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SENTENCING - Sexual offences, public morals, disorderly conduct and nuisances - Extortion

Thursday, June 07, 2018 @ 8:12 AM  

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Appeal by the accused from a global sentence of 18 months’ imprisonment, followed by three years’ supervised probation for voyeurism, distribution of an intimate image without consent and extortion. The complainant was a friend of the appellant’s sister. In 2010, the appellant, then 19, surreptitiously video recorded the complainant, then age 17, undressing and showering when she was in the bathroom of his family home. He kept, but did not share, the recording. In 2015, he decided to attempt to extort sexually explicit material or activity from the complainant by threatening to disseminate intimate images of her. He created multiple email accounts under pseudonyms, extracted several nude or semi-nude still images from the 2010 recording and manipulated the images using software to hide their source. At the end of 2015, 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. The offences had a significant impact on the complainant’s physical and mental health. At sentencing, the accused was remorseful, had no criminal record and had his own graphic-design business. He was sentenced to 12 months’ imprisonment 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.

HELD: Appeal allowed in part. The voyeurism sentence was varied to three months’ imprisonment, less one month’s credit for time served since sentencing, and the sentence for the offence of extortion was varied to 15 months’ imprisonment consecutive to the voyeurism sentence. The condition of the probation order requiring advising probation services of intimate relationships was deleted. 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. While this was not the proper approach for sentencing on multiple offences, the judge’s error was harmless in effect. The appellant’s moral culpability was high. The gravity of the extortion offence was serious. The starting point for extortion where the victim was an adult was two years’ imprisonment, even for a first offender, before adjustment for totality. The judge’s 18-month combined sentence was not unfit.  This was not a harsh and excessive sentence as the appellant argued.  Sentence: Two months’ imprisonment for voyeurism; 15 months consecutive for extortion; six months concurrent for distribution of an intimate image without consent; three years’ probation.

R. v. McFarlane, [2018] M.J. No. 112, Manitoba Court of Appeal, D.M. Cameron, W.J. Burnett and C.J. Mainella JJ.A., May 4, 2018. Digest No. TLD-June42018009