R v GJM, 2015 MBCA 103

Citation: R v GJM, 2015 MBCA 103 Date: 20151103 Docket: AR14-30-08292 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Madam Justice Holly C. Beard Mr. Justice Christopher J. Mainella BETWEEN : ) R. T. Amy HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) R. N. Malaviya ) for the Respondent - and - ) ) Appeal heard and ) Decision pronounced: G. J. M. ) October 23, 2015 ) (Accused) Appellant ) Written reasons: ) November 3, 2015 NOTICE OF RESTRICTION ON PUBLICATION : No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code ).

On appeal from 2014 MBPC 57 MAINELLA JA (for the Court): Introduction [ 1 ] The accused appeals his combined sentence of 105 months, less credit for pre-sentence custody, arising from his guilty pleas to 10 offences primarily involving sexual and pornographic offences in relation to children. [ 2 ] While the conduct of the accused was reprehensible, and consecutive sentences for the offences were appropriate, at the hearing of the appeal the Court announced that the combined sentence was an unduly long or harsh sentence and accordingly the appeal would be allowed and the combined sentence would be reduced to one of 87 months, less credit for pre-sentence custody as determined by the judge, with reasons to follow.

These are those reasons. Background [ 3 ] The circumstances of the offences fall into six categories: (

i) Possession of child pornography in 2012 (

section 163.1(4) of the Criminal Code (the Code )) – 18 months imposed – An allegation of industrial espionage led the accused’s employer, and later police, to discover images and videos of child pornography on the accused’s computers and storage devices. A total of 16,896 images of child pornography (6,935 unique and 9,961 duplicates) and 139 videos (134 unique and 5 duplicates) were seized. The child pornography related to images and videos of girls between the ages of eight and thirteen.

The content consisted of categories one to four of the child pornography classification system recognized by this Court in R v Basov (DV) , 2015 MBCA 22 at para 5 , 315 ManR (2d) 222. (ii) Making child pornography in 2011-12 (

section 163.1(2) of the Code ) – 3 years imposed – On his computers, police found child pornography that the accused made. He used image altering computer software to transfer images of himself and the face of his

best friend’s prepubescent daughter (B.B.) to 14 child pornography images he possessed. He then altered those images to make it appearthat B.B. was performing fellatio on him. He also, both overtly and covertly, recorded the genitalia of three eight-year-old girls; his twindaughters, and their friend (J.P.). The surreptitious recording of genitalia was done by a hidden bathroom camera. (iii) Sexual interference in 2005 (section 151(

a) of the Code) – 12 months imposed – Search of the accused’s computer led to thediscovery of a historic sexual interference in relation to B.B. The accused became intoxicated at the house of B.B.’s parents and crawledinto B.B.’s bed. B.B. was eight years old at the time. The accused touched her vagina, breasts and buttocks and made her touch hispenis. (iv) Sexual interference in 2011-12 (section 151(

a) of the Code) – 15 months imposed – Two videos police seized related tosexual interference with J.P. when she was sleeping over at the accused’s house with his daughters. In the videos, the accused removesJ.P.’s socks while she is sleeping and places his penis on her feet. (

v) Voyeurism and criminal harassment in 2012 (sections 162(1) and 264(2)(

b) of the Code) – 9 and 15 months imposed – Theaccused’s girlfriend and co-worker (S.P.) consented to the accused recording her placing her feet on his penis. Unbeknownst to S.P., theaccused also surreptitiously recorded the couple engaging in fellatio, cunnilingus and intercourse in the accused’s residence and at theoffice. After the child pornography was found on the accused’s computer, S.P. ended their relationship.

The accused then began toincessantly contact her and follow her, despite her moving residences, in an attempt to revive their relationship. (vi) Four breach offences in 2012 (sections 145(3) and 145(5.1) of the Code) - 2 and 4 months imposed – The criminalharassment of S.P. culminated with an incident where he was arrested in her apartment building. Police found him in possession of atablet computer containing nude images of children contrary to conditions of an undertaking.

Police also later recovered emails betweenthe accused and S.P. contrary to conditions of his recognizance that he not contact S.P. or use the Internet. [4] The accused’s motivation to commit the sexual and pornographic offences was personal gratification in furtherance ofhis deviant sexual interests. [5] The circumstances of the accused are that he is 40 years old. He has no prior criminal record. He is an educatedperson and a successful salesman. His marriage collapsed when his extra-marital affair with S.P. was discovered by his wife.

He nolonger has contact with his two children. [6] According to two reports from a forensic psychologist, the accused has had a sexual interest in the sexual activity ofprepubescent girls for 20 years. His insight into his sexual paraphilias and inappropriate behaviour is currently limited. He requireslong-term professional treatment and supervision. [7] The judge gave thorough reasons detailing the various mitigating and aggravating factors of the case.

Ultimately, shedetermined that a combined sentence for the 10 offences of 111 months was appropriate; however, she decided to make a “smallreduction” to the sentence based on the totality principle (section 718.2(

c) of the Code) (at para 109)). She did so by making the fouroffences relating to breaching conditions of judicial interim release concurrent to the other consecutive offences to arrive at a combinedsentence of 105 months before pre-sentence custody credit. Discussion [8] We agree with the Crown that, individually considered, the sentences imposed were not arrived at by an error inprinciple, nor can any of them be said to be clearly excessive.

That said, the Crown concedes that, with the exception of the breachoffences, in each of the other five categories of offences, the judge selected a sentence at the high end of the range given thecircumstances and relevant sentencing principles. [9] The appeal turns on the question of whether the net result of the judge choosing sentences at the high end of the rangesrequired her to make a more meaningful reduction of the combined sentence than she did on her last look to ensure that the combinedsentence, viewed globally, was not disproportionate to the overall culpability of the accused and, therefore, unfit (R v M (CA), (SCC), [1996] 1 SCR 500 at para 42).

Principle of Totality [10] The question of whether a combined sentence for multiple offences is unduly long or harsh, and therefore notproportionate, on a last look requires a sentencing judge to take into account and balance several factors that Green CJNL neatlysummarized in R v Hutchings (R), 2012 NLCA 2, 316 Nfld & PEIR 211 (at para 84): (

a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offencesinvolved; (

b) the number and gravity of the offences involved; (

c) the offender’s criminal record; (

d) the impact of the combined sentence on the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing;

(

e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of theoffences and the offender’s degree of responsibility.

See also R v Arbuthnot (SM), 2009 MBCA 106 at para 18, 245 ManR (2d) 244; R v PK, 2012 MBCA 69 at para 20, 280 ManR (2d) 258;R v Draper (TG), 2010 MBCA 35 at para 31, 251 ManR (2d) 267; R v Wozny (CP), 2010 MBCA 115 at paras 56-60, 262 ManR (2d) 75;R v Boissonneault (MJ), 2012 MBCA 40 at para 28, 280 ManR (2d) 114; R v James (GM), 2013 MBCA 14 at para 73, 288 ManR (2d)269; and R v Golden (BR), 2009 MBCA 107 at para 87, 245 ManR (2d) 254. [11] The judge’s reasons confirm she properly understood the factors to consider and balance on a last look.

We do notdisagree with her conclusion that the number and gravity of the offences, and their impact on the victims, are “serious and disturbing” (atpara 106) given the vulnerability of the victims, the abuse of a position of trust and the subterfuge employed to commit some of thecrimes.

We also do not disagree with her assessment that “the public needs to be protected from [the accused]; he is unable to exercisecontrol over his impulses and behaviour” (at para 108). [12] Where we see error is with the judge’s reasoning that the “total sentence is not higher than the maximum sentenceavailable for the offences of Sexual Interference, Making Child Pornography and Criminal Harassment” (at para 108), which is ten yearsfor each offence.

The difficulty here is that, to reach a sentence at or near nine years for any of these three offences, normally requiresfar more egregious behaviour than what the accused did, particularly for a first-time offender who pleads guilty. [13] The instances of sexual touching here are not so serious that they would engage the four to five year starting point for amajor sexual assault committed in a position of trust (R v Sidwell (KA), 2015 MBCA 56 at para 49, 319 ManR (2d) 144).

Nor is this acase of sexual abuse of children by a person in a position of trust, without acts of penetration, that could warrant a mid to upper digitsentence because of the prolonged period and frequency of the sexual abuse (R v D (D) (2002), (ON CA), 58 OR(3d) 788 at para 44 (CA)). [14] The judge properly recognized the seriousness of the crime of making child pornography. Victims are harmed not onlyby the initial production of the child pornography, but also perpetually if the material is made available or distributed.

Once on theInternet, sexually explicit material is impossible to eradicate and will be used by other offenders domestically and internationally for thepurposes of sexual gratification or to exploit other children. Sentences accordingly must be severe for making child pornography toreflect the gravity of this pernicious crime. [15] However, here the accused did not go further down the path of criminality in making child pornography in ways thatoften occur.

First, he did not commission or encourage his daughters or J.P. to perform sexual acts that would fall within categories twoand five of the child pornography classification system recognized by this Court in Basov (at para 5). Second, he did not show ordistribute to others the child pornography he made in relation to his daughters, J.P. and B.B., nor did he intend to do so. While notmitigating, this was a case of personal use of the material produced.

Had the accused commissioned or encouraged children to performsexual acts or had he intended to show or distribute the material made to others, or actually done so, his blameworthiness would havebeen greater and the resulting sentence for making child pornography would be in the mid to upper single digits (R v LM, 2008 SCC 31at paras 25-28, [2008] 2 SCR 163; R v DGF, 2010 ONCA 27 at paras 21-26, 259 OAC 364; and R v Tettersell (AJ), 2012 ABCA 57, 524AR 88). [16] Finally, the criminal harassment offence did not include a physical component that also would have raised the accused’sblameworthiness in terms of sentence (R v Verral (SB), 2003 ABCA 184 at para 10, 330 AR 171). [17] Because sentencing is a delicate art, the standard for appellate intervention is high (LM at paras 14-15).

However, in thecircumstances, we are of the view that the judge’s “small reduction” (at para 109) for totality, resulting in a sentence three months shy ofnine years, does not achieve proportionality for this accused.

He is a first time offender who pled guilty and there is an absence here ofthe aggravating factors that, unfortunately, are all too typical of the most blameworthy of offenders who commit sexual interference,making child pornography or criminal harassment (M (CA) at para 42). [18] Accordingly, a more meaningful adjustment is necessary on a last look to ensure that the combined sentence does notexceed the accused’s overall culpability.

In our view, mindful of the factors summarized in Hutchings, a proportionate, but appropriatelysevere sentence for this accused, can be achieved by making the 18-month sentence for possession of child pornography concurrent,rather than consecutive. This would reduce the accused’s combined sentence from 105 months to 87 months, before credit for pre-sentence custody.

Pre-Sentence Custody Credit [19] With two minor exceptions, the judge credited the accused’s 693 days of pre-sentence custody on a 1:1 basis as a resultof his misconduct while on release and he was therefore not eligible for enhanced credit pursuant to section 719(3.1) of the Code. Thejudge’s

interpretation of the effect of that

section to this accused is correct (R v Ibrahim (M), 2015 MBCA 62, 319 ManR (2d) 200). [20] On appeal, the accused raises, for the first time, the argument that the part of section 719(3.1), that restricts enhancedpre-sentenced credit for an accused who has their judicial interim release revoked for misconduct on release, is unconstitutional.

Twocases addressing this constitutional submission were reserved by this Court on May 25, 2015 (R v Bittern, File No AR14-30-08270; andR v Kovich, File No AR14-30-08116), and another is scheduled to be heard by the Supreme Court of Canada on November 4, 2015 (R vSafarzadeh-Markhali (H), File No 36162). [21] Appellate courts normally do not entertain new issues raised on appeal except in exceptional circumstances (King vChapman, 2012 MBCA 112 at para 3, 288 ManR (2d) 77; and R v Kematch (SD) et al, 2010 MBCA 18 at paras 17-20, 251 ManR (2d)

191). The record here reveals that counsel at first instance (not Mr. Amy) made a tactical choice to advance an argument for enhancedpre-sentence custody credit simply on the basis of submissions as to the statutory

interpretation of section 719(3.1) of the Code.

In ourview, given that tactical choice, we do not see exceptional circumstances such that we should entertain this new issue on appeal or delaydeciding this case indefinitely. [22] Moreover, in our view, the accused has the option of seeking the remedy of habeas corpus to review theconstitutionality of his continued detention based in part on section 719(3.1) should the decision of the Ontario Court of Appeal in R vSafarzadeh-Markhali (H), 2014 ONCA 627, 325 OAC 17, be upheld by the Supreme Court or adopted by this Court in Bittern andKovich (see R v Gamble, (SCC), [1988] 2 SCR 595 at paras 68-70).

We make no comment as to the merits of such anapplication. Disposition [23] In the result, leave to appeal sentence is granted and the sentence appeal is allowed to the extent that the 18-monthsentence imposed in relation to the offence of possession of child pornography is varied to be served concurrently. The sentences areotherwise confirmed. JA JA JA