R. v. H.T., (2010) 250 Man.R.(2d) 86 (PC)

• Judge: Smith, P.C.J.
• Court: Provincial Court of Manitoba (Canada)
• Case Date: February 12, 2010
• Jurisdiction: Manitoba
• Citations: (2010), 250 Man.R.(2d) 86 (PC);2010 MBPC 8

R. v. H.T. (2010), 250 Man.R.(2d) 86 (PC)

MLB headnote and full text

Temp. Cite: [2010] Man.R.(2d) TBEd. MR.018

Her Majesty The Queen v. H.T. (accused)

(2010 MBPC 8)

Indexed As: R. v. H.T.

Manitoba Provincial Court

Winnipeg Centre

Smith, P.C.J.

February 12, 2010.

Summary:

The 72 year old accused pled guilty to possession and distribution of child pornography (both summary conviction offences).

The Manitoba Provincial Court sentenced the accused to 90 days' jail and a $4,000 fine for the distribution offence and 45 days' jail (concurrent) plus three years' supervised probation for the possession charge. The accused was allowed to serve the sentence intermittently. The court made a DNA sample order and imposed the mandatory order that the accused be registered as a sex offender for 10 years.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 5664

Punishments (sentence) - Imprisonment and parole - Intermittent imprisonment - The 72 year old accused pled guilty to possession (1,200 images) and distribution of child pornography (both summary conviction offences) - The accused engaged in active and passive distribution - Images possessed and distributed included infants and toddlers and violent assaults - Most focussed on pubescent and pre-pubescent girls but some included toddlers and infants who were being subjected to "shocking and vile acts of abuse" - Offences spanned a significant period of time - No prior record - He was extremely co-operative with police - Limited education - Steadily employed - Modest means - Lost his marriage and most of his family due to charges - He suffered depression, loneliness and despair - Had strictly followed bail conditions without incident - Suffered from sex addiction - Not a pedophile - Low risk to reoffend - Had immersed himself in Sex Addicts Anonymous - Had his addiction under control and now helped other addicts - He was deeply remorseful and ashamed - A lengthy delay in the proceedings caused significant anxiety and stress - The Manitoba Provincial Court sentenced the accused to 90 days' jail and a $4,000 fine for the distribution offence and 45 days' jail (concurrent) plus three years' supervised probation for the possession charge - The accused was allowed to serve the sentence intermittently - Loss of his employment could cause a relapse - The court made a DNA sample order and imposed the mandatory order that the accused be registered as a sex offender for 10 years.

Criminal Law - Topic 5664

Punishments (sentence) - Imprisonment and parole - Intermittent imprisonment - The 72 year old accused pled guilty to possession and distribution of child pornography (both summary conviction offences) - The accused requested a 90 day sentence (the minimum jail sentence) on the distribution charge, with 14 days concurrent on the possession charge (the minimum jail sentence), with permission to serve the sentence intermittently so that he could retain his employment - Alternatively, he requested that the court sentence him to 90 days' intermittent on the distribution charge, and adjourn the sentencing on the possession charge until he had completed the intermittent sentence on the distribution charge, in order that a second intermittent sentence could be imposed on the possession charge - The reason for the alternate submission was the requirement in the Criminal Code that an intermittent sentence not exceed 90 days - The The Manitoba Provincial Court referred to a case which held that the consecutive intermittent sentences which exceeded 90 days in total were not permitted - The court rejected the alternate submission - It had concerns about doing indirectly what the Code precluded it doing directly - Moreover, sentencing on these offences had been delayed far too long already and the facts of the two offences were intertwined - Without deciding that this alternate submission would never be an appropriate course of action, the court found that it was not appropriate in this case - See paragraphs 9 to 12.

Criminal Law - Topic 5874

Sentence - Particular offences - Manufacture, distribution or possession of obscene matter (incl. child pornography) - [See first Criminal Law - Topic 5664 ].

Cases Noticed:

R. v. Weber (R.) (2003), 175 O.A.C. 138; 2003 CanLII 28579 (C.A.), refd to. [para. 4].

R. v. Peacock, 2009 MBPC 50, refd to. [para. 6].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 150 C.C.C.(3d) 321, refd to. [paras. 7, 33].

R. v. Drost (L.B.) (1996), 172 N.B.R.(2d) 67; 439 A.P.R. 67; 1996 CanLII 4781 (C.A.), refd to. [para. 11].

R. v. Lequiere (R.J.), [2006] B.C.T.C. 668; 2006 BCSC 668, refd to. [para. 17].

R. v. Bell (S.J.) (2008), 233 Man.R.(2d) 12; 2008 MBQB 117, refd to. [para. 17].

R. v. Sanatkar (1981), 64 C.C.C.(2d) 325 (Ont. C.A.), refd to. [para. 18].

R. v. Jackson (P.) (1999), 127 O.A.C. 272 (C.A.), refd to. [para. 18].

R. v. Solowan (K.S.T.) (2008), 381 N.R. 191; 261 B.C.A.C. 27; 440 W.A.C. 27; 2008 SCC 62, refd to. [para. 22].

R. v. Ng (P.F.), [2006] B.C.T.C. 321 (S.C.), refd to. [para. 27].

R. v. Mallett (D.), [2005] O.T.C. 792 (Sup. Ct.), refd to. [para. 36].

R. v. Elder (L.G.) (2002), 170 Man.R.(2d) 14; 285 W.A.C. 14; 2002 MBCA 133, refd to. [para. 94].

R. v. Hardy (R.E.) (2002), 168 Man.R.(2d) 177 (Prov. Ct.), refd to. [para. 95].

R. v. Currie (M.A.) (2003), 188 Man.R.(2d) 7 (Prov. Ct.), refd to. [para. 96].

R. v. Batshaw (L.) (2004), 187 Man.R.(2d) 177; 330 W.A.C. 177; 2004 MBCA 117, refd to. [para. 97].

R. v. Kozun (T.B.) (2007), 220 Man.R.(2d) 77; 407 W.A.C. 77; 2007 MBCA 101, affing. (2007), 211 Man.R.(2d) 213; 2007 MBPC 7, refd to. [para. 98].

R. v. Dolovich (G.P.) (2009), 239 Man.R.(2d) 27; 2009 MBPC 17, refd to. [para. 100].

R. v. Proulx (D.) (2009), 237 Man.R.(2d) 313; 2009 MBPC 13, refd to. [para. 103].

R. v. Lehman, 2007 ONCJ 18, refd to. [para. 110].

R. v. Bennett, 2006 ONCJ 3, refd to. [para. 110].

R. v. Peterson (R.W.) (2006), 402 A.R. 372; 2006 CarswellAlta 872 (Prov. Ct.), refd to. [para. 110].

R. v. Sutherland, 2006 CarswellBC 804 (Prov. Ct.), refd to. [para. 110].

R. v. Hassell (M.), [2006] A.R. Uned. 850; 2006 CarswellAlta 1787 (Prov. Ct.), refd to. [para. 110].

R. v. Jakobsen (J.P.), [2006] B.C.T.C. Uned. 682; 2006 CarswellBC 2196 (S.C.), refd to. [para. 110].

R. v. Lentzen (J.) (2006), 414 A.R. 293; 2006 CarswellAlta 1830 (Prov. Ct.), refd to. [para. 110].

R. v. McCrindle (J.A.) (2006), 393 A.R. 89; 2006 CarswellAlta 467 (Prov. Ct.), refd to. [para. 110].

R. v. Taylor, [2001] M.J. No. 590 (Prov. Ct.), refd to. [para. 123].

R. v. Arbuthnot (S.M.) (2009), 245 Man.R.(2d) 244; 466 W.A.C. 244; 2009 MBCA 106, refd to. [para. 128].

R. v. Munilla and Santorelli (1986), 38 Man.R.(2d) 79 (C.A.), refd to. [para. 129].

Authors and Works Noticed:

Ruby, Clayton C., Davies, Breese, Doucette, Delmar, Loosemore, Sarah, Orkin, Jessica, and Wawzonek, Caroline, Sentencing (7th Ed. 2008), paras. 14.9, 14.10, 14.12 [para. 128].

Counsel:

T. McComb, for the Crown;

M. Glazer, for the accused.

This sentencing was heard by Smith, P.C.J., of the Manitoba Provincial Court, Winnipeg Centre, who delivered the following judgment on February 12, 2010.