COURT FILE NO.: CR-20-40000271-0000
DATE: 20220210
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
her majesty the queen
- and -
SERGIO BAHAMONDE
J. Andres Hannah-Suarez and
Andrew Weafer, for the Crown
Anthony Demarco, for Mr. Bahamonde
HEARD: October 20, December 14, 2021; and January 11, 2022
corrected REASONS FOR SENTENCE
Corrections made February 23, 2022: At para. 82, Count #7, the following text was added: ‘to all Counts except Count #24; consecutive to Count #24’; and at para. 82, Count #24, the following text was added: ‘to all Counts’.
WARNING
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(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) 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 victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.
486.6(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.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
M. FORESTELL J.
REASONS FOR SENTENCE
1. Overview of the Case
[1] Mr. Bahamonde entered guilty pleas on September 10, 2021 to the following charges:
Criminal Harassment (victim A.K.; Count #3 on the indictment; date of offence: January 1, 2014 to May 24, 2019);
Threatening Bodily Harm (victim I.K.; Count #6 on the indictment; date of offence: May 21, 2019);
Luring (victim I.K.; Count #7 on the indictment; date of offence: May 21, 2019);
Distribution of Child Pornography (victim I.K.; Count #10 on the indictment; date of offence: May 21. 2019);
Threaten Bodily Harm of person unknown (threat uttered to A.C. re unknown person; Count #12 on the indictment (plea to other offence); date of offence: May 21 to 22, 2019);
Possession of Child Pornography (Count #14 on the indictment; date of offence: May 24, 2019);
Criminal Harassment (victim G.D.; Count #16 on the indictment; date of offence: January 1, 2014 to July 24, 2019);
Make Child Pornography (victim G.D.; Count #18 on the indictment; date of offence: January 1, 2014 to July 24, 2019);
Distribute Child Pornography (victim G.D.; Count #20 on the indictment; date of offence: January 1, 2014 to July 24, 2019);
Luring (victim G.D.; Count #24 on the indictment; date of offence: January 1, 2014 to July 24, 2019);
Fail to Comply with Recognizance (Count #27 on the indictment; date of offence: July 24, 2019); and
Fail to Comply with Recognizance (Count #28 on the indictment; date of offence: July 24, 2019).
[2] Mr. Bahamonde entered a plea of not guilty to Count 15 on the indictment, a charge of voyeurism. After a three-day trial, I found Mr. Bahamonde guilty of the voyeurism charge.[^1]
[3] A sentencing hearing took place over three days in late 2021 and early 2022. I reserved my decision on sentencing until today.
Circumstances of the Offences
Overview
[4] The offences committed by Mr. Bahamonde began in early 2014 and continued until July of 2019. They involved four identified individual victims. The child pornography charges involved two of those victims and also involved unidentified children. The evidence of the circumstances of the offences for the purposes of sentencing includes an Agreed Statement of Fact, the Chat Logs and other communications between Mr. Bahamonde and the victims and samples of the child pornography.
Count # 3 Criminal Harassment of A.K.
[5] Mr. Bahamonde and A.K. were involved in a relationship from around 2011 to 2014. After A.K. ended that relationship, she received numerous unwanted communications from Mr. Bahamonde. In these communications, Mr. Bahamonde threatened to harm or kill A.K. and her family. He also threatened to distribute nude photos of A.K. over the Internet.
[6] As an example, on June 2, 2014, Mr. Bahamonde sent an email to A.K. that read in part, “ … I will not rest until I see you squirming in pain being [sic] me to kill you. You had a choice, now face the consequences.” In another email, Mr. Bahamonde threatened to come to her home at night and “make you mine”. In a video statement after Mr. Bahamonde’s arrest on July 24, 2019, he admitted to relentlessly contacting A.K. at the end of their relationship.
Counts 6, 7 and 10 – Victim I.K.
[7] I.K. was contacted by Mr. Bahamonde in May of 2019 through the social messaging application, SnapChat. She did not know Mr. Bahamonde. At the time, I.K. was 15 years old. She told Mr. Bahamonde her age.
[8] From May 20, 2019 to May 24, 2019, Mr. Bahamonde sent I.K. a number of SnapChat messages under a pseudonym. In these conversations, Mr. Bahamonde repeatedly asked I.K. to send him photos of her breasts. She refused to do so (Count #7 - luring). Mr. Bahamonde then sent her a photo of her GPS location, which he was able to obtain through her SnapChat location settings. Mr. Bahamonde also made reference to schools I.K. had previously attended.
[9] Mr. Bahamonde then told I.K. to be a “good girl” like “these other girls” and he sent her a number of sexually explicit photos of other young girls. I.K.’s grandmother also viewed and described these photos to police. The images were not recovered by police due to the nature of the SnapChat platform (the social messaging application automatically deletes messages after a short period of time). Based on the details provided by I.K. and another complainant, the images depicted underage girls in sexually explicit positions, thus meeting the definition of child pornography (Count #10 – distribution of child pornography).
[10] The accused also told I.K. that he would “enjoy raping” her. The following is an example of the exchanges between I.K. and Mr. Bahamonde (using the pseudonym Zionis Roman):
IK: …And this is so stupid all bc I won’t send you a photo of my tits
ZR: Which again could have been done by now. But nope we have to keep going until we both are totally fucked
IK: …There is something call porn hub you know right?
ZR: Are there 15 year olds in porn hub? No I don’t want that fake grandma pussy. Send something or Thursday will be a bad bad day
ZR: Send your tits bitch before I seriously go after you
ZR: Fuck you bitch you are dead
ZR: When you are almost home and the rock just smashes your head imma [sic] sit there and just watch you bleed
ZR: Walk out to St Clair and get fucking stabbed like the bitch you are
(Count #6 – threat to cause bodily harm)
[11] In a video statement made to the police on July 24, 2019, Mr. Bahamonde admitted to knowing I.K.’s age, soliciting intimate images of I.K. and making the threats. However, he said that he was trying to teach her about internet safety.
Count #12- Threaten Bodily Harm -Victim A.C.
[12] A.C. is a friend of I.K. When Mr. Bahamonde was asking I.K. for nude images, I.K. told her friend A.C. who then contacted Mr. Bahamonde and asked him to stop bothering I.K. Mr. Bahamonde responded by soliciting nude images of A.C. A.C. did not explicitly mention her age to Mr. Bahamonde. In the course of the exchanges between Mr. Bahamonde and A.C., Mr. Bahamonde sent the following message: “Send your tits bitch, you fucking loser … Before I choke that sorry sissy boy bf with my cock, send your tits.”
Counts 16, 18, 20 and 24 – Victim G.D.
[13] G.D., who lives in the United Kingdom, contacted police after the police issued a press release about Mr. Bahamonde in May of 2019.
[14] G.D. and Mr. Bahamonde began communicating on-line in 2014 or 2015 when G.D. was 15 years old. G.D. told Mr. Bahamonde her age. Mr. Bahamonde was 21 or 22 years old at the time. Mr. Bahamonde frequently requested that G.D. send him sexually explicit images and videos of herself (Count #24, luring). G.D. complied and sent images and videos (Count #18, making child pornography).
[15] Mr. Bahamonde travelled to the U.K. in 2016, arriving just before G.D. turned 17 and leaving after her birthday. During that visit, they had sexual intercourse in a hotel room.
[16] At the end of 2017, G.D. tried to end the relationship. Mr. Bahamonde sent G.D.’s parents a link to a Dropbox account containing at least 70 sexually explicit images of G.D. Mr. Bahamonde also published images of G.D. on pornography sites with G.D.’s contact information (Count # 20, distributing child pornography).
[17] Mr. Bahamonde threatened to continue the harassing activities unless G.D. continued to interact with him online. He also threatened to harm G.D. or members of her family (Count #16, criminal harassment).
[18] In October of 2018, Mr. Bahamonde sent G.D. his flight itinerary from Toronto to London, England. Mr. Bahamonde once again made threats to harm G.D. and her family. G.D. reported this to the police in England and they arrested Mr. Bahamonde outside her home on November 12, 2018. Mr. Bahamonde was cautioned and released, and he returned to Toronto.
[19] Mr. Bahamonde continued contacting G.D. with sexually explicit images and images of his genitals into 2019, even after he was arrested for the first time by the Toronto Police Service (the “TPS”) on May 24, 2019.
[20] When police executed the search warrant on Mr. Bahamonde’s home, they located the sexually explicit images that G.D. had sent Mr. Bahamonde when she was a minor.
Count #14 Possession of Child Pornography
[21] On May 24, 2019 the TPS executed a search warrant at the home of Mr. Bahamonde in response to the allegations made by I.K. During the search, a number of electronic devices were seized. When the devices were examined, police located 1,036 sexually explicit images of children that meet the definition of child pornography (334 unique images), as well as 111 videos (59 unique videos). Many of those materials depict G.D. when she was a minor. The child pornography content includes victims of all ages ranging from approximately three to 17 years of age, including a series of images showing a child who appears to be around three years old being victimized by an adult. Multiple videos located by the police appear to have been captured during online video chats. Investigators also found evidence that Mr. Bahamonde had been accessing child pornography on his cloud storage Dropbox account. The police were unable to break past the encryption on some of his seized devices.
[22] Samples of the images were filed as a sealed exhibit on sentencing. I viewed eight still images and five videos.
Count 15- Voyeurism
[23] Mr. Bahamonde admitted that he created “up-skirt” recordings on his cellphone between April 27, 2018 and May 3, 2019. The images and videos were recorded on the TTC and on the street. Mr. Bahamonde told the police in his July 24, 2019 statement that the recordings were made with consent. He told the police that he hired escorts to attend the TTC station and to permit him to make the recordings.
[24] I found that the recordings were inconsistent with this explanation and were consistent only with the inference that there was no consent on the part of the women who were recorded.
Counts 27 &28 – Fail to comply with Recognizance
[25] Mr. Bahamonde was originally arrested on the charges relating to I.K. on May 24, 2019. He was released on bail on May 27, 2019. Two conditions on his release order were: (1) not to possess any computers, CDs, DVDs, cellphones, MP3 Players, IPods, USB Drives, Memory Cards, Digital Cameras, or anything else capable of storing digital images such as videos unless he was in the direct company of his surety; and (2) not to possess any images and/or videos of children under the age of 18.
[26] Mr. Bahamonde was re-arrested on July 24, 2019 in relation to the images that had been located on his electronic devices. At the time of his arrest, he was travelling on a TTC bus without his sureties. He was using a ZTE cell phone with access to the Internet and with digital storage capabilities.
[27] The ZTE phone was seized by police and examined pursuant to a search warrant. Police located evidence that Mr. Bahamonde had accessed Skype, pornography sites and child pornography photos of G.D. and of other children.
[28] G.D. also told the police that after Mr. Bahamonde was released on May 27, 2019, Mr. Bahamonde continued to communicate with G.D. online, sending her sexually explicit messages, every few days. G.D. indicated that Mr. Bahamonde would tell her when he was not able to talk because his father (and surety) was coming into the room. In his second statement to the police on July 24, 2019, Mr. Bahamonde admitted to breaching his bail conditions.
Victim Impact
[29] I.K., G.D. and their families filed Victim Impact Statements. I.K. and her grandmother wrote about the ongoing impact of the trauma on I.K. I.K. continues to be anxious and afraid. She continues to fear for her safety because of Mr. Bahamonde’s violent threats. I.K. also said that she cannot get the images of child pornography that Mr. Bahamonde sent to her out of her head.
[30] G.D. recounted that she has been impacted physically, mentally and emotionally. Her confidence and self-worth were shaken. She continues for fear for her safety — not only because of Mr. Bahamonde’s threats, but because of Mr. Bahamonde’s actions in posting her personal details and contact information on pornography sites. She is fearful for her own safety and that of her family. G.D.’s mother wrote of the serious impact of Mr. Bahamonde’s crimes on the mental health of both G.D. and her younger sister. The stress and anxiety suffered by her daughters also impacted G.D.’s mother’s physical and mental health.
[31] I have also received and considered the Community Impact Statement filed on behalf of identified and unidentified victims of the child pornography charges.
Circumstances of Mr. Bahamonde
[32] Mr. Bahamonde was 20 or 21 years old when he committed the first offence on this indictment in 2014 (the criminal harassment of A.K.). He was 25 years old when he was arrested in 2019. He is now 28 years old. He has no prior criminal record.
[33] Mr. Bahamonde’s background and personal history are set out in some detail in the reports of Dr. Julian Gojer and Dr. Mark Pearce, forensic psychiatrists who assessed Mr. Bahamonde.
[34] Mr. Bahamonde lives with his parents and younger brother. He was born in Ecuador. He and his family moved to Canada when Mr. Bahamonde was entering grade eight. He completed grade eight and attended high school, but he did not initially complete high school in Canada. He reported being bullied in high school. He returned to Ecuador and completed high school in Ecuador in 2016. In 2020 he obtained his Ontario Secondary School diploma. In January of 2021, while on release for these charges, he began a College program in Hospitality, Tourism and Culinary Arts. Mr. Bahamonde worked at various jobs from about 2012 to 2015.
[35] Mr. Bahamonde’s parents remain supportive of Mr. Bahamonde.
[36] Mr. Bahamonde began abusing substances in about 2013. He consumed large quantities of alcohol and also used large quantities of cannabis. He occasionally mixed the cannabis with MDMA and LSD. When he and his parents were in Ecuador in July of 2014, his mother discovered a large quantity of cannabis in their apartment. Mr. Bahamonde’s parents took him to a rehabilitation facility where he spent eight months. Mr. Bahamonde reported to Dr. Gojer that the rehabilitation programme did not help him and was ‘like jail’. He reported that he suffered post-traumatic stress from his experience in the facility.
[37] Mr. Bahamonde suffered an injury to a testicle when he was 13 years old. The testicle had to be removed. Mr. Bahamonde reported to Dr. Gojer that the loss of his testicle was a significant event in his life and that he felt like he was ‘half a man’. Dr. Gojer’s opinion was that the loss of the testicle had contributed to Mr. Bahamonde’s feelings of inadequacy, low self-esteem, and his problems with his identity as a male.
[38] Both Dr. Gojer and Dr. Pearce diagnosed Mr. Bahamonde as suffering from a personality disorder. Dr. Pearce’s opinion is that Mr. Bahamonde has a mixed personality disorder with borderline and narcissistic traits. Dr. Gojer’s opinion is that Mr. Bahamonde has a borderline personality disorder.
[39] Mr. Bahamonde underwent phallometric testing that showed a sexual preference for consenting sexual activity with adult females. The testing showed some level of response to female children but this did not meet the cut-off for a valid response. Similarly, there was some response to sexual violence that did not meet the cut-off for a valid response.
[40] Mr. Bahamonde has engaged in weekly or biweekly psychotherapy sessions at the Black Creek Community Health Centre since November 2019. He also attended a 20-session Sex Offender Group Therapy Session with Dr. Gojer. He is described as actively engaged in therapy. Dr. Gojer’s opinion is that he has developed insight.
[41] The actuarial risk assessments administered by Dr. Pearce suggested a moderate to high risk of future sexual offence (Static 99R) and a moderate risk of future violent behaviour (HCR-20). Dr. Gojer administered the Static 99R and rated Mr. Bahamonde as a high risk for future sexual offence based on the instrument. However, Dr. Gojer’s report states that his opinion is that because Mr. Bahamonde has engaged in treatment and developed insight, his risk of future sexual offences is now low to low-moderate and his risk of future violent offences is low.
[42] Under cross-examination, Dr. Gojer clarified the risk level saying that there was a high risk of Mr. Bahamonde offending as he has in the past but a low risk of Mr. Bahamonde causing physical injury. Dr. Gojer states in his report that he would be concerned for pubescent females.
Positions of the Parties
[43] The Crown position is that appropriate sentences for each of the offences to be served consecutively would result in a global sentence of 14 to 15 years’ imprisonment. Applying the totality principle, the position of the Crown is that a total sentence of at least nine years is appropriate before credit for presentence custody and strict bail.
[44] Counsel for Mr. Bahamonde argues that a total sentence of five years’ imprisonment is appropriate before credit for presentence custody and strict bail.
[45] Mr. Bahamonde spent 192 actual days in custody. There were lockdowns for 96 of those days. It is not disputed that Mr. Bahamonde’s sentence should be mitigated by these conditions in accordance with the principles in R. v. Duncan[^2] . The defence seeks a reduction of approximately .5 for every day of lockdown.
[46] Mr. Bahamonde was on a strict bail, including house arrest for 687 days or about 22 months. He submits that his sentence should be further reduced by approximately 11 months for the time spent on strict bail.
[47] Mr. Bahamonde is entitled to statutory or Summers[^3] credit for the 192 days at 1.5:1 or 288 days.
Legal Principles and Analysis
Aggravating and Mitigating Circumstances
[48] In determining an appropriate sentence, I must consider any aggravating or mitigating factors relating to the circumstances of the offences and the circumstances of the offender.
[49] There are several aggravating factors in this case.
[50] With respect to the criminal harassment of A.K., the harassment involved explicit threats of violence. The harassment went on for a lengthy period of time. A.K. was a former intimate partner which is also an aggravating factor.
[51] With respect to the offences against I.K., the age and vulnerability of I.K. is an aggravating factor on the charges of threatening bodily harm and distributing child pornography.
[52] With respect to the offences against G.D., aggravating factors are G.D.’s age at the time of the threats, the lengthy duration of the harassment and the fact that Mr. Bahamonde persisted in this conduct even after his arrest in May of 2019.
[53] The aggravating factors on the charges of possessing, distributing and making child pornography are that Mr. Bahamonde possessed a significant number of images, and he distributed them strategically for the purpose of harming G.D. and for the purpose of luring I.K. into providing images of herself. The number and nature of the images is also an aggravating factor, particularly with the inclusion of very young children.
[54] There are no mitigating factors with respect to the circumstances of the offences. There are mitigating factors with respect to Mr. Bahamonde’s circumstances. He is a youthful first offender. He has strong family support. He has sought treatment and has engaged meaningfully in the treatment. He entered guilty pleas to most of the charges against him, saving the victims from having to testify. His guilty pleas are indicative of remorse. He has prospects for rehabilitation.
Fundamental Principle of Sentencing
[55] The fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.[^4]
[56] The gravity of sexual offences against children was described by the Supreme Court of Canada in R. v. Friesen:[^5]
47 New technologies have enabled new forms of sexual violence against children and provided sexual offenders with new ways to access children. Social media provides sexual offenders ‘unprecedented access’ to potential child victims (R. v. J. (K.R.), 2016 SCC 31, [2016] 1 S.C.R. 906(S.C.C.), at para. 102). The Internet both directly connects sexual offenders with child victims and allows for indirect connections through the child's caregiver. Online child luring can be both a prelude to sexual assault and a way to induce or threaten children to perform sexual acts on camera (see R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81 (Ont. C.A.); R. v. Rafiq, 2015 ONCA 768, 342 O.A.C. 193 (Ont. C.A.)). The Internet has also ‘accelerated the proliferation of child pornography’ (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.), at para. 114, per Deschamps J.).
48 Technology can make sexual offences against children qualitatively different too. For instance, online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child's life at any time (R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 (S.C.C.), at para. 92; R. v. J.S., 2018 ONCA 675, 142 O.R. (3d) 81 (Ont. C.A.) [hereinafter S. (J.)], at para. 120).
51 ...[T]he production of child pornography traumatizes children and violates their autonomy and dignity by treating them as sexual objects, causing harm that may stay with them for their entire lifetime (para. 92, per McLachlin C.J., and para. 185, per L'Heureux-Dubé, Gonthier and Bastarache JJ.). Sexual violence against children is thus wrongful because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity (see Sharpe, at paras. 172, 174 and 185, per L'Heureux-Dubé, Gonthier and Bastarache JJ.).
52 We would note that the personal autonomy interest carries a somewhat different meaning for children than it does for adults… personal autonomy refers to a child's right to develop to adulthood free from sexual interference and exploitation by adults (see Sharpe, at para. 185).
76 Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender's actions and the consequential harm to children and their families, caregivers, and communities (see M. (C.A.), at para. 80; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90(S.C.C.), at para. 35).
[57] Not only are offences against children serious, but the fact that the victim of an offence is a child increases the offender’s degree of responsibility. As the Supreme Court of Canada held in Friesen, at para. 90,
Put simply, the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable (R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3(S.C.C.), at para. 153). As L'Heureux-Dubé J. recognized in R. v. W. (L.F.), 2000 SCC 6, [2000] 1 S.C.R. 132 (S.C.C.), ‘As to moral blameworthiness, the use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst of intentions’ (para. 31, quoting R. v. W. (L.F.) (1997), 1997 CanLII 10868 (NL CA), 155 Nfld. & P.E.I.R. 115 (Nfld. C.A.), at para. 117, per Cameron J.A. (‘L.F.W. (C.A.)’)). Offenders recognize children's particular vulnerability and intentionally exploit it to achieve their selfish desires (Woodward, at para. 72).
[58] The circumstances of the offences in this case include the various forms of harm identified in Friesen. Mr. Bahamonde used technology to gain access to and to exploit children. He distributed images of G.D., causing ongoing harm to her and also harming I.K. who was unwillingly exposed to the images. He harmed G.D., I.K. and their families. He damaged their sense of safety and security. The harm is significant.
[59] In addition to the offences involving G.D. and I.K., Mr. Bahamonde threatened bodily harm to the boyfriend of A.C. in a conversation in which he demanded intimate photographs and Mr. Bahamonde criminally harassed and threatened his former partner, A.K. He harassed and threatened G.D. when she tried to end contact with him. He engaged in a course of conduct over five years in which he used threats and abuse to attempt to gain virtual or actual access to sexual contact with children or young women.
Objectives of Sentencing
[60] In arriving at an appropriate sentence, I must consider the objectives of sentencing. The fundamental purpose of sentencing is to protect society and to foster respect for the law and the maintenance of a just, peaceful, and safe society by imposing sanctions that have one or more of the following objectives: denunciation, specific and general deterrence, the separation of the offender from society where necessary, rehabilitation of the offender, and the promotion of a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.[^6] When sentencing for offences against children, I must give primary consideration to the objectives of denunciation and deterrence[^7].
[61] The objective of the protection of society takes on particular significance in sentencing for offences against children. Where an offender presents an increased likelihood of reoffending, the objective of separating the offender from society must be emphasized[^8]. The likelihood of reoffending is also relevant to the objective of rehabilitation. The protection of children may in some cases only be accomplished by a lengthy sentence that enables the offender to engage in treatment in prison before release into the community[^9].
[62] In this case, there is a prospect of rehabilitation for Mr. Bahamonde. He is a young man and he has engaged in therapy and treatment. Dr. Gojer and his therapist at the Black Creek Community Health Centre indicate that his participation has been meaningful and that he has developed insight. I accept that Mr. Bahamonde’s engagement in treatment has lowered his risk.
[63] However, I find that Mr. Bahamonde continues to present a risk of reoffending, particularly against intimate partners and pubescent females. His actions in offending while on bail showed poor insight and impulse control. He continued contact with G.D. and he accessed child pornography. Dr. Gojer expressed concern for pubescent females. Dr. Pearce was of the opinion that Mr. Bahamonde posed a moderate to high risk of committing future violent and/or sexual offences. Both doctors recommended that during his incarceration, Mr. Bahamonde should engage in sex offender programming, domestic violence treatment and substance abuse disorder treatment.
[64] In light of the opinions of Dr. Gojer and Dr. Pearce and in light of Mr. Bahamonde’s prolonged period of offending and his pattern of harassing and exploiting children, I find that separating Mr. Bahamonde from society is an objective of sentencing in this case. A lengthy period of incarceration is necessary to protect society by confining Mr. Bahamonde until he has engaged in a significant period of in-custody treatment. A lengthy period of incarceration is required to meet all of the relevant objectives of sentencing in this case: denunciation, deterrence, rehabilitation and the separation of Mr. Bahamonde from society.
Sentences for Similar Offences and Offenders
[65] A further principle of sentencing is that the sentence imposed should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[66] The voyeurism charge in this case falls at the lower end of seriousness. There is no evidence that Mr. Bahamonde distributed the images. There was no breach of trust involved and there is no evidence that the victims were minors. The range of sentence for voyeurism in such circumstances is from a suspended sentence to a short period of incarceration.[^10]
[67] The range of sentence for the offence of luring is three to five years’ imprisonment. This range was established in the cases of R. v. Woodward[^11] and R. v. Friesen.[^12] The position of the Crown is that the offences in this case should attract sentences at the higher end of that range. Many luring cases involve police officers posing as children rather than actual victims. Cases involving actual victims and actual harm to identified victims rightly attract more severe sentences.
[68] In this case, both I.K. and G.D. were threatened and harassed by Mr. Bahamonde in the course of the luring. The threats were disturbing and manipulative. The conduct of Mr. Bahamonde in sending images of G.D. to her family and posting images of her on the Internet in order to continue his control of her is highly aggravating. Mr. Bahamonde’s conduct in sending images of children in sexually explicit positions to I.K. in the course of the luring is also aggravating. The aggravating factors in this case situate this case at the higher end of the range of sentence for luring.
[69] The range of sentence for child pornography possession is from imprisonment in the intermittent range to three and one-half years.[^13] The number and nature of the images are important factors in determining the appropriate sentence for possession of child pornography. In R. v. Inksetter, the Court of Appeal allowed an appeal from a sentence of two years less a day and imposed a sentence of three years for an offender who possessed over 28,000 unique images and over 1,000 unique videos of child pornography. The images included images of bondage and bestiality. The Court of Appeal imposed a concurrent sentence of 3.5 years’ imprisonment for the offence of making the child pornography available. In the case of R. v. Carlos,[^14] the offender was sentenced to three years for possessing child pornography and three years concurrent for making child pornography available. Mr. Carlos, like Mr. Bahamonde was a first offender. He possessed fewer images than Mr. Bahamonde.
Concurrent or Consecutive Sentences and the Totality Principle
[70] I must also be cognizant of the totality principle in arriving at an appropriate sentence.
[71] I recognize that concurrent sentences are generally imposed where multiple charges are part of the same transaction or are closely connected and that separate and distinct offences will ordinarily attract consecutive sentences. However, the cumulative sentence must not exceed the overall culpability of the offender[^15]. The sentence must not extinguish the rehabilitative potential of the offender[^16].
[72] In the case of R. v. Ahmed,[^17] Van Rensburg J.A. described the approach to sentencing for multiple offences and the application of the totality principle and wrote that “the trial judge should first identify the gravamen of the conduct giving rise to all of the criminal offences and next determine the total sentence to be imposed. ‘Having determined the appropriate total sentence, the trial judge should impose sentences with respect to each offence which result in the total sentence and which appropriately reflect the gravamen of the overall criminal conduct’.”[^18]
[73] The direction with respect to totality in Ahmed is consistent with the approach set out by the Supreme Court of Canada in R. v. M.(L.)[^19] with respect to cases involving multiple charges against children, including charges relating to child pornography. In that case, Justice LeBel, wrote at para. 31:
The judge also correctly understood the close relationship between the offences, the overall situation they gave rise to and the need to impose a global sentence suited to that situation. Viewed as a whole, the crime was complex. The offence of sexual assault was closely connected with three other offences of making, possessing and distributing child pornography that are subject to express sanctions under the Criminal Code. Each aspect of the offender's conduct could be considered only in light of all these charges, viewed as a whole. As Judge Wilhelmy concluded, the global sentence was the crucial factor in determining the sentence in the case at bar.
[74] In R. v. F.(D.G.)[^20] the Court of Appeal also considered the connected circumstances in arriving at a fit global sentence.
[75] The offences in this case are connected. The threatening and harassing conduct in relation to I.K. and G.D. occurred in order to obtain further images. Mr. Bahamonde’s distribution of the images of G.D. to her family and to websites was intended to cause G.D. to renew contact with Mr. Bahamonde. The distribution of child pornography to I.K. appeared to be designed to obtain images of I.K. The seriousness of the offences and the moral blameworthiness of Mr. Bahamonde can only be assessed by considering the cumulative circumstances.
[76] The conduct of Mr. Bahamonde in creating the voyeuristic images is also part of the overall course of conduct. Mr. Bahamonde began his criminal conduct in 2014 with the relentless harassment of his former intimate partner, A.K. His pattern of conduct in victimizing vulnerable females continued and escalated over the five years until his arrest in 2019. His victims were all female. They were all vulnerable. They ranged in age from very young children in the images of sexual abuse to very young women who were threatened and harassed. They included a former intimate partner and complete strangers.
Conclusions
[77] In order to protect society and particularly, to protect young girls and women from Mr. Bahamonde, and to deter Mr. Bahamonde and others from the type of extremely harmful criminal conduct that Mr. Bahamonde engaged in, the global sentence must be lengthy.
[78] I appreciate that the first sentence of incarceration for a youthful offender like Mr. Bahamonde should be the shortest sentence possible that is consistent with the relevant sentencing objectives[^21]. Rehabilitation has added importance for a first offender and restraint should be used in imposing a first penitentiary sentence on a youthful offender[^22].
[79] I find that the shortest sentence that is consistent with the relevant sentencing purposes and principles is a sentence of 8.5 years in the penitentiary before consideration of harsh conditions of presentence custody and strict bail. Any shorter sentence would not meet the objectives of denunciation, deterrence and the protection of society.
[80] Mr. Bahamonde seeks enhanced credit for exceptionally harsh conditions of his presentence custody. Mr. Bahamonde was incarcerated at the Toronto South Detention Centre. During his time in custody he was subject to lockdowns on 96 days. During lockdowns inmates are locked in their cells and have little or no access to fresh air, exercise, showers or telephones. Mr. Bahamonde endured these conditions for exactly half of his time in presentence custody. Courts in the Toronto area have repeatedly commented on the unacceptable and inhumane conditions at the Toronto South Detention Centre because of frequent lockdowns due to chronic understaffing. These conditions make the presentence incarceration exceptionally onerous and merit recognition by mitigation in the otherwise appropriate sentence. Taking this into account, I reduce Mr. Bahamonde’s global sentence by six months to a sentence of 8 years.
[81] Mr. Bahamonde spent 687 days on strict house arrest bail. He was not permitted to leave his house without a surety. He was not able to work. There is evidence that work is something that is important to him. There is also evidence from the report of Dr. Gojer that he was depressed during his time on bail. I have also considered the fact that Mr. Bahamonde was initially released on a bail without house arrest and violated that bail. In all of the circumstances, I am of the view that Mr. Bahamonde’s sentence should be further reduced by 6 months to reflect the time on strict bail. The global sentence is therefore 7.5 years.
[82] The sentence that I impose therefore is the following:
On Count #3 – Criminal Harassment of A.K.: 3 months’ imprisonment
On Count #6 – Threaten Bodily Harm of I.K.: 6 months concurrent
On Count #7 – Luring of I.K.: 3.5 years’ imprisonment concurrent to all Counts except Count #24; consecutive to Count #24;
On Count #10 – Distribution of Child Pornography: 2 years concurrent
On Count #12– Threaten Bodily Harm: 1 month concurrent
On Count #14 – Possession of Child Pornography: 2 years concurrent
Count #15 – Voyeurism: 3 months concurrent
Count #16 – Criminal Harassment of G.D.: 6 months concurrent
Count #18 – Make Child Pornography: 3 years concurrent
Count #20 – Distribute Child Pornography: 3 years concurrent
Count #24 – Luring G.D.: 4 years consecutive to all Counts
Count #27 – Fail to Comply with Recognizance: 3 months concurrent
Count #28 – Fail to Comply with Recognizance: 3 months concurrent
The global sentence is 7.5 years.
[83] Mr. Bahamonde spent 192 actual days in custody, and he is entitled to statutory credit of 288 days for those days in custody. This results in a sentence of 2,450 days left to serve or approximately 6 years and 8 and half months left to serve.
Ancillary Orders
[84] The Crown sought a s. 161 order for life. I have determined that an order for 20 years is appropriate because of Mr. Bahamonde’s young age and the potential for rehabilitation. I therefore make an order under s. 161 of the Code, for 20 years with the following terms:
he is not to attend at a 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 a day care centre, school ground, playground or community centre;
he is not to seek, obtain or continue any employment, whether or not the employment is remunerated, or to become or to be a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years;
he is not to have contact — including communicating by any means — with a person who is under the age of 16 years, unless that person or those persons are accompanied by a family member of an age equal to or greater than 18 years;
he is not to access the Internet or to use any device capable of accessing the Internet or any similar communication device while in the presence of a person under the age of 16 years;
he is not to access or participate in online chat rooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material; and
he is not to use or permit to be installed on any device in his possession any program or service designed to allow anonymous use of the Internet.
[85] In addition, I make the following ancillary orders:
Luring is a primary designated offence and I order that Mr. Bahamonde provide a DNA sample suitable for analysis.
Pursuant to ss. 490.012 and 490.013(2.1), Mr. Bahamonde is ordered to comply with the Sex Offender Information Registration Act for life.
I further order forfeiture of the materials identified in the draft order provided.
There will be a s. 109 weapons prohibition for life
Forestell J.
Released: February 10, 2022
COURT FILE NO.: CR-20-40000271-0000
DATE: 20220210
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
SERGIO BAHAMONDE
REASONS FOR SENTENCE
M. Forestell J.
Released: February 10, 2022
[^1]: 2021 ONSC 7526
[^2]: 2016 ONCA 754
[^3]: 2013 ONCA 147, aff’d 2014 SCC 26, [2014] 1 S.C.R. 575
[^4]: Section 718.1 of the Criminal Code, R.S.C., 1985, c. C-46
[^5]: 2020 SCC 9
[^6]: Section 718 of the Criminal Code
[^7]: Section 718.01 of the Criminal Code
[^8]: Friesen, at paras. 122-123
[^9]: Friesen, at para. 124
[^10]: R. v. Rocha, 2012 ABPC 24
[^11]: 2011 ONCA 610
[^12]: 2020 SCC 9
[^13]: R. v. Inksetter, 2018 ONCA 474; R. v. Branco, 2019 ONSC 3591
[^14]: 2015 O.J. No.7757
[^15]: R. v. M.(C.A.) 1996 CanLII 230 (SCC), [1996] S.C.J. No.28
[^16]: R. v. Angelis 2016 ONCA 675, [2016] O.J. No.4735 at para. 51
[^17]: 2017 ONCA 76 at para. 85
[^18]: Ahmed, at para. 85
[^19]: [2002] 2 S.C.R. 163 (SCC)
[^20]: 2010 ONCA 27
[^21]: R. v. Priest, 1996 CanLII 1381 (ON CA), [1996] O.J. No. 3369
[^22]: R. v. Joseph 2020 ONCA 733; R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 172 C.C.C. (3d) 225; Priest, supra