R. v. Barmashi, 2016 ONSC 149

COURT FILE NO.: CR-14-10000573-0000

DATE: 20160204

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Crown

– and –

KLAJDI BARMASHI

Defendant

Mareike Newhouse, for the Crown

S. Whitzman, for the Defendant

HEARD: December 22, 2015

McWatt J.

REASONS FOR SENTENCE

1Klajdi Barmashi was twenty-one years old when he was charged with possessing child pornography (x2), accessing child pornography (x2), making child pornography available and making child pornography. He pleaded guilty on December 22, 2015 to one count of each of possessing, accessing and making child pornography available.

2The following are the agreed facts:

On November 22, 2011, Mr. Barmashi logged into a chat room that acts as a forum for the discussion of child sexual exploitation (‘motherless.com’). He was at his home at the time, located at 1167 Greenwood Avenue, in Toronto. This was also the home of his parents.

Once logged into the chat room, Mr. Barmashi engaged in a chat with someone whom he believed to have a sexual interest in children, but who was actually an undercover officer in New Zealand.

The chat moved from the online chat room to a Yahoo instant messaging program. During this instant messaging chat, Mr. Barmashi discussed child sexual exploitation with the undercover officer.

During the chat, Mr. Barmashi shared 79 images with the officer, many of which constituted child pornography, within the meaning of the Criminal Code.

On March 22, 2012, officers from the Toronto Police Service’s Child Exploitation Unit executed a search warrant at Mr. Barmashi’s home. During the search, officers located Mr. Barmashi’s laptop in his bedroom. On this laptop, police accessed Mr. Barmashi’s Yahoo Messenger account, as well as a number of child pornography images and videos. A subsequent forensic analysis of this computer revealed a total of 5116 unique child pornography images, as well as 973 unique child pornography videos.

During the same search, officers also located a computer in the room next to Mr. Barmashi’s bedroom. In the temporary Internet files on this computer, they found that additional child pornography files had been accessed as recently as the night before (March 21, 2012, at approximately 9:00 p.m.).

Mr. Barmashi was arrested as a result of the officers’ findings. Upon arrest, he provided a video statement to the police in which he readily admitted his guilt.

3The Crown asks for a sentence of two years less one day and three years of probation. The defence asks for twelve months in custody plus three years of probation with treatment conditions. Both the Crown and defence agree on some ancillary orders, but disagree about the necessity of others.

Evidence on the Sentencing

4Along with the agreed facts, the Crown and defence filed a psychiatric report of Dr. Hy Bloom, dated December 10, 2015, a transcript of the internet chat between the undercover officer and the defendant, which led to Mr. Barmashi’s arrest by the Toronto Police and a C.D. with twenty sample child pornography images and parts of ten child pornography videos seized from Mr. Barmashi. The images and video portions were shown to me in court.

5The Crown also called Detective Constable Amy Davey of the Toronto Police Service, Child Exploitation Unit.

6The Officer testified to the following, which was not challenged by the defence:

1. Not all the pornography on the defendant’s computer was child pornography (6.3% of his images and 56.7% of his videos), but he, nonetheless, had a large collection of child pornography consisting of infants, toddlers and prepubescent boys and girls;

2. The defendant also had adult pornography, bestiality, animated and diaper pornography;

3. The collection was mild to hard core with the defendant close to being into the more hard-core pornography in the officer’s opinion. She defined hard-core as the depiction of violent acts, explicit sex acts, bondage and bestiality;

4. Mr. Barmashi was compliant with police upon his arrest, showed remorse and admitted to having a problem and needing professional help for the problem. He allowed the police to search his online accounts and user names.

The Psychiatric Report of Dr. Bloom

7The psychiatric report was filed without any cross-examination of Dr. Bloom. The doctor concluded that, based on phallometric test results and the defendant’s self-reported interests, there was insufficient evidence to “diagnose a paraphilia, like pedophilia or hebephilia, with any certainty, although, out of an abundance of caution, [he] would be watchful for this possibility in the future.”

8Dr. Bloom suggested that it was more likely that Mr. Barmashi is a homosexual male with a particular erotic interest in transgender physique males (i.e. males posing as females). Due to the defendant’s suppressed, repressed and / or thwarted actual sexual interest in males / shemales, he developed maladaptive sexual behaviours which included the pursuit of multiple sexual / erotic materials, which in turn included child pornographic materials.

9Dr. Bloom concluded that Mr. Barmashi’s most significant risk for recidivism was his pursuing child pornography on the internet in the future. He rated his risk for engaging in a contact sexual offence against a child as being low.

10Mr. Barmashi has no medical or substance abuse issues.

11Dr. Bloom recommended the defendant pursue counselling / psychotherapy to help him deal with his homosexuality and come out into the open with it. Due to the uncertainty he has about the prospect of Mr. Barmashi having an independent problematic sexual interest in children and about his sexuality in general, Dr. Bloom recommended that a cautious approach would dictate psychiatric supervision / counselling for the defendant by an expert / clinic in sexual disorders.

12Although Dr. Bloom had much of the disclosure from the Toronto Police Service, he did not have copies of the images or videos which were contained on the defendant’s computer.

Mr. Barmashi’s Background

13Mr. Barmashi is a single twenty-five year old man who has never been married nor had children. At the time of his psychiatric assessment by Dr. Bloom, he had never had a girlfriend or same sex partner.

14Originally from Albania, his family left that country in 1995 due to political oppression and economic circumstances and settled in Italy. They remained in Italy until 2004, when they migrated to Canada. Mr. Barmashi is a Canadian citizen.

15Mr. Barmashi is an only child. He reported being sexually abused from about seven years old to eight or nine years old by a ten year old male neighbor.

16Mr. Barmashi spoke well of both his parents, teachers by profession, and reported a positive childhood.

17Mr. Barmashi completed high school in Toronto and then attended George Brown College for a construction management program. He left without completing the course. Over the last five years, he has worked security at various night clubs.

18Mr. Barmashi reported to Dr. Bloom that he discovered pornography by grade 11 and continued to use pornography when he got access to the internet. He first saw child pornography in 2011 when he stumbled onto it rather than pursuing it. The defendant maintains that any images or videos the police found on his computer were downloaded as a result of chat room conversations with other people at a pornography cite. Mr. Barmashi maintainted that the fact that it represented 56.7% of his videos and 6.3% of the images in his possession is misleading in relation to the type of pornography he usually viewed. His explanation for the volume of child pornography was that it had to be downloaded as opposed to just watched on the internet, which comprises adult pornography for the most part. He did not need to download that material.

Analysis

Case Law

19The Crown presented a sentencing chart with comparable cases, which I have included in these reasons.

CROWN’S SENTENCING CHART

CASE

CHARGE(S)

FACTS

ACCUSED

PLEA

SENTENCE

R. v. Bock, 2010 ONSC 3117, [2010] O.J. No. 2277 (S.C.)

Possess CP, Make available CP

B was caught sharing CP files on a peer-to-peer network. Search warrant uncovered 381 unique CP images and 1007 CP videos on his computer (the largest collection of videos ever seen by the officer and ever reported in Ontario case law). B was downloading CP when police attended to execute the warrant. Varied and sophisticated collection with children of all ages, featuring the worst videos the officer had ever seen.

-67 years of age

-No criminal record

-Retired, with a good work record

-Strong family support, including support from wife and adult children

-No evidence of insight or remorse

-No psychiatric evidence

Guilty (day before trial)

2 years, 9 months for Make Available CP, concurrent to 1 year for Possess CP

Para 31: Child pornography captures this sexual abuse of children in an electronic image, creates a record of that abuse, and permits the perpetrator to share that abuse with others. 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 who produce child pornography. Therefore, simple possession of child pornography must also be treated as 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.

Para 32: Further, the offence of making available child pornography is incrementally more serious than simple possession as the distribution of child pornography creates a broader market and puts more images in circulation. Each possession, viewing, sharing, downloading, or uploading can be seen as a repetition of the initial hands-on abuse. The more pornographic images that are in circulation and the greater the distribution, the more significant the abuse of the child becomes.

R. v. D.L., [2012] O.J. No. 2086 (S.C.)

Make available CP, Counsel 14-year old to make CP, Communicate with 14-year-old to make CP available

Had a multiple-day online discussion with a 14-year-old and her adult boyfriend about having sex with 14-year-old in exchange for CP; sent weblinks to CP. Search warrant uncovered 2842 unique CP images, including animated images, on D.L.’s computer.

-[Age not specified]

-No criminal record

-Family support

-Separated from wife in 2006

-Remorseful

-Commenced counseling before trial; commenced treatment after conviction

-Low risk to re-offend with proper treatment

Not guilty

3 years, less 4 months credit for restrictive bail

R. v. Davies, [2012] O.J. No. 5359 (S.C.)

Possess CP, Possess methamphetamine

Search warrant executed at D’s home, uncovered 449 CP videos, 4254 CP images ranging from mild to extreme (moderate on average), all on CD’s. Collection was highly organized. No evidence of sharing / distribution.

-52 years old

-No criminal record

-Productive career ending with cancer diagnosis 4 years prior

-CP small percentage of overall collection

-Strong family support

-2 years restrictive bail

Not guilty

14.5 months (plus 8 days, concurrent, for Possess methamphetamine)

R. v. Lynch-Staunton, [2012] O.J. No. 313 (S.C.)

Possess CP, Distribute CP

Four months of online chatting with an undercover officer during which L-S distributed written and photographic CP to officer.

Collection recovered from unencrypted portion of computer: 2097 CP images; 1763 CP stories; 574 CP videos. Collection was organized into folders. Focus on younger children, acts of violence, incest and babies. Long history of accessing CP and chat room discussions with and about sex with children.

-56 years old

-No criminal record

-Married with 7-year-old son

-Remorseful

-No mental health or substance abuse issues

-Good employment record

-Low to moderate risk of re-offending

-Possible hebephile; refused phallometric testing

Guilty (day before trial)

5 years (2 years for Possession, 3 years for Distribution), less 3 years credit for pre-sentence custody

Para 51: […] to view pictures of this kind of violence against children and especially the terrible forced violence against babies and very young children and to not be immediately horrified and driven away from viewing the pictures speaks to a great moral culpability on the part of an offender for having failed to grasp the obvious physical violence being committed against these innocent young lives. Possession of child pornography is not simply an example of a viewing of sexual "naughtiness" or experimentation by others. It is, always, a portrayal of terrible abuse of real children with real and life-long serious consequences.

Para 57: As a result, the sentencing objective of general deterrence requires a forceful emphasis. It is to be understood by those trolling the Internet for child pornography that these pictures are acts of violence against children, that viewing and possessing them perpetuates the original violence, that viewing and possessing them encourages new child victims, and that as a consequence, jail terms will result.

R. v. Pelich, 2012 ONSC 4100, [2012] O.J. No. 3262 (S.C.)

Possess CP, Make available CPx2, Access CP x2

Over two days, P shared CP with an undercover officer via peer-to-peer network. Search warrant uncovered 125 unique CP images on one computer; 1617 images on another; 3518 images and 92 videos on disks. Some images had been modified over 7 years. Majority depicted girls aged 6-10 with adult males; some toddlers; videos depicting rapes of young girls.

-45 years old

-No criminal record

-Good employment record

-No PSR or psychiatric report

-No evidence of remorse

-Lost job and girlfriend due to charges

-Anxiety and depression

-Four years on house arrest

Not guilty

4 years (42 months for Making available, 2 years concurrent for Possession, 1 year concurrent for Accessing), less 6 months’ credit for house arrest and pre-sentence custody

R. v. Connor, [2009] O.J. No. 6369 (S.C.)

Possess CP x2, Make available CPx2, Possess marijuana, Produce marijuana, Possess firearm, Possess weapon x3

Search warrant revealed a large collection of “utterly vile” CP on C’s computer, including 270 videos. Primary ages depicted were 6-12. Files obtained and shared through file-sharing program.

-48 years old

-No criminal record

-Led an “exemplary life” on the surface, with considerable community and family support

-Firefighter for 20 years

-Extensive media coverage of trial

-Inconclusive phallometric testing; some evidence of pedophilia

-Lack of insight

Not guilty

3 years, 9 months (3 years for Make available CP, 1 year concurrent for Possess CPx1, 2 years concurrent for Possess CPx2, 3 months consecutive for marijuana offences, 6 months consecutive for weapons offences)

R. v. E.O., 2003 CanLII 2017 (ON CA), [2003] O.J. No. 563 (C.A.)

Possess CP, Fail to comply probation

[Facts not specified – trial-level decision unavailable]

-[Few details provided]

-Related criminal record, including sexual abuse of daughter and niece

Not guilty

18 months, less 9 months credit for pre-sentence custody

Para 7: Possession of child pornography is a crime of enormous gravity, both for the affected victims and for society as a whole. For that reason, the courts have repeatedly recognized that the most important sentencing principles in cases involving child pornography are general deterrence and denunciation. Further, the offence of possession of child pornography requires the imposition of sentences which denounce the morally reprehensible nature of the crime, deters others from the commission of the offence, and reflects the gravity of the offence: see R. v. Sharpe (2001), 2001 SCC 2, 150 C.C.C. (3d) 321 (S.C.C.) and R. v. Stroempl (1995), 1995 CanLII 2283 (ON CA), 105 C.C.C. (3d) 187 (Ont. C.A.).

R. v. Smith, [2008] O.J. No. 4558 (S.C.)

Possess CP, Make available CP

Obtained and shared CP files via peer-to-peer network. Search of computer and CD’s uncovered 837 CP images and 147 CP videos that were ‘particularly graphic and vile’. Written CP materials also found. Much of collection was saved onto 11 CD’s, nine of which were exclusively comprised of CP.

-43 years old with two young children

-No criminal record

-Previously employed as an actor; career ruined by charges

-Extensive media coverage of case

-Support from family and friends, including some support from wife

-Psychiatric report prepared by Dr. Bloom (including opinion that he was not a pedophile and at low risk to re-offend) given limited weight due to heavy reliance on dubious self-reporting

Guilty (after prelim, during trial voir dire)

21 months, less credit for bail and 10 days pre-sentence custody

Para 37: It is self-evident that without the broad base of persons who desire to possess this material it would not exist, at least not on the scale that it presently does. Accordingly, even mere possession contributes to the aforementioned exploitation and degradation of children and, by extension, society in general. In recent years, the advent of the internet has greatly augmented the production and distribution of this vile and pernicious material. The ability to access child pornography in the privacy of one's own home makes it all the more insidious. Therefore, sentences that serve to deter people from accessing this material are required to reduce, in some measure at least, the exploitation of children for this purpose.

20The defence added the case of R. v. A.N. [2015] O.J. No. 5809 which dealt with one count of the defendant’s making child pornography by downloading 1000 child porn images from the internet. In addition, he recorded eight to ten occasions when his family, including his children and one young girl along with other persons, were urinating in bathrooms in his and a friend’s homes.

21Mr. N., as did Mr. Barmashi, subjected himself to a psychiatric assessment. The Crown and defence joined on a sentence of 425 days in custody less pre-trial custody amounting to twenty five days.

Disposition

22The aggravating factors of this case are the following:

(1) The defendant’s possession and access to child pornography perpetrates the harm in this type of crime by sustaining the market which base is child abuse;

(2) The offences involve persons under eighteen years of age and call for denunciation and deterrence pursuant to section 718.01 of the Criminal Code;

(3) The sharing of 79 images after a fairly brief chat with a person the defendant believed was a stranger showed an enthusiastic willingness to spread child pornography;

(4) The defendant had a larger than typical number of files at 5116 images and 943 videos of child pornography;

(5) The content of the defendant’s collection of child pornography included babies, toddlers, bondage and bestiality. They fell on the extreme end of the spectrum of child pornography. The collection was varied and hard core.

23The mitigating factors are:

(1) Mr. Barmashi gave a statement to police upon arrest. He was cooperative and showed remorse and acknowledged his crime and that he needed counselling;

(2) The defendant waived his right to a preliminary inquiry and indicated early on in the proceedings that he would be pleading guilty. The matter took some time to resolve because Mr. Barmashi consented to be psychiatrically assessed. The assessment assisted me on the sentencing and confirmed that Mr. Barmashi has remorse;

(3) The psychiatric report of Dr. Bloom supports the fact that Mr. Barmashi has insight into his crime;

(4) Mr. Barmashi is a first time and youthful offender.

24None of the cases presented to me share the same facts as this one. However, the R. v. Davies case, [2012] O.J. No. 5359 (S.C.) attracted a sentence of fifteen months in jail for possession of child pornography only. There was also no evidence where Mr. Davies got the material form. Also, he did not share it with anyone.

25The defence position that twelve months in jail is appropriate in this case is not supported by the case law presented to me.

26In fact, Mr. Barmashi’s case would attract a sentence closer to two years less one day except for his remorse, his willingness to be assessed for his risk to reoffend and his desire to be treated for what he has acknowledged is a problem. For that, he should receive some credit – at least six months of credit.

27The appropriate sentence in all of the circumstances of the case is one of eighteen months in jail and three years of probation with the following conditions:

(a) Report within 48 hours to a probation officer and thereafter as directed by your probation officer;

(b) Reside at an address approved of by your probation supervisor;

(c) Notify your probation officer in writing of any change of address or change of employment;

(d) Do not possess or distribute in any way, any computer child pornography, and so-called “child erotica”, anime, or sexually explicit fantasy stories;

(e) Do not use a computer, including any personal communication device to access any kind of pornography cites or chat rooms where pornography of any sort is accessible;

(f) Actively participate in any assessment, counseling, evaluation, or treatment that may be ordered or arranged by your probation officer;

(g) Sign any waivers, consents or releases necessary to monitor compliance with this and any other condition of your probation order;

(h) Participate in any outpatient assessment, counseling, evaluation or treatment in relation to your sexual behavior that may be ordered or arranged by a mental health professional, their designate, or an equivalent program approved by your probation supervisor;

(i) Maintain or actively seek employment;

(j) Do not possess any weapons;

(k) Do not travel outside of Canada without the written permission of your probation supervisor.

28I am not prepared to prevent the defendant from accessing the internet in general. The facts of this case do not warrant it.

29There shall be a DNA order pursuant to s. 487.051 of the Criminal Code. All three offences are primary designated offences and require it.

30There shall be a SOIRA order pursuant to section 490.012(1) of the Criminal Code. The duration of the order is life (s. 490.013) because Mr. Barmashi has been convicted of multiple designated offences pursuant to section 490.011(a).

31There shall be an order pursuant to section 161 of the Criminal Code as follows:

a) section 161(b) prohibiting the offender from seeking, obtaining or continuing any employment whether or not that employment is remunerated, or becoming a volunteer in a capacity that involves being in a position of trust or authority towards person under the age of 16 years for a period of life;

b) section 161(c) prohibiting the offender from having any contact – including communicating by any means – with a person who is under the age of 16 years, unless under the supervision of a person the court considers appropriate for a period of life.

32I have declined to order Mr. Barmashi not to attend any public parks and swimming pools or other places where persons under sixteen years of age may be pursuant to section 161(a) as requested by the Crown. I do so on the strength of Dr. Bloom’s assessment that Mr. Barmashi is a low risk to commit any contact offences against children. The condition imposed at section 161(c) also prohibits the defendant’s contact with persons under 16 years of age, generally, and offers the protection of the public required in this case.

33On consent, there shall be a non-communication order pursuant to section 743.21. Mr. Barmashi shall have no contact with persons, directly or indirectly, under the age of sixteen while in custody.

34On consent, there shall be a section 109 order for life pursuant to the Criminal Code.

35Finally, also on consent, there shall be an order of forfeiture of all the electronic equipment seized from the defendant by the police.

36The remaining counts on the Indictment shall be withdrawn.

McWatt J.