R. v. W.E.

Date: 20100118 Docket: 09/77 Citation: 2010 NLCA 4 Pursuant to s. 486.4(3) of the Criminal Code, information that could identify a witness who is under the age of eighteen years shall not be published in any document or broadcast or transmitted in any way. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: W. E. APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Green, C.J.N.L., Cameron and Rowe, JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Corner Brook, NL Appeal Heard: December 16, 2009 Judgment Rendered: January 18, 2010 Reasons for Judgment by Rowe, J.A. Concurred in by Green, C.J.N.L. and Cameron, J.A. Counsel for the Appellant: Rosellen Sullivan Counsel for the Respondent: Stephen R. Dawson Page: 2 Rowe, J.A.: INTRODUCTION [1] W. E. pleaded guilty to possession of child pornography, contrary to s. 163.1(4)(a) of the Criminal Code. The Crown sought a term of imprisonment of 12 to 18 months; the Defence sought 8 to 10 months. The Provincial Court judge imposed a sentence of four years, nine months. Mr. E. has sought leave to appeal this sentence. FACTS [2] In September 2007, the RCMP executed a search warrant at Mr. E.’s house and his place of work. On computers there, police found a very large number of images of children (both still and video), among these a large number of pornographic images. [3] Mr. E.’s daughter (then 16) told police that she saw her father accessing child pornography when she was around 10 or 11. Mr. E. told police he had been accessing child pornography “over the years”. [4] Mr. E. pleaded guilty. A pre-sentence report was prepared. At the time of sentencing (August 2009), Mr. E. was 55. He has no prior convictions. He is retired, having worked for the same employer for over 30 years. He has been married for 28 years and has two grown children, plus the daughter referred to above. [5] The pre-sentence report states that Mr. E. “has not accepted full responsibility for his actions and tends to perceive himself as well as his family members somewhat as the victims in this matter”. Counsel for Mr. E. told the sentencing judge that the foregoing was not entirely accurate, as Mr. E. had said that his family were “victims”, not that he was. [6] The Crown sought a term of imprisonment of 12 to 18 months, to be followed by probation. As the sentencing judge noted, Crown counsel “referred to the volume of child pornography material involved and its explicit nature in support of her submission”. As well, Crown counsel “submitted two volumes of sentencing precedents”. Page: 3 [7] Defence counsel sought a term of imprisonment of 8 to 10 months. As the sentencing judge noted, Defence counsel “referred to the plea of guilty entered by Mr. E., his lack of any previous convictions, his having saved his daughter from having to testify and the strict release conditions to which Mr. E. has been subjected for a considerable period of time”. ANALYSIS OF SENTENCE DECISION [8] In his decision, at para. 20, the Provincial Court judge wrote: The range suggested by the Crown does not adequately reflect the nature of the offence committed by Mr. E. or the specific circumstances involved. I understand that I am imposing a sentence which is far greater than that requested by the Crown … , but the sentence recommended by the Crown would not be proportionate to Mr. E’s actions for his moral blameworthiness and thus accepting it would be contrary to the most important principle of sentencing enshrined within the Criminal Code. The range of sentence recommended by the Crown would have been appropriate if Mr. E. had possession of a small or moderate amount of child pornography, if it did not involve such a large number of children, including ones so young, if his possession had been ongoing for a short period of time and if it did not involve such intrusive and degrading images. Let me explain why I have decided to impose a period of imprisonment significantly greater than that suggested by the Crown, by commencing with a review of the principles of sentencing contained in the Criminal Code. [9] The sentencing judge then set out a review of relevant provisions of the Criminal Code, including s. 718.01: 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. [10] The sentencing judge noted that (in 2005) Parliament amended the Criminal Code to provide for a 45 day minimum term of imprisonment for possession of child pornography. He went on to state in para. 32: In R. v. Newman, [2009] N.J. No. 201, the Court of Appeal of this Province considered an appeal from sentence involving section 212(2) of the Criminal Code, which prescribes a minimum punishment of two years imprisonment for the offence of living off the avails of prostitution of a person under eighteen years of age. The Court of Appeal indicated, at paragraph 57, that “the floor of the range of sentence has been altered, and specified, by Parliament” and that “in light of” section 212(2) requiring a sentence of twenty-four months for an offence at the Page: 4 lower end of the spectrum, “longer sentences must be imposed for more serious offences” to be consistent with the sentencing principle of proportionality. [11] The sentencing judge continued in para. 33: Therefore, a sentence imposed for a breach of section 163.1(4) of the Criminal Code must reflect Parliament’s clear indication that the sentences imposed for such offences have not been sufficient and must be increased so as to satisfy the sentencing principles of deterrence and denunciation. The requirement for a minimum period of imprisonment reflects Parliament’s view that a conditional period of imprisonment or a suspended sentence will never be appropriate for an offender that has possession of child pornography and it plays an important role in denouncing this type of criminal conduct … . [12] The sentencing judge reads a great deal into the provision for a 45 day minimum. He is correct when he states that “the requirement for a minimum period of imprisonment reflects Parliament’s view that a conditional period of imprisonment or a suspended sentence will never be appropriate for an offender that has possession of child pornography …”. (Section 742.1 of the Criminal Code provides that a conditional sentence cannot be imposed for “an offence punishable by a minimum term of imprisonment”.) [13] It seems to me also correct that the provision of a minimum sentence does “up” the sentencing range, for the reasons set out by this Court in R. v. Newman, supra. That said, one must bear in mind that the minimum sentence is 45 days and not some longer period. [14] The sentencing judge reads too much into the 45 day minimum when he states that this “must reflect Parliament’s clear indication that the sentences imposed for such offences have not been sufficient and must be increased”, if by this he means that Parliament through the 45 day minimum has mandated a radical shift, fundamentally altering and greatly increasing all sentences for possession of child pornography. [15] The sentencing judge then reviewed the sentencing precedents submitted to him by the parties, as well as others. He stated in para. 73: Having set out these various precedents, what is to be gathered from them? They range from the imposition of an intermittent sentence to five years imprisonment (the latter in Australia). The Canadian cases seem to have hit a ceiling at two years imprisonment despite the five year maximum prescribed by Parliament. Many of the sentencing precedents referred to have resulted in periods of imprisonment in the range of twelve to eighteen months being imposed. Page: 5 [16] The foregoing is accurate in that while about a third of sentences were less than 12 months, most are in the 12 to 24 month range and no Canadian case involved a sentence greater than 24 months. (I give no weight to the Australian case.) It is not uncommon for most sentences for a variety of offences to fall well short of the maximum prescribed by Parliament, e.g. 14 years for aggravated assault; see Clayton Ruby, Sentencing, 7th ed. (Markham, ON: LexisNexis, 2008) at pp. 837-842. [17] In R. v. M.(L.), [2008] 2 S.C.R. 163, the Supreme Court stated that although maximum sentences are exceptional in nature, they are not to be reserved for the worst crimes committed in the worst circumstances. Rather, trial judges are to consider, on a case-by-case basis, all relevant factors and impose the maximum sentence where circumstances warrant. What dictates the decision is the fundamental principle that the sentence be proportionate to the gravity of the offence and the degree of the offender’s responsibility. [18] The sentencing judge went on to state in para. 73: [C]onsidering the nature and effects of possession of child pornography and the need to stress deterrence and denunciation, such an offence should normally result in at least a period of incarceration of twelve months being imposed regardless of the amount or nature of the child pornography possessed. Periods of imprisonment in the range of two years imprisonment should be imposed for offences involving moderate amounts of child pornography and the judiciary should not shrink from imposing sentences at the maximum level when appropriate. [19] The sentencing judge himself did not “shrink” from his own admonition, as he then went on to impose a sentence of four years, nine months, based on the large amount of material, the especially disturbing nature of some of it, plus the length of time that Mr. E. had collected it. He would have imposed the maximum sentence of five years, but reduced it to 4 years, 9 months based on the guilty plea and a brief period in custody. [20] In the foregoing passage from para. 73, the sentencing judge, having noted Parliament’s establishment of a 45 day minimum then, in effect, seeks to establish a 12 month minimum. This is a clear error. [21] Having set out a 12 month minimum, the sentencing judge builds on this foundation, by seeking to establish a two year norm for “offences involving moderate amounts of child pornography”. This is an error from three perspectives. Page: 6 [22] First, the 12 month minimum plus 24 month norm are two parts of an overall sentencing scheme. When the 12 month minimum goes (as it must), the 24 month norm, lacking its foundation, must fall as well. [23] Second, the 24 month norm is entirely without authority. No precedent is given for it. Rather, it is simply asserted. While it is true that sentencing ranges are established and evolve through decisions in individual cases, this does not mean that judges are free to “make it up” as they see fit. That is what the sentencing judge did here. [24] As Rosenberg, J.A., writing for the Ontario Court of Appeal stated in R. v. Priest (1996), 30 O.R. (3d) 538 at 547: Respect for the law is not enhanced when overly harsh sanctions are imposed and a trial court ignores well established sentencing principles. The trial court does not fulfil its duty to fashion a sanction that will contribute to the maintenance of a more just society when it imposes a sentence on the offender that is far beyond the usual penalty imposed for this offence in other parts of the province and the country. [25] The Ontario Court of Appeal more recently stated in R. v. Song, 2009 ONCA 896 at para. 10: Judges are entitled to hold personal and political opinions as much as anyone else. But they are not free to permit those views to color or frame their trial and sentencing decisions. They are bound to apply the law as it stands. … [26] Third, there is an over-emphasis on the quantity of the material. This is a relevant consideration, but other considerations may be of equal or greater importance, e.g. the nature of the material and whether is this a repeat offence. [27] To fix so pivotally on the quantity of the material is a reversible error as it over-emphasizes a single factor, contrary to what Lamer C.J.C. stated at para. 90 of R. v. M.(C.A.), [1996] 1 S.C.R. 500 when he referred to “overemphasis of the appropriate factors”. [28] In short, the sentencing judge set out a sentencing framework that was from certain perspectives without authority and from other perspectives contrary to authority. Thus, the sentencing framework cannot stand. [29] The sentencing judge went on to apply his sentencing framework in this case. As the framework falls, so does its application. Thus, the Page: 7 sentence imposed must be set aside. Accordingly, it is for this Court to impose a fit sentence. [30] I would note the following passage from R. v. Provost, 2006 NLCA 30 at para. 12: In R. v. M.(C.A.), [1996] 1 S.C.R. 500 Lamer, C.J.C. stated at para. 90: Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. … An error in principle justifies appellate intervention and substitution of an appropriate penalty. As Laskin, J.A. stated in R. v. Rezaie (1996), 31 O.R. (3d) 713 (C.A.) at 719: “… [i]f the sentencing judge commits an error in principle, the sentence imposed is no longer entitled to deference and an appellate court may impose the sentence it thinks fit”. [31] As explained above, the sentencing judge erred in law. In addition, I would also set aside the sentence as being “demonstrably unfit” having regard to the principle of parity, to which I will now turn. A FIT SENTENCE [32] At the outset, I would note s. 718.2(b) of the Criminal Code: [A] sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is the principle of parity. [33] Clayton Ruby in Sentencing, 7th ed. (2008) states at p. 33: The principle of parity has developed to preserve and ensure fairness by avoiding disproportionate sentences among convicted persons where, essentially, the same facts and circumstances indicate equivalent or like sentences. [34] As the Ontario Court of Appeal stated in R. v. Wright (2006), 216 C.C.C. (3d) 54 at para. 16: Sentencing “ranges” are useful in promoting the “parity” principle because they provide guidelines to trial judges for the imposition of similar penalties for similar offences of a similar nature involving similar offenders. Page: 8 [35] As noted above, sentences for possession of child pornography generally range from 12 to 24 months. Of the 19 sentencing precedents submitted in this case only five pre-date the addition of the 45 day minimum in 2005. That said, it is not clear that courts have “upped” the range in light of the minimum. [36] As at trial, Defence counsel sought 8 to 10 months. While at trial the Crown had sought 12 to 18 months, plus probation, on appeal the Crown sought 24 months, plus three years probation. [37] What are the aggravating factors? Mr. E. had a large number of images. Counsel both agree some were especially disturbing. Mr. E.’s daughter became aware at a young age that her father viewed child pornography. Mr. E. collected the material over an extended period. [38] What are the mitigating factors? Mr. E. pleaded guilty. This is his first offence. As evidence regarding Mr. E.’s recognition of the seriousness of his offence is unclear, I do not treat this as a mitigating factor. [39] Having regard to the sentencing precedents, the establishment of a 45 day minimum sentence, the mitigating and aggravating factors, the submissions of the parties and the principles of sentencing (including s. 718.01 and 718.2(b), both reproduced above), I would impose a sentence of 20 months, followed by three years probation. The latter should operate as a check against Mr. E. resuming possession of child pornography. [40] Other aspects of the sentencing judge’s decision, save one (the amount of the victim fine surcharge) were not objected to; there was a Sex Offender Information Registration Act order, a DNA order, a forfeiture order and an order limiting contact with persons under 16 years. These orders are set aside with the rest of the sentencing judge’s decision. I would impose similar orders, incorporating by reference what the sentencing judge set out at paras. 87-97 of his decision. [41] The sentencing judge had imposed a victim fine surcharge of $500. That, along with the rest of his sentencing decision, is set aside. I would impose a victim fine surcharge of $100, being the “default” amount for an indictable offence as set out in s. 737(2)(b)(ii) of the Criminal Code. CONCLUSION Page: 9 [42] Leave to appeal the sentence is granted. The appeal is allowed and the sentence is set aside. A sentence of 20 months, followed by three years probation is substituted. Other ancillary sentence matters are as described in paras. 40-41 above. ____________________________ M. Rowe, J.A. I Concur: ____________________________ J. D. Green, C.J.N.L. I Concur: ____________________________ M. A. Cameron, J.A.