Court Information

Information No.: 1211-998-15-y129 Date: 2016-03-09 Ontario Court of Justice Youth Criminal Justice Court

In the Matter of the Youth Criminal Justice Act, S.C. 2002, c.1

Her Majesty the Queen v. R.W.

Reasons for Sentence

Before the Honourable Justice D. Harris

On March 9, 2016, at Milton, Ontario

Appearances

• S. Hebscher, Counsel for R.W.
• L. Bandini, Counsel for the Crown

Reasons for Sentence

HARRIS, J. (Orally):

R.W. pled guilty to four counts of internet luring contrary to Section 172.1(1)(a) of the Criminal Code, and to one count of possession of child pornography, contrary to Section 163.1(3), and 11 counts of extortion, contrary to Section 346 of the Criminal Code.

The Crown elected to proceed by indictment with respect to the first five counts. Extortion is a straight indictable offence.

R.W. is before me today for sentence.

Crown Counsel suggested a global sentence of six months secured custody (broken down into four months' custody and two months' supervision), plus 18 months' probation. She also sought a Section 51 firearms prohibition order, and forfeiture of a laptop computer and an Apple iPod Touch.

Counsel for R.W. suggested 90 days of secured custody (broken down into 60 days' custody plus 30 days' supervision). He agreed that 18 months of probation was appropriate but disagreed with regards to certain of the terms proposed by Crown Counsel. He agreed that the ancillary orders were appropriate. Both counsel also agreed that I should give R.W. credit for presentence custody.

In determining the appropriate sentence, I must take into account:

1. The purpose and principles of sentencing.
2. The facts underlying the offences.
3. The impact of the offences on their victims.
4. The background of R.W.

Purpose and Principles of Sentencing

The purpose and principles are set out in Sections 38 and 39 of the Youth Criminal Justice Act. I do not propose to set these out in full. I will simply refer, at times, to those principles which I consider to be especially applicable here.

I will point out that I am satisfied that I have the authority to determine whether the custodial portion of the sentence be served in open or secure custody. In that regard, I note the comments of the Ontario Court of Appeal in R. v. L.B., 2008, at paragraph 3, which points out that Section 24.1(2) of the Young Offenders Act is made applicable by Order-in-Council 498/2004 in accordance with Section 88 of the Youth Criminal Justice Act.

The Facts

The facts underlying the four internet luring offences are as follows. Between May 25 and 28, 2014, R.W. contacted three young females via Facebook. All of these girls go to the same school in Owen Sound. R.W. used a Facebook profile in the name "Tyler Young".

He contacted A.K., who was 12 years old, and requested that she send images of her breasts to him. He contacted J.F., who was 12 years old, and asked her if she wanted to exchange "sexy pics" and told her that he was only 14 years old. He contacted A.S., who was 13 years old, and called her sexy and asked, "Can we show each other stuff?" All three girls reported the matter to their school. Someone there contacted the Owen Sound Police Service.

On June 7, 2014, he contacted S.S., who was 13 years old, and went to the same school in Owen Sound. He used the same Facebook profile. He asked S.S. for nude images and, specifically, requested that she have her face shown in the image. She sent an image showing her breasts. R.W. started demanding further images and requested that S.S. take a nude image of her older sister, E.S.

Now, S.S. had never mentioned her sister during their conversations. The sister's name was first brought up by R.W. He threatened to post, to the internet, the images that S.S. had already sent if she did not comply with his demands. She told her parents and her older sister about the threat. The sister went onto Facebook and started chatting with R.W. She did so over a four-day period. During one of the conversations, he mentioned that they had been at a camp together. She was able to put together the connection in her mind that led to R.W. eventually being identified.

Now, I note that the facts with regard to the victim S.S. relate to not only the fourth count of luring but also to the possession of child pornography, which was the image of her naked breasts. It was also the first of his extortion offences.

With respect to the second extortion, between August 14 and 15, R.W. was chatting online with a 15-year-old autistic girl in Pennsylvania, identified as T.S. He requested nude images from her and asked that her face be included. She sent images of her breasts and vagina to him. He then started demanding more images. When she refused, he threatened to post on the internet the nude images already sent to him if she did not comply with the demand.

R.W. then went on to contact nine other people over the internet. With four of these people, he claimed that the other person had sent him nude images of themselves. They disputed sending any images. R.W. demanded more nude images and threatened to post a nude image on the internet if his demand was not met. With four others, he requested nude images from the other person and received them. When he received a nude image, he threatened to put it on the internet if the other person did not send more images.

In the final case, during the course of an internet conversation, the other person stated she was babysitting a seven-year-old girl. R.W. asked her to take a picture of the seven-year-old's nipples and the girl sent an image of the seven-year-old. R.W. then directed the girl to take a fully naked photo of the seven-year-old. The girl stated that she could not get a better picture of the girl. R.W. insisted that the picture be taken. He repeatedly demanded a topless picture of the girl and then requested a picture of the girl sucking the babysitter's breasts. He then requested a 30-second video showing the girl naked. She refused to take the video. R.W. subsequently threatened to post the image of the seven-year-old on the internet if the other person did not send nude images of herself.

The above summary provides what I would describe as an extremely watered down version of the online conversation between R.W. and his victims. I was provided with printouts of some of the actual conversations. In them, R.W. is very persistent but friendly until he gets the first image. He then becomes extremely rude and demanding and threatening in his attempts to obtain more.

Victim Impact

I received only one victim impact statement. It was from E.S. She said:

"The emotional impact of this event has caused me, more than someone should experience. When it first occurred, there was a lot of trust lost in our family and that caused a lot of unstableness in our home. I feel so disrespected and violated, even though the worst of it didn't occur to myself. I hate the way it has impacted my ability to interact with others because I'm worried something like this might turn up again. Since this has happened, I have had to lockdown all my social media outlets so that they are all private, so there are no chances of anyone looking for me or my stuff."

I note that R.W. did not receive any potentially embarrassing photos of E.S. I expect that the level of embarrassment and humiliation was even greater for those girls who did provide images of themselves. I note as well that these girls who did send images were already vulnerable prey for the likes of R.W.

Background of R.W.

I received a Presentence Report, a Psychological Report, a psychiatric report and a letter from Dr. S. Schuler, PhD RSW, of Shuler Counselling and Consultation. These sources provided me with the following information.

R.W. is 19 now. He was 17 at the time of the offences. I do note that he was just short of his 18th birthday at the time. According to him, he experienced a happy childhood. He described himself as somewhat of a troublemaker, at times, while in school. According to his parents, he would often have tantrums and be argumentative as a child. He did not show much emotion and appeared to lack empathy, although the parents indicated that he was capable of being empathetic if he put his mind to it. They stated that he had always been immature, to his chronological age, by at least three years.

In January 2008, he was diagnosed with oppositional defiant disorder by a psychologist. The parents did point out that, in contrast to his behaviour at home, the reports that they received from parents and teachers, in regards to R.W.'s behaviour, was positive and he was often described as polite and quiet. However, as I say, they indicated that was not the case when he was at home and, since he has turned 19, he tends even more to push the limits in the family home.

During the psychological assessment, R.W. himself described a negative relationship with his mother, calling her "ridiculous" with "no common sense". He described his father as "all right" and "lenient". His parents stated in that assessment that they always struggled with rule adherence, as everything was a battle or had to be bargained, when they attempted to discipline him or apply limits and boundaries in the house. Following his stay in custody he became more disrespectful and abusive.

With respect to substance abuse, he reported that he began to experiment with marijuana in grade 10, initially used the drug three times a week but progressed to the point where, from grade 11 until his arrest in December 2014, he was using it daily. He also used alcohol two to five times a month and described binge drinking on occasion. He also experimented with cocaine, ecstasy and mushrooms on a small number of occasions. He stated that he was under the influence of marijuana and alcohol during some of the current offences.

R.W. told the writer of the Presentence Report that he had not used drugs since December 2014. His parents, however, reported that he was still using drugs. They could smell marijuana on his clothes and in their home.

With respect to his education, it was indicated that there were no problems during elementary school. However, he attended two different high schools as his parents attempted to address his behaviour. In grade 11 he left his first high school to attend the Robert Land Academy, which his parents described as having a military-style regime and, which I will indicate, I am well aware of that particular school.

R.W. attended for a month and then refused to return, as he claimed there were insufficient meals and he was bullied. He then returned to his former high school, but his academic performance continued to decline. He was suspended on two occasions for fighting and truancy became an issue. He skipped his final exams and did not graduate from grade 12. He returned to that high school for a fifth year and did complete his high school credits.

With respect to his perception of the current charges, I note that in the Presentence Report and psychiatric report he attributed his offending to his "stupidity" and his ignorance of the law. However, in the psychological assessment, his primary explanation for his behaviour was that he was "young, immature and horny". When asked why he engaged in the behaviour, he stated that he was upset and angry due to a recent breakup with his girlfriend. He wanted others to feel the pain he was experiencing.

He denied sexual interest or arousal to the images of children that he accessed, and stated that his motivation was manipulation, coercion and assertion of power and control, there is, "to see how far they would go" and "to see how much I could get them to do".

R.W. had no prior involvement with the criminal justice system, that I am aware of. However, for someone with no prior record, he has managed over the last number of months to establish a very bad record with respect to complying with court orders.

He was originally released on a recognizance of bail. He breached that recognizance and spent 57 days in Maplehurst Detention Centre as result.

Crown Counsel chose not to proceed with these breach charges. In return, R.W., through his counsel, admitted to the breaches and agreed that the 57 days' presentence custody would not be considered as presentence custody with regard to the charges before me.

Following his guilty plea, I varied the terms of his release to permit him to go to Mohawk College. The psychological and psychiatric assessments were ordered, as well the Presentence Report. We returned to court and counsel made their submissions to sentence. Counsel for R.W. argued, at that time, for a deferred custody and supervision order. I remanded the case to April 29, 2016, for sentencing. This was to provide R.W. with an opportunity to prove himself. It would also allow any sentence I imposed to be served without interfering with his schooling.

R.W. breached his recognizance of bail the very next day. He has since pled guilty before me and been sentenced with respect to that matter. I am referring to these breaches for the limited purpose of assessing R.W.'s commitment to complying with any directions from the court.

Finally, with regard to background of R.W., I take note of the following comment in Dr. Shuler's letter:

"Any therapist providing therapy to R.W. should be highly trained and skilled in providing sexual offence specific counselling/treatment in accordance with accepted best practices, with a particular level of expertise in the area of child luring and engagement and child abuse images, in that, treatment for sexual behaviours (IE internet luring) is complex and requires considerable knowledge regarding issues such as, but not limited to, sexual interests and attitudes, deviant sexual arousal and attraction to children concerning sexual behaviours, inclusive of child luring and internet sexual offences, but not limited to, concerning high-risk situations, offence prevention and safety planning, sexual victimization, other forms of victimization, sexual health and general psycho-social and emotional functioning."

Analysis

Section 38(2)(c) of the Youth Criminal Justice Act provides that any sentence must be proportionate to the seriousness of the offence and the degree of the responsibility of the young person for that offence. Section 38(2)(d) provides that all available sanctions, other than custody, that are reasonable in the circumstances, should be considered for all young persons.

In this case, the offence has not only satisfied the pre-conditions to custody set out in Section 39(2)(a) and (c), custody is the only appropriate sentence. The offences are very serious. An adult could expect to go to jail for a much longer period. The internet luring charges and the child pornography charge are each subject to a mandatory minimum sentence for imprisonment for one year for an adult.

The offences were not a spur of the moment, one-off event. They occurred repeatedly over a span of two and a half months.

R.W. was only one month short of his 18th birthday when the last offences occurred.

He was the person that thought these offences up and planned them, and he was the person who committed the offences. They were offences which caused serious harm to their victims and I am satisfied that this harm was intentional or at least reasonably foreseeable by R.W. (See Section 38(3)(b) of the Youth Criminal Justice Act).

While R.W. has tremendous support from his family who have done so much to try to assist him, he has not done much, if anything, himself to resolve issues. He has also shown little, if any, insight or empathy for his victims or an appreciation of the seriousness of the offences. I cannot believe that any 18-year-old in this day and age would not know that such behaviour was illegal or that serious. I cannot and do not believe that.

I note as well that R.W. also fails to show appreciation for the steps his parents have taken on his behalf. He has also failed to show any serious commitment to complying with court orders. Even after spending considerable time at Maplehurst for his first set of breaches, he committed a further breach the day after his counsel concluded his submissions by saying that the long adjournment between submissions and the actual passing of sentence would provide an ideal opportunity for R.W. to prove himself. What he proved, certainly, does not help his case at all.

A significant period of custody is necessary, both to deter R.W. from committing further offences and to denounce such unlawful conduct. (See Section 38(2)(f) of the Youth Criminal Justice Act). I am satisfied that the appropriate custodial period here is six months. In determining that, I am mindful of the provisions of Section 28(2)(e) which provide that, subject to paragraph (c), the sentence must:

1. Be the least restrictive sentence that is capable of achieving the purpose set out in (1);
2. Be the one that is most likely to rehabilitate the young person and reintegrate him or her into society; and
3. Promote a sense of responsibility in a young person and an acknowledgment of the harm done to victims and the community.

For that reason, I was prepared to order that the sentence be served in an open custody facility. I note that the request now, however, is that in order to access the ongoing programs in the secure setting, both sides agree that a secure custody order is appropriate.

I attach great weight to the fact that R.W. pled guilty. I take that to be an acceptance of responsibility and an expression of remorse on his part. I note that it also made it unnecessary for any of the victims to testify in court and go through the embarrassment and the humiliation again.

Finally, I note that R.W. is still very young and very immature. He is still a good candidate for rehabilitation, and I have attempted to craft the terms of his probation with that in mind.

The process of rehabilitation will require guidance and supervision as well as counselling and support. There is definitely an ongoing need to strictly supervise R.W. with respect to his use of computers and other electronic media, and his behaviour towards young females.

Finally, I note that Section 38(3)(d) of the Youth Criminal Justice Act requires that I take into account the time spent in custody by R.W., as a result of these offences. In this case, that amounts to 36 days of presentence custody which I shall deduct from the custodial portion of the sentence I am about to impose. That will also lead to a reduction in the corresponding period of supervision in the community.

Sentence

You are ordered to serve 94 days in secure custody, to be followed by 47 days to be served under supervision in the community, subject to conditions. If you breach any of the conditions, while you are under supervision in the community, you may be brought back into custody and required to serve the rest and the second period in custody as well.

You should also be aware that under other provisions of the Youth Criminal Justice Act, the Court could require you to serve the second period in custody as well. The periods in custody and under supervision in the community may be changed if you are, or become, subject to another sentence. The conditions will include the mandatory conditions set out in Section 97 of the Youth Criminal Justice Act, plus any additional conditions that the provincial director may set.

That will be followed by probation for 18 months. The terms of that probation order will be as follows:

Probation Conditions

You will keep the peace and be of good behaviour. You will appear before the Court when required to do so.

You will report in person to a youth worker within two working days of your release from custody and, after that, at all times and places as directed by the youth worker, or anyone designated by your youth worker, to assist in your supervision.

You will cooperate with your youth worker. You must sign any releases necessary to permit the youth worker to monitor your compliance, and you must provide proof of compliance with any condition of this probation order to your youth worker, on request.

Do not contact or communicate, in any way directly or indirectly, by any physical, electronic or other means, with A.K., J.F., A.S., S.S., E.S., or T.S. Do not be within 20 metres of any place where you know any of the persons named above to live, work, go to school, frequent or any place you know the persons to be.

Do not be in the company of or communicate directly or indirectly, by any physical, electronic or other means with females under the age of 16 years unless in the presence of your parents or another responsible adult who is aware of your offending, or incidental contact in the course of your employment, or with anyone approved of by your youth worker, in writing in advance.

You will comply with either of the two conditions below:

• You will attend an education or vocational program provided by a local school board, any place of learning, training or recreation, approved of by the youth worker, and provide proof as required by the youth worker, and sign releases to allow the youth worker to confirm your attendance; or
• Make reasonable efforts to seek and maintain suitable work, approved of by the youth worker, and provide proof as required by the youth worker.

Do not possess any weapons, as defined by the Criminal Code, for example but not restricted to: a BB gun, pellet gun, firearm, imitation firearm, crossbow, prohibited or restricted weapon or device, ammunition or explosive substance, or anything designed or used or intended for use to cause death or injury or to threaten or intimidate any other person.

Do not possess or consume any unlawful drugs or substances (refer to the Controlled Drugs and Substances Act) except with a valid prescription in your name or those available over the counter.

You will attend and actively participate in all assessment, counselling or rehabilitative programs, as directed by the youth worker, and complete them to satisfaction of the youth worker for: anger management, substance abuse, psychiatric or psychological issues, and sex offender specific counselling or treatment.

You shall not possess or use any computer or any other device that has internet access, except:

1. With the advance written permission of the youth worker. Before your youth worker may give you such permission, you are to allow your youth worker to have access to such computer or other device for the purpose of monitoring your use of that computer or other device. In order to enable your youth worker to monitor your use of a computer, you must install and activate, at your own expense, any computer program specified in writing by your youth worker; or
2. Under the supervision of one of your parents.

When communicating with anyone by means of such a computer or other device, you must take reasonable steps to ascertain the age of the person.

Further, when communicating with anyone by means of such a computer or other device, including, when using email, MSN Messenger or other messenger system or any chatrooms, Skype, Facebook, Twitter, Instagram or any other social network, you shall identify yourself by your full real name, R.W., and not use any pseudonym, nickname or code name to identify yourself.

You will not possess or access child or adult pornography.

You will not seek, obtain, or continue any employment, whether or not the employment is remunerated, or become or be a volunteer in a capacity that involves being in a position of trust or authority towards female persons under the age of 16 years.

Pursuant to Section 51(1) of the Youth Criminal Justice Act, you are prohibited for the next three years from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.

All of these offences are primary designated offences. I, therefore, make an order authorizing the taking of any number of samples, of one or more bodily substances, including blood that is reasonably required for the purpose of forensic DNA analysis.

Finally, with respect to forfeiture: I am ordering that the laptop computer and the Apple iPod Touch, seized from R.W., be forfeited to Her Majesty to be disposed of, as the Attorney General for Ontario directs. I have been provided with a draft order to that effect and I will be signing that order.

Released: March 9, 2016 Harris, J.