R. v. Kreibom, 2020 BCPC 155 (CanLII)
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2020 BCPC 155 |
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Date: |
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File No: |
85773-1 |
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Registry: |
Nanaimo |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
WILLIAM HERBERT ERICH KREIBOM
BAN ON PUBLICATION – SECTION 539 C.C.C.
REASONS FOR SENTENCE
OF THE
HONOURABLE JUDGE K. WHONNOCK
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B. Webber |
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Counsel for the Accused: |
B. Sutton |
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Nanaimo, B.C. |
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Date of Hearing: |
August 13, 2020 |
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Date of Sentence: |
August 18, 2020 |
BACKGROUND
[1] This matter came before me on August 13, 2020 for sentencing submissions. Mr. Kreibom entered into a guilty plea to Count 2 on February 11, 2020. Mr. Kreibom has plead guilty to possessing child pornography between March 12, 2018 and March 12, 2019. On August 13, 2020, Crown entered a stay of proceedings on Count 1.
[2] At the sentencing hearing, no witness testimony was taken but four exhibits were entered into the record by consent:
1. Exhibit One: Crown Counsel Document Book filed with the Court on July 27, 2020;
2. Exhibit Two: Pre-Sentence Report for Mr. Kreibom filed with the Court on August 13, 2020;
3. Exhibit Three: Documents filed by the Defendant William Herbert Erich Kreibom on Sentencing; and
4. Exhibit Four: Brief of Authorities filed by Mr. Kreibom.
[3] No psychological assessments were provided to the Court which might address Mr. Kreibom’s risk of re-offending. There was no victim impact statement provided due to the nature of the offence but as I will explain there are thousands of victims of this offence who are depicted in the images.
[4] There is case authority that a sentencing judge should review the totality of the evidence, including viewing the images of the child pornography that depict the crime: R. v. Swaby, 2017 BCSC 2020, at para. 109 and R. v. C.H., 2020 BCSC 323, at para. 6. Here Crown and defence have set forth an Agreed Statement of Facts that describes several examples of the images. On this basis, I did not request a viewing of the images.
[5] In Exhibit One, at Tab One, is the Agreed Statement of Facts. To summarize:
The National Center for Missing and Exploited Children (“NCMEC”) is an American non-profit corporation that gathers information about missing and sexually exploited children for law enforcement. Their Canadian contact is the National Child Exploitation Coordination Centre (“NCECC”) for files involving Canadian victims. In conjunction with NCMEC and NCEEC, the British Columbia Integrated Child Exploitation Unit (“BC ICE”) works to investigate and assist with crimes against children. In conjunction with NCMEC and BC ICE, the Nanaimo RCMP contacted Mr. Kreibom about alleged possession of child pornography. During the investigation, police spoke directly with Mr. Kreibom in 2015 about the illegality of child pornography. At that time the RCMP submitted charges for approval of Possession of Distribution of child pornography. The Crown counsel office declined to approve the charges against Mr. Kreibom at that time.
In June of 2018, BC ICE received third hand information that Mr. Kreibom admitted on his Facebook profile that he was a “closet pedophile.” Cst. Buxton-Carr of the Nanaimo RCMP attended Mr. Kreibom’s residence and spoke with him on July 4, 2018. Mr. Kreibom admitted that he used to have sexual urges towards children but has moved past this. Mr. Kreibom stated that he learned his lesson from the previous RCMP investigation in 2015 and had not been in the possession of child pornography since then. Mr. Kreibom stated that his safety plan involved not drinking much and not frequenting any place where children may be present.
NCMEC received information that an image of child pornography was uploaded on September 12, 2018. This was traced back to Mr. Kreibom. On March 11, 2019, Cst. Baylin obtained a search warrant to search electronic and data devices belonging to Mr. Kreibom. On March 12, 2019 at 8:06 hours, the Nanaimo RCMP attended at the residence of Mr. Kreibom. The Nanaimo RCMP seized an Acer desktop computer, a LG brand Cellular phone, and multiple data storage devices.
[6] In total, the amount of child pornographic images was estimated at approximately 8,300 from all the devices according to the numbers set forth in the Agreed Statement of Facts.
[7] Mr. Kreibom provided a sworn police statement on the day of his arrest, on March 12, 2019. Mr. Kreibom admitted that having images of children is wrong. He said that the images pop up when he looked for regular pornography. Mr. Kreibom stated that he looked at the images of child pornography “out of curiosity” but would never “use a kid that way.” Mr. Kreibom stated that “if he ever saw an adult doing that to a kid, he would stop it and beat up the adult.” Mr. Kreibom stated he did not know why he holds onto the images and that it is stupid. Mr. Kreibom stated to the police that he is just a “lonely old cross-dressing man.”
[8] The only issue at stake is how long will Mr. Kreibom serve in jail for his offence. Crown and defence counsel are both of the view that a jail term is appropriate but Crown is seeking a one-year jail term and defence is seeking six months jail. Both parties agree that in the circumstances, a lengthy period of probation of 18 months is appropriate following the jail term.
[9] Crown also seeks a DNA order and an order that Mr. Kreibom comply with the Sex Offender Registration Act for a period of 20 years. Defence takes no position on the last two items.
[10] Here Crown has proceeded by way of indictment and s. 163.1(4) of the Criminal Code carries with it a maximum period of jail of 10 years where Crown has proceeded by way of indictment.
[11] Crown and defence have both agreed that the mandatory minimum period of incarceration are not at issue here because of the case law rendering that a nullity.
Crown Counsel’s Position
[12] Crown counsel is seeking a period of incarceration of 12 months. Crown counsel submits that the sentencing range for a first time offender would be a jail term between 6 months and 15 months as per para. 93 of R. v. Swaby. Crown reviewed the case law in detail as well as the aggravating factors and mitigating factors as set out in Tab 2, Exhibit One.
Position of Mr. Kreibom
[13] Mr. Kreibom, through his counsel, also reviewed the case law in detail, in particular Exhibit One, Tab 3 and Exhibit 4. Mr. Kreibom comes before the Court at 63 years of age with no criminal record. Mr. Kreibom in the Pre-Sentence Report and through his counsel report that he had a positive upbringing with no abuse of any kind. Mr. Kreibom is currently single and has one child, an adult daughter living in Alberta.
[14] Mr. Kreibom accepts that a period of incarceration is appropriate. Mr. Kreibom has not disputed any facts as set out by Crown counsel. Mr. Kreibom is remorseful about his behaviour although I note in the Pre-Sentence Report that Mr. Kreibom told the author that he was baited by the police.
[15] Mr. Kreibom admits that he lost his current employment at [omitted for publication] because of these charges. He is not currently looking for work because it would be difficult to find work because of the current offences. Mr. Kreibom was living with his mother for the past 20 years; however due to the current charges, he has had to leave his mother’s home and move into a hotel. In the Pre-Sentence Report on page 4, Mr. Kreibom self-reports that he “… is no longer interested in viewing pornography and realized that he does not need it anymore.”
[16] Mr. Kreibom attended the Upper Island Sex Offender Program. His progress was slow because of his impaired hearing. Although initially he did not realize the full impact of harm upon the children, through the program he did eventually have insight into the harms done to the children and expressed remorse for his behaviour. Mr. Kreibom also transported another member to the program who did not have a driver’s license. Mr. Kreibom, although he stopped attending the program earlier this year for financial reasons, has stayed in touch with other adult males from the program according to the Pre-Sentence Report. Mr. Kreibom is a slow learner and repetition is important for his learning. One theme expressed through the Pre-Sentence Report and through his counsel is that Mr. Kreibom is lonely and struggles to be accepted. Mr. Kreibom began cross-dressing in his late teenage years and has continued to today as a means of gaining acceptance. The letters from his family emphasize his need to gain approval and please everyone else. Mr. Kreibom states that before the charges he had very few friends and now since the charges have been laid, all his friends have shunned him. Mr. Kreibom feels “sick to his stomach” about what he has done.
The Principles of Sentencing in the Criminal Code
[17] Section 718 sets out the purpose and objectives of sentencing 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.
[18] Section 718.01 further requires a court to give primary consideration to the objectives of denunciation and deterrence where the offence involves abuse of children. A conviction for possession of child pornography engages that section and, as such, these are the pre-eminent considerations in determining a fit sentence in this case.
[19] Section 718.1 sets out the fundamental principle that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[20] Section 718.2 requires a sentencing judge to consider any mitigating or aggravating circumstances relating to the offence or the offender as well as to impose a sentence similar to what has previously been imposed on similar offenders for similar offences in similar circumstances.
[21] It is well established that the offence of possession of child pornography is very grave and inflicts harm on children by providing a market for the material (R. v. Swaby, at para. 68). In R. v. Swaby, the court ultimately imposed a 90 day conditional sentence order, primarily because of the personal circumstances of the accused. Here both parties in their submissions have indicated that a conditional sentence order is not being sought or is not appropriate. I find that the cognitive challenges faced by the offender in R. v. Swaby are not present here with Mr. Kreibom.
[22] In R. v. Alexander, 2019 BCCA 100, the BC Court of Appeal declared that the previous mandatory minimum was unconstitutional. At para. 42, the BC Court of Appeal cited para. 22 of R. v. Inksetter, 2018 ONCA 474 which reads as follows:
Child pornography is a pervasive social problem that affects the global community and its children. In R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, the Supreme Court described how possession of child pornography harms children. As Fraser C.J.A. wrote in R. v. Andrukonis, 2012 ABCA 148, at para. 29, “possession of child pornography is itself child sexual abuse.” The children depicted in pornographic images are re-victimized each time the images are viewed. In amassing, viewing, and making available his vast and terrible collection to others, the respondent participated in the abuse of thousands of children.
[23] Likewise, I find here that Mr. Kreibom, although not guilty of distribution of child pornography, has participated in the abuse of thousands of children by the possession of child pornographic images.
[24] In R. v. Alexander, the BC Court of Appeal upheld a jail term of 8 months and 18 months probation. I find the circumstances of Mr. Alexander to be similar to Mr. Kreibom, but not identical. Mr. Alexander was 28 years old at the time of sentence with no criminal record and was in possession of approximately 5,700 images and 400 videos which met the definition of child pornography. The images and videos in R. v. Alexander included images of young toddlers to young teenagers and included penetration, bestiality and bondage. Mr. Kreibom similarly comes before the Court with no criminal record. The collection of Mr. Kreibom is significantly larger at approximately 8,300 images which meet the definition of child pornography but contain no bestiality. Mr. Kreibom is also significantly older, being 63 years of age.
[25] In R. v. C.H., 2020 BCSC 323, the BC Court of Appeal cites with approval R. v. Alexander that the appropriate range for a first time offender with a similar collection to that in R. v. Swaby would be a jail term of 6 to 15 months.
[26] In R. v. C.H., the court finds at para. 33 that there are no exceptional circumstances in the background of C.H. that would necessitate a departure from the sentencing range. There C.H. is sentenced of possession of 6 videos of child pornography and the court finds that the appropriate sentence is 6 months jail with a 24 month period of probation to follow.
[27] In R. v. Tremblay, 2017 BCPC 375, Mr. Tremblay is found with over 30,000 static images of child pornography. Mr. Tremblay was 57 years of age, and had no prior criminal record and has otherwise led a pro-social life according to para. 40 of the decision. Mr. Tremblay did suffer from depression and was on a limited pension. The circumstances of Mr. Tremblay mirror somewhat the situation of Mr. Kreibom who is older, at 63 years of age and also has an extensive collection of disturbing and degrading images of child pornography and has no criminal record. In R. v. Tremblay, at para. 62, the court finds that 18 months jail and a term of probation for 18 months is appropriate. However, the extent of the collection in R. v. Tremblay of over 30,000 images is not present here.
[28] In R. v. Prince, 2018 BCSC 987, Mr. Prince is sentenced on possession and distribution of child pornography. Distribution of child pornography is not before the Court regarding Mr. Kreibom. However, I find paras. 61 and 62 to be compelling here:
[61] Henderson J. went on to note at para. 31 that child pornography captures the sexual abuse of children in electronic image, creates a record of that abuse, and permits the perpetrator to share that abuse with others. Those who wish to possess child pornography encourage the sexual abuse of children and encourage the recording of this abuse by providing an audience or a market for those who produce child pornography. Therefore, simple possession of child pornography must also be treated as a very serious offence. If the court can deter or reduce the market for child pornography, the court may, in turn, effectively reduce the sexual abuse of children.
[62] Furthermore, the offence of making available or distributing child pornography is significantly more serious than simple possession, as the distribution of child pornography creates a broader market and puts more images in circulation. Each possession, viewing, sharing, downloading, or uploading can be seen as a repetition of the initial hands‑on abuse. The more pornographic images that are in circulation and the greater the distribution, the more significant the abuse of the child becomes.
[29] In R. v. Booth, 2019 BCPC 160, at para. 37, the court adopts the five categories of child pornography that sentencing judges may consider from R. v. Missions, 2005 NSCA 82, from the least to most serious depictions :
a. Images depicting erotic posing with no sexual activity;
b. Sexual activity between children, or solo masturbation by a child;
c. Non-penetrative sexual activity between adults and children;
d. Penetrative sexual activity between children and adults; and
e. Sadism of bestiality.
[30] Here I find that Mr. Kreibom is guilty of being in possession of child pornography of all five categories save and except for bestiality. I base that on his guilty plea and the Agreed Statement of Facts in Exhibit One.
[31] In R. v. Hamlin, 2019 BCSC 2266, the court at para. 39 adopts the factors that could be aggravating as expressed in R. v. Kowk, 2007 OJ No. 557:
(a) whether the offender has a criminal record for similar or related offences;
(b) whether there was also production or distribution of the pornography;
(c) the size of the collection;
(d) the nature of the collection, including the age of the children involved and the relative depravity and violence depicted;
(e) the extent to which the offender is seen as a danger to children; and
(f) whether the offender has purchased child pornography.
[32] Here I note that Mr. Kreibom has no prior criminal record, and did not produce or distribute child pornography and there is no evidence that Mr. Kreibom has purchased child pornography. However, the size of the collection and nature of the collection are very aggravating elements here.
[33] In R. v. Hamlin, the court found 1 image and 5 videos that constituted child pornography as well as 100 images of children wearing diapers and a record of a conversation in an online chat room. There the court imposed 8 months jail followed by 3 years of probation. I find that the case of Mr. Kreibom is not similar in the differences in the collection and nature of videos and recordings of the online chatroom. Mr. Hamlin also presented with a previous related criminal conviction for sexually assaulting a young girl who was 9 to 10 years old.
[34] In R. v. Walker, 2017 BCSC 2726, the court found that 90 days intermittent sentence with 18 months probation was appropriate. There Mr. Walker presented with significant health concerns such as a heart condition, sleep apnea, arthritis and was monitored for pancreatic cancer (para. 11). Additionally, at para. 9, the court sets out that there was a significant time from the time of the search warrant in February of 2012 to the charges in October of 2013 to the sentencing in July of 2017. However, I find that none of those personal circumstances mirror the situation of Mr. Kreibom.
Aggravating Facts
[35] I find that the vast collection of approximately 8,300 images of child pornography to be an extremely aggravating and disturbing factor at sentencing.
[36] I find that the nature of the collection to be extremely aggravating. Both parties agreed that the majority of the images were either non-penetrative or penetrative and some images involved potential sadism. These child pornographic images involve the five categories set out in R. v. Missions as adopted by the court in R .v. Booth. These images are very repulsive, and represent a sickening horror and violent acts of sexual abuse of children. To quote Judge McKimm in R. v. Tremblay at para. 61 where the accused was in possession of 455 video images and 1,552 still images:
The collection in question was expansive and contained pictures of the most violent depraved sort. The level of destruction wrought upon thousands of victims represented in those images is almost unimaginable. Section 718.01 mandates that principles of denunciation and deterrence of this very behavior is paramount, and in my view on these facts those objectives cannot be met with anything less than a substantial term in custody.
[37] I find that another aggravating factor is Mr. Kreibom was investigated and spoke with the police in 2015 and again in July of 2018. Mr. Kreibom’s explanation in his police statement on March 12, 2019 that images of child pornography “pop up” when he looks for regular pornography, lacks credibility in my eyes given the large volumes of child pornography images in Mr. Kreibom’s possession.
[38] I find that the age of the victims to be extremely aggravating – some were apparently as young as two or three years of age. There were four examples of images in the Agreed Statement of Facts where a child was described as apparently being under the age of five years old.
Mitigating Facts
[39] Mr. Kreibom entered into a guilty plea and has taken responsibility for the offence.
[40] Mr. Kreibom started attending the Upper Island Sex Offender Program on May 30, 2019 until January 2020.
[41] Mr. Kreibom has shown remorse for his behaviour. Mr. Kreibom personally expressed to the Court that at the time he was looking at child pornography, he was not aware that he was re-offending the children. He has come to learn that looking at child pornography is wrong and illegal. He expressed his apologies to the children. He told the Court that we must keep children safe and everyone safe. The mitigating nature of Mr. Kreibom’s apology is lessened by his remarks to the author of the Pre-Sentence Report that he was baited by the police.
[42] Mr. Kreibom has family support and has provided letters from both of his sisters and his daughter. Once released from incarceration, Mr. Kreibom plans to move to Alberta and live with his daughter. His daughter through her letter is very supportive of this move.
[43] Mr. Kreibom is willing to cooperate with any court ordered conditions. He attended the Upper Island Sex Offender Program and has learned things from there. Mr. Kreibom is agreeable to attend the Forensics Program for Men who have Committed Sexual Offences. Mr. Kreibom is looking forward to attend the Ford Mountain Correction Centre, depending on the classification that determines whether he is eligible to serve his time there and dependent on whether I sentence him to less than two years of custody.
Neutral Factors
[44] I find that the fact that Mr. Kreibom comes before the Court with no criminal record to be a neutral factor upon sentencing. As well, I find that it is neutral that there is nothing exceptional in Mr. Kreibom’s childhood background, which was reported as positive, that would necessitate departing from the sentencing range.
Conclusion
[45] Mr. Kreibom please stand up.
[46] Your sentence is as follows.
[47] There will be a period of jail of 10 months.
[48] I have arrived at that jail term because of the case law specifically R. v. Alexander, and although your circumstances mirror the offender in that situation, I have considered that there are more aggravating factors here such as the very large volume of child pornographic images.
[49] I have come to the conclusion that 10 months is appropriate based on the sentencing range for first time offenders indicated by the BC Court of Appeal in R. v. Swaby at para. 93.
[50] I have placed a great deal of weight on the aggravating factors here which is, as mentioned, the extensive range of this collection, the extremely young age of the victims and the nature of the collection, having met all five categories of child pornography in R. v. Missions, which was adopted by the court in R. v. Booth.
[51] I find it aggravating on sentence that you were investigated for child pornography in 2015 and spoke to the Nanaimo RCMP about it. I also note that you again spoke to the Nanaimo RCMP in July of 2018 and denied having any possession of child pornography.
[52] On the other hand, I take into consideration mitigating circumstances such as your cooperation, your guilty plea, your remorse, the understanding that you have gained at the Upper Island Sex Offender Program, your family support and your willingness to attend and participate in the Forensic Sex Offender Program while incarcerated.
[53] The jail term will be followed by a period of probation for 18 months.
[54] The following conditions will apply:
1. You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation.
2. You must report by telephone to a probation officer at (Nanaimo Probation) within two business days after your release from custody unless you have obtained, before your release from custody, written permission from the probation officer to report elsewhere or within a different time frame. After that, you must report as directed by your officer.
3. You must live at an address approved in advance by your probation officer and provide them with your phone number. You must not change your address or phone number without prior written permission from your officer.
4. You must not go to any public park, public swimming area, community centre or theatre where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school or playground.
5. You must not have any contact, communication directly or indirectly, or be in the presence of any person under the age of 16 years.
6. You must not enter into or continue any dating relationship, or marriage, or common-law relationship with any person who has children under the age of 16 years, or who has the care of or access to children under that age, until you have identified to your probation officer the person with whom you are in, or propose to enter, a relationship and your probation officer has informed that person of your convictions, and this order and your history as described in your criminal record, Pre-Sentence Report, and these Reasons for Judgment.
7. You must not possess or consume alcohol, drugs or any other intoxicating substance, except with a medical prescription.
8. You shall attend, participate in and successfully complete, any intake assessment, counselling or program as directed by your probation officer, which may include but is not limited to the forensic sex offender program.
9. You must not possess or use any device capable of accessing any computer network including the internet, unless:
a. you do not delete the history of the internet use from the device;
b. the device you use retains and displays the history of internet use;
c. you do not install or have any applications or platforms on the device that automatically deletes messages, videos, or photos viewed from the device; permits incognito internet browsing; or allows data to be deleted from the device remotely;
d. you do not access, directly or indirectly, or maintain any personal profile on any social media sites, social networks, internet discussion forums or chat rooms;
e. you do not communicate or attempt to communicate with any person you know to be or who reasonably appears or represents themselves to be under the age of 16 years through any electronic means, including, but not limited to, telephones and computers, unless they are members of your family;
f. upon the request of your probation officer or a peace officer, you give them access to any device in your possession that is capable of accessing the internet or any computer network so they can verify compliance with this condition; and
g. you must not possess any pornographic materials or access any pornographic material by electronic means.
10. You must not possess, directly or indirectly any weapon as defined by the Criminal Code, including:
a. firearms and ammunition;
b. cross-bows, prohibited or restricted weapons or devices, or explosive substances;
c. anything used, designed to be used or intended for use in causing death or injury to any person, or to threaten or intimidate any person;
d. any imitation of all the above, including any compressed air guns or BB/pellet guns; or
e. any related authorizations, licences and registration certificates, and you must not apply for any of these.
[55] Primary DNA Order: Count 2 on Information 85773-1 is a primary designated offence. Pursuant to s. 487.051(1) of the Criminal Code, I authorize the taking of samples of bodily substances from you.
[56] The samples will be taken from you while you are in custody and you must submit to the taking of the samples.
[57] Sex Offender Information Registration Act: Pursuant to s. 490.012 of the Criminal Code, you are required to comply with the Sex Offender Information Registration Act for 20 years.
[58] Pursuant to s. 161 of the Criminal Code, you are prohibited for 20 years commencing on the date you are released from prison from:
1. attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre;
2. seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer, in a capacity that involves a position of trust or authority towards persons under the age of 16;
3. having contact or communicating by any means with a person who is under the age of 16 years;
4. except in the presence of a person approved in writing by the Court, your probation officer, or the person to whom you are reporting under the Sex Offender Information Registration Act. You must carry a copy of the written permission with you.
[59] Pursuant to s.161 of the Criminal Code, you are prohibited for 20 years commencing on the date you are released from prison from using the Internet or other digital network, except you may access the internet but not access any illegal content, communicate with persons under the age of 16 years other than immediate family members, or access any social media.
[60] Pursuant to s. 164(4), I am satisfied on the balance of probabilities that the computer, cell phone and other data storage devices seized pursuant to s. 164(1) is child pornography, and I order it forfeited to Her Majesty in Right of the Province of British Columbia to be disposed of at the direction of the Attorney General, except for any images of your mother, Ms. Kreibom.
[61] With respect to the victim surcharge, given that this information was sworn on March 12, 2019, no victim surcharge is due.
[62] I am ordering that a copy of my written decision be provided to the appropriate correctional authority.
_______________________________
The Honourable Judge K. Whonnock
Provincial Court of British Columbia