SELECTED CASE LAW
In 2019 SKCA 17, Mr. R was convicted of possessing, accessing and making child pornography. He was acquitted of sexual assault and sexually touching a child.
Mr. R admitted to his Bible group he was attracted to children. He hugged a female child at the group and groped her buttocks. The girl’s father reported Mr. R to the police. Upon search-ing his home, the police found images of child pornography on Mr. R’s computer, including images of him masturbating to images of videos of child abuse, a photoshopped image that made it appear that he was sexually touching a young girl, and a picture of him masturbating while looking at an image of a young girl in a dress. Mr. R admitted to having always been attracted to very young girls. He had been convicted of possessing and accessing child pornography in the past.
The court found that Mr. R made child pornography when he edited or filmed himself into the images, because he created new images of child pornography by doing so and the images were made for a sexual purpose. Mr. R was designated as a long-term offender and was sentenced to 6 years in jail. Additional orders included a lifetime registration as a sex offender, a DNA order, and limitations on being near young people. The private use defence was not available to him, due to the young age of the girls in the images.
He appealed the conviction and sentence. He argued his right to be free of unreasonable search and seizure was breached, challenged the character evidence brought against him, challenged the trial judge’s interpretation of making child pornography and argued that his trial took too long.
At the appeal court, first, the appeal judge found that the search was done with a warrant and did not breach his rights against unreasonable search and seizure. Second, the material entered on his character was not relied on by the judge to make a decision. Third, Mr. R had inserted or photoshopped himself into some videos and images, which was considered making child pornography. The appeal court found that the images were either a visual representation of sexual activity with children, or one that advocated or counselled it. Fourth, the court found that the delays were mainly by Mr. R’s own making and the timing did not “markedly exceed” the reasonable time for the case.
His appeal of his conviction was dismissed.
He also argued his sentence was unfit.
The appeal court found his designation as a long-term was appropriate. He had previous of-fences and was deemed at risk to cause future harm to children. His sentence was altered so that two of the concurrent sentences were lowered to 4.5 years each, to better reflect “so-called ‘Photoshop’ cases”. However, even with these adjustments the total sentence was still a six year global sentence.
Also see: 2016 SKQB 330; 2015 SKQB 353;  SCCA No 112 (Application for appeal).
Criminal Offence(s): Sexual Assault