IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           C.A.H. entered guilty pleas on August 11^th, 2016 to Count 2 being a charge of sexual touching contrary to s. 151 of the Criminal Code and Count 4 being a charge of distribution of child pornography contrary to s. 163.1(3).  The offences occurred in Pemberton in August and September of 2015.  The Crown proceeded by indictment.  Both counts carry a mandatory minimum sentence of one year and a maximum of 14 years. 

[2]           The sentencing hearing occurred on February 28^th, 2017 after which judgment was reserved.  A pre-sentence report and psychological assessment were before the court for consideration at the sentencing hearing.  The delay in entering the plea was on the advice of counsel due to a delay in disclosure.

[3]           On August 16^th, 2015 the Offender entered into a dating relationship with the Mother of the 6-year old victim of the sexual touching offence.  Six days later, on August 25^th, C.A.H. posted a tweet under the username “Pedodad” with an email account of pedofdita@gmail.com which included a photograph of the victim.  The content of the tweet was “I gotta put up with her Mom but she’s gonna be so worth it.  Already kissing on the lips.”

[4]           Earlier, on August 4^th of 2016, the Offender had posted a tweet under the username “Chippy” with an email account of chippyfdita@gmail.com.  The tweet included a photographic image of a different female child which constituted child pornography.  The content of the tweet was “I’m more into girls this age.  I found this guy on twitter who has been fucking his own since she was 4.”

[5]           As a result of these tweets the Integrated Child Exploitation Unit was alerted, tracked down the IP addresses, and determined the Offender was living in a trailer close to the two residences with the IP addresses they had identified and had been permitted to use the Wi-Fi at each.  A Facebook account was viewed which assisted in forming grounds for obtaining a search warrant for the residence of C.A.H.  During the search, the Offender’s cell phone was seized and later examined.  A pair of female child’s panties was also located. 

[6]           The examination of the cell phone revealed video recordings made by the Offender of incidents of him sexually touching the child which form the evidentiary basis for Count 2.  There is one video from September 5^th and there are five from the 19^th.  On both occasions the child had been entrusted to the Offender’s care by her mother when she went to work.  The earlier incident involved the Offender fondling the anal area of the child over her clothes and later masturbating alone.  The incidents on the 19^th show the Offender pretending to play with the child as a ruse to film himself engaged in simulated sexual acts.  In one, he simulates intercourse from behind her.  Both he and the child are clothed, however at one point he removes his erect penis from his pants and rubs it against the child’s bottom.  In the others, he simulates cunnilingus over her pants while the child’s legs are spread around his neck, kisses her on the lips, and fondles her vaginal area over her pants.  He also filmed her vaginal area while she was wearing loose fitting panties.  His penis is erect under his pants in that segment. 

[7]           The image he distributed on twitter on August 5^th was shared on a peer to peer basis.  The videos of the victim in Count 2 were not distributed.  The Offender had a very limited number of images of child pornography in addition to a larger collection of adult pornography stored on his phone.

[8]           The child was unaware of the sexual nature of the activities of the Offender.  Her mother has been significantly impacted emotionally as a result of the offences.  She feels she failed to protect her child.  She also worries that although the child has not yet demonstrated any emotional or behavioural changes, she may nevertheless have been impacted.

[9]           C.A.H. was arrested on October 9^th, 2015 being the day the warrant was executed, and has remained in custody since.  He was interviewed after his arrest and admitted to the conduct outlined above. 

[10]        The Offender is now 36 years of age.  He has a criminal history for offences which occurred in the Maritime Provinces and Ontario.  [Omitted for publication].  Between 1997 and 1999 he was convicted of property offences including two counts of breaking and entering, an assault, a public mischief and failure to comply.  As an adult up to 2003, he was convicted of 5 counts of breaking and entering, an assault causing bodily harm, a possession for the purpose of trafficking, an escape, and several minor property offences and breaches.  He received an 8-month sentence for one count of breaking and entering in 2003.

[11]        In 2004 C.A.H. was convicted of another offence of breaking and entering and received a federal two year sentence.  In 2006 he was convicted of two further counts of breaking and entering and received 6 months concurrent on each but consecutive to the earlier sentence.  In October of 2008, he was convicted of assault with a weapon and received the equivalent of a ten-month sentence followed by two years of probation.  In August of 2010, he was convicted of overcoming resistance by attempting to choke, suffocate or strangle another person, which offence related to a female partner, and a failure to comply with probation.  He received a sentence of ten months concurrent on each and a further two years of probation.

[12]        The pre-sentence report and psychological assessment are based primarily on C.A.H.’s self-reporting.  He describes an uneventful upbringing but has been estranged from his family since leaving home in his late teens.  He obtained a Grade 9 education and had ADHD as a child.  The psychologist who assessed him did not observe any indication of attention issues at this time.  

[13]        The Offender describes a peripatetic life where he has been homeless or on assistance at times but usually employed in construction or labour.  He moved to British Columbia in 2014.  

[14]        C.A.H. maintains that his pedophilic ideations and acting out developed recent to the offences before the court arose and were the result of the daily abuse of cocaine.  He reported that he became “intrigued” about viewing child pornography as a result of viewing adult pornography.  The psychologist who assessed him suggests the content of his tweets belies this assertion.

[15]        C.A.H. appears to be remorseful and to accept responsibility for his offending behaviour.  However, I find he does not accept that he has pedophilic tendencies and that the abuse of cocaine served only to disinhibit those tendencies rather than create them.  I also find that C.A.H. does not have an understanding of the profound and lasting harm sexual interference with children causes.

[16]        The conclusions of the psychologist are that C.A.H.’s history and presentation suggest traits consistent with anti-social personality disorder, substance abuse issues, and latent paedophilic interests.  C.A.H. is seen to be a moderate risk to re-offend against children especially if under the influence of substances.  C.A.H. should not be permitted to enter into any relationships with a partner who has a vulnerable child.

[17]        The Crown submitted that a global sentence in the range of 38 to 42 months is appropriate allocated as 16 to 18 months for the offence of distributing child pornography and 22 to 24 months for the offence of sexual touching.  The sentence on Count 4 should be served consecutively to that imposed on Count 2 pursuant to the provisions of s. 718.3 (7)(a). 

[18]        C.A.H. has been in custody for 501 days to the date of sentencing submissions.  He is entitled to credit at a ratio of 1.5 to 1 for a total credit for time served of 759 days or 2 years and one month.  Taking the credit for time served into account, the Crown says the court should impose a further 13 to 17 months.

[19]        Counsel for C.A.H. submits the court should impose a sentence just under the low end of the range suggested by the Crown resulting in a further 12 months in custody.  Crown and Defence agree that the warrant of committal should be endorsed to recommend that the Offender serve his sentence at Ford Mountain Institution as intensive sex offender treatment in available there.  A 12-month sentence is the minimum required, given statutory release, to complete that program. 

[20]        The Defence points out that C.A.H. is now 37 and this is his first sexual offence.  He accepted responsibility early and entered a guilty plea as soon as counsel was able to advise him to do so.  It was made clear throughout the proceedings that it was unlikely either the mother of the victim or the victim would be required to testify.  The Offender has spent his remand time in protective custody without access to any programming.  He has refrained from drug use while in custody. 

[21]        The Defence also submits that the distribution offence was at the lowest end of the range of seriousness for such offences and thus the mandatory minimum should be imposed on that count.  The precedents make clear that the range of sentence for sexual touching is broad.  The Defence submits that due to the brief nature of the offending conduct and the minimally intrusive nature of the sexual touching, illustrated by the child remaining unaware of the sexualized nature of the Offender’s conduct, that a lesser sentence than that suggested by the Crown would be appropriate.

[22]        The principles of sentence are set out in ss. 718, 718.01, 718.1 and 718.2 of the Criminal Code.  In offences involving the sexual exploitation of children, primary consideration must be given to the principles of denunciation and general deterrence. 

[23]        The mitigating factors are the guilty pleas entered by C.A.H. and his early acceptance of responsibility.  He has expressed remorse for his conduct.  He does not have prior convictions for sexual offences.

[24]        The aggravating factors in this matter include those deemed to be so by statute being the sexual abuse of a child and the abuse of the Offender’s position of trust in relation to a 6-year old child.  Based on the timing and content of the tweets posted by the Offender, I find he feigned a romantic interest in and manipulated the victim’s mother solely to gain access to the child and this is properly characterized as predatory conduct.  I find the conduct depicted in the video recordings to be a form of grooming for further sexual interference.  The video recording of the sexual touching is tantamount to the distinct and very serious criminal offence of making child pornography.  Although the Crown did not lay a separate charge for that offence and accepting that the Offender recorded the incidents only for his own purposes, in my view this should nevertheless be considered an aggravating factor with respect to the offence of sexual touching. 

[25]        The Crown provided R. v. Allen, 2012 BCCA 377 with respect to the harm caused by offences related to child pornography and for the summary of cases with respect to the range of sentence for sexual interference, R. v. B.C.M., 2008 BCCA 365, The Queen v. J.S., 2014 ONCJ 249 and R. v. I.A.F.M., 2016 BCPC 91.  Counsel for C.A.H. provided R. v. Donnelly, 2010 BCSC 1523 and the trial court decision in B.C.M. 

[26]        The cases provided have been helpful with respect to the principles and range of sentence to be considered in this matter.  I will not analyze them further given the very similar positions taken by counsel except to say that they support the appropriateness of the sentences suggested.

[27]        I cannot accept the submission of counsel for C.A.H. that because there was only one image distributed that the minimum should be imposed.  As was observed in R. v. Lloyd, 2014 BCCA 224 at paragraph 53, the minimum mandatory sentence is not reserved for the best offender.  I find that C.A.H. should receive a sentence greater that the minimum mandatory sentence on Count 2 due to the abhorrent nature of the tweet which accompanied the image.

[28]        I find that the sexual interference with the child is serious taking into account all of the aggravating factors I have already addressed.  Due to C.A.H.’s age and criminal history, rehabilitation must be given less weight.  I also find that the protection of the public is engaged given his lack of acceptance of his aberrant tendencies and lack of understanding of the serious harm caused by such conduct.  I have also considered the mitigating factors in this matter and in particular his early acceptance of responsibility and guilty pleas.  However, the principles of general deterrence and denunciation require a significant period of time in custody be imposed.

[29]        Having considered all of the circumstances of the Offender, the offences, the principles of sentence, and the case law setting out the range of sentence, I find that there should be a sentence of 15 months on Count 4, the offence of distribution of child pornography and a consecutive sentence of 24 months on Count 2, the offence of sexual touching.  This results in a global sentence of 39 months.  C.A.H. has spent 517 days in custody calculated to the date of imposition of sentence or 17 months of actual time served.  The credit for time served is 25.5 months.  This results in 13.5 months of further time in custody.

[30]        C.A.H. will be bound by a probation order for three years following his time in custody.  I will return to the specific terms of that order in a moment.

[31]        He will be bound by an order not to communicate directly or indirectly with K.W.B. or A.B. during the custodial period of this sentence pursuant to s. 743.21 of the Code.

[32]        He will be bound by an order under s. 161(1)(a) and (b) and (c) and (d) of the Code for 5 years.

[33]        He will be bound by an order under the Sex Offender Information Registry for 20 years.

[34]        He shall provide a sample of his DNA on Count 2 which is a primary designated offence.

[35]        He will be subject to a mandatory firearms prohibition pursuant to s. 109 of the Code for 10 years.

[36]        There will also be an order for forfeiture of the cell phone seized in the investigation.

[37]        In addition to the statutory terms set out under s. 732.1(2)(a)(b) and (c), pursuant to (a.1) you must abstain from communicating directly or indirectly with the victim, K.W.B., or her mother, A.B., and must not attend to any residence, place of employment or place of education at which you know K.W.B. or A.B. to reside, work or attend;

[38]        The optional conditions of your probation require that you must: