Focus On

SENTENCING - Communication with a child by computer in order to commit an offence (luring)

Monday, July 29, 2019 @ 9:35 AM  

Lexis Advance® Quicklaw®
Appeal by the offender, Carter, from a sentence for offences related to child luring. The offender, age 34, engaged in online communications with four girls between the ages of 11 and 14 for the purpose of committing sexual offences. The girls were located in the United Kingdom. Two lurid text messages were sent to the first girl, age 12, through Instagram. The offender used Snapchat messaging to contact the second girl, age 11, and transmit a sexually explicit video and photograph. The third girl, age 11, was contacted through Snapchat multiple times over a four-day period and was sent a sexually explicit photograph. The fourth child, age 14, was developmentally delayed. Through an instant messaging app, the fourth child sent several explicit photographs and videos of herself that the offender retransmitted to a third party. The offender pleaded guilty to distribution of child pornography, two counts of child luring and three counts of making or attempting to make sexually explicit material to a child. He had no prior record. The Crown sought a four to five-year sentence. Defence counsel sought a three-year sentence. The sentencing judge rejected both submissions, characterizing the offender’s moral culpability as at the highest level. The judge imposed an eight-year sentence. The offender appealed.

HELD: Appeal allowed. Based on the authorities before the sentencing judge, the initial sentences, prior to application of the totality principle, should have been below those established by the trial judge. In addition, the ultimate sentences imposed for three of the six counts, after adjustment for totality, were above the comparable range. The offender’s implicit forethought and deliberation was not exceptional and could not be used as an aggravating factor. In addition, the inflationary increases to account for recently legislated increases in the mandatory minimum were excessive. The sentencing judge’s justification for exceeding the applicable range thus involved errors in law and resulted in a sentence that was demonstrably unfit. The sentence was set aside. A reconsideration based on proper principles, having regard to the proportionality principle, yielded a global sentence of five years and three months’ imprisonment. Sentence: One year’s imprisonment for child luring; six months’ consecutive for attempting to make sexually explicit material available; one year’s consecutive for child luring; eight months’ concurrent for making sexually explicit material available; two years’ consecutive for distribution of child pornography; nine months’ consecutive for making sexually explicit material available.

R. v. Carter, [2019] N.J. No. 206, Newfoundland and Labrador Court of Appeal, C.W. White, F.P. O’Brien and W.H. Goodridge JJ.A., June 26, 2019. Digest No. TLD-July292019001