R. v. Petne, 2020 BCPC 200 (CanLII)
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2020 BCPC 200 |
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Date: |
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File No: |
172611‑4‑C |
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Registry: |
Victoria |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
DONALD KENNETH PETNE
REASONS FOR SENTENCE
OF THE
HONOURABLE JUDGE GOUGE
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D. Sissons |
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Counsel for the Defendant: |
N. Brooks |
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Victoria, B.C. |
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Dates of Hearing: |
February 24, 2020 and September 21, 2020 |
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Date of Judgment: |
October 15, 2020 |
The Issue
[1] Mr. Petne has entered a guilty plea to a single count of accessing child pornography, contrary to s. 163.1(4.1) of the Criminal Code. Mr. Sissons, for the Crown, seeks a one-year jail sentence. Mr. Brooks, for Mr. Petne, submits that a conditional sentence for a term of two years less a day would be more appropriate. Both counsel agree that three years’ probation should follow, and are in substantial agreement as to the terms of probation.
The Offence
[2] Mr. Petne admits the following facts.
[3] On January 17, 2017, the RCMP received a complaint that an internet user with a particular IP address had uploaded two child pornography images to his computer. The RCMP obtained a production order which enabled them to ascertain that Mr. Petne was the registered holder of that IP address. The RCMP then obtained and executed a search warrant for Mr. Petne’s home, where they found a computer connected to the internet. They found three images stored on Mr. Petne’s cell phone:
a. a photograph of three naked girls, age ten to twelve, standing in a room with two of the girls’ vaginas and breasts exposed;
b. a photograph of a girl, age two to three, lying on a bed with her vagina and anal region exposed, with an adult male using his fingers to spread the child’s labia open;
c. a photograph of two girls, age twelve to fourteen, performing fellatio on an adult male.
[4] Mr. Petne accessed the first two images on August 14, 2017, and accessed the third image on September 18, 2017. He used the cell phone provided to him by his employer to access the internet for that purpose.
The Offender
[5] Mr. Petne is fifty-six years old. He was adopted at an early age. His stepfather was physically and emotionally abusive. He left school during grade eleven, and has been steadily employed as a tow-truck driver all of his adult life. His employer and his co-workers speak highly of him.
[6] Mr. Petne suffers from Type 1 diabetes and wears an insulin pump. One of the sequelae of that condition is peripheral neuropathy in his feet. He also suffers from anxiety and depression.
[7] Mr. Petne’s criminal record consists of a single conviction for each of: (i) importing or distributing child pornography; and (ii) counselling another person to commit an offence. Mr. Petne entered guilty pleas to both offences on November 25, 2013. Each offence was committed during a series of on-line communications in March to April 2012 between Mr. Petne and an officer of the American Federal Bureau of Investigation, who was posing as the single mother of an eleven year old girl. During those communications, Mr. Petne: (i) sent to the FBI officer a total of nine child pornography images; (ii) sent the officer instructions about how to provide intoxicants to the officer’s (fictional) daughter and how to sexually molest the daughter while intoxicated; (iii) asked the FBI officer to send him nude photographs of her daughter; and (iv) expressed an interest in meeting the FBI officer and her daughter for “family sex”. For those offences, he received a jail sentence of two years less a day and a term of three years’ probation to follow. His probation terms included the following:
You are not to possess, nor have access to, or use a computer in your residence for any purpose.
You shall not access the internet at any time at any place, except at a place of employment, while in the course of such employment and solely for employment related purposes.
The offence now before the court was committed during the term of Mr. Petne’s probation.
[8] On September 30, 2013, while awaiting sentencing for those offences, Mr. Petne was interviewed by Dr. Darcangelo, a psychiatrist at the outpatient clinic of the Forensic Psychiatric Services Commission. Dr. Darcangelo prepared a report for the consideration of the court at the sentencing hearing. She concluded that Mr. Petne’s risk of re-offending was in the moderate range.
[9] Mr. Petne was interviewed again by Dr. Darcangelo on December 9, 2019, after entering his guilty pleas in this case. At that interview, Mr Petne said:
I’ll lose a lot of ground if I have to go back [to prison]. … I’m finally in a good place in my life … I’m finally letting things out about my childhood … it was screwed up. I buried it for a long time.
After that interview, Dr. Darcangelo continued to assess his risk of re-offending as in the moderate range.
[10] In the interval between Dr. Darcangelo’s first and second interviews, Mr. Petne completed the Forensic Sex Offender Program while in custody, and attended the Sex Offender Management Program while on probation after his release. He has continued to attend the Sex Offender Management Program after the end of his probation period. His counsellor in the Sex Offender Management Program informed Dr. Darcangelo that Mr. Petne had been a constructive participant in the program and that “… he is in a much better place than when I first met him. … He knows that what he did was wrong …”. In a letter dated February 24, 2020, the counsellor said:
It is my belief that [Mr. Petne] continues to benefit from attending his weekly trauma therapy sessions. I see him as responsible and conscientious in the choices he is making, and I see him progressing in a good and positive manner. … He is mortified about what he did in the past and I believe this is what motivates him to work hard each day to be a better man.
Analysis
[11] Except in “exceptional cases”, a jail sentence is appropriate for this offence, even for a first-time offender: R. v. Swaby [2018] BCJ No. 3603; 2018 BCCA 416 at para. 67. The range of sentences for first-time offenders is four months to two years: R. v. Alexander [2019] BCJ No. 462; 2019 BCCA 100 at paras. 37 to 38.
[12] Mr. Brooks submits that this is an “exceptional case” because: (i) Mr. Petne has been out of custody and subject to strict bail conditions since his arrest (a period of approximately three years), and it is not alleged that he has re-offended or failed to comply with any of his bail conditions; (ii) Mr. Petne has voluntarily participated in rehabilitation programs during that period; and (iii) Mr. Petne appears to be progressing well in those programs.
[13] In my view, Mr. Brooks’ submission fails to give sufficient weight to the objectives of denunciation and deterrence in relation to child pornography offences. As noted in R v. Watson [2018] BCJ No.3047; 2018 BCCA 329 at para. 23, denunciation and deterrence are the “… primary principles of sentencing in cases of child pornography …”. The reasons for that were articulated by the Alberta Court of Appeal in R. v. Hammond [2009] AJ No.1355; 2009 ABCA 415 at paras. 9 to 11:
The Crown has provided us with an extensive analysis of the social policy behind the package of relevant provisions of the Criminal Code, noting how, despite the fact that virtually the entire world has set its face against this form of gross abuse of children, it remains a virulent pestilence. It is sustained in many places by the conduct of people just like the respondent. If there were no consumers of this material, there would not be producers: see e.g. R. v. Stroempl (1995), 1995 CanLII 2283 (ON CA), 105 C.C.C. (3d) 187, [1995] O.J. No.2772 (QL) at para. 8; Hill v. The State of Western Australia 2009 WASCA 4 at para. 19; R. v. Saddler, [2009] NSWCCA 83 at paras. 19 to 20 citing Stroempl. See also R. v. Sharpe, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3 (QL), 2001 SCC 2 at para. 158:
The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code, is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children. It preys on preexisting inequalities.
Accessing child pornography is not a victimless crime. The trial judge distinguished case authorities involving the production or distribution of child pornography. This is not clear error, but the inherently serious and harmful nature of the present offence is not removed by the absence of such factors. The existence of a market for this material is necessarily an inducement to the production and distribution of child pornography by others.
As pointed out by Fraser CJA for this Court in R. v. B.(T.L.) (2007), 218 C.C.C. (3d) 11, [2007] A.J. No. 169 (QL), 2007 ABCA 61, the use of the Internet for accessing child pornography constitutes "profound and present danger to children around the world": para. 27. The offence of access to child pornography is an essential ingredient to the actual sexual exploitation of children everywhere. It is a crime committed specifically by choice. No aspect of it is tolerable. It is repugnant to all civilized people.
I refer also to R. v. John 2017 ONSC 810 (CanLII), [2017] OJ No. 651; 2011 ONSC 810 at para. 17:
The jurisprudence is replete with statements about the harms caused by child pornography. More than fifteen years ago in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, McLachlin J., as she then was, set out the harms caused by the possession of child pornography at paras. 86-94. She accepted that the evidence establishes several connections between the possession of child pornography and harm to children: (1) child pornography promotes cognitive distortions; (2) it fuels fantasies that incite offenders to offend; (3) it is used for grooming and seducing victims; and (4) children are abused in the production of child pornography involving real children. She then concluded:
Possession of child pornography increases the risk of child abuse. It introduces risk, moreover, that cannot be entirely targeted by laws prohibiting the manufacture, publication and distribution of child pornography. Laws against publication and distribution of child pornography cannot catch the private viewing of child pornography, yet private viewing may induce attitudes and arousals that increase the risk of offence. Nor do such laws catch the use of pornography to groom and seduce children. Only by extending the law to private possession can these harms be squarely attacked...
To that I would add the following observations. The existence of internet chat rooms, like the one used by Mr. Petne when he committed his first offences, and child pornography websites, like the one used by Mr. Petne in relation to the present offence, tend to legitimize child pornography in the minds of those who access it. They encourage consumers of child pornography to consider themselves members of a legitimate community with common interests, and so to self-justify their behaviour. Jail sentences in child pornography cases are necessary to reiterate society’s unequivocal condemnation of such activities and our resolve to put a stop to them. The offender and the general public must understand clearly that no aspect of the crime is tolerable, and that such crimes are repugnant to all civilized people.
[14] In any child pornography case, it is important to have regard to the nature of the images themselves. Some are more egregious than others. For this purpose, they may be divided into the following categories, in ascending order of gravity (see R. v. Missions 2005 NSCA 82 (CanLII), [2005] NSJ No. 177; 2005 NSCA 82 at para. 14):
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 or bestiality.
The images viewed by Mr. Petne include one image in category “a” and one in category “c”. I would place the third image (of female children performing fellatio on an adult male) in category “d”.
[15] The mitigating factors in Mr. Petne’s case are:
a. his guilty plea;
b. the fact that he has been subject to bail conditions for three years, and it is not alleged that he has been guilty of any misconduct during that period;
c. his participation in rehabilitation programs while on bail;
d. the possibility that his offending behaviour was, in whole or in part, a result of his unfortunate childhood; and
e. a significant number of personal reference letters, tendered in evidence at the sentencing hearing.
While those are all commendable factors, I do not regard them as “exceptional”, taken individually or collectively. I do not think that they outweigh the imperatives of denunciation and deterrence in child pornography cases.
[16] The aggravating factors are:
a. Mr. Petne’s previous conviction for a similar, although more serious, offence;
b. the fact that Mr. Petne committed the offence while subject to a probation order which forbade him to access the internet except for work purposes; and
c. the nature of the images themselves.
Disposition
[17] I sentence Mr. Petne to a term of one year’s imprisonment, followed by a term of three years’ probation, on the following conditions. Mr. Petne must:
a. keep the peace and be of good behaviour;
b. attend court when required to do so by the court;
c. report in person to a probation officer within seventy-two hours of his release from custody, and report thereafter as and when directed by his probation officer;
d. reside at a place approved by his probation officer and not change that place of residence without the prior permission of his probation officer;
e. not attend at any public park, school ground, swimming area or community centre where children may reasonably be expected to be present, except: (i) as required to perform the duties of his employment; or (ii) with the written permission of his probation officer and in accordance with such conditions as his probation officer may impose. If he has that permission, he must carry it with him and show it to any peace officer who asks to see it;
f. not have any contact or communication with any person whom he knows to be, or who reasonably appears to be, under the age of eighteen years, except: (i) incidental contact in a public place in which other adults are present; or (ii) with the written permission of his probation officer and in accordance with such conditions as his probation officer may impose. If he has that permission, he must carry it with him and show it to any peace officer who asks to see it;
g. attend, participate in and successfully complete any counselling program to which he is referred by his probation officer;
h. not use or possess any device capable of accessing the internet, except in the course of his employment and as required for the purposes of his employment; and
i. not access, view or possess any pornography of any kind.
[18] Mr. Petne must provide to the prison staff a sample of his bodily substances for the purpose of obtaining a DNA sample, pursuant to s. 487.051 of the Criminal Code.
[19] Mr. Petne will be required to comply with the provisions of the Sex Offender Information Registration Act SC 2004, c. 10 for life.
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The Honourable Judge T. Gouge
Provincial Court of British Columbia