R. v. G.J.M., 2015 MBCA 103

• Judge: MacInnes, Beard and Mainella, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 23, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBCA 103;(2015), 323 Man.R.(2d) 282 (CA)

R. v. G.J.M. (2015), 323 Man.R.(2d) 282 (CA);

      657 W.A.C. 282

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. NO.004

Her Majesty The Queen (respondent) v. G.J.M. (accused/appellant)

(AR 14-30-08292; 2015 MBCA 103)

Indexed As: R. v. G.J.M.

Manitoba Court of Appeal

MacInnes, Beard and Mainella, JJ.A.

November 3, 2015.

Summary:

The accused pleaded guilty to two counts each of sexual interference, breaching an undertaking and breaching a recognizance, and one count each of making child pornography, possession of child pornography, voyeurism and criminal harassment.

The Manitoba Provincial Court, in a decision reported at 322 Man.R.(2d) 126, sentenced the accused to a combined sentence of 105 months (eight years and nine months), less credit for time already served. He appealed.

The Manitoba Court of Appeal reduced the combined sentence to 87 months, less credit for pre-sentence custody as determined by the judge. The 18-month sentence for possession of child pornography was varied to be served concurrently. While the accused's conduct was reprehensible, and consecutive sentences for the offences were appropriate, the combined sentence was unduly long or harsh.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 5801.1

Sentencing - General - Proportionality - [See second Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - [See second Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 5807

Sentencing - General - Imposing sentences respecting multiple convictions - [See second Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - The sentencing judge credited the accused's 693 days of pre-sentence custody on a 1:1 basis as a result of his misconduct while on release - He was not eligible for enhanced credit pursuant to s. 719(3.1) of the Criminal Code - On appeal, the accused raised, for the first time, the argument that the part of s. 719(3.1) that restricted enhanced pre-sentence credit for an accused who had their judicial interim release revoked for misconduct on release, was unconstitutional - The Manitoba Court of Appeal stated that "Appellate courts normally do not entertain new issues raised on appeal except in exceptional circumstances ... . [C]ounsel at first instance ... made a tactical choice to advance an argument for enhanced pre-sentence custody credit simply on the basis of submissions as to the statutory interpretation of section 719(3.1) of the Code. In our view, given that tactical choice, we do not see exceptional circumstances such that we should entertain this new issue on appeal or delay deciding this case indefinitely." - See paragraphs 19 to 21.

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children (incl. child pornography) - The Manitoba Court of Appeal stated that "The [sentencing] judge properly recognized the seriousness of the crime of making child pornography. Victims are harmed not only by the initial production of the child pornography, but also perpetually if the material is made available or distributed. Once on the Internet, sexually explicit material is impossible to eradicate and will be used by other offenders domestically and internationally for the purposes of sexual gratification or to exploit other children. Sentences accordingly must be severe for making child pornography to reflect the gravity of this pernicious crime. However, here the accused did not go further down the path of criminality in making child pornography in ways that often occur." - See paragraphs 14 and 15.

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children (incl. child pornography) - The accused appealed his combined sentence of 105 months (three months shy of nine years) arising from his guilty pleas to 10 offences primarily involving sexual and pornographic offences in relation to children: possession of child pornography - 18 months; making child pornography - 3 years; sexual interference - 12 and 15 months; voyeurism and criminal harassment - 9 and 15 months; and four breach offences - 2 and 4 months - The judge determined that a combined sentence of 111 months was appropriate; however, she made a "small reduction" based on the totality principle (Criminal Code, s. 718.2(c)) - The four offences relating to breaching conditions were made concurrent to the other consecutive offences to arrive at a combined sentence of 105 months - The Manitoba Court of Appeal reduced the combined sentence to 87 months - The judge's "small reduction" for totality, did not achieve proportionality for the accused - "He is a first time offender who pled guilty and there is an absence here of the aggravating factors that, unfortunately, are all too typical of the most blameworthy of offenders who commit sexual interference, making child pornography or criminal harassment ... . Accordingly, a more meaningful adjustment is necessary on a last look to ensure that the combined sentence does not exceed the accused's overall culpability. ...  [A] proportionate, but appropriately severe sentence for this accused, can be achieved by making the 18-month sentence for possession of child pornography concurrent, rather than consecutive" - See paragraphs 10 to 18.

Criminal Law - Topic 5874

Sentence - Manufacture, distribution, smuggling or possession of obscene matter - Child pornography - [See both Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 5924.2

Sentence - Voyeurism - [See second Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - [See second Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 5969

Sentence - Criminal harassment - [See second Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See second Criminal Law - Topic 5848.9 ].

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points 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.) (2012), 316 Nfld. & P.E.I.R. 211; 982 A.P.R. 211; 2012 NLCA 2, refd to. [para. 10].

R. v. Arbuthnot (S.M.) (2009), 245 Man.R.(2d) 244; 466 W.A.C. 244; 2009 MBCA 106, refd to. [para. 10].

R. v. P.K. (2012), 280 Man.R.(2d) 258; 548 W.A.C. 258; 2012 MBCA 69, refd to. [para. 10].

R. v. Draper (T.G.) (2010), 251 Man.R.(2d) 267; 478 W.A.C. 267; 2010 MBCA 35, refd to. [para. 10].

R. v. Wozny (C.P.) (2010), 262 Man.R.(2d) 75; 507 W.A.C. 75; 2010 MBCA 115, refd to. [para. 10].

R. v. Boissonneault (M.J.) (2012), 280 Man.R.(2d) 114; 548 W.A.C. 114; 2012 MBCA 40, refd to. [para. 10].

R. v. James (G.M.) (2013), 288 Man.R.(2d) 269; 564 W.A.C. 269; 2013 MBCA 14, refd to. [para. 10].

R. v. Golden (B.R.) (2009), 245 Man.R.(2d) 254; 466 W.A.C. 254; 2009 MBCA 107, refd to. [para. 10].

R. v. Sidwell (K.A.) (2015), 319 Man.R.(2d) 144; 638 W.A.C. 144; 2015 MBCA 56, refd to. [para. 13].

R. v. D.D. (2002), 157 O.A.C. 323; 58 OR (3d) 788 (C.A.), refd to. [para. 13].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 15].

R. v. D.G.F. (2010), 259 O.A.C. 364; 2010 ONCA 27, refd to. [para. 15].

R. v. Tettersell (A.J.) (2012), 524 A.R. 88; 545 W.A.C. 88; 2012 ABCA 57, refd to. [para. 15].

R. v. Verral (S.B.) (2003), 330 A.R. 171; 299 W.A.C. 171; 2003 ABCA 184, refd to. [para. 16].

R. v. Ibrahim (M.) (2015), 319 Man.R.(2d) 200; 638 W.A.C. 200; 2015 MBCA 62, refd to. [para. 19].

R. v. Kovich (G.W.) (2013), 300 Man.R.(2d) 176; 2013 MBPC 68, refd to. [para. 20].

King v. Chapman (2012), 288 Man.R.(2d) 77; 564 W.A.C. 77; 2012 MBCA 112, refd to. [para. 21].

R. v. Kematch (S.D.) et al. (2010), 251 Man.R.(2d) 191; 478 W.A.C. 191; 2010 MBCA 18, refd to. [para. 21].

R. v. Safarzadeh-Markhali (H.) (2014), 325 O.A.C. 17; 122 O.R.(3d) 97; 2014 ONCA 627, leave to appeal granted [2014] S.C.C.A. No. 489, refd to. [para. 22].

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81, refd to. [para. 22].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 719(3.1) [para. 19].

Counsel:

R.T. Amy, for the appellant;

R.N. Malaviya, for the respondent.

This sentencing appeal was heard and decided on October 23, 2015, by MacInnes, Beard and Mainella, JJ.A., of the Manitoba Court of Appeal. Mainella, J.A., delivered the following written reasons for judgment of the Court, on November 3, 2015.