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STATUTES - Construction - By context - Legislative intent

Tuesday, June 12, 2018 @ 8:10 AM  

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Sentencing of the 56-year-old offender who pled guilty to making sexually explicit material available to a person under 16-years-old. Over a two-week period the offender sent explicit images and engaged in sexualized communications with two individuals he believed to be adolescent girls but were in fact undercover police officers. When the police searched the offender’s residence they found 10 images of child pornography on his digital devices. As part of the facts that supported his guilty plea, the offender acknowledged responsibility for the offences of child luring and possession of child pornography. The offender did not have a previous record. He had been steadily employed and was a well-respected employee. Since his arrest, the offender had attended 20 hours of sex offender counselling. He was remorseful. He was diagnosed with hebephilia. The offender spent 15 days in pre-trial detention.

HELD: The offender was sentenced to 342 days’ imprisonment. The offender’s acknowledgement of responsibility for child luring and possession of child pornography were aggravating factors as was the two-week period of time over which he engaged in communications and his deliberate and sustained course of conduct. Mitigating factors were the lack of a previous record, the offender’s previous prosocial life, his gainful employment, his guilty plea, his remorse, and his completion of sex-offender therapy. The minimum mandatory sentence of 90 days would not achieve denunciation and general and specific deterrence. Interpreting section 161(1) of the Criminal Code as requiring an actual child to be involved would insert an arbitrary distinction into the legislative scheme governing the availability of section 161 orders. Read in context, a prohibition order was available where the offender committed a listed offence believing that their interlocutor was a person under the age of 16 years, such as the within offender. Sentence: 342 days’ imprisonment; three years’ probation; non-contact order; 10-year SOIRA order; DNA order; forfeiture order; $100 victim fine surcharge -- Criminal Code, s. 171.1(1)(b).

R. v. Barnes, [2018] O.J. No. 2433, Ontario Court of Justice, J. Stribopoulos J., May 8, 2018. Digest No. TLD-June112018004