Citation: R. v. Korbut, 2012 ONCJ 691

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

OLEG KORBUT

Before Justice P. HARRIS

Sentence Judgment

Reasons for Sentence released on November 2nd, 2012

Ms. Christine McGoey ..................................................................................... Crown Attorney

Mr. Vladimir Semyonov .................................................................................. Defence Counsel

HARRIS, P. J.:

Background

[1] On August 10, 2012, Oleg Korbut was found guilty that he, on or about January 7th, 2010, did steal property to wit: diaries, an address book and a cellphone, the property of A.K. of a value not exceeding five thousand dollars, contrary to the Criminal Code; further that sometime between and including the 16th day of February, and the 5th day of March, 2010, knowing that A.K. was harassed did repeatedly communicate directly or indirectly with A.K. thereby causing A.K. to reasonably, in all the circumstances, fear for her safety, contrary to the Criminal Code. Consequently, the charges upon which Mr. Korbut is to be sentenced are: (1) theft under $5000 (s. 334(b) of the Criminal Code), and (2) criminal harassment under section 264(1) of the Criminal Code. In the trial judgment, I concluded that Mr. Korbut utilized personal journal content and contact information derived from the stolen items to publish to A.K.’s relatives, friends and associates ― highly embarrassing text and website links to numerous sexually explicit photos and videos ― in order to cause fear for the purpose of dissuading A.K. from continuing in a new relationship.

Facts

[2] A fuller rendition of the facts is set out in the trial judgment and for sentencing purposes a summary of the events leading to the above-noted charges will suffice. A.K. immigrated to Canada in 2007 to join her husband. They had begun a relationship “over the internet” and were married in Russia in 2005. They lived together in Canada to June 2009 at which time they separated. While living with her husband, A.K. met Oleg Korbut in 2007 and they commenced a relationship that involved travel to a number of destinations such as Quebec City and Cuba together as well as meetings at Mr. Korbut’s office on Bloor St. West in Toronto where he worked as an Osteopathic Manual Practitioner and Acupuncture Specialist. Mr. Korbut ended the relationship in 2009. During their time together, “nude photos and videos” were taken of Ms. K. by Mr. Korbut.

[3] Ms. K. and Mr. Korbut downloaded the “nude photos and videos” onto their respective computers. Ms. K. stated that after they “broke up” she deleted all of the “nude videos and photos” from her computer “completely” and Mr. Korbut promised her that he would delete them as well. That is not what occurred. Some of this recorded material would generally be considered pornography. Ms. K. gave evidence, which I accepted, that she never shared those images or videos with anybody other than Mr. Korbut and that in January 2010, after they had separated, he stated that “he had saved them all and if he wanted to, he would show them to everybody”.

[4] Ms. K. commenced a new relationship in late 2009 to which Mr. Korbut objected. He told her “I want you to be alone for a year or more.” When she would not discontinue, Mr. Korbut began a well-orchestrated campaign to engender fear in an attempt to sabotage the relationship.

[5] On January 7th, 2010 Mr. Korbut came to her residence. On learning that she had become intimate with the other male, he became abusive “saying nasty things”. When he left, her diaries, her address book and her cellphone were missing and nobody else had visited her at her residence that day. She stated that four days later she found her cellphone in her mailbox and “all our common, like friends in common, ah, were deleted.” She gave evidence that the cellphone and address book provided access to email addresses of relatives, friends and acquaintances and that her diaries contained personal and sensitive information. That same day she moved from that residence because, as she stated : “I had a feeling Oleg was going to come back….I didn’t want to see him anymore.”

[6] On January 25th, Mr. Korbut sent Ms. K. an email in which he wrote “I am not to be treated like some cheap piece of crap” and “You set the engine of a powerful machine in motion. God will not keep you waiting too long” (see Trial Exhibit 10) and “on February 6th, 2010, he sent her an email that began: “Hello you Shameful and Cowardly Bitch” …“Let it all be returned to you in full measure” and ended with “You still have no inkling of what it means to hurt a Magical Scorpion” (see Trial Exhibit 1).” (He gave evidence that his zodiac sign was “Scorpio”). During the period, February 16th to March 6th, 2010, Ms. K. became aware that fake emails were being sent to 20 to 30 relatives, friends and acquaintances in her church community purporting to have been sent by her under her maiden name, which contained personal and highly embarrassing text and website links to numerous “sexually explicit photos and videos” she had made with Mr. Korbut (see Trial Exhibits 2, 3, and 4, 11and 13-16). In addition, on February 14, a Valentine’s gift of a sexually explicit DVD was left at the residence of Ms. K.’s new partner.

[7] The final chapter in this saga took the form of a posting to a dating website under her maiden name (see Trial Exhibit 12) which states that she would like to meet a man between the ages 21 and 60 and describes how frequently she would like to have sex: “several times a day.” Ms. K. testified that this fake profile in her name that included naked photos, resulted in men calling late at night who would “introduce themselves and ask when they could meet.” “And once around 11 p.m., a man came and knocked on the door.” She said “It was unpleasant and I was scared.”; “I was repulsed and I felt defenceless, unprotected.” Ms. K. then reported what had occurred to Police and Mr. Korbut was charged. After trial, I found that Mr. Korbut was responsible for all of the above intrusions into the life of the complainant ― which were designed to generate fear and dissuade her from continuing with the relationship.

Circumstances of Mr. Korbut

[8] Mr. Korbut married Svetlana Korbut in 1990 and they presently have a 21 year old daughter and a 6 month old son. Between the years 1992 to 1998 he graduated from medical school in Ukraine and began a practice as an orthopaedic surgeon. He immigrated to Canada in 1998. Because he was not able to obtain a medical residency position in Canada, he began a practice in alternative medicine in 2006. In May 2007, in Canada, he met Ms. K. on the internet, and the meeting evolved into a relationship that lasted about two years. As a result of the extra-marital relationship, he and his wife separated for approximately 6 months from May, 2009. They have since reconciled. Based on Mr. Korbut’s pre-sentence report and seven written character references, one can readily conclude he is generally considered an honourable and reputable family man and a caring and devoted father to his two children.

[9] Mr. Korbut is the sole provider for his wife and family. His mother Ms. Gelena Romaniouk describes her son as a good respectful, polite and helpful person, who is a good father. Many references describe the defendant’s charges as appearing “out of character.” Ms. Svetlana Korbut says she has seen a great improvement in Mr. Korbut and believes that their relationship is better than before. She states that the defendant is family-oriented and caring and that the family needs Mr. Korbut’s support. In conclusion, Mr. Korbut appears to have considerable family and community support and according to the pre-sentence report, “the current matter before the court appears incongruous with [the subject’s] reliability and family oriented qualities” (see page 6, pre-sentence report). A psychological assessment was prepared by Dr. J. Pilowsky for sentencing (see Exhibit 3 on Sentencing) and it described how his psychological functioning and lifestyle has been negatively impacted by his “legal-related circumstances.” The report states that he has developed pronounced anxiety and grave difficulties sleeping and breathing at times. In treatment, the focus was “on how to attain appropriate and respectful relationship (sic) with women, anger as well as teaching Mr. Korbut how to cope with his psychological distress.”

Impact of Offences on Complainant

[10] In the pre-sentence report Ms. A.K. is quoted as indicating that she has moved on and has no safety concerns “at this time.” In a victim impact statement, filed, (Exhibit 2 on Sentence) Ms. A.K. describes how Mr. Korbut’s actions affected her: “I was completely lost, physically exhausted and couldn’t function and participate in social activities properly.” She stated she suffered spiritual injury and faced a lot of stress and pressure….” because my friends and relatives were involved in my personal and intimate life.” Ms. A.K. referred to information taken from her diaries that had been twisted into “dirty made up facts” and said that this made her “life even more miserable.” She also mentioned the fake dating website profile that resulted in a “total stranger” coming to her residence, causing her to feel “so embarrassed.”

Position of Counsel

[11] The Crown Attorney, Ms. McGoey, takes the position that the paramount sentencing principles in this case, deterrence and denunciation, call for a sentence of imprisonment of 6 months. Counsel for Mr. Korbut, Mr. Semyonov, on the other hand, argues that based on the offences and offender, the court should consider imposing a conditional sentence in the range of 6 months with conditions requiring house arrest for a substantial portion of that sentence.

Applicable Principles of Sentence

[12] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s.718.1) and further, ss.718.2(b)(c) and (d) of the Code provide that: a sentence should be similar to sentences imposed on similar offences for similar offences committed in similar circumstances; where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; and an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances.

[13] Section 742.1 states that a conditional sentence may be imposed if (a) the offender does not fall within certain categories or require a minimum term of imprisonment; (b) the sentence to be imposed is less than two years; (c) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community; (d) and that such a sentence would be consistent with the fundamental purpose and principles of sentencing set out in section 718 to 718.2 of the Criminal Code.

[14] In addition, the principles that pertain to offences such as criminal harassment are noteworthy. In R. v. Finnissey 2000 CanLII 16862 (ON CA), [2000] O.J. No. 3316 (Ont. C.A.) the court reached the following conclusions: (Note: this is a case involving charges of criminal harrrassment that proceeded by indictment, thereby extending the range of sentence available).

11 In R. v. Bates, (11 July 2000), Toronto C32619, 2000 CanLII 5759 (ON CA), [2000] O.J. No. 2558, online: Quicklaw (O.J.), this court dealt at some length with the principles of sentencing to be applied in cases like this one. The court said, at paras. 35-36: ….

• Domestic violence and harassment cases most often involve conduct directed by a male spouse or partner against a woman. Yet offenders who feel empowered to harass a partner or former partner with impunity will not necessarily confine their behaviour to that person, but may also harass and terrorize her friends and family members. As this case illustrates, the respondent somehow perceived that his love and need for the complainant allowed him to be an unwanted presence in her life and in the lives of her family and associates, and to threaten and terrorize them to achieve his ends. His irrational actions made him a menace to [the complainant] and those close to her. Consequently, when an offender like the respondent comes before the court for sentencing, it is important for the court to denounce his conduct in the clearest terms by fashioning a heavy sentence. ...

12 The court concluded its statement of the applicable principles of sentencing at para. 42 of the judgment with these words:

• The number of recent cases continuing to reach this court emphasizes the extent of the problem with criminal harassment and the need for sentencing courts to respond to this type of offence in the most forceful and effective terms, sending the message of denunciation and general deterrence to the community and specific deterrence to individual offenders.

16 Those principles apply with full force even where there is no physical violence. The absence of physical violence is not a mitigating factor on a conviction for harassment. The psychological violence done to the complainant and her friends over a prolonged period by the respondent's conduct is the very evil that Parliament sought to punish by creating the crime of harassment. The fact that the respondent did not commit additional crimes involving physical violence cannot mitigate his sentence on the harassment charge.

[15] Finally, under s. 718.2(a)(ii) of the Code, evidence that the offender , in committing the offence, abused the offender’s spouse or common law partner, shall be deemed to be an aggravating factors. In my view, this principle is applicable to the instant case on the grounds that the offending behaviour arose in the context of a domestic relationship and the breakdown of that relationship.

Mitigating and Aggravating Factors

[16] There are several mitigating factors in this case:

(1) Mr. Korbut is a first offender and enjoys a solid reputation in the community for reliability as well as care and devotion to his family; any sentence will have a heavy impact on his career and his ability to support his family;

(2) Since the charges were laid, there have been no further instances of harassing behavior and Ms. K has no safety concerns “at this time.”

(3) He is a health care practitioner and a health-related service provider and presumably, will not likely put his career in any further jeopardy;

[17] The aggravating factors are as follows:

(1) Unquestionably, Mr. Korbut’s premeditated, escalating campaign in the form of deliberate, callous and vindictive harassment has had a profound and devastating impact on Ms. K.’s reputation, her pride, her integrity and sense of self-worth. As Ms. K. states, this protracted attempt to frighten her and curtail her freedom has left her miserable and “so embarrassed.”

(2) The harm done is unquantifiable in that the posted images and the fake profile (which apparently can still be seen on the dating website) are irretrievable and may continue to be accessible on the internet in perpetuity ─ with the potential to re-victimize the complainant at some time in the future;

(3) Mr. Korbut continues to present as an individual who lacks insight and respect for others; even as he pleaded not guilty and testified at trial, his unbalanced perspective on gender equality and sensitivity was apparent. He was unable to restrain his scornful attitude towards Ms. K., and referred to her as a “whore” and “fucking scum” while testifying in his defence.

Analysis

[18] In R. v. Proulx (2000) 140 C.C.C. (2d) 449, the Supreme Court held that the principles of general deterrence and denunciation can be met by a conditional sentence and that s.742.1 does not exclude any offences from the conditional sentencing regime except those with a minimum term of imprisonment. In cases involving criminal harassment, other courts have held that conditional sentences may be imposed. (See R. v. Moss 2011 ONSC 5143, [2011] O.J. No. 4470 (Ont. S.C.); R.v. Mandell [2006] O.J. No. 3423 (Ont C.J.)).

[19] A significant feature of this sentencing decision is the fact that the Crown proceeded by summary conviction on the charges on which Mr. Korbut will be sentenced. Consequently, under the Criminal Code, the mode of procedure selected has the effect of capping the maximum sentence that can be imposed on each charge at 6 months imprisonment.

[20] There are two further sentencing principles that require articulation. First, based on well-established case law, the typical sentence for a first offender would not be the maximum sentence available (in this case ― 6 months) because of the need to address the higher level of rehabilitative potential. Even in the case of a serious offence for which imprisonment is required, the fact of being a first offender will in most cases mitigate the severity of the punishment: R. v. Q.B. 2003 CanLII 4187 (ON CA), [2003] O.J. No. 354(Ont. C.A.); R. v. J.B. 2004 CanLII 39056 (ON CA), [2004] O.J. No. 2559 (Ont. C.A.). Second, in my view, the sentences in this case should run concurrently, in other words, simultaneously, because the acts that have resulted in the offences charged generally arose in the course of the same transaction or endeavour and are closely linked together ― in this case they are all part of the escalating campaign to engender fear in order to control the complainant: see R. v. Auerswold 1976 CanLII 1408 (ON CA), [1975] O.J. No. 1258 (Ont. C.A.); R. v. Turner 1970 CanLII 522 (ON CA), [1971] 1 C.C.C. (2d) 293, at p. 298 (Ont. C.A.).

[21] In terms of eligibility for a conditional sentence, I have concluded that (a) there is no minimum sentence for the offences Mr. Korbut is facing; (b) a total sentence of six months is the appropriate sentence of imprisonment for these offences based on the offences, the offender and sentencing case law having regard to the mitigating and aggravating circumstances of the particular offences and offender; (c) Mr. Korbut represents a low risk for re-offending given his antecedents, family and community support, and the need to avoid any further jeopardy to his career and his ability to support his family and I have concluded that the safety of the public would not be endangered by a conditional sentence; (d) the most important principle of sentencing ─ the protection of the public ─ would be best served in the longer term by a sentence most conducive to eliminating the risk of re-offending by encouraging and facilitating the defendant’s reformation by permitting him to work and continue to support his family.

[22] The case I found of most assistance was R. v. Desilva [2011] O.J. No. 1298 (Ont. C.J.), a charge of criminal harassment in which the accused made a sexually explicit video of the female complainant without her knowledge and when the relationship “went sour” he posted the video on his Facebook page and invited 13 friends and family of the complainant to view the video. The court found that that the Crown had not proven that the posting had resulted in a general release of the video to the internet. The Court held that while a conditional sentence could adequately address the need for deterrence and denunciation, it would fail to strike the right balance in emphasizing and placing appropriate weight on the paramount principles. The court held that a period of incarceration to be served in a jail was the appropriate sentence. While there may be some basis upon which to distinguish this case ─ such as a prior record for assault causing bodily harm ─ still, the court imposed a sentence of two months imprisonment in respect to a charge of criminal harassment. Having regard to the fact that in the instant case the sexually explicit videos were posted to the internet, the starting point for an appropriate sentence in my view, should be three months imprisonment.

[23] In imposing sentence, I must incorporate all of the circumstances of the offences, and the offender’s personal situation including his prospects in the immediate and far future. Mr. Korbut has a strong support network and gainful employment available to him. He has a solid reputation in the community and has contributed extensively to his family’s welfare. He is an important care-giver to his two children, particularly his 6 month old son. As Belleghem J. in R. v. Mundle [2003] O.J. No.4392 (S.C.J.) so eloquently put it:

”All of these factors that I have outlined have varying weights, relative to the existence and extent of related factors. We are dealing in sentencing, here, as in many other cases of this sort, with a careful weighting in the balance, on the scales of justice, of two “clusters of competing values” and concerns, made up of factors, which themselves are variable in significance, and therefore of weight. In the end, sentencing particularly in a case of this sort, where it is a “close call”, as I have indicated- - demonstrates as much as anything the need for an exquisitely careful balance. It is difficult, if not impossible, to put any specific weight on any of the particular factors which are relevant in the case. It is impossible to point, with any specificity, to any particular pivotal factor”.

[24] This is a close and difficult case. Both Crown and defence positions are not unreasonable. On balance, I am satisfied that a sentence is required that both recognizes the seriousness of these offences and the need for deterrence and denunciation – while at the same time addresses the principle of rehabilitation in a meaningful fashion. After carefully balancing all of the pertinent factors, I have concluded that given the serious nature of these crimes and the need to demonstrate that theft of one’s most private and personal information and criminal harassment and its attendant negative social repercussions, will not be tolerated, a blended sentence of both incarceration and a conditional sentence is required to give effect to all relevant sentencing principles. The Ontario Court of Appeal in R. v. Ploumis (2000) 2000 CanLII 17033 (ON CA), 150 C.C.C. (3d) 424 (Ont. C.A.) has confirmed that when sentencing for more than one offence, provided the overall sentence does not call for a penitentiary term, a custodial sentence may properly be blended with a conditional sentence.

[25] And of course there is one last significant issue: the fact that Mr. Korbut is the sole supporter of his family, particularly a family with a six month-old child, is a major factor that I've had to struggle with in terms of the rehabilitative and restorative elements of sentencing. This is important in two ways, in my view. Mr. Korbut’s family responsibilities represent a very important issue in terms of his rehabilitation. They will provide him with some continuing vital purpose in life and it will likely, in my view, encourage him to strive to live in a way that would set a good example for his son and daughter in the future. Secondly, there is a valid social purpose in attempting to prevent this unfolding tragedy in which A.K. has become a victim, from causing other collateral damage in the form of the loss of his family’s financial and emotional support should as Mr. Korbut be sentenced to a six month term of actual custody. Consequently I have endeavoured to identify a deterrent, denunciatory yet somewhat restorative sentence that will constitute a rough equivalent to a six month carceral sentence while at the same time permit Mr. Korbut to remain employed and capable of supporting his family.

The Sentence

[26] I have determined that the appropriate total sentence is six months (in one form or another), as previously indicated having regard to concurrency and totality principles. While I certainly respect the positions adopted by counsel, I disagree with the notion that sentencing choices are limited to the starkly differing alternatives of either a six month jail sentence or a six month conditional sentence involving house arrest, in this case. The need for a deterrent sentence for these crimes does not loom so large that every opportunity for a house arrest component of sentence must be entirely dismissed. Yet, an entire sentence of “house arrest in the community” seems an inadequate response to the profoundly damaging impact of the defendant’s conduct on the complainant’s life and personal relationships.

[27] I note that in R. v. Middleton 2007 ONCA 538, [2007] O.J. No. 2900 (Ont. C.A.) the Ontario Court of appeal held that a blended sentence composed of an intermittent sentence in combination with a conditional sentence can be a fit sentence where the court’s intention is to impose “real jail time” without the loss of employment and support for a family. The trial court had imposed a 90 day intermittent sentence along with a concurrent conditional sentence to be followed by three years’ probation. The Court of Appeal approved the blended sentence in principle, but noted that unless the sentencing court specifically orders that s. 732(3) does not apply, the intermittent sentence collapses and must be served on consecutive days. I therefore expressly order that s. 732(3) of the Criminal Code does not apply in this case.

[28] This case calls for a careful balancing of all sentencing purposes and principles, while at the same time treating deterrence and denunciation as the foremost considerations. I first recognize the seriousness of the theft offence as the source of not only private and intimate details of the complainant’s life, but also the source of distribution information by which the damaging materials could be published to family and friends ─ by imposing a conditional sentence served in the community of six (6) months concurrent to the sentence for the criminal harassment offence. On the charge of criminal harassment, to give effect to the primacy of deterrence and denunciation goals as well as rehabilitative/restorative principles, the sentence will be ninety (90) days imprisonment to be served intermittently (once again s. 732(3) does not apply). This of course means that the latter carceral sentence will be served at the same time as the conditional sentence, the terms of which are set out below on Schedule 1. The cumulative total of both the intermittent and conditional sentences will be six months. These sentences will be followed by a period of probation for three years. The terms of the probation order are set out in Schedule 2.

Schedule 1

The conditions of the conditional sentence imposed are as follows:

[1] Abide by the mandatory conditions of the conditional sentence order;

[2] House arrest; for the first three months of the conditional sentence you will remain in your place of residence at all times except while travelling to and from and attending at your place of employment, medical appointments, religious services and reporting pursuant to this order and any other reasons for which permission may be obtained from your supervisor; you are permitted to be out of your residence every Tuesday and Thursday between the hours of 6:00 and 7:30 p.m.to obtain the necessities of life. During the second three month period of the conditional sentence, you will abide by curfew ─ be in your place of residence between the hours of 8:00 p.m. and 6:00 a.m. daily, except for medical emergencies.

[3] You will not own, possess or carry any weapons or firearms;

[4] You are required to carry this order on your person at all times when outside your residence and produce it on demand to any peace officer.

[5] No contact directly or indirectly with A.K., the complainant in this proceeding, or any member of her family, her parents or her grandmother. You are not to be within 500 metres of her residence, any place where, to your knowledge, she attends for religious or educational purposes, and any place of employment.

[6] You are to have no contact directly or indirectly with Kirill Shiff. You are not to be within 500 metres of his residence or place of employment.

[7] You are not to publish, post or communicate directly or indirectly with anyone using any form of technology, including phone, text, email, internet communication or electronic information in any form or by any means, any information that could identify A.K., the complainant in this proceeding, (including any information relating to her maiden name and any other married name).

[8] You are to destroy all photographs and videos of A.K. in your possession, or that you may have access to, within 48 hours of this decision. You are not to have in your possession any photographs or videos that contain images of A.K., the complainant in this proceeding.

[9] You are to remove from any computer you or your family own or have access to, any and all information relating to A.K., the complainant in this proceeding.

Schedule 2

The terms of the probation order are as follows:

[1] Keep the peace and be of good behaviour.

[2] Report until all counselling is completed.

[3] You are to enrol in and complete Partner Abuse Counselling within the first two years of your probation.

[4] You are to attend for counselling as directed by your probation officer and sign any waivers or releases necessary to permit your probation officer to monitor your attendance and progress in any such counselling.

[5] Paragraphs 5 to 9, above.

In addition, there will be a Criminal Code s.109 order imposed for a period of 10 years.

Even though a D.N.A. sample order is not mandatory, these being secondary designated offences, I have determined that in the circumstances of this case, the community interest in the taking of a sample considerably outweighs your privacy interest, and a DNA sample will be ordered.

Justice Peter Harris

Released: November 2, 2012.