Court File and Parties

Ontario Court of Justice

Date: March 8, 2016

Court File No.: 15-00356

Between:

Her Majesty the Queen

— and —

Rohan Webster

Sentencing

Heard and Delivered: March 8, 2016

Counsel:

• Ms. Amy Barkin, counsel for the Crown
• Mr. Fariborz Davoudi, counsel for Mr. Webster

KENKEL J.:

Introduction

[1] Mr. Webster met three young girls at the Scarborough Town Centre and lured them into working for him and his two co-accuseds as prostitutes. The girls were 14 and 15 years old at the time.

[2] Following a preliminary hearing and committal to trial, Mr. Webster has re-elected trial in this court and pled guilty to:

• Count 2: Attempt to live on the avails of a person under 18 s.212(h)
• Count 10: Exercise control s.212(1)(h)
• Count 19: Procuring s.212(1)(d)
• Count 28: Child Luring s.172.1(2)

[3] The circumstances of the offences are set out in detail in the agreed statement of fact marked as Exhibit 1 and explained in detail in the reasons for sentence for the co-accused Jerome Swaby delivered February 22, 2016.

The Crown Position

[4] The Crown seeks a sentence of 5 years less credit for pre-trial custody.

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

• The accused's role in the initial luring at Scarborough Town Centre
• The impact of the offence on the community
• The impact of the offence on the complainants and their families
• The fact that the complainant specifically related to these counts became detached from her family, and it's believed returned to prostitution. At the time of sentence she has only just returned home.

The Defence Position

[6] The defence requests that a 4 year sentence be imposed less credit for pre-trial custody.

[7] The defence refers to the following factors:

• Remorse as shown by the guilty plea and the accused's acceptance of responsibility for the offences as confirmed in the PSR
• No prior criminal record
• The difficult circumstances of his childhood including CAS involvement from an early age as set out in the pre-sentence report
• Despite the uneven school history Mr. Webster managed to go back and finish grade 12 and his teachers found him to be intelligent. There's an offer of employment waiting for him upon release.
• His youth and the fact that an older party was directing the scheme
• The impact of the pre-trial custody to this point as a first custodial sentence

Analysis

[8] While Mr. Webster was the youngest of the three parties to the child prostitution scheme, his youth was a contributing factor, allowing him to approach and lure the three young complainants.

[9] Mr. Webster was a full participant in the scheme. He received oral sex from an underage girl as a "test", he took photos of the girls to post on Internet ads. He was present when the girls were installed at a motel and instructed how to receive clients. 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] All three girls were living at home and attending school at the time of the offence. The impact of the offences have been significant and the complainant in relation to these offences has suffered significantly as indicated by the Crown.

[11] The photos taken of the young girls in underwear in suggestive poses and posted on the Internet remain now in the public domain leaving a further ongoing impact for each complainant.

[12] I accept that the guilty plea is a genuine expression of remorse. Mr. Webster has insight into the nature of the offence and regrets his actions. Despite his difficult upbringing, there's many positives upon which Mr. Webster could draw upon to rehabilitate his life.

[13] Mr. Webster is now 22 but was 19 at the time of arrest. While he was a full participant in the scheme, both he and Mr. Swaby acted under the direction of a third older party who was identified by all three complainants as the person in-charge throughout.

[14] Most importantly he was co-operative with the police and took them to the location where the victims were found.

[15] While Mr. Webster's involvement extends somewhat further than Mr. Swaby's, he was not on probation at the time of the offence and Webster is the youngest of the three. He's demonstrated much more maturity since arrest, having better insight into his conduct and the effect of the offences on others.

[16] Luring 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 such conduct in the future.

[17] The Crown and defence have submitted a range of sentence that takes into account the aggravating and mitigating circumstances of this case discussed above including the fact of the guilty plea. I'm advised one statutory minimum applies. I find that a global 4 year sentence is the minimum sentence that would meet the purpose and principles of sentencing in this case.

[18] I agree with both counsel that enhanced credit beyond the statutory minimum is appropriate.

[19] Mr. Webster has been in custody since January 28, 2014. He's served 2 years, 1 month and 10 days or 771 days in pre-trial detention. Applying R v Summers 2014 SCC 26 that's to be credited as 771 x 1.5 = 1156.5 days = 1157 days.

Sentence

[20] The accused is sentenced as follows:

• 1 year on Count 28

• 3 years consecutive on the remaining counts, concurrent to each other for a global total of 4 years

• 4 years = 1460 days

• Pre-trial custody may be taken into account on all of the offences including the statutory minimum. R. v. Wust 2000 SCC 18, [2000] SCJ No.19

• Less credit for 771 days pre-trial custody at 1.5 to 1 = 1156.5 = 1157

• 1460 – 1157 = 303 days remaining to be served

• Probation remains available where the one year minimum is considered as part of the sentence imposed at the time of sentence, but the remaining actual sentence including consideration of that 1 year remains less than 2 years. R. v. Mathieu 2008 SCC 21, [2008] SCJ No.21. Accordingly, a 2 year period of probation will follow the custodial sentence on the following 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 except for his two younger brothers
  • 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 or communicate with Jerome Swaby or Jeremiah Washington

[21] I find it necessary in the public interest to make 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 his mother except for his two younger brothers
• (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

[22] 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

Hon. Justice Joseph F. Kenkel