R v McFarlane, 2018 MBCA 48

Citation: R v McFarlane, 2018 MBCA 48 Date: 20180504 Docket: AR18-30-09000 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN: )S. A. Inness and )M. B. Cheaterher majesty the queen )for the Appellant ) Respondent )J. M. Mann )for the Respondent- and - ) )Appeal heard andblair devon patrick mcfarlane )Decision pronounced: )April 26, 2018 (Accused) Appellant ) ) Written reasons: ) May 4, 2018 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that coulddisclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code). mainella JA (for the Court): Introduction [1] This sentence appeal illustrated the pernicious effects that the misuse of technology can have on personal privacy andsexual integrity. [2] The accused appealed his combined sentence of 18 months’ imprisonment, followed by three years’ supervisedprobation, following convictions for voyeurism, distribution of an intimate image without consent and extortion (see sections 162(1)(c),162.1(1), 346(1)(1.1)(

b) of the Criminal Code). After hearing the appeal, we allowed it to the extent of adjusting the sentences for theoffences of voyeurism and extortion, but not the combined length, and deleting one condition of probation, with reasons to follow. Theseare those reasons. Background [3] The complainant was a friend of a sister of the accused. In 2010, the accused (then age 19) surreptitiously videorecorded the complainant (then age 17) undressing and showering when she was in the bathroom of his family home in Winnipeg. Hekept, but did not share, the recording.

He explained his conduct as resulting from his interest in pornography relating to “peeping toms”and being aroused when he was in “control.” [4] Five years later, he was living in Los Angeles, California. His lifestyle was hedonistic. He had a highly sexualizedrelationship with a deeply disturbed woman suffering from a personality disorder.

During this relationship, he decided to attempt toextort sexually explicit material or activity from the complainant by threatening to disseminate intimate images of her, thereby interferingwith her freedom of choice over her sexual integrity (see R v Davis, (SCC), [1999] 3 SCR 759 at paras 45-46). Theshorthand for such criminal conduct is “sextortion”. He explained this behaviour by saying that he had a “very manipulative side tohimself” and decided to proceed with the scheme for the “rush”.

He had not had contact with the complainant for many years andrelations had previously been friendly. [5] To carry out the sextortion, he created multiple email accounts under pseudonyms, he extracted several nude or semi-nude still images from the 2010 recording and he manipulated the images using software to hide their source. [6] Between July and October 2015, he sent emails from the fake accounts with the intimate images to the complainant

and her sister. The emails were menacing. The emails said that cooperation with the demands was the only way to avoid internet publication. [ 7 ] The complainant contacted police. Little could be done because she had no idea who the extortionist was or how the images had been taken. The investigation was made difficult as the accused deactivated each email account after using it. After considerable effort, the police were able to establish that the emails were being sent from Los Angeles. [ 8 ] In October 2015, the complainant’s sister replied to an email, asking what was wanted.

The accused said, to “start”, he wanted a picture of the complainant in a bra. The complainant did not acquiesce to the demand. [ 9 ] In November 2015, the nature of the sextortion changed. The accused contacted the complainant using his true identity. He claimed his email account had been hacked and he had received indecent photos of the complainant. Under the ruse of friendship, he suggested that the matter be dealt with “privately” with the assistance of him and his tech-savvy friends.

Matters culminated with him suggesting a “trap” for the extortionist using a “scandalous” new nude image of the complainant as “bait”. She declined to cooperate and provided the email exchange to police because she was suspicious. [ 10 ] The complainant confronted the accused, who denied involvement, claiming he had been victimized by an anonymous hacker group. He ceased contact and eventually moved back to Winnipeg at the end of 2015. Some months later, his residence was searched and police located the 2010 surreptitious recording on his computer. On his arrest, he gave a full confession.

During the course of the sextortion, he did not publish the intimate images of the complainant on the internet; distribution was limited to her and her sister. [ 11 ] The offences had a significant impact on the complainant’s physical and mental health (see

section 718.2(a)(iii.1) of the Criminal Code ). The events terrified her, exacerbated her anxiety disorder and took over her life. She lived in constant fear that the extortionist had more intimate images of her and was going to eventually hurt, rape or kill her. She struggled in university, was physically ill and could not sleep. She became disassociated and lost her self-esteem. The intensity of her emotions and fear became so unbearable that she contemplated suicide to free herself from the grip of the extortionist.

While the accused’s arrest brought some closure, she is haunted by the experience and is so fearful of surveillance that she routinely checks for hidden cameras in bathrooms. She is afraid of being physically harmed by the accused and men generally. [ 12 ] At sentencing, the accused was 26 years old and without a criminal record. His background was privileged. His home life was “busy, safe and happy” as a child save for his parents’ divorce and some bullying at private school. He graduated from film school in Los Angeles and, at the time of sentencing, had his own graphic-design business.

He was remorseful for his actions and pleaded guilty. He was involved in a new relationship which his partner described as “open and honest”. He had taken some professional counselling. [ 13 ] A forensic psychological report stated that he did not suffer from a cognitive impairment or psychiatric disturbance. His offending was attributed to deficits in coping skills, immaturity, impulsivity and poor judgment. The psychologist said the accused had an unhealthy interest in pornography and activities such as bondage and sadomasochism. He was assessed as a “very low” risk for any future offending.

The pre-sentence report was more negative. He was assessed as a “low risk” for general offending but was in the “moderate-high” risk category for sexual offences based on his STATIC-99R profile. The probation officer noted that the risk profile used by the psychologist was tailored to offenders involved in child pornography offences or general violence only, which was not the profile of the accused. [ 14 ] The Crown asked for a total sentence of 15 to 18 months’ imprisonment. The accused asked for a non-custodial sentence. The judge called the crimes “cold [and] calculating”.

He imposed 18 months’ imprisonment allocated as 12 months on the extortion offence, six months concurrent on the distribution-of-an-intimate-image-without-consent offence and six months consecutive on the voyeurism offence. The two probation conditions challenged on appeal were the obligation to disclose intimate relationships to probation services and not to possess devices that can access the internet without permission. [ 15 ] The accused raised four grounds of appeal.

He said the judge erred in his approach to multiple offences by considering the overall length of sentence first and ignoring the principle of totality. Next, he argued that the judge overemphasized the objectives of denunciation and deterrence, despite that he was a youthful first offender, and gave no consideration to the objective of rehabilitation and the principle of restraint. He also submitted that the sentence was harsh and excessive.

Finally, he suggested the two probation conditions in dispute were unreasonable. [ 16 ] On the day of the appeal, just prior to it commencing, the accused suffered a medical episode that required his hospitalization as a precaution. Counsel advised that the accused had provided his consent for the appeal to proceed in his absence and we agreed that it was appropriate to do so in the circumstances (see

section 688 of the Criminal Code ). Discussion [ 17 ] We agreed that the judge erred in principle by first determining the total sentence and then working backwards setting a sentence for each offence and whether it would be consecutive or concurrent (see R v Ladouceur and Traverse , 2008 MBCA 110 at paras 33-41 ). He did not explain why the sentence for each count was fit or explain his adjustment for totality. This is not the proper approach for sentencing on multiple offences (see R v Draper , 2010 MBCA 35 at paras 29-33 ; and R v RJ , 2017 MBCA 13 at para 13 ).

Sometimes this error will produce an unfit sentence but not always (see R v James (GM) , 2013 MBCA 14 at para 51 ; R v LLP , 2016 MBCA 28 at para 27 ; and R v Shahnawaz et al , 2017 MBCA 93 at paras 9-10 ). In our view, the judge’s error was harmless in effect (see R v Houle , 2016 MBCA 121 at para 11 ). [ 18 ] It was conceded that the extortion sentence should be consecutive to the voyeurism sentence.

There was also no issue with the distribution-of-an-intimate-image-without-consent sentence being concurrent to the extortion sentence. [ 19 ] In terms of proportionality, the gravity of the extortion offence was serious. Extortion is punishable by up to life imprisonment. For good reason, extortionists have been treated harshly by the courts for centuries. It is also important to appreciate that

sextortion is a form of sexual violence even though it occurs through the medium of the internet. As with physical abuse, a victim’s freedom of choice over his or her sexual integrity is violated. The long-term psychological harm to a victim, as was seen here, closely resembles what happens in a case of physical sexual assault (see R v Innes , 2008 ABCA 129 at paras 7 , 11; and R v NG et al , 2015 MBCA 81 at para 33 ).

Finally, it is difficult to hold such offenders accountable because the crime is remotely committed and the nature of the internet provides predators with a degree of anonymity; in this case, it took the efforts of five different law-enforcement agencies in two countries over many months to solve the case. [ 20 ] In terms of the degree of the responsibility of the accused, we saw no basis to interfere with the judge’s conclusion that the accused’s moral culpability was high. [ 21 ] The accused placed great significance on prior extortion sentences of between 45 days’ and 10 months’ imprisonment in other instances of sextortion (see R v Evans , 2011 ABPC 116 ; R v Li (10 April 2013), Winnipeg 011-58712 (Man Prov Ct); and R v W , 2014 BCPC 197 ).

In our respectful view, the range of sentence is much higher. The starting point where the victim is an adult is two years’ imprisonment, even for a first offender. This approach is more consistent with sentences for sexual assault cases and serious extortion cases. [ 22 ] During the sentencing hearing, counsel for the accused argued at length why the objective of rehabilitation and the principle of restraint should be given priority by the judge. In his reasons, the judge considered the aggravating and mitigating factors.

Appellate deference was owed to his weighing of these factors (see R v Lacasse , 2015 SCC 64 at para 49 ). The judge’s reasons were adequate for appellate review when read in the context of the record.

We saw no basis to interfere with the judge’s conclusion that he should favour the objectives of denunciation and deterrence (see Innes at para 10 ). [ 23 ] Because it was appropriate for the judge to make the sentence for the offence of distribution of an intimate image without consent concurrent, there was less reason to mitigate the sentence for extortion to respect the no-free-ride principle (see R v Wozny , 2010 MBCA 115 at paras 44 , 77; and R v Cook (N) , 2014 MBCA 29 at paras 34-35 ).

Accordingly, a sentence at or near two years’ imprisonment, before adjustment for totality, was appropriate for the extortion offence. [ 24 ] The judge said little as to how he arrived at the six-month sentence for the offence of distribution of an intimate image without consent. It is a sexual offence and a privacy offence, and sentences for it must reflect both of these aims of the legislation.

Deterrence and denunciation are the primary sentencing objectives and such conduct typically will result in a custodial sentence (see R v AC , 2017 ONCJ 317 at paras 17-20 , 28, 56; and R v JS , 2018 ONCJ 82 at para 20-29 ). Because this offence was committed as part of the sextortion and the six-month sentence was made concurrent to the extortion sentence, we saw no reason to adjust it other than to point out it was at the low end of the range. [ 25 ] The judge also provided little analysis of the sentence for the voyeurism offence.

It too was a sexual offence and a privacy offence (see R v Jarvis , 2017 ONCA 778 at para 87 ). In R v GJM , 2015 MBCA 103 , this Court endorsed the comments of leMaistre ACPJ (as she then was) that the range of sentence for a first offender on a guilty plea is between a discharge and 12 months’ imprisonment (see R v GM , 2014 MBPC 57 at paras 65 , 97). Given the age of the complainant in 2010, a custodial sentence was necessary in our view.

However, since the accused was not sentenced for this conduct on the more serious offence of making child pornography due to a plea bargain, three months was a fit sentence. [ 26 ] Mindful of the principle of totality and the relevant factors to take into account on a last look (see GJM at para 10 ), we were of the view that the judge’s 18-month combined sentence was not unfit. We were not persuaded this was a harsh and excessive sentence as the accused argued. The extortion sentence can be appropriately adjusted to avoid a crushing sentence while still respecting proportionality.

An appropriate allocation, after a last look, was three months’ imprisonment on the voyeurism offence (less time served since sentencing); 15 months’ imprisonment consecutive on the extortion offence; and six months’ imprisonment concurrent on the offence of distribution of an intimate image without consent. [ 27 ] There was no merit to the challenge to the probation condition relating to not possessing devices that can access the internet without permission although the judge probably should have dealt with this by way of a prohibition order under

section 162.2 of the Criminal Code . We did, however, agree with the accused that the probation condition that he advise probation services about his intimate relationships was not reasonable.

Disposition [ 28 ] Leave to appeal sentence was previously granted by a judge of this Court in chambers at the time the accused was granted judicial interim release pending his appeal. [ 29 ] The appeal was allowed to the extent that the voyeurism sentence was varied to three months’ imprisonment, less one month’s credit for the time served since sentencing (leaving two months going forward from the date the accused turns himself into custody); the sentence for the offence of extortion was varied to 15 months’ imprisonment consecutive to the voyeurism sentence; and the condition of the probation order requiring advising probation services of intimate relationships was deleted. [ 30 ] The accused was ordered to turn himself into custody within 24 hours after his release from the hospital.

His judicial interim release will continue on the same terms ordered by the chambers judge for that 24-hour period. [ 31 ] The appeal was otherwise dismissed. JA

JA JA