WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Orangeville 16-964

Date: May 12, 2017

Ontario Court of Justice

Central West Region

Parties

Between:

Her Majesty the Queen

— and —

Sundaram Pichumani

Before: Justice Richard H.K. Schwarzl

Heard on: 28 March 2017

Reasons released on: 12 May 2017

Counsel:

Mr. Jeremy Tatum — for the Crown

Mr. Aswani Datt — for the Accused

SCHWARZL, J.:

1.0: INTRODUCTION

[1] The offender, Sundaram Pichumani, was charged with five criminal offences. On the first day of trial, but before any evidence was taken, he pled guilty to two crimes: communicating with FY for the purpose of obtaining, for consideration, sexual services from her (Count 2); and communicating with KM for the purpose of obtaining, for consideration, sexual services from her (Count 4). The Crown has proceeded by indictment on both charges.

[2] The parties agree with each other on certain aspects of sentence: DNA Orders, SOIRA Orders, and Probation including the length and all conditions but one. Beyond this, the parties seek differing sentences. The prosecution submits that the offender should go to jail for six to twelve months whereas the defence submits that fines totalling up to $10,000 or, in the alternative, a Conditional Sentence Order in the range of upper reformatory would be fit.

2.0: Circumstances of the Offences

[3] At the time of these offences the offender was a 55 year old resident of Halton Region. The victims FY and KM were 14 and 16 years old, respectively. Both girls were wards of the Dufferin Family and Child Services and they resided together in a group home in Orangeville.

[4] Sometime in late 2015 the offender was looking to hire a prostitute. He found FY via an advertisement she placed online. They met in person several times with the offender providing FY car rides, cigarettes, and food. On an occasion prior to these offences, the offender paid FY money and cigarettes to perform oral sex on him.

[5] Prior to these offences, the offender and KM did not know each other.

[6] On February 10, 2016 the offender spoke with FY by phone and she agreed to his suggestion of her performing oral sex on him in exchange for cigarettes and money. When she spoke with the offender FY was using KM's cell phone. The call between them was recorded by FY and made an exhibit on the sentencing hearing. He drove to the area of the group home to buy sexual services from FY. However, FY was convinced by a friend not to meet the offender so FY and her friend left just as the offender was arriving at her home. Not seeing FY, the offender texted her at the same number he had spoken to her earlier. The phone's owner, KM, replied by stating that FY had gone out and was not available. The offender told KM that he had cigarettes and other things to drop off for FY. KM went outside and met the offender at his car. The offender asked KM, a total stranger, if she was an escort. After she replied that she was not the offender told KM that he would give her $100.00 to have sex with him. KM refused the offer of money for sex communicated to her by the offender. The offender gave KM the items he had for FY and left.

[7] Shortly thereafter, a police investigation was initiated resulting in the five counts against the offender who was arrested and released two days later on a recognizance of bail with conditions. Amongst the conditions are a requirement to live with his surety, who is his wife, and restrictions when attending parks and when being with minors.

[8] When the offender communicated with the victims on February 10, 2016 he was under the reasonable belief that each girl was not under 18 years of age. Further, he was never in a position of authority over either of them. The bail was relaxed in November, 2016 to loosen the residency restrictions.

3.0: Circumstances of the Offender

[9] At the time of the offences the offender was a resident of Milton. He has been married for over 25 years and has two children in their twenties. He lives with his wife. He is a Certified General Accountant and holds a Master's degree in Accounting. At the relevant time he was fully employed as project manager with a national company but lost this job as a result of these offences. He intends to secure a similar position with another firm but is uncertain how these convictions will impact on his employability.

[10] The offender does not abuse drugs or alcohol and he was sober at the time of these offences. He does not have a prior criminal record.

[11] The offender has solicited sex from prostitutes a couple of times in the four years leading to this crimes. He appears to have been motivated to commit these offences due a combination of work-related stress coupled with a lack of physical relations with his wife.

[12] The offender has expressed remorse for his actions and for the impact on his wife. His wife does not condone the offender's behaviour but has chosen to continue to stay with, and support, him.

4.0: Positions of the Parties

4.1: Position of the Crown

[13] The Crown submits that a fit sentence should include a period in jail. The Crown submits a number of factors militate in favour of a custodial sentence including:

(a) such offences are rare in this community and a very strong message of general deterrence is needed to keep them rare;

(b) even though he thought the victims were young women and not the children they really were, the age gap between him and his perceived age of them there was an imbalance of maturity and he exploited that gap;

(c) there is a strong societal interest in denouncing commodification of sex;

(d) the victim, FY, expressed negative impact from the offence and appears to blame herself which demonstrates her inherent vulnerability;

(e) the offender's callous and exploitative attitude towards women by soliciting KM, a complete stranger, to have sex with him for money even after she was not an escort;

(f) the lateness of the guilty pleas which came only on the first day of trial, albeit before any evidence was called;

(g) while the offender is a first time offender he is does not qualify for the mitigation reserved for youthful offenders;

(h) the remorse shown by the offender in the Presentence Report is directed to the impact on his wife and his employment, not on the offences themselves or the victims;

(i) by encouraging KM to take money for sex he attempted to procure her to be a prostitute which is an inherently reprehensible social goal.

[14] The Crown also forcefully submitted that a significantly aggravating factor is that he appeared to exploit a position of trust he held vis-à-vis FY. The Crown submits that notwithstanding that he was responding to her advertisement as an escort, the offender created a trust position by giving her rides, and buying her cigarettes in addition to paying money for sex. The Crown submits that the offender manipulated FY into trusting him and then exploited that trust to his advantage.

[15] In recommending a jail sentence, the Crown does so after acknowledging a number of mitigating factors including a plea before trial; the presence of real triable issues; his lack of prior criminality; and that no actual sex happened during, or after, the commission of these offences.

[16] For all these reasons the Crown urges a custodial sentence of three to six months on one count and three to six months consecutive on the other count. The prosecution submits that a Conditional Sentence, while available, does not adequately address the gravity of the offences and would dilute the deterrent and denunciatory effects of real, immediate jail.

[17] Finally, due to the nature of the offences, the fact that both victims were underage, and a recommendation made by the author of the Presentence Report, the Crown urges me to impose phallometric testing as a condition of the Probation Order.

4.2: Position of the Defence

[18] The defence submits large fines or a Conditional Sentence Order meets the interests of justice in this case.

[19] In responding to the Crown's submission regarding aggravating factors, the defence invited me to find in particular that:

(a) the offender was not in a position of trust over FY because their relationship was short, it was the product of the offender responding to an advertisement placed by FY, not him, he viewed her as the adult she held herself out as, and the court cannot safely conclude on the facts that the offender engaged in grooming or other actions designed to cultivate a relationship of trust or that, if in a trust position, he exploited it;

(b) although the guilty pleas came on the first day of trial, the offences to which he pled are less serious than other counts on the Information; and

(c) the weight to be given the pleas ought not be reduced because there were legitimate triable issues including the ages of the victims and the offender's identification.

[20] The defence points to the following mitigating circumstances:

(a) the offender has no prior criminal record;

(b) he has family and community support;

(c) he is well educated and highly employable;

(d) he pled guilty before either victim testified;

(e) he has expressed remorse by pleading guilty and in the Presentence Report;

(f) he was not in a position of authority or trust towards either victim;

(g) there were meaningful triable issues;

(h) he was on restrictive bail with which he fully complied;

(i) he is responsible for supporting his wife with whom he will continue to reside; and

(j) there is no basis to conclude he is a meaningful risk to reoffend.

[21] The defence pointed out that unlike the other crimes with which the offender was charged the offences he pled to do not have minimum jail sentences for either a first or subsequent offence. He submits that Parliament has recognized the denunciatory aspects of sentences in such charges by imposing a large fine as a minimum punishment. He submits that the absence of a minimum jail sentence demonstrates that societal interests for this offence can be readily addressed by a non-custodial sentence.

[22] With respect to the question of requiring the offender to undertake phallometric testing the defence submits that it is not necessary because the offender viewed each victim as an adult thereby negating concerns that he might possess paedophilic tendencies.

5.0: Analysis and Sentence

[23] Commodification of sex is a very serious crime. Where someone is found to have committed this offence the public, including the victims who tend to be vulnerable members of society, must be protected by a significant denunciatory and deterrent sentence. This is true even where the offender has pled guilty. Indeed, both parties in this case agree that significant sentence is warranted.

[24] I am not satisfied that the offender was either in a position of trust towards FY or, if he was, that he exploited it. Their relationship was brief and was not personal. Theirs was a business relationship in which FY held herself out as an adult prepared to have sex with strangers for money. The facts in this case do not support a conclusion that the offender engaged in behaviour whose purpose was to make FY more likely to have sex with him. She was clearly willing to have sex with him as a partner in a contract of offer and acceptance. In these circumstances, there was no relationship of trust in accordance with the applicable legal principles. Further, FY was not duped, tricked, seduced, or bribed into relinquishing her inhibitions to resist the offender's prurient desire. While the whole matter was sordid, seedy, and immoral it was not exploitive within the meaning of the criminal law.

[25] I find the following mitigating factors in this sentencing hearing:

(a) Mr. Pichumani is a mature, first-time offender;

(b) the offender is well-educated and employable;

(c) the offender enjoys the support of his family;

(d) the offender had pled guilty in the face of triable issues and before either victim testified;

(e) the offender has expressed remorse;

(f) the offender did not use any force or coercion on either victim;

(g) no sexual activity occurred during, or as a result of, these offences;

(h) he has been on bail for a long time and has complied with it, although this is of less weight given the conditions were not onerous and did not result in undue hardship;

(i) the offences he pled to, while very serious, were not as serious as others he was charged with; and

(j) he does not appear to be at a significant risk to reoffend.

[26] I also find the following aggravating circumstances as to sentence:

(a) the offender committed not one, but two counts of a very serious offence;

(b) there were two victims with negative impact on FY;

(c) the offender was clearly dealing with young people and proceeded despite their obvious youthfulness and ignored the large age gap between him and them;

(d) the offender was clearly callous towards women given his brazen attempts to co-opt KM who was a total stranger to be a substitute prostitute when he learned FY was not present;

(e) his pleas of guilty cannot be described as early having come on the first day for trial;

(f) while not aggravating per se, the offender is not entitled to mitigation reserved for youthful adult offenders; and

(g) the moral and legal blameworthiness of the offender is very high.

[27] Upon considering the circumstances of the offence, the circumstances of the offender, the submissions of counsel, and the applicable statutory and other legal principles, it is not necessary to impose a term of prison, either absolute or conditional, upon this particular offender. When coupled with the Probation Order both parties recommend, I find that a large fine on each count meets the ends of justice in this case. Big fines in the circumstances of this offender and these offences strikes a fair balance in addressing the primary concerns of deterrence, both general and personal, and denunciation.

[28] Nor is there a necessity in this case to order phallometric testing as part of probation given that I am unable to find that the offender has any sexual interest in children or minors.

Sentence

[29] Upon convictions the offender shall pay fines for both offences as follows:

(a) Count 2 - $5,000.00 plus a Victim Fine Surcharge of $1,500.00 for a total of $6,500.00.

(b) Count 4 - $5,000.00 plus a Victim Fine Surcharge of $1,500.00 for a total of $6,500.00.

[30] The offender shall be given twelve (12) months to pay all the total fines and surcharges.

[31] In addition, on Count 2 and concurrent on Count 4, the offender shall be bound by a Probation Order for two (2) years with the following conditions:

(a) Keep the Peace and be of good behavior;

(b) Report immediately to a probation officer and thereafter at such times and places and upon such schedule as required by that officer or delegate;

(c) Abstain from communicating, directly or indirectly, with FY and KM and refrain from being within five hundred (500) metres of any residence, business, school, or any other place or address where you know the persons named herein is/are present, or is/are associated with.

(d) Appear before the court when required to do so;

(e) Notify the court or your probation officer in advance of any change of your name or address and promptly notify the court or your probation officer of any change in your employment or occupation;

(f) Co-operate with your probation officer. You shall sign any release(s) necessary to permit the probation officer to supervise you and you must provide proof of compliance with any term of this Order forthwith on request;

(g) Do not be within the municipal boundaries of the Town of Orangeville except as may be required by law or to comply with any term of this Probation Order unless you are in possession of the written permission of your probation officer or delegate, such permission to be specific as to date, purpose, and subject to such conditions or restrictions that the probation officer or delegate deems fit to impose;

(h) Attend and actively participate in such programme of assessment, counselling, or rehabilitation as directed by your probation officer. You shall not leave or discontinue such programme unless or until discharged by the probation officer or delegate. You shall complete the said programme to the satisfaction of you probation officer or delegate and you shall produce and show proof of compliance and completion to the probation officer or delegate forthwith upon request;

(i) Reside in or at such place as approved of by the probation officer or delegate and do not change your place of residence without first obtaining the written approval of the probation officer or delegate;

(j) Do not associate or communicate, directly or indirectly, with females under the age of sixteen (16) years of age without application to the Court for special exemption, unless in the presence of such adult person(s) approved of in writing, and in advance, by the probation officer or delegate. Any approval in writing by the probation officer or delegate shall contain such conditions or restrictions that the probation officer or delegate deems fit to impose. When permitted to have association or communication with females under sixteen (16) years of age, you shall have on your person a true copy of this Probation Order and all conditions together with a true copy of the court-ordered exemption or written approval of the probation officer or delegate as the case may be; and

(k) You shall not seek, obtain, or continue any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards females under the age of sixteen (16) years.

[32] There will be primary DNA Orders on both counts. The offender shall present himself to the Orangeville Police Station, 390 C Line, Orangeville, Ontario on Friday, May 19, 2017 between the hours of 9:00 a.m. and 4:00 p.m. for the purpose of complying with the DNA Orders.

[33] Lastly, there will be SOIRA Orders for ten years on each count.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice