2012 QCCA 743, 2012 QCCA 743

Rossy c. R. 2012 QCCA 743 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005086-127 ( 500-01-005250-086 ) MINUTES OF THE HEARING DATE: April 17, 2012 CORAM: THE HONOURABLE MARC BEAUREGARD, J.A. ALLAN R. HILTON, J.A. GUY GAGNON, J.A. APPELLANT ATTORNEY DAVID ROSSY Mtre Marie-Hélène Giroux MONTEROSSO GIROUX RESPONDENT ATTORNEY HER MAJESTY THE QUEEN Mtre Geneviève Dagenais Criminal and Penal Prosecuting Attorney ATTORNEY(

S) On appeal from a sentence rendered on September 7, 2011 by the Honourable Madam Justice Louise Bourdeau of the Quebec Court, District of Montreal. NATURE OF THE APPEAL : Sentence – Luring – Extortion – Production of child pornography Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 9 h 35 Beginning of the hearing 9 h 34 Submission by Mtre Giroux. 9 h 40 By the Court: judgment – see next page. Robert Osadchuck Clerk BY THE COURT JUDGMENT

[ 1 ] David Rossy pleaded guilty to 11 counts in three separate court files for the offences of luring [paragraph 172.1(2)(

a) Cr.C .], extortion [paragraph 346(1.1)(

b) Cr.C .], and production of child pornography [paragraph 163.1(2)(

a) Cr.C .]. All of these offences involve Mr. Rossy engaging in activity of a sexual nature with three minor females, who were 13, 15 and16 years old at the time of the offences. [ 2 ] The scenario Mr. Rossy employed with respect to his victims was similar. He would convince them to perform a strip tease via web cam, from which he would take photos from his computer. He would then threaten to make the photos of the victims public if they did not perform various sexual acts with him.

During the relevant period of time, this scheme facilitated him having sexual intercourse with one of his victims on several occasions. [ 3 ] Mr. Rossy also pleaded guilty to one count of failing to comply with a condition of release from pre-trial custody [paragraph 145(3)(

a) Cr C .], which occurred while he was awaiting trial in this case. [ 4 ] A pre-sentence report prepared by a probation officer who is a criminologist portrayed Mr. Rossy in an unfavourable light, and characterized the possibility of his re-offending as significant. [ 5 ] At his sentencing hearing, Mr. Rossy testified and expressed remorse for what he had done to the three victims of the primary offences. [ 6 ] In a judgment rendered orally, the trial judge sentenced Mr.

Rossy to a term of incarceration of two years, less one-day, for each offence, to be served concurrently, followed by a probation order of three years. In doing so, she specifically took account of the desirability in Mr. Rossy's case of not having a penitentiary term of at least two years. [ 7 ] The principal ground of appeal relates to the failure of the trial judge to subtract time Mr. Rossy spent in remand custody from the sentence she imposed.

The transcript of the sentencing hearing shows that the trial judge intended, initially, to deduct such time from the sentence, but that upon a further representation from Crown counsel, she declined to do so. [ 8 ] The recent case-law in this Court is to the effect that a sentencing judge, in the exercise of his or her discretion, is not obliged to deduct time spent in remand custody in determining the length of incarceration to which an offender will be subject, as long as the judge addresses his or her mind to the possibility and has a reasoned explanation for not doing so. [1] The circumstances revealed by the evidence before the sentencing judge relating to the gravity of the offences, their repetitiveness, the age of the victims, their vulnerability and Mr.

Rossy's prognosis as discussed in the pre-sentence report amply justify the sentence the trial judge imposed. Indeed, when explaining why she would not deduct the remand time, she remarked that her sentence "reflète effectivement plus la dangerosité et la gravité des crimes." [ 9 ] The other grounds of appeal asserted to the effect that the sentence was incompatible with similar sentences in similar circumstances and disproportionate in light of Mr.

Rossy's alleged immaturity and lack of prior convictions are unfounded when measured against the gravity and repetitiveness of the offences to which he pleaded guilty. There are no mitigating factors, beyond the guilty plea, that would suggest that Mr. Rossy could reasonably expect a sentence less than the one he received. [ 10 ] To accede to Mr. Rossy's conclusion that his sentence be reduced by eight months would require the Court to depart from the principles governing appellate intervention in sentencing appeals. That is not a position to which the Court can subscribe.

FOR THESE REASONS, THE COURT : [ 11 ] DISMISSES the appeal. MARC BEAUREGARD, J.A. ALLAN R. HILTON, J.A. GUY GAGNON, J.A.