COURT FILE NO.: Criminal J (P) 1054/15 DATE: 2016 10 13
SUPERIOR COURT OF JUSTICE
ONTARIO
B E T W E E N:
HER MAJESTY THE QUEEN E. Norman, for the Crown
– and –
A.H. Self-Represented
HEARD: October 13, 2016
RESTRICTION ON PUBLICATION
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity, including the names of other Crown witnesses, shall not be published in any document or broadcast in any way.
REASONS FOR SENTENCE
Bielby J.
Overview
[1] A.H., the Offender was, by my judgment, released June 6, 2016, found guilty on Count 1 of the indictment and not guilty with respect to Count 2. Count 1 reads as follows:
That he, during a two month period last, past and ending on or about the 20th day of October, 2013, at the City of Brampton, in the Central West Region, did by means of a computer system within the meaning of section 342.1(2) of the Criminal Code of Canada, communicate with a person he believes is under the age of 16 years, for the purpose of facilitating the commission of an offence under section 152 of the Criminal Code of Canada, contrary to section 172.1(1)(b) of the Criminal Code of Canada.
[2] The crime is one of child luring over the internet and section 172.1(2) of the Criminal Code of Canada dictates a minimum sentence of one year imprisonment.
Circumstances of the Offence
[3] The circumstances of the offence have to do with offensive material sent by the Offender via the internet, to the victim S.K., who was a friend of the Offender’s daughters. The offending material was sent to the victim in August, September and October, 2013.
[4] The material included pictures of a penis and an invitation to the victim to perform fellatio. In the emails the Offender also told the victim, in very graphic terms, what he wished to do to her.
[5] The Offender was aware that, at the time, the victim was only 15 years old.
[6] The victim did not become aware of the offending material until on or about March 4, 2014, when the victim accessed her Facebook account via her brother’s computer.
[7] The Offender was known to the victim as M.H., the father of her two friends. On occasion the Offender picked up his daughters and the victim from school and took them to lunch. On one other occasion he took them all to the mall.
[8] For a time the victim and her family lived in the same building as did the Offender and his family. They all attended the same mosque.
Circumstances of the Offender
[9] The Offender was born on […], 1964 in Guyana. As noted in the Pre-Sentence Report (PSR), the Offender had a conventional childhood, free from abuse and neglect.
[10] The Offender was married and both he and his spouse, S.K., immigrated to Canada in 1997. The Offender and his wife separated from each other in 2001 and subsequently divorced.
[11] The Offender, in 1997, was struck by a car and fractured his left leg and shoulder. The Offender has not worked since the accident stating he is unable to work as a result of the injuries. He is in receipt of an Ontario Disability Pension.
[12] The Offender has a grade 12 education and lacks a skilled trade.
[13] The Offender continues to deny he committed the offence and has not expressed any remorse. In regards to the preparation of the PSR, the Offender would not provide names of collateral sources who could be interviewed nor would he provide a written authorization to allow the author of the PSR to obtain records from the Children’s’ Aid Society, notwithstanding the Society’s involvement with the family in 2014.
[14] In regards to the PSR, the Offender advised the court that he was satisfied with its contents.
[15] The Offender has no criminal record and there are no reported violations of any terms of his bail.
Impact on the Victim and/or Community
[16] The victim, S.S., declined to provide a Victim Impact Statement.
[17] I accept the reasons she expressed to the Crown for not providing a further statement and will not draw any adverse inference from this decision as urged by the Offender. The victim exercised her duty by testifying on behalf of the Crown and subjecting herself to cross-examination.
[18] During her testimony the victim, who was, by that point, 17 years of age, was at times was emotional and brought to tears. I accept that she wishes to put the whole ordeal behind her.
[19] In regards to the impact on the community, the rampant and epidemic growth of the instances of child luring via the internet and its impact are well known. As noted in R. v. Woodward 2011 ONCA 610, para. 58, the offence of child luring has become, “a persuasive social problem”.
Legal Parameters
[20] As noted, section 172.1(2) of the Criminal Code of Canada requires that upon a conviction, there is a minimum sentence of one year, with a maximum sentence of 14 years.
[21] Upon conviction and sentencing an offender is also required to provide a DNA sample and be included in the Sexual Offenders’ Registry for a fixed period of time.
Positions of Crown and Defence
[22] The Crown seeks a sentence of 15 months in jail and probation for at least one year, together with a number of ancillary orders.
[23] The Crown submits that the Offender’s bail terms were not very restrictive and certainly did not restrict his personal liberties and therefore no extra credit is warranted.
[24] The Crown submits that the Offender’s failure to name collateral sources for interview resulted in the filing of a very neutral and less than helpful PSR.
[25] The Crown takes the position that there was evidence that the Offender had communicated with other teenage girls, and that such activity suggests he is a risk as he is sexually attracted to young teenage girls.
[26] The Crown argues that the Offender has not shown any remorse nor any indication to change his ways and that in certain circumstances this can be considered an aggravating factor.
[27] The Crown submits that deterrence and denunciation are the primary sentencing principles in play and that, given the lack of remorse, rehabilitation is not a principle to be given much consideration.
[28] The Offender submits that a shorter sentence and probation would be sufficient. Although he was made aware of the minimum sentence requirements of the section under which he was convicted, he spoke of sentences less than a year. He also suggested a sentence involving community service.
[29] The Offender continues to argue his innocence. He also advised the court that as a result of the injuries sustained in the 1997 accident he continues to suffer and requires medical attention and his concerned that his medical needs would not be met in jail.
Case Law
[30] R. v. Jarvis, [2006] O.J. No. 3241 is a decision of the Ontario Court of Appeal. The trial judge had sentenced Mr. Jarvis to six months imprisonment following a guilty plea to a charge of luring a person, under the age of 14, for the purpose of facilitating the offence of invitation to sexual touching. The Crown appealed the sentence.
[31] The appeal court found the sentence to be lenient but not manifestly inadequate. From paragraph 31, I quote, “The decisions of trial courts that were placed before us suggest that the range of sentence for this offence generally lies between twelve months and two years.”
[32] As previously cited, R. v. Woodward is a decision of the Ontario Court of Appeal. M. J. Moldaver J.A., wrote, at paragraph 58,
“Even if Jarvis did purport to set a range of 12 to 24 months for the offence of luring, that range needs to be revised given the 2007 amendment in which Parliament doubled the maximum punishment from 5 to 10 years. Moreover, if it is shown through the introduction of properly tendered evidence that the offence of luring has become a pervasive social problem, I believe that much stiffer sentences, in the range of three to five years, might well be warranted to deter, denounce and separate from society adult predators who commit this insidious crime.”
[33] In the Woodward case the accused lured a 12 year old via the internet to meet him and sexually assaulted her. From paragraph 59, I quote, “But the offence of luring carries very real dangers – innocent children being seduced and sexually assaulted or even worse, kidnapped, sexually abused and possibly killed.”
[34] In R. V. Dragos 2012 ONCA 538, [2012] O.J. No. 3790, the accused was sentenced to 23 months imprisonment for luring a 14 year old to a hotel room where they participated in various sexual acts. In sentencing the trial judge took note of his lack of a record or history of anti-social behaviour, and his compliance with strict bail conditions for almost four years.
[35] The accused appealed both the convictions and the sentence.
[36] The Ontario Court of Appeal dismissed the appeal and in regards to sentence ruled that it was not unfit. From paragraph 81 I quote,
“Then, after addressing the applicable principles of sentencing and some of the authorities pertinent to the offence of internet luring, the trial judge imposed a sentence of 18 months’ imprisonment, plus three years’ probation, on the internet luring charge. He noted that this sentence reflected the mid-point of the range of 12 months’ to two years’ imprisonment mentioned by this court in R. v. Jarvis (2006) 211 C.C.C. (3d0 20, at para. 31, as applicable to the offence of child luring. As the parties acknowledged during oral argument, this court recently held in R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, at para. 58, that to the extent that Jarvis may be read as establishing an appropriate range of sentence for child luring, - a construction of Jarvis that this court did not accept in Woodward – this range needs to be revise upwards given the 2007 amendments to the Code, doubling the maximum punishment for luring from five years to 10 years.”
[37] In regards to the appropriate range of sentences, I accept that the range as noted in Jarvis has been modified by the Court of Appeal in Woodward.
Mitigating and Aggravating Factors
[38] The Offender in this matter, A.H., has no criminal record and I will consider that a mitigating factor. I am unable to identify any other mitigating factors.
[39] In regards to aggravating factors, the Crown submits that the Offender has shown no remorse for his crime and takes no responsibility for his actions. I am asked to treat this attitude as an aggravating factor. I am not prepared to do so.
Principles of Sentencing
[40] Sections 718, 718.01, 718.1 and 718.2 of the Code provide the principles in sentencing I am to consider and apply.
[41] Further to section 718.01 of the Code, where the abuse of a child is involved, I am bound to give primary consideration to the objectives of denunciation and deterrence. In my opinion the facts of this case give rise to such abuse. Regardless, I agree with the Crown that the sentencing principles of deterrence, both specific and general, and denunciation are paramount.
[42] I accept that, given the Offender’s continued denial, the principle of rehabilitation has no significance.
[43] Any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Further, the sentence should be similar to sentences imposed for similar offences committed in similar circumstances.
[44] I accept that the conduct of the Offender had a significant impact on the victim, especially given her age.
Decision
[45] I accept the submissions of the Crown that a sentence of 15 months imprisonment followed by a year of probation is proportionate and just. It is below the low end of the range as noted in Woodward but is not manifestly unjust. Further, the Offender’s efforts at luring, for a sexual purpose, the 15 year old friend of his daughters’ were not successful and did not result in the Offender coming into direct contact with the victim for any sexual purpose.
[46] From the evidence I find that the attempts at luring occurred over a relatively short period of time and although there is some evidence the Offender sent sexual overtures to other teenage girls, again there is no evidence it was over an extended period of time nor did it result in any sexual contact.
[47] A sentence of 15 months recognizes the fact that the Offender has no criminal record. It also takes into account that the Offender did not violate his terms of bail.
[48] Accordingly, the Offender, A.H., is sentenced to 15 months imprisonment and a term of probation of one year following his release.
[49] The terms of the probation are as follows:
(a) the Offender is to keep the peace and be of good behaviour; (b) the Offender is to report to his probation officer as required; (c) the Offender is to participate in any counselling recommended by his probation officer; and (d) the Offender is not to have any contact, direct or indirect, with the victim or her family.
Ancillary Orders
[50] The Offender is to provide a DNA sample.
[51] The Offender is to be added to the Sex Offender Registry for a period of 20 years, pursuant to section 490.01 of the Code.
[52] The Offender, pursuant to section 161 of the Code, for a period of 10 years, is prohibited from:
(a) attending a public park or swimming pool where persons under the age of 16 years are present or can reasonably be expected to be present, or a school ground, playground, or community centre; (b) being within 100 meters of any dwelling-house where the victim resides; (c) have any contact, including communicating by any means, with a non-family person under the age of 16 years; and (d) using the internet or other digital network for the purposes of communicating with anyone under the age of 16 years.
Bielby J.