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SENTENCING - Child pornography - Particular sanctions

Tuesday, April 16, 2019 @ 9:05 AM  

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Appeal by the accused from a sentence of eight months’ imprisonment and 18 months’ probation for possession of child pornography. The appellant argued that the mandatory six-month sentence in force at the time of the offence was unconstitutional and that the sentence imposed was unfit. Police found 5,700 images and 400 videos of child pornography on a USB drive depicting children ranging in age from young toddlers to 13-year-olds. The content of most of the videos was sexual assault of female children by vaginal and anal intercourse. There were about 300 images of child pornography on the appellant’s computer and 50 images on his cell phone. The appellant was 25 at the time. He had no prior record. The appellant said he felt devastated by the impact of the charges on his life and future, his former girlfriend and the other tenants of the house. The appellant was found to represent a low to moderate risk for future sexual offending. He co-operated with the police and complied with bail conditions without incident for over two years. The appellant sought a conditional sentence order. As the judge found the appropriate sentencing range in this case to be six to 15-months’ imprisonment, he concluded the constitutional challenge was moot and declined to conduct an analysis of the mandatory minimum punishment. The judge concluded the appellant’s significant quantity of child pornography collected and highly organized over a two-year period indicated a high degree of intentionality which was an aggravating factor. The judge also observed that the appellant did not see the point of therapy and continued denying his sexually deviant interests. The judge expressed concern over the appellant’s lack of motivation to engage in treatment in relation to his risk.

HELD: Appeal dismissed. The mandatory six-month minimum sentence was unconstitutional, but the sentence imposed was fit. The judge comprehensively addressed the necessary sentencing principles and factors. The judge’s review of recent and relevant sentencing authorities was extensive. It properly reflected society’s evolving understanding of the harmfulness of child pornography. The judge carefully considered all relevant mitigating and aggravating factors on sentence. The present case was not exceptional warranting a non-custodial sentence. The sentencing judge had a discretion whether to address the constitutional question and made no error in declining to do so. The reasonable hypothetical adopted in the Swaby case finding the mandatory 90-day sentence of incarceration unconstitutional if the Crown proceeded summarily inevitably led to the conclusion that the six-month mandatory minimum punishment then in effect under s. 163.1(4)(a) if the Crown proceeded by indictment also violated s. 12 of the Charter. The essential elements were identical for both offences. Sentence: Eight months’ imprisonment; 18 months’ probation.

R. v. Alexander, [2019] B.C.J. No. 462, British Columbia Court of Appeal, E.A. Bennett, A.W. MacKenzie and G. Dickson JJ.A., March 11, 2019. Digest No. TLD-April152019004