ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
CITATION: R. v. Mermer, 2015 ONSC 2715
COURT FILE NO.: SCA 719/13
DATE: 20150527
B E T W E E N:
HER MAJESTY THE QUEEN
J. Mathurin, for the Respondent
Respondent
- and -
OMER MERMER
S. Baidwan, for the Appellant
Appellant
HEARD: April 10, 2015 at Brampton
DECIDED: May 27, 2015
REASONS FOR JUDGMENT
[On appeal from the judgment of Horkins J.
dated November 12, 2013]
André J.
[1] Mr. Mermer appeals his sentence following a conviction of child luring pursuant to section 172.1 of the Criminal Code, R.S.C. 1985, c. C-46. The trial judge convicted Mr. Mermer following a trial and sentenced him to twelve months in jail and two years’ probation. Mr. Mermer submits that the trial judge committed three errors in principle in determining an appropriate sentence namely:
(1) He applied the wrong range of sentence;
(2) He erred by considering the absence of a risk assessment report an aggravating factor; and,
(3) He gave inadequate consideration to the fact that there was no real victim of the appellant’s conduct.
[2] For the reasons outlined below, the appeal is allowed.
Background Facts
[3] Mr. Mermer communicated with an undercover police officer whom he believed to have been a 14-year old girl named Emma. Emma was a fictional girl created by Police Constable Hutchinson of the Peel Regional Police Internet Child Exploitation Unit. Between the dates of November 15, 2011 to January 19, 2012, Mr. Mermer engaged in chat room discussions and exchanged text messages with Emma. The exchanges between the two progressed to a level where Mr. Mermer was clearly grooming Emma to accept his invitation to meet for sexual activity. The exchanges at times became quite sexually explicit with Mr. Mermer inquiring whether Emma was a virgin, him wanting to know the size of her breasts, and whether she had had oral sex with a boy. Mr. Mermer also wanted to see a picture of Emma. He received a picture from her, which showed a young girl posing beside a pony. Mr. Mermer knew the girl in the picture looked very young. Mr. Mermer then changed the plans to meet with “Emma” at a motel and instead arranged to meet her at his cousin’s home when the cousin was expected to be out of town. Although Mr. Mermer did at times show signs of dropping the relationship and vacillated on meeting Emma, he finally arranged a meeting where he was met by Police Constable Hutchinson and ultimately arrested.
Background Information
[4] Mr. Mermer is presently 35 years old and is a Canadian citizen, having immigrated from Turkey in 2006. He has no prior criminal record. He has been married for six years and has a six year old child. His parents reside in Turkey and have been married for 40 years. He has a positive relationship with them, as well as with his 4 siblings, who he sees and speaks with often. Mr. Mermer works in the construction industry and has his own business specializing in plastering and stucco work. He has no alcohol or drug addiction issues. Although the present offence was an ongoing incident, it was isolated. There was no evidence that Mr. Mermer possessed any child pornography or that he had ever contacted other children.
Analysis
[5] This sentence appeal raises four issues, namely:
(1) What is the standard of appellate review?
(2) Did the trial judge apply the wrong range of sentence while sentencing Mr. Mermer?
(3) Did the trial judge give inadequate consideration to the fact that there was no “real” victim in this case?
(4) Did the trial judge err in principle by treating the absence of a risk assessment report as an aggravating factor in this case?
[6] Each of these issues will be addressed in turn.
Issue No. One – The Standard Appellate Review
[7] Both parties concede that the appropriate standard of review is that set out by the Supreme Court of Canada in R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227 to the effect that absent an error in principle, a failure to consider a relevant factor or an overemphasis of appropriate factors, an appellate court may only intervene if the sentence is demonstrably unfit. See also R. v. M. (C.A.) (1996), 1996 CanLII 230 (SCC), 105 C.C.C. (3d) 327 (S.C.C.) at para. 90. In other words, while the appellant may have a different perspective regarding the sentencing objectives of the trial judge, an appellate court should not second guess sentencing judges unless the sentence is demonstrably unfit.
Issue No. Two – Did the trial judge apply the wrong range of sentencing while sentencing Mr. Mermer?
[8] Prior to analyzing this question, it is necessary to address a number of principles that apply to the sentencing of offenders in general and to the appellant in particular.
[9] First and foremost is the overarching principle that sentencing is an individualized process; one in which a sentence is tailored to reflect not only the gravity of the offence but the particular or indeed peculiar circumstances of the offender. See R. v. Currie, 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260, 115 C.C.C. (3d) 205, at pp. 278-280 S.C.R., p. 219 C.C.C.; R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417, 172 C.C.C. (3d) 225 (Ont. C.A.) at pp. 429-430 O.R., p. 238 C.C.C.; R. v. Hamilton 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1, [2004] O.J. No. 3252 (Ont. C.A.), at para. 87.
[10] Second, this individualized approach to sentence has received the stamp of legitimacy from s. 718.1 of the Code which provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[11] The “gravity of the offence” refers to the seriousness of the offence as reflected by the potential penalty imposed by parliament and any special features of the commission of the crime which may increase or decrease the harm or risk of harm to the community occasioned by it. Hamilton, supra, at para. 90.
[12] On the other hand, the “degree of responsibility of the offender” refers to the offender’s culpability and any specific aspects of the offender’s conduct or background that either increases or decreases the offender’s responsibility for the crime. Hamilton, at para. 91.
[13] While proportionality is the fundamental principle of sentencing, other sentencing principles such as parity, totality and restraint may also be weighed in the determination of an appropriate sentence in a particular case. See sections 718.2(b), (c), (d) and (e). The latter two subsections stipulate that:
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
[14] Additionally, s. 718 provides that sentencing must promote one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.
Trial Judge’s Decision
[15] The trial judge relied on a number of cases including R. v. Jarvis 2006 CanLII 27300 (ON CA), [2006] O.J. No. 3241 (Ont. C.A.), R. v. Folino 2005 CanLII 40543 (ON CA), [2005] O.J. No. 4737 (Ont. C.A.) and R. v. Dobson 2013 ONCJ 150, [2013] O.J. No. 1358 (O.C.J.) to conclude that the sentence range suggested by the authorities for child luring cases was 12 to 24 months jail. The trial judge correctly held that general deterrence and denunciation are the paramount sentencing considerations in this case. He examined the aggravating and mitigating factors and concluded that the appropriate sentence was one of 12 months imprisonment.
[16] Mr. Mermer advances two arguments regarding the trial judge’s decision about the appropriate sentence range in child luring cases. First, he maintains that the trial judge erred in law by applying the range of sentence where the Crown proceeded by indictment in a case where the Crown proceeded summarily and second, that the trial judge failed to take into account the maximum allowable sentence for summary conviction when determining the appropriate sentence in this case. Mr. Mermer submits that the appropriate sentence should have been one in the intermittent range.
[17] Mr. Mermer relies on a number of authorities in support of his position that the sentencing judge should have “scaled down” the sentence range to reflect the maximum penalty of 18 months custody which the trial judge could have imposed. R. v. Sanatkar (1981), 64 C.C.C. (2d) (Ont. C.A.) 325; R. v. Dudley, [2009] 3 S.C.R. (S.C.C.) 570. He contends that these cases stand for the proposition that where the Crown proceeds summarily, the hybrid offence is treated as a summary conviction offence with the maximum sentence representing the outer limit of the allowable sentence.
[18] The Crown counters with a line of authorities which indicate that the appropriate sentence for a hybrid offence should not be slid upwards or downwards based on the Crown’s mode of election. For example, in R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309, at paras. 10-15, the Supreme Court of Canada noted that:
…A fit sentence for a hybrid offence is neither a function nor a fraction of the sentence that might have been imposed had the Crown elected to proceed otherwise than it did. More particularly, the sentence for a hybrid offence prosecuted summarily should not be “scaled down” from the maximum on summary conviction simply because the defendant would likely have received less than the maximum had he or she been prosecuted by indictment. Likewise, upon indictment, the sentence should not be “scaled up” from the sentence that the accused might well have received if prosecuted by summary conviction.
[19] Significantly however, the court further noted at paragraph 16 that:
…And when the Crown elects to prosecute a “hybrid” offence by way of summary conviction, the sentencing court is bound by the Crown’s election to determine the appropriate punishment within the limits established by Parliament for that mode of procedure.
[20] What are the implications of the Supreme Court of Canada’s decision in Solowan? The court essentially states that the sentencing court must be guided by the limits set by Parliament “for that mode of procedure” in determining the appropriate punishment. To that extent, the appropriate range of sentence in this case, where the Crown proceeded summarily, cannot be 12 to 24 months given that the upper end of the range exceeds the sentencing limit established by Parliament for that mode of procedure. Accordingly, the trial judge erred in principle when he decided that the appropriate sentence range was 12 to 24 months in custody.
[21] Indeed, the very mode of procedure elected by the Crown is an implicit recognition that the facts of this case and the circumstances of Mr. Mermer does not warrant the imposition of a sentence the offence would otherwise have attracted had the Crown proceeded by indictment.
[22] The trial judge identified the aggravating factors in this case as follows:
(1) The virtual victim was only 14 years old.
(2) There was systematic “grooming” focused on building a level of trust in the intended victim.
(3) Some of the “chats” contained disturbingly graphic exchanges.
(4) The luring of the victim continued over an extended period of time.
(5) The accused, expressly, did not care that his victim was too young.
(6) There is no reliable expert assessment of risk going forward.
(7) The Pre-Sentence Report shows only limited insight into the gravity of the conduct engaged in.
[23] Added to these factors are others which are unique to the offence of child luring. They include the following:
(1) Mr. Mermer attempted to prey on a member of one of the most vulnerable sectors of our community.
(2) Mr. Mermer callously exploited social media which is accessed by a broad spectrum of persons for legitimate reasons, for the specific purpose of sexually exploiting a vulnerable 14-year old child.
[24] That said, this case lacks many of the aggravating factors considered by the trial judge which account for the sentencing range of 12 months to 24 months in cases where the Crown proceeded by indictment. These include the following:
(1) The online exchanges did not harm an actual child.
(2) Mr. Mermer did not expose himself during the conversations.
(3) Mr. Mermer did not send graphic images of himself by webcam.
(4) There was no evidence that Mr. Mermer was in possession of child pornography.
ISSUE NO. 3 – Did the trial judge err in principle by treating the absence of a risk assessment report as an aggravating factor?
[25] In my view, the Crown committed two additional errors in principle. First, he treated the absence of a risk assessment report as an aggravating factor. The absence of such a report merely meant that Mr. Mermer could not rely upon it as a mitigating factor.
[26] Second, while the sentencing judge considered the mitigating factors, he gave inadequate weight to the following:
(1) At certain points during the recorded “chats”, Mr. Mermer “vacillated in his intent to carry through with an actual physical meeting with the victim.”
(2) The degree of explicit content was limited and somewhat isolated.
(3) Mr. Mermer had taken some steps to seek rehabilitative counselling and did so prior to conviction.
[27] All these factors are important in the determination of a proportionate sentence in that they impact the gravity of the offence and Mr. Mermer’s moral culpability.
ISSUE NO. 4 – Whether the offence committed by Mr. Mermer is a “victimless” crime
[28] Mr. Mermer contends that there was no victim in this case and that accordingly, the appropriate sentence range is one within the intermittent range.
[29] I disagree with the submission that there was no victim in this case. Clearly, the presence of an underage child and the emotional trauma which he or she may have suffered as a result of the recorded “chats”, would have been a serious aggravating factor that may have ultimately affected the Crown’s election in this case.
[30] That however, does not mean that this is a victimless offence. Social media, a communications vehicle accessed by millions of persons including children, is seriously undermined by predators seeking to lure and exploit underage children. Second, the community is required to devote significant financial and law enforcement resources to curtail this type of depraved behaviour. It is therefore inaccurate to frame a case of child luring where there is no “child” victim as a victimless crime. It would be fundamentally wrong to reward Mr. Mermer with a lenient sentence because the police authorities were successful in apprehending him, thereby thwarting his attempts to sexually exploit an underage child.
[31] A survey of a number of cases involving “virtual” victims illustrate that an offender will not receive a sentence discount merely because he was caught before he perpetrated a sexual assault on an underage victim. For example, in R. v. Dehesh [2010] O.J. No. 2817 (SCJ), the court held that a 6 month conditional sentence imposed on an accused who had been convicted following a trial, of sending graphic photographs to a person whom he believed was a 13-year old, constituted an error in principle and that the appropriate sentence should have been 2 to 3 months imprisonment, para. 9. Significantly however, the Court noted at paragraph 8 that:
It is to be noted that Parliament increased the statutory minimum sentences in June, 2007 to 18 months on summary election and to 10 years on an indictable election, so the appropriate range on a summary election would now be different.
[32] In R. v. Folino, (2005) 2005 CanLII 40543 (ON CA), O.J. No. 4737, the Ontario Court of Appeal varied the 9 month jail sentence and three years probation imposed on an offender who had pled guilty to one count of luring a child he believed to have been a 13 year old girl, to an 18 month conditional sentence. The Court of Appeal placed significant weight on three mitigating factors that are absent in this case; a psychiatric assessment that custody could have increased “the risk of fatal disassociation culminating in possible suicide”, a plea of guilty and expert evidence that the risk of reoffending was negligible.
[33] In R. v. Jarvis, 2006 CanLII 27300 (ON CA), [2006] O.J. No. 3241, the Ontario Court of Appeal upheld the 6 month jail sentence of an offender who had been convicted of luring an underage child for the purpose of facilitating the offence of invitation to sexual touching. The accused received this sentence despite the fact that the “child” turned out to have been a police officer and the trial judge found that the offender was a low risk to reoffend.
[34] Finally, in R. v. Dobson, 2013 ONCJ 150, [2013] O.J. No. 1358 (OCJ), the court sentenced an offender who had engaged in 26 chats with an undercover officer who posed as an underage girl to 15 months imprisonment after giving him credit for 96 days of pretrial custody. The accused had asked the “virtual” victim for fellatio. He had pled guilty, had a supportive family and had a low risk of reoffending if he underwent treatment.
[35] The facts in Dehesh are more serious than that in the instant case given that the accused had sent a photograph of a penis to the victim. The conditional sentence imposed in Folino was justified given the exceptional mitigating factors in that case including the risk of suicide if the accused was incarcerated.
[36] In Jarvis, the facts were more egregious than that in the instant case given that the accused had sent pornographic pictures to the victim. However, the trial judge found that the accused posed a low risk to reoffend. The accused in Dobson received a 15 month jail sentence despite a plea of guilty. However, the Crown proceeded by indictment and the court found that the accused suffered from a variety of sexual disorders from which he had limited insight.
[37] After weighing the aggravating and mitigating factors in this case and reviewing the applicable case law, the appropriate sentence, in my view, is a period of incarceration of 8 months.
Disposition
[38] The appeal is allowed. The sentence is varied to one of eight (8) months custody. The appellant has served 34 days of his sentence and an additional 5 days custody after being arrested on a charge of breach of recognizance which was ultimately withdrawn. He also served 5 days of pretrial custody for which he received credit for 8 days. Mr. Mermer will receive credit for the 47 days in custody he has already served. Accordingly, he is required to serve an additional 6 months and 13 days in custody.
[39] The ancillary orders imposed by the trial judge will remain.
André J.
Released: May 27, 2015
CITATION: R. v. Mermer, 2015 ONSC 2715
COURT FILE NO.: SCA 719/13
DATE: 20150527
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
OMER MERMER
Appellant
REASONS FOR JUDGMENT
André J.
Released: May 27, 2015