R. v. Beierle, 2017 ONSC 5377
COURT FILE NO.: CR-15-1-664
DATE: 20170922
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
SIGFRID BEIERLE
Jennifer Gibson, for the Crown
Keely Duncan, for the accused
HEARD: August 18, 2017
Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4(3) of the Criminal Code, directing that any information that could identify any person who is the subject of a representation, written material or a recording that may constitute child pornography within the meaning of s. 163.1 of the Criminal Code, shall not be published in any document or broadcast or transmitted in any way.
K.L. Campbell J.:
Reasons for Sentence
A. Overview
[1] The accused, Sigfrid Beierle, has been found guilty of two offences: possession of child pornography and accessing child pornography. The accused now appears for sentencing.
[2] When the police executed a search warrant at the accused’s Toronto apartment on October 21, 2014, they seized four of his computer devices. Subsequent investigative analysis revealed the presence of child pornography on each of these devices. Indeed, forensic analysis of these devices showed that the accused had been persistently searching, over a significant time period, with a variety of internet search engines, for child pornography, and had been accessing child pornography. Further, this analysis also showed that the accused maintained possession of a significant collection of child pornography images and video recordings.
[3] The Crown contends that, in the interests of denunciation and deterrence, the commission of these serious crimes requires the imposition of an effective sentence of two years imprisonment. The parties have agreed, however, that the accused should be given the enhanced custodial credit of 24 days for the 16 days of pre-trial custody the accused has already served. Accordingly, the Crown now seeks the imposition of a term of just over 23 months imprisonment, plus a three-year term of probation, and certain ancillary sentencing orders.
[4] Defence counsel contends that, in addition to 24 days credit for his pre-trial custody, the accused should also be given a custodial credit of more than nine months imprisonment as a result of the onerous and restrictive terms of his lengthy judicial interim release order. Defence counsel argues that as these credits total approximately ten months imprisonment, and as the accused should not receive an effective sentence any greater than 10 months imprisonment given the rehabilitative prospects of the accused and the other mitigating circumstances of the case, the accused should not be sentenced to any further period of imprisonment. Rather, the accused should simply be placed on probation for a period of three years, and subject to nearly all of the ancillary sentencing orders requested by the Crown.
[5] In my view, having regard to all of the circumstances of this case, the accused should be given an effective sentence of one-year imprisonment. As the parties have agreed, the accused will be given 24 days custodial credit for the time he has spent in pre-trial custody. However, he will be given no further custodial credit for the nature and duration of his judicial interim release order, which has been in no way “stringent” or especially restrictive on his liberty. Accordingly, the accused will now be sentenced to a reformatory sentence of imprisonment for 11 months and six days. In addition, when released from the custodial portion of his sentence, the accused shall be placed on a three-year term of probation. The accused will also be subject to a number of ancillary sentencing orders.
B. The Facts of the Offences
[6] The details of the facts surrounding the commission of these offences are fully outlined in the reasons for judgment released at that conclusion of the trial proceedings. See R. v. Beierle, 2017 ONSC 1520; [2017] O.J. No. 1234, at paras. 13-25, 31-47. The following is a brief summary of the basic facts of the offences.
[7] The accused lived alone in the small, one bedroom apartment on Davenport Road in Toronto. The police executed a search warrant at those premises on October 21, 2014. They discovered a computer setup on a small table in the corner of his bedroom. The computer tower was located right next to this table and it was connected to the monitor and keyboard. The computer tower contained both a one terabyte hard drive and an 80 gigabyte hard drive. A nearby router provided access to the internet. The accused owned and regularly used this computer set up in his bedroom.
[8] The police seized and forensically examined the two hard drives found in this computer tower as well as two other computer devices: (1) the hard drive from a Toshiba laptop computer found inside a glass cabinet in the bedroom and (2) a Fujitsu hard drive found in a plastic container in the hallway leading to the bedroom. The forensic analysis of these four computer devices disclosed the following:
• On the one terabyte hard drive taken from the computer tower, the police found 2,682 images and five videos of child pornography in plain sight, and 836 images and 74 videos of child pornography not in plain sight. With respect to the images of child pornography that were found in plain sight, they were all created on the device during the nearly four year period between January 16, 2011 and October 16, 2014.
• On the 80 gigabyte hard drive taken from the same computer tower, the police found 336 images of child pornography that were not in plain sight.
• On the hard drive from the Toshiba laptop, the police found 15 images of child pornography in plain sight, and 186 images of child pornography not in plain sight.
• On the Fujitsu hard drive, the police found one video of child pornography that was in plain sight, and four images and one video of child pornography that were not in plain sight.
[9] The “plain sight” images and videos were those that were “readily accessible” by any average computer user, without any special action, software, or technical expertise. For example, some of the “plain sight” images on the one terabyte hard drive from the computer tower were found in folders conveniently located on the computer “desktop.” The images and videos that were “not in plain sight” were not so readily accessible, and included ISO archival disk images, “thumbnail” images, images or videos that had been deleted from the recycle bin, and images or videos being overridden in that they only existed in the “unallocated” space on the computer disk. Many of the images that were not in plain sight on the one terabyte hard drive from the computer tower were cached images from the internet browser.
[10] With the use of an investigative software program, the police were able to capture internet search terms that had previously been employed in Google, Yahoo and You Tube search engines by the user of these various computer devices – the accused. For example, from the one terabyte hard drive from the computer tower, the police discovered that between March 15, 2012 and June 5, 2014, the accused had frequently employed the Google search engine to try to find child pornography by making inquiries about: (1) nude young boys; (2) child prostitution; (3) tumblr young boys; (4) child pornography (cp porn); (5) pre-teen hard core (pthc); (6) illegal uncensored young japan porn; and (7) current active child porn sites. The police discovered that similar search terms had been employed by the user of the Fujitsu computer hard drive. The accused not only diligently searched for child pornography, but he accessed it over a significant period of time.
[11] As to the general nature of the images and videos found in the possession of the accused, a representative sampling reveals that they included many naked young, pubescent and pre-pubescent boys and girls, often engaged in a wide variety of sexual activities, either alone or with others – sometimes with adults.
[12] In short, the accused was knowingly in possession of a substantial collection of child pornography on October 21, 2014, and had knowingly accessed child pornography during the period of nearly 25½ months between September 12, 2012, and October 21, 2014, as alleged in counts two and three of the indictment.
C. The Circumstances of the Offender
[13] The accused is nearly 43 years old, single and without any dependents. He has no criminal record. He was born and raised in Washington and Oregon, in the United States. He now lives in Toronto.
[14] The accused came from very unfortunate family circumstances and had a “tough upbringing.” He never met his biological father. His mother was a private nurse who worked long hours. When the accused was in grade three, his mother divorced his first step-father because he was a violent alcoholic with mental health problems. He had been violent toward the accused and his mother. Thereafter, his mother had several boyfriends, and they “moved around a bit” in the result. He attended a number of different elementary schools, where he experienced problems with other students and was subjected to corporal punishment by school authorities. In grade four, due to his comprehension problems, the accused was placed in classes for students requiring some accommodation. His mother remarried when the accused was in grade five. His second step-father, a pastor, also had violent tendencies and had a “short fuse” and verbally and physically abused the accused. The accused recalled a traumatic and chaotic childhood, involving incidents of violence, verbal abuse and attendance at a “child protection” shelter.
[15] The accused realized from a young age that he was attracted to other males. However, he pretended to be “straight” throughout his high school years as he was confused and ashamed of these feelings. He knew that his family was “highly religious” and “not accepting of homosexuality.” Accordingly, he tried to repress his sexual identity, and he contemplated being single his whole life. When the accused finally “came out of the closet” to his mother and her husband, “explaining that he is gay,” his sexual orientation was “not accepted” by them. He understood that “homosexuality went against [their] religious teachings.”
[16] In 1993, after the accused graduated from high school, after taking “applied courses,” he moved out of the family home and thereafter lived in various locations in the United States. Through the internet, the accused began interacting with the “gay community” in the locations he lived. In 1994, the accused attended a trade school for advanced business, but he had difficulties with his studies and was ultimately unsuccessful.
[17] In 2004, the accused visited friends in Canada and was convinced to stay. He has been a permanent resident of Canada since that time.
[18] The accused has been involved in two intimate, long-term relationships. He met both men online through the gay community. He lived with the first man for a period of about eight months, and with the second man for approximately five years. This second man remains his best friend. Since the end of his second long-term relationship, the accused has dated “a lot,” meeting men at bars and through online chatrooms and dating applications. The accused was involved in one other romantic relationship, with a “violent alcoholic” who was aggressive with him and, on one occasion, stepped on the accused and ruptured his spleen.
[19] As to his employment history, after high school the accused trained to become a flight attendant, but was unsuccessful in this regard. He then joined “Job Corp,” an agency that provides housing and job skills training for low-income youth. He later went to a subsidiary. He also made money participating in medical research studies. Between 2010 and 2014, the accused worked in the mail room of an insurance company. When he received a poor performance review in 2013, the accused disclosed that he may have Attention Deficit Hyperactivity Disorder (ADHD). After he attended an ADHD clinic, he was placed on disability benefits. At the same time, the accused was also diagnosed with a “general anxiety disorder” and “acquired brain injury” (which may have been caused in a car accident when the accused was a child). The financial benefits from the accused’s employer lasted until August of 2016, when his position was “automated” and his disability benefits discontinued. Since that time, the accused has been unemployed and living on his savings and credit.
[20] In his leisure time, the accused watches television, goes for walks, sleeps, plays video or online puzzle games, goes cycling, or hangs out with his few close friends, shopping and going to restaurants.
[21] While the accused admitted periodically experimenting with certain drugs in the past, including heroin, cocaine, MDMA, GHB and marihuana, he claims that he has not used any such drugs since 2013, and he consumes alcohol only occasionally and socially, about once a month.
[22] The accused last had contact with his mother and step-father in 1995. The accused has an older sister, who was taken from the family home to live with an aunt. The accused has little recollection of her and has no contact with her. The accused has a younger half-brother, but he has not had any contact with him since 1995. The accused expressed no sense of significant loss about his estrangement from his family.
[23] With respect to the offences, the accused told the author of the Pre-Sentence Report that child pornography was “not [his] thing” and he just “got mixed up in this stuff.” The accused was adamant that he was “not intentionally seeking child sexual abuse images online but that they arrived in a “zip file” and he saw them “accidentally.” He claimed that if he had known the law, he would not have viewed the inappropriate images. The accused also indicated that he found the child sex abuse images “disturbing,” and expressed disbelief that this sexual abuse is “actually happening.” The accused indicated that he “feels bad” and has “flashes” and would have reported it if he had known to whom it should be reported.
[24] The accused contends that, prior to his arrest, he “primarily” viewed “age appropriate … sexually erotic” materials “on and off” but not regularly. He admitted, however, that he first viewed child sexual abuse images in 2009, also “by accident.” The accused denies having “any sexual interest in children.”
[25] The accused’s two closest friends, the twin Arcena brothers, expressed their positive impressions of the accused to the author of the Pre-Sentence Report. The accused’s best friend, John Arcena, who had been involved in a romantic relationship with the accused over a period of years, described the accused as a “very positive, strong and genuine person” who is “compassionate towards others,” but who is himself a “fragile and sensitive person.” He also observed that the accused is “even-keeled, loyal, sensitive and empathetic.” He was “shocked” to hear of the offences. Joseph Arcena, another close friend, described the accused as a “uplifting, happy person” who “never has a negative attitude.” The accused is “always optimistic and never dwells on negativity,” and “wants the best for everyone, including himself.” He considered the accused a member of his “family.”
[26] As to his future, the accused advised the author of the Pre-Sentence Report that he has been experiencing “nightmares of jail” and is increasingly fearful and anxious about going to jail. He believes that incarceration will have a “harmful effect” on him. Ultimately, he wants to find gainful employment, something positive to help others. He also wants to find a long-term romantic partner to share his life with.
[27] In addition to the detailed Pre-Sentence Report that was prepared in this case, Dr. Julie Goldenson, a psychologist, prepared a detailed Psychological Report and Risk Assessment regarding the accused. This report reiterated the historic and current personal circumstances of the accused, and added the following observations:
• The accused reluctantly admitted that he had been sexually fondled by a female babysitter when he was eight years of age, but he has just “foggy memories” of this incident.
• The accused has an Intelligence Quotient within the “average” range, but he struggles with memory and retaining new learning. Further, the accused has been diagnosed as suffering from ADHD, acquired brain injury, substance use disorder, and generalized anxiety disorder. The accused is currently taking psychotropic medication for his anxiety, and medication to treat his ADHD. At times in the past, the accused also experienced episodes of depression and compulsive behaviours.
• With respect to the offences, the accused told Dr. Goldenson that he “accidentally” and “unintentionally” downloaded some files, but that “he did not open these” files. The accused also said that he “downloaded some zip files” expecting to find adult pornography, but “some child pornography was attached.” The accused acknowledged that he knew that “producing child pornography was illegal,” but that he had “inadvertently downloaded some child pornography” and “tried to delete” it, but “without success.” The accused did acknowledge to Dr. Goldenson that he had searched the internet for pornography depicting “teen sex” and “boy sex,” but he explained that “teen boys” and “Asian boys” are “common search terms for legal pornography.” The accused denied having any interest in images of pre-pubescent or pubescent children. He claims to be attracted to men between that ages of 18 and 40.
• The acquired brain injury, which may have been caused by the motor vehicle accident when the accused was a child, appears to have had long-standing neurocognitive consequences for the accused, causing him to experience memory impairment and difficulty learning new information.
• Through the “Personality Assessment Inventory” the accused expressed low self-esteem, unhappiness and stress. He views himself as ineffectual and powerless, and has a sense of pessimism about his future. He tends to be critical of himself. He has difficulty concentrating and making decisions. He is socially withdrawn and introverted, and passive and self-conscious in social interaction. He is also meek and unassertive.
• According to his responses to an interpersonal questionnaire, the accused has high levels of anxiety about being close to others and is quite sensitive to signs, real or perceived, of interpersonal rejection or abandonment.
• An attempt to assess his sexual preferences through phallometric testing proved inconclusive, as the accused engaged in actions during the testing, which he was warned against, which suggested “response suppression” and amounted to “test interference” on his part. However, the accused self-reported a preference for adult males and a “viewing time measure” supported this claim.
• Through the “Multiphasic Sex Inventory” questionnaire, the accused expressed no sexual arousal to children, and reported that he has always known it is wrong to engage in sexual activity with underage persons, or to force someone to engage in a sexual act. The accused reported previously having an addiction to pornography, but reported no current preoccupation with sex.
• According to Dr. Goldenson, the accused’s “diagnostic picture is complex,” and includes “Acquired Brain Injury, ADHD and Social Anxiety.” Dr. Goldenson also concluded that, as there was no evidence of pedophilia or hebephilia, the accused is a “low risk” to “commit a contact sexual offence against a child” or continue to view child pornography.
• Dr. Goldenson suggested that the accused (1) might benefit from involvement in the Sexual Behaviours Clinic at the Centre for Addiction and Mental Health; (2) should have magnetic resonance imaging (MRI) to learn the extent of his Acquired Brain Injury; (3) attend group therapy counselling sessions for persons with neurocognitive challenges; and (4) obtain vocational testing to assist in finding him suitable employment.
• While conceding it is generally “beyond [her] scope” to “comment on sentencing,” Dr. Goldenson offered the belief that “incarcerating [the accused] with the general population could be quite destabilizing and detrimental given his cognitive concerns, trauma history, mild temperament and generally pro-social nature.” Further, she suggested that, in light of his “low risk designation” and “his multiple and complex psychological and physiological diagnoses,” the accused “might be a better candidate for community supervision and ongoing treatment.” However, if he was placed in custody, Dr. Goldenson suggested that a “program with a rehabilitative emphasis might be considered,” such as the “Ontario Correctional Institute.”
D. The Governing Sentencing Principles
1. The General Sentencing Principles
[28] Pursuant to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” by imposing “just sanctions” that have one or more of the following objectives: (1) to denounce unlawful conduct; (2) to deter the offender and others from committing offences; (3) to separate offenders from society where necessary; (4) to assist in rehabilitating offenders; (5) to provide reparations for harm done to victims or the community; and (6) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and the community.
[29] According to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[30] Pursuant to s. 718.01 of the Code, when a court imposes a sentence for an offence that involved the abuse of a person under 18 years of age, it shall give “primary consideration to the objectives of denunciation and deterrence of such conduct.”
[31] Section 718.2 of the Code requires a sentencing court to also consider a number of other principles: (1) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (2) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (3) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (4) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (5) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
2. Possessing and Accessing Child Pornography – Sentencing Principles
[32] The offences of possession and accessing child pornography are disturbing crimes of considerable magnitude. The gravity of the offences exists on several levels.
[33] First, the creation of child pornography images, whether in still photographs or video recordings, almost invariably involves the use of real children. The very existence of such images typically proves that some sexual offence has been committed against the children involved in their manufacture. These children are further victimized by the creation of a permanent, graphic record of the crime, which may haunt them forever, given the ease with which such images may be indefinitely disseminated world-wide on the internet. As LeBel J. observed in R. v. L.M., [2008] 2 S.C.R. 163, 2008 SCC 31, at para. 28, “[o]nce a photograph has been posted on the Web, it can be accessed indefinitely, from anywhere in the world”, and the victim of the sexual abuse will “never know whether a pornographic photograph or video in which [he or] she appears might not resurface someday.”
[34] Second, once child pornography images are created, they are often used by those who possess them: (1) to reinforce the cognitive distortions of pedophiles that pedophilia is a normal and acceptable sexual preference; (2) to fuel the sexual fantasies of pedophiles and encourage them to act upon those fantasies; and (3) to groom and seduce other potential child victims by demonstrating to them that sexual activities between children and adults is acceptable and normal behaviour. See R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at paras. 28, 34, 86-89, 91-94, 103.
[35] Third, viewing images of child pornography sometimes causes pedophiles to actually commit horrific crimes of sexual violence against children. See R. v. Briere, [2004] O.J. No. 5611 (S.C.J.), at paras. 232, 247-255, 320-321, 347.
[36] As Fish J. stated in R. v. Morelli, [2010] SCC 8, [2010] 1 S.C.R. 353, at para. 8, “offences involving child pornography are particularly insidious” in that they “breed a demand for images that exploit vulnerable children, both economically and morally.”
[37] Accordingly, such child pornography offences require the imposition of a sentence that reflects the sheer gravity of the offences, which denounces the morally reprehensible nature of the crimes, and which deters others from the commission of such offences. It is only through the imposition of such sentences that the “market” or “demand” for such images will be reduced. See R. v. Stroempl (1995), 1995 2283 (ON CA), 105 C.C.C. (3d) 187, 85 O.A.C. 225, at p. 191; R. v. Jewell and Gramlick (1995), 1995 1897 (ON CA), 100 C.C.C. (3d) 270, 83 O.A.C. 81, at pp. 277-279; R. v. E.O. (2003), 2003 2017 (ON CA), 169 O.A.C. 110, [2003] O.J. No. 563, at para. 7; R. v. D.G.F., 2010 ONCA 27, 250 C.C.C. (3d) 291, at paras. 21-22; R. v. Nisbet, [2010] O.J. No. 6258, affirmed, 2011 ONCA 26, [2011] O.J. No. 101, at paras. 1-3.
[38] Relatively recently, in R. v. John, 2017 ONSC 810, [2017] O.J. No. 651, at paras. 17-33, Woollcombe J. conducted a thorough and persuasive analysis of the relevant judicial authorities in relation to the appropriate range of sentence for the offence of possession of child pornography and expressed the following conclusion, with which I agree, at para. 33:
It is my conclusion that in order to recognize and give effect to the appropriate sentencing principles for possession of child pornography, the appropriate sentence spans a considerable range, from around six or eight months at the bottom end of the range upwards to about three years. Determining where within that range is appropriate depends on the particular aggravating and mitigating circumstances in the case.
[39] The relevant judicial authorities support this conclusion as to the general range of sentence in these types of cases. See, for example, R. v. Stroempl [10 months imprisonment]; R. v. E.O., [18 months imprisonment (after 138 days of pre-trial custody) and 3 years probation]; R. v. Yaworski (2000), 2000 4400 (ON CA), 134 O.A.C. 154, [2000] O.J. No. 2613 [12 months imprisonment]; R. v. Nisbet [6 months imprisonment]; R. v. Dumais, 2011 ONSC 276, [2011] O.J. No. 116 [9 months imprisonment]; R. v. Saliba, 2013 ONCA 660, [2013] O.J. No. 6002 [2½ years imprisonment]; R. v. Bock, 2010 ONSC 3117, [2010] O.J. No. 2277 [1 year imprisonment]; R. v. Carlos, 2015 ONSC 8085, affirmed, 2016 ONCA 920, [2016] O.J. No. 6288, at paras. 8-10 [3 years imprisonment, less 414 days of pre-trial custody]; R. v. Tweedle, 2016 ONCA 983, at paras. 21-22 [20 months imprisonment].
E. The Custodial Credits Due to the Accused
1. Credits for Pre-Trial Custody
[40] As I have indicated, the parties have agreed that the accused should be given the enhanced credit of 24 days imprisonment for the 16 days of pre-trial custody he has already served. I agree. There is no reason why the accused should not be given one and one-half days days credit for each day of his pre-trial detention, pursuant to s. 719(3.1) of the Criminal Code, R.S.C. 1985, c. C-46. See R. v Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at paras. 7, 34, 68-80, affirming, 2013 ONCA 147, 114 O.R. (3d) 641. Accordingly, the sentence that would otherwise have been imposed upon the accused will be reduced by 24 days.
2. The Duration and Nature of the Conditions of Judicial Interim Release
[41] The parties join issue on the extent to which the accused should be credited with having already served time in custody as a result of the terms of his judicial interim release order. Defence counsel argues that the accused should be given more than nine months custodial credit for enduring the conditions of this bail order. The Crown contends that the accused should receive little if any custodial credit for his time on judicial interim release. I agree with the Crown. Indeed, I see no basis to award the accused any custodial credit for the time he has spent on judicial interim release in this case.
[42] The accused was released on bail on November 5, 2014, and he has been subject to the terms of that release order until today. Accordingly, he has been subject to the terms of this bail order for approximately two years, ten and one-half months – 1053 days to be precise. Essentially, according to the terms of this order, the accused was governed by the following rules:
• He was required to reside at a residence in Mississauga, with his surety (one of his closest friends) and notify the officer-in-charge of the case of any change of address;
• He was required to deposit his passport with the officer-in-charge of the case, and was prohibited from applying for another passport or any other travel documents;
• He was prohibited from the possession of any weapon, and prohibited from applying for any authorized license or registration for any weapon;
• He was prohibited from the possession of any computer device (including a cell phone) capable of accessing the internet, and not to access the internet except for work purposes while at work;
• He was prohibited from being in the company of any person under 18 years of age, except in the company of his surety or someone designated by his surety;
• He was prohibited from being within 50 meters of any school, park, playground community centre, or other location where persons under 18 years of age tend to congregate; and,
• He was prohibited from the possession of any CDs or DVDs or any other item capable of storing digital images.
[43] There is no doubt that a sentencing judge may properly take into account the nature and duration of the conditions of bail that were imposed upon the accused in determining whether any delay in the completion of the criminal trial process should have a mitigating effect on the ultimate sentence imposed. There is no exact formula to apply to precisely gauge the credit that should be accorded for this mitigating effect. It depends upon the nature of the restrictions on the accused, the duration of those restrictions, and their practical effect on the accused. See R. v. Lau, 2004 ABCA 408, 193 C.C.C. (3d) 51, at paras. 15-16; R. v. Perreault, 2005 BCCA 226, 197 C.C.C. (3d) 183, at paras. 12-14; R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321, 205 C.C.C. (3d) 488 (C.A.), at paras. 30-37. As Doherty J.A. stated in R. v. Spencer (2004), 2004 5550 (ON CA), 72 O.R. (3d) 47, 186 C.C.C. (3d) 181, at para. 43, leave denied, [2004] S.C.C.A. No. 4:
In deciding whether any delay in the completion of the process should mitigate sentence, it is appropriate to consider an offender’s bail terms. The more stringent those terms, the more likely it will be that any delay in completion of the process will have some mitigating effect on sentence. Indeed, even absent delay, particularly stringent bail conditions can have a mitigating effect on sentence.
[44] In the present case, the bail terms that were imposed upon the accused simply cannot reasonably be described as in any way “stringent.” Nor did those bail conditions cause the accused any undue hardship or prejudice, even given their duration. Contrary to the submissions of defence counsel, these conditions did not constitute a “metaphorical house arrest” – they did not approach any type of “house arrest.” See R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81, at paras. 4, 23-38; R. v. Irvine, 2008 MBCA 34, 231 C.C.C. (3d) 69, at para. 30; R. v. Rahaman, 2008 ONCA 1, [2008] O.J. No. 1, at paras. 35-38; R. v. Pomanti, 2017 ONCA 48, at paras. 33-34; R. v. Dragos, 2012 ONCA 538, 111 O.R. (3d) 481, at paras. 68-86; R. v. J.R.H., 2012 NLCA 52, 295 C.C.C. (3d) 301, at paras. 6-13; R. v. Kane, 2012 NLCA 53, [2012] N.J. No. 268, at paras. 34-44; R. v. Lever, 2014 SKCA 58, 438 Sask.R. 181, at paras. 9-16.
[45] The accused was required to reside with a surety – one of his closest friends, and the twin brother of someone the accused had previously lived with, in a romantic relationship, for a period of five years. The accused was subject to neither house arrest, nor a curfew. He could come and go from the residence as he pleased, at any time of the day or night, unescorted. While he remained unemployed throughout this period of time, the accused was perfectly entitled, by the conditions of his bail, to attend school or obtain gainful employment as he saw fit. While this condition required the accused to change his residence while on bail, it was in no way restrictive on any aspect of his liberty.
[46] For example, as reported in the Pre-Sentence Report, and admitted by the accused himself in his own comments on the issue of sentence, the accused was able to attend “strip clubs” with his friends while on judicial interim release. The accused claimed not to enjoy these trips to “strip clubs,” but rather attended only to “support his friends.” Nevertheless, this one example illustrates that, while on bail, the accused was entitled to live his life, as he wished, with no significant restrictions on his liberty.
[47] While the accused could not travel out of the country, there was no suggestion that he ever had any inclination to travel out of the country, or was prohibited from fulfilling any potential travel plans.
[48] The accused was also prohibited from being in the company of anyone under 18 years of age, except in the company of his surety or his designate, and was prohibited from attending near locations where such young people tended to congregate. There was no suggestion that these conditions had any significant restrictive impact upon the accused. More particularly, he was not prevented from being in the company of any young relatives.
[49] The most restrictive aspect of his bail order was that the accused was prevented from accessing the internet for purposes other than work (while he was at work). I understand that this prevented the accused from using his usual means – the internet – to interact socially with his friends, or meet new people. This did not, however, prevent him from interacting socially with his friends, or meeting new people through any other potential means. He could call them on the phone, or visit with them in person whenever he wished and for as long as he wanted. Given that the offences committed by the accused were alleged to have been committed via the internet, this reasonable bail condition served a sensible preventative function. Moreover, this inconvenience for the accused was not the kind of stringent restriction that merits an award of custodial credit. Of course, if this condition, or any other condition of his judicial interim release order, was unnecessary or unduly restrictive, the accused could have brought an application to remove or vary the condition. No such application was ever brought.
[50] In my view, the conditions of the accused’s judicial interim release order were perfectly reasonable in light of the charges he faced prior to trial. Moreover, none of his bail conditions, viewed individually or collectively, can properly be viewed as sufficiently restrictive or “stringent,” or their duration such, as to justify any mitigating award of custodial credit.
F. The Custodial Sentence Imposed Upon the Accused
[51] I have concluded that, considering all of the circumstances of this case, and applying the governing sentencing principles, the accused should receive an effective sentence of one-year imprisonment.
[52] When he was arrested, the accused knowingly possessed a significant collection of child pornography images and videos. Some of this collection was stored, in “plain sight” on the desktop of his computer. In the many months prior to his arrest, the accused had been frequently searching for, and regularly accessing, just such child pornography images and videos. A one-year term of imprisonment will appropriately denounce the commission of these very serious crimes, and will deter other like-minded individuals from engaging in the commission of such offences. Such a sentence will also, hopefully, contribute to reducing the “market” or “demand” for such child pornography, thereby helping to protect children against the commission of sexual offences.
[53] This sentence also takes into consideration the mitigating circumstances of this case, including (1) the fact that the accused is a mature first offender with no prior criminal record; (2) the unfortunate and harsh personal circumstances of the accused’s childhood and family circumstances; and (3) the personal health challenges faced by the accused, such as his suffering from an acquired brain injury, with resulting cognitive problems, ADHD, and generalized anxiety problems.
[54] The accused does not, however, have the mitigating advantage of any genuine expression of remorse for his crimes.[^1] Indeed, the accused has shown no real remorse for his offences. Of course, this is not an aggravating circumstance, but rather only the absence of a potentially mitigating circumstance. See R. v. Kozy (1990), 1990 2625 (ON CA), 74 O.R. (2d) 545, 58 C.C.C. (3d) 500 (C.A.), at pp. 505-506; R. v. Anderson (1992), 1992 6002 (BC CA), 16 B.C.A.C. 14, 74 C.C.C. (3d) 523 (B.C. C.A.), at pp. 535-536; R. v. Brown, [1993] O.J. No. 624 (Ont. C.A.); R. v. Valentini (1999), 1999 1885 (ON CA), 43 O.R. (3d) 178, 132 C.C.C. (3d) 262 (C.A.), at para. 80-85; R. v. L. (C.), 2013 ONSC 277, [2013] O.J. No. 114 (Ont. S.C.J.), at paras. 80-81.
[55] After being found guilty, the accused maintained (to the author of the Pre-Sentence Report and Dr. Goldenson) that he “accidentally” and “unintentionally” viewed the images of child pornography, found them “disturbing,” and “feels bad” about having viewed them. He maintained that child pornography is “not [his] thing.” I neither accept nor believe these assertions by the accused. The evidence clearly established that the accused was searching diligently, over many months, for child pornography. I find as a fact that he was searching so frequently for child pornography precisely because of his prurient interest in viewing such images. The accused denies having “any sexual interest in children,” yet he took steps, during phallometric testing, to suppress his response and interfere with the testing, such that this testing proved inconclusive. As much as the accused denies any sexual interest in child pornography, I find that the accused engaged in his child pornography offences precisely because of his sexual interest in child pornography.
[56] The two-year term of imprisonment sought by the Crown is, however, too severe a sentencing disposition given the still excellent rehabilitative prospects of the accused, notwithstanding the difficult circumstances of his upbringing, and in light of the fact that this will be his first term of imprisonment. The accused is a mature man of average intelligence, with a high school education. Even with the problems associated with his ADHD, acquired brain injury, and generalized anxiety disorder, with the appropriate medication, treatment and counselling, and with some vocational testing, the accused should be able to secure and maintain gainful long-term employment and support himself financially. He should also be able to hereafter engage in a productive and rewarding crime-free life. Dr. Goldenson did ultimately conclude that the accused presented a “low risk to reoffend.”
[57] After giving the accused the agreed upon 24 days credit for the time that he spent in pre-trial detention, the accused is sentenced to a reformatory term of 11 months and six days imprisonment, on each charge (concurrent).
G. The Probation Order
[58] It is in the best rehabilitative interests of the accused that, after serving the custodial portion of his sentence, he be placed on probation for a period of three years. This probationary term will provide the accused with the continued guidance, support and supervision that is necessary in the circumstances.
[59] As part of this probation order, the accused shall be subject to all of the following statutory conditions prescribed by s. 732.1(2) of the Code, namely, that the accused shall: (a) keep the peace and be of good behaviour; (b) appear before the court when required to do so by the court; and (c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.
[60] As part of this probation order, the accused shall also be subject to all of the following additional conditions pursuant to s. 732.1(3) of the Code, namely, that the accused shall:
• Report to a probation officer within two working days of his release from custody, and thereafter when required by the probation officer and in the manner directed by the probation officer;
• Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;
• Abstain from the possession and/or consumption of drugs except in accordance with a medical prescription;
• Abstain from owning, possessing or carrying any weapon;
• Perform 240 hours of community service over a period not exceeding eighteen months;
• Participate in vocational testing to assist in finding suitable employment; and,
• Attend and actively participate in counselling and/or treatment programs as recommended by his probation officer, and to undergo any recommended assessments, signing any necessary releases to permit the probation officer to monitor his attendance, participation and progress in any assessment, counselling and/or treatment sessions.
H. Ancillary Sentencing Orders
[61] In addition, in my view the following ancillary sentencing orders are appropriate in the circumstances of this case.
[62] First, pursuant to s. 487.051(1) of the Criminal Code, I make an order requiring that samples of bodily substances be taken from the accused for purposes of forensic DNA analysis. The child pornography offences committed by the accused are “primary designated offences” as defined in s. 487.04(a) of the Criminal Code and, accordingly, such an order is statutorily mandated in the circumstances.
[63] Second, as the accused has been convicted of two “designated offences,” pursuant to the combination of ss. 490.012(1) and 490.013(2.1) of the Criminal Code I make an order requiring the accused to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for life.
[64] Third, pursuant to s. 161(1) and (2) of the Criminal Code, I make an order, which shall take effect upon his release from the custodial portion of his sentence, and last for a period thereafter of 10 years, prohibiting the accused 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;
• 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 – with the exception of any persons under the age of 16 years in the families of John Arcena or Joseph Arcena; and,
• From using the internet or other digital network except in accordance with the following conditions:
• On his own personal telecommunications device, which is equipped with software or hardware that blocks access to: (1) peer-to-peer file sharing networks, including networks such as motherless, limewire, gnutella and bearshare; and (2) usenet or freenet;
• On any other telecommunications device unless under the direct supervision of John Arcena or Joseph Arcena;
• Where he is not self-employed, at his place of business, for business purposes and in accordance with the business internet technology policies and other applicable employment policies;
• The accused shall not use any telecommunications device to access the internet or other digital network in order to (1) access, possess, or distribute child pornography; (2) participate in chat-rooms, bulletin boards, or social networking sites, that discuss or promote child exploitation, child pornography, sexualized images of children, or any other child exploitation material; or (3) access usenet or freenet.
• The accused shall permit his probation officer and any police officer access to any personal telecommunications device, and provide any necessary encryption code or passwords, to allow the random inspection of the device for the purpose of monitoring compliance with this order.
[65] Fourth, pursuant to s. 164.2(1) of the Criminal Code, I make an order of forfeiture in relation to the four computer devices which were seized from the accused’s apartment by the police on October 21, 2014. These four devices shall be forfeited to Her Majesty and disposed of as the Attorney General directs. I am satisfied that these four devices are the property of the accused and were used in the commission of one or both of the child pornography offences of which the accused stands convicted.
I. Conclusion
[66] The accused has been convicted of possessing and accessing child pornography, as alleged in counts two and three of the indictment. After giving the accused the 24 days credit for the time that he spent in pre-trial detention, the accused is sentenced to concurrent reformatory terms of 11 months and six days imprisonment on each count. Following his release, the accused will be subject to a three-year term of probation on the terms that have been specified. The accused shall also be subject to the ancillary sentencing orders that have been made.
Kenneth L. Campbell J.
Released: September 22, 2017
R. v. Beierle, 2017 ONSC 5377
COURT FILE NO.: CR-15-1-664
DATE: 20170922
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
SIGFRID BEIERLE
REASONS FOR SENTENCE
K.L. Campbell J.
Released: September 22, 2017
[^1]: In reaching this conclusion I place no reliance upon any of the comments of Det. Cst. Manherz, as reported by the author of the Pre-Sentence Report, as to the accused’s participation in the police investigation, his expressed feelings about the alleged offences, or his prediction of potential future offences by the accused given his underlying psychological issues. As many of these comments were beyond the scope of s. 721(3) of the Criminal Code, I have ignored their inclusion in the Pre-Sentence Report. See R. v. Junkert, 2010 ONCA 549, 103 O.R. (3d) 284, at paras. 51-61; R. v. Aleksev, 2016 ONSC 6080, [2016] O.J. No. 5013, at paras. 23-27; R. v. Carrera-Vega, 2015 ONSC 4958, [2015] O.J. No. 4126 at paras. 17-24.