R. v. W. Date:, 2014 BCPC 197

Citation: R. v. W. Date: 20140825 2014 BCPC 0197 File No: 60136-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M.D.W. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MERRICK Counsel for the Crown: J.B.M. Counsel for the Defendant: M. M. Place of Hearing: North Vancouver , B.C. Date of Hearing: August 18,19, 2014

Date of Judgment: August 25, 2014 [ 1 ] THE COURT: M.D.W. has pled guilty to extortion. On February 3rd, 2012, Mr. W., using a false name, sent a Facebook message to J.R. demanding five nude photos of herself within 24 hours and threatening that if she did not comply, he would send an intimate video of J.R. and her boyfriend to J.R.'s 746 Facebook friends. J.R. then received a second message extending the time limit by a few hours for which she could comply with the demand. [ 2 ] On February 4th, 2012, Mr. W. sent the video to a handful of J.R.'s Facebook friends by way of Facebook. In addition, Mr.

W. uploaded or posted the video on a pornography website. [ 3 ] The video was created in 2007 and was stored on J.R.'s then boyfriend's phone which was stolen approximately one month after the video was created. J.R. was 16 at the time the video was created. I am told, and it is agreed, that the picture quality in the video was high. J.R. is noticeably recognizable in the video. [ 4 ] Mr. W. and J.R. attended the same high school, had many classes together, and had the same group of friends. On August 24th, 2013, Mr. W. was arrested, admitted the offence, and wrote an apology letter.

General Sentencing Principles [ 5 ] Sentencing is an individualized process in which the court must take into account not only the circumstances of the offence, but also the specific circumstances of the offender. Although the court must consider all the principles of sentencing set out in the Criminal Code , certain principles will receive more emphasis than others, depending on the nature of the offence committed. [ 6 ] The purpose of sentencing is to protect the public through sanctions a court imposes upon a person found guilty of committing an offence.

Each codified objective of sentencing is designed to further the protection of the community. [ 7 ]

Section 718 of the Criminal Code states that, The fundamental purpose of sentencing is to contribute . . . to respect for the law and the maintenance of a just, peaceful and safe Society . . . [ 8 ] This is to be achieved by imposing sentences which have inter alia the objectives of separating offenders from society where necessary, denouncing unlawful conduct, general deterrence, rehabilitation, and promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community. [ 9 ]

Section 718.2 (

b) of the Criminal Code states that: . . . a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances . . . [ 10 ] This provision requires an analysis of what is commonly referred to as the range of sentence for a specific offence. [ 11 ]

Section 718.1 of the Criminal Code states that any sentence imposed must be proportionate to the gravity of the offence and the degree of the responsibility of the offender. This is the fundamental principle of sentencing in Canada, see R. v. Ipeelee , 2012 SCC 13 , CanLII. [ 12 ] In Ipeelee , the Supreme Court of Canada indicated that the sentencing principle of proportionality is intimately tied to the fundamental purpose of sentencing; the maintenance of a just, peace, and safe society through the imposition of just sanctions.

The proportionality principle ensures the imposition of just sanctions by, firstly, ensuring that the sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. [ 13 ] Second, it ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves as the limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [ 14 ]

Section 718.2 (

a) of the Criminal Code indicates that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 15 ]

Section 718.2(

d) states that: . . . an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances . . . [ 16 ]

Section 718.2 (

e) of the Criminal Code states: . . . all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders . . . [ 17 ] These sentencing principles are contained in the decision of Mr. Justice Romilly in R. v. Ralph , 2014 BCSC 467 , CanLII, at paragraphs 23 to 30. [ 18 ] Crown counsel seeks a period of incarceration of nine months to be followed by a period of probation for two years, a firearms prohibition, and a DNA order. Defence counsel submits that I should suspend the passing of sentence and place Mr. W. on probation for

two years. A conditional sentence order is not available as Mr. W. concedes that he inflicted severe psychological damage upon J.R. Mitigating Factors: 1. Mr. W. has pled guilty. 2. Mr. W. takes responsibility for the offence. He has admitted his behavior to his family, close friends, and his employer, all ofwhom remain supportive of him. 3. Mr. W. is remorseful. 4. The pre-sentence report and the two psychiatric reports are positive. 5. Mr. W. has been assessed as a low risk to reoffend and has taken steps to rehabilitate himself. 6. Mr. W. was 20 years old when he committed the offence. 7. Mr.

W. has no criminal record. 8. Mr. W. has numerous positive reference letters. Aggravating Factors: 1. Mr. W. carried out his threat to forward the video. 2. Mr. W. posted the video on a pornography website. 3. This was a planned and deliberate crime done with the intention to humiliate and embarrass J.R. [19] In fact, Mr. W., what strikes me about this crime is just how mean it is. You had to know that there was only going to be onepossible outcome when you clicked send, that is, that you were going to hurt J.R. and that you were going to hurt her very badly.

She hassuffered immensely from this and you knew when you carried through on the threat that the only result here was going to be harm. [20] This was a crime that is striking because there was, as I have said, no other outcome than hurt, and the court is in the position ofnot being able to impose a sentence that can correct the situation because this is just about hurt and it was mean, terribly mean. 4. The video was sent to friends who would recognize J.R., thereby maximizing the embarrassment and humiliation. 5. Mr.

W. included J.R.'s full name with the video exposing J.R. to further harassment, bullying, and extortion. 6. Mr. W. used a false name in committing the offence. 7. Mr. W.'s motivation included his own sexual gratification. 8. Mr. W. made the video available for download and distribution. 9. There is the potential that the video will be circulated in the future and be available forever. 10. This offence had a devastating impact on J.R. [21] J.R. quit her job, stopped attending her university classes. J.R. started seeing a doctor and a therapist and was prescribedantidepressants and sleeping pills.

J.R. lost her ability to trust people and her relationship ended. This offence also had a profoundimpact on her parents. Is a Suspended Sentence Appropriate [22] There are many mitigating, but not exceptional factors in this case. Mr. W. is unlikely to reoffend. It is a general principle ofsentencing that before imposing a custodial sentence on a first offender, the court should carefully explore the other available sentencingoptions. A custodial sentence should only be imposed in cases where the circumstances are such or the gravity of the offence is such thatno other sentence is appropriate, see R. v.

Nakamura, 2012 BCSC 327 , [2012] B.C.J. No. 437, at paragraph 77. [23] Mr. W., at the time he committed the offence, is described as "sexually frustrated, depressed young man, who was isolatinghimself and living a very unhealthy lifestyle," see Browning's psychological assessment, page 4. Mr.

W. has made significant efforts atrehabilitation and has created a healthy life for himself that includes a committed relationship, a satisfying career, friendships, family, andphysical health, see again Browning's psychological report, page 4. [24] That said, we live in a society with technology that allows us to capture the most private and intimate parts of our lives and thatcreates a vulnerability. Mr. W. took advantage of J.R.'s vulnerability. His moral culpability is high. The effects of his crime had adevastating impact on J.R. He inflicted severe psychological damage. This is a serious offence.

In cases such as this, it is my judgmentthat the primary sentencing considerations are denunciation and deterrence of others. This is so despite Mr. W.'s young age, see R. v.Nakamura at paragraph 75. [25] It is my judgment that despite the many mitigating factors, this is far too serious an offence and I decline to suspend the passingof sentence. To do so would be to give insufficient weight to the primary sentencing objective of deterrence and denunciation of others.

Is a Nine-month Jail Sentence Appropriate [ 26 ] In R. v. Vonhiltgen , 2007 BCSC 601 , the court noted that it had received various case authorities that demonstrated a range of sentence for extortion of between three months and five years. The decisions of R. v. D.K.P. , [1991] B.C.J. No. 2998 , a decision of our Court of Appeal, and R. v. Walls , [2012] O.J. No. 6403 , Ontario Court of Justice, in my judgment, support a range of sentence for this offence between 12 to 18 months. [ 27 ] Crown counsel submits that considering the mitigating factors in this case, a fit and just sentence is nine months in jail.

I agree with Crown counsel that the mitigating factors in this case permit a sentence well below the 12 to 18-month range. While I have determined that a custodial sentence is necessary to emphasize the seriousness of the offence, I have cautioned myself with respect to placing excessive emphasis upon the elements of general deterrence and denunciation of others. [ 28 ] A first sentence of imprisonment, especially for a first offender, should be as short as possible and tailored to the individual circumstances of the offender rather than solely for the purpose of general deterrence, see R. v.

J.H. , [1999] O.J., that is, Ontario Judgments, No. 1308 (Ont. C.A.), paragraph 22. Counsel have commented how this case sets a precedent. [ 29 ] With respect, I disagree to some extent with that. As the sentencing principle that I have just referred to notes, a sentence of first imprisonment, especially for a first offender, should be as short as possible and tailored to the individual circumstances of the offender. Accordingly, it is not the actual length of sentence that is to be a precedent. [ 30 ] What is to be taken from this decision is this.

For those who wish to prey on the vulnerability of others to take advantage of their vulnerability even with significant mitigating factors that are present in this case, you are going to jail. It is my judgment that a nine-month sentence places excessive emphasis upon the elements of general deterrence and denunciation of others. [ 31 ] Weighing the aggravating and mitigating factors, and tempering the sentence because Mr. W. is a young man and this is a first term of imprisonment, and considering that he is gainfully employed, it is my judgment that a just and appropriate punishment which is proportional to Mr.

W.'s culpability is a term of imprisonment of 60 days. [ 32 ] Would you please stand, sir. [ 33 ] You are hereby sentenced to a term of imprisonment at a correctional centre for a period of 60 days. [ 34 ] Pursuant to s. 743.21 of the Criminal Code , you are prohibited from communicating with J.R. or W.C. - and Mr. M., you will have to advise Madam Clerk exactly who W.C. is because W.C. has never been referred to, as I recall, by his full name - during the period of the custodial sentence. [ 35 ] Counsel? [ 36 ] MR.

M.: Your Honour, just having heard the judgment, and receiving instructions, I am going to ask the court to consider that the 60-day sentence be served intermittently or be allowed to be served intermittently? [ 37 ] THE COURT: Yes, any submission from Crown counsel? [DISCUSSION RE INTERMITTENT SERVICE OF SENTENCE] [ 38 ] THE COURT: Well, the Criminal Code requires me to take into account the fact that you are gainfully employed, you are a low risk to reoffend, and what is often misunderstood about serving sentences intermittently is that it is in those circumstances Corrections often do not allow any good time and, effectively, that means you will be in custody for every weekend likely until mid- February.

I am in those circumstances prepared to grant the order. There will be an intermittent sentence. [ 39 ] So you are sentenced to 60 days of imprisonment.

You must serve this term intermittently from Fridays to Sundays on consecutive weekends starting Friday, August 29th to Sunday, August 31st, and continuing each weekend thereafter. [ 40 ] At all times when you are not in custody on this order and until your jail sentence has been served in full, you are on probation with the following conditions, and Madam Clerk, please ensure the record of proceedings endorses that I have made the no-contact order pursuant to s. 743.21 while Mr.

W. is in custody at the correctional centre. [ 41 ] THE CLERK: Yes, Your Honour. [ 42 ] THE COURT: You shall keep the peace and be of good behaviour. [ 43 ] You shall appear before the court when required to do so by the court. [ 44 ] You shall notify the court in advance of any change of name or address and promptly notify the court of any change of employment or occupation. [ 45 ] On each occasion when a part of the intermittent jail sentence is to be served, you shall arrive at the place where the sentence is to be served on time and in an entirely sober condition and not under the influence of any controlled substance within the meaning of the Controlled Drugs and Substances Act , and what that means, sir, is you show up on time.

If you are five minutes late, you are considered to have escaped lawful custody. That is in itself a criminal offence and that usually attracts further jail time. [ 46 ] While you are serving the intermittent sentence, precedent 107, you are not to have contact directly -- pardon me, precedent 207, Madam Clerk, you shall have no contact or communication directly or indirectly with J.R. or any person you know to be a member of her family.

[ 47 ] You are also to have no contact or communication directly or indirectly with W.C. or any person you know to be a member of his family. [ 48 ] Precedent 212, you are not to attend any known place of residence, place of employment, or educational facility of J.R. or any member of her family. [ 49 ] You are not to attend any known place of residence, place of employment, or educational facility of W.C. or any member of his family. [ 50 ] As a term of the intermittent sentence order, this being a primary designated offence, pursuant to s. 487.051(1), I make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances by any peace officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the national DNA databank from M.D.W. [ 51 ] Mr.

M., is it the Crown position that I should require Mr.

W. to attend at an RCMP detachment to provide the DNA sample or can we assume that the authorities will take the DNA sample when he is in custody? [DISCUSSION RE OUT-OF-CUSTODY DNA SAMPLE PROVISION] [ 52 ] THE COURT: Then if a DNA sample is not taken from you today, sir, by the sheriffs, you shall attend at the RCMP detachment here in North Vancouver, the address will be provided, and when is that? [ 53 ] Is that Wednesdays, Madam Clerk? [ 54 ] THE CLERK: Tuesdays or Wednesdays, Your Honour, between 1:30 and 3:00 p.m. [ 55 ] THE COURT: Okay, do you have a preference as to whether you go tomorrow or Wednesday? [ 56 ] THE ACCUSED: It does not matter to me. [ 57 ] THE COURT: Okay, then you will go tomorrow, August the 26th at 1:30 p.m. - this is precedent 350, Madam Clerk - in order for a sample or samples of your bodily substances to be taken for purposes of registration in the national DNA databank in accordance with the provisions of

Part XV of the Criminal Code . [ 58 ] The victim fine surcharge applies at the time of this offence. It was $100. The $100 should be paid by October 1st, 2014. [ 59 ] Pursuant to s. 109 of the Criminal Code , you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosive substance for a period of 10 years. [ 60 ] The jail sentence is to be followed by a period of probation for two years. There will be the mandatory conditions pursuant to s. 732.1 of the Criminal Code . [ 61 ] Precedent 200, Madam Clerk.

Sir, you shall keep the peace and be of good behaviour. [ 62 ] You shall appear before the court when required to do so by the court. [ 63 ] You shall notify the court or your probation officer in advance of any change of name or address, and promptly notify the court of the probation officer of any change of employment or occupation. [ 64 ] Precedent 207, you shall have no contact directly or indirectly with J.R. or W.C. or any person which you know to be a member of either J.R.'s family or W.C.'s family. [ 65 ] Precedent 212, you shall not attend at any place which you know to be the residence, school, or workplace of J.R. or any person which you know to be a member of her family, nor shall you attend at any place which you know to be the residence, school, or workplace of W.C. or any member of his family. [ 66 ] I have considered the counselling provision.

In my view, based on what is contained in the psychological reports, Mr. W. is not somebody that I see from the reports in which counselling needs to be addressed. He has made significant efforts at rehabilitation, and this sentence is not a sentence that focuses on rehabilitation. I do not see that, even as a secondary factor, that is something that needs to be addressed. This sentence is a denunciatory sentence which denounces the true awfulness of this crime. So I decline to impose probation or reporting. [REASONS FOR SENTENCE CONCLUDED]