraphilia and a positive phallometric test indicating arousal to pubescent and prepubescent children.”
[22] As with all assessment reports, certain passages are relied on by both counsel in support of their suggested sentencing range. Regardless of what concerns are raised by the report and the conclusion by Dr. Woodside that the accused is assessed at the moderate range to reoffend, there are significant and troubling aggravating factors present before me on this sentencing.
[23] What to me are the most significant aggravating factors are that the accused, while out on a ‘bail recognizance’ that had mandated certain significant prohibitions with respect to his contact with children, was found to be in contact with two younger children and then was found to be in possession of additional child pornography.
[24] This flagrant possession of additional child pornography is even more telling of the accused’s propensity to reoffend when we appreciate that this accused was involved for the first time with the criminal justice system, spent a month in custody before his release on a recognizance, and still was not able to avoid both the possession of child pornography and contact with young children.
[25] A further aggravating factor was the making of the video of the accused and the minor female complainant. While this forms the basis of a separate count in the first indictment, I consider this an aggravating factor on its own when it is coupled with the count of sexual interference. What is also most troubling in viewing the video is that the accused’s young son is seen on the foot of the bed while the accused is engaged in sexual intercourse with the female minor.
[26] I would probably accept the fact that this child was oblivious to the actions of his father under the bed covers. However, this conduct is so absurdly egregious and so bizarre that it is indicative of an individual who has no understanding or realization of how completely inappropriate it was for the accused to have his son present while he engaged in sexual intercourse with this minor.
[27] In considering the various charges, and excepting for the moment the breaches under s. 145 (3) of the Criminal Code, I think it is important to reflect on what sentences are mandated and what are discretionary.
[28] Under s.151 (a) of the Criminal Code (Sexual Interference), the minimum sentence for a conviction was 45 days incarceration. This now has changed to a minimum period of incarceration of 1 year. The maximum sentence remains at 10 years
[29] Under s. 163.1 (2) of the Criminal Code (Makes Child Pornography), the minimum sentence for a conviction is 1 year incarceration. With respect to possession of child pornography under s. 163.1 (4) of the Criminal Code, the minimum sentence for a conviction was 45 days incarceration and the maximum sentence is 5 years. This has changed to a minimum period of incarceration of 6 months.
[30] Under s. 159 of the Customs Act, there is no minimum mandatory penalty and the range of sentence by way of indictment is a fine of not more than $500,000.00 or to imprisonment for a maximum of 5 years or to both a fine and imprisonment.
[31] The second charge under s. 163.1 (4) of the Criminal Code again has a minimum mandatory sentence of 45 days and a maximum sentence of 5 years.
[32] Although the offences of breaches of recognizances under s. 145 (3) of the Criminal Code, normally are not considered to be significant penalty sections, in these circumstances and given the protection of the public concerns with respect to individuals who may harm children directly through inappropriate criminal activity and because the accused was recently charged with possession of child pornography, I consider these breaches to be quite serious.
[33] As previously stated, defence counsel suggests, that I consider sentencing the accused on the basis of the minimum mandatory penalties for these offences on a consecutive basis. Thus under s. 151 (a) (sexual interference), the accused would be sentenced to 45 days (1 and ½ months) incarceration; for the 2 possession of child pornography counts, the accused would be sentenced to a total of 90 days (3 months); and for the making of child pornography, a period of 12 months incarceration (the minimum mandatory penalty under this section) or a total of 16 and ½ months incarceration.
[34] Defence counsel then suggests that I should add consecutively a further 5 months for the breaches. The total global sentence would be then 21 months from which I would then deduct, on an enhanced credit basis, a total of 16 and ½ months of pre-sentence custody (11 x 1.5) and thus the net period of incarceration remaining would be 4 and ½ months. (Given the sentencing will take place on June 17, 2013, the enhanced credit would be 12 x 1.5 or 18 months, leaving a net sentence of 3 months)
[35] As I indicated at the outset, this suggested penalty does not reflect denunciation, deterrence, or specific deterrence of the criminal conduct of the accused, Timothy Moroz. The first most obvious disconnect with respect to this suggested penalty is with respect to the offence of sexual interference. The previous minimum mandatory sentence of 45 days was to be considered in only the rarest situations where there had been only the least contact with the minor and only the most insignificant emotional impact.
[36] The reality is that the Parliament of Canada has now determined that even for this rarest of sexual interference with a minor, the minimum mandatory penalty has been upped to 1 year incarceration.
[37] Nevertheless, given that the maximum penalty of 10 years was the maximum penalty in effect at the time of this offence in 2009, the question that goes begging is exactly how does case law suggest that intercourse with a minor (on four occasions says the minor victim and on two occasions says the accused) and continued sexual activity with this same minor (mutual oral sex as reflected on the third video tape) over a two month period point to only a minimum sentence?
[38] The simple answer is that even the cases that are relied upon by defence counsel start with a much higher penalty. Furthermore, I am firmly of the view that any starting point when one is dealing with sexual intercourse and other sexual conduct with a child mandates a penitentiary penalty, that is, a sentence in excess of 2 years.
[39] I am aware that there are decisions, particularly those cases in which teachers, instructors, and coaches have been charged with sexual interference with a minor, and where the ultimate sentence has been less than a penitentiary term. Notwithstanding those previous decisions, in light of the evolution and appreciation of the significant harm that is occasioned on these same children, I do not consider those decisions as binding on me. Certainly, the previous amendment to s. 150 (a) and the new amendment to s. 150 (a), which I acknowledge were not in effect at the time of these offences, along with the new amendments to s. 718 of the Criminal Code suggest that both the courts and Parliament mean to react with a far more significant penalty when adults sexually interfere with children.
[40] Certainly, the British Columbia Court of Appeal in R. v. B.C.M. did not take any issue with the conclusion of the trial judge or for that matter with defence counsel on appeal when they and he both took no issue with respect to the range of 3 years with respect to the charges of sexual interference.
[41] There is no question that an additional aggravating factor in that decision was that the person who was sexually involved with these minors was the children’s father. On the other hand, excepting on one occasion the accused’s attempt to have anal intercourse with one of his daughters, he had not had intercourse with any of these two daughters although he did involve them in oral sex, masturbation, digital penetration, and cunnilingus.
[42] In addition, and without attempting to react in a punitive way to the video taping of the one act of sexual intercourse between the accused and the child, there were other video recordings of sexual acts between the accused and the minor victim not to mention, as a further aggravating factor, of putting his own son in this same video recording. Thus, within the context of this one count of sexual interference, I consider this video taping of this sexual conduct to be an aggravating factor even though it and other video tapings of sexual activities reflected in count #4 constitute a separate count and offence in the first indictment.
[43] With respect to count #1 of the indictment, I am sentencing the accused, Timothy Moroz to 2 and ½ years (30 months) incarceration.
[44] With respect to count #4, the minimum mandatory sentence is one year. While I was initially inclined to consider this video recording as reflective of a sentence beyond the minimum, I acknowledge that there is no evidence that the accused circulated or distributed this video to others. In addition, the duvet and bed covers did hide the actual sexual activity of the accused and the child.
[45] With respect to count #4, the accused is sentenced to 1 year incarceration , which is consecutive to count #1.
[46] With respect to count #6 and count #7, although these are separate counts and reflect a different set of elements that constitute these separate offences, I consider count #7 as an aggravating factor with respect to the possession of child pornography as reflected in count #6. In short, the transportation of his cell phone across the U.S./Canada border with child pornography on this phone is an aggravating factor to the possession of child pornography.
[47] Furthermore, the accused was eventually found in possession of numerous child pornographic images and as well as the video recordings. While I have been involved in the sentencing of other accused individuals who possess a greater number of video recording and more pictures, this was not a trivial amount of pictures or an inconsequential number of video recordings.
[48] With respect to count #6, the accused is sentenced to 6 months incarceration, which is consecutive to counts #1 and count #4. With respect to count #7, the accused is sentenced to 6 months incarceration but this sentence is concurrent to count #6 and concurrent to counts #1 and count #4.
[49] Excepting for the moment the three breaches of a recognizance found in the second indictment, the circumstances that led to charge to the accused as found in count #1 on the third indictment arose as result of the accused’s release on bail conditions and then his subsequent arrest. Not only was the accused charged with the three breaches but he was also charged with the substantial offence of possession of child pornography.
[50] In my earlier analysis, I indicated that this offence was a significant, aggravating factor in determining an appropriate range of sentence. The simple reality is that the accused was prepared to risk his freedom, risk his employment, risk any subsequent relationship, risk his access time and visits with his son, and risk his visits with his ailing mother, in order for him to avail himself of child pornography.
[51] Rather than attempting to craft my own views of the court and community’s disgust and abhorrence to this type of criminal activity involving the possession of child pornography, I have fortunately been able to borrow the words of a colleague who in my mind has captured the insidious and devious nature of this offence. Justice Molloy in R. v. Kwok states it this way:
Collectors of child pornography seek to distance themselves from the direct physical and emotional harm caused to children. However, the collectors of this filth are a vital part of the evil menace it represents and bear responsibility for its malignant growth right along with its creators……
The overwhelming majority will have started by simply looking at pornography created by someone else, then by swapping pornography with like-minded people, and only then moving on to actually creating the pornographic images for others by torturing and raping children in front of a camera. People who set about to access and collect pornography victimizing children, must be made aware that the courts do not see this as a minor or victimless crime. It is a reprehensible crime and must be dealt with severely for the protection of society as a whole and of its most vulnerable members, our children.
[52] This subsequent offence causes me to be concerned that the monitoring of this accused should be ongoing after he reaches parole eligibility. The accused has indicated through his lawyer that he is prepared to seek counselling. This I not only strongly urge but indicate that this counselling should be a condition precedent to any early parole.
[53] In the result the accused is sentenced on count #1 on the third indictment to a further 1 year incarceration, which is consecutive to counts#1, count #4, and count #6 and concurrent to count #7.
[54] The three breaches are neither technical nor trivial. The reality that the accused is in the company of children without the presence of his surety is troubling and reflects a complete disregard by the accused of the seriousness of the matters that were already before the court. Again while count #1 and count #2 reflect the same concern, they are serious distinct and different breaches.
[55] Most importantly, count #1 is said to have occurred in January of 2010 and count #2 is stated to have occurred between the 1st day of September 2011 and the 17th day of July 2012. However, those breaches pale into comparison to the third breach when the accused was found again to be in possession of child pornography.
[56] I am mindful with respect to this third breach that I have already sentenced the accused on this substantive offence of possession of child pornography to a year in custody consecutive to other sentences with respect to other offences. Regardless, I consider this latter breach as a purposeful failure on the part of the accused to appreciate the despicable nature of his criminal conduct.
[57] In the result, on count #1 of the second indictment, I sentence the accused to 3 months incarceration, which is consecutive to count #1, count #4, and count #6 on the first indictment, and consecutive to count #1 on the third indictment but concurrent to count #7 of the first indictment.
[58] On count #2 of the second indictment, the accused is sentenced to 3 months incarceration, which is consecutive to count #1, count #4, and count #6 on the first indictment, also consecutive to count #1 on the third indictment and count #1 on the second indictment but concurrent to count #7 of the first indictment.
[59] On count #3 of the second indictment, the accused is sentenced to 6 months incarceration, which is consecutive to count #1, count #4, and count #6 on the first indictment, also consecutive to count #1 on the third indictment and consecutive to count #1 on the second indictment, also consecutive to count # 2 of the second indictment but concurrent to count #7 of the first indictment.
[60] The total period of incarceration is thus 6 years. I am prepared to give the accused an enhanced credit for the physical abuse he has experienced while in custody and for his numerous placements in secure custody for his protection. I agree with Crown counsel that most of delay was occasioned through the actions of either the accused or his counsel but I do acknowledge that the physical abuse was significant and the accused himself has expressed a great deal of fear for his own personal safety from his time spent in pre-sentence custody.
[61] In the result, I am prepared to reduce the time to be spent in custody by 1.5 to 1 and thus credit the accused, Timothy Moroz with 18 months in pre-sentence custody (12 months x 1.5 for enhanced credit = 18months). The accused’s net period of incarceration is thus 4 and ½ years (6 -1.5 = 4.5 years).
D. Ancillary Orders
[62] There are a number of other ancillary orders that arise from these convictions. Excepting for the suggested subsections (c) and (d) of the s. 161 order that has been sought by the Crown, defence counsel does not resist any of the other suggested ancillary orders, which I have determined as follows:
a) Pursuant to 743.21, the accused, while in custody, shall not communicate to either R.L. or P.L. and N.C..
b) There will be a DNA sample provided by the accused.
c) Pursuant to s. 490.013 of the Criminal Code the accused is placed on the Sex Offender Information Register for life (S.O.I.R.A.).
d) Pursuant to s. 109 of the Criminal Code, the accused is prohibited for life from the possession of any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, and explosive substance for life.
[63] With respect to the order sought by the Crown under s. 161 of the Criminal Code, defence counsel has no difficulty with respect to subsection (a) and (b) of this section but believes that the new wording as found within the Criminal Code with respect to these two subsections is far too broad and would create an impossible reality for the accused upon his release from prison to effect compliance.
[64] The Crown suggests as a compromise that the older sections would be an appropriate compromise with some acknowledgement with respect to the desire to curtail the accused’s ability to access the internet or to avail him of a computer or cell phone system that might access precisely the type of images that the accused is prohibited from viewing.
[65] With those concerns in mind, I am making the following ancillary orders under s. 161 of the Criminal Code for life as follows:
a) The accused is prohibited from attending a public park or swimming area where persons under the age of 16 years are present or can be reasonably expected to be present, or a daycare centre, schoolground, playground or community centre;
b) The accused is prohibited 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 16 years;
c) The accused, Timothy Moroz, is prohibited from using a computer, cell phone or digital or internet system, for the purpose of communicating with anyone under the age of 16 years;
d) The accused, Timothy Moroz, will be allowed to use a cell phone, or any other digital or computer system for employment purposes only, provided the party that employs the accused is aware of the narrow use that the accused, Timothy Moroz is allowed to access these systems and is also aware that the cell phone and or computer or digital system is to be used only for employment purposes and that there is a prohibition to utilize these devices for any other purpose.
The Honourable Mr. Justice John A. Desotti
Released: June 17, 2013
CASES CONSIDERED:
R. v. Thompson, 2008 BCCA 350, 238 C.C.C. (3d) 193; R. v. Fraser, [2010] N.S.J. No. 286 (NSSC); R. v. Johnston, [2009] O.J. No. 5697 (OCJ); R. v. Debidin, [2007] O.J. No. 3429 (OSC); R. v. L.M. 2008 SCC 31, [2008] 2 S.C.R. 163; R. v. D.G.F. 2010 ONCA 27, [2010] O.J. No. 127; R. v. Klassen [2012] B.C.J. No. 2114; R. v. R.P. [2013] N.B.J. No. 48; R. v. Strohmeier, 2007 ONCJ 141, [2007] O.J. No. 1250
COURT FILE NO.: 1570/11
DATE: 20130617
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
TIMOTHY MOROZ
REASONS FOR SENTENCE
DESOTTI, J.
Released: June 17, 2013