R. v. Basov (D.V.), (2015) 315 Man.R.(2d) 222 (CA)

JudgeBeard, Monnin and Burnett, JJ.A.
CourtCourt of Appeal (Manitoba)
Case DateSeptember 26, 2014
JurisdictionManitoba
Citations(2015), 315 Man.R.(2d) 222 (CA);2015 MBCA 22

R. v. Basov (D.V.) (2015), 315 Man.R.(2d) 222 (CA);

      630 W.A.C. 222

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. MR.012

Her Majesty The Queen (respondent) v. Denys Valeriyovych Basov (accused/appellant)

(AR 13-30-08099; 2015 MBCA 22)

Indexed As: R. v. Basov (D.V.)

Manitoba Court of Appeal

Beard, Monnin and Burnett, JJ.A.

February 27, 2015.

Summary:

The accused pled guilty under s. 159 of the Customs Act to one count of smuggling child pornography into Canada. Following a contested sentence hearing, he was sentenced to 2.5 years' (30 months') imprisonment, less credit for the equivalent of nine months' pre-sentence custody. The accused appealed the length of the period of imprisonment, but not the allowance for the pre-sentence credit. He submitted that the sentencing judge (i) placed undue weight on the number of images located on the accused's laptop in arriving at the appropriate sentence; and (ii) failed to adequately take into account the mitigating factors when imposing sentence. In addition, the accused argued that the sentence was unfit because the sentencing judge exceeded the range of sentence for this offence.

The Manitoba Court of Appeal granted the accused leave to appeal, granted the appeal and reduced the accused's sentence to 20 months' incarceration, before deducting nine months credit for pre-sentence custody.

Criminal Law - Topic 5806.1

Sentencing - General - Sentencing parity - General - [See second Criminal Law - Topic 5874 ].

Criminal Law - Topic 5834

Sentencing - Considerations on imposing sentence - Circumstances tending to increase sentence - [See first Criminal Law - Topic 5874 ].

Criminal Law - Topic 5840

Sentencing - Considerations on imposing sentence - Prospective deportation of convict - [See second Criminal Law - Topic 5874 ].

Criminal Law - Topic 5848.8

Sentencing - Considerations on imposing sentence - First offence - [See second Criminal Law - Topic 5874 ].

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children - Child pornography - [See second Criminal Law - Topic 5874 ].

Criminal Law - Topic 5874

Sentence - Manufacture, distribution, smuggling or possession of obscene matter - Child pornography - The accused pled guilty under s. 159 of the Customs Act to one count of smuggling child pornography into Canada - Following a contested sentence hearing, he was sentenced to 2.5 years' (30 months') imprisonment, less credit for the equivalent of nine months' pre-sentence custody - The accused appealed the length of the period of imprisonment, submitting, inter alia, that the sentencing judge placed undue weight on the number of images located on the accused's laptop in arriving at the appropriate sentence - The Manitoba Court of Appeal stated that "While the accused argues that the sentencing judge did not give sufficient weight to the fact that there was no suggestion of an intention to traffic in the prohibited material, whether for profit or not, the question of trafficking did not come up in the proceedings. It was clear that what was at issue was smuggling and possession for personal use, and that was the underlying circumstance in all of the cases to which reference was made. Thus, there is no basis to suggest that the sentencing judge should have taken the factor of no trafficking into account. Further, the number of images is a relevant aggravating factor and the trial judge did not err in her assessment of this factor." - See paragraph 23.

Criminal Law - Topic 5874

Sentence - Manufacture, distribution, smuggling or possession of obscene matter - Child pornography - The accused was a 36 year old Ukrainian citizen and was working in Canada as a commercial truck driver when he was arrested on May 7, 2013 - The accused pled guilty under s. 159 of the Customs Act to one count of smuggling child pornography into Canada - Following a contested sentence hearing, he was sentenced to 2.5 years' (30 months') imprisonment, less credit for the equivalent of nine months' pre-sentence custody - The accused appealed - The Manitoba Court of Appeal held that the sentencing judge made palpable and overriding errors in the manner in which she considered and weighed the evidence and the factors as she compared this case with R. v. Emmerling (2013 Man. Prov. Ct.), and ultimately set the accused's sentence - Emmerling had received a 24 month sentence - Differences between the cases included the fact that Emmerling had a criminal record, while the accused was a first-time offender - Further, the accused would be deported when released from jail and he and his family would lose the opportunity to move to Canada - Emmerling was a U.S. citizen, and there was no indication that he had any aspirations of relocating to Canada that would be lost as a result of his conviction - Finally, in the Emmerling case, the sentencing judge noted the very "unsettling" factor of the presence of children's toys, movies and a weapon that was not present here - Thus, the sentence was not fit - The court reduced the sentence to 20 months' incarceration, before deducting nine months' credit for pre-sentence custody.

Customs - Topic 8205

Offences and penalties - Penalties - Smuggling - [See second Criminal Law - Topic 5874 ].

Cases Noticed:

R. v. Oliver et al., [2002] EWCA Crim. 2766; [2003] 2 Cr. App. Rep. 15 (C.A.), refd to. [para. 5].

R. v. Brooks (J.C.) (2010), 263 Man.R.(2d) 186; 2010 MBPC 61, refd to. [para. 5].

R. v. Lague (G.J.) (2013), 287 Man.R.(2d) 204; 2013 MBQB 32, refd to. [para. 5].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 9].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 9].

R. v. Draper (T.G.) (2010), 251 Man.R.(2d) 267; 478 W.A.C. 267; 2010 MBCA 35, refd to. [para. 9].

R. v. Ruizfuentes (H.S.) (2010), 258 Man.R.(2d) 220; 499 W.A.C. 220; 2010 MBCA 90, refd to. [para. 9].

R. v. Smoke (D.D.) (2014), 310 Man.R.(2d) 123; 618 W.A.C. 123; 2014 MBCA 91, refd to. [para. 9].

R. v. Junkert (M.) (2010), 267 O.A.C. 7; 2010 ONCA 549, refd to. [para. 17].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 18].

R. v. Vuradin (F.), [2013] 2 S.C.R. 639; 446 N.R. 53; 553 A.R. 1; 583 W.A.C. 1; 2013 SCC 38, refd to. [para. 18].

R. v. Huska (K.) (2015), 315 Man.R.(2d) 36; 630 W.A.C. 36; 2014 MBCA 114, refd to. [para. 18].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 22].

R. v. D.I., [2012] 1 S.C.R. 149; 427 N.R. 4; 288 O.A.C. 1; 2012 SCC 5, refd to. [para. 22].

R. v. D.A.I. - see R. v. D.I.

R. v. N.S. et al., [2012] 3 S.C.R. 726; 437 N.R. 344; 297 O.A.C. 200; 2012 SCC 72, refd to. [para. 22].

R. v. Mian (M.H.) (2014), 462 N.R. 1; 580 A.R. 1; 620 W.A.C. 1; 2014 SCC 54, refd to. [para. 22].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 22].

R. v. Pham - see R. v. Ly (T.Q.).

R. v. Ly (T.Q.), [2013] 1 S.C.R. 739; 441 N.R. 375; 544 A.R. 40; 567 W.A.C. 40; 2013 SCC 15, refd to. [para. 35].

R. v. Mozo (L.F.) (2010), 316 Nfld. & P.E.I.R. 304; 982 A.P.R. 304 (N.L. Prov. Ct.), refd to. [Appendix C].

R. v. Whittaker (D.J.) (2010), 367 N.B.R.(2d) 334; 946 A.P.R. 334; 2010 NBPC 32, refd to. [Appendix C].

R. v. Moroz (T.), [2013] O.T.C. Uned. 3130; 2013 ONSC 3130, refd to. [Appendix C].

R. v. Batshaw (L.) (2004), 187 Man.R.(2d) 177; 330 W.A.C. 177; 2004 MBCA 117, refd to. [Appendix D].

R. v. Lea, [2004] O.J. No. 6040 (Sup. Ct.), refd to. [Appendix D].

R. v. Neilly (R.A.) (2006), 209 O.A.C. 155 (C.A.), refd to. [Appendix D].

R. v. Hammond (C.M.) (2009), 469 A.R. 317; 470 W.A.C. 317; 2009 ABCA 415, refd to. [Appendix D].

R. v. W.E. (2010), 293 Nfld. & P.E.I.R. 52; 906 A.P.R. 52; 2010 NLCA 4, refd to. [Appendix D].

R. v. Johnston (H.E.) (2011), 311 Nfld. & P.E.I.R. 129; 967 A.P.R. 129; 2011 NLCA 56, refd to. [Appendix D].

R. v. Andrukonis (M.) (2012), 524 A.R. 306; 545 W.A.C. 306; 2012 ABCA 148, refd to. [Appendix D].

R. v. Clayton (D.J.) (2012), 539 A.R. 326; 561 W.A.C. 326; 2012 ABCA 384, refd to. [Appendix D].

R. v. Lukat (J.L.), [2014] A.R. Uned. 59; 2014 ABCA 112, refd to. [Appendix D].

R. v. Missions (W.D.) (2005), 232 N.S.R.(2d) 329; 737 A.P.R. 329; 2005 NSCA 82, refd to. [Appendix E].

R. v. Gauthier (J.S.) (2008), 425 A.R. 267; 418 W.A.C. 267; 2008 ABCA 39, refd to. [Appendix E].

R. v. Bryant (J.J.), [2008] A.R. Uned. 77; 2008 ABCA 203, refd to. [Appendix E].

R. v. Bauer (S.), [2008] O.J. No. 5982 (Sup. Ct.), refd to. [Appendix E].

R. v. Bauer (S.), [2010] O.A.C. Uned. 234; 2010 ONCA 331, refd to. [Appendix E].

R. v. R.H., 2012 ONCJ 280, refd to. [Appendix E].

R. v. R.H., [2012] O.A.C. Uned. 468; 2012 ONCA 593, refd to. [Appendix E].

Counsel:

J. Kostiuk, for the appellant;

S.J. Christie, for the respondent.

This appeal was heard on September 26, 2014, by Beard, Monnin and Burnett, JJ.A., of the Manitoba Court of Appeal. Beard, J.A., delivered the following decision for the court on February 27, 2015.

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9 practice notes
  • R. v. G.J.M., 2015 MBCA 103
    • Canada
    • Manitoba Court of Appeal (Manitoba)
    • October 23, 2015
    ...not previously raised - [See Criminal Law - Topic 5848.2 ]. Cases Noticed: R. v. Basov (D.V.) (2015), 315 Man.R.(2d) 222; 630 W.A.C. 222; 2015 MBCA 22, refd to. [para. 3]. R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 9]. R. v. Hutchings (R.......
  • R. v. D.C., 2016 MBCA 49
    • Canada
    • Manitoba Court of Appeal (Manitoba)
    • March 7, 2016
    ...the fourth (i.e., the second most serious) level of the classification system for pornographic images described in R. v. Basov (D.V.) , 2015 MBCA 22 at para. 5, 315 Man.R.(2d) 222. [11] The accused declined to comment when he was initially arrested on January 26, 2014. On June 12, 2014, whe......
  • R. v. M.L., 2020 MBPC 30
    • Canada
    • Provincial Court of Manitoba (Canada)
    • June 30, 2020
    ...and enjoyed by someone. (Sharpe, at para 92, per McLachlan, CJ.) [15] The Crown filed the Manitoba Court of Appeal case of R. v. Basov, 2015 MBCA 22, which sets out the classification system used to determine the level of severity of child (i) erotic posing with no sexual activity; (ii) sex......
  • R. v. Nepon, 2020 MBPC 48
    • Canada
    • Provincial Court of Manitoba (Canada)
    • October 8, 2020
    ...that a child who is exploited by being the subject of pornography experiences. [48] The Manitoba Court of Appeal case of R. v. Basov, 2015 MBCA 22, sets out the five point classification system used to determine the level of severity of child pornography. The classification system was adopt......
  • Request a trial to view additional results
9 cases
  • R. v. G.J.M., 2015 MBCA 103
    • Canada
    • Manitoba Court of Appeal (Manitoba)
    • October 23, 2015
    ...not previously raised - [See Criminal Law - Topic 5848.2 ]. Cases Noticed: R. v. Basov (D.V.) (2015), 315 Man.R.(2d) 222; 630 W.A.C. 222; 2015 MBCA 22, refd to. [para. 3]. R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 9]. R. v. Hutchings (R.......
  • R. v. D.C., 2016 MBCA 49
    • Canada
    • Manitoba Court of Appeal (Manitoba)
    • March 7, 2016
    ...the fourth (i.e., the second most serious) level of the classification system for pornographic images described in R. v. Basov (D.V.) , 2015 MBCA 22 at para. 5, 315 Man.R.(2d) 222. [11] The accused declined to comment when he was initially arrested on January 26, 2014. On June 12, 2014, whe......
  • R. v. M.L., 2020 MBPC 30
    • Canada
    • Provincial Court of Manitoba (Canada)
    • June 30, 2020
    ...and enjoyed by someone. (Sharpe, at para 92, per McLachlan, CJ.) [15] The Crown filed the Manitoba Court of Appeal case of R. v. Basov, 2015 MBCA 22, which sets out the classification system used to determine the level of severity of child (i) erotic posing with no sexual activity; (ii) sex......
  • R. v. Nepon, 2020 MBPC 48
    • Canada
    • Provincial Court of Manitoba (Canada)
    • October 8, 2020
    ...that a child who is exploited by being the subject of pornography experiences. [48] The Manitoba Court of Appeal case of R. v. Basov, 2015 MBCA 22, sets out the five point classification system used to determine the level of severity of child pornography. The classification system was adopt......
  • Request a trial to view additional results

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