Ontario Court of Justice

Date: February 22, 2016

Court File No.: 15-00356

Between:

HER MAJESTY THE QUEEN

— AND —

JEROME SWABY

SENTENCING

Heard and Reasons Delivered February 22, 2016.

Ms. Amy Barkin ..................... counsel for the Crown

Mr. Gerald Yasskin ............... counsel for Mr. Swaby

KENKEL J.:

Introduction

[1] It's a parent's nightmare. Three girls aged 14 to 15 went to the Scarborough Town Centre Mall and met a young man who was trolling the mall looking for young girls he could entice into prostitution. They agreed to join him at a luxury condominium in Mississauga.

[2] The York Regional Police received reports that the girls were missing. Through clever and diligent investigative work the officers were able to access and analyze one of the complainant's phone messages. They obtained an email address and Internet searches showed a YouTube video linked to that address. That video was shot in an apartment, and in the background out the window there appeared to be distinctive buildings. That led the officers to Mississauga. Eventually they isolated the likely building which had that view and further inquiries led to the review of building security video which showed the three girls with the persons later charged in this case. Further investigation led the police to a motel where the accused Mr. Swaby and his associates had the girls working as prostitutes advertised over the internet. The investigation was so fast that the girls were discovered at the motel on their first night of prostitution. On behalf of the victims, their families and the community I commend the officers of the York Regional Police who worked on this case for their excellent investigative work.

[3] Mr. Swaby has pleaded guilty to:

• Attempt Live on Avails s.212(1)(h)
• Exercise Control s.212(1)(h)
• Procuring s.212(1)(d)

The Crown Position

[4] The Crown seeks a sentence of 4 years less credit for pre-trial custody.

[5] Beyond the circumstances captured in the offence in relation to under-age victims, the Crown notes the following aggravating factors:

• That the accused was on probation at the time of sentence (related to a conditional discharge)
• The lack of insight of the accused into his offence and the impact of the offence on others
• Past problems in school, employment and regular marijuana use which present barriers for rehabilitation
• The impact of the offence on the complainants and their families

The Defence Position

[6] The defence does not contest that a 4 year sentence is within the range for these offences but submits that a sentence of 3 years and 1.5 months (time served) to 3 and a half years is sufficient for this accused.

[7] The defence refers to the following mitigating factors:

• Remorse as shown by the guilty plea, particularly where the accused had shown an inclination to plead at the preliminary hearing but went through that proceeding in part because of the position of his co-accuseds, and where there were some evidentiary issues in relation to the case against Mr. Swaby
• No prior criminal record and nothing in the prior finding of guilt that would impact this sentence
• The youth of the offender and the fact that the leader of the scheme was much older
• The fact that the accused was not directly involved when the girls were initially met at the mall or brought to the condominium
• The impact of the pre-trial custody to this point as a first custodial sentence
• The jail conditions as described by counsel, particularly during the recent "work to rule" period

[8] The accused does not agree with the reference in the report to his lack of remorse or empathy towards the complainants.

Analysis

[9] Mr. Swaby was not the person at the shopping centre who initially met the girls, nor was he the person who was in-charge of the prostitution scheme overall. He was however a full and active participant in the joint prostitution scheme. He received oral sex from an underage girl as a "test", he purchased condoms for the girls to use with customers and he rented the motel room they worked out of. He was to have received the profits from one of the girls and would have done so but for the fast intervention of the police.

[10] The video from the condominium building shows how young the three girls looked at the time they were procured into prostitution. It was plain they were underage. Despite the explanation provided by the defence I accept that there is a lack of sympathy for the complainants and insight into the offence as described in the pre-sentence report.

[11] I accept that the guilty plea is a genuine expression of remorse as both parties agree that the accused expressed an interest in resolution at the time of the preliminary hearing and he has proceeded with resolution despite some evidentiary issues that arose at the preliminary hearing. I'm concerned that the accused doesn't fully realize the impact of his offence on the complainants and others, but he's a young man and he enjoys the support of his family. There's ample room for rehabilitation and that remains an important goal of sentence.

[12] All three girls were living at home and attending school at the time of the offence. Since then all three have suffered issues of self-esteem, have become detached from their families and have had trouble in other relationships. One has become involved with drugs and appears now to have left home and likely re-engaged with prostitution. Another has had mental health problems. The specific complainant related to these charges has done better but she struggles with her family and other relationships and her mother fears that she's lost much of her self-respect. As her mother said, all three girls have lost their innocence and been exposed to the some of the worst aspects of the world at very young ages.

[13] Photos were taken of the young girls in underwear in suggestive poses then posted on the Internet to lure customers. Those photos remain now in the public domain leaving a further ongoing impact for each complainant.

[14] Procuring young persons into prostitution destroys lives simply to satisfy the greed of the offender. This cruel exploitation has been discussed at length in R. v. Downey, [1992] SCJ No.48 and the many cases that have followed. It's essential that significant jail sentences are imposed in these cases to denounce the conduct and the harm done, and to deter the offender and others like minded from engaging in that conduct in the future.

[15] The Crown and defence have submitted a range of sentence that is in my view generous to the defence and takes into account the circumstances of this case discussed above including the fact of the guilty plea. I find that the 4 year sentence is the minimum sentence that would meet the purpose and principles of sentence in this case.

[16] I accept that the accused had some difficult circumstances of incarceration, particularly during the recent "work to rule" period related to a labour dispute. I agree with both counsel that enhanced credit beyond the statutory credit is appropriate here. I disagree with the defence that further credit can or should be given as I find that to reduce the sentence further would result in an unfit sentence.

Sentencing

[17] The accused is sentenced as follows:

• 4 years on each count concurrent to each other for a total of 4 years
• (4 years = 1460 days)
• Less credit for 757 days pre-trial custody at 1.5 to 1 = 1135.5 = 1136
• 1460 – 1136 = 324 days remaining to be served
• Probation of 2 years to follow

Probation Conditions:

• Keep the Peace
• Report as required
• Reside at an address approved by probation
• Take counselling as directed by probation
• Sign any releases necessary for probation to monitor counselling
• Seek and maintain employment
• Do not purchase, possess or consume any non-medically prescribed drugs
• Not possess any weapons as defined by the Criminal Code
• Not to associate or be in the company of anyone under the age of 16 years unless in the immediate presence of your mother
• Not to communicate directly or indirectly with the three complainants
• Not be within 500 metres of any known place of education, employment or residence of the complainants
• Not associate with Rohan Webster or Jeremiah Washington

[18] There will also be an order under s.161 of the Criminal Code for a period of 10 years on the following terms prohibiting the accused from:

• (a.1) being within 1km of the residence of any of the three complainants
• (b) seeking, obtaining or continuing any employment … that involves being in a position of trust or authority towards a person under the age of 16 years
• (c) having any contact – including communication by any means - with a person under the age of 16 unless in the direct immediate presence of your mother
• (d) using the internet to access pornography sites, dating sites or any sites that advertise sex for sale, or to communicate in any manner with a person who is or appears to be under the age of 16 years

[19] There will be a SOIRA order for life. The accused will also provide a sample of his DNA for registration on the national databank.

Newmarket - February 22, 2016

Hon. Justice Joseph F. Kenkel