Court File and Parties

COURT FILE NO.: CR-21-40000052 DATE: 20230620

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – EFREN CHIMBO

Counsel: Rochelle Liberman, for the Crown Daisy Bygrave, for the Accused

HEARD: May 17, 2023

Restriction on Publication and Order Sealing Exhibits

An order has been made pursuant to s. 486.4(1) of the Criminal Code directing that any information that could identify the complainant shall not be published in any document or transmitted in any way. An order has also been made pursuant to ss. 278.95(1)(a) and (b) that the contents of the application that is the subject of this ruling and any evidence taken, information given or representations made at the hearing shall not be published in any document or transmitted in any way, except that this ruling may be published pursuant to s. 278.95(1)(d). This ruling complies with those orders and may be published.

A further order is made sealing the exhibits submitted by Crown counsel and filed at this hearing.

HIMEL J.

Reasons for Sentence

[1] Efren Chimbo entered pleas of guilty to the following offences: two counts of sexual assault contrary to s. 271 (a) of the Criminal Code, one count of possession of child pornography contrary to s. 163.1(4) of the Code, two counts of making surreptitiously a visual recording in circumstances that gave rise to a reasonable expectation of privacy when that person was exposing genital organs or anal regions with the recording done for the purpose of recording that person in such a state contrary to s. 162(1) of the Code and making child pornography contrary to s. 163.1(2) of the Code. He elected to be tried by a judge sitting alone.

[2] Mr. Chimbo confirmed that he was entering this plea voluntarily, that he understood that the plea was an admission of the essential elements of the offences, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the plea including the registration under the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”) that had been reviewed with him by counsel and that he was aware that this court was not bound by any agreement made between counsel regarding the sentence. The following are my reasons for sentence.

Factual Background

[3] The parties filed an Agreed Statement of Facts in accordance with s. 655 of the Criminal Code. Mr. Chimbo is a photographer who for many years had been taking photographs of females. Many of the photoshoots occurred inside his Toronto residence where he set up a studio. He kept a variety of dresses and other items for the females to wear during the photoshoots.

[4] On or about May 30, 2019, M.Z. went to Mr. Chimbo’s house for a photoshoot. She was 16 years old at the time. Mr. Chimbo did not take reasonable steps to find out how old M.Z. was. Prior to the photoshoot, he applied cream all over her body while she laid down on a bed. She consented to the application of the cream and to the touching of her body. However, unbeknownst to her, there was a video camera that captured her naked on the bed while Mr. Chimbo applied cream to her body. She did not consent to the video being taken.

[5] On July 7, 2019, police executed a search warrant at Mr. Chimbo’s residence. They seized many electronic items including a LG computer tower. This computer contained photographs of M.Z. in a bra and photographs with her genitals exposed. These photos were taken when she attended for the photoshoot on May 30, 2019 when she was 16 years old. M.Z. was unaware that a video was taken while she was naked.

[6] S.Z. is M.Z.’s twin sister. She saw some of the photographs that Mr. Chimbo took of M.Z. and liked them. She contacted Mr. Chimbo and made arrangements to attend at his residence for a photoshoot. On or about May 31, 2019, Mr. Chimbo picked S.Z. up a few blocks from her school and brought her to his residence for a photoshoot. She was 16 years old at the time during the photoshoot, Mr. Chimbo told S.Z. to take off her underwear because the lines were visible through the dress she was wearing. S.Z. took off her underwear. Mr. Chimbo showed S.Z. an array of photographs. She chose a photograph where a woman had her hand over her clitoris. Mr. Chimbo told S.Z. to open her legs and do the same thing. S.Z. agreed and Mr. Chimbo took photos.

[7] During the photoshoot, some photos were taken outside in Mr. Chimbo’s backyard. Unbeknownst to S.Z., Mr. Chimbo had a video camera that was recording S.Z. The video camera’s positioning captured S.Z.’s genital area. S.Z. did not consent to the video being taken.

[8] When police analyzed the LG computer tower seized from Mr. Chimbo’s home, they located photographs and video of S.Z.’s genitals exposed. These photos and video were taken during the photoshoot on May 31, 2019. S.Z. did not consent to Mr. Chimbo keeping a copy of the photos. S.Z. was unaware that a video was taken of her genital area.

[9] When L.R. was 17 years old, she modelled for a company called Ella Bella. The photographer was Mr. Chimbo. After a photoshoot for Ella Bella, Mr. Chimbo contacted L.R. through Facebook and asked her to go back to his residence for another photoshoot. L.R. ended up going to Mr. Chimbo’s residence for photoshoots throughout 2012. At some point during 2012, Mr. Chimbo started to tell L.R. that she needed lotion. Mr. Chimbo told L.R. to lie on the bed. He applied lotion all over L.R.’s body. Mr. Chimbo showed L.R. photographs of other females in lingerie. On one occasion, while L.R. was in a bathing suit, Mr. Chimbo told her how to pose. He told her to spread her legs. He then put his fingers inside her vagina. L.R. did not consent to him putting his fingers inside her vagina. L.R. said “no” and pushed him away. Mr. Chimbo then continued the photoshoot.

[10] When R.J. was between the ages of 15 to 16 years old, she did a modelling session with other girls for a store in Toronto. Mr. Chimbo was the photographer for the group of girls. The photoshoot was at his residence. After the initial photo session, Mr. Chimbo asked five to six females to come back for some more photos. R.J. was happy to go back because Mr. Chimbo bought the females food and make-up.

[11] R.J. continued to go for photoshoots at Mr. Chimbo’s residence from 2011 to 2012. While R.J. was with Mr. Chimbo for the photoshoots, he would tell her about his sexual encounters. He also told her about a friend who would receive gifts from soccer players after spending a night with them. During the photo sessions with Mr. Chimbo, Mr. Chimbo would tell R.J. to open her legs. He also put oil on her. Mr. Chimbo touched R.J.’s vagina without her consent. She was between the age of 15 and 16 years when he touched her vagina.

Evidence Led at the Sentencing Hearing

[12] The Agreed Statement of Facts signed by the Crown and defence was filed as an exhibit at the sentencing hearing. Ms. Liberman also submitted a number of photographs and videos, a sample of which were viewed in open court. All of these photographs and videos are ordered sealed in the interests of justice. They depict each of the victims with at least their genital areas exposed. For two complainants, they were not aware that a video camera was recording them in these positions. Crown counsel also filed a Victim Impact Statement from S.Z. and read it aloud to the court. In the statement, she emphasized how she cannot forget what happened, that since these events, she is scared of men, that she has panic attacks, that she cannot sleep and that she has constant nightmares.

[13] Ms. Bygrave, on behalf of Mr. Chimbo, submitted a report prepared by Dr. Giorgio E. Ilacqua, psychologist, which is dated March 15, 2023 and is entitled “Psychological Risk Assessment”. Counsel also filed a number of letters in support of Mr. Chimbo, including letters from his wife, Ana Maria Chimbo; his daughter, Andrea Chimbo; his son, Nicolas Chimbo; Mr. Chimbo’s sister, Fania Thompson; his sister-in-law, Isabel La Madrid Chacon; an immigration consultant, Delia M. La Madrid; his nephew, Joseph La Madrid Chacon; and his friends Carlos and Olga Acevedo, Miriam Bueno and Ruth Pelle.

Positions of the Parties

Position of the Crown

[14] Crown counsel submits that an appropriate sentence in this case is a period of imprisonment of four years in the penitentiary imposed on a global basis and ancillary orders including: a s. 109 order, an order that Mr. Chimbo provide a sample of his DNA, that there be an order to comply with SOIRA under s. 490.012 for life and that there be an order pursuant to s. 161 for 20 years. This is because R.J. was less than 16 years for part of the time when the offence was committed. Ms. Liberman also requests an order pursuant to s. 743.31 for non-communication with all of the victims and an order pursuant to s. 164.2 that Mr. Chimbo forfeit items seized by police as set out in Appendix A of the Agreed Statement of Facts.

[15] Crown counsel emphasized the fact that Mr. Chimbo took young girls to his home on the pretext of a photo shoot, that he demonstrated assaultive behaviour and, in the case of M.Z., an extreme violation of her privacy by setting up a video camera while she lay naked and he touched her. She did not consent to such videos being taken and kept by him. Her twin sister S.Z. went for a photo shoot after Mr. Chimbo picked her up near her school. He had her take off her underwear and expose her genitals while he took photographs and he kept them. He took videos outside while she was unaware that he was doing so and without her consent. In the case of R.J., she was 15 or 16 years old at the time when she met Mr. Chimbo during a modelling photo shoot with a group of girls. He asked a few of the girls to come back to his home and she came back. He bought them food and make-up and he told R.J. about sexual encounters with women with a predatory purpose. He told her to spread her legs and he put oil on her and touched her vagina without her consent. Finally, L.R. met Mr. Chimbo when she was 17 years old during a photoshoot when she was modelling. He contacted her to come back to his home and she did. He told her she needed lotion and he applied oil to her. He told her how to pose and spread her legs and put his finger inside her vagina.

[16] Ms. Liberman points to the decision of R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, where the Supreme Court of Canada held that sentences for sexual offences against children should be increased to reflect the wrongfulness of these offences and the profound and ongoing harm they cause. Parliament has determined that sexual violence against children should be punished more severely and that deterrence and denunciation for offences that involve the abuse of children is a priority: at para. 116. Further, Parliament has abolished the distinction regarding the degree of physical interference such as whether there has been penetration or other sexual acts were involved: see para. 141. The court emphasized that the wrongfulness of sexual violence is present even where the degree of physical interference is less pronounced: at para. 145. The Supreme Court allowed the appeal and imposed the sentence of the trial judge of six years for the sexual interference charge.

[17] Ms. Liberman also referred to other jurisprudence where the sentences imposed were in the range she seeks. For example, in the decision of R. v. Storey 2021 ONSC 1760, the court imposed a global sentence of five years’ imprisonment for sexual interference, assault, possession of child pornography and making sexually explicit material available to a minor with one year for credit for restrictive bail terms. In R. v. G.R., 2020 ONSC 7411, I.S. Bloom J. sentenced the offender to five-and-one half years imprisonment for sexual assault and sexual interference. In R. v. V.B. [2022] O.J. No. 3085 (C.J.), S.N. Latimer J. sentenced the offender to nine years’ imprisonment for sexual interference, invitation to sexual touching, voyeurism and making child pornography where the accused was the victim’s uncle and he touched the victim’s vaginal area and chest over 20 times in a 2-year period when she was between 10 and 12 years old. He invited her to touch his exposed penis and would touch and penetrate against her buttocks while clothed. The victim finally broke down and told her mother. The mitigating factor was the accused’s guilty plea, that he was a first offender and that he had community supports. The aggravating factors related to the nature of the crimes, which occurred in the victim’s own home.

[18] Crown counsel also referenced the case of R. v. Allen, 2017 ONCJ 405, where the court held that the presence or absence of vaginal penetration as a major factor which moves a sentence in and out of the penitentiary range “may be seen as trivializing serious sexual assaults like the one committed by the offender”. The court went on to say that Parliament repealed the crime of rape over 30 years ago. Ms. Liberman points out that s. 718.01 of the Criminal Code provides that where the court is imposing a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of deterrence and denunciation. Further, s. 718.3(7) provides that consecutive sentences shall be imposed where the offender is sentenced to a child pornography offence and other sexual offences committed against a child.

[19] With these considerations in mind, the Crown asks the court to impose a global sentence of four years. Counsel acknowledges the guilty plea but submits that the comments made by Mr. Chimbo in the report filed by the defence suggest that he has a complete lack of remorse and is not taking responsibility for his actions. She also points out that the offender has no criminal record. The aggravating factors are that Mr. Chimbo was in his 50s at the time of the offences, that he was involved in grooming the victims who were under the age of 18 years, and that he caused them emotional harm.

Position of the Defence

[20] Counsel for Mr. Chimbo asks this court to impose a sentence of two years less a day, served as a conditional sentence followed by a period of probation. Ms. Bygrave submits that the case had been in the system for a number of years, and that following a judicial pre-trial, counsel were prepared to sign an Agreed Statement of Facts but that there are certain circumstances that are relevant. For example, she submits that Mr. Chimbo had applied cream or lotion to the girls to cover scars when taking photographs during modelling shoots and did not view it as a sexual experience. She suggests there were some triable issues. The camera that took photographs of M.Z. was not hidden, but she agrees that he did not explain to her that it was recording. Similarly, he failed to tell her sister that the camera on a tripod in front of her was recording.

[21] Counsel for Mr. Chimbo submits that the case of Friesen may be distinguished in some respects: Mr. Chimbo was not in a position of trust, the offences did not take place in the home of the victims and there was not repetitive conduct. Ms. Bygrave points out the context within which the offences occurred, that is, during daylight hours, at his home and where his family was present. She asks the court to consider that Mr. Chimbo is 68 years old, that he has no criminal record, that he has an excellent work history as a disc jockey and photographer, that he provides for his wife and children, that his wife has diabetes and will be lost without him, that his own children describe him as a “role model” and that he has contributed to his community through volunteer work. Finally, Ms. Bygrave argues that the psychological assessment filed supports that Mr. Chimbo is at low risk of re-offending. She submits that a global sentence of two years less one day served as a conditional sentence is an appropriate sentence. Counsel agrees that the court should make an order of forfeiture, but that it be subject to certain items being returned, such as a laptop belonging to Mr. Chimbo’s daughter and cameras where the memory cards can be removed.

The Law

[22] The courts have repeatedly stated that the principles of denunciation and deterrence are paramount objectives for offenders who have been convicted of sexual assault. In R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, the Supreme Court recognized the devastating effects of sexual violence on women: at para. 1. Holding offenders who commit sexual violence accountable in light of the long-term effects of sexual assault on victims has significant salutary effects. Moreover, s. 718.2 of the Criminal Code provides that a court that imposes a sentence shall take into account certain principles which may increase or reduce a sentence to account for aggravating or mitigating circumstances, which include evidence that the offender in committing the offence abused a person under the age of eighteen years and that shall be deemed to be aggravating circumstances. In Friesen, the Supreme Court held that the principles of deterrence and denunciation are a priority for offences that involve the abuse of children: see para. 116.

[23] A conditional sentence had not been available for a conviction of sexual assault tried by way of indictment from 2012 until recently because of s. 742.1(f)(iii) of the Criminal Code, which expressly prohibited it. In 2021, some judges declared the section unconstitutional and subsequently imposed a conditional sentence for indictable sexual assault offences. On November 17, 2022, Bill C-5 received Royal Assent, removing the unavailability of a conditional sentence for this offence. While Parliament removed certain limits on the availability of a conditional sentence, Bill C-5 did not, however, remove the mandatory penalties for the offences in s. 271(a), 163.1(4) and s. 163.1(2). Although a conditional sentence is not available for an offence which carries a mandatory penalty, certain courts have struck down the mandatory minimums in s. 271 (a): see R. v. Abi-Samra, 2019 ONSC 3468, at para. 135; see also R. v. B.J.T., 2019 ONCA 694, 378 C.C.C. (3d) 238; in s. 163.1(4): see R. v. John, 2018 ONCA 702, 366 C.C.C. (3d) 136; and for s. 163.1(2), the one-year mandatory minimum for making child pornography was struck down in R. v. Joseph, 2018 ONSC 4646 and the finding of invalidity was affirmed by the Court of Appeal in R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 165. There is no mandatory minimum sentence in s. 162(1) (voyeurism).

[24] Since these mandatory minimums have been struck down, s. 742.1(b) does not apply to any of the offences here and there are no other limits on conditional sentences in s. 742.1 that apply. There is, accordingly, no statutory bar to a conditional sentence for this offender.

[25] As s. 742.1 states, a conditional sentence may be imposed where the court imposes a sentence of imprisonment of less than two years and where the court is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing in ss. 718 to 718.2 of the Code. The appropriateness of a conditional sentence was discussed in R. v. Nolan, 2009 ONCA 727, where the Ontario Court of Appeal considered some of the relevant principles in a case decided prior to the enactment of s. 742.1(f)(iii). There, a 21-month conditional sentence was imposed for an offender who pleaded guilty to sexual assault on his wife, where he covered her mouth with tape, punched her in the face, and ultimately attempted to force intercourse. Mr. Nolan had originally been given a 100-day custodial sentence which the Crown appealed on the basis that it was demonstrably unfit. The Court of Appeal agreed this sentence was demonstrably unfit but imposed a 21-month sentence served in the community because it considered that the offender had to provide for his two children who relied on him to meet their day-to-day needs: at para. 13. Conditional sentences were also imposed in R. v. Nikkanen (1999), 140 C.C.C. (3d) 423 (Ont. C.A.) and R. v. Pecoskie (2002), 170 O.A.C. 396 (C.A.).

[26] The same concern for the support of the offender’s children was considered in R. v. Browne, 2021 ONSC 6097. There, the offender was convicted of sexual assault with a weapon and was given a conditional sentence of two years less a day followed by six months’ probation. He had inserted a vibrator into the complainant’s vagina or anus for a brief time while she was unconscious. In arriving at this sentence, McArthur J. considered the fact that the offender was a first-time offender and the offence was out of character. He committed the offence while intoxicated and had since stopped using drugs or drinking. He was steadily employed and was supporting his child. The fact that if the offender went to jail, he could not financially support his son or pay restitution to the complainant in a timely way, was a significant factor: at para. 105.

[27] In the case of R. v. Holland, 2022 ONSC 1540, the complainant was unsure whether the offender penetrated her with his finger or his penis. She underwent testing for sexually transmitted diseases and had to deal with the stress associated with it: at para. 20. She suffered from anxiety and depression and was eventually diagnosed with post-traumatic stress disorder. The offender was 45 years old at the time of the offence, had no criminal record and there was significant delay between the date of the offence and the sentencing. Justice Schreck followed Nakatsuru J.’s analysis in R. v. R.S., 2021 ONSC 2263, as well as some other jurisprudence, in finding s. 742.1(f)(iii), which removed the availability of conditional sentences for indictable sexual assaults, to be unconstitutional. He sentenced the offender to eight months served as a conditional sentence.

[28] In R. v. R.S., Nakatsuru J. imposed a conditional sentence for an offender who was found guilty of sexual assault and choking with intent to overcome resistance. The offender and the complainant had had a brief and minor intimate relationship before the offence. A conditional sentence order was imposed despite the significant violence inherent in choking to overcome resistance. There were other factors present: the offender was Indigenous, he had a turbulent upbringing, there was no penile penetration although there was digital penetration and the offender had a significant alcohol problem.

[29] While the facts in the cases outlined above are quite different from those in the case at bar, they demonstrate some relevant principles when the court is considering whether to impose a conditional sentence. So long as the conditional sentence can meet the deterrence and denunciation objectives as well as the other objectives of sentencing including restraint and rehabilitation, a conditional sentence may be appropriate: see R. v. Ali, 2022 ONCA 736 at para. 28.

[30] Sentences for cases involving child victims have typically called for periods of imprisonment greater than reformatory and, thus, conditional sentences were not available. See for example, R. v. A.B., 2023 ONCA 254 where the offender was convicted of sexual assault, sexual interference and invitation to sexual touching against his stepdaughter from the ages of 10 to 15 years, the court held, “mid-single digit penitentiary terms are normal for these types of offences” at para. 54. In the case of R. v. J.E., 2020 ONCJ 499, at para. 9, the court held that Friesen considerations would still apply even where the underage complainants were over 16. There, the complainant was 17 years old.

[31] In R. v. R.C., 2020 ONCA 159, a case with a factual situation with some parallels to the case at bar, the Ontario Court of Appeal affirmed a sentence of a 51 months (4.25 years) less pre-trial custody credit for a 42-year old offender for three counts of sexual assault against two complainants after a jury trial. One was 18 and the other was 21 years old. The offences occurred at the offender’s photography studio and the complainants were models. In the case of one complainant, the assault comprised touching her breasts and vagina and possible digital penetration. In the case of the second complainant, there was touching of her breasts and vagina as well as both digital and penile penetration. The aggravating factors were that there was a pattern of behaviour, the offender took advantage of the complainants’ youth and inexperience and viewed him as someone who was willing to help advance their careers. Both were told that sexual touching was normal in the industry. The trial judge considered that he was in a position of perceived authority, the ages of the victims and the fact that there were multiple instances. The mitigating factors were that the offender had several character letters from family and friends, no criminal record and a supportive family.

[32] On appeal, Jamal J.A. (as he then was) affirmed the 51-month sentence and said, “The appellant was found to have violated the trust of two complainants through serious sexual misconduct, including forced penile penetration in one case, with profound psychological consequences for both complainants. While the appellant had no prior record, there were few other mitigating factors.”: see R.C., at para. 95.

Decision

[33] I turn to some of the general principles of sentencing set out in s. 718 of the Criminal Code. The fundamental purpose of sentencing is to ensure respect for the law and to promote a just, peaceful, and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section. They are: denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

[34] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to take into account certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh; the offender should not be deprived of liberty if less restrictive sanctions are appropriate; and all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, particularly Aboriginal offenders.

[35] I further consider that s. 718.01 of the Code states: “When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.” Section 718.3(7) provides, “When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct (a) that a sentence of imprisonment it imposes for an offence under section 163.1 be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another section of this Act committed against a child.”

[36] I now consider the application of the law outlined above to the circumstances of this case. A proper sentence must take into account the circumstances of the offender and the circumstances of the offence. I first look at the circumstances of the offender and consider Mr. Chimbo’s background.

[37] Mr. Chimbo is 68 years of age and was born in Ecuador on May 5, 1955. He immigrated to Canada with his mother and sister when he was 17 years old. He has eight other siblings and they are all close to each other. He is a Canadian citizen. Mr. Chimbo’s health is good. Mr. Chimbo completed a grade 12 education. Mr. Chimbo is married and has two children: Nicholas who is 25 years old and Andrea who is 22 years old. Over the years, he worked in a light and sound entertainment business and as a photographer. He also volunteered his time to assist those in need. While the Crown did not submit a criminal record, Mr. Chimbo provided information to his assessor that he received a conditional discharge and probation for 12 months for an event that occurred on June 26, 2014 when he pleaded guilty to a charge of assault with a weapon. He does not have an addiction to drugs or alcohol. He does not suffer from any mental illness.

[38] The psychological assessment report dated March 15, 2023 and prepared by Dr. Giorgio Ilacqua outlines Mr. Chimbo’s background and clinical observations and testing. It notes that Mr. Chimbo said he engaged in taking photographs as a hobby. He was reluctant to accept the seriousness of his conduct when talking to the assessor, but, when asked if he understood that he was accepting the agreed statement of facts, he advised that he did. Mr. Chimbo’s wife was interviewed and confirmed that she has known her husband for 42 years. They have been married for 29 years. She described him as “lovely, kind and helpful”. She knew that he was in the entertainment business and was aware that he was doing photography operated at their residence. The situation came to her as a surprise. Despite it, she is still supportive of her husband.

[39] The assessor performed a number of psychological tests which did not disclose anything remarkable and placed Mr. Chimbo in a low-risk range for future generic involvement in the legal system. The assessor wrote that “it is not felt that Mr. Chimbo presents with psychological characteristics generally associated with high chances of recidivism such as: substance use, criminal history, antisocial associates or major mental health diagnoses.” It was noted that “Mr. Chimbo was willing and motivated to continue attending individual psychological therapy.” It was also stated that Mr. Chimbo “accepts the seriousness of the current situation, albeit he still presents but a rudimentary insight into his behaviour leading to the current situation.” The assessment concluded that Mr. Chimbo can be managed safely in the community with conditions that provide for individual counselling, participation in social and prosocial activities and maintaining gainful employment.

[40] I now turn to the circumstances of the offences. Mr. Chimbo entered pleas of guilty to two counts of sexual assault, possession of child pornography, two counts of surreptitiously making a visual recording in circumstances that gave rise to a reasonable expectation of privacy when that person was exposing genital organs or anal regions and making child pornography. These events involved young girls (M.Z. was 16 years old at the time, as was S.Z, her twin sister, and R.J., who was between 15 and 16 years old). In the case of M.Z. and S.Z., they were not aware that they were being recorded. As stated above, the Criminal Code provides that the objectives of denunciation and deterrence shall be given primary consideration in sentencing for offences involving the abuse of persons under the age of 18 years.

[41] In summary, I consider the sentencing principles and the circumstances of the offender and the offences. I consider that deterrence and denunciation are primary objectives of sentencing in cases of this kind. However, I also recognize that a sentence must take into account Mr. Chimbo’s circumstances including his background, his family, his employment, his education and his potential for rehabilitation.

[42] With respect to mitigating factors, Mr. Chimbo has no relevant prior criminal record. He has entered pleas of guilty to the charges for which he is being sentenced which demonstrates an expression of remorse. He has shown a sense of responsibility. An important factor is that the complainants will not have to be re-traumatized by having to testify in court. Mr. Chimbo has been a source of support for his family and a volunteer in the community. There are numerous letters of support demonstrating that Mr. Chimbo has been a good father and a productive member of the community.

[43] Mr. Chimbo was arrested on June 7, 2019 and after the search warrant was executed, he was released on June 10, 2019. He is credited on a 1.5:1 basis in accordance with R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, for a total of 4.5 days. He was charged with further counts but not detained despite multiple arrests. He was released on bail with his own recognizance and ordered not to have contact with the complainants or be within 250 metres of where they live, work, go to school or frequent; not to attend a secondary school; not to possess a weapon; not to be in the presence of anyone under the age of 18 years unless he was in the immediate presence of someone over the age of 21; and not to work as a photographer or advertise his service as a photographer. It is a mitigating factor that he has been on bail for four years without incident.

[44] The aggravating factors in this case are that Mr. Chimbo committed serious offences, particularly those involving persons under the age of 18 years and, in the case of R.J., while she was between 15 and 16 years old. The gravity of the offences is a critical factor.

[45] In conclusion, I take into account the sentencing objectives set out in s. 718 of the Code as well as the other provisions in the Code and the circumstances of the offences and of the offender. I recognize that denunciation and deterrence are paramount sentencing principles for offences of this kind. I also take into account that rehabilitation of the offender is also a key objective which ultimately protects society. While a conditional sentence with onerous conditions such as house arrest can achieve a level of denunciation, in my view, this is not a case where the sentence of imprisonment should be less than two years, nor is it a case where denunciation and deterrence can be achieved with the imposition of a period of imprisonment served as a conditional sentence.

[46] I have also considered the decision of R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.), where the court reviewed the sentencing judge’s obligation to take into account restrictive terms of judicial interim release on sentencing. Unlike the circumstances in Downes, the terms in this case were not particularly restrictive, but they did affect Mr. Chimbo’s liberty to some extent. Rather than assign an amount of time as Downes credit, I exercise my discretion and consider the four years of judicial interim release with terms restricting Mr. Chimbo’s liberty in reducing and fashioning the overall sentence.

[47] Sentencing is a fact-driven process where the court must consider the unique circumstances of the case. Mr. Chimbo has pleaded guilty to the offences and saved valuable court time, particularly at a time of significant backlog arising from the COVID-19 pandemic. He has demonstrated an ability to live in the community and not be involved in any crime. He has worked throughout his time in Canada and wants to continue to work to provide for his family who are extremely supportive of him. Fortunately, his children are young adults who are able to provide for themselves to some extent. I am mindful that his wife is dependent upon him. I am also mindful of the psychological report which provided a risk assessment analysis and I am hopeful that Mr. Chimbo will not be involved in such criminal activity ever again.

[48] After considering all the relevant factors and the relevant jurisprudence (and I note that none of the cases discussed above are precisely similar to the case at bar) and the relevant statutory provisions, I am of the view that these offences call for a period of imprisonment that on a global basis exceeds two years less one day. Thus, the conditional sentence is not available. Further, I am not satisfied that the circumstances are such that they would justify a conditional sentence with terms that will meaningfully address denunciation and deterrence. I cannot say that service of the sentence in the community would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Code.

[49] For the reasons outlined above, I impose the following sentences:

• for count #1, sexual assault on L.R., (who was 17 years old at the time), I sentence Mr. Chimbo to one year and six months’ imprisonment;
• for count #3, possess child pornography contrary to s. 163.1(4), I sentence Mr. Chimbo to one year of imprisonment served consecutively to count #1.
• For count #4, sexual assault on R.J. (who was between 15 and 16 years old at the time), I sentence Mr. Chimbo to one year and six months’ imprisonment, served concurrently to count #1;
• for count #10, surreptitiously making a visual recording in circumstances that gave rise to a reasonable expectation of privacy contrary to s. 162(1), I sentence Mr. Chimbo to one year served consecutively to count #1 but concurrent to count #3;
• for count #12, surreptitiously make a visual recording in circumstances that gave rise to a reasonable expectation of privacy contrary to s. 162(1)(b), I sentence Mr. Chimbo to one year imprisonment also served consecutively to count #1 but concurrently to count #10;
• for count #13, make child pornography contrary to s. 163.1(2), I sentence Mr. Chimbo to one year imprisonment served consecutively to count #1 but concurrent to count #3.

[50] In the result, the global sentence is 2.5 years imprisonment. He shall receive credit of 4.5 days for the time spent in custody.

[51] I further make an order under s. 109 prohibiting Mr. Chimbo from possessing any weapons as defined by the Criminal Code for ten years. I also order that Mr. Chimbo provide a sample of his DNA pursuant to s. 487.051(3) of the Criminal Code. There will be an order under SOIRA for a period of 20 years. There will be an order pursuant to s. 161 for 20 years. There will be an order for non-communication with the complainants named for three years. There will be an order of forfeiture as set out in Appendix A and modified with the consent of counsel.

Himel J. Released: June 20, 2023