Court File and Parties
COURT FILE NO.: 817-16 DATE: 2017-06-20 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – Steven Agoston Accused
Counsel: Julie Y. Lefebvre, for the Crown Renée E.M. Gregor, for the Accused
HEARD: October 19, 2016, January 27, May 11 and June 21, 2017
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR SENTENCING
Cornell J. (orally):
Introduction
[1] Mr. Agoston pled guilty to one count of distributing an intimate image without consent. I am now called upon to impose the sentence.
[2] In accordance with the reasons that follow, I grant Mr. Agoston a conditional discharge.
Background
[3] While driving a work vehicle, a co-worker of Mr. Agoston was using Mr. Agoston’s phone. While doing so, the co-worker sent two nude male images to the daughter of a family friend of Mr. Agoston.
[4] One such image showed the accused standing nude in front of a mirror. The second image showed a picture of a male in work overalls showing an exposed penis. Mr. Agoston denies that this is a photograph of him.
[5] The complainant believed that these pictures had been sent by Mr. Agoston. She responded by sending two pictures. One was a picture of her vagina. The defence submissions indicate that the other picture comprised a full body shot, but the face was covered by the presence of the camera. I note that the facts as read in referred to the shot of the vagina, but provided no details about the other picture. In view of this, all that can be said is that the facts that were read in did not suggest that there were features available on either photograph that would identify the complainant.
[6] Mr. Agoston indicates that although he knew that his co-worker was texting the complainant, he denied having any knowledge that such texting included naked photos of himself.
[7] When he arrived at his place of work, Mr. Agoston showed the naked images to two co-workers. When this came to the attention of a supervisor, the police were called to investigate. Mr. Agoston asserts that the images were deleted shortly after they were shown to his co-workers.
Position of the Parties
[8] This is not a case where a joint submission was presented.
[9] Upon the original return date, the Crown was seeking a conditional sentence and the defence was seeking a suspended sentence and period of probation. At that time, a pre-sentence report was ordered.
[10] Upon the next return date, the pre-sentence report was available. Given the information contained within that report, I indicated to all parties that in my opinion, this was a case where consideration needed to be given to the imposition of a conditional discharge. The matter was adjourned to permit both Crown and defence to consider this suggestion and to provide further written submissions.
[11] The Crown now submits that this is an appropriate case to impose a suspended sentence and a twelve-month period of probation. It is the position of the defence that this is an appropriate case for a conditional discharge to be imposed.
Sentencing Provisions
[12] The fundamental purpose and principles of sentencing are set out in s. 718 of the Criminal Code as follows:
- The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have 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 acknowledgment of the harm done to victims and to the community.
[13] Section 718.1 of the Criminal Code requires that a sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender”.
[14] I am also to be guided by the sentencing principles contained in s. 718.2 of the Criminal Code which, among other things, requires me to take into account any aggravating or mitigating circumstances relating to the offence or the offender, and to impose a sentence which is similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. By virtue of ss. 718.2 (d) and (e), an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders.
Aggravating Facts
[15] This offence is relatively new. It was created in response to concerns about the distribution of intimate images in a public forum. It is beyond question that the distribution of such intimate images carries with it the risk of psychological harm and embarrassment to the victims of such crimes.
[16] Furthermore, distribution via the internet can result in the image being forever available.
[17] However, this is not such a case. There was no internet distribution. The images were deleted shortly after they were shown to Mr. Agoston’s co-workers. While distributing intimate images is an aggravating factor, the “distribution” in the case before me was extremely limited and therefore falls on the less serious end of the spectrum of this offence.
Mitigating Factors
Guilty Plea
[18] Mr. Agoston chose to enter a guilty plea, albeit at a rather late stage in the proceedings. By entering such plea, Mr. Agoston spared the complainant from having to testify at his trial and took responsibility for his actions.
Criminal Record
[19] Mr. Agoston does not have a criminal record.
Remorse
[20] It is very clear from the information contained in the pre-sentence report and the evidence given by Mr. Agoston at the time of his sentencing hearing that he very much regrets his actions and the harm that it has caused. He is truly remorseful.
Planning/Deliberation
[21] There was no planning or deliberation on the part of Mr. Agoston to obtain the images in question. Indeed, it is acknowledged that he did not solicit the images.
Bail Conditions
[22] It is well accepted that time spent under stringent bail conditions must be taken into account as a relevant mitigating circumstance when sentencing: see R. v. Downes.
[23] The terms of Mr. Agoston’s initial recognizance of bail imposed upon him a curfew, precluded him from having a smartphone or computer, and prohibited him from being in the company of or communicating with females under the age of 18 years unless in the presence of his surety.
[24] Some months later, the terms of his recognizance of bail were amended to delete the curfew, but still prevented him from having access to the internet via a smartphone or a computer, precluded him from having any paid or unpaid activity that involved being in a position of trust or authority towards persons under the age of 16 years, and prevented him from being in the company or communicating directly or indirectly with females under the age of 18 years unless in the presence of certain individuals.
[25] Mr. Agoston was subject to these various terms and conditions for a period of approximately two years. Given Mr. Agoston’s family and employment circumstances, it is my view that Mr. Agoston has been subject to stringent bail conditions. This is a mitigating factor that needs to be taken into consideration in crafting a fit sentence: see R. v. Vincent, 2014 ONSC 1068, at para. 28; R. v. White, 2014 ONSC 2878, at paras. 75 and 104; and R. v. Dass, at paras. 90-98.
Victim Impact Statement
[26] No victim impact statement was provided.
Pre-Sentence Report
[27] The pre-sentence report can only be described as very favourable.
[28] Apart from this offence, Mr. Agoston has been a law-abiding citizen engaged in a pro-social life. He has a strong work ethic and has been steadily employed. He has no substance abuse or mental health issues.
[29] He was involved in what is described as a tragic breakdown of his first marriage. He was called upon to raise two children of that union after the children’s mother abandoned the family. He is now in a supportive common-law relationship with a woman with whom he has had a child, and who has two young children of her own. As a result, Mr. Agoston is currently responsible along with his partner to care for and raise five children.
[30] The assessment contained in the pre-sentence report concludes as follows:
The subject is a first time offender before the Court who seems to stem from a positive family of origin. The subject is in a stable interpersonal relationship, is gainfully employed and is the sole provider for five dependents. Collaterals have suggested the subject’s criminal behaviour was out of character for him. The subject does not present with any substance abuse or mental health issues.
As well the subject does not present with any criminogenic needs at this time.
Analysis
[31] A conditional discharge is available if the following criteria set out in s. 730(1) of the Criminal Code are met: (1) there is no mandatory minimum; (2) the offence is not punishable by a term of 14 years or life; (3) it is in the best interests of the accused; and (4) it is not contrary to the public interest.
[32] The first two criteria have been satisfied in that no minimum sentence is prescribed for this offence and the maximum sentence is five years. I now turn to a consideration of the third and fourth criteria.
[33] A useful explanation of the third and fourth criteria can be found in R. v. Elsharawy, at para. 3:
For the court to exercise its discretion to grant a discharge under s. 730 of the Criminal Code, the court must consider that that type of disposition is: (i) in the best interests of the accused: and (ii) not contrary to the public interest. The first condition presupposes that the accused is a person of good character, usually without previous conviction or discharge, that he does not require personal deterrence or rehabilitation and that a criminal conviction may have significant adverse repercussions. The second condition involves a consideration of the principle of general deterrence with attention being paid to the gravity of the offence, its incidence in the community, public attitudes towards it and public confidence in the effective enforcement of the criminal law. See R. v. Fallofield (1973), 13 C.C.C. (2d) 450 (B.C.C.A.) and R. v. Waters (1990), 81 Sask. R. 126; 54 C.C.C. (3d) 40 (Q.B.).
The Ontario Superior Court of Justice has adopted this interpretation of the “best interests of the accused condition”: see R. v. Burke at para. 8, and R. v. Shaw, at para. 15. This view aligns with what Arnup J.A. previously stated in R. v. Sanchez-Pino, [1973] 2 O.R. 314 (C.A.), at p. 320.
Best Interests of the Accused
[34] I am satisfied that it is in the best interests of the accused to receive a conditional discharge.
[35] In this day and computer internet age, the existence of a criminal record has become increasingly problematic for a variety of reasons including ease of availability. A criminal record has the potential to impact employment and travel opportunities. Background checks are now often required for social, athletic and extra-curricular activities, particularly when children may be involved.
[36] Mr. Agoston has a family of five children to raise. To preclude Mr. Agoston from travelling with his family, limiting his employment opportunities and his ability to become involved in his children’s activities would not just impose undue and unnecessary hardship, but in the overall scheme of things, be counterproductive.
[37] Mr. Agoston is a person of good character. He has no prior criminal convictions. In my view, he does not require personal deterrence or rehabilitation. As I have set out, a criminal conviction would likely have significant adverse repercussions upon him. In view of this, I am satisfied that it is in Mr. Agoston’s best interests that a conditional discharge be imposed.
Not Contrary to the Public Interest
[38] I understand the Crown to argue that given the nature of this offence, deterrence and denunciation should be among the primary sentencing considerations with the result that a conditional discharge should not be available to this accused.
[39] It has long been recognized that deterrence and denunciation can be satisfied without imposing a conviction: see R. v. Fallofield, 1973 B.C.J. NO. 559 (CA.), at para. 21.
[40] It has been held that it would be an error to find that a discharge was not available to an offender merely due to the nature of the offence: see R. v. Taylor, [1975] O.J. 706 (ONCA).
[41] Discharges are not confined to any offence or class of offences, unless expressly excluded by Parliament: see Sanchez-Pino, at p. 320.
[42] A suspended sentence is not necessarily a greater deterrent than a conditional discharge: see R. v. Cheung & Chow (1976), 19 Crim. L.Q. 281 (Ont. C.A.).
[43] Discharges are not only reserved for “trivial” matters, they are just as available for offences that bear the stigma of serious criminal misconduct: see R. v. Vicente (1975), 18 Crim. L.Q. 292 (Ont. C.A.).
[44] In this case, not only is it not contrary in the public interest to grant a conditional discharge, it is in the public interest to do so. Society has an interest in seeing that Mr. Agoston is employed to his full potential, remains a dedicated and supportive parent and for him to be able to be fully involved in his children’s social, athletic and extra-curricular activities.
Conclusion
[45] There is nothing before me to suggest that this offence constituted something other than a momentary lapse in judgment by Mr. Agoston. I have every reason to believe that this will be the one and only time when he will be involved in the criminal justice system. Given this belief and taking into account all of the other factors that have been considered, I do not believe that it would serve either Mr. Agoston or society at large to impose upon him a criminal record.
[46] I am satisfied that it is in the best interests of Mr. Agoston and that it is not contrary to the public interest that I impose upon him a conditional discharge. I impose a twelve month period of probation on the following terms and conditions:
- Report to a probation officer and thereafter be under the supervision of a probation officer and report at such times and places as may be directed by your probation officer and/or designate;
- Not to associate directly or indirectly or have any contact with the complainant and not to attend her residence or place of employment, education or worship;
- Not to exchange any intimate images via personal data devices such as a smart phone, tablet, computer to any individual and not to save or maintain any intimate images on your computer or personal data devices.
The Honourable Mr. Justice R. Dan Cornell
