Ontario Court of Justice

Date: October 31, 2017

Court File No.: Central East - Newmarket 4911-998-14-07886-00

Between:

Her Majesty the Queen

— AND —

Mohammad Sarchami

Before: Justice Peter Tetley

Heard on: August 11 and October 3, 2017

Reasons for Sentence released on: October 31, 2017

Counsel

K. Hutchinson — counsel for the Crown

T. Rodocker — counsel for the accused Mohammad Sarchami

TETLEY J.:

Procedural History

[1] On November 25, 2016, following a four-day trial, Mohammad Sarchami was found guilty of the offences of luring a child by means of telecommunication, contrary to s. 172.1(1)(a) of the Criminal Code; arranging to commit a sexual offence against a child, contrary to s. 172.2(1)(a) of the Criminal Code; and, procuring the sexual services of a person under the age of 18 years, contrary to s. 212(4) of the Criminal Code (since repealed – now s. 286.1(2)).

[2] On August 11, 2017, at the time submissions as to sentence were received, the Crown requested that a stay be entered with respect to count 2. Accordingly, this sentencing judgment addresses the remaining two counts of what is commonly referenced as "internet" luring and the procuring offence.

The Luring Offence

[3] Section 172.1(1) of the Criminal Code, RSC 1985, c. C-46, as of 2014, defines the offence of luring and reads in part as follows:

172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with

(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence under subsection 153(1), section 155, 163.1, 170 or 171 or subsection 212(1), (2), (2.1) or (4) with respect to that person;

[4] Section 172.1(2) sets out the penalty provision in relation to this offence:

Punishment

(2) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

[5] In R. v. Morrison, 2017 ONCA 582, the Ontario Court of Appeal concluded that the one-year mandatory minimum sentence of imprisonment, when the Crown elects to proceed by indictment, constitutes "cruel and unusual treatment or punishment", contrary to s. 12 of the Canadian Charter of Rights and Freedoms. In reaching this determination, the Court concluded that the mandatory minimum in s. 172.1(2) of the Code was a grossly disproportionate penalty, given the appellant's personal circumstances when considered within the s. 12 Charter framework.

[6] On consideration of the facts in the Morrison appeal, the Court concludes, at paragraph 131 of the decision, as follows:

In my view, the disparity between the one-year mandatory minimum and what would otherwise be a fit and appropriate sentence for Morrison is sufficient to meet the high bar of gross disproportionality under s. 12. Morrison's blameworthiness is diminished in that it cannot be said that he believed his interlocutor was underage when engaging in sexualized conversations. He is culpable only for having acted unreasonably in failing to take steps to ensure that the other person was not underage. Communication online with an adult for a sexual purpose is not in itself a crime. Although his communications persisted for some two months, it cannot be said that he knowingly embarked on a systematic process of grooming a young person for sexual activity or to facilitate commission of a sexual assault that would merit a substantial sentence of imprisonment well above the fourth months he received. In this sense, the facts of this case are distinguishable from those in Woodward. There was never any face-to-face encounter and, as the trial judge found significant, there was no indication Morrison intended to commit a physical sexual offence in relation to an underage child. He eventually ended his communications unilaterally. He is in his late sixties, is a productive member of society and has no criminal record. The child luring offence must be taken seriously given the potential harm it could result in for the most vulnerable members of our society, but in this case no actual harm resulted from Morrison's transgression.

[7] The mandatory minimum sentence of one year imprisonment in s. 172.1(2)(a) of the Code was accordingly declared to be of no force or effect pursuant to section 52(1) of the Constitution Act, 1982.

The Procuring Offence

[8] Section 212(4), the penalty provision relating to the procuring offence, provides for a minimum punishment of imprisonment for a term of six months and a maximum punishment of five years' incarceration. That section reads as follows:

212.(4) Every person who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of six months.

[9] By virtue of the operation of this sentencing directive, Mohammad Sarchami faces a minimum mandated disposition of six months' incarceration in relation to the procuring offence. This statutory minimum continues to apply in Ontario.

Factual Circumstances

[10] The details of the factual circumstances leading to the findings of guilt in the offender's trial are detailed in the written Reasons for Judgment dated November 25, 2016. In summary terms, the offender was concluded to have engaged in a text conversation in an effort to arrange for paid sexual services with an individual who was represented to be a 16-year-old girl named "Kathy Blunt". In actuality, the other party to the text exchange was Detective Sergeant Thai Troung, an officer with the York Regional Police Service, Organized Crime Bureau Vice Team.

[11] During the text exchange the offender arranged for unprotected sexual intercourse and an unprotected act of fellatio in exchange for the sum of $100.

[12] In accordance with the directives provided in the text exchange, the offender attended at a local hotel whereupon he was arrested after knocking on the door of the specified hotel room.

[13] The guilty verdict was based on the fact the offender took no reasonable steps, when such steps were required, to ascertain the age of "Kathy Blunt", an "individual" who was represented by Detective Troung to be 16.

[14] The offender was concluded to have been aware, from the outset of his telecommunication exchange with Detective Troung, that the purported occupant of the designated hotel room was an underage female. This fact was concluded not to have had any deterrent impact on the offender's intention to have sexual relations with the person he believed to be in that hotel room as reflected by the agreement to meet and his subsequent attendance at that room.

[15] The content of the text exchange and the offender's actions were concluded to demonstrate that his purpose was to obtain sexual services from "Kathy Blunt" despite the fact that "she" had represented "herself" to be just 16 years of age.

[16] The absence of any reasonable steps to ascertain the actual age of "Kathy Blunt" and the acknowledged telecommunications were concluded to constitute proof beyond a reasonable doubt of the first two counts of the information, the luring offence contrary to s. 172.1(1)(a) of the Criminal Code and telecommunication with an underage person for a sexual purpose, contrary to s. 172.2(1)(a).

[17] Proof of the procuring offence, count 3 of the three-count information, was similarly concluded to have been established on the basis of proof beyond a reasonable doubt that the offender communicated for the purposes of obtaining sexual services of a person who was under the age of 18 years, contrary to s. 212(4) of the Criminal Code.

The Position of the Parties

I. Submissions of the Crown

[18] On behalf of the Crown, Ms. Hutchinson seeks a period of incarceration totalling between 12 and 18 months. This sentencing position is predicated on the fact that s. 212(4) mandates a minimum punishment of imprisonment of a term of six months for the child prostitution or procuring offence (s. 212(1)(a)).

[19] Despite the fact the mandatory minimum sentence of one year for luring a child (s. 172.1(2)(a)) has been declared to be unconstitutional, the Crown submits that a sentence in the range of one year to 18 months is nevertheless warranted for this offence.

[20] The Crown provided a factum and written submissions, along with several casebooks of related authorities, in support of the contention that the "traditional sentencing range for luring offences" should be employed here.

[21] The Crown submits that Parliament's primary objective in the enacting of minimum sentences in relation to offences involving exploitation of children is to focus the sentencing process on the primary sentencing objectives of denunciation and general deterrence. Periods of incarceration of significant length are viewed as being required to deter individuals who would exploit children sexually.

[22] In addition to these legislative initiatives, the Crown notes the recent trend in the reported cases toward dispositions that involve more extended periods of incarceration for such offences than had been imposed in the past.

[23] As noted by Moldaver, J.A., as he then was, in the Ontario Court of Appeal decision R. v. Woodward, 2011 ONCA 610, an Internet luring case in which the 30-year-old appellant lured a 12-year-old child and then sexually assaulted her, "…much stiffer sentences, in the range of three to five years, might well be warranted to deter, denounce and separate from society adult predators who would commit this insidious crime" (para. 58).

[24] Moldaver J.A. opined that the 12 to 14-month range of incarceration previously referenced by the Ontario Court of Appeal in R. v. Jarvis, for offences of this kind, "needs to be revised given the 2007 amendment in which Parliament doubled the maximum punishment from 5 years to 10 years."

[25] Reference is also made by the Crown to the comments of Fish J. in R. v. Legare, 2009 SCC 56, at para. 25:

It will immediately be seen that s. 172.1(1)(c) creates an incipient or "inchoate" offence, that is, a preparatory crime that captures otherwise legal conduct meant to culminate in the commission of a completed crime. It criminalizes conduct that precedes the commission of the sexual offences to which it refers, and even an attempt to commit them. Nor, indeed, must the offender meet or intend to meet the victim with a view to committing any of the specified secondary offences. This is in keeping with Parliament's objective to close the cyberspace door before the predator gets in to prey.

[26] In support of the suggested range of sentence, the Crown provided a chart summarizing a significant number of luring-related sentencing judgments beginning with R. v. Jepson, [2004] O.J. No. 5521 and R. v. Harvey, [2004] O.J. No. 1389 and ending with R. v. Morrison, supra.

[27] These authorities suggest a wide range of available custodial dispositions, depending on the circumstances of the given case. The referenced cases disclose sentences as low as 90 days intermittent in R. v. Alicandro, 2009 ONCA 133, a case involving a single Internet contact with an undercover officer posing as a 13-year-old girl, to a sentence of 21 months that was imposed in R. v. Bergeron, [2009] O.J. No. 1081, where multiple sexually explicit communications with an undercover officer posing as a 12-year-old girl and the forwarding of pornographic images of children and videos of the accused masturbating, culminating in the accused endeavouring to meet the "girl" were aggravating considerations.

[28] Ms. Hutchinson conceded that a number of individuals arrested during the same police initiative as that involving Mohammad Sarchami received intermittent sentences of 90-days' duration following a plea of guilty to a charge of luring contrary to s. 172.1(1)(a).

[29] These individuals were required, as an aspect of the plea agreement, to provide a report from a psychiatrist or psychologist to address any risk to public safety concerns that might arise given the nature of the conduct in issue.

[30] A sentence of 6 to 8 months was submitted as being appropriate in relation to the child prostitution charge (s. 212(4)).

[31] The Crown submits this offence is specifically intended to address the sexual exploitation and abuse of children: see R. v. Johnston, [1996] O.J. No. 2882, at paras. 29-30; R. v. Amabile, [2000] B.C.J. No. 300, at para. 4.

[32] A number of authorities were cited by the Crown in support of the proposed range of sentence including R. v. J.L.M., 2017 BCCA 258 and R. v. Boodram, an unreported, June 17, 2015 decision by Johnston J. of the Ontario Court of Justice in Newmarket.

[33] In R. v. J.L.M., a 9-month conditional sentence was imposed on appeal following determination that the mandatory minimum sentence of six months in s. 212(4) (now s. 286.1(2)) was unconstitutional. The case involved consideration of a series of text exchanges between a 46-year-old uncle and his 16-year-old niece. The exchanges culminated in an agreement by the niece to perform certain sexual services for money and actual sexual contact. The appellant's ill health and Aboriginal status were factors that led the British Columbia Court of Appeal to conclude that the 7-month custodial sentence imposed by the trial judge should be varied to a 9-month conditional disposition.

[34] In summary terms, the Crown contends that a balancing of the mitigating and aggravating factors in the offender's case warrant the imposition of a sentence of 12 to 14 months in custody for the s. 172.1(1)(a) luring offence plus a concurrent disposition of 6 to 8 months in relation to the child prostitution offence (s. 212(4)).

[35] In reaching this determination, the Crown references the following mitigating considerations:

• The offender's first-offender status, Mohammad Sarchami does not have a criminal record;
• His supportive network of family and friends; and,
• The fact the offender enjoys an enviable record of employment.

[36] Cited aggravating factors include consideration of the fact the offender has been concluded to have been largely indifferent as to whether he engaged in unprotected sexual intercourse with a 16-year-old.

[37] As the offender has been determined to have been prepared to engage in both unprotected sexual intercourse and oral sex with the interlocutor, who he believed to be a 16-year-old girl, the Crown submits that factual scenario here is distinguishable from that considered by the Ontario Court of Appeal in R. v. Morrison, supra.

[38] In Morrison, the appellant was concluded to have engaged in online sexualized chats with a "14-year-old girl" named "Mia" with no actual sexual contact either proposed or occurring and communication to that end having been unilaterally terminated by the appellant. Mr. Sarchami is viewed as having been "ready, willing and able" to further his sexualized intentions as demonstrated by his attendance at the hotel room where he had every reason to believe that he would encounter 16-year-old "Kathy Blunt". The content of the text exchange leading to that anticipated encounter confirms that objective.

[39] The offender's indifference as to the interlocutor's age, his apparent willingness to engage in acts of unprotected sexual contact and his actions in furtherance of that intention are submitted as warranting the penal sanctions proposed in spite of referenced mitigating considerations and to distinguish the facts here from those in Morrison.

A. Ancillary Orders

[40] In addition to the aforementioned custodial disposition, the Crown seeks the imposition of a period of probation of two to three years, a s. 161 order of five years' duration, a Sexual Offender Information Registration Act (SOIRA) order for a period of 10 years, a sample of the offender's DNA and forfeiture of the cell phone and cash seized by the police at the time of the offender's arrest.

II. The Position of the Defence

[41] On behalf of Mohammad Sarchami, Mr. Rodocker seeks a sentence of six months' duration reflecting the mandatory minimum sentence as required by s. 212(4) of the Criminal Code. A concurrent disposition is requested in relation to the luring offence.

[42] In support of this position, Mr. Rodocker cites the following mitigating considerations:

• The offender's first-offender status;
• His supportive family;
• His strong work ethic and history of gainful employment;
• The restrictive bail conditions that include limitations impacting the offender's ability to involve himself in the educational and recreational activities of his children;
• Consideration of the one-day period of pre-trial custody served by the offender while awaiting release on bail;
• The wide-spread dissemination, by the media, of the factual details of the allegations during the course of the offender's trial resulting in termination of the offender's employment;
• The asserted absence of actual "harm" occasioned by the offender's actions in that no underage child was actually exploited as a consequence;
• The positive psychological report prepared by Dr. Graham Trull, a report that suggests the offender is a "low risk" to repeat such conduct;
• The absence of any evidence to suggest the offender is pre-disposed to sexual contact with children or actively involved in the pursuit or solicitation of sexual contact with children;
• The absence of any aggravating factors such as the exchange or distribution of pornographic or sexualized images, conduct of a threatening nature, verbal intimidation or abuse of a position of trust; and,
• The offender's sincere expression of remorse for the harm he has done to his marriage, the reputation of his immediate and extended family and society at large as a consequence of his actions and the reasonable foreseeable salutary or lasting consequences of being found guilty of offences of this nature.

[43] The fact the offender was not concluded to have been "actively trolling" for the sexual services of underage girls and has been concluded to have been largely "indifferent" to the age of his interlocutor is submitted to undermine the requirement for a s. 161 order as requested by the Crown.

[44] While the names of the approximately 100 individuals arrested during the York Regional Police Service initiative relating to underage prostitution known as "Project Raffael" were subject to publication, Mohammad Sarchami is submitted to have been the "…public face of Project Raffael" based on the publication of his image in a Toronto newspaper and the airing of a report of his trial on a Toronto-based television station. These considerations are submitted as being noteworthy in the sentencing process as they directly resulted in a matter characterized as involving what should have entailed "private family shame" becoming a concern of wide-spread "public interest" with the resulting publicity ultimately leading to the termination of the offender's employment.

Analysis

[45] In determining the appropriate sentence to be imposed in this matter, I have noted Mohammad Sarchami's first-offender status, his record of gainful employment and the supportive assistance he provides to both his immediate family and his parents. I have also considered the content of the April 9, 2015 psychological report of Dr. Graham Trull.

[46] I have considered the extraordinary support that he continues to enjoy from his spouse in circumstances that might reasonably be expected to try the limitations of even the most solid of marital unions. I have also considered the unfailing support offered by the offender's brothers and sisters. All of these individuals have been required to address the stigma that arose from the media attention brought to bear on the offender and his family during the prosecution of this case.

[47] I have also considered the principles of sentencing referenced in s. 718, 718.01, 718.1 and 718.2 of the Criminal Code, the cited case law and the factum of law filed by the Crown.

[48] The governing statutory provisions as they relate to the determination of sentence have also been reviewed and considered as previously discussed in this sentencing judgment.

[49] I have also considered the restrictions inherent in the offender's judicial interim release order and the fact the offender spent one day in pre-trial custody pending his release on bail the day following his arrest.

[50] Section 718.01 of the Criminal Code directs that a court shall give primary consideration to the objectives of denunciation and deterrence of conduct that involves the abuse of a person under 18 years of age.

[51] This sentencing directive embodies the primary objective to be achieved in arriving at the determination of a fit and proper sentence in the circumstances under consideration here. As a consequence, the fact Mohammad Sarchami is a first offender is of lessor significance or weight in the determination of sentence than it might be in other circumstances.

[52] Similarly, the absence of an actual victim or evidence that a "real child" was exploited is also concluded to be of limited significance from a sentencing perspective given that the primary objective of this disposition is to deter and denounce those who would abuse and exploit children in a sexual manner.

[53] For those reasons, while acknowledging that certain of the reported cases referenced in the Crown's factum reference much more aggravated circumstances involving telecommunications leading to actual sexual contact or exchanges of pornography, the fact Mohammad Sarchami was concluded to be indifferent to his interlocutor's age is not a factor that serves to mitigate sentence.

[54] In the Reasons for Judgment, he was concluded to have been proven to be willing to engage in unprotected sex with an individual who represented "herself" to be just 16 years of age and furthered that intention by attending at the place where the proposed liaison was to occur. The fact the offender acted to carry out his avowed intention without regard for the age of the interlocutor is concluded to be exactly the type of conduct or harm the two offences in issue in this sentencing judgment were enacted to address.

Disposition

[55] Mr. Sarchami, if you would, please stand.

[56] For the foregoing reasons, and based on the referenced analysis, the following sentencing disposition is concluded to be warranted on consideration of all of the mitigating and aggravating factors present in your case and consideration of the offences in issue.

[57] In relation to count number 1 – the charge of luring, a sentence of 9 months is imposed.

[58] In relation to count number 3 – the charge of procuring, a sentence of 6 months concurrent is concluded as being warranted.

[59] That is the minimum penalty proscribed by statute for that offence by virtue of what was previously s. 212(4) of the Criminal Code (now s. 286.1(2)).

[60] In addition to the penal sanction, there will be a concurrent period of probation of a duration of two years as an aspect of sentence on both counts. Probation will commence at the time you are released from custody.

[61] The conditions of your probation order shall include the following statutory obligations:

1. You will be directed to keep the peace and be of good behaviour;
2. You will advise your probation officer of any change of name, address or employment; and,
3. You will attend court as and when directed by the court or your probation officer.

[62] In addition, you will report to a probation officer within 48 hours of your release from custody and thereafter as your assigned probation officer may direct.

[63] You will attend counselling as directed by your probation officer and you will not stop any recommended counselling without the prior written consent of your probation officer.

[64] You will execute all necessary releases of confidential information to your doctor or counsellor in favour of your probation officer in order that your progress and attendance at the counselling sessions may be monitored.

[65] You are not to attend at any hotels or motels except as required for purposes of employment or except in the direct company of your spouse Behnaz Bakhit or except as may be approved in advance, in writing, by your probation officer.

[66] You are not to seek, obtain or continue in any paid activity that involves contact with any person who is under the age of 16.

[67] As the Crown has elected to proceed by indictment in this matter, you will be subject to the Sexual Offender Information Registration Act (SOIRA) pursuant to s. 490.11 of the Criminal Code for a period of 10 years.

[68] You will also be subject to a s. 161 order for a period of five years.

[69] Pursuant to s. 161(a), you will be prohibited from attending any public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or daycare centres, school grounds, playgrounds or community centres. An exception will be granted to authorize you to attend any organized school or recreational activities involving your own children provided you are in the direct company of your spouse or other adult relative.

[70] Pursuant to s. 161(b), you shall be prohibited from seeking, obtaining or continuing any employment, whether or not that employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards a person under the age of 16 years.

[71] In accordance with s. 161(c), with the exception of your own children, you shall be prohibited from having any contact by any means with a person who is under the age of 16 years unless such contact is supervised by your spouse or other adult over the age of 21 years.

[72] An order of forfeiture shall issue directing that the cell phone and cash seized by the police at the time of your arrest be forfeited to the Crown.

[73] Finally, a mandatory $200 surcharge attaches to each of the offences in issue in this sentencing judgment. In view of the custodial disposition, you will be granted a year to effect payment of those surcharges.

[74] That concludes this sentencing judgment.

Released: October 31, 2017

Signed: Justice Peter Tetley