COURT FILE NO.: CR-19-50000447
DATE: 20210525
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MIKAIL MOOLLA
Defendant
Katherine Rogozinski, Counsel for the Crown
Simon King, Counsel for the Defence
HEARD: May 14, 2021
M.A. CODE J.
REASONS FOR sentence
A. OVERVIEW
[1] The accused Mikail Moolla was tried by me, after re-electing trial by judge alone. It was a short trial conducted over the Zoom virtual platform during the COVID-19 pandemic. On April 1, 2021, I gave reasons finding him guilty of all three counts in the Indictment, as follows:
(i) internet child luring, contrary to s. 172.1(2)a;
(ii) making sexually explicit material available to a child, contrary to s. 171.1(2)a; and
(iii) breach of probation, contrary to s. 733.1(1).
[2] On April 19, 2021, written Reasons for Judgement were released in relation to the above three convictions. I heard sentencing submissions this morning, on May 14, 2021, and reserved judgement for about four hours. These are my Reasons for Sentence.
B. FACTS RELATING TO THE OFFENCES
[3] The facts relating to the three convictions are summarized in my written Reasons for Judgement and I will not repeat them in these Reasons for Sentence. See: R. v. Moolla, 2021 ONSC 2892.
[4] In very brief summary, Mr. Moolla placed an ad on Craigslist explicitly seeking a sexual relationship with a girl “at least 16 and at most 19.” An undercover police officer responded, posing as a 14-year-old girl named “Addison.” A lengthy text message conversation ensued over two full days, eventually leading to a planned meeting near Mr. Moolla’s condominium. The clear purpose of this conversation and the planned meeting was for Mr. Moolla and “Addison” to engage in sexual relations. The police arrested Mr. Moolla on November 17, 2017, shortly after he left his condominium and while he was walking towards a nearby café where “Addison” was said to be waiting for him.
[5] There is no dispute that Mr. Moolla was on probation at the time. On March 23, 2015, he had been convicted of two counts of criminal harassment. Weinper J. imposed a one-year conditional sentence and placed Mr. Moolla on probation for three years. By committing the internet child sex luring offence while on probation he was in breach of the term requiring that he “keep the peace and be of good behaviour.”
[6] The count in the Indictment alleging that Mr. Moolla made sexually explicit material available to “Addison” relates to the following communications: one text message, amongst the hundreds of messages, where Mr. Moolla sent a photograph of a partially erect male penis to “Addison” and said, “That’s me at half chub”; and the “numerous messages graphically describing their anticipated sexual activity,” as I put it in my Reasons for Judgement (supra at para. 12). The statutory definition of “sexually explicit material” set out in s. 171.1(5) includes both a “visual representation” and “written material” where the “dominant characteristic” is sexual.
[7] The Crown filed a lengthy “Community Impact Statement,” pursuant to s. 722.2, prepared by the Canadian Centre for Child Protection. It sets out an analysis of the harms and impacts associated with internet child luring. Much of this analysis has recently been adopted by the Supreme Court in its unanimous judgement in R. v. Friesen (2020), 2020 SCC 9, 391 C.C.C. (3d) 309 (S.C.C.).
C. FACTS RELATING TO THE OFFENDER
[8] I have little information about Mr. Moolla, as he largely declined to cooperate with the author of the Pre-Sentence Report (P.S.R.) and his counsel was not able to add much additional information.
[9] He was born on June 7, 1985 in Saskatoon, Saskatchewan, so he will turn 36 years old in a few weeks. The author of the P.S.R. states that Mr. Moolla’s mother “has a long history of mental health issues and [Moolla] was placed in the care of his grandparents when he was 10 months of age.” Mr. Moolla advised the author of the P.S.R. that “he cared about his mother very much.” He appeared to have no relationship with his father. His mother died when Mr. Moolla was in his 20s.
[10] Mr. Moolla was raised by his grandparents and it appears that he continues to have the support of his grandmother. She attended the court proceedings faithfully, over Zoom, and she purchased the condominium where Mr. Moolla resides (and where he was residing at the time of the present offences). However, Mr. Moolla’s relationship with his grandparents is hostile and unclear. He described it to the author of the P.S.R. as follows:
He explained that his grandmother did not care about him and in 2008 “dumped” him on a plane to Toronto. He stated that this is the manner in which his grandmother behaves and that she “deliberately” worsened his legal problems. The subject stated that he was residing on his own in the condominium that his grandmother purchased in Toronto. He expressed that his grandmother purchased the condominium for herself and that he “wanted a lawyer, not a condo.” He described both his grandmother and grandfather as being narcissists and advised that his grandfather is malicious, violent and impulsive towards all family members. The subject stated his grandmother remains married to his grandfather, condones his grandfather’s behaviour and he is of the opinion that his grandparents are the individuals who should be appearing before the Court. He reported that his grandmother has “slandered and defamed” him in front of doctors and the Court calling him “unemployable.” The subject advised that his grandmother is part of the reason that he suffered a mental breakdown and referred to her as being a “pathological liar and serial oath breaker”, adding “that’s just scratching the surface.” He also advised that his grandfather was a “pathological liar” and that both grandparents are narcissists and “it’s all about power” for them. He stated that “unfortunately” he was raised by his grandparents and would not comment on the whereabouts of his biological parents during his formative years. The subject advised that his grandfather threatened him with abuse and that he also was forced to watch his grandfather abuse his grandmother and other family members. He explained that he witnessed a lot of violence and cruelty but would not explain further stating that he felt same to be “too invasive” to be included in the report. The subject stated that he does not trust his grandparents. He described his grandmother as “meddlesome and controlling.” The subject stated that he is dependent on her for financial support and views said support as “penance money for what she did.” He expressed that he wants his grandmother to be put into jail and that he wants his 13 years back.
[11] At the sentencing hearing before me, Mr. Moolla added some further clarity to the above assessment of his hostility towards his grandparents, on two separate points. In terms of his grandmother slandering him “in front of doctors”, calling him “unemployable”, and being “part of the reason that he suffered a mental breakdown”, Mr. Moolla stated that he has been diagnosed as “high functioning Asperger’s Syndrome,” and that he accepts this diagnosis. However, he is adamantly opposed to seeking the kind of assessment, treatment, and counseling recommended in the P.S.R. (as I will explain below). The second point of clarification added by Mr. Moolla at the sentencing hearing related to his criminal record (which I will set out below). He explained that his criminal record reflects a history of wrongful convictions, and that he had wanted to retain a lawyer to try to set aside these convictions. This is what he was referring to when he told the author of the P.S.R. about a particular dispute with his grandmother, stating “I wanted a lawyer, not a condo.” Mr. Moolla made it clear to me that this dispute about helping him fight his criminal record was only one of many grievances he had with his grandmother.
[12] Mr. Moolla’s criminal record has four separate entries, as follows:
(i) in August 2006, at age 21, he was convicted in Saskatoon of carrying a concealed weapon. He was placed on probation for one year;
(ii) in May 2007, when he was almost age 22, he was convicted in Saskatoon of uttering threats. He was again placed on probation, this time for 18 months;
(iii) in September 2007, at age 22, he was convicted in Saskatoon of eight separate offences, as follows: break and enter and commit assault; two counts of assault causing bodily harm; three counts of mischief under; and two counts of breach of probation. He was given a two years less a day conditional sentence and three years probation;
(iv) in March 2015, at age 29, he was convicted in Toronto of two counts of criminal harassment. He received a one year conditional sentence and three years probation.
[13] Mr. Moolla apparently attended a Montessori school and a French Immersion school in Saskatoon when he was young and he graduated from grade 12. His only real employment history appears to be working from home as a photographer. He has also been employed “for a few months at a time” in “general labour jobs”, according to the P.S.R.
[14] In terms of Mr. Moolla’s mental health, the P.S.R. noted that he “met with a psychiatrist on a couple of occasions following sentencing on September 18, 2007”, however he was “resistant to any ongoing interactions with a psychiatrist” and he “refused medical intervention from the psychiatrist contracted to probation services”, presumably in Saskatchewan. He advised the author of the P.S.R. that he suffered “a major psychological collapse”, due to his “previous criminal convictions” in 2007, but that “he did not see anyone in order to address” these issues. The author of the P.S.R. concluded as follows in relation to the need for psychiatric assessment, treatment, and counseling, apparently relying on both the historical Saskatchewan probation records and the current Ontario probation records emerging from his most recent sentence in 2015:
Ministry Records noted that the subject presented as a “challenge to supervise given his diagnosis of Asperger’s Syndrome which is further compounded by his refusal to verbally communicate with his probation officers. This has made any meaningful work with the Offender difficult and he has also refused to engage in any kind of therapeutic intervention.” The subject also had “difficulty reporting, on a reliable basis” and often had to be called to be reminded of his reporting condition. “In reference to his offences, he takes no responsibility and has no insight into his behaviour or the impact he has had on his victims.” The subject incurred the charges currently before the Court during his previous period of community supervision. It was noted that the subject “is not considered a suitable candidate for further probation” given the above noted information.
[In 2007] he was referred to a number of treatment/counselling options. His grandmother arranged for him to meet with a psychiatrist and the subject attended “some appointments”, however, ceased his attendance when the psychiatrist recommended that the subject take prescription medication. The subject was then referred to the inhouse psychiatrist at the Probation Office, however, the psychiatrist “terminated his sessions as he was found to be extremely uncooperative and refused to take any medication.” He was subsequently hospitalized after he sent an e-mail threatening suicide to the Saskatchewan Court following the denial of his appeal. He was assessed by a psychiatrist in the hospital and was subsequently signed out of care by his grandmother after it was deemed that “the threat was more attention seeking in nature.”
“During Probation reporting sessions the Offender presented as extremely confrontational and opposed to any participation in reporting sessions.” Future community supervision was not recommended, however, should a period of community supervision be adjudged it was recommended that the primary focus should be on his “untreated mental illness.” Ministry Records noted that the subject had at some point been diagnosed with Asperger’s Syndrome and a Psychotic Disorder. However, a date was not noted for said diagnoses.
Ministry records noted that the subject has a diagnosis of Asperger’s Syndrome and a Psychotic Disorder. He verbalized that he does not have any interest in attending for any type of treatment or counselling. The subject should be encouraged to attend for psychiatric assessment and/or counselling in order for him to gain insight into the behaviours which have repeatedly brought him before the criminal justice system and to allow for an update to his previous diagnoses.
Taking into account the serious nature of the offences currently before the Court and the subject’s criminal record, it would appear essential that Mikail Moolla be provided the opportunity to benefit from professional intervention in a therapeutic setting where he could address the issues that have brought him before the Court on a recurrent basis as well as any presenting past and/or present unresolved personal issues.
[15] It is important to note that the above two references in the P.S.R. to a prior diagnosis of “Psychotic Disorder” are adamantly denied by Mr. Moolla and there is no evidence before the Court to support them. In addition, Mr. King made it clear that he never saw any evidence to support such a diagnosis in the course of representing his client, and never saw any basis to look into s. 16 issues relating to a mental disorder defence. At the hearing before me, as noted above, Mr. Moolla acknowledged the diagnosis relating to Asperger’s Syndrome but continued to oppose any psychiatric assessment, treatment, or counseling.
[16] The parties agree that Mr. Moolla is entitled to credit for six months of pre-trial custody. He was arrested on November 17, 2017 on the present charges. He spent 10 days in jail before he was released on bail. After three years on bail, he was re-arrested on November 28, 2020. I was not advised as to the nature of these further charges. However, he has remained in custody since he was re-arrested and the parties agree that this further period of approximately five-and-a-half months of pre-trial custody should be credited against the present charges. The parties also agree that the additional hardships resulting from lockdowns at the Maplehurst jail during the COVID-19 pandemic justify giving credit on a 2:1 basis. As a result, Mr. Moolla is entitled to one year credit for his six months of pre-trial custody.
D. THE POSITIONS OF THE PARTIES
[17] The Crown submits that the appropriate range of sentence for internet child sex luring is three to five years, due to the decisions in R. v. Woodward (2011), 2011 ONCA 610, 276 C.C.C. (3d) 86 at para. 58 (Ont. C.A.) and R. v. Friesen, supra at paras. 46, 99-100, and 113, and due to Parliament’s decision to increase the maximum sentence from 10 years to 14 years in 2015. These 2015 amendments clearly apply in the present case which took place in late 2017.
[18] The Crown situates the present case towards the bottom end of the three to five year Woodward and Friesen range because the top end of the range should be reserved for cases where an actual child victim is lured. However, the Crown notes a number of aggravating features in this case and submits that three to three-and-a-half years is the appropriate total sentence. The Crown submits that the other two counts – breach of probation and making sexually explicit material available – can be treated as aggravating features of the internet luring offence, in which case shorter sentences concurrent to the total global sentence can be imposed for those two less serious offences. Alternatively, the total or global sentence can be broken down into three shorter consecutive sentences that result in the same total sentence of three to three-and-a-half years.
[19] Mr. King, on behalf of the defence, agrees that the appropriate range of sentence for internet child sex luring has increased, as a result of Woodward and Friesen. However, he does not agree that the effect of those two cases is to settle on a three to five year range. He also disagreed with some of the aggravating features of the case relied on by the Crown. He submitted that the appropriate sentence is time served, based on credit for one year of pre-trial custody, followed by probation. I should note that Mr. King made it clear that this submission was based on his client’s “instructions” and not on his own independent assessment, as counsel, of the facts and the law. Mr. King also conceded that his client’s unwillingness to agree to any psychiatric assessment, treatment, and counseling limited the mitigating circumstances in the case.
E. ANALYSIS
[20] The principles of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code and I am bound by those principles. The fundamental principle of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender,” as set out in s. 718.1. It is now settled law, as a result of Woodward and Friesen and s. 718.01, that denunciation, deterrence, and protection of the public are the predominant sentencing objectives in this case as it involves an offence relating to the sexual abuse of children. Friesen also makes it clear that the undercover “sting” utilized in this case is a relevant factor, as the Crown concedes, but it does not reduce the moral culpability of the accused who intended to arrange sexual relations with a 14-year-old. See: R. v. Friesen, supra at paras. 93-4 and 101-105; R. v. Woodward, supra at para. 76; R. v. Harris, 2017 ONSC 940 at paras. 12 and 17; aff’d, 2019 ONCA 193.
[21] I agree with Ms. Rogozinski’s analysis, on behalf of the Crown, concerning the effect of Woodward and Friesen on the appropriate range of sentence for internet child sex luring. In Woodward, the Court of Appeal held that a range of three to five years would be appropriate if the offence of luring became “a pervasive social problem” and in light of Parliament having increased the maximum sentence from five years to 10 years in the 2007 amendments. In 2015, four years after Woodward, Parliament again increased the maximum sentence, from 10 years to 14 years. In 2020, the Supreme Court decided Friesen and held that “child-luring incidents more than doubled between 2010 and 2017”, that repeated increases in the maximum sentence mean that “courts need to give effect to Parliament’s clear and repeated signals to increase sentences”, and that the new range suggested in Woodward was to be “commended.” In all these circumstances, I am satisfied that three to five years is now the appropriate range. See: R. v. Woodward, supra at para. 58; R. v. Friesen, supra at paras. 46, 99-100, and 113-114.
[22] The more important aggravating circumstances in this particular case are the following, in my view:
• First, Mr. Moolla is a mature 35-year-old recidivist. He has no prior record for any offence relating to the sexual abuse of children. Nevertheless, he has a not insignificant prior criminal record;
• Second, he was on probation at the time of the present offences as a result of convictions for two counts of criminal harassment in 2015;
• Third, the child “Addison” was known to Mr. Moolla to be only 14 years old, in other words she was particularly young;
• Fourth, the character of the text messages in this case was aggravating for a number of reasons. They were graphically sexual, they were voluminous, they included a photograph of a partially erect male penis, they indicated a significant amount of planning, and they involved some degree of “grooming” in the sense that Mr. Moolla skillfully won “Addison’s” confidence and overcame her expressed shyness, naiveté, and inexperience. However, I agree with Mr. King that this latter consideration relating to “grooming” is not strong because Mr. Moolla was overt and explicit from the outset, that he was interested in sex with a young girl. See: R. v. Woodward, supra at paras. 41-3; R. v. Friesen, supra at paras. 125-6;
• Fifth, the luring over the internet led to an arranged meeting. In other words, Mr. Moolla moved beyond the essential elements of the luring offence and began to approach the elements of an attempt to commit sexual assault. See: R. v. Harris, supra at para. 16.
[23] On the other hand, there are few mitigating circumstances in this case. Indeed, none of the more common mitigating circumstances are present such as a guilty plea, the lack of a criminal record, insight into the offending behaviour, and a willingness to seek and accept treatment or counseling where appropriate. The absence of these mitigating factors is understandable because Mr. Moolla continues to deny his guilt and he intends to exercise his right to appeal. Accordingly, the absence of these normal or more common mitigating factors is not aggravating. It simply means that Mr. Moolla’s case is not situated at the most mitigated end of the appropriate range.
[24] The one mitigating circumstance that is present is Mr. Moolla’s grandmother, who continues to faithfully support him in spite of the obvious difficulties in their relationship. As a result of her support, he has a condominium where he can live and he has some financial assistance. These supports will undoubtedly assist him after he is released from any custodial sentence. However, this one mitigating factor is not strong, given Mr. Moolla’s hostility towards his grandmother which will reduce the positive effect of her willingness to help him.
[25] Balancing the above mix of mitigating and aggravating circumstances, I am satisfied that the appropriate sentence is three-and-a-half years imprisonment. I agree with the Crown that the high end of the Woodward and Friesen range is reserved for cases where an actual child victim is lured, because the harm is greater. However, the five significant aggravating factors mean that this case cannot be situated at the lowest end of the range.
[26] Given that I have treated the breach of probation as an aggravating factor in the above analysis of the luring offence, the sentence for this Count 3 offence should be six months imprisonment concurrent to the three-and-a-half year sentence on the Count 1 internet child luring offence.
[27] The Count 2 offence of making sexually explicit material available to a child has also been treated in the above analysis as an aggravating factor relating to the child luring offence. Accordingly, any sentence for this offence would have to be concurrent, in order to avoid “double counting.” However, in R. v. Harris, supra at para. 24-34, my colleague Justice Pomerance carefully and thoroughly analysed the application of the Kienapple principle to these two offences. She held that Kienapple applies and, as a result, she stayed the s. 171.1 offence. I appreciate that there is a minor factual distinction between the present case and the Harris case, because one picture was sent in the present case. However, that picture was part of a verbal written communication, which remained the overwhelmingly predominant form of communication in the luring offence. Accordingly, Harris should be followed in this case and the Count 2 conviction is stayed pursuant to the Kienapple principle.
F. CONCLUSION
[28] For all the above reasons, Mr. Moolla is sentenced to three-and-a-half years imprisonment on Count 1. After credit for 12 months of pre-trial custody, the sentence is reduced to two-and-a-half years. He is also sentenced to six months concurrent on Count 3. Finally, Count 2 is stayed pursuant to the Kienapple principle.
[29] I will address the ancillary Orders requested by the Crown orally, once I have received further submissions.
M.A. Code J.
Released Orally: May 14, 2021
Written Reasons Released: May 25, 2021
COURT FILE NO.: CR-19-50000447
DATE: 20210525
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MIKAIL MOOLLA
REASONS FOR senTence
M.A. Code J.
Released Orally: May 14, 2021
Written Reasons Released: May 25, 2021