R. v. El-Jamel, 2010 ONCA 575

CITATION: R. v. El-Jamel, 2010 ONCA 575

DATE: 20100908

DOCKET: C51164

COURT OF APPEAL FOR ONTARIO

Juriansz, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty The Queen

Appellant

and

Samir El-Jamel

Respondent

Allison Dellandrea, for the appellant

Robert Sheppard, for the respondent

Heard: March 29, 2010

On appeal from the sentence imposed by Justice Eleanor M. Schnall of the Ontario Court of Justice on September 29, 2009.

Juriansz J.A.:

[1] The respondent pleaded guilty to possession of child pornography and Internet child luring. He possessed images on his computer and had used an internet chat room to lure what he believed to be a 12-year-old girl and her 13-year-old friend to meet him to engage in sexual acts.

[2] He was sentenced to 45 days imprisonment in addition to two days of pretrial custody for the child pornography conviction and a 12-month conditional sentence for the Internet child luring conviction to be served consecutively, followed by three years probation. The Crown seeks leave to appeal the sentence for the luring conviction, and submits that a sentence of 18 months imprisonment would have been appropriate.

[3] The sentencing judge recognized the gravity of the offence. Over a period of three days, the respondent had engaged in an online chat with an undercover police officer posing as a 12-year-old girl. The respondent claimed to be 17 years of age. During the chats he became increasingly sexually explicit. He masturbated in front of a web camera during one of these chats. He arranged to have sexual intercourse with the 12-year-old girl and a three-way sexual encounter with her and her 13-year-old girlfriend. He was arrested when he went to meet the girls as arranged.

[4] The sentencing judge stressed that both the possession of child pornography and Internet child luring were serious offences. She noted that Parliament had provided a mandatory minimum sentence for possession of child pornography and had increased the maximum sentence for Internet child luring from five years to ten years to reflect the seriousness of the offences.

[5] The sentencing judge viewed the two counts, though discrete, as interrelated. She noted that the two offences arose out of the same circumstances and should be dealt with together.

[6] The sentencing judge refused a defence request to allow the respondent to serve the 45-day sentence on the child pornography conviction intermittently, saying an intermittent sentence would be “inadequate to address denunciation, general deterrence and specific deterrence.”

[7] The sentencing judge set out what she viewed as mitigating factors. The respondent was young: 24 years of age at the time of sentencing. He had a strict upbringing and was sexually victimized himself. He had no prior criminal record. He entered guilty pleas. He was married with a young child and had the support of his wife and father-in-law. He did not have an entrenched interest in child pornography or sex with children. He was capable of rehabilitation and appeared willing to commit to counseling and therapy. At the time of sentencing, the respondent was attending therapy.

[8] The sentencing judge described the gravity of the offence of Internet child luring. She stated that Internet child luring “must be dealt with seriously by the Courts. Children are vulnerable to the predatory actions of those who enter chatrooms to lure them into situations where they can be sexually exploited.” The sentencing judge recognized that the primary sentencing principles that applied were those of denunciation and general deterrence. However, she added, one should not lose sight of the principle of rehabilitation.

[9] The sentencing judge also recognized that conditional sentences for the offence of Internet child luring should only be imposed in rare cases. She acknowledged that this was not one of “the rarest of cases” and that “the circumstances of this accused are not unusual”. She further recognized that the standard range for Internet child luring cases is 12 months to two years’ imprisonment.

[10] Nevertheless, she went on to impose a conditional sentence of 12 months under house arrest. She noted that the accused had been diligent in pursuing his education, that he had sought out and maintained employment, that he had a young family, and that he was actively engaged in counseling. She concluded that a conditional sentence would severely restrict his liberty while permitting him to pursue his education and counseling and to support his family. She was satisfied that the respondent would pose a minimal risk to the safety of the community while serving a conditional sentence under house arrest with a term prohibiting him from using a computer.

[11] The Crown submits that the sentencing judge erred in principle by placing undue emphasis on the respondent’s rehabilitation and failing to accord sufficient weight to the principles of denunciation and deterrence.

[12] In finding that, in the particular case before her, the denunciation and general deterrence factors could be satisfied with a conditional sentence, the trial judge proceeded in the manner indicated by this court in R. v. Folino (2005), 2005 40543 (ON CA), 77 O.R. (3d) 641. In that case, the trial judge imposed a nine-month jail term for Internet luring. McMurtry C.J.O., writing for the court, found that the judge had “overemphasized the punitive sentencing objectives of denunciation and deterrence and failed to consider the restorative objectives of rehabilitation, reparations and promotion of a sense of responsibility.” The court replaced the sentence of nine months’ incarceration with a conditional sentence of 18 months.

[13] Neither the facts of the offence nor the circumstances of the accused in Folino were markedly different from those of this case. If anything, the luring in that case was more egregious. Folino engaged in live Internet chats and email exchanges with an undercover police officer posing as “Jessie”, a 13- year old girl, over a period of three weeks. The chat sessions were sexually explicit. Folino repeatedly suggested that they should find a private place to meet and asked what kinds of sexual acts “Jessie” would perform on him. During one chat session, he noted “Jessie’s” young age and acknowledged that he could get into trouble. In another session, he suggested that she penetrate herself digitally to prepare for their meeting. He sent her a picture of himself and a picture of a penis in further preparation for their meeting. Finally, he made arrangements to meet her, telling her not to wear a bra or underpants to facilitate the various sexual acts he would perform on her, including cunnilingus, and that he expected her to perform sexual acts on him, including fellatio. He was arrested after he had driven 22 kilometres to the pre-arranged meeting spot.

[14] Like the respondent in this case, Folino had no prior criminal record. He was employed whereas the respondent was working part-time while pursuing his education. Both Folino and the respondent had supportive families, were participating in therapy and counselling and presented a low risk of re-offending. Folino, at 35 years of age, was ten years older than this accused.

[15] The only significant difference is that in this case, there was no evidence that the respondent would be imperilled by incarceration. In Folino there was psychiatric evidence indicating that any period of incarceration might “open [Folino] up to the risk of fatal dissociation culminating in possible suicide.” On appeal, the updated opinion of the same psychiatrist indicated that Folino was in a “very fragile mental and physical state”.

[16] But Folino cannot be read as restricting conditional sentences to those Internet luring cases where the offender would be imperilled by incarceration. As noted, McMurtry C.J.O., while confirming that the paramount considerations in a case involving child luring over the Internet are denunciation and deterrence, found the trial judge erred by overemphasizing these factors and failing to consider the sentencing objective of rehabilitation.

[17] In argument, the Crown repeatedly emphasized that the trial judge had said that this was not a rare or unusual case, and this comment meant that, applying Folino, a jail sentence was required. In my view, the Crown makes too much of this comment. The label that a trial judge puts on a case is not as important as his or her analysis and application of the relevant sentencing factors. The trial judge in this case proceeded in a manner consistent with Folino. She recognized that the paramount sentencing considerations were denunciation and deterrence, but imposed a conditional sentence after considering the respondent’s prospects for rehabilitation. The trial judge discussed all of the relevant factors in detail. She identified the correct sentencing range, made a positive decision to depart from it, and explained her reasons for doing so. She had the respondent before her and was better positioned than this court to assess his prospects for rehabilitation.

[18] The Supreme Court has established that appellate courts must show great deference in reviewing decisions of trial judges where appeals against sentence are concerned. In R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 14, the Supreme Court reiterated what it said in R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 90:

[A]bsent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

[19] Here it is not suggested that the trial judge failed to consider a relevant factor. The submission is that she attached inappropriate weight to the restorative objectives of sentencing. I disagree. In my view, it is apparent that the trial judge was applying the guidance provided by this court’s decision in Folino. Her reasons adequately explain why she decided that, for this offender, a sentence outside the usual range was appropriate. In this case, there is insufficient basis to interfere with her exercise of discretion and, to do so, would confuse rather than assist the trial judge’s task with applying Folino.

[20] I would conclude that there is no basis for interfering with the sentence by the trial judge. I would grant leave to appeal sentence and dismiss the appeal.

“R.G. Juriansz J.A.”

I agree Paul Rouleau J.A.”

Watt J.A. (Dissenting):

[21] The trial judge decided that intermittent service of the minimum sentence of imprisonment for the conviction of possession of child pornography “would be inadequate to address denunciation, general deterrence and specific deterrence”. So the trial judge ordered that the respondent serve the minimum sentence of imprisonment on consecutive days, rather than intermittently.

[22] The trial judge appears to have recognized that the same sentencing objectives applicable in cases of possession of child pornography, deterrence and denunciation, mandate the imposition of sentences of institutional incarceration, absent exceptional circumstances, in cases of child luring. She found no “unusual circumstances” in connection with the child luring offence. But she ordered that the 12 month sentence she imposed for child luring be served in the community.

[23] My colleagues would not interfere with the sentence imposed for child luring. I take a different view. I would grant leave to appeal, allow the appeal, set aside the sentence imposed on the conviction of child luring, and impose a term of actual imprisonment of equivalent length. My reasons follow.

The Circumstances of the Offence

[24] My colleagues’ brief description of the child luring offence requires further elaboration.

[25] The respondent’s “chats” lasted for more than four hours and are littered with references to his interlocutor’s age, physical development and sexual inexperience. The respondent encouraged “Natasha” to recruit a 13-year-old sexually experienced friend to join them for a “threesome” at the interlocutor’s home when her mother was away from the residence.

[26] During his “chats” with “Natasha”, the respondent proposed having sexual intercourse with and performing cunnilingus on both the interlocutor and her 13-year-old friend. He pointed out that the intercourse might be painful for “Natasha”, who had described herself as a 12-year-old virgin. He promised to bring condoms.

[27] The respondent was arrested as he approached the place at which he had agreed to meet both “girls” before heading off to “Natasha’s” unoccupied home. He had no condoms with him.

The Circumstances of the Offender

[28] Len Kushnier provided a clinical assessment of the respondent’s risk of re-offending and a prognosis for his treatment. At the initial assessment, based entirely on the respondent’s uncorroborated account, Mr. Kushnier characterized the risk of recidivism as “low to moderate”. Apprised of the actual state of affairs, Mr. Kushnier expressed concern and reassessed the risk as “moderate”. The sentencing judge assigned no weight to the initial assessment.

The Positions of Counsel at Trial

[29] The prosecutor sought a global sentence of two years less one day of actual imprisonment.

[30] Counsel for the respondent at trial sought a bifurcated sentencing hearing. He proposed sentences of imprisonment of 45 days (child pornography) and 90 days (child luring) to be served intermittently, imposed and to begin on separate dates. Absent a bifurcated sentencing hearing, counsel for the respondent at trial (not Mr. Sheppard) proposed a conditional sentence of imprisonment on the child luring conviction. The term counsel suggested was between 9 and 18 months.

The Governing Principles

[31] Some background is necessary to provide context for my dissension from the conclusion of my colleagues.

The Offence of Child Luring

[32] Section 172.1(1)(c) of the Criminal Code creates a preparatory crime. The conduct that the provision criminalizes not only precedes the commission of the sexual offences to which it refers, but also falls on the preparation side of the preparation/attempt divide. The legislative objective that underpins the provision is prophylactic in nature - to prevent the risk of sexual abuse of children by barring the door in advance of the predator’s entry: R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at para. 25. The exploitative reserve of the internet is almost limitless, the anonymity it affords a magic elixir to reduce the inhibitions and exploit the curiosity, immaturity or sexual precocity of young persons.

The Sentencing Principles in Child Luring

[33] The legislative objective that undergirds the offence of child luring equally informs the principles that predominate in sentencing the convicted child lurer – deterrence and denunciation: R. v. Folino, 2005 40543 (ON CA), [2005] O.J. No. 4737 (C.A.), at para. 25; R. v. Jarvis (2006), 2006 27300 (ON CA), 211 C.C.C. (3d) 20 (Ont. C.A.) at paras. 27 and 31; and R. v. Alicandro (2009), 2009 ONCA 133, 95 O.R. (3d) 173 (C.A.), at para. 49.

[34] Specific deterrence attempts to convince the person receiving sentence not to do it again. General deterrence tries to induce others who may be tempted to commit a similar offence not to do so. Denunciation targets a wider audience, the public. The role of denunciation is to convince the public that child luring is a true crime, a serious offence, not something obsolete, technical or minor: R. v. Innes (2008), 2008 ABCA 129, 231 C.C.C. (3d) 48 (Alta. C.A.), at para. 10.

[35] The predominance of the sentencing objectives of deterrence and denunciation yields a general rule that the sentence imposed on convicted child lurers will be one of institutional or actual incarceration for a term of 12 months to 2 years: Folino at para. 25; Jarvis at para. 31; Alicandro at para. 49. The general rule is not without exception: the term of imprisonment may be served conditionally rather than institutionally. But the teachings of Folino are that conditional sentences of imprisonment are only appropriate “in the rarest of cases”: Folino at para. 25.

[36] The decision in Folino exemplifies what the court considered one of “the rarest of cases” in which a conditional sentence of imprisonment was appropriate. A negligible risk of recidivism. Acceptance of responsibility. Participation and progress in treatment for management of stress. A devastating impact of proceedings on Folino and his family. Assaults by other inmates while in custody awaiting release. And uncontradicted evidence of a very fragile mental and physical state due to the proceedings and of the detrimental effect of reincarceration on Folino and his three young children.

[37] Imposition of a conditional sentence of imprisonment rather than a term of institutional imprisonment on conviction of child luring must also be consistent with the principles that govern conditional sentences. The conditional sentence must be consistent with the fundamental purpose and principles of sentencing described in ss. 718-718.2 of the Criminal Code. Although a conditional sentence of imprisonment can provide significant denunciation and deterrence, some circumstances evoke a need for denunciation and deterrence that is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of an offender’s conduct or to deter similar conduct in the future. In those cases, incarceration is the preferable sanction: R. v. Proulx, [2000] 2 S.C.R. 61, at para. 127.

The Principles Applied

[38] The trial judge was tasked with the responsibility of imposing sentence on a first offender convicted on his own admission of guilt of an offence, child luring, that presumptively warrants a term of incarceration as the appropriate sentencing disposition. The trial judge was also required to impose sentence on the same first offender for another admitted offence, possession of child pornography, that required imposition of a term of imprisonment as a minimum punishment.

[39] The trial judge made two findings that render her imposition of a conditional sentence on the child luring conviction vulnerable on appellate review.

[40] First, she found that intermittent service of the mandatory minimum term of institutional imprisonment did not adequately service the sentencing objectives of deterrence and denunciation on the conviction for possession of child pornography. Continuous service of the sentence was required to vindicate denunciation and deterrence, thus to satisfy the fundamental principle of proportionality and s. 718.1 of the Criminal Code.

[41] Second, the trial judge did not consider that the circumstances of the child luring offence fell within the descriptive, “the rarest of cases”, used in Folino. Like my colleagues, I take this to be a reference, albeit unstated, to the exception made in Folino to the presumptive institutional incarceration as the appropriate sentencing disposition in child luring cases. My colleagues consider prosecutorial reliance on this phrase as demonstrative of an error in principle as a substitution of form for substance, packaging for product, label for content. I disagree.

[42] Nothing took this case out of the general rule that incarceration follows conviction of child luring. Nothing in the circumstances of the offence. And nothing in the circumstances of the offender.

[43] The child luring conviction did not stand alone. The respondent was also convicted of possession of child pornography, a circumstance that is an aggravating factor in determining a sentence for child luring: Jarvis at para. 31. The respondent proposed sexual conduct with two “underage” girls, one of whom he enticed to bring along a friend for a “threesome”. The conduct proposed by the respondent, if committed in relation to real interlocutors of equivalent age, would have attracted minimum terms of imprisonment and been beyond the reach of conditional sentences. And the respondent gave every indication that he was proceeding according to plan.

[44] The respondent was a youthful first offender who admitted his guilt on the day his preliminary inquiry was scheduled to begin. He went to school, worked part-time, married and had a young child. His acceptance of responsibility and attendance at counselling proceeded at a leisurely pace.

[45] The trial judge’s findings did not remove this case from the presumptive rule of institutional incarceration. In my view, the imposition of a conditional sentence reflects an error in principle, a misapplication of the decision of this court in Folino, an under emphasis on the sentencing objectives of denunciation and deterrence, and an overemphasis on rehabilitation.

Conclusion

[46] For these reasons, I would grant leave to appeal, allow the appeal, set aside the conditional sentence and impose a sentence of imprisonment for 12 months.

“David Watt J.A.”

RELEASED: September 8, 2010