R. v. Munro Date:, 2016 BCPC 241

Citation: R. v. Munro Date: 20160714 2016 BCPC 0241 File Nos: 61410-1, 61412-3-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. DON JAMES MUNRO ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER BAN ON PUBLICATION 486.4(2) CCC RESTRICTED ACCESS

Counsel for the Crown: L. Ashton Counsel for the Defendant: M. Galambos Place of Hearing: North Vancouver , B.C. Date of Hearing: July 14, 2016 Date of Judgment: July 14, 2016 [ 1 ] THE COURT: Mr. Munro is before the court for the imposition of sentence on one count of invitation to sexual touching contrary to s. 152 of the Criminal Code , one count of making sexually-explicit material available to a person under the age of 18 years, contrary to s. 171.1 of the Code , and two counts of violating a s. 161(4) prohibition. [ 2 ] The offender pleaded guilty on all counts on September 17, 2015.

Sentencing submissions were made December 16, 2015, and April 11, 2016. [ 3 ] The maximum period of incarceration permitted is 10 years on the s. 152 offence and two years on the s. 171.1 offence. The s. 152 offence has a minimum of one year imprisonment, and the s. 171.1 offence has a minimum of 90 days' imprisonment. The s. 161(4) offences have a maximum period of incarceration of two years and have no prescribed minimum sentence. Circumstances of the Offences [ 4 ] Mr.

Munro is a pedophile with previous convictions relating to sexual activity with preteen and early teen boys for which he received a four-and-a-half-year sentence. He was released on parole in July of 2011. While on parole, he resided at a Salvation Army resource for 10 months and engaged in a sexual offender maintenance program. Thereafter, he lived on his own in the community until the expiration of his warrant of imprisonment on June 16, 2013. [ 5 ] At the time of his release on parole, he was assessed by the Corrections authorities as having excellent skills to manage his risk factors. [ 6 ] In early 2014, Mr.

Munro met the child victim, who was 10 years of age, and his single-parent mother on a ferry from Vancouver Island to the mainland. He introduced himself as "James", which is his middle name. In the first meeting, he offered that he was trained as a teacher, but tutored children outside of school. He gave the victim's mother his phone number. [ 7 ] He feigned a relationship with the victim's mother for two to three months, at which point she concluded the offender was not romantically interested in her. However, he did lead her and the victim to believe he had a sincere interest in the well-being of the child.

By this point, he had already begun contacting his victim by text several times a week. As a result, the child and his mother continued to socialize with the offender who, at the same time, was continuing to manipulate them to gain their trust. [ 8 ] The s. 161 prohibition violations occurred while the offender was engaged in the grooming of the child. He went with them to Grouse Mountain on March 1, 2014, with another child of a similar age. The mother took ski lessons while the offender skied with the two children. [ 9 ] On May 24, 2014, the child was playing in a tournament in Kelowna.

The offender met them there and stayed two nights. During the stay, the offender attended the pool where a number of the other children in the tournament were playing. He used the hot tub while it was occupied by a number of these young males. [ 10 ] The victim's mother reported that he often accompanied the child to pools and other facilities or activities at which there were male children in his target age group. [ 11 ] In the fall of 2014, the teachers went on strike. Mr. Munro offered to tutor the victim in his home once per week during the day when his mother was at work.

In general, the tutoring sessions involved little tutoring and instead the child was permitted to play video games. The offender attempted to bribe the child to masturbate in front of him by telling him he would not have to study. The child declined to do so. The offender also exposed the child to adult pornography on the Internet. In particular, the child remembered a site titled "Mushroomtube". [ 12 ] During each of the tutoring sessions, the offender masturbated in front of the child and asked the child to masturbate in front of him.

The offender sat next to the child and patted the child on the back, as he masturbated and ejaculated onto his own stomach. On one occasion, the offender told the child that he should not be masturbating in front of him. [ 13 ] During the fall, the offender began asking the victim's mother if the child could sleep over. She refused to allow this. He then asked the victim to sleep over. The child declined. In the week before the police were contacted and a complaint made, the offender offered the child liquor. [ 14 ] The child declined to take any.

The child was picked up and dropped off by the offender for the purported tutoring sessions. In the third week of December, while stopped at a gas station, the victim saw the offender's credit card and his full name. When he got home, he told his mother and they quickly determined the offender's criminal history. The police were then contacted. [ 15 ] Mr. Munro was arrested on December 26, 2014, and has been in custody since. He was denied bail.

Criminal History [ 16 ] As it informs the seriousness of the offending behaviour before the court in this matter, I will set out in some detail the circumstances relating to Mr. Munro's previous convictions. [ 17 ] Those convictions were entered on November 26, 2007, in Vancouver. The reasons for conviction following trial were entered as an exhibit on sentence before me. Mr. Munro was sentenced on December 17, 2008. He received a four-and-a-half-year sentence on six counts of sexual interference and sexual assault involving three young male victims.

A s. 161 prohibition was imposed for a period of 10 years, in addition to a SOIRA order for the same period. [ 18 ] His only other conviction is for an impaired driving offence in 1989. [ 19 ] Mr. Munro met his first victim in 1998 while he was acting as a "big brother" through that organization. The victim was seven and the offender was 28. The offences occurred from early 1999 to mid-2004. He met the other two victims through his first victim, as they lived in the same housing complex. His offending with the second victim, who was 11, commenced in 2002 and carried on until mid-2004.

His offending with the third victim, who was 13, occurred in early 2004. [ 20 ] While ostensibly acting as a "big brother" to the first victim, Mr. Munro befriended and gained the trust of the first victim's mother and, through her, met and gained the trust of the mothers of the other victims. He engaged in repeated and ongoing sexual activity with the first victim, including mutual masturbation and fellatio, while maintaining a friendship with that victim's mother. He behaved in similar ways with the other two victims and their mothers. [ 21 ] Mr.

Munro groomed his victims by engaging with them in age-appropriate entertaining activities, giving them alcohol and marihuana, and showing them pornography. He also allowed them to pose with his firearms. In the psychological report, he admitted there were five boys who he victimized at that time. [ 22 ] While released on bail, he violated the terms of his release by making contact with persons under 14. Victim Impact [ 23 ] The victim believed that the offender was a friend who cared about him.

He was ashamed about what he experienced and has been left with feeling that he lost his youth as a result of being victimized as he was. [ 24 ] The behaviour of the victim child was noted by his mother to change during the time he was in contact with the offender. He became defiant and began lying. He withdrew socially from his peers, lost confidence, and lost interest in his schoolwork. [ 25 ] Since the arrest of the accused, he has attended counselling, but continues to be emotionally fragile and is anxious about the offender being released from custody.

His mother expects that the conduct of the offender will have a lasting negative impact on the emotional well-being of her son. [ 26 ] The victim's mother was also emotionally impacted, as she had come to trust Mr. Munro as a friend. She feels guilty for what she perceives as a failure to protect her son and has experienced ongoing distress. [ 27 ] I find the offence had a significant impact on the mental health of the child victim and his mother. Presentence Report [ 28 ] Mr. Munro had an unremarkable upbringing and an intact family.

He has several half-siblings from his parents' earlier relationship and is the only child of his parents' union. [ 29 ] He provided only one collateral contact, being a half-sister. [ 30 ] He has no health, mental health, cognitive, or other challenges. [ 31 ] Alcohol abuse, including binge drinking, has been a problem over his adult life, but was not a significant contributing factor in this offence. [ 32 ] The Forensic Psychiatric Services psychological report concludes that Mr.

Munro continues to represent a relatively high risk to reoffend and will require external supports, such as long-term treatment and supervision, to assist him in controlling his pedophilic tendencies. Psychological Assessment Prepared for the Defence [ 33 ] Mr. Munro was assessed by Dr. Michael Elterman. Dr. Elterman is a reliable, careful, and well-respected psychologist and I accept his opinion.

He concluded that the offender's risk to reoffend is likely to occur over the longer term and would be raised significantly if he is not in counselling or being supervised, as his problem thinking would be allowed to go unchecked. Positions of Counsel [ 34 ] Counsel for the Crown submits that a sentence of six to seven years, less enhanced time served for the substantive offences, and six months consecutive on each of the s. 161 offences is appropriate.

The Crown says the protection of the public, denunciation, and general and specific deterrence are the principles of sentence to be given the greatest weight. [ 35 ] Counsel for Mr. Munro submits that a global sentence of three years, less enhanced time served, with a lengthy term of probation to follow is appropriate.

Aggravating and Mitigating Factors [ 36 ] The aggravating factors are that the offence was committed against a vulnerable victim by a person in a position of trust. The offence involved a lengthy period of grooming, which in turn involved ongoing deceit and manipulation. The offender has a criminal history for similar offences and was bound by a s. 161 prohibition at the time of the offences. [ 37 ] The mitigating factors are that the offender entered his guilty pleas at a relatively early opportunity and has accepted responsibility for his conduct.

He expresses remorse and wishes to gain control over his pedophilic sexual proclivities. The Law [ 38 ] The principles of sentence are set out in ss. 718, 718.1, and 718.2 of the Code , and I have carefully considered all of those provisions.

In particular, I have considered s. 718.01, which provides that the court must give primary consideration to the objectives of denunciation and deterrence of conduct which involves the abuse of a person under 18, and ss. 718.2(a)(ii) and 718.2(a)(iii), which provide that evidence a person abused a person under the age of 18 and/or evidence that the offender was in a position of trust or authority in relation to the victim are aggravating factors. [ 39 ] The Crown provided the court with the following authorities: R. v. Arcand , 2010 ABCA 363 ; R. v. L.M ., 2008 SCC 31 ; R. v. L.F.W. , 2000 SCC 6 ; R. v.

B.C.M ., 2008 BCCA 365 ; R. v. Cardno [2013], B.C.J. No. 889 ; R. v. Snow, 2014 BCPC 27 ; R. v. Ogbamichael , 2014 ONSC 1693 ; and R. v. Shields , 2014 BCPC 356 . [ 40 ] The decision of the Alberta Court of Appeal in R. v. Arcand presents difficulties with respect to its weight as an authority in light of the decision of the same court in R. v. Lee , 2012 ABCA 17 . However, I have considered paragraphs 48, 49, 57, 58, 63, and 65, addressing the overarching principles of sentence and which were cited by Crown counsel in argument.

I find that those passages are correct statements of the law. [ 41 ] The Cardno case involved an offender who engaged in similar conduct to that which was involved in Mr. Munro's earlier offences and this offence. It was more aggravated in that he produced child pornography by photographing his victims. The abuse also went on for a longer period of time and involved more victims. He had no previous history. A six-year sentence was imposed for the sexual offences with a three-year consecutive sentence imposed for the production of child pornography. [ 42 ] Mr.

Snow was a pedophile who was found in possession of child pornography. He had a lengthy record which included similar offences. He had previously been treated for his sexual deviancy and was considered a high risk to reoffend. A four-year sentence was imposed. [ 43 ] In Ogbamichael , the offender had a history of sexually touching females in public and was on probation for a similar offence at the time of the new offence.

He received an 18-month sentence for the sexual assault offence and a 12-month consecutive sentence for the breach of probation. [ 44 ] In Shields , at paragraph 29 , the purpose of the preventative provisions of s. 161 were discussed. The

section was clearly intended to keep high-risk sexual offenders away from potential victims and serves an important societal interest. [ 45 ] The Crown argued that a sentence in the high end of the available range of sentence is one which the court should consider appropriate, based on all the principles of sentence, and should not be constrained by the view that such a sentence should be reserved for the worst circumstances or worst offences: see R. v. Cheddesingh , 2004 SCC 16 , and R. v. L.M. , 2008 SCC 31 . [ 46 ] In R. v.

L.F.W. , at paragraph 31 , Madam Justice L'Heureux-Dubé adopted the words of Cameron J.A. regarding the moral blameworthiness for sexual offences against children: 31 Recognizing that there is no presumption in favour of incarceration for certain types of offences, I adopt the following comments of Cameron J.A., at p. 148: . . . I do start from the premise that sexual assault of a child is a crime that is abhorrent to Canadian society and society's condemnation of those who commit such offences must be communicated in the clearest of terms.

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.

The trial judge obviously concluded that "house arrest" with certain liberties would be sufficient to communicate society's condemnation of the offender's conduct in the case. . . . [ 47 ] At paragraph 17 of the Cardno decision, the court discussed the impact of sexual abuse on children: 17 Extensive sexual abuse by what I would call quasi parental figures can cause intense shame, rage, despair, confusion, depression and fear among the victims. The psychological wounds will probably fester for years and result in serious but unpredictable behaviour on the part of the victims.

Some victims are often haunted for the rest of their lives by the memories of sexual misconduct towards them when they were children. . . . [ 48 ] In R. v. B.C.M. , 2008 BCCA 365 , the court addressed the effect of the new Code provisions providing for minimum sentences for child sexual offences and child pornography offences: [34] The view that a minimum sentence creates an inflationary floor is consistent with Parliament's clear intent in enacting Bill C-2,

that offenders who victimize young people receive longer sentences. The

preamble of the Act expresses this general intent: WHEREAS the Parliament of Canada has grave concerns regarding the vulnerability of children to all forms of exploitation, including child pornography, sexual exploitation, abuse and neglect; WHEREAS Canada, by ratifying the United Nations Convention on the Rights of the Child, has undertaken to protect children from all forms of sexual exploitation and sexual abuse, and has obligations as a signatory to the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography; WHEREAS the Parliament of Canada wishes to encourage the participation of witnesses in the criminal justice system through the use of protective measures that seek to facilitate the participation of children and other vulnerable witnesses while ensuring that the rights of accused persons are respected; AND WHEREAS the continuing advancements in the development of new technologies, while having social and economic benefits, facilitate sexual exploitation and breaches of privacy; NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: . . . [35] Bill C-2 creates new minimum sentences of incarceration for a number of offences dealing with the abuse and exploitation of persons under 18, regardless of whether the Crown proceeds summarily or by indictment.

It also creates s. 718.01, which states: 718.01. 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. Thus the principles of restraint and rehabilitation, while still operative, are given secondary status in offences involving young victims. [ 49 ] More recently in R. v. F.E.H. , 2015 BCSC 175 , the court observed at paragraphs 63 to 66: [63] I was provided with a number of authorities by Crown counsel.

While I will not refer to each of them in these reasons for judgment, I have considered them all, several being of real assistance. I was provided with three authorities by defence counsel all of which pre-dated the timeframe in question by several years. They were not of assistance to me, particularly in light of more recent authority which deals with sexual offences against children. [64] As Saunders J.A. stated in R. v. Worthington (sub nom R. v. D.R.W. ), 2012 BCCA 454 at paras. 31-34 : [31]

Section 718.01 was included in

An Act to amend the criminal code (protection of children and other vulnerable persons) and the Canada Evidence Act , S.C. 2005, c. 32. In this [C]ourt's decision in R. v. M. (B.C.) , 2008 BCCA 365 , Madam Justice Neilson, for the court, in dealing with an offence of making pornography which has a minimum sentence of one year, observed that minimum sentences have the effect of raising sentences across the board for such offences to maintain proportionality. She referred to the mention in the

preamble of the Act, to the vulnerability of children, to all forms of sexual exploitation, abuse and neglect, and to the United Nations Convention on the Rights of the Child . [32] It would be fair, I think, to describe s. 718.01 and the other augmented provisions for offences concerning abuse of children as an attempt by Parliament to re-set the approach of the criminal justice system to offences against children. [33] I recognize that there are many clear examples in cases pre-dating that Act that responded firmly to offences against young people, such as R. v.

T.A.D. (1995), 68 B.C.A.C. 236 , but there has been significant legislative action, all to the emphasis of protection of young people. At the same time it enacted s. 718.01, the Act addressed other sections of the Code . . .

Section 718.2(a)(iii) is also

relevant. It lists the fact the abuse is by a person in a position of trust or authority in relation to the victim as an aggravating factor. [34] With these observations, I would say that the range of sentences drawn from a former era may not reflect the appropriate balanceof principles now required by the Criminal Code. [65] Other cases, which refer to the increase in severity of sentences imposed where children are the victims of sexual offencesinclude [and I am not going to read those in] . . . [66] In R. v. B.S.B., 2008 BCSC 1526, Mr.

Justice Romilly, paraphrasing the views of the Supreme Court of Canada in R. v. Stone, (SCC), [1999] 2 S.C. R. 290, stated at para. 30: [30] In fashioning the appropriate sentence in each case, judges must be conscious of prevailing social values and seek to bringsentences into harmony with them. This is particularly so when the principle of denunciation comes to the fore. [50] Counsel for Mr. Munro relied on numerous authorities, most of which were of limited assistance to the court, except where theyreviewed and applied the principles of sentence respecting sexual offences. They are: R. v.

Billings, 2014 ABPC 124; R. v. Bird, 2014SKQB 75; R. v. B.S.B., 2008 BCSC 1526; R. v. Callahan-Smith, 2015 YKTC 3; R. v. Campbell, 2014 BCCA 235; R. v. F.E.H., 2015BCSC 175; R. v. Lachapelle, 2009 BCCA 406; R. v. Lee, 2012 ABCA 17; R. v. L.(T.P.), 2006 SKCA 85; R. v. P.D.W., 2015 BCSC 660;R. v. R.R.B., 2013 BCCA 224; R. v. Summers 2014 SCC 26 , [2014], 1 S.C.R. 575; and R. v. W.J.C., 2015 BCPC 327. [51] In R. v. L.(T.P.), the court dealt with an appeal from a long-term offender designation. They set aside that designation andimposed a sentence of 18 months for one incident of invitation to sexual touching.

The offender was in a relationship with the child'smother. He put a condom on his own penis and enticed the victim to touch his penis by offering a toy. [52] The offender was a pedophile who was found to present a low to moderate risk to reoffend. The court also found that theoffence, which involved a single incident of touching, was at the very lowest end of the spectrum of seriousness. The offender had sixprior convictions for sexual offences involving children. The first offence occurred in 1988 when he was 17 years of age and involvedone victim. A probationary term was imposed.

The second set of convictions involving five counts occurred in 1996 and he received asentence of four and a half years. [53] All of the offences involved fondling and fellatio. The offence before the court occurred in 2002 and he was convicted in late2004. [54] Counsel for Mr. Munro argued that this case was similar to the case of Mr. Munro with respect to both the antecedents of theoffender and the nature of the offence, in that Mr.

Munro never touched the child sexually or caused the child to touch him sexually. [55] This case does not consider the provisions of Bill C-2 and the specific amendments dealing with the imposition of sentence foroffences involving the abuse of children. It is my view that the characterization of the offence is at the very lowest end of seriousness onthe spectrum of such offences, given that offender's background is one which would now not be seen to be appropriate.

The level ofdeceit and manipulation involved in that offence is also not clear. [56] In Billings, the court imposed a 12-month sentence for breach of probation for contacting persons under the age of 18 online. The offender had earlier been convicted on two counts of luring children online. The offender had a developmental disability whichimpacted his cognitive abilities and was at high risk to reoffend. [57] As is usual, in determining the range of sentence or crafting any sentence, each case turns on its own facts.

Some of the defenceand Crown authorities involved offenders with different antecedents and life circumstances and/or the nature of the offences were moreor less aggravated than those before the court. These cases do support that the range of sentence for a mature offender with a moderaterisk to reoffend and no criminal history is from one to four years, depending on the number of victims, the nature and extent of anygrooming, and the nature of the sexual interference perpetrated.

They illustrate that the earlier sentence imposed against this offender atthe time it was imposed was within the appropriate range for a first-time offender with more than one victim child. [58] Counsel were unable to provide the court with any other cases dealing with the sentencing of a recidivist sexual offender whoreoffended recent to the conclusion of a previous disposition and who was an untreatable pedophile. [59] Having considered the principles of sentence as set out in the Code and the authorities, I find that in determining the appropriatesentence in this matter, I must give primary weight to protection of the public, denunciation, and general deterrence.

The specificdeterrence of this offender must also be given significant weight, as this is a second offence and he continues to present a risk to reoffend. [60] I find that the principle of restraint must be given secondary weight, because the rehabilitation of this offender is unlikely andbecause the nature of his offending involves the abuse of a child. [61] I also find that any authorities respecting the range of sentence which predate the amendments to the sentencing principles setout in the Code which specifically address offences against children should be inflated.

Analysis [ 62 ] In the circumstances, it is informative to observe that Mr. Munro is intelligent, well-spoken, has a pleasant appearance, and I infer he would present to most people as a prosocial person. He has a Bachelor of Science degree and an education certificate from UBC. He has worked as an on-set tutor to young male actors and as a production assistant in the entertainment industry.

After his release from custody, he returned to school and obtained a certificate and began working for a software company. [ 63 ] I find that his past offending behaviours and the current offence make clear he is a very capable person who has demonstrated an ability to deliberately and meticulously manipulate the impressions of him held by the parents and other adults involved in the care of his victims over long periods of time and while engaged in reasonably close friendships with those people. [ 64 ] He is also clearly able to relate to his victims in a manner that allows him to effectively gain their trust and manipulate their perceptions and understandings to serve his own sexual ends. [ 65 ] I wish to observe, for the benefit of the victim and his mother, that the victim showed great strength of character in refusing to engage with this offender other than passively.

He is not in any way at fault or responsible for what happened to him. His mother is in no way responsible or at fault either. [ 66 ] Mr. Munro stated to the forensic psychologist that he romantically pursued the victim's mother in an attempt to manage his risk to reoffend by entering into a healthy adult relationship. I do not accept this to be true. To the contrary, given that she had a child in his target age group, entering into a relationship with her presented him with circumstances which he would have known would dramatically increase his risk to reoffend. I find that from the moment Mr.

Munro met the victim and his mother, he began to manipulate them in order to gain access to the child, and used a different name to conceal that he was a convicted pedophile. [ 67 ] The offender advised the preparers of the presentence report and psychological reports that he has gained new insight into and has accepted responsibility for his offending behaviour. He reported similar progress to the Corrections authorities prior to his release in 2011.

Both then and now he presents as intelligent and insightful, as well as sincere in his wish to control his impulses and not reoffend. [ 68 ] It is evident from the circumstances before me that despite his desire to avoid reoffending and having learned the skills necessary to do so, he is unable to control his deviant impulses. He continues to rationalize and minimize his responsibility for the offence before the court. For example, he told Dr. Elterman that the victim's mother asked him to join them at the table to play cards on the ferry, and therefore he did not seek out the relationship with her. [ 69 ] Mr.

Munro had many months in which to reconsider his conduct, to apply the techniques learned in his treatment, and to withdraw from contact with the victim and his mother. There is nothing to suggest his judgment was impaired by mental health, cognitive challenges, or addiction. There is nothing in the evidence to suggest that he did anything other than pursue, and with great dedication, the satisfaction of his deviant desires. Mr. Munro is fully responsible for his offending conduct. [ 70 ] I find Mr. Munro's moral culpability for the offences before the court to be very high.

I find so because he had the benefit of years of extensive sex offender treatment and experienced the punitive and deterrent force of a lengthy period of imprisonment, and yet only eight months after the conclusion of his sentence he chose to again engage in an almost identical modus operandi of grooming of another child from the moment the opportunity to do so presented itself. [ 71 ] In my view, the offender's moral culpability for these offences extends far beyond the mere acts of masturbation or the times when he exposed the child to pornography, and encompasses the period of time which was preparatory to the commission of the offences and the period of time during which the offences were committed.

He made a conscious and deliberate choice to engage in criminality for at least 10 months. [ 72 ] According to the assessments, his risk to reoffend continues and will significantly increase when he is unsupervised in the community. Upon completion of any sentence outside the provincial range, there will be no means to compel him to continue to pursue counselling.

I accept the opinions expressed in the psychological reports and find he continues to be a relatively high risk to reoffend in a similar manner in the future. [ 73 ] The extent of his deception and manipulation of both the victim child and his mother, I find to be a significant aggravating factor. Mr. Munro was placed in a particular position of trust by the mother of the victim when he undertook to tutor the child. The child trusted him as being a friend to him and his mother. [ 74 ] The offences are deemed aggravated and are in fact aggravated.

The offender has caused profound and lasting emotional and psychological damage to the victim. The harm caused extends to his mother. These kinds of offences require the court the give primary consideration to the objectives of denunciation and deterrence. Any sentence imposed must denounce the significant harmful impact the offender's conduct caused to the victim and the community.

The sentence must properly reflect the moral blameworthiness of this offender. [ 75 ] In my view, the fact the accused was unsuccessful in his efforts to engage the child in sexual acts does not lessen the seriousness of these offences. Recent to the time his true identity was discovered, he had resorted to attempting to overcome the child's resistance by enticing him to take alcohol.

The fact that the victim child was courageous, resilient, and vigilant, and therefore able to resist the offender's efforts and act to end the abuse before an offence involving sexual touching occurred does not reduce the seriousness of the offences which were committed. [ 76 ] I also find the sentence should not be tempered because there was only one child victim in this matter.

This factor is far outweighed by the offender's criminal history and the brief time between the conclusion of the sentence imposed for those earlier offences and the commencement of his criminal conduct in this matter. [ 77 ] The violations of the s. 161 prohibition order are serious. The offender knowingly placed himself in situations where his risk to

reoffend would have been greatly increased by stimulating his pedophilic tendencies and affording himself the opportunity to identify and attract further victims. [ 78 ] In all the circumstances of this offender and this offence, an appropriate and proportional sentence is one involving a lengthy period of incarceration and longer in duration than the previous sentence imposed for similar offences. [ 79 ] If you will stand. On Count 2 of Information 61410, I impose a sentence of six and a half years.

You will receive credit for actual time served of 19 months, total credit of 28.5 months, and 49 and a half months of new time. [ 80 ] On Count 3, you will receive 18 months concurrent. [ 81 ] On Information 61412, Count 2, there will be a six-month consecutive sentence to the sentence on 61410, and on Count 3, a sentence consecutive to the sentence on Count 2 and, of course, consecutive to the sentence on 61410. [ 82 ] There will be a lifetime order under the Sexual Offender Information Registration Act , both with respect to Count 2 and 3 on Information 61410. [ 83 ] You will provide a sample of your DNA on a primary-ground basis, again on Counts 2 and 3 of Information 61410. [ 84 ] Pursuant to s. 161, there will be a lifetime order under (1)(a), prohibiting you from attending at any 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 daycare centre, school ground, playground or community centre; under s. 161(1)(b), prohibiting you from seeking, obtaining or continuing 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 persons under the age of 16 years; and under s. 161(1)(

c) having any contact — including communicating by any means — with a person under the age of 16 years, unless you do so under the supervision of a person whom the court considers appropriate. [ 85 ] I believe that deals with all of the ancillary and other orders. (REASONS CONCLUDED)