Regina v. Stroempl


C21877

COURT OF APPEAL FOR ONTARIO

MORDEN A.C.J.O., GALLIGAN and DOHERTY JJ.A.

BETWEEN:
)
HER MAJESTY THE QUEEN )Gary Trotter
)for the respondent
Respondent )
)
AND: )
)
GEORGE STROEMPL )Murray H. Shore
)for the appellant
Appellant )
)
)Heard: September 21, 1995
)


Cases cited:

R. v. Jewell and Gramlick, July 21, 1995
R. v. Paintings, Drawings, and Photographic Slides, April 20, 1995


MORDEN A.C.J.O. (ORALLY):

In these proceedings by indictment the appellant was convicted on his plea of guilty of possession of child pornography under s.163.1(4) of the Criminal Code. He appeals from the sentence of 18 months imprisonment imposed by the trial judge.

The basic facts are set forth in the trial judge's reasons for sentence as follows:

On October the 20th, 1994 the accused was arrested and there was a search warrant that was executed at his house in Barrie. Exhibit One was a typed list that the investigating officer prepared of the items that were seized. In general terms, there were 12 magazines of various titles, there was more than one of those filed, which I will refer to in a moment. And they are all clearly by their titles of a similar topic to the ones filed.

There were as I counted over 300 photographs. Some in photo albums, some separate. Some appeared to be photographs of magazine pictures and some which were photographs of people. There were 16 drawings, many of which were filed. There were ten, eight millimetre video cassettes, one of which was played in court which lasted about nine minutes. There was one VHS video cassette and miscellaneous other things.

... Exhibit Two was the letter ... that the accused wrote in response to the advertisement that the undercover police officers put in a magazine in the United States.

Exhibit Three is a small pamphlet type magazine, clearly pornographic showing a child whose apparent age is under six years, engaged with a dachshund dog in various poses which would be sexual if the dog was a person, is the best way I can put it.

Exhibit Four is something called, "School Girls and Boys, new action, 64 pages true pedophilia", which is an accurate description. And the children in there certainly are not more than ten. And the acts are all those the officer described, various sexual position, fellatio, children and children, children to adults, you do not see the faces of the adults usually but you do the faces of the children.

Exhibit Five is a photocopy of something called a person to person directory, which has a number of articles in it and also some photocopies of what were apparently photographs, are all clearly pornographic and involve children. The photograph is a girl who would not be over 15 no matter how one viewed it.

Exhibit Six is a number of drawings and sketches, by someone who is moderately talented. They are not stick figures by any means of the imagination and some of them were even coloured in, for example. Colour of hair, bodies have been flesh coloured. They all involve scenes of digital penetration, or a penis penetrating a girl. And in different sketches all which contain purported words of the characters of the girl and in one case a grandpa and another case - in fact all of these are grandpa. Clearly pornographic materials.

More of those attached to that exhibit are sketches that are not quite as well done in the terms of the people depicted are a little more crudely drawn, not the same artist, perhaps. They have typed captions: the girl talking about daddy and scenes of intercourse with the girl and presumably daddy. And in one case the girl is supposedly dreaming and the caption talks about, "this is fun she is visiting Uncle Billy" and it shows Uncle Billy having her fondle him. Clearly pornographic materials.

There are photographs which are simply photographs of girls clearly under the age of 18, considerably younger, exposing their genitals for the benefit of the photographer. And in one case, Exhibit 12, the girl has apparently inserted a bottle in her vagina. That is, I am told, a representative of the materials that were seized but even if it is not, he is only being sentenced on these materials. Clearly under Section 163.1 and clearly a fairly substantial collection.

It was clear to the trial judge that the appellant was not engaged in the production or distribution of child pornography. With respect to distribution, the appellant had indicated that he wished to exchange materials with other like-minded persons. The trial judge found that this was ``not so much in the sense of promoting the use of the material as getting more for himself.''

With respect to the appellant, the following facts are relevant. The appellant was 67 years of age at the time of the offence and is now 68. He has no prior criminal record. He worked for the Ministry of Natural Resources for 34 years before his retirement in 1992. He was married for over 20 years until his divorce in 1979. There are two children of the marriage. Favourable character references, written by responsible persons, were filed on the appellant's behalf.

The appellant was referred by defence counsel to the Juniper Psychological Services & Publications, Inc. and was assessed to determine whether he is a danger to the public. A report dated January 31, 1995 was prepared by R. Langevin, Ph.D., C.Psych, Director of the Juniper Psychological Services & Publications Inc. and an associate professor of psychiatry at the University of Toronto. He concluded his report as follows:

Mr. Stroempl presented a pro-social, non-criminal, and non-violent history. He does not abuse alcohol or street drugs. He has been gainfully employed throughout his adult life.

Mr. Stroempl reported a conventional sexual history and he denied ever engaging in sexually deviant activity. He acknowledged the development of a recent interest in nudism which includes a curiosity about female minors. He expressed his interest in a naive way. He denied having pedophilic interest. Phallometric testing was inconclusive.

The results overall indicate that Mr. Stroempl is not a violent or aggressive person. The major signs of dangerous sexuality are absent and, in this sense, he presents as a low risk for criminal sexual behavior. However, his mental confusion and neuropsychological disorganization place him at risk for inappropriate and out of character behavior in general. Treatment of his condition may reduce this risk and he should be followed up after further medical investigation.

The child pornography provisions of the Criminal Code came into force on August 1, 1993. Parliament has shown its concern in relation to the possession aspect of the evil of child pornography by providing for a maximum sentence of five years imprisonment for simple possession of child pornography. In R. v. Jewell and Gramlick, July 21, 1995, a case concerned primarily with the more serious offence of producing child pornography, Mr. Justice Finlayson, for this court, made the following observations on the general social malady of child pornography which are apposite to the present case:
The conduct underlying these convictions discloses a subculture that is unsettling and repugnant. These appeals confront the court with the pressing issue of how to deal with offenders such as the appellants who prey on young persons, boys in this case, for no other purpose than their own sexual gratification. The court must be responsive to emerging concerns that pornography, particularly child pornography, has become an area of criminality that increasingly menaces our young people and threatens our values as a society. Because pornography now can be so easily prepared and disseminated through relatively inexpensive means, such as the hand-held video camera used in the case under appeal, it has emerged as a very real problem in our society.
Mr. Justice Finlayson then quoted the following from the reasons of Mr. Justice McCombs of the Ontario Court (General Division) in R. v. Paintings, Drawings, and Photographic Slides, April 20, 1995:
The evil of child pornography lies not only in the fact that actual children are often used in its production, but also in the use to which it is put. Although behavioral scientists disagree about the reliability of scientific studies, there is general agreement among clinicians that some paedophiles use child pornography in ways that put children at risk. It is used to "reinforce cognitive distortions" (by rationalizing pedophilia as a normal sexual preference); to fuel their sexual fantasies (for example, through masturbation); and to "groom" children, by showing it to them in order to promote discussion of sexual matters and thereby persuade them that such activity is normal.
The possession of child pornography is a very important contributing element in the general problem of child pornography. In a very real sense possessors such as the appellant instigate the production and distribution of child pornography - and the production of child pornography, in turn, frequently involves direct child abuse in one form or another. The trial judge was right in his observation that if the courts, through the imposition of appropriate sanction, stifle the activities of prospective purchasers and collectors of child pornography, this may go some distance to smother the market for child pornography altogether. In turn, this would substantially reduce the motivation to produce child pornography in the first place.

Having regard to the nature of this offence, the trial judge was right in giving primacy to the principles of general deterrence and denunciation. As already observed, the appellant's collection of child pornography was substantial and varied. Further, the trial judge found that the appellant was not as naive respecting this activity as he attempted to portray himself. On the other hand, the appellant is a 67 year old man who has hitherto led an unblemished life.

In all of the circumstances, we think that the important objectives of general deterrence and denunciation would be satisfied by a shorter period of imprisonment. In our view, a sentence of 10 months imprisonment would not depreciate the gravity of the offence and would be more appropriate.

For these reasons, leave to appeal is granted, the appeal is allowed, and the sentence is varied to 10 months imprisonment.

(signed)
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Morden, A.C.J.O
Galligan, J.A.
Doherty, J.A.