CITATION: R. v. Lysenchuk, 2016 ONSC 1009
COURT FILE NO.: CR-13-0072
DATE: 2016-02-09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Robert Kozak, for the Crown
- and -
Robert Lysenchuk,
Christopher C. Watkins, for the Accused
Accused
Submissions on Sentencing HEARD: January 8, 2016, at Thunder Bay, Ontario
Regional Senior Justice D. C. Shaw
Reasons On Sentencing
[1] The accused, Robert Lysenchuk, was found guilty of possession of child pornography, contrary to s. 163.1(4) of the Criminal Code.
[2] Sentencing submissions were heard on January 8, 2016. The matter was adjourned to today for sentencing.
Facts
[3] Mr. Lysenchuk was found to have had 5,920 photographs and 588 videos of child pornography on his computer and on CD’s, DVD’s and USB flash drives.
Circumstances of Mr. Lysenchuk
[4] Mr. Lysenchuk is 65 years of age.
[5] Mr. Lysenchuk married in 1988. His wife had a nine year old son from a previous relationship. A daughter was born of the marriage. The marriage ended in 1992.
[6] The pre-sentence report indicates that Mr. Lysenchuk’s former wife spoke of him as a consistent and reliable parent. She stated that after separation, Mr. Lysenchuk was exceptionally generous and attentive towards their daughter and consistently attended her educational and extracurricular activities He was conscientious with his child support payments, even to the extent of making child care payments a year in advance.
[7] Although his former wife remarried and relocated to another province, Mr. Lysenchuk continued to have regular involvement with her and with his step-son and his daughter. He stays with his former wife when he visits his daughter. His former wife and the children stay at his home when visiting family and friends in Thunder Bay. Mr. Lysenchuk also vacations with their family.
[8] Mr. Lysenchuk has a grade 12 education. He worked for 38 years at the local paper mill as a supply inventory manager. He is described in the pre-sentence report as a very good employee, with a strong work ethic, trustworthy and having positive relationships with his co-workers and management. He retired in 2007.
[9] Mr. Lysenchuk has an active, positive social life, getting together weekly with former co-workers, attending sporting events and, until recently, bowling in a league.
[10] There is no indication from collateral sources contacted by the author of the pre-sentence report that Mr. Lysenchuk has an alcohol or drug problem.
[11] Both of Mr. Lysenchuk’s parents have passed away, as have his three siblings.
[12] Mr. Lysenchuk has no criminal record.
[13] Persons to whom the author of the pre-sentence report spoke indicated that this offence was very much out of character for Mr. Lysenchuk. His arrest came as a complete shock to them.
[14] Both Mr. Lysenchuk’s former wife and his longtime friend stated that they had no prior concerns with him nor could they identify any comments or behaviour that was indicative of sexual deviance. His former wife advised that she and her family will now take precautions when visiting Mr. Lysenchuk with children. Nevertheless, she expressed a desire to allow Mr. Lysenchuk to have supervised access with his grandchild.
[15] Mr. Lysenchuk indicated that he is extremely embarrassed and ashamed of his behaviour. The author of the pre-sentence report stated that while it was difficult for Mr. Lysenchuk to candidly address his offending behaviour, he readily agreed to attend recommended counselling or treatment pertaining to sexual offending and acknowledged he wanted to address the issue.
[16] Mr. Lysenchuk described himself to the author of the pre-sentence report as heterosexual and denied a sexual preference for children.
[17] The pre-sentence report describes Mr. Lysenchuk as passive by nature. The author of the pre-sentence report is of the opinion that there is a likelihood that Mr. Lysenchuk has a proclivity towards children.
[18] Mr. Lysenchuk’s primary concern is said to be his ability to maintain contact with his daughter, grandchildren and other family members.
[19] In June 2013, Mr. Lysenchuk was seen by Dr. R. Dickey, a psychiatrist who is the Director, Northwestern Ontario Sexual Behaviour Program, Thunder Bay Regional Health Sciences Centre, on a referral from Mr. Lysenchuk’s lawyer. Dr. Dickey has conducted numerous similar assessments.
[20] Dr. Dickey reported that there was no evidence that Mr. Lysenchuk suffers from any major mental illness, affective disturbance or cognitive defect. His level of intelligence appeared to be in the average to low average range. He did not impress in any way as psychopathic or criminal in orientation. He was pleasant and quite co-operative over the course of the interview.
[21] Dr. Dickey expressed the opinion that it is likely that Mr. Lysenchuk suffers from Pedohebephilia, which is a disorder of sexual preference in which the preferred method of achieving sexual arousal and gratification is through the image of, fantasy of, or interaction with a prepubescent or early pubescent child. Dr. Dickey states that the course of this disorder is lifelong and that there is no known treatment which has been demonstrated reliably to change or alter sexual preference.
[22] Dr. Dickey stated that Mr. Lysenchuk shares very few of the characteristics associated with sexual re-offending. Dr. Dickey stated that it is likely that Mr. Lysenchuk’s deviant sexual preference would have been lifelong and yet he has never been involved in a “hands-on” criminal offence of a sexual nature. Dr. Dickey was therefore of the opinion that Mr. Lysenchuk’s risk of offending in a sexual manner involving contact with or direct visualization of live persons is low. Dr. Dickey stated that the risk of Mr. Lysenchuk re-offending in the sphere of pornography, only, is in the low moderate range.
[23] Dr. Dickey is of the view that it may be of assistance to refer Mr. Lysenchuk to the Northwestern Ontario Sexual Behaviour Program for assessment as to participation in a psychological treatment program. In that program, sexual offenders learn to identify risk situations in the context of their own sexual preferences, feelings and behaviours with the goal of reducing risk of re-offending.
[24] Mr. Lysenchuk expressed to Dr. Dickey his willingness to undergo such a program.
Legal Parameters
[25] Possession of child pornography under s. 163.1(4) of the Criminal Code, where the matter proceeds by indictment, is punishable by a maximum term of five years imprisonment and a minimum punishment of imprisonment for a term of six months.
Position of the Crown
[26] The Crown seeks a term of imprisonment of 18 months together with three years’ probation.
[27] The Crown also seeks a DNA order under s. 487.04 of the Criminal Code, an order under s. 490.012 and s. 490.013 to require that Mr. Lysenchuk comply with the Sex Offender Information Registration Act for 10 years, and an order under s. 164.2 for forfeiture of the computer hard drive, CD’s, DVD’s and USB flash drives containing the child pornography in question.
[28] The Crown submits that the prevailing range of imprisonment for this offence, where there is no active trading or shopping for particular pornography, is 12 to 24 months.
[29] The Crown submits that the quantity of child pornography found in this case is a factor in its request for a sentence of 18 months imprisonment.
[30] The Crown submits that the primary consideration on a sentence for this offence is deterrence. The Crown submits that where an offence is associated with calculated behaviour, the prospect of imprisonment can have a strong deterrent effect.
[31] The Crown observes that this is not a victimless crime – that a child depicted in the imagery is victimized every time the image is watched. The Crown also notes that collectors of child pornography create a market for persons producing this material.
Position of the Defence
[32] The defence acknowledges that deterrence and denunciation are the primary considerations in a sentence for this offence.
[33] The defence submits that the sentence in the circumstances of this case should be the mandatory minimum of six months imprisonment, which the defence contends is a serious sanction for someone in the position of Mr. Lysenchuk.
[34] The defence points to Mr. Lysenchuk’s positive pre-sentence report and to the assessment of Dr. Dickey that Mr. Lysenchuk is not the type of person who would be a risk to the community by acting on the images found on his computer.
[35] The defence submits that a six month term of imprisonment, imposed on an elderly first offender with an exemplary background, will send a strong message of deterrence.
[36] The defence does not oppose the Crown’s request for three years’ probation or for the ancillary orders for DNA, SOIRA and forfeiture.
Mitigating and Aggravating Factors
[37] The court must consider mitigating and aggravating factors as part of the sentencing deliberation.
(i) Mitigating Factors
[38] Mr. Lysenchuk is a first time offender. He is 65 years of age with only this one blemish on his record. Those who know him well say that this offence is shockingly out of character.
[39] He has the support of his former wife, from whom he has been separated for more than 25 years and who wants him to be able to continue to have contact with his family, subject to supervised access with his grandchild.
[40] He is described by his former wife as an exceptionally generous, attentive and responsible father to his stepson and his daughter.
[41] He was employed for 38 years with the same company, valued and respected by both his co-workers and management.
[42] He has no alcohol, drug or mental illness issues.
[43] He has been assessed as low risk to offend in a sexual manner involving contact with or direct visualization of children and as a low moderate risk to re-offend in the sphere of pornography.
[44] Mr.Lysenchuk is willing to participate in such programs as may be recommended by professionals associated with the Northwestern Ontario Sexual Behaviour Program at Thunder Bay Regional Health Sciences Centre. This is indicative of Mr. Lysenchuk’s insight into his behaviour. There has also been an expression of remorse to Dr. Dickey.
(ii) Aggravating Factors
[45] The quantity of child pornography found in Mr. Lysenchuk’s possession was substantial.
[46] The images, according to what Mr. Lysenchuk told Dr. Dickey, included both pre-pubescent and early pubescent children.
[47] Dr. Dickey has determined that Mr. Lysenchuk likely suffers from Pedohebephilia.
[48] This is an offence against children.
Principles of Sentencing
[49] The fundamental purpose of the criminal law is the protection of society. This principle has been codified in s. 718 of the Criminal Code which emphasizes that the fundamental purpose of sentencing is to encourage respect for the law and the maintenance of a “just, peaceful and safe society” by imposing just sanctions. These sanctions must have one or more of the following objectives:
to denounce unlawful conduct;
to deter the offender and other persons from committing crimes;
to separate offenders from society, where necessary;
to assist in rehabilitating offenders;
to provide reparations for harm done to victims or to the community; and
to promote a sense of responsibility in offenders and an acknowledgement of harm done to victims and to the community.
The principle of denunciation focuses on the conduct of the offender, not on the personal characteristics of the offender. It is a public expression of society’s attitude towards an offence committed, an expression of society’s disapproval of an act that encroaches on our society’s basic code of values. The principle of deterrence seeks to provide a threat or an example to the offender (individual deterrence) or to others (general deterrence) in order to discourage crime, by making it clear that criminal behaviour will result in punishment. Rehabilitation mandates punishment to fit the offender. It is aimed at the renunciation by the offender of his wrongdoing and his re-establishment as an honourable, law-abiding citizen. Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Every sentence must meet this fundamental and overarching principle of proportionality. The punishment must fit the crime. The Criminal Code also directs in section 718.2 that a court must take into consideration the principle that a sentence should be increased or reduced for any relevant aggravating or mitigating circumstances relating to the offence or the offender. One of the circumstances that the Criminal Code expressly deems to be an aggravating circumstance is evidence that the offender, in committing the offence, abused a person under the age of 18. Section 718.2 also requires the sentencing court to take into consideration the principles that a sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances, and an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances
[50] It is essential for the sentencing court to consider and blend all of the relevant sentencing principles.
Discussion
[51] Mr. Lysenchuk has been found guilty of an offence that involved the abuse of children under the age of 18. Persons who collect child pornography cannot distance themselves from the physical and emotion harm caused to children by those who make child pornography. As noted by Justice N. Brown in R. v. Hopps, [2010] B.C.J. No. 2698 (S.C.), at para. 148, the person possessing child pornography images is in equal partnership with the producers. Without persons, like Mr. Lysenchuk, willing to view child pornography, there would be no market for the production of child pornography. At para. 149, Justice Brown observed “the distribution and viewing of the images, as commented on in the cases, constitutes a continuing form of abuse because the child lives out their life knowing a stranger somewhere in the world is taking pleasure in their pain. No viewer of child pornography can fail to comprehend that …”.
[52] In R. v. Davies 2012 ONSC 6021, Spies J. engaged in a comprehensive review of sentences imposed for possession of child pornography. Davies was decided when the minimum sentence for the offence was 45 days. Although the possible range of sentence was therefore 45 days to five years, Spies J. determined that the sentences imposed by the courts, particularly in this court, were in the range of six months to two years, in addition to probation.
[53] In cases reviewed by Spies J., the offenders generally had no criminal records and were older men. Mr. Lysenchuk’s age and absence of a criminal record therefore do not stand out as factors which distinguish this case from those referred to in Davies. Nevertheless, in giving primary consideration to the objectives of denunciation and deterrence of this abhorrent and harmful conduct, it would be a mistake to gloss over the fact that, apart from this offence, Mr. Lysenchuk has, for decades, been a hardworking, productive member of society, described by those who know him best as a quiet, pleasant and compassionate man, a loving, consistent and responsible father, someone admired and supported by his family and closest friend, even after they learned of this crime. The fact that his former wife, from whom he has been separated for approximately 25 years, wants him to continue to have contact with his grandchild, albeit supervised by an adult, is telling.
[54] Mr. Lysenchuk has shown insight into his conduct. He is embarrassed and remorseful, and has stated his willingness to participate in sexological treatment. In the opinion of Dr. Dickey, an expert in assessing individuals in these circumstances, Mr. Lysenchuk is a low risk to offend in a sexual manner involving contact with live persons and a low moderate risk to reoffend in the sphere of pornography.
[55] For those reasons, I am of the view that the 18 months imprisonment sought by the Crown exceeds what is required to accomplish the purpose and objectives set out in the sentencing provisions of the Criminal Code.
[56] However, I am also of the view that because of the size of Mr. Lysenchuk’s collection of child pornography, an appropriate sentence must be more than the six months minimum sentence to address the principles of deterrence and denunciation, in the context of the circumstances of this particular offender.
[57] To have amassed 5,920 photographs and 588 videos speaks of more than mere curiosity on the part of Mr. Lysenchuk. Dr. Dickey’s diagnosis is that Mr. Lysenchuk likely has a disorder where he is sexually aroused and gratified through the images of pubescent or early pubescent children. The images of Mr. Lysenchuk’s collection, as described to Dr. Dickey, are of pubescent or early pubescent children.
[58] Having considered the mitigating and aggravating factors and the principles and objectives of sentencing for this offence, it is my opinion that a sentence of nine months’ imprisonment is appropriate, followed by probation for three years.
Conclusion:
[59] For the reasons given, Mr. Lysenchuk is sentenced to a term of imprisonment of nine months.
[60] He is further sentenced to probation for three years. In addition to the statutory terms of the probation order, Mr. Lysenchuk shall:
(1) report to a probation officer as directed;
(2) attend and fully participate in an assessment for sexual behaviours and, if so directed by the probation officer, attend and complete recommended treatment;
(3) not be with any child under the age of 16 years except in the company of a responsible adult;
(4) live at a place approved by the probation officer and not change addresses without the consent of the probation officer;
(5) not access or possess any images of children who are depicted to be or who appear to be under the age of 16, who are naked or who are portrayed in a sexual manner;
(6) not subscribe to or access any internet services or sites, except for a standard cell phone, as approved by the probation officer, and provide regular and ongoing proof of subscription particulars as required by the probation officer;
(7) sign all necessary release of information documents in order that the probation officer may monitor compliance with any aspect of this order.
[61] Additional orders are made as follows:
(1) Mr. Lysenchuk shall provide samples as reasonably required for the purpose of DNA analysis, pursuant to s. 487.04 and s. 487.51 of the Criminal Code;
(2) Mr. Lysenchuk shall comply with the Sex Offender Information and Registration Act for a period of 10 years, pursuant to s. 490.011(1), s. 490.012 and s. 490.013(2)(a) of the Criminal Code; and
(3) The laptop computer, hard drive, DVD’s, CD’s and USB flash drives belonging to Mr. Lysenchuk seized by the Thunder Bay Police Service shall be forfeited to Her Majesty The Queen in Right of Ontario and disposed of as the Attorney General for the Province of Ontario directs or otherwise dealt with in accordance to law, pursuant to s. 164.2 of the Criminal Code.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: February 9, 2016
CITATION: R. v. Lysenchuk, 2016 ONSC 1009
COURT FILE NO.: CR-13-0072
DATE: 2016-02-09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
and –
Robert Lysenchuk
Accused
REASONS ON SENTENCING
Shaw R.S.J.
Released: February 9, 2016
/mls