R v R 2008

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Between
Her Majesty the Queen, and
Craig Read

[2008] O.J. No. 5600
2008 ONCJ 732
Court File Nos. 07-04611, 07-04828

Ontario Court of Justice
Newmarket, Ontario

P.N. Bourque J.

Oral judgment: November 27, 2008.

(29 paras.)

Criminal law -- Sex offender registry -- Sentencing hearing of the accused after he pleaded guilty to computer luring -- Accused made contact with two female persons, whom he believed to be under 14, through Internet chat rooms and engaged in lewd conversations with them -- He was actually conversing with undercover police officers -- As part of his sentence he was to be on the Sex Offender Registry for 10 years.

Criminal law -- Sentencing -- Criminal Code offences -- Sexual offences, public morals, disorderly conduct and nuisances -- Offences tending to corrupt morals -- Communications with a child by computer in order to commit an offence (luring) -- Particular sanctions -- Imprisonment -- Intermittent -- Probation -- Forfeiture -- Prohibition orders -- Non-contact orders -- DNA sample -- Sentencing considerations -- Aggravating factors -- Mitigating factors -- Deterrence -- Denunciation -- No criminal record -- Guilty plea -- Sexual offences against children -- Age of accused -- Employment -- Sentencing hearing of the accused after he pleaded guilty to computer luring -- Accused made contact with two female persons, whom he believed to be under 14, through Internet chat rooms and engaged in lewd conversations with them -- He was actually conversing with undercover police officers -- Accused did not have a criminal record and was not a sexual deviant -- He was sentenced to 90 days' intermittent imprisonment, to be followed by 36 months of probation -- Accused had to provide a DNA sample, was subject to prohibition orders that required him to have no contact with persons under 14, had his seized computer equipment forfeited and was to be on the Sex Offender Registry for 10 years.

Information technology -- Computer crimes -- Offences -- Internet luring -- Penalties and sentencing -- Sentencing hearing of the accused after he pleaded guilty to computer luring -- Accused made contact with two female persons, whom he believed to be under 14, through Internet chat rooms and engaged in lewd conversations with them -- He was actually conversing with undercover police officers -- Accused did not have a criminal record and was not a sexual deviant -- He was sentenced to 90 days' intermittent imprisonment, to be followed by 36 months of probation -- Accused had to provide a DNA sample, was subject to prohibition orders that required him to have no contact with persons under 14, had his seized computer equipment forfeited and was to be on the Sex Offender Registry for 10 years.


Sentencing hearing of the accused Read after he pleaded guilty to luring a person he believed to be under the age of 14, by means of a computer system. On two occasions Read made contact with a female person he believed to be under the age of 14 in an Internet chat room. The person in each case was an undercover police officer. Read engaged in lewd and suggestive conversations with the officer. In both cases he exposed himself over an Internet camera. In the first case Read arranged to meet the person in a public meeting place where he was ultimately arrested. In the second case he did not make such arrangements. Read spent three days in pretrial custody. He was on bail for 17 months and complied with the conditions imposed. Read was 41 years old. He was the part owner of a computer consulting company. If he was jailed it would have serious repercussions for the business. Read was married and had one son. His wife was Russian and lived in Moscow with their son. She planned to return to Canada and live with Read. Read did not suffer from any sexual deviations and was highly committed not to re-offend. He did not possess child pornography. He took some treatment and would likely take more.
HELD: Read was sentenced to 90 days' intermittent imprisonment. Primary sentencing considerations were denunciation and deterrence. This was not one of the rare cases where a conditional sentence of imprisonment was appropriate. Read's personal circumstances, however, supported a sentence in the lower end of the range. The Court would not give credit to Read based on the bail conditions. However, it found that the bail was akin to a curfew and was to be so considered. In light of Read's circumstances it also noted the effect Read's continuous imprisonment would have on his business and the employees who relied upon him for their livelihood. After the intermittent imprisonment was completed he would be subject to probation for 36 months. Read had to provide a DNA sample. His seized computer equipment was forfeited. Read was subject to a 10-year prohibition order that he was not to obtain employment that would put him in a position of authority towards a person under the age of 14. For the same period he was not to use a computer system to communicate with a person under the age of 14. Read was to comply with the Sex Offender Registry for 10 years. Sentence: Intermittent imprisonment for 90 days. Probation for 36 months. Prohibition orders for 10 years. DNA sample to be provided. Forfeiture order. Compliance with Sex Offender Registry for 10 years.

Statutes, Regulations and Rules Cited: Criminal Code, R.S.C. 1985, c. C-46, s. 161(1)(b), s. 161(1) (c), s. 164.2(1), s. 172.1(1)(c), s. 342.1(2), s. 487(4.5), s. 487(8.1), s. 718, s. 718.01, s. 718.1, s. 718.1(a), s. 718.1(b), s. 718.1(d), s. 718.1(e)



Counsel:
C. Goodier (Ms.), Counsel for the Crown.
C. Fromstein (Ms.), Counsel for the Accused.

REASONS FOR JUDGMENT AND SENTENCING PROCEEDINGS
P.N. BOURQUE J. (orally):--
Introduction

  1. The defendant, Mr. Read, has pled guilty to a single count of "luring". The section under the Code reads as follows:

    "172.1(1): Every person commits an offence who, by means of a computer system within the meaning of subsection 342.1, communicates with:
    (c) a person who is, or who the accused believes is, under the age of fourteen years for the purpose of facilitating the commission of an offence under s. 151 or 152, subsection 160, 173 or s. 281 with respect to that person."
  2. The Crown has proceeded by indictment and the maximum sentence provided for is five years imprisonment. An agreed statement of facts has been filed as Exhibit Number 1 on this sentencing.
  3. The important factors I believe are as follows:
    1. the defendant made contact with a female person whom he believed was under the age of fourteen years;
    2. the contact was made through an internet "chat room";
    3. the defendant was actually in contact with an undercover police officer;
    4. he engages in what can only be described as lewd and suggestive conversations with the officer;
    5. he exposes his buttocks and his penis to the officer over the internet camera;
    6. he arranges to meet the person and attends at a public meeting place where he is ultimately arrested;
    7. the defendant also makes a second contact with a person whom he believes to be a female under fourteen (again it is actually an undercover police officer);
    8. the defendant engages in suggestive and lewd discussions;
    9. the defendant exposes himself over a web cam to the officer;
    10. the defendant does not make any arrangements to se the second person.
  4. The police, in the course of their investigation, seize various computer hard drives of the defendant. There is no evidence of the defendant possessing any images of child pornography on those computers.
  5. There is no evidence of any other luring, other than these incidents. The events took place over a period of approximately three months in 2007. When the defendant was arrested he was in the possession of condoms.
  6. The defendant was arrested on June the 5th and spent three days in pretrial custody. He has been on bail for over 17 months. He has bail conditions which require him to reside with his surety and not use computers unsupervised. He is not under house arrest, although paragraph (1) of the release terms could be interpreted as some type of curfew.
  7. The residency requirements have imposed some hardships on the defendant, including long distance to travel and difficulty in seeing his child. He is also not allowed to be in the presence of a child under sixteen unless in visual presence of an adult over 21. This has also caused some hardships.
  8. The defendant has asked that pursuant to the decision of R. v Downes [2006] O.J. No. 555 (ON. C.A.) that I give credit to the defendant for these harsh bail conditions. Downes was a case which involved "house arrest" conditions which do not exist here. The court stated:
    "Some of the same considerations that justify credit for pre-sentence custody apply to an offender who has spent a long time under house arrest. Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principles of the presumption of innocence."
  9. This case, however, does seem to leave the door open for the consideration of stringent bail conditions. I am not prepared to extend the decision so far as to apply some type of fixed credit in this matter, to the penalty to be assessed against the defendant. It is, however, something that I can and do take into account in attempting to apply a just disposition in this case.

    The Defendant

  10. The defendant is 41 years of age. His parents are divorced and his mother died. He had a brother who was ill and died at eighteen years of age. He is the part owner of a computer consulting company. There has been some evidence led that time away from his company, such as if he were to be in jail for a continuing period of time, would lead to serious repercussions on his company. The defendant has filed letters in his support, especially as regards his work and his contributions to his company.
  11. He is married and has a son. His wife and son are now living in Moscow. She is Russian. She plans to return to Canada and live with the defendant, initially when this matter was concluded, although I am just informed that they are returning to Canada tomorrow. He has no criminal record.
  12. I note, with regard to his family, in the occasions where we have attended in court in this matter, his father and his stepmother have been in court both times.

    Report of Dr. Gojer dated October 22, 2008

  13. Tab number 1 of Exhibit 2, being the defence sentencing materials, is the report of Dr. Gojer, a forensic psychiatrist It is an eight page report setting out the family history of the defendant, the details of the sessions with the defendant, the erotic preference testing, a diagnosis, a risk assessment and ultimately recommendations.
  14. The doctor states in his diagnosis:
    "He exhibited some hebephilic (attraction to pubescent children) behaviour at the time of the offence. Any such interest in pubescent girls appears to have been limited to the time period of the offence. Mr. Read does not appear to be suffering from a sexual deviation and his primary sexual interest is in adult women."
  15. Under the heading of Risk Assessment, the doctor states:
    "Mr. Read has the support of his wife and his family and is highly committed to not resorting to similar behaviours in the future. At the time that I began treatment with Mr. Read I considered him to be a low risk to re-offend. His excellent participation in treatment leads me to conclude that his risk of re-offending is now negligible."
    The doctor details that he is participating in a treatment plan as part of a group therapy, and the doctor recommends that it should continue.
  16. It is overall a position report for the defendant. It does not detail any objection or subjective criteria of deviant sexual behaviour and it is very optimistic with regard to the actions of the defendant in the future. I note, however, that it does not indicate that the defendant has any great insights into his behaviour or some explanation as to why this type of behaviour became attractive to him. In other words, assuming the defendant does not normally exhibit these behaviours, what was the potential triggering mechanism in this case? Perhaps it is something that is impossible to determine.

    Aggravating Circumstances

  17. I have considered all of the aggravating circumstances in this mater, which I find as follows:
    1. two specific and separate incidents of luring a child under the age of fourteen years;
    2. exposure of private parts over the internet;
    3. an attempt to make actual contact with one of the target persons;
    4. the many lewd suggestions made to a child under the age of fourteen years.


    Mitigating Circumstances

  18. I have also considered the mitigating circumstances in this matter which I find as follows:
    1. the guilty plea obviated the necessity of a trial, and I do take it in all respects as a true sign of remorse;
    2. no criminal record;
    3. no other specific evidence of pedophilia tendencies, other than these actions;
    4. the negative effects from this conviction upon himself and his family;
    5. there is no evidence of possession of child pornography;
    6. he has taken some treatments and he will likely take more;
    7. the psychiatric report is largely positive. There does not appear to be underlying deviant behaviours and there appears to be (from a psychiatric perspective) a negligible likelihood of re-offending.


    Principles of Sentencing

  19. I look at the principles of sentencing and specifically s. 718 of the Criminal Code, which I read as follows:
    "The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
    1. to denounce unlawful conduct;
    2. to deter the offender and other persons from committing offences;
    3. to assist in rehabilitating offenders;
    4. to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.
  20. I also note the provisions of s. 718.01:
    "When the 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."
  21. I also note the provisions of s. 718.1:
    1. a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender;
    2. a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
    3. an offender should not be deprived of liberty of life, if less restrictive sanctions may be appropriate in the circumstances; and
    4. all available sanctions other than imprisonment that are reasonable in the circumstances must be considered."


    Conditional Sentence of Imprisonment

  22. The defendant has sought that I impose a conditional sentence of imprisonment. In the leading case of R. v Proulx, the court set out the test for imposing such a sentence. That is a four part test, which simply stated says:
    1. the offender must be convicted of an offence that does not have a minimum term of punishment;
    2. the court must impose a term of imprisonment of less than two years;
    3. the safety of the community would not be in endangered by the offender serving the sentence in the community; and
    4. a condition sentence would be consistent with the fundamental purpose and principles of sentencing as set out in paras. 718 to 718.2."
  23. I note that the defendant would meet this minimum criteria. The issue in this matter is whether such a sentence would be appropriate in the circumstances of this offence, the circumstances of this offender, and the directions that I receive from the Courts of Appeal

    The Law

  24. The recent decision of R. v Jarvis [2006] O.J. No. 3241, 2006 CanLII 27300 (ON. C.A.) is a case with many remarkable similarities to our case. It sets out the principles to apply. The court stated:
    "[27] In my view, a conditional sentence will generally be inappropriate for an offence of the nature committed by the appellant in this case. Given the degree of planning implicit in the offence and the seriousness of the conduct contemplated, the objectives of general deterrence and denunciation will rarely be satisfied by a conditional sentence of imprisonment. This offence is not committed simply through communication with a child, even communication of a sexual nature. The Crown must also prove the offender communicated with the child, or a person he believed to be a child, for the purpose of facilitating commission of a serious sexual offence, such as invitation to sexual touching, an offence which if committed a conditional sentence is not available. Moreover, the accused had committed the most serious form of the offence as described in s. 172.1(1)(C); he communicated with someone he believed to be under the age of fourteen years."
  25. In the case of R. v Folino, [2005] O.J. No. 4737, 2005 CanLII 40543 (ON. C.A.) the court set out the following principles:
    "[25] I wish to make it clear that I agree with sentencing judge that the offence of child luring must be dealt with seriously by the courts. The social policy underlying the enactment of this offence is clear. Many Canadian families have home computers with internet access. Children are frequent users of the internet. Children, as vulnerable members of our society, must be safeguarded against predators who abuse the internet to lure children into situations where they can be sexually exploited and abused. In most circumstances involving the offence of child luring the sentencing goals of denunciation and deterrence will require a sentence of institutional incarceration. Indeed, it will only be in the rarest of cases that a conditional sentence will be appropriate in a case involving this offence."
    The court went on to hold that it would allow a conditional sentence in the Folino case and based its decision largely on the fact that there was evidence that a return to prison by the offender would lead to serious medical and psychological damage and could indeed result in suicide.
  26. The vast majority of decisions cited indicate that denunciation and deterrence are indeed the primary factors to be considered. After weighing all of the considerations above and the directions of the Court of Appeal, I believe that this is not one of the rare cases for which a conditional sentence of imprisonment is appropriate.
  27. The Crown seeks a sentence of six months. The Crown is acknowledging that the personal circumstances of this offender mitigate towards a sentence in the lower part of the range. I agree with the Crown in that analysis. The significant report from the psychiatrist, coupled with the lack of underlying cognitive issues tending towards recidivating would allow me to reduce this appropriate request further. I find his bail condition, even though they were short of house arrest, are akin to a curfew and should also be considered.

    Conclusion

  28. Having reached this conclusion, I believe that the mitigating factors are sufficient that the principles can be satisfied with a custodial disposition in the intermittent range. I am also specifically cognizant of the fact of the effect of a continuous period of imprisonment upon the defendant's business and the employees who rely upon him for their livelihood.

    Sentence

  29. My sentence is as follows (Court discusses with counsel the terms of probation and other matters):
    - for this offence this gentleman will be imprisoned for a period of 90 days. It will be allowed to be served intermittently. For the purpose of the intermittent sentence he would step into custody today. You will then return to custody at whatever institution you are told to report to, on Friday, December 5, 2008 at 7:00 p.m. You will be released the following Monday morning at 6:00 a.m. You will then attend every Friday following at the institution provided until such time as your sentence is completed.

    - I am also going to impose a period of probation, commencing immediately, for a period of 36 months. It will be the statutory terms.

    - Report to probation forthwith or within 24 hours. You will then report to probation when and as your probation officer requires you to do so.

    - You are to take such counselling as recommended by your probation officer, with regard to any issues of child pornography and the probation officer may accept your continuing sessions with Dr. Gojer, or his designate, as appropriate counsel. You must provide your probation officer with a release in the usual form so the probation officer can monitor your progress. You are not to stop such counselling unless you have the approval of your probation officer.

    - In my opinion a DNA sample is required as it is a primary offence under s. 487(8.1)(4.5), therefore he will provide a sample of his DNA.

    - There will be an order of forfeiture under s. 164.2(1) of the Criminal Code of the hard drives which were seized from the defendant in the investigation of this particular matter.

    - I also will make an order under s. 161(1)(b) of the Criminal Code for 10 years prohibiting the defendant from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming a volunteer in a capacity that involves being in a position of trust or authority towards a person under the age of 14 years (and there is an exception for any person to whom he is related).

    - I also make an order under s. 161(1)(c) for 10 years prohibiting the defendant from using a computer system within the meaning of s. 342.1(2) for the purpose of communicating with a person under the age of 14 years (and again I make the exception of such person as a person to whom he is related).

    - I would also make an order that he complies with the Sexual Offender Registry. It will be for a period of 10 years.

P.N. BOURQUE J.
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