R v Chung, 2023 ABKB 372

Court of King’s Bench of Alberta Citation: R v Chung, 2023 ABKB 372 Date: 20230620 Docket: 200414183Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Michael Jean-Young Chung Offender Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the Complainant must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Sentencing Judgment of the Honourable Justice W.N. Renke _______________________________________________________ I provided an oral decision with written reasons to follow.

[ 1 ] Mr. Chung entered guilty pleas to two counts: • under s. 172.1(1)(a), luring a child under age 18 • under s. 171.1(1)(a), making sexually explicit material available to a child.

Section 172.1(1)(

a) and s. 171.1(1)(

a) provide as follows: 172.1(1) Every person commits an offence who, by a means of telecommunication, communicates with (

a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1),

section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2) .... 171.1(1) Every person commits an offence who transmits, makes available, distributes or sells sexually explicit material to (

a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1),

section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2) .... Both offences occurred between June 20, 2019 and November 27, 2019, at Sherwood Park, Alberta, and involved the same Complainant. [ 2 ] Mr. Chung’s wife (DZ) was charged as a co-accused respecting the luring offence. However, the sentencing concerned only Mr. Chung. [ 3 ] The Crown sought a sentence for Mr.

Chung of 4 years total, three years for the luring offence and one year consecutive for the making sexual material available offence. [ 4 ] The Crown sought the following ancillary orders: • an order under s. 743.21 forbidding contact by Mr.

Chung with the Complainant while he is in custody • a DNA order supported by both offences • a SOIRA order for a 20-year term • an order under s. 161, paras (a), (a.1), (b), (c), and (d). [ 5 ] The Defence urged a sentence qualifying for a conditional sentence order with strict “house arrest” conditions followed by three years probation for a total of 5 years under conditions (maximum), but in the alternative, were I not prepared to impose a CSO, a sentence of two years plus a day so Mr.

Chung would have the benefit of federal programs. [ 6 ] The Defence did not take a position respecting the ancillary orders sought save respecting the term and conditions of the s. 161 order. [ 7 ] In coming to my sentence determination, I will provide the factual background to the offences, address the legal background to the sentencing, then work through the elements of the sentencing analysis. Table of Contents I. Background . 4 II. Sentencing Framework . 5 A. Basic Principles . 5 1. Objectives and Proportionality . 5 2. Priority of Denunciation and Deterrence . 6 3. Individualization . 6 B.

Impact of Friesen . 7 III. Sentencing Considerations . 8 A. Proportionality . 8 1. Gravity of the Offence . 8 2. Degree of Responsibility . 11

B. Aggravating and Mitigating Circumstances . 12 1. Not Aggravating or Mitigating . 12 2. Age . 12 3. The Communications . 13 4. Family Member 15 5. Abuse of Position of Trust 15 6. Role of DZ .. 16 7. Other Criminal Acts . 16 8. The Family Targeted Again . 17 C. Locating the Gravity and Blameworthiness of the Offence . 17 D. Personal Circumstances . 18 1. Pre-Offence Circumstances . 18 2. Age at the Time of the Offence . 18 3. Criminal Record . 18 4. Cooperation with the Authorities . 19 5. Compliance with Bail Conditions . 19 6. Publicity . 20 7. Guilty Plea . 20 8. Remorse . 21 9. Risk of Reoffending . 21 10.

References and Community Support 22 11. Impact on Family . 23 12. Health Concerns . 23 E. Parity . 24 1. Parity and Proportionality . 24 2. General Guidance . 25 3. Comparator Cases . 27 IV. Fit Sentence for Mr. Chung . 28 A. Luring Offence . 28 B. Making Available Offence . 30 C. Sentencing . 30 D. Recommendation . 31 E. Co-Accused . 32 I. Background [ 8 ] An Agreed Statement of Facts was filed (ASF). [ 9 ] Mr. Chung was a Tae Kwon Do instructor. The Complainant and her sister DZ were students at his school. Mr. Chung met them when the Complainant was 7 and DZ was 11. He was about 26.

[ 10 ] Mr. Chung was the sisters’ instructor from 2010 to early 2016: ASF para 2. [ 11 ] Mr. Chung commenced an intimate relationship with DZ when she turned 15. He was about 30 years old. Mr. Chung was charged with sexual offences relating to DZ but she refused to cooperate with the police. Mr. Chung was not convicted of any offence: ASF para 3. Mr. Chung and DZ have remained in an intimate relationship and married in May 2020, according to the pre-sentence report. They have one son, who’s not quite two years old. [ 12 ] The relationship of Mr. Chung and DZ estranged them from DZ’s family. Mr.

Chung and DZ had no contact with other family members, including the Complainant, for four years: ASF para 5. [ 13 ] Contact was made with the Complainant when the Complainant was 15, soon to turn 16. Mr. Chung was 34. [ 14 ] Text messages and later video chats were received by the Complainant from June 20, 2019 to November 27, 2019, a period of about 5 months. The ASF confirmed that 1,305 “individual messages” were sent over this period: ASF para 6. [ 15 ] Contact was made from DZ’s account, purporting to be communications by DZ: ASF para 7.

The messages sought intimate photographs of the Complainant. [ 16 ] On August 15, 2019, Mr. Chung overtly communicated with the Complainant using DZ’s account. On this date, he sent the Complainant a photograph of his penis: ASF para 20. [ 17 ] On August 21, 2019, Mr. Chung sent another photograph of his penis to the Complainant: ASF para 21. [ 18 ] On November 3, 2019, Mr. Chung engaged the Complainant in a video chat. He exposed his penis. [ 19 ] Later on November 3, 2019 in a video chat, Mr.

Chung referred to masturbating, exposed his penis, and masturbated: ASF at para 32. [ 20 ] The Complainant rebuffed all efforts to provide what Mr. Chung wanted. She sent no intimate images to him and did not otherwise fulfill his requests or DZ’s requests. The Complainant recorded the communications sent to her. [ 21 ] Mr. Chung admitted that he directed all the actions of DZ: ASF para 41. [ 22 ] The admitted facts amply supported findings of guilt for the luring and making sexually explicit material available offences. I infer from the ASF descriptions of the communications by Mr.

Chung with the Complainant and my review of the messages appended to the ASF as Exhibit A that Mr. Chung was seeking through his communications to access child pornography (intimate images of the Complainant) and to facilitate the commission of the offence of sexual exploitation. II. Sentencing Framework A. Basic Principles 1. Objectives and Proportionality [ 23 ] As required by s. 718 of the Criminal Code , I must impose a “just sanction” for the offences that promotes one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 24 ] A “just sanction” is a proportionate sanction. Punishment must be neither excessive nor inadequate.

Under s. 718.1 of the Criminal Code , a sentence must be proportionate both to the gravity of the offence and the degree of responsibility of the offender. [ 25 ] Under s. 718.2, additional principles must be taken into consideration in sentencing: • the assessment of the gravity of the offence and the degree of responsibility of the offender must be informed by “any relevant aggravating or mitigating circumstances relating to the offence or the offender” (s. 718.2(a)), including pre-offence and post-offence circumstances) • parity in sentencing must be respected - “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances” (s. 718.2(b)) • if consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c))

• the principle of restraint must be respected - under s. 718.2(d), “an offender should not be deprived of liberty, if less restrictivesanctions may be appropriate in the circumstances” and under s. 718.2(e), “all available sanctions, other than imprisonment, that arereasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders….” [26] Constitutionally-valid statutory sentencing provisions must be respected. 2.

Priority of Denunciation and Deterrence [27] In this case, because the Complainant was under age 18, s. 718.01 was engaged: 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 giveprimary consideration to the objectives of denunciation and deterrence of such conduct. The Court of Appeal has emphasized the sentencing priority of deterrence and denunciation for sexual offences against children,including luring, in decisions stretching back about 15 years.

See R v Paradee, 2013 ABCA 41 at paras 12-15; R v Innes, 2008 ABCA129 at para 10; R v Al Aazawi, 2022 ABCA 361 at para 64. The Court of Appeal wrote as follows in R v Hajar, 2016 ABCA 222 at para155: [155] Luring of a child is a serious offence because the Internet provides those intent on abusing children with access to them thatwould almost certainly be blocked in their own homes: R v Legare, 2009 SCC 56 at para 26, [2009] 3 SCR 551. Hajar’s use of theInternet required planning and deliberation.

The ease with which this offence can be committed and its prevalence and long reach are allfactors which speak to the need for this Court to strongly discourage and denounce this modern criminality …. This offence too fallswithin the scope of s 718.01 of the Code which requires that, in sentencing, primary consideration be given to the objectives ofdenunciation and deterrence. 3. Individualization [28] Since offences are committed in particular circumstances by particular individuals, the determination of a proportionatesentence is “highly individualized:” R v Nur, 2015 SCC 15, McLachlin CJC at para 43.

An effect of proportionality is theindividualization or case-by-case determination of sentences: R v Godfrey, 2018 ABCA 369 at para 15; R v Ramsay, 2012 ABCA 257 atpara 20; R v Arcand, 2010 ABCA 363 at para 66; R v Suter, 2018 SCC 34, Moldaver J at para 4. Justice must be done in individualcases and judges must retain the flexibility to individualize the sentence to the offender before them: R v Friesen, 2020 SCC 9, WagnerCJC and Rowe J at para 114.

In R v Parranto, 2021 SCC 46, Justices Brown and Martin confirmed at para 36 that a sentence must bedetermined “[f]or this offence, committed by this offender, harming this victim, in this community” (R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688, at para. 80 (emphasis in original)).” At para 12, Justices Brown and Martin stated that [12] As to the relationship of individualization to proportionality and parity, this Court in Lacasse aptly observed: Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committedby the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. [para. 53] Individualization is central to the proportionality assessment.

Whereas the gravity of a particular offence may be relatively constant, eachoffence is “committed in unique circumstances by an offender with a unique profile” (para. 58). This is why proportionality sometimesdemands a sentence that has never been imposed in the past for a similar offence. The question is always whether the sentence reflectsthe gravity of the offence, the offender’s degree of responsibility and the unique circumstances of each case (para. 58). B.

Impact of Friesen [29] In Friesen, the Supreme Court re-set the approach to sentencing for child sexual offences. [30] In my view, Friesen did not change sentencing principles. The decision neither rewrote the sentencing provisions of theCriminal Code nor erased the entirety of the preceding sentencing jurisprudence. It did direct a change in the application of sentencingprinciples, based on an updated and deepened judicial appreciation of the wrongfulness and harm caused by child sexual offences. [31] Friesen applies to the offences at issue.

Luring is referred to in para 44 of Friesen and the making available offence isreferred to in footnote 2 to this paragraph. [32] Friesen provides guidance for the assessment of the wrongfulness and harm caused by child sexual offences. Its operationalmessage is that “[s]entences for these crimes must increase:” at para 5. We read the following at para 76: [76] Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient forcourts to simply state that sexual offences against children are serious.

The sentence imposed must reflect the normative character of theoffender’s actions and the consequential harm to children and their families, caregivers, and communities …. [33] On the issue of the objectives of punishment for child sexual offences, we read in Friesen at paras 101 and 102 that [101] Parliament’s decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s.718.01 of the Criminal Code confirms the need for courts to impose more severe sanctions for sexual offences against children.

In 2005,Parliament added s. 718.01 to the Criminal Code by enacting Bill C-2. In cases that involve the abuse of a person under the age of 18, s.718.01 requires the court to give “primary consideration to the objectives of denunciation and deterrence of such conduct” whenimposing sentence.

[102] The text of s. 718.01 indicates that Parliament intended to focus the attention of sentencing judges on the relative importance of sentencing objectives for cases involving the abuse of children. The words “primary consideration” in s. 718.01 prescribe a relative ordering of sentencing objectives that is absent from the general list of six objectives in s. 718(

a) through (

f) of the Criminal Code (Renaud, at § 8.8-8.9). As Kasirer J.A. reasoned in Rayo , the word “primary” in the English text of s. 718.01 [translation] “evokes an ordering of the objectives . . . that is . . . relevant in the [judge’s exercise of discretion]” (para. 103). This ordering of the sentencing objectives reflects Parliament’s intention for sentences to “better reflect the seriousness of the offence” (House of Commons Debates, vol. 140, No. 7, 1st Sess., 38th Parl., October 13, 2004, at p. 322 (Hon. Paul Harold Macklin)).

As Saunders J.A. recognized in D.R.W. , Parliament thus attempted to “re-set the approach of the criminal justice system to offences against children” by enacting s. 718.01 (para. 32). [ 34 ] Nonetheless, we also also read the following in Friesen at para 104: [104]

Section 718.01 thus qualifies this Court’s previous direction that it is for the sentencing judge to determine which sentencing objective or objectives are to be prioritized. Where Parliament has indicated which sentencing objectives are to receive priority in certain cases, the sentencing judge’s discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority ( Rayo , at paras. 103 and 107-8).

However, while s. 718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality .... III. Sentencing Considerations A. Proportionality [ 35 ] The fundamental principle of sentencing confirmed by s. 718.1 is that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” 1.

Gravity of the Offence [ 36 ] The gravity of the luring and making sexual material available offences turns on • the inherent wrongfulness of the offences • the inherent or potential harm caused by the offences • the actual or proved harm caused by the offences. See Friesen at para 76. The wrongfulness and harm caused by the offences are similar. (

a) Wrongfulness (

i) Maximum Penalty [ 37 ] Wrongfulness is recognized, in part, by the societal confirmation of seriousness expressed through the maximum penalty for an offence. [ 38 ] The seriousness of the two offences is shown by both having, since 2015, maximum penalties of 14 years imprisonment. [ 39 ] The one-year mandatory minimum punishment for the luring offence (s. 172.1(2)(a)) has been found to be unconstitutional in Alberta.

The six-month mandatory minimum punishment for the making available offence (s. 171.1(2)(a)) has not been struck down as unconstitutional in Alberta. (ii) Inherent Wrongfulness [ 40 ] The wrongfulness of the luring offence lies in the intention or ambition to use a child for the offender’s sexual gratification, regardless of whether that ambition was or even could have been fulfilled – although consequences may aggravate wrongfulness. Children are vulnerable. They are not fully formed. They deserve protection by adults.

They deserve, like adults, to be treated with dignity, in the sense of being respected as ends in themselves and not being used as means for the gratification of adults. Adults are obligated to refrain from treating children as means to achieve gratification: R v Harris , 2017 ONSC 940 , Pomerance J at para 11. [ 41 ] The “making available” offence bears the same inherent wrongfulness of the intention to use a child for the offender’s sexual gratification but carries the added wrongfulness of exposing a recipient child to sexually explicit material. (

b) Inherent or Potential Harm [ 42 ] The Supreme Court stated in Friesen at para 79 that [79] In addition to the inherent wrongfulness of physical interference and exploitation, courts have recognized that sexual violence against children inherently has the potential to cause several recognized forms of harm . The likelihood that these forms of potential harm will materialize of course varies depending on the circumstances of each case. However, the potential that these forms of harm will

materialize is always present whenever there is physical interference of a sexual nature with a child and can be present even in sexual offences against children that do not require or involve physical interference.

These forms of potential harm illustrate the seriousness of the offence even absent proof that they have materialized into actual harm (see McDonnell , at paras. 35-36). [emphasis added] [ 43 ] Friesen recognized that the mere exposure of a child to exploitative, manipulative, and sexualized communications – let alone exposure to actual sexual images – threatens a likelihood of injury to the recipient child. See para 82: [82] We would emphasize that courts should reject the belief that there is no serious harm to children in the absence of additional physical violence (Benedet, at p. 299) ....

Even in child luring cases where all interactions occur online, the offender’s conduct can constitute a form of psychological sexual violence that has the potential to cause serious harm .... [ 44 ] Harm may extend beyond the child to the child’s family. At para 63 of Friesen , the Court wrote that “[t]he ripple effects of sexual violence against children can make the child’s parents, caregivers, and family members secondary victims who also suffer profound harm as a result of the offence.” [ 45 ] And harm may extend beyond the child and the child’s family to the community.

The Supreme Court wrote as follows at para 64 of Friesen : [64] Beyond the harm to families and caregivers, there is broader harm to the communities in which children live and to society as a whole. Some of these costs can be quantified , such as the social problems that sexual violence against children causes, the costs of state intervention, and the economic impact of medical costs, lost productivity, and treatment for pain and suffering .... [T]he costs that cannot be quantified are also profound. Children are the future of our country and our communities.

They deserve to have a childhood free of sexual violence ( Hajar , at para. 44 ). When children become victims of sexual violence, “[s]ociety as a whole is diminished and degraded” ( Hajar , at para. 67 ) . [emphasis added] (

c) Actual Harm [ 46 ] Friesen stated at para 85 that [85] When possible, courts must consider the actual harm that a specific victim has experienced as a result of the offence. This consequential harm is a key determinant of the gravity of the offence …. Direct evidence of actual harm is often available.

In particular, victim impact statements, including those presented by parents and caregivers of the child, will usually provide the “best evidence” of the harm that the victim has suffered …. [ 47 ] Actual harm includes harm to the complainant, the “direct victim” of the offence as well as harm to others, including the victim’s family. (On the statutory expansion of the availability of victim impact statements from the “direct victim” to “victims directly affected” by the commission of an offence, see R v Duffus , 2000 CarswellOnt 4891 (SC) , Strong J at para 8; R v Granada , 2013 ABCA 404 at para 10 ; Friesen at paras 62, 63.) (

i) Complainant’s Victim Impact Statements [ 48 ] The Complainant filed a victim impact statement and an update statement. She described the following effects of Mr. Chung’s conduct: • she suffered emotional damage • pain and fear have come into her life • Mr. Chung took away her childhood • he has become a “monster in her life” • she feels fear and concern for her safety. In her updated Victim Impact Statement, the Complainant stated that • Mr.

Chung “took so much away from me” • he “changed how I view the world” • she has developed fear – she no longer feels secure • since the events occurred, she has had a “battle every day” • she is seeking mental health assistance to try to heal her trauma • she has been damaged • she wants to be left alone – “I deserve peace.” [ 49 ] The Complainant has reported suffering serious psychological and emotional injury from Mr. Chung’s conduct.

Her reports of her injury, I observe, are similar to the reports of harm suffered by children exposed to similar types of criminal conduct. [ 50 ] I acknowledge s. 718.2(a)(iii.1) of the Criminal Code : an aggravating factor is “evidence that the offence had a significant

impact on the victim, considering their age and other personal circumstances ….” (ii) Complainant’s Mother’s Victim Impact Statement [ 51 ] The Complainant’s mother spoke to the following impacts of Mr. Chung’s offences: • Mr. Chung has already taken one child from her, who had been only 15. Now he has attempted to sexually interfere with a second child • Mr. Chung has opened wounds from the past • She had trusted Mr. Chung as a teacher, she had trusted her children with him. They were to learn honesty, loyalty, and respect. He took that all away. She wished that Mr.

Chung would leave their family alone. [ 52 ] The Complainant’s mother thereby provided evidence of the injury to herself and the Complainant’s family, exacerbated by Mr. Chung’s second interference with a child of this family. 2. Degree of Responsibility [ 53 ] Proportionality turns not only on the gravity of the offence but on the degree of responsibility of the offender. [ 54 ] At this point, my focus shall be on the degree of responsibility in committing the offences themselves, as opposed to contextual personal circumstances bearing on responsibility.

Contextual personal circumstances will be discussed below. [ 55 ] In this case, the offences were fully volitional. Mr. Chung knew who he was talking to, knew how old she was, used electronic devices to send many messages to her, sent graphic sexual material to her, pretended to be the Complainant’s sister, and directed DZ to assist him, all over a period of months. [ 56 ] There was nothing impulsive, spontaneous, or opportunistic in his conduct, nothing “spur of the moment,” nothing in the nature of a momentary error or slip, nothing in the nature of an isolated error of judgment. [ 57 ] Mr.

Chung’s conduct was “planned and deliberate,” and none the less so because the plan was not elaborate or effective. It is true that his plan was not a “grandiose plan,” in Defence counsel’s words, but that is only to say that his blameworthiness was not greater than as actually disclosed by his conduct. [ 58 ] Mr. Chung claimed to have been using cocaine when he sent the communications. At other points he said he had been drinking alcohol. Particularly given the persistence of his conduct over months, the use of intoxicants supported no mitigation of responsibility.

Substance abuse is not a mitigating factor: R v Ayorech , 2012 ABCA 82 at para 10 . B. Aggravating and Mitigating Circumstances [ 59 ]

Section 718.2(

a) provides that a court that imposes a sentence shall also take into consideration that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.” 1.

Not Aggravating or Mitigating [ 60 ] The elements of the luring offence were outlined by Justice Moldaver in R v Morrison , 2019 SCC 15 at para 43 : (1) an intentional communication by means of telecommunication; (2) with a person who is, or who the accused believes is, under the requisite age; (3) for the purpose of facilitating the commission of a designated offence with respect to that person ….” [footnote omitted] [ 61 ] I accept Defence counsel’s observation that the elements of the offences committed cannot be, by themselves, aggravating or mitigating.

Proof of those elements is proof of the offence, not proof of the gravity of the offence and degree of responsibility respecting the particular offence and the particular offender: R v Clarke , 2021 NLCA 8 at paras 26 , 27. [ 62 ] Nonetheless, how the elements of an offence are committed, the manner of commission of the offences, may be aggravating: Al Aazawi at para 51 . 2. Age [ 63 ]

Section 718.2(a)(ii.1) refers to abuse of a person under age 18 as an aggravating factor: “evidence that the offender, in committing the offence, abused a person under the age of eighteen years.” In this case, age has four aspects. [ 64 ] First, both offences criminalize conduct involving victims under age 18. The mere fact that the Complainant was under age 18 was not aggravating. [ 65 ] Second, the Complainant was not very young.

Friesen states at para 135 that offences against younger victims have increased gravity because of the victims’ deeper vulnerability and these offences demonstrate enhanced moral blameworthiness. See Al Aazawi at para 52 . [ 66 ] But third, the Complainant was ages 15 and 16 when the offences occurred. A degree of aggravation attaches to the

Complainant’s age, though this aggravation is not as great as would have attached to a younger age. [67] The Supreme Court warned in Friesen not to discount the gravity of the offence because the victim was an adolescent. TheCourt cautioned at para 136 that judges must “be particularly careful to impose proportionate sentences in cases where the victim is anadolescent.” The Court was concerned that disproportionately low sentences have been imposed in these cases, even though “adolescentsmay be an age group that is disproportionately victimized by sexual violence.” The Court stated at para 136 that [136] ....

In particular, sexual violence by adult men against adolescent girls is associated with higher rates of physical injury, suicide,substance abuse, and unwanted pregnancy (I. Grant and J. Benedet, “Confronting the Sexual Assault of Teenage Girls: The Mistake ofAge Defence in Canadian Sexual Assault Law” (2019), 97 Can. Bar Rev. 1, at p. 5; “The ‘Statutory Rape’ Myth”, at p. 269; R. v. Hess, (SCC), [1990] 2 S.C.R. 906, at pp. 948-49, per McLachlin J.). I do not discount the gravity of the offence because of the Complainant’s age and find that there was some aggravation in Mr.

Chunghaving targeted her when she was just 15. [68] In the video chat on November 3, after Mr. Chung showed his penis at 12:40 a.m., the Complainant asked why he didn’t dothis when she was 15 or younger (at the time she had turned 16). At about 4:05 a.m. he said that would be illegal. From this exchange Iinfer that Mr. Chung intentionally waited until the Complainant had just reached the age of consent before escalating his attempts to lureher into sexual contact. He was seeking to take advantage of the Complainant’s age with the hope of insulating himself from criminalliability.

Her having reached the age of consent did not disengage the application of the s. 153 offence. [69] Fourth, I find that an aggravating factor was the disparity in ages between Mr. Chung and the Complainant. At the time of theoffences he was over 30. He was an adult, a grown man. She was 15 and 16, a child. 3. The Communications [70] The commission of the luring and the making available offences requires proof that the offender communicated by a means oftelecommunication with a person who is or is believed to be under age 18 for “the purpose of facilitating the commission” of a listedsexual offence.

The use of an internet-based communications medium and “luring” itself, in the sense of communicating for the purposeof facilitating commission of sexual offences, are not aggravating circumstances but elements of the offence. [71] The manner of the luring, though, may be aggravating. (

a) Persistence [72] Luring may occur through a single communication. [73] This case demonstrates persistence. It was agreed that 1,305 “individual messages” were sent, as well as a series of videochats. The contact persisted across five months (162 days, according to the Crown). The persistence is aggravating. This is not a case of asingle or a few communicative intrusions only. [74] Mr. Chung continued the communications despite being repeatedly asked by the Complainant to stop. (

b) Content of the Messages [75] It is true that many of the messages sent by or on behalf of Mr. Chung were not sexually explicit. Many of the messages werein the nature of greetings, asking if the Complainant were awake, and asking if she could talk. However, the non-sexual nature of manyof the messages is not itself mitigating. Non-sexual communication is involved in luring. Luring does not or does not necessarily involvebombardment with sexual messages.

It may involve conversation that may appear ordinary to the recipient but is designed, is part of aplan, to gain the trust of the victim and thereafter to exploit that victim sexually. Justice Fish made the following observations at paras 29and 30 of Legare: [29] I hasten to add that sexually explicit language is not an essential element of the offences created by s. 172.1. Its focus is on theintention of the accused at the time of the communication by computer. Sexually explicit comments may suffice to establish the criminalpurpose of the accused.

But those who use their computers to lure children for sexual purposes often groom them online by first gainingtheir trust through conversations about their home life, their personal interests or other innocuous topics. [30] As Hill J. explained in R. v. Pengelley, [2009] O.J.

No. 1682 (QL) (S.C.J.), at para. 96: … computer communications may serve to sexualize or groom or trick a child toward being receptive to a sexual encounter, to cultivate arelationship of trust, or to undertake a process of relinquishing inhibitions, all with a view to advancing a plan or desire to physical sexualexploitation of a young person. [76] I recognize that the use of non-sexual messaging, though, is not itself aggravating. [77] The communications had four aspects relevant to the sentencing assessment. The communications were summarized at ASFparas 7-34. (

i) Requests for Images [78] From very early in the communications, the Complainant was repeatedly requested to send photos of her exposed breasts. Asregards this request, the messages were again persistent. I would describe the communications as incessant, wheedling, cajoling, andnattering. The communications were sexualized. Various stratagems, such as appeals to trust between sisters were used to attempt to get

the photos. I find the communications sent by or on behalf of Mr. Chung to be aggravating. (ii) Transmission of Sexual Material [ 79 ] In August, Mr. Chung sent photos of his penis (August 15 and August 21): ASF paras 20, 21. In two video chats on November 3, Mr. Chung showed his penis, and in the later video he masturbated. [ 80 ] I find the transmission of images of an erect penis to be seriously aggravating and even more aggravating was the transmission of the images of masturbation. The transmission of these images, in context, made out the s. 171.1(1)(

a) offence. See s. 171.1(5)(a). I’ll address the link between aggravation and the separate offence below. (iii) Efforts at Concealment [ 81 ] Mr. Chung sought to have the Complainant conceal the interactions with him and DZ. [ 82 ] Mr. Chung referred to the communications as “our secret:” Aug 21, 2019, 7:47 am. [ 83 ] The Complainant was asked to put on her cellphone “my name as like a code name so you can talk to me whenever:” Aug 7, 7:21 pm. [ 84 ] Mr.

Chung asked her to send photos to her own e-mail account and to provide him with the password so he could log on and see the photos: October 27, 2019, 6:30 a.m., 9:02-03 a.m., ASF para 27. “[W]e can show each other and no one will know.” [ 85 ] The efforts at concealment were aggravating: R v BSM , 2011 ABCA 105 at para 13 (f). (iv) Level of Sexual Content [ 86 ] It is true that many of the messages sent by or on behalf of Mr. Chung that were sexual in nature – setting aside the images he sent – were not at the highest end of the spectrum of repulsiveness. Neither were the requests that Mr.

Chung made at the highest end of the spectrum of repulsiveness. 4. Family Member [ 87 ]

Section 718.2(a)(ii) identifies the following aggravating factor: “evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family ….” [ 88 ] In this case, Mr. Chung was in a relationship with the Complainant’s sister and eventually he married the Complainant’s sister. My understanding is that at the time of the offences, though, Mr. Chung and DZ were not yet married. Mr. Chung was not related by blood to the Complainant. Neither were they related by formal marriage. Yet Mr. Chung and DZ had an interdependent relationship.

They were not strangers to the Complainant’s family. The Complainant and her family did not fall outside the regard Mr. Chung should have had for family, for people who had a relationship to him through the person he should have been closest to. It is true that Mr. Chung and DZ had been estranged from DZ’s family for four years. Nonetheless, the Complainant was his intimate partner’s sister. This adds a level of aggravation to Mr. Chung’s efforts to obtain sexual gratification from the Complainant. 5.

Abuse of Position of Trust [ 89 ] The luring and making available offences are often committed by strangers to the victim. Mr. Chung and the Complainant knew each other. [ 90 ]

Section 718.2(a)(iii) identifies an aggravating circumstance: “evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.” [ 91 ] Mr. Chung occupied two main positions of trust during the communications with the Complainant. (

a) DZ as the Complainant’s Sister [ 92 ] First, Mr. Chung either pretended to be DZ or had DZ communicate with the Complainant on his behalf. An older sister, as opposed to Mr. Chung himself, would be perceived by the Complainant as being in a position of trust owed to her. DZ was an older sister, gone four years or not. DZ tried to gain emotional leverage over the Complainant. The messages from DZ heavily relied on the relationship between sisters as a foundation for the sexualized requests.

The messages constantly returned to the theme of trust between sisters to encourage the Complainant to provide the requested images. [ 93 ] Mr. Chung admitted that “he purposefully exploited the relationship between DZ and [the Complainant] to gain access to [the Complainant]:” ASF para 41. [ 94 ] It may be that the Complainant knew that Mr. Chung was pretending to be her sister. “She never fell for it,” as Defence counsel said. That does not diminish Mr.

Chung’s blameworthiness for attempting the deception, a deception that was an attempt to leverage the Complainant through a trust relationship. [ 95 ] In my opinion, Mr. Chung was seeking to rely on and exploit a particular vulnerability of the Complainant, her relationship with DZ. I note that s. 718.04 provides that

718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances … the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. (

b) Mr. Chung as the Complainant’s Instructor [ 96 ] Mr. Chung had been the Complainant’s martial arts instructor. It is true that he had not had that role for four years. Nonetheless, he had that role for about six years in the Complainant’s life, from when she was 7: ASF paras 1, 2. These were important, impressionable years. A martial arts instructor typically comes into closer physical proximity to a student than would (e.g.) a school teacher. The relationship between a martial arts instructor and a student is often longer-lasting than with a school teacher, as in this case.

The student and instructor in a traditional martial arts setting are bound by rules of hierarchy and protocol. Students bow when entering a tae kwon do school. They bow to instructors. They do not bow to school teachers. The relationship between a student and a martial arts instructor is more personal and intense than is typical with a school teacher. As the Complainant’s mother said, she, like other parents, trusted her children with Mr. Chung, and they were to learn honesty, loyalty, and respect.

We trust our children to school teachers, but do not count on them to pass on martial virtues. [ 97 ] In my opinion, even after a four-year estrangement, particularly since the Complainant was still only 15 and 16, Mr. Chung would have maintained some authority, some role of trust, as her former instructor. See R v Martial , 2018 ABCA 201 at para 7 . [ 98 ] I consider Mr. Chung to have abused positions of trust and authority, keeping in mind the attenuation of the aggravating effect by the four-year estrangement. 6. Role of DZ [ 99 ] The ASF stated that Mr. Chung “directed all the actions of DZ:” ASF para 40.

I consider Mr. Chung’s use of DZ, whether or not she was a willing participant, as an aggravating factor. At the very least, the use of DZ involved another party in the commission of the offences. [ 100 ] It may be, although I can make no finding on this on the evidence, that Mr. Chung’s wife was another victim of the luring offence. [ 101 ] I do note that DZ provided a statement to the police in which she took responsibility for all the messages and communications. She told the police that she was pretending to be the accused and was drunk when she sent the messages. She stated she didn’t want Mr.

Chung “to be punished for something he didn’t do:” ASF para 39. 7. Other Criminal Acts [ 102 ] The ASF establishes that Mr. Chung had intimate relations with DZ when she was younger than the age of consent. There was no criminal conviction. [ 103 ] These proceedings cannot be used to punish Mr. Chung for another past offence. Para 3 of the ASF states that “[t]he Crown concedes that the accused is not being sentenced for the relationship with DZ.” [ 104 ] However, the conduct involving DZ is relevant to sentencing in two ways. [ 105 ] First, the evidence is relevant to the risk of re-offending.

I will return to this matter below. [ 106 ] Second, the evidence is relevant to the next aggravating factor. 8. The Family Targeted Again [ 107 ] The Complainant’s mother’s victim impact statement precisely identified this aggravating factor. Mr. Chung took one daughter from her. He tried to do so again. She wished he would leave the family alone. [ 108 ] I consider Mr. Chung’s second assault on the Complainant’s family as a very serious aggravating circumstance. He had already hurt the family once. He returned to do it again. He tried to enter into a destructive relationship with another daughter.

That was utterly reprehensible. C. Locating the Gravity and Blameworthiness of the Offence [ 109 ] A modern tendency is to consider any offence as the equivalent of the worst offence of that type. All offending conduct is equally bad. Such thinking is contrary to common sense and the wisdom of the common law. There are moral differences and legally- significant differences between the commission of particular offences by particular offenders. The gravity and blameworthiness of the luring and making available offences are not unitary, as if all such offences have the same degree of seriousness.

As with other offences, the gravity and blameworthiness of luring and making available offences fall along a spectrum or continuum of seriousness. [ 110 ] Some consideration of what Mr. Chung’s offences did not involve has usefulness in two directions. First, as to the gravity of the offence and his degree of blameworthiness. Second, as to the placement of his punishment in terms of parity with other offences. See R v Mootoo , 2022 ONSC 384 , Davies J at para 42. [ 111 ] I confirm that considering what Mr. Chung’s offences did not involve does not entail any suggestion of mitigation.

What I am pointing to is absence of evidence of aggravation rather than evidence of mitigation. The fact that Mr. Chung’s offences could have been

worse does not make Mr. Chung’s offences less serious. The fact that Mr. Chung’s offences could have been worse only helps to locatewhere on the scale of seriousness and on the scale of punishment his offences should fall. [112] For example, Mr. Chung’s offences • did not involve a very young victim or victims • did not involve multiple victims • did not achieve his goals (the Complainant did not do what Mr.

Chung requested) • did not result in the Complainant’s creation and transmission of intimate images that could have had a permanent life on theInternet (see AB v WJ, 2023 ABKB 208 at paras 73, 75) • did not involve attempts to cause the complainant to engage in activity like sex work • did not involve sexual communications high on the repulsiveness scale, save for the images he sent • while persisting over months, did not persist longer, as over years • did not involve any attempt to cause the Complainant to meet with him for sexual activity • did not involve any contact offence or offences. D.

Personal Circumstances [113] Some pre-offence and post-offence factors relating to an offender do not directly bear on the offender’s degree of responsibilityin committing the offence but may nonetheless be relevant to the offender’s blameworthiness or to the objectives appropriate to theoffender’s sentence or both. These factors relate to matters occurring before the offence, at the time of the offence providing context forthe offence, and after the offence. [114] A pre-sentence report may be a source of information about an offender’s personal circumstances. A pre-sentence report wasfiled in this case.

The Defence had concerns with the probative value of some of the claims in the report. I bear in mind the Court ofAppeal’s warning in R v Corbiere, 2017 ABCA 164 at para 16: [16] …. Absent agreement between Crown and defence, any facts in reports at sentencing that either exacerbate or diminish theoffender’s culpability or contradict fact findings by the trier of fact are not properly admissible for those purposes. I have relied on the pre-sentence report only for some factual supplementation of the ASF and I have not relied on the report writer’sopinions. 1.

Pre-Offence Circumstances [115] The report referred to Mr. Chung having what could be characterized as a very demanding father. He pushed Mr. Chung hard. Itappears that Mr. Chung’s father may have been abusive. He did, though, give Mr. Chung a start in his business and gave him a career.Mr. Chung claims to have been a victim of racism while in school. I do not consider Mr. Chung’s early life to have any mitigating effectrespecting his offences.

His background has no bearing on the type of offences before the Court. [116] There was no evidence of other pre-offence circumstances, akin to Gladue factors, that might have mitigated Mr. Chung’sresponsibility for his offences. Neither did Mr. Chung suffer from mental health challenges, as (e.g.) in R v Melrose, 2021 ABQB 73 atparas 223-235. 2. Age at the Time of the Offence [117] Mr. Chung was in his 30s when the offences occurred. No mitigation is gained because he was a youthful offender. 3. Criminal Record [118] Mr.

Chung had no convictions prior to the present offences. [119] A lack of a criminal record is not a mitigating factor, in the sense that the absence of a criminal record does not diminish thegravity of the offence or the degree of responsibility of the offender: R v Tettersell, 2012 ABCA 57 at para 7; R v MGF, 2010 ABCA102 at para 17. Nonetheless, a lack of prior offences is relevant to rehabilitative potential or to restraint in punishment as the offendermay be deterred by a lighter penalty: R v Shrivastava, 2019 ABQB 663, Antonio J, as she then was, at para 71. [120] While age is not on Mr.

Chung’s side, the punishment in this case will be, potentially, his first penitentiary sentence. A firstpenitentiary sentence should be as short as possible: R v Borde, , 172 CCC (3d) 225 (ON CA), Rosenberg JA at paras3, 36. 4. Cooperation with the Authorities [121] According to the ASF, during the investigation of the offences, Mr. Chung sought to lay blame on his wife. He denied all

allegations and told police that “all of this is DZ’s stuff:” ASF para 39. DZ did provide a statement in which she took responsibility for all the messages and communications: ASF para 39. Eventually, though, Mr. Chung took responsibility for the offences. [ 122 ] Mr. Chung admitted “that he directed all of the actions of DZ:” ASF para 40. [ 123 ] There was no mitigation by early cooperation with the authorities. There is some mitigation by Mr. Chung’s eventual acceptance of the ASF. (I’ll address the guilty plea separately.) 5. Compliance with Bail Conditions [ 124 ] Mr.

Chung has complied with his bail conditions for about three years without incident. In my view, this goes to show a lack of aggravating circumstances or the lack of a factor tending to show that rehabilitation would be inappropriate, as opposed to showing a mitigating factor. [ 125 ] Compliance with bail conditions is expected, not mitigating: Al Aazawi at para 70 ; Godfrey at para 16 . [ 126 ] It is true that Mr.

Chung’s bail conditions incorporated s. 161 conditions respecting • contact or communication with a child under age 16 except in the company of the child’s parent or guardian • not instructing any child under age 16 and not seeking or obtaining any employment or volunteer position that involves being in a position of trust or authority towards children under age 16 • not attending any public park or swimming area where persons under age 16 are present or can be reasonably expected to be present, or a daycare centre, school ground, playground, or community centre • not contacting or communicating directly or indirectly with any child under age 16 by electronic means.

These conditions did create an issue once Mr. Chung’s son was born but the release order was suitably amended to permit contact with his son. To this point, given the age of his son, the restrictions on his ability to take his child to the park or to the swimming pool have not been unduly restrictive. Insofar as the conditions proved an impediment to parenting, the conditions could have been amended again. [ 127 ] Mr. Chung’s bail conditions did not impose curfew or other restrictions equivalent to house arrest conditions.

The Manitoba Court of Appeal noted in R v McMillan (BW) , 2016 MBCA 12 at para 28 that bail is not jail. [ 128 ] I accept the point made in Mootoo at para 62 that house arrest is only one form of stringent bail conditions warranting consideration in sentencing. For example, prohibiting a defendant from possessing a cell phone or accessing the Internet is extremely restrictive. Mr. Chung’s bail conditions did not prohibit him from using a cellphone or accessing the Internet. [ 129 ] I understand that there was an issue relating to reporting that arose when Mr. Chung sought to get a job in Lethbridge.

I do not consider the bail terms to have been excessive or difficult to interpret. If there were a problem, it could have been addressed by a judge. [ 130 ] In my opinion, Mr. Chung’s compliance with his bail conditions did not support any mitigation of his sentence. 6. Publicity [ 131 ] Defence counsel stated that an

article respecting Mr. Chung’s charges had been published by CTV News Edmonton in 2020. This is an example of a collateral consequence of sentencing. Justice Moldaver stated in para 46 of Suter that [46] .... Tailoring sentences to the circumstances of the offence and the offender may require the sentencing judge to look at collateral consequences.

Examining collateral consequences enables a sentencing judge to craft a proportionate sentence in a given case by taking into account all the relevant circumstances related to the offence and the offender. [ 132 ] Justice Antonio addressed publicity in Shrivastava at para 63 . Publicity is an ordinary incident of our justice system. It is an expected consequence of charges, not an unexpected, unusual, or peculiar consequence of charges.

I recognize that publicity may mitigate when “fulfills a denunciatory function that has an inordinate impact on the offender:” R v Deck , 2006 ABCA 92 at para 17 ; R v Heatherington , 2005 ABCA 393 at para 5 . In R v Friesen , 2022 ABCA 147 ( Friesen ACA ) the Court of Appeal stated the following at para 38: [38] .... the courts should be cautious in recognizing that publicity and public humiliation contribute to the goals of denunciation and deterrence and that informal social sanctions cannot replace formal criminal punishment.

That is partly because it would be unfair for more successful or prominent offenders to receive a lighter sentence. Nevertheless, Zentner and Shrivastava recognize that exceptional effects of publicity can serve a denunciatory purpose. [ 133 ] This is not an instance of publicity damaging a prominent person. Neither is this an instance of publicity having a devastating effect on a person who has little, taking that little from him. The evidence did not support a finding of “inordinate impact” of publicity on Mr. Chung, and no mitigation of sentence is drawn from this quarter. 7. Guilty Plea [ 134 ] Mr.

Chung pled guilty to the offences. That is a significant mitigating factor. [ 135 ] Friesen confirmed that “[a] guilty plea is a recognized mitigating factor.” Friesen also confirmed, though, that the weight of a guilty plea may be diminished if the Crown’s case is “overwhelming:” at para 164; see R v TF , 2019 SKCA 82 at paras 45-46 . The

timing of a guilty plea is also relevant. Generally, the earlier the guilty plea, the stronger its mitigating weight (e.g. as a “sincere indication of remorse”): see R v Cowell , 2019 ONCA 972 , Trotter JA at para 102; TF at para 44; Martial at paras 21-22 . [ 136 ] The mitigating effect of Mr. Chung’s pleas is attenuated because the pleas came relatively late, close to trial, “on the eve of trial,” according to the Crown. [ 137 ] Moreover, in my opinion, the Crown’s case was overwhelming.

The Complainant recorded the communications. [ 138 ] There was some suggestion by Defence counsel that sorting out liability as between Mr. Chung and DZ would have caused some difficulties for the Crown. On the record of the sentencing proceedings, I do not consider that Mr.

Chung would have been willing to sacrifice his wife in an effort to evade liability. [ 139 ] Regardless, the guilty pleas did spare the Complainant from testifying, spared the Complainant and her family from the trauma of trial, and spared them from having old wounds opened even further. [ 140 ] I note the comments by the Court of Appeal in in R v SLW , 2018 ABCA 235 at para 33 : [33] …. No matter how strong the case, a guilty plea is the waiver of the most fundamental right of any criminal accused: the right to put the Crown to its proof at a fair and public trial.

No matter how strong the case, a guilty plea remains a sign of remorse. And no matter how strong the case, a guilty plea spares victims the trauma of testifying in open court. Experience also teaches that even those prosecutions that seem overwhelming may encounter unforeseen obstacles that make it hard to prove the case beyond a reasonable doubt, such as the death of a key witness. A guilty plea offers certainty in a process where there is always litigation risk. A guilty plea always has some value. 8.

Remorse [ 141 ] Remorse is a mitigating factor: Shrivastava at para 46 ; R v Ambrose , 2000 ABCA 264 . [ 142 ] Mr. Chung made a statement to the Court under s. 726 of the Criminal Code . [ 143 ] Mr. Chung is sorry for what he has done. He apologized to the Complainant and her family. He said that he is filled with regret and remorse. He apologized to DZ. [ 144 ] He provided some context for the offences. In 2019 he had surgery for spinal stenosis. The surgery corrected some symptoms. Further work needed to be done. He was in pain and depressed. He began to abuse drugs.

The offences occurred while he was using drugs. He did not offer this as an excuse. He never should have done what he did. [ 145 ] He said he was glad that charges were brought against him. [ 146 ] He said he has changed his life. He has moved away from bad influences. He has quit doing drugs. He has found God and returned to the Church. He married DZ and now has a son. [ 147 ] I accept that Mr. Chung’s remorse is sincere. I accept that he has stopped drinking and using drugs and that he has returned to the Church. That is mitigating. 9.

Risk of Reoffending [ 148 ] No formal risk assessment was done respecting Mr. Chung. [ 149 ] The pre-sentence report referred to a few visits with a psychologist in Alberta, but I cannot draw an inference about Mr. Chung’s risk of reoffending from those contacts. [ 150 ] Defence counsel advised that Mr. Chung had seen psychologist in his home area ten times between Dec 2022 and May 2023. No information was provided directly by the psychologist.

I was not advised of the nature of the sessions with the psychologist or about whether any progress was made respecting any subjects of treatment. [ 151 ] I do know that Mr. Chung had sexual contact with DZ when she was 15. I know as well that he pled guilty to luring offences involving the Complainant when she turned 15. There was, as Defence counsel noted, no evidence of any contact with any other under- age girls.

There was, though, the evidence that we have. [ 152 ] The evidence is of an improper and unnatural attraction to adolescent girls that has manifested twice. [ 153 ] In my opinion, on the record, I cannot find that Mr. Chung has a low likelihood of reoffending. 10. References and Community Support [ 154 ] Mr. Chung offered some character references from some third parties and from DZ. (

a) Third Party Letters [ 155 ] I do not consider the letters from third parties to have any mitigating effect. The letters from Dr. Teoh, Wayne Duval, and Lan Le Benson speak mostly about Mr. Chung as a Tae Kwon Do instructor, and with the good experiences they and their family members had with Mr. Chung as a Tae Kwon Do instructor.

[ 156 ] Mr. Chung’s talents as a Tae Kwon Do instructor are not at issue. [ 157 ] What third parties believed about his character is not helpful. [ 158 ] The difficulty with sexual offenders is that they often appear to be entirely upstanding and productive citizens. They do not permit others to see what they do in private.

What others are permitted to see and what actually occurs are different matters. [ 159 ] In R v Hepburn , 2013 ABQB 520 at paras 36-37 , Justice Jeffrey confirmed that evidence of good character has low probative value in sexual offence cases: [36] In respect of the extensive letters attesting to Hepburn’s otherwise stellar character and conduct, I am mindful of these further comments of the Alberta Court of Appeal in BSM , at para 16: Turning to mitigating circumstances, the Reasons mention good character. Likely it existed here …. But previous good character is common in child sexual assault cases.

So previous good character would not take one much below the starting point, nor significantly reduce what would otherwise be a higher sentence. [37] These crimes are committed by people from all walks of life, out of the public eye, clandestinely and secretly, often to the surprise of people who thought they knew the perpetrator best …. The difficulty is that self-presentation in public and conduct in private may not match: see Shrivastava at paras 77-78 ; R v Jonat , 2019 ONSC 1633 , Dunphy J at para 63. (

b) DZ and Other Family Support [ 160 ] DZ strongly supports Mr. Chung. She wrote that he is “nothing but the best partner I could ever ask for”, “we are a team and will always be a team,” “I couldn’t have asked for a better father to our child.” [ 161 ] Mr. Chung’s wife is standing by him, despite everything. That is significant support for Mr. Chung’s rehabilitation. [ 162 ] Further, Mr. Chung has a cousin in BC, Randy. Mr. Chung and DZ had stayed with this cousin and his family for a year. Mr. Chung and DZ live in the same community as Randy and his family.

I do not have details about the cousin and his capacity to assist Mr. Chung, but Mr. Chung does have at least Randy’s support to supplement DZ’s support. 11. Impact on Family [ 163 ] Mr. Chung owns and runs a small business in BC. This provides the sole income for the family. Mr. Chung has the primary role in the business. DZ looks after their young son. The business does not generate much revenue. But if Mr. Chung were imprisoned the family would have no income. [ 164 ] Adverse impact on families, though, is an inevitable consequence of imprisonment. This is not a mitigating factor.

The Court of Appeal stated in Godfrey at para 15 that “[a]ny custodial sentence will generate some inevitable collateral consequences for the accused and his family, but it is an error in principle to regard the ordinary consequences of a custodial sentence as exceptional: R. v Zenari , 2012 ABCA 279 at para. 8 , 536 AR 224.” The Court stated at para 16 that “[d]isruption of employment and family life is a normal consequence of imprisonment, and cannot ordinarily be considered exceptional.” [ 165 ] Again, what is under consideration is a collateral consequence of sentencing.

I acknowledge that the Court of Appeal has warned against an improperly categorical approach to collateral consequences. The Court of Appeal wrote as follows in Friesen ACA at para 43 : [43] Further, Suter is not as categorical as suggested by the Crown. The Supreme Court of Canada does indeed say that a collateral consequence flowing naturally or directly from the offence has little mitigating force (para 49).

But it also approves the following statement of the mitigating impact of collateral consequences at para 47: “ As a result of the commission of an offence , the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation” (emphasis added).

The use of the phrase “as a result of” suggests that normal effects of an offence can be mitigating. [ 166 ] In this case, the adverse impact on family that imprisonment would bring is not a significant mitigating factor in sentencing. It cannot displace the requirement for a proportionate sentence. 12. Health Concerns [ 167 ] Mr. Chung indicated in his s. 726 statement, and this was confirmed in his counsel’s submissions and in the pre-sentence report, that he suffers from spinal stenosis. He stated that he requires further surgery. He is on waiting lists for both experimental surgery and conventional surgery.

He is concerned that if he is incarcerated he will drop off the wait lists. [ 168 ] Under s. 724(1) of the Criminal Code , 724

(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender. However, no medical evidence was provided to support Mr. Chung’s claims, particularly his implicit claims about his medical treatment if he were imprisoned.

[ 169 ] In R v Morrisey , 2000 SCC 39 at para 41 , Justice Gonthier urged consideration of actual impact of imprisonment on an offender:

(3) The Actual Effect of the Punishment on the Offender 41 This factor requires the court to consider how the offender will be personally affected by the actual punishment imposed. It will be relevant to consider the nature and conditions of the sentence, as well as the duration of the sentence .... [ 170 ] If an offender suffers from a serious physical illness, the imprisonment that might otherwise be a proportional sentence may have a disproportionate adverse impact. The unusual hardship associated with imprisonment would be a mitigating factor in determining the proportional sentence.

See CC Ruby, GJ Chan, and NR Hasan, Sentencing , 8th ed, §5.170-176; §5.239-243; R v Nuttall , 2001 ABCA 277 ; R v Scott , 2014 SKQB 225 , Gunn J at para 46; R v ME , 2012 ONSC 1078 , Hill J at para 58. [ 171 ] However, the fact of illness or significant physical challenge does not, by itself, necessitate punishment deviating from the punishment otherwise proportional to the gravity of the offence and the degree of blameworthiness of the offender. See R v Myette , 2013 ABCA 371 at paras 35-37 . [ 172 ] The burden lies on the offender to establish mitigating circumstances.

In particular, the evidence must support the conclusion that the physical challenges of the offender cannot be properly or adequately addressed by the correctional authorities. See R v Drabinsky , 2011 ONCA 582 (leave to appeal ref’d March 29, 2012) at para 170.

See also R v HS , 2014 ONCA 323 at para 38 ; R v Deren , 2021 ABPC 84 , Anderson PCJ at para 70; R v Huynh , 2017 ABPC 130 ; R v GRB , 2013 ABCA 93 at para 18 ; ME at para 59; R v Swope , 2015 BCCA 167 ; R v Potts , 2011 BCCA 9 at paras 85 (“There are cases in which an otherwise fit sentence may be reduced on compassionate grounds, but such reduction must be based on current, clear and convincing evidence”) and 86; Scott at para 46 . [ 173 ] There was no evidence that the correctional authorities could not accommodate Mr. Chung’s physical condition.

I do not have evidence that permits me to find that his condition meets a level of disability or severity that would warrant any mitigation of his sentence. E. Parity [ 174 ]

Section 718.2(

b) provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” 1. Parity and Proportionality [ 175 ] At para 33 of Friesen , Chief Justice Wagner and Justice Rowe wrote that [33] In practice, parity gives meaning to proportionality. A proportionate sentence for a given offender and offence cannot be deduced from first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases.

Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody the collective experience and wisdom of the judiciary. They are the practical expression of both parity and proportionality. See also Parranto at para 11 . 2.

General Guidance [ 176 ] Some general guidance about the appropriate level or range of sentence can be extracted from the cases. [ 177 ] In Friesen , the Court wrote at para 114 that “mid-single digit penitentiary terms for sexual offences against children are normal and ... upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.” [ 178 ] In Hajar , a 2016 decision, the Court of Appeal wrote at para 167 that [167] We caution that this should not be taken to be a sentence appropriate to future cases, where one year is now the minimum sentence specified by Parliament, especially given the aggravating feature here.

This Court is well aware of the dangers posed by Internet luring in Canada and the pervasiveness of this problem.

Therefore, sterner sentences in the range of two to four years might well be justified in order to deter and denounce adult sexual offenders who view children as easy prey.[64] Footnote 64 was as follows: “See comments by Moldaver JA (as he then was) noted in [ R v Woodward , 2011 ONCA 610 ] at para 58.” The Court of Appeal thereby approved of Justice Moldaver’s Woodward decision. [ 179 ] In R v Lemay , 2020 ABCA 365 the Court of Appeal reviewed a sentence for a luring offence (coupled with sexual interference).

The Court of Appeal’s comments on the gravity of the offence are in line with Hajar and Friesen : [44] Parliament has continued to refine the range of sentence that will properly reflect the gravity of luring. Its decision to increase the available range “should shift the range of proportionate sentences as a response to the recognition of the gravity of these offences. Sentences should increase as a result of this legislative initiative”: Friesen at para 109. They should also increase “when society’s understanding of the severity of the harm arising from that offence increases”: Friesen at para 108.

The sentencing judge’s approach is wanting in both respects. [45] The Supreme Court of Canada in Friesen and this Court in Hajar and the many cases cited in those decisions explain that increasing sentences for sexual offences against children evolved in recognition of society’s contemporary understanding of the nature

and gravity of sexual violence against children. The Court of Appeal, though, did not discuss the Woodward range and landed on a sentence of 18 months consecutive for the luring offence: at para 60. [ 180 ] In Woodward , Justice Moldaver wrote at para 58 that [58] Even if Jarvis did purport to set a range of 12 to 24 months for the offence of luring, that range needs to be revised given the 2007 amendment in which Parliament doubled the maximum punishment from five years to ten years.

Moreover, if it is shown through the introduction of properly tendered evidence that the offence of luring has become a pervasive social problem, I believe that much stiffer sentences, in the range of three to five years, might well be warranted to deter, denounce and separate from society adult predators who would commit this insidious crime . [emphasis added] [ 181 ] Woodward was favourably cited in Friesen . [ 182 ] In R v Moolla , 2021 ONSC 3702 (referred to in Mootoo in the Defendant’s materials), Justice Code wrote at para 21 that [21] I agree with Ms.

Rogozinski’s analysis, on behalf of the Crown, concerning the effect of Woodward and Friesen on the appropriate range of sentence for internet child sex luring. In Woodward , the Court of Appeal held that a range of three to five years would be appropriate if the offence of luring became “a pervasive social problem” and in light of Parliament having increased the maximum sentence from five years to 10 years in the 2007 amendments. In 2015, four years after Woodward , Parliament again increased the maximum sentence, from 10 years to 14 years.

In 2020, the Supreme Court decided Friesen and held that “child-luring incidents more than doubled between 2010 and 2017”, that repeated increases in the maximum sentence mean that “courts need to give effect to Parliament’s clear and repeated signals to increase sentences”, and that the new range suggested in Woodward was to be “commended.” In all these circumstances, I am satisfied that three to five years is now the appropriate range .... [emphasis added] See also R v Ly , 2019 ONCJ 120 at para 66 , adopting Woodward range. [ 183 ] Further, in this case, the Crown entered a Statistics Canada Report as an exhibit, D.

Ibrahim, “Online child sexual exploitation and abuse in Canada: A statistical profile of police-reported incidents and court charges, 2014 to 2020” (Juristat, May 12, 2022). The second bullet of the report “Highlights” (p. 3) stated the following: The overall rate of police-reported incidents of online child sexual exploitation and abuse has been on an upward trend, increasing from 50 incidents per 100,000 population in 2014, when cybercrime data were first collected nationally, to 131 per 100,000 in 2020.

The report provided evidence that online luring has become a “pervasive social problem” as contemplated by Justice Moldaver in Woodward as a condition supporting “much stiffer sentences.” [ 184 ] In R v Misay , 2021 ABQB 485 at para 191 , in light of Woodward , Hajar , and Friesen , I looked to the significant gravity of the offence and Mr.

Misay’s blameworthiness or responsibility for a luring offence as attracting, without considering mitigation, a sentence of 3 years imprisonment (admittedly, the sentence was significantly discounted by mitigating factors including the probability of deportation). [ 185 ] In my opinion, the Woodward range of 3 to 5 years for luring offences is appropriate. I note, with an eye to Parranto at paras 46-47 , that this range does not make any presuppositions or assumptions about criminal record or guilty pleas or other mitigating factors. Those all remain at large. [ 186 ] The Defence relied on Clarke .

In Clarke , the Court of Appeal of Newfoundland and Labrador wrote as follows at para 28 (see also para 37): [28] The established range of sentence for internet luring is one to two years, based on the comments of Karakatsanis J. (in a concurring judgment) at paragraph 177 of R. v. Morrison , 2019 SCC 15 : “In most cases proceeding by indictment, the appropriate range will be from 12 to 24 months”.

The trial judge determined that the appropriate sentences for the appellant, before adjusting for totality, would be two years each for the internet luring of T.W., L.G., and B.I. and three years for the internet luring of D.R. It was an error, justifying appellate intervention, for the judge to rely on this aggravating factor to justify initial sentences at the top, and above, the established range of sentence. With respect, I decline to follow Clarke , despite its significant persuasive if not binding authority as a decision of a sibling Province’s appellate court.

Justice Karakatsanis was speaking as a single judge on the sentencing point. Friesen was decided after Morrison . Friesen referred to Woodward favourably, not to the sentencing suggestion in Morrison . Clarke did not discuss the implications of Friesen for the appropriate sentencing range. 3. Comparator Cases [ 187 ] I have considered the comparator sentencing cases offered by counsel.

As is often the case, none involves circumstances similar to the present circumstances and none is particularly useful in setting the sentence for the present case. [ 188 ] I do observe that there is a clustering of luring sentences at around the 15-18 month imprisonment level for luring offences.

However, save for the Mootoo decision included by Defence counsel, it is not clear that these cases grapple with the Friesen- Woodward-Hajar - Moolla guidance respecting sentencing. [ 189 ] Defence cases: R v Bains , 2021 ABPC 20 , Semenuk J, appeal dismissed 2022 ABCA 227 – 5 year global sentence, 18 months concurrent for two luring

counts – no guilty plea, no criminal record, one complainant age 14, offender age 19 – sexual contact occurred as well as transmission of sexual materials and communications offering money in exchange for sexual contact – serious actual harm to complainant – some risk to reoffend – lack of insight but good rehabilitative prospects Clarke – sentences for luring 4 complainants - 12 months for two counts, 14 months for one count, 18 months for one count – duration of offence for one complainant, 12 days, a second complainant, 2 days, a third complainant 10 days, the fourth complainant 8 months – complainant ages 12, 15, 14, and 12 – offender age 66 at time of sentencing – offender sent one sexually explicit image - guilty plea – some remorse and regret R v Gould , 2022 ONCJ 187 , Latimer J – 18 months less credit for pre-trial custody - 3 complainants covered by count, one age 12, two age 13 – offender age 24 at time of sentencing – offences took place over months – severe harm to complainants - complainants convinced to send intimate images – guilty plea - real insight into harm caused – genuine remorse - one prior offence - on probation for that offence at time of sentenced offences Harris – 18 months plus 3 years probation – no guilty plea – “victim” was an undercover officer posing as a 15-year-old – offender age 57 – communications over lengthy period, persistent – turned communications to sexually explicit topics – took steps to meet with “victim” – no acceptance of responsibility – first offence R v Jissink , 2021 ABQB 102 , Michalyshyn J – 12 months plus 2 years probation – guilty plea – complainant age 16, offender age 43 – offender was a high school teacher but complainant was not in any of his classes – two messages to complainant, one sexually explicit – offender had sent messages to 3 additional 16-year old students, communications with one were sexually explicit – doubtful insight into offence and impact of offence but improving – community support – no prior offences Lemay – 18 months for luring offence consecutive to 4 years for sexual interference – offender had been friend of complainant’s father – was in a position of trust – 20 year age difference between complainant and offender – duration and repetition of sexual conduct – possession and exchange of intimate images – guilty plea – Gladue factors – community support – no prior criminal record – remorse – assessment indicating motivation to change Misay – 15 months plus 2 years probation – “victim” was undercover officer – communications over 7 days – “victim” was 15, offender was 38 - attempted to meet with “victim” - guilty plea – cooperation upon arrest - deep remorse – strong community support - strong rehabilitative potential – faced deportation – faced other charges – above-average risk of reoffending Mootoo – global sentence 3 ½ years, 3 years for luring count - no guilty plea – offender and complainant met online – offender sent “very graphic” sexually explicit materials and sexually explicit communications – offender stated he wanted complainant to engage in prostitution – communications over several days - complainant was 15 – complainant suffered actual harm – offender had prior criminal record – family support – offender likely to be deported – offender had been under very restrictive bail conditions – Covid factors. [ 190 ] The Crown cases were useful mostly to show applicable principles.

The Crown referred to Jissink and Melrose . I’ll mention just two Crown comparator cases.

Ly – 5 years for luring – 16 known victims ages 8 – 15, in Canada, US, UK – victims provided intimate images of themselves – offender sent sexually explicit materials to victims – threatened to expose images – offender had taught some of victims when he was working at a private school – offender age 33 – guilty plea - expressed remorse - no criminal record – family support Martial – 8 years for sexual interference, 2 years for luring – complainant was 13 when offences began and 15 when ended, offender was 47 when began luring, 49 when last criminal act occurred – sexual intercourse occurred – offender was in position of trust – guilty plea on eve of trial.

IV. Fit Sentence for Mr. Chung [ 191 ] Mr. Chung pled guilty to two offences, the luring offence and the making available offence. [ 192 ] I will address the luring offence first, then the making available offence. A.

Luring Offence [ 193 ] In coming to a fit sentence for the luring offence I have considered the following. [ 194 ] The gravity of the offence was high: • the offence was inherently wrongful as a sexualized interaction with a child – the wrongfulness was reflected in the 14 year maximum penalty for the offence • the offence carried with it a reasonable probability of serious psychological harm to the Complainant, even without any associated contact offence and even if the sexual purposes of the offender were not fulfilled • the offence carried with a reasonable probability of harm to the Complainant’s family and to the broader community – the offence degraded society • the offence caused severe actual harm to the Complainant • the offence caused severe actual harm to the Complainant’s family.

[195] Mr. Chung’s degree of responsibility in committing the offence was high. While the offence was not sophisticated it wasplanned and deliberate. [196] There were numerous aggravating circumstances: • the age of the Complainant was a moderately aggravating circumstance • the disparity in ages between the Complainant and accused was a more serious

[…]