ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-17-10000218-0000
DATE: 20210505
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DERRICK JOHN MURTY
Jennifer E. Gibson, for the Crown
Anthony Marchetti, for the Respondent
HEARD: February 6, 2019; November 26, 2020; March 26 and 31, 2021
Kelly j.
Reasons for Sentence
[1] The defendant, Mr. Derrick Murty, has pleaded guilty to two offences committed contrary to the Criminal Code: possession of child pornography and make available child pornography.[1]
[2] Crown Counsel seeks a sentence of 3 years in custody, less time served based on credit of 1.5 days for each day served in pre-sentence custody. Counsel for Mr. Murty seeks a sentence of 18 months in custody, less time served calculated on the same basis.[2] He submits that the court should consider imposing a conditional sentence together with a custodial sentence. Both Counsel agree on the ancillary orders.
[3] For the reasons set out below, I find the appropriate sentence is 3 years less time served of 10 months for a further sentence of two years, two months to serve in custody. Mr. Murty will be subject to the following ancillary orders: DNA, SOIRA for life and s.161.
The Facts
[4] The facts, as agreed, are as follows:
a. The Toronto Police Service (“TPS”) conducted an investigation into a male residing in Toronto. This male was engaged in online behaviour where he was trading and streaming child pornography. He was arrested and search warrants were executed at his residence and on his devices.
b. The male was found to have many contacts with whom he was dealing in child exploitation material. One of those contacts had a Skype username of “Versabbdude”. On June 30, 2015, Mr. Murty was logged on to Skype as “Versabbdude”.
c. Mr. Murty had a text chat with an undercover officer regarding his sexual interest in children. During that chat, Mr. Murty provided the undercover officer with a link that provided access to an online “conference room”. That room allows the host to stream video.
d. Mr. Murty’s face was visible on his webcam while the video was streaming. He streamed approximately 13 to 14 videos in succession. Mr. Murty also engaged in simultaneous text chats within the online “conference room” with the undercover officer. He made several comments on the videos showing child abuse.
e. The video streaming session involving Mr. Murty and the undercover officer lasted approximately 25 minutes. All the videos streamed by Mr. Murty were consistent with the definition of child pornography as set out in the Criminal Code.
f. On July 14, 2015, Mr. Murty and the undercover officer communicated via Skype. Mr. Murty, again, provided the undercover officer with a link to a private video “conference room”. Mr. Murty began streaming child abuse videos in succession this time, for 56 minutes. The videos were of adults sexually abusing boys. The age range of the boys was from toddler age to no more than 7 years-old.
g. In one of the videos, Mr. Murty drew a circle around the young child’s anus. He placed a tag next to it marked, “Slammin PE”. Mr. Murty was the host and the sole streamer of the material in the private online conference room.
h. Mr. Murty was identified through investigative techniques and a search warrant was granted for his residence at 490 Sherbourne Street, Apt. 610, in the City of Toronto. When the search warrant was executed, Mr. Murty was found in the apartment.
i. A forensic analysis of Mr. Murty’s digital devices revealed the following:
i. 746 images in plain sight;
ii. 801 videos in plain sight; and
iii. Other images and videos not found in plain sight.
j. Mr. Murty’s collection consisted almost entirely of boys under the age of 12 to 13 with an emphasis on babies and toddlers. The videos and images involved anal and oral sex between adults and other children.
[5] A summary of images and videos was provided to the court for purposes of sentencing. The exhibits seized by TPS were examined and found to contain images and videos of child pornography. The exhibits may be summarized as follows:
a. 1,770 images that are categorized as child pornography (1,349 unique images).
b. 832 videos categorized as child pornography (819 unique images).
c. The unique images and videos fall into the following categories:
i. Nude/erotic modelling.
ii. Sexually explicit acts including fellatio and oral sex, vaginal intercourse, anal intercourse, object insertion, digital penetration and fondling.
iii. Bondage using rope, leather straps, nylon straps, cages and gags.
iv. Bestiality.
d. The ages of the children in the videos and images range from infant babies (a few days old or a few weeks old) to prepubescent males and females who are approximately 13 to 14 years in age.
e. More graphic descriptions were provided of one image of each category of child pornography described above. I have attached the Image and Video Summary filed at the sentencing hearing as Appendix “A”.
The Gardiner Hearing[3]
[6] Prior to commencing the sentencing submissions, a report was provided by Dr. Mark Pearce.[4] In his report, Dr. Pearce included the following as part of Mr. Murty’s self-report of the offences:
a. That he denied any interest in child pornography.
b. That he admitted to seeing the child pornography but that he did not purposely procure it.
c. When Mr. Murty was asked why there were hundreds of child pornography files located on his devices, Mr. Murty explained to Dr. Pearce, that he had a computer technician attend at his residence in 2015, to give his computer a “tune-up”. He had not, prior to that time, ever had child pornography on the device. He denied searching for it or procuring it through peer-to-peer software.
d. That he discovered the child pornography on his devices some days or weeks after the technician had been at his home. Mr. Murty looked at it and thought it was “different”.
e. He denied that he streamed child pornography regularly but agreed that he had streamed the child pornography in two chats with the undercover officer and that he regretted the incidents.
[7] As a result of the report of Dr. Pearce, Crown counsel sought to prove that Mr. Murty downloaded and possessed the child pornography and that he had an interest in child pornography as aggravating factors on sentencing pursuant to s. 724(3) of the Criminal Code. Crown counsel called D.C. Jeff Kidd of the Toronto Police Child Exploitation Section in support of her application. Mr. Murty was called as a witness by his counsel.
[8] Mr. Murty testified that he did not stream or download the child pornography to his devices. He, by and large, maintained the position that he took when being interviewed by Dr. Pearce. He testified that the child pornography must have been downloaded by a technician who came to his apartment to deal with technology issues regarding his desktop in 2014 (as opposed to 2015 which is what he initially told Dr. Pearce). He has no explanation as to how the child pornography images and videos got onto his computers and devices either before or after the technician attended. He testified that he had an interest in child pornography for only a short period of time.
[9] I do not believe the evidence of Mr Murty on the issue of downloading and possessing the child pornography on his computer nor does his evidence raise a reasonable doubt on this issue. I believe that he had an interest in child pornography. I have come to that conclusion for the following reasons:
a. At all material times, Mr. Murty was living alone. He agreed that he did not remove the desktop computer from his home. He did not suggest that anyone, other than he and the technician, had accessed his computer.
b. At the time the search warrant was executed (on July 21, 2015), the desktop was powered and operational. Several external hard drives were attached to the desktop. In addition to the desktop, 12 electronic exhibits were seized and examined. The exhibits were forensically examined, and the abovementioned images and videos were located.
c. A report was provided to Crown counsel dated January 14, 2021. It contained the results of the examination of four devices to determine the dates and times of when the child pornography was saved to the device. The purpose of the report was to “assist the court in determining if the child abuse material was placed on the seized devices all at one time, or if the collection was created over a period of time”.
d. D.C. Kidd testified, and the report (filed) stated the following (which I accept):
i. That four of the devices seized from Mr. Murty’s apartment contained images and/or videos fitting the definition of child pornography.
ii. That two of the devices examined are external devices. They are capable of being moved and connected to other computer systems. At the time the search warrant was executed, they were connected to the desktop.
iii. The items located on these devices were categorized and put into files.
iv. On the Western Digital hard drive seized (an external hard drive) there were 1,316 Category 1 images found (i.e., child pornography), 1,270 of which were unique. At the time of examination, 421 of the images were easily accessible to the user. The images were copied to this device between October 7, 2012 and June 20, 2015. There were 799 Category 1 videos, 797 of which were unique. The videos were copied to this device between October 22, 2013 and June 20, 2015.
v. On the Verbatim External Hard drive seized, there were 195 Category 1 images, 167 of which were unique. At the time of examination, 192 of the images were easily accessible to the user. The images were copied to this device between August 28, 2011 and June 9, 2015. There were three Category 1 videos on the device, all of which were unique. The videos were copied to this device between July 26, 2013 and July 30, 2013.
vi. On the HP Laptop computer seized, there were 246 Category 1 images, 142 of which were unique. At the time of examination, 117 of the images were accessible to the user. They were saved on this device on September 13, 2013. There were 127 “orphan” files on the device which are files where the parent folder has been deleted. The orphaned files were saved on this device between July 26, 2013 and September 15, 2015. On this device, as well, were 30 Category 1 videos, 25 of which were unique. None of these videos was accessible to the user. However, D.C. Kidd was able to determine that videos were stored on this device between June 6, 2013 and August 9, 2013.
vii. On the Acer Desktop computer were 13 Category 1 images, 12 of which were unique. They were not in a location accessible to the user. However, the image files were saved in their current location by the Wondershare Video Converter Ultimate Program between April 13, 2015 and June 20, 2015. There were no category 1 videos on this device.
[10] After considering all of the evidence, I find that Mr. Murty’s testimony is contradicted by the evidence that shows that videos were saved on his devices between July 26, 2013 and June 20, 2015 — well before the computer technician was in his home and well after. Further, the child pornography images were saved to Mr. Murty’s devices between August 25, 2011 and June 20, 2015. Again, this was well before and well after the computer technician was in his home. In essence, 1,674 files of child pornography were saved on four devices on 39 different days, before and after the technician examined Mr. Murty’s computer.
[11] Mr. Murty was not able to provide an explanation as to how the large amount of child pornography was downloaded and saved to his devices during the periods before and after the technician was there. He testified that he lived alone and there does not appear to be anyone who accessed his computer at the relevant times, other than the computer technician in 2014. Lastly, the content of the chats between Mr. Murty and the undercover officer contradict the evidence of Mr. Murty, that he was unfamiliar with the content of the child pornography on his computer and his willingness to share it. There is no doubt that the content of the chats (i.e., what Mr. Murty says) and the photos of him during the chat (i.e., smiling and holding two thumbs up when sharing the child pornography) contradict his evidence that he did not download the images and videos and that he had no interest in child pornography.
[12] For these reasons, I am satisfied beyond a reasonable doubt that Mr. Murty downloaded the child pornography, possessed it, shared it and was interested in child pornography. As such, I intend to rely on such facts as aggravating factors on sentencing.
Victim Impact
[13] A Victim Impact Statement was provided by the Canadian Centre for Child Protection authored by its General Counsel, Ms. Monique St. Germain. The content of the statement may be summarized as follows:
a. The creation of sexual abuse material has a lasting impact on the victims because there is a permanent record of the abuse that has occurred. As such, the survivors of this abuse face potential victimization daily.
b. One victim in a criminal proceeding described the impact of the child pornography conviction of a defendant:
Usually when someone is raped and abused, the abuse ends. But seeing [offender name] put those pictures on the Internet, my abuse is still going on. Anyone can see them. People ask for them and are downloading them. Day after day. People want to see me abused.
c. Being a victim of sexual abuse in circumstances (such as those before me) encompass two stages of victimization. The first, of course, is when the abuse occurs. The second is the “ongoing vulnerability of survivors and the unknown aspect regarding the circulation of the image”.[5]
d. The vast majority of those abused have said they received a psychiatric diagnosis linked to the imagery of their abuse. Mental health struggles included anxiety, depression, suicidal ideation, and self-harm. Survivors have advised that they have misused alcohol and drugs. Many suffered post-traumatic stress disorder, dissociative disorders and hospitalization.
e. For many, there is a physical impact. There is pain and suffering at the time of recording. Ongoing physical harms included scarred tissue, fibromyalgia, incontinence and hemorrhoids. Some experience reduced sex drives or an inability to engage in sexual activity, experiences that may be tied to difficulties around their ability to engage in emotional intimacy.
f. There is also an economic impact arising from this type of abuse. Many victims have reported an inability to complete school; an inability to work; difficulty concentrating; illnesses; difficulty maintaining employment; social anxiety while at work and fear of being recognized which has prevented them from going to work.
g. Some experience real fears for their security. Some fear they will be recognized.
[14] I will now turn to a consideration of Mr. Murty’s background.
Personal Background
[15] Mr. Murty’s background was set out in the report of Dr. Pearce and may be summarized as follows:
Family History and Personal Background
a. Mr. Murty was born in Brampton.
b. Mr. Murty was raised by his biological parents in Mississauga. The family enjoyed geographic stability.
c. Mr. Murty was the middle child of three. His older brother, Kevin, is 54 years of age. They have not had contact in a few years.
d. Mr. Murty’s sister, Stephanie, is 40 years of age. He has a distant relationship with her.
e. Mr. Murty’s mother, Irene, is 76 years of age. She lives in Burlington with Mr. Murty’s father. She has a high school education and worked as an office administrator for most of her career.
f. Mr. Murty’s father, William, is 76 years of age. He has a high school education but apprenticed as an aircraft fabricator. He worked for Boeing for 37 years.
g. Mr. Murty had some difficulties in his relationship with his mother. He feels that he was neglected by her as a child. They last spoke in 2016.
h. Mr. Murty said that at the age of 16, he admitted to his mother that he is homosexual. She refused to accept same and suggested that he “switch teams, or there’s the front door”. He didn’t know what to do. He was confused and upset. His father “decided for me” that he would renounce his homosexuality. Thus, he concealed his sexuality. He felt his parents were “not dealing with reality” but unfortunately, they continued to adopt the same mentality for years. In time, his father “showed some signs of enlightenment” but his mother continued to refuse to accept his sexual orientation. He decided he could no longer tolerate his parents’ attitude.
i. When asked about his future plans, Mr. Murty said he had none. He stated, “I have never been good at [planning for] the future.” He has no hobbies and said he “does nothing really”. He stated that in the past 10 years, “I have stopped caring.” When asked why that was the case, he was uncertain. When asked whether he had been depressed, he replied in the affirmative. Mr. Murty said he has no supports. He reported living a “very lonely” existence. He stated, “I had to shut myself away. I have been a recluse.” He said he “does not know how to make friends.”
Educational Background
j. Mr. Murty completed high school in 1990.
k. At the age of 21, Mr. Murty attended at York University. He was a full-time student there for two years, studying history and languages.
Employment History
l. Mr. Murty had primarily worked buying and selling antiques. He said he had his own business and worked in this regard for about half a decade, in his twenties. He last worked in 2003, selling antiques.
m. In the early 2000s and on a part-time basis, Mr. Murty worked at an adult massage parlour in California.
n. Mr. Murty has been supported by the Ontario Disability Support Program since 2004.
o. He has resided in a subsidized apartment since 2011 or 2012, on Sherbourne Street, at Fife House.
p. Mr. Murty said that he lived in California from 1999 to 2009. He resided in Hollywood and then Palm Springs. He decided to relocate to the area as he had several friends there. He eventually returned to Toronto as his roommate in California was moving away.
q. In the second half of the 2000s, he travelled frequently between California and Toronto.
Relationship History
r. Mr. Murty had maintained one serious relationship. He has not been married but had cohabited with one partner.
Psychiatric History
s. Mr. Murty had not been admitted to a psychiatric unit of a hospital, albeit he was in contact with mental health professionals from his twenties, given anxiety symptoms. He was involved in weekly therapy for a couple of years, between 2010 and 2012, with Dr. Peterkin, a psychiatrist at Mount Sinai Hospital.
t. He had been diagnosed in the past with social anxiety disorder, panic disorder as well as depression. He also met regularly with a psychiatrist named Dr. Carvalhal in the mid-2010s, through St. Michael’s Hospital (“SMH”).
u. Mr. Murty has attempted suicide on three occasions.
v. Mr. Murty reports that he received various treatments for his conditions, including fluoxetine, venlafaxine, paroxetine, bupropion, sertraline and nefazodone. He had not received electroconvulsive therapy. He had participated in psychotherapy on several occasions, but had not, as far as he was aware, received cognitive behavioral therapy or participated in group treatment.
w. At the time of the interview with Dr. Pearce, Mr. Murty was prescribed:
i. Venlafaxine, dose unknown, for depression.
ii. Quetiapine 100 mg, for sleep.
iii. Clonazepam as needed, for panic attacks.
iv. Ritalin, for narcolepsy.
Medical History
x. Mr. Murty reported suffering from HIV which was diagnosed with in 2000.
y. Mr. Murty also reported suffering from narcolepsy, which he believed arose in his late adolescence. However, the condition was only diagnosed in the late 2000s by a psychiatrist in California.
z. He suffered a seizure once at the age of 40 or so, caused by an unintentional overdose of Ritalin.
Substance Use History
aa. Mr. Murty denied abusing alcohol or drugs. He reported consuming alcohol less than once per month. He had smoked marijuana on a couple of occasions but doesn’t use it regularly. He said he had used cocaine a few times but denied that his use was ever problematic. He had not used it in several years.
bb. Mr. Murty said he used crystal methamphetamine (CM) on several occasions but felt that his use of this substance was not problematic, although he admitted that he used it regularly throughout the 2000s.
[16] Dr. Pearce diagnosed Mr. Murty as follows:
Mr. Murty appears to suffer from two mental illnesses, specifically social anxiety disorder as well as persistent depressive disorder. He has also, despite his views, likely abused CM at one point.
Mr. Murty repeatedly streamed child pornography. He made comments very suggestive of a sexual interest in children and significant quantities of child pornography were found on his devices. Dr. Pearce observed that while phallometric testing couldn’t be performed and while he did not admit to a sexual interest in children, Dr. Pearce is confident that Mr. Murty suffers from pedohebephilia. As such, the results of phallometric testing would be moot. Dr. Pearce found that Mr. Murty may be attracted to both male and female children or perhaps, just male children. He is also attracted to adult males, thus his pedohebephilia is of the non- exclusive variety.
It is possible that other paraphilias are present, but Dr. Pearce was not prepared to make a determination in this regard, given that Mr. Murty was very guarded during the interview.
Dr. Pearce concluded that he is not in a position to diagnose a personality disorder, but it is very likely that significant maladaptive “cluster B” traits are present.
Dr. Pearce concluded that Mr. Murty suffers from social phobia and PDD. He has likely abused CM. He may meet the criteria for a personality disorder. Finally, he suffers from pedohebephilia.
Risk Assessment
[17] Dr. Pearce concluded the following with respect to Mr. Murty’s risk to re-offend:
In considering all the information available to me, I would conclude that Mr. Murty is at moderate risk for re-offence (future possession of child pornography charges). It is hard to know what risk he presents, if any, for committing a ‘hands on’ sexual offence though the latest scientific literature suggests that the risk is low. [Emphasis added]
[18] I will now turn to a consideration of the legal framework.
The Legal Framework
[19] In determining an appropriate sentence, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, which provides as follows:
- The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[20] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in s. 718.2(a)(i) to (iv); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).[6]
[21] Pursuant to s. 718.1 of the Criminal Code "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender". Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime.[7]
[22] In cases involving the abuse of a child, the Court must also consider s. 718.01 which provides as follows:
When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
[23] Counsel have provided case law which supports their respective positions on sentence.[8] I have reviewed the cases provided and listened to the submissions about them by both counsel.
[24] Although the cases assist me in determining the governing principles that must guide my decision, a careful review of them demonstrates that sentencing is not an exact science. It is instead, a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. As Chief Justice Lamer noted in R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 SCR 500, at para. 92, “there is no such thing as a uniform sentence for a particular crime”. The circumstances of any case, including this one, can be readily distinguished from any other case.
[25] Despite this, prior decisions assist in defining the principles that I must apply, and in determining the appropriate range of sentence and the factors that place Mr. Murty within that range. That said, two of the cases provided are of particular importance when considering a case such as this one, involving the abuse of children:
R. v. Friesen:[9] Mr. Friesen pleaded guilty to sexual interference on a four year-old child and extortion. In upholding the sentence of six years, the reasons of the Supreme Court of Canada were clear. Amongst other things, it held at para. 5:
… we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families and society at large.
In dealing with child pornography, in particular, the Court in Friesen held as follows at para. 48:
Technology can make sexual offences against children qualitatively different too. For instance, online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child’s life at any time (R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 at para. 92; R. v. S. (J), 2018 ONCA 675, 142 O.R. (3d) 81, at para. 120).
In this case, the children depicted in the child pornography images and videos are particularly young. As such, I take guidance from para. 134 of Friesen that provides as follows:
The age of the victim is also a significant aggravating factor. The power imbalance between children and adults is even more pronounced for younger children, whose ‘dependency is usually total’ and who are ‘often helpless without the protection and care of their parents’ (R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R. 309, at para. 66). Their personality and ability to recover from harm is still developing (Renaud, at s. 12.64; L. (J.-J.), at p. 250). Moreover, children who are victimized at a younger age must endure the consequential harm of sexual violence for a longer period of time than persons victimized later in life.
As the Supreme Court of Canada held in Sharpe and as set out in Friesen at para. 51, “… the production of child pornography traumatizes children and violates their autonomy and dignity by treating them as sexual objects, causing harm that may stay with them for their entire lifetime”.
R. v. Inksetter:[10] In 2018, Mr. Inksetter was a 51 year-old man who pled guilty to possessing 28,052 unique images and 1,144 unique videos of child pornography. He was sentenced to two years less a day plus three years’ probation for one count of possession of child pornography. Mr. Inksetter was also sentenced to one year concurrent for making child pornography available: he stored some material in shared files, though he did not take active steps to distribute it. Mr. Inksetter did not have a criminal record and was not seen as a danger to children. He was of otherwise good character, had demonstrated remorse, had pleaded guilty, had submitted to treatment, and was likely to lose his job as a result of the conviction. The Court of Appeal increased Mr. Inksetter’s sentence to 3.5 years.
The Court of Appeal reiterated the principles set out by Feldman J.A. at paras. 21 and 22 of R. v. D.G.F.[11]
21 Over the last two decades, courts have been on a learning curve to understand both the extent and the effects of the creation and dissemination of child pornography over the Internet and to address the problem appropriately: …
22 Unfortunately, the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution. The victims are innocent children who become props in a perverted show, played out for an ever-wider audience not only of voyeurs but of perpetrators.
[26] Based upon the abovementioned principles and the cases provided by counsel, I will now turn to a consideration of the fit sentence.
The Fit Sentence
[27] What is clear from the law is that denunciation and deterrence are the paramount sentencing objectives to be considered when sentencing persons who have possessed and made available, items associated with child pornography. It is those persons who enable its production. This contributes to the ongoing abuse, exploitation and degradation of the children involved. The innocent children depicted in these images and videos are re-victimized each time the images and videos are viewed.
[28] In consideration of the fit sentence, I find the following to be the aggravating factors on sentencing:
a. The size of the collection is significant.
b. There are four separate categories of child pornography:
i. Nude/erotic modelling.
ii. Sexually explicit acts including fellatio and oral sex, vaginal intercourse, anal intercourse, object insertion, digital penetration and fondling.
iii. Bondage using rope, leather straps, nylon straps, cages and gags.
iv. Bestiality.
c. The videos include children being abused who range in age from toddlers to prepubescents.
d. The videos and images are extremely graphic in nature and are very close to the most depraved. As Fuerst J. said in R. v. Enosse[12] at para. 42 and which I adopt here, “Videos of children being raped by adult males and images of children engaged in acts of bestiality represent extreme victimization of children. These materials were created for the satisfaction of adults’ deviant sexual interests, at the expense of the wellbeing of the most vulnerable members of our society.”
e. The collection contains aspects at the higher end of relative depravity given the ages of the children depicted and the type of abuse inflicted on them.
f. Mr. Murty made available child pornography which contributes to further crimes and promotes the further victimization of those children.
g. Mr. Murty was sharing the videos on the Zoom platform (before the COVID-19 pandemic and its significant popularity).
h. Some of the child pornography was found in plain sight on Mr. Murty’s computer.
i. Dr. Pearce has identified that there are risk factors.
[29] I consider the following to be the mitigating factors on sentencing:
a. Mr. Murty is 49 years of age. He has no criminal record.
b. Mr. Murty pleaded guilty, which is a sign on remorse. The plea saved resources at a time that the courts are dealing with the COVID-19 pandemic and our resources are limited.
c. The plea provided certainty of result.
d. Mr. Murty has led a difficult life. His parents did not accept him when advised that he was homosexual, leading him to lead a lonely life. He was basically disowned.
e. Mr. Murty is a recluse, has attempted suicide and suffers from depression and anxiety. In order to cope, he has abused narcotics.
f. He has been employed in the past.
[30] Counsel for Mr. Murty suggests that Mr. Murty was not making his collection widely available, but only did so when he shared the child pornography with the undercover officer on the Zoom platform. The fact is that Mr. Murty shared his collection of child pornography which gives rise to his conviction for that offence.
[31] After considering the totality of the circumstances of this case, I find that the appropriate sentence is a global one of 3 years in custody. Such a sentence, in my view, denounces Mr. Murty’s conduct while delivering the message to others that distributing and possessing child pornography cannot be tolerated by our society and that there is a price for such conduct.
[32] In coming to my conclusion about the fit sentence, I am cognizant of the principles set out in R. v. Priest,[13] at p. 296 which are applicable:
[I]t is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.
[33] I am also mindful of the fact that this would be the first visit to the penitentiary for Mr. Murty and of the direction of Rosenberg J.A. in R. v. Borde,[14]that a “first penitentiary sentence should be as short as possible”. This is a first jail sentence of any significance for Mr. Murty. That said, the jump principle is not applicable due to the severity of the offences.
[34] While I am sympathetic to Mr. Murty’s personal history, a conditional sentence or anything less than 3 years would not address the paramount principles of deterrence and denunciation. As the Court said in Friesen, at para. 76:
Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender's actions and the consequential harm to children and their families, caregivers, and communities (see M. (C.A.), at para. 80; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 35). We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children. Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences. We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case.
[35] A sentence of 3 years is not so crushing as to impact Mr. Murty’s plans for the future. The sentence will permit him to obtain the sexual offender treatment he requires in the penitentiary. The sentences will be concurrent in light of the totality principle.
[36] In these circumstances a sentence of 3 years concurrent (less 10 months of pre-sentence custody) on both counts is required to reflect society’s abhorrence of Mr. Murty’s conduct that exploits vulnerable children. As Molloy J. has so eloquently said: “… 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”.[15] It is my view that such a sentence will denounce Mr. Murty’s conduct and may deter others from perpetuating such vile acts on children – a most vulnerable segment of our society.
Conclusion
[37] Mr. Murty is sentenced to 3 years imprisonment. He will be given credit of 10 months, pursuant to R. v. Summers.[16] As such, he will be required to serve 2 years, 2 months in prison.
[38] Mr. Murty will be subject to the following ancillary orders, as agreed:
a. That he provides a sample of his bodily substances as may be required for forensic analysis pursuant to s. 487.051(b) of the Criminal Code.
b. That he complies with the requirements of the Sex Offender Information Registration Act, S.C. 2004, c. 10 for life, pursuant to s. 490.011 of the Criminal Code.
c. That he be subject to a prohibition order pursuant to s. 161 of the Criminal Code for 20 years in accordance with that attached at Appendix “B”.[17]
Kelly J.
Released: May 5, 2021
appendix “A”
R. v. Murty
Image and Video Summary
Overview:
This is an image and video summary for the seized exhibits associated to the accused Derrick Murty. The exhibits were examined and found to contain images and videos of child pornography.
This summary is to provide an overview of the child pornography related content located on the seized exhibits.
Total number of classified Images and Videos of child pornography:
The accused has a total of 1,770 images that have been categorized as child pornography. A breakdown of the total number of images is as follows:
• 746 images listed as user and system generated.
• 1024 images listed as being deleted.
• 1349 unique images.
• 421 images listed as duplicates.
The accused has a total of 832 videos that have been categorized as child pornography. A breakdown of the total number of videos is as follows:
• 832 videos listed as being as user and system generated.
• 0 deleted videos.
• 819 unique videos.
• 13 videos listed as duplicates.
The total number of unique child pornography images and videos can be broken down into the following categories.
• Nude/erotic modeling. These are images and videos in which a child or adolescent are either being posed are dressed up in an erotic/sexual manner. The main focus of these images and videos is the genital and anal regions of the child/adolescent for a sexual purpose.
• Sexually explicit acts. These are images and videos in which a child and or adolescent is engaged in a sexually explicit act. The accused’s collection contains images and videos of children engaged in the following sexually explicit acts:
o Fellatio and oral sex
o Vagina intercourse
o Anal intercourse
o Object insertion
o Digital penetration and fondling
• Bondage. These are images and videos that contain a child and or adolescent in positions of bondage. These images have a child and or adolescent bound in various different positions with the use of rope, leather/nylon straps, cages, and gags.
• Bestiality. These are images and videos that contain a child or adolescent engaged in sexually explicitly acts with an animal.
For the total number of images and videos classified as child pornography the ages of the children in the images/videos range from infant babies a few days/weeks old to prepubescent males and females approximately 13/14 years of age. The dominant portion of the images and videos appear to be males thatrange particularly in the age range of infants a few days/weeks old to 8/9 years. The dominant themes of these images/videos are of these children engaged in sexually explicit acts including vaginal and anal penetration. The videos are mainly focused anal and vaginal penetration.
Image Descriptions by category:
A written description is being provided for one image of each category described previously. The images file name and exhibit file path is being provide.
• Nude/erotic:
o File name: 1385122267831.jpg
▪ Exhibit #: 6-1
▪ File Path: Partition-1/SlamPerv/pics/138 series/1385122267831.jpg
▪ Image description: This is an image in colour of a prepubescent male approximately 8 to 9 years of age. The male prepubescent is white with shaed brown hair. The male is naked from the chest up and wearing a pair of multicolored swim shorts. The male has the front of his swim shorts pulled down and exposing his erect penis to the direct view of the camera.
• Sexually explicit act :
o File name: 132879227381.jpg
▪ Exhibit #: 6-1
▪ File Path: Partition-1/SlamPerv/pics/132879227381.jpg
▪ Image description: This is an image file that is in colour. The image shows a white male infant approximately 4 to 6 weeks old. The infant is lying on his back and on top of an open diaper. The infant is completely naked from the waist down and wearing a blue sweater and white socks. The infant’s anal regions and genitals are exposed to the direct view of the camera. An unknown adult male is seen standing directly in front of the infant male. The adult male has his erect penis inserted into the infant’s anus.
o File name: IMG_0505.jpg
▪ Exhibit #: 1-1 Seagate Hard drive from Laptop computer
▪ File Path: Partition-5/$RECYCLE.BIN/S-1-5-21-469715221-1178461053-1172563285-1002/$RQEMQNE/G09/IMG_0505.jpg
• Bondage:
o File name: 08tiedup.jpg
▪ Exhibit #: 6-1
▪ File Path: Partition-1/SlamPerv/pics/08tiedup.jpg
▪ Image description: This is an image file that is in in black and white. The image is of a prepubescent white male approximately 10 to 11 years of age. The prepubescent male is lying on his back on the floor. The male is completely naked. The males legs are spread and his ankles are bound together with rope. The prepubescent male’s legs are spread apart exposing his genitals to the direct view of the camera. The prepubescent male’s arms appear to be tied behind his back and his mouth is covered with a cloth gag. Standing directly above the prepubescent male is an unknown adult male. It appears as if he is slapping the prepubescent male in the face.
• Bestiality:
o File name: 1384265008_2110238_10509957.jpg
▪ Exhibit #: 6-1
▪ File Path: Partition-1/SlamPerv/pics/1384265008_2110238_10509957.jpg
▪ Image description: This is an image file that is in colour. The images show 3 nude adolescent children standing against a farm fence. Two of the children are females approximately 4 to 5 years old and are completely naked. The third child is male and approximately 4 to 5 years old. The male adolescent is completely naked and has an erect penis. In the foreground of the image a forth adolescent female approximately 5 to 6 years of age can be seen holding onto the erect penis of a horse.
Video Descriptions by category:
A written description is being provided for one video of each category described previously. The video file name and exhibit file path is being provided.
• Nude/erotic:
o File name: 12yo boy puts feet up desk and cums all over shirt (SC 2012).mp4
▪ Exhibit #: 6-1
▪ File Path: Partition-1/SlamPerv/Vids/12yo boy puts feet up desk and cums all over shirt (SC 2012).mp4
▪ Video description: This is a video file that is in colour and contains no audio. The video is 16 seconds in length. The video is of a male prepubescent approximately 10 to 12 years of age. The male seen clothed and sitting in front of a computer camera. The prepubescent male is seen exposing his erect penis to the direct view of the camera.
• Sexually explicit acts:
o File name: g-bab11.mp4
▪ Exhibit #: 6-1
▪ File Path: Partition-1/SlamPerv/Vids/Girl/g-bab11.mp4
▪ Video description: This is an image file that is in colour and contains audio. The video is 18 seconds in length. The video shows an infant female approximately 4 to 8 weeks of age. Directly positioned in front of the infant female is an unknown adult male. The female infant is completely naked lying on her back. The video appears to have been edited to cover the face of the infant female. The unknown adult male is naked from the waist down and his erect penis is exposed. The adult male is seen masturbating and then ejaculating onto the entire body of the infant female.
• Bondage:
o File name: Dylan and Daddy2.mp4
▪ Exhibit #: 6-1
▪ File Path: Partition-1/SlamPerv/Vids/Dylan and Daddy2.mp4
▪ Video description: This is a video file that is in colour and contains audio. The video is 3 minutes and 14 seconds in length. The video shows an infant male approximately 1 to 2 years of age. The infant male is seen lying on his back and completely naked. The infant males arms are taped to his lower legs witch are spread apart. The infant’s male’s anal and genital regions are exposed to the direct view of the camera. An unknown adult male is then seen while wearing a mask inserting his erect penis into the infant male’s anus. The infant male is heard crying. The adult male then places a piece of tape over the infant male’s mouth while continuing to insert his erect penis into the infant’s anus.
appendix “B”
R. v. Murty
WORDING OF s.161(a)
Not to attend a public swimming area, daycare centre, schoolground, or playground. Not to attend within 10 metres of any child or children at a public park or community centre.^1[18]
WORDING OF s.161(1)(d)
Prohibiting the offender “from using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court”
SUGGESTED CONDITIONS:
o not to use or access the Internet or other digital network unless you do so:
• On your own personal computer or telecommunications devices for lawful purposes. No encryption software is to be installed or used;
• if you are employed, at your place of business, for business purposes and in accordance with IT and other policies at your place of business;
You are not to use any telecommunication device to access the Internet or other digital network in order to:
❏ Access child sexual abuse materials, including images, videos or written word
❏ Participate in video conferencing, chat rooms, bulletin boards or any social media applications that discuss or promote child exploitation, child sexual abuse, sexualized images of children or any other child exploitation material.
COURT FILE NO.: CR-17-10000218-0000
DATE: 20210505
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DERRICK JOHN MURTY
REASONS FOR sentence
Kelly J.
Released: May 5, 2021
[1] Contrary to sections 163.1(4) and 163.1(3) of the Criminal Code, R.S.C., 1985, c. C-46.
[2] Counsel for Mr. Murty briefly suggested that it would be possible to blend a conditional sentence with a custodial sentence. In my view, a conditional sentence would fail to properly address the principles of denunciation and deterrence.
[3] 1982 30 (SCC), [1982] 2 SCR 368
[4] M.D., FRCPC, Forensic Psychiatrist, Centre for Addiction and Mental Health. Assistant Professor, University of Toronto.
[5] Ateret Gerwitz-Meydan, et. al., “The complex experience of child pornography survivors” (2018) 80 Child Abuse & Neglect 238-248.
[6] See: R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330; aff’d. 2013 ONCA 677; upheld 2015 SCC 15, [2015] 1 S.C.R. 773
[7] See: R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at paras. 80-82
[8] For the defence, see for example: R. v. Coutu, [2007] O.J. No. 5811 (S.C.J.). For the Crown, see for example: R. v. Dean, [2010] O.J. No. 5305
[9] 2020 SCC 9, [2019] S.C.J. No. 100 (QL)
[10] 2018 ONCA 474
[11] 2010 ONCA 27, [2010] O.J. No. 127
[12] [2019] O.J. No. 5853 (S.C.J.)
[13] (1996), 1996 1381 (ON CA), 110 C.C.C. (3d) 289 (Ont. C.A.)
[14] (2003), 2003 4187 (ON CA), 172 C.C.C. (3d) 225 (Ont. C.A.), at para. 3
[15] See: R. v. Kwok, supra, at para. 49
[16] Mr. Murty spent 196 real days in custody. When given credit of 1.5 days for each day spent in custody, he will be given credit of 300 days or 10 months.
[17] I find that while Dr. Pearce has suggested that Mr. Murty is at a moderate risk to reoffend and that there is no evidence of him having committed “hands on” offences, Dr. Pearce suggested that he should have no contact with children. Further, in the chats with the undercover officer, there was some indication that Mr. Murty had an interest in contacting children.
[18] ^1 I have reduced the distance from 25 metres to 10 metres in the event that Mr. Murty is required to attend at one of these locations for purpose of counseling, etc.