Jail isn’t necessary for a Penticton man caught with nearly 27,000 images and videos of child pornography, his lawyer argued Tuesday in provincial court.
“With the mandatory minimums gone, the courts are now starting to consider non-custodial sentences, much like they did pre-2005,” defence counsel James Pennington argued at a sentencing hearing for 49-year-old Kenneth Daniel Large.
A 90-day mandatory minimum jail sentence for a summary conviction for possession of child pornography, the sole charge to which Large pleaded guilty at an earlier appearance, was declared unconstitutional by the B.C. Court of Appeal in 2018.
The first mandatory minimum sentence for possession of child pornography was set at 14 days by the Liberal government in 2005. It was bumped up to 90 days by the Conservatives in 2012, and then to six months in 2015.
Pennington noted his client’s lack of a prior criminal record, early guilty plea, initiation of counselling, an assessment that he’s a low risk to reoffend, and collateral consequences like publicity in suggesting a two-year sentence of house arrest.
“In my submission, it would not be jeopardizing the community if you imposed a conditional sentence,” said Pennington.
Crown counsel Ann Lerchs noted in reply the case law Pennington cited also shows conditional sentences are only permitted in “exceptional circumstances.”
“In Mr. Large’s case, we have some remorse, some counselling and a guilty plea. All of those are mitigating factors. They’re not such that they amount to exceptional circumstances that support a conditional sentence order,” said Lerchs.
Noting the size and severity of Large’s collection, Lerchs argued for a two-year jail sentence to be followed by three years’ probation.
Given the chance to address the court himself, Large, who’s a chef by trade, said he was sorry for being a link in the chain that drives child pornography.
“I’d like to apologize to the community and to the victims of sexual violence. I’d like to apologize to my family, my friends and to the court, and I’d like to show I’m responsible and I will not reoffend – ever,” said Large.
“I beg for mercy and to be allowed to remain in the community with my family.”
Judge Greg Koturbash will deliver his sentence at a later date yet to be determined.
Lerchs told the court Large’s arrest was triggered by a tip to RCMP in August 2018 from blog website Tumblr, which reported one of its users had uploaded child porn.
The user account was eventually tracked to Penticton, and police in October 2018 executed a search warrant at Large’s home. Officers confiscated computers, tablets, discs, USB sticks and other electronic equipment.
All told, the devices contained a total of 26,366 images and 424 videos classified as child porn, said Lerchs, who noted some of the materials depicted boys and girls as young as six, some of them engaged in sex acts.
“Mr. Large reported that he first encountered child pornography while viewing adult pornography,” Lerchs said, reading from a pre-sentencing report based on an interview with Large.
“He stated that over time there was a gradual progression, a shift in his interest and he became more compelled to deliberately search for child pornography. He indicates it became a compulsion for him and spent three or four hours per day spent looking at child pornography.”