R. v. Moreira
Court File No.: Newmarket Date: November 27, 2013 Ontario Court of Justice
Between: Her Majesty the Queen — and — Claudio Moreira
Reasons for Sentence
Counsel: Ms. Phyllis Castiglione for the Crown Mr. Frank Addario for Mr. Moreira
KENKEL J.:
Introduction
- Mr. Moreira pled guilty to:
- Count 2: Invitation to Sexual Touching s.152
- Count 3: Sexual Interference s.151
- Count 5: Possession of Child Pornography s.163.1
- Count 6: Make Available Sexually Explicit Material to a Child s.171.1
- Count 8: Luring a Child s.172.1
Circumstances of the Offences
The circumstances of the offences are set out in the Agreed Statement of Fact marked as Exhibit 1 on sentence. They include three weeks of contact by the 30 year old accused with a 15 year old girl with whom he exchanged sexually explicit messages. He misrepresented his age and caused her to create explicit photos and videos of herself engaged in sexual acts and send them to him. He sent sexual images of himself to her. The accused repeatedly asked to meet the victim for sex saying he was going to "rape" her. When she refused to have sex with him he threatened to send the revealing images to her mother in a final effort to force her to have sex. Eventually he wrote an essay for her and persuaded her to perform oral sex on him in a parking lot.
Following arrest a search warrant was executed on Mr. Moreira's residence and his phone, computer and other electronic devices were seized. An analysis of the accused's blackberry showed he was in possession of 30 unique images of child pornography, 9 images of child nudity and 3 videos of child pornography depicting the victim in this case. There was a further child pornography video showing a young girl approximately 15 years of age performing oral sex on a male. In total there were 76 images of child pornography and 26 images of child nudity on the blackberry.
Two computer hard drives analyzed and they showed further images of child nudity and images meeting the definition of child pornography. There was a dispute about one image and whether it's properly characterized as child pornography but there was also a concession that another image was plainly in that category. I find that the Crown has proved that the accused's interest in sexual images involving young persons went beyond the images of the victim in this case although this case is unlike others in that there is not an extensive collection of images or videos that meet the definition of child pornography.
The court viewed a representative sample of the images of Child Pornography with the assistance of the officer-in-charge in the presence of both counsel. The viewing with both audio and video components was done in chambers to prevent the further victimization of the young persons depicted. The defendant was aware of the representative sample and consented to proceeding in that manner. The encrypted representative sample was made Exhibit 2 on sentencing and the detailed description of the representative sample was made Exhibit 3. Exhibit 2 was ordered sealed.
Impact on the Victim
The impact on the victim and her family is set out in the statements marked as Exhibits 5A and 5B.
For a young person who was having some trouble at home these events have made things much more difficult. Her family blames her for what happened. Her school marks have declined as has her social life as she no longer trusts others. She engaged in self-harm after the offence and now sees doctors to find better ways to cope.
Mr. Moreira's Personal Circumstances
This offence comes as a shock to family members who say that Mr. Moreira is a good family member, completed school successfully, has a good work history and is well liked by friends and colleagues.
Mr. Moreira has lost his employment and the trust of his family and friends. He still enjoys family support though, I find has good prospects for rehabilitation.
Mr. Moreira's plea is an indication of remorse and I accept that his remorse is genuine. He may well have qualified for bail given the strong family support and lack of record but from the very first pre-trial meeting the defence indicated that Mr. Moreira intended to resolve the matter by way of plea and was content to remain in custody until this matter was completed.
Submissions as to Sentence
The Crown submits that a global sentence of 4 to 4.5 years with a DNA order, SOIRA order, a s.109 order for 10 years, a s.161 order for 20 years, a no contact order s.743.21 with the victim or any member of her immediate family while incarcerated. Further, the Crown seeks forfeiture of items listed in Exhibit 6.
The defence notes that the accused is a first offender. The time in custody to date and the sentence still to be served will no doubt make a significant impact upon him. The defence submits that a global sentence of 30 to 36 months would meet the need for denunciation and general deterrence.
Analysis
I agree with both counsel that a penitentiary sentence is required. The Crown points out that minimum sentences now apply. I agree with both counsel that a minimum sentence is not appropriate on any particular count given the aggravating features. However, a sentencing court is not required by the Criminal Code to make each count consecutive and it would not be appropriate to do so here given the close relationship of the offences committed over a short three week period of time.
While no doubt these offences could reasonably bear a much higher sentence, given the guilty plea, the lack of a prior record, the fact that the defendant is a relatively young man with good prospects for rehabilitation, I find that a 3 year sentence would be sufficient to meet the need for denunciation, general deterrence and specific deterrence and would be proportionate to the circumstances of the offence and the accused's actions.
Pre-Trial Custody
Mr. Moreira indicated through counsel an intention to resolve these matters at an early stage in the process. Given the nature of the charges and the need for technical computer analysis which is in high demand, it took time to put together the factual and legal components necessary to resolve the case. During that time Mr. Moreira has been detained at a remand centre in circumstances meant for shorter stays.
This is the first time Mr. Moreira has been incarcerated. The report from the correctional centre shows that during the seven months he's been in jail he was subject to "lockdowns" of various durations 26 times. Normally prisoners are allowed out of their cells for 8 hours each day to a common day room. During lockdowns prisoners are confined to their cells.
Most lockdowns were for 6 hours or less and most were caused by staff shortages. Given jail overcrowding Mr. Moreira was triple bunked for 18 days. The Court of Appeal has held that loss of remission and parole eligibility remain factors that can be considered in determining credit for pre-trial custody. See R. v. Summers, 2013 ONCA 147, [2013] OJ No.1068 (CA).
Given the extended period of detention prior to plea, in part necessary because of the technical complexity of the investigation, the circumstances of detention and the fact that the accused is a first offender, I find that the defence has shown that circumstances warrant enhanced credit be given for the pre-trial custody on a 1.5 to 1 basis. I've considered the impact of that level of credit on the overall sentence and I'm satisfied that the sentence remains a fit one.
Sentence and Ancillary Orders
The accused will be sentenced to a global period of custody of 3 years less credit for time served of 226 days credited at 339 days leaving a further 2 years and 26 days to be served.
There will be a DNA order, a SOIRA order for Life, a s.109 order for 10 years, a s.161 order for 20 years, and a no contact order s.743.21 with the victim or any member of her immediate family. Further, the Crown will be granted forfeiture of items listed in Exhibit 6.
Delivered November 27, 2013
Justice Joseph F. Kenkel