DATE: 20000713 DOCKET: C33213 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Applicant/Appellant) v. STEPHAN YAWORSKI (Respondent) BEFORE: DOHERTY, ABELLA and MOLDAVER JJ.A. COUNSEL: John McInnes for the appellant Dean Paquette for the respondent HEARD: July 11, 2000 On appeal from the sentence imposed by Herold J. on October 27, 1999. ENDORSEMENT [1] This case involved the widespread distribution over the internet of child pornography which it is agreed was of the vilest sort. In the course of this distribution, the respondent acquired further child pornography which then became available for distribution to others through his system. Without trying to describe the technicalities, the respondents computer equipment was such that once it was turned on, anyone could access the pornography. The respondent was fully aware of this unlimited access made available by him to, in effect, anyone in the world who wanted the material. [2] The respondent is not a pedophile and there was no pecuniary gain involved here. It is not clear why he did what he did. It would certainly appear that he had no appreciation of the harm involved in the distribution of child pornography, although by the time of sentencing it seemed that perhaps some appreciation was developing. [3] The respondent was a 20 year-old first offender. He plead guilty to the charge, but tried to limit his culpability to the bare minimum. He went so far as to falsely blame others for most of the distribution. [4] The trial judge recognized that this was an extremely serious offence which would normally call for a sentence of 12 to 15 months. He was, however, moved to impose a sentence of 90 days and to delay the commencement of that sentence because of the respondents intelligence, his academic achievements and his desire to continue his education. The trial judge said: My reasons for imposing a sentence which in other circumstances might be considered by some and indeed even by me to be completely inappropriate as being on the low end of the parameters of custodial sentence are Mr. Yaworskis youthfulness, his involvement as a first offender, neither of which would generate necessarily a sentence at this low end, but also his obvious intelligence and promise and the fact that the sentence which I intend to impose will on the one hand send a message that incarceration is inevitable but on the other hand that in Mr. Yaworskis case at least it will not hopefully prevent him other than delaying him by one semester from pursuing his degree and his post- graduate degrees. It is that single factor alone which in my view militates in favour of the sentence which I have suggested I would impose. [Emphasis added.] [5] We received fresh evidence tendered by the Crown and the respondents reply affidavit to that evidence. This evidence related to the appellants academic record and his academic standing in the university as at the time of sentence. Those issues are now the subject of criminal charges and we do not intend to go into them in any detail. Nor do we intend to make any findings of fact which would in any way be binding on other courts. Suffice it to say that the trial judge was materially misled (intentionally or otherwise) as to the respondents academic achievements and his standing at the university at the time of sentence. The respondent was not enrolled in university at the time of sentence. He had also acquired only a handful of credits despite having been at the university for parts of four years. [6] Taking into consideration the facts as we now understand them to be, we see no basis for departing from the range of sentence identified by the trial judge. Given that the respondent has served the sentence imposed at trial, is engaged and his wife to be is expecting a child, we would impose a sentence of 12 months. The time already served by the respondent will of course be taken into consideration in calculating the amount of time he must still serve. [7] The Crown application for leave to appeal is granted, the appeal is allowed and the sentence is varied to one of 12 months. The probation order made by the trial judge will take effect upon the release of the respondent. [8] A warrant for the arrest of the respondent may issue if requested by the Crown. Doherty J.A. R.S. Abella J.A. M.J. Moldaver J.A. |