Court Information and Parties

Information No.: 11-1465

Ontario Court of Justice

Her Majesty the Queen v. Murugathas Thaiyagarajah

Before: The Honourable Justice B. Pugsley

Date: April 5, 2012, at Orangeville, Ontario

Appearances

D. Garbaty – Counsel for the Crown

A. DiCarlo – Counsel for M. Thaiyagarajah

Reasons for Sentence

PUGSLEY, J. (Orally):

Conviction and Offence

The defendant faces sentencing upon a conviction after plea of internet child luring contrary to Section 172.1(1) of the Criminal Code of Canada. The facts are serious.

Facts

The defendant communicated online with a complainant he knew to be under 18 years of age for the ostensible purpose of recruiting her to make video pornography. As part of the defendant's modus operandi, he told the complainant, Miss Kleinschmidt, who was 17 at the time, that he had to audition her before he agreed to hire her to make pornographic videos to sell as he told her, in Europe.

He told her that age 17 was the perfect age and he needed younger girls and had models in his agency as young as 14 years of age.

The defendant and the subject met in Belleville, Ontario, and had sexual intercourse. He told her to tell her boyfriend that she was done with that boyfriend and now the defendant was her new boyfriend.

Although set up under false pretences, the sexual contact on that occasion was consensual. Soon after, the complainant had second thoughts and ended up at the police station. The complainant told the police about the defendant and they then took over her account.

In October, the police added a fictional person named Jackie into the conversation (that's October of 2010). Jackie made it clear in their online social network conversations to the defendant that she was 14 years of age. The defendant told the complainant and the fictional Jackie that they should send him photos of the two women having sex together and that again he would need to audition both young women by having sex with them.

The police, pretending to be the complainant and Jackie, arranged to meet the defendant. When he arrived at the meeting, he was arrested and charged with internet luring. The defendant was cooperative with the police immediately upon his arrest.

There was, by his evidence, no pornographic modelling agency at all. He was lying to the complainant for the purposes of arranging sex with her. A search of his motor vehicle upon arrest revealed that he had arrived at the meeting expecting to have sex with the complainant and with Jackie.

Crown's Position

The Crown seeks a sentence of 9 to 12 months in jail, plus three years of probation. I am asked by the Crown to emphasize general deterrence and denunciation in my sentencing. Although a conditional sentence is available, the Crown submits that such a sentence is not appropriate in this case.

Defence Position

The defence submits that a lengthy conditional sentence, on strict terms, is appropriate, arguing that the defendant's acts were, in the words of counsel basically just "stupid" and as he admitted to police, were intended as a means to obtain sex from the complainant in the guise of being a porn modelling agent.

Pre-Sentence Report and Background

A Presentence Report was ordered and has good and less good aspects to it. While the defendant was cooperative in the interview process, he does not fully accept responsibility for the offence he has pled guilty to, deferring some of the worst facts, the involvement with the fictitious Jackie, as being set up by the police.

He has a supportive family and supportive community, but also has a prior, although very dated criminal record for domestic assault and fraud.

The court has obtained an ESP technological report. The defendant is found to be a suitable candidate for the electronic supervision program should such be ordered.

The Crown has elected to proceed by indictment, making the defendant liable to a maximum sentence of 10 years in the Penitentiary. Various ancillary orders sought by the Crown are not opposed by the defendant. No victim impact statement was filed in this case.

The defendant is also to be credited with five days of pre-release custody.

Sentencing Range and Case Law

While the Crown submitted that the range of sentence is one to two years, no case law was provided in support of that submission at the time. In submitting that range of sentence, I assumed the Crown was referencing Regina v. Jarvis in the Ontario Court of Appeal reported at, [2006] 211 CCC (3rd) 20. On the other hand, also in the Ontario Court of Appeal in 2005, that court imposed an 18 month conditional sentence of imprisonment in Regina v. Folino reported at, [2005] 202 CCC (3rd) 353.

Analysis

I agree with the Crown submission (and essentially adopted by the defendant) that a sentence involving imprisonment here of some nature is unavoidable on these facts. The issue is whether that sentence would involve imprisonment in a jail or imprisonment in the community.

The acts of the defendant, even with the gloss that he put on those acts in his statement and as observed by the author of the Presentence Report are repugnant to the sense of propriety and safety in the community.

Put plainly, the defendant cast his net onto the internet with a view to luring a young woman to have sex with him by lies about his profession and implicitly, about how he could advance the naive career expectations of a teenage girl.

He knew that the complainant was under age 18. He knew that the fictional Jackie was 14 years of age. The fact that the pretext was a lie intended to advance his own purulent interests is only relevant insofar as the Crown is not alleging that actual child pornography was planned.

What was planned, I find from the admitted facts, was sex with a young person whom, at a believed age 14, was incapable of granting any valid consent to such an act. In other words, had Jackie been real, the plan was to sexually assault her and the defendant used the internet, by way of his computer, to lure the complainant, 17, and Jackie, 14, to such an end.

To be blunt, the defendant is the person schools teach young children to be careful of and, indeed, to be afraid of when they're online. I agree that a fundamental aspect of sentencing here must be general and specific deterrence and denunciation.

Section 718 and following of the Criminal Code, however, require that I balance other factors in my sentencing decision here. There is no minimum sentence applicable here and parliament has chosen not to make a conditional sentence of imprisonment unavailable where appropriate. Parliament has also directed me to consider all other sentencing options before resorting to imprisonment of a defendant.

In my view where a conditional sentence is available, I ought to consider the availability of such a sentence where the defendant does not represent a risk to the safety of the community. Rehabilitation remains a key aspect of sentencing and I take judicial notice of the fact that focused counselling is more easily accessed in the community than in jail.

I observe as well, that it is settled law that a conditional sentence of imprisonment is, in fact, a sentence of imprisonment. If such a sentence is breached, a portion or all of the sentence may be converted to an imprisonment in jail.

I agree with the range of sentence suggested by the Crown such that a conditional sentence is an available sentencing option here. The defendant has served five days of presentence jail which I consider. The defendant has a 1997 criminal record. Applying the gap principle, I give little weight to that record in my sentencing analysis today.

Sentencing Considerations

In summary:

(1) The defendant has been convicted of internet child luring. This offence strikes at a very vulnerable section of our society and can be accomplished with ease from the comfort of one's computer desk. This is a serious offence and deterrence and denunciation play a large role in my sentencing decision.

(2) The defendant has pled guilty, saving the complainant from the stress of testimony, providing closure to her and to her family, and accepting responsibility for the events that bring him before the court today. This is a sign of the defendant's remorse and bodes well for his future rehabilitation.

(3) The defendant, notwithstanding his plea of guilt, was less than candid with the author of the Presentence Report, for example, stating that the complainant, whom he knew to be 17, looked like she was 18 and that he was not attracted to young women under the age of 18. This flies in the face of the admitted facts here.

The defendant seems to believe that the police, by inventing "Jackie", were responsible for that aspect of the offence and that he had no plan to have sex with her. Besides not being a defence to the charge, this is not a credible assertion by the defendant. This counterbalances in part, his prospect for rehabilitation since successful rehabilitation must be founded upon a recognition of the full extent of his criminal act.

(4) I conclude that a sentence of imprisonment is required here to balance the sentencing provisions of the Criminal Code in these circumstances. However, I also conclude that such a sentence may properly be served in the community where the defendant will be required to engage in immediate counselling and treatment. Combined with the electronic supervision program, I find that the defendant may be safely imprisoned in this community. I believe that a reasonable person viewing all of the facts and most particularly, the fact of the defendant's admission of guilt, will find this sentence both denunciatory and deterrent.

In particular, the constant presence of the electronic monitoring bracelet will serve to remind the defendant and others in the community of his criminal act and enhance community safety. One important part of the sentence will require that the defendant not access the internet, except if he is employed where a computer is required at his place of work and then only for the purposes of his employment.

Sentence

I'll ask you now to stand up please, sir. Considering five days of pre-sentence custody, the court sentences you to 18 months of imprisonment to be served in the community subject to your compliance with these conditions:

Conditional Sentence Conditions

(1) You will keep the peace and be of good behaviour;

(2) You will appear before the court when required to do so;

(3) You will report within two working days in person to a supervisor and thereafter report when required by the supervisor and in the manner directed by the supervisor;

(4) You will remain within the Province of Ontario unless you have received permission, in writing, to go outside Ontario from the court or from your supervisor;

(5) You will notify your supervisor in advance of any change of name or address and promptly notify the supervisor of any change in your employment or occupation. Those are the required terms in every conditional sentence order.

In addition:

(6) For the first nine months of your order, you will not be outside your residence except for the following purposes:

(a) To report to your supervisor;

(b) To perform community service work upon such hours, places or schedule as your supervisor may approve of in advance of such community service work;

(c) To comply with any condition of this order upon such hours, places, or schedule as your supervisor may approve of in advance;

(d) To comply with the taking of a DNA sample as ordered today;

(e) For medical emergencies, appointments or procedures for yourself or any member of your immediate family;

(f) For your lawful employment upon such hours, places or schedule as your supervisor may approve of in advance of such employment;

(g) For any legal appointments or appearances;

(h) For religious observance, if any, authorized in advance by your supervisor;

(i) Each Saturday from 10:00 a.m. to 2:00 p.m. to shop for personal necessities of life; and

(j) Such other times with the prior written permission of your supervisor, such permission to be specific as to date, place, time and reason and such permission to be carried on your person when away from your residence.

(7) For the second nine months of this order, you shall be in your residence between the hours of 11:00 p.m. and 6:00 a.m., unless:

(a) For lawful employment, approved of in advance by your supervisor;

(b) For medical treatment or attendances for yourself or any member of your immediate family; or

(c) With the prior written permission of your supervisor, specific as to date, time, place and reason and to be carried on your person when out of your residence.

(8) You will not possess any weapon as defined by the Criminal Code.

(9) You will not associate directly or indirectly with the complainant, nor attend within 100 metres of her place of residence, employment or schooling and/or any other place you know the complainant to be.

(10) You will not use any computer outside of your workplace and you will use your workplace computer only for work-related reasons.

(11) You will perform 100 hours of community service at a rate to be scheduled by your supervisor and to the satisfaction of your supervisor or their delegate.

(12) You will attend and actively participate in such assessment, treatment and/or counselling or rehabilitative program as may be directed by your supervisor until discharged by your supervisor or their delegate, and you will cooperate in information going back to your supervisor about how you're doing in such a program, including signing any releases needed to allow the supervisor to contact the service provider directly.

(13) You will seek and maintain employment and provide proof of such to your supervisor upon request.

(14) You will report immediately to your supervisor for the purpose of arranging your enrollment in the electronic supervision program. You shall participate and abide by the rules and regulations of that program as required by your conditional sentence supervisor and/or designated electronic supervision resource officer for the purpose of monitoring your house arrest, home curfew, residence restriction and so on.

You shall be placed on electronic supervision for the entire length of the conditional sentence order. You shall permit the Ministry of Community Safety and Correctional Services staff and/or persons who are authorized by that Ministry associated with the electronic supervision program to enter your residence for the purpose of setting up, installing, maintaining, repairing or removing the electronic supervision program equipment. You will make yourself available either by telephone or in person as may be required at any time during house arrest, home confinement, curfew and in particular, you shall answer the phone at any time during house arrest, home confinement, curfew, and present yourself to Ministry staff, police services and/or persons who are authorized by the Ministry of Community Safety and Correctional Services associated with the electronic supervision program at the door of your residence at any time during house arrest, home confinement and/or curfew, for the purpose of confirming your presence and compliance.

You will reside where directed by your conditional sentencing supervisor and/or designate and not change your residence without prior permission of your supervisor.

You shall permit Ministry of Community Safety and Correctional Services staff and/or police services in your residence during the investigation of any alerts, either technical, such as transmitter battery low, or compliance, such as subject leaving during curfew, that may be generated while on the electronic supervision program.

Probation

Upon completion of your imprisonment, you will be placed on probation for two years. The terms of your probation are:

• You keep the peace and be of good behaviour;

• You return to court as required by the court;

• You report to and be under the supervision of a probation officer forthwith upon the completion of your sentence of imprisonment and thereafter as required by your probation officer;

• You will not associate directly or indirectly with the complainant nor attend within 100 metres of the complainant's residence, place of employment or school or any other place you know the complainant to be;

• You will take such counselling as may be directed by your probation officer and cooperate, that is counselling, assessment and/or treatment, and cooperate in information flowing back to the probation officer regarding your progress in that counselling, assessment or treatment, including signing any releases so that they can contact the service providers directly;

• You will not possess any weapon as defined under the Criminal Code;

• You will seek and maintain employment.

I have considered just for the record a continuation of restricted computer use. In my view that is not necessary under these circumstances.

Additional Orders

With respect to the DNA sample, you will report within the next three business days to the Caledon East Detachment of the O.P.P. between the hours of 9:00 a.m. and 4:00 p.m. for the purpose of providing a sample of your DNA to the National DNA Databank.

You will be registered under SOIRA for 20 years.

You are prohibited under Section 161(1)(a), (b) and (c) of the Criminal Code of Canada for 10 years.

A forfeiture order is executed on consent, forfeiting the seized property (iPhone, iPad).

In the circumstances, sir, you are not very richly employed at the moment and you have a family to support. I will waive the victim fine surcharge.

The other three charges are withdrawn.

Released: May 3, 2012

Transcript Ordered: April 5, 2012

Transcript Completed: May 3, 2012