R. v. M.C., (2016) 378 Nfld. & P.E.I.R. 202 (NLPC)

• Judge: Gorman, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: January 04, 2016
• Jurisdiction: Newfoundland and Labrador
• Citations: (2016), 378 Nfld. & P.E.I.R. 202 (NLPC);2016 NLPC 1315

R. v. M.C. (2016), 378 Nfld. & P.E.I.R. 202 (NLPC);

    1174 A.P.R. 202

MLB headnote and full text

Temp. Cite: [2016] Nfld. & P.E.I.R. TBEd. JA.009

Her Majesty the Queen v. M.C.

(2016 NLPC 1315A00076)

Indexed As: R. v. M.C.

Newfoundland and Labrador Provincial Court

Gorman, P.C.J.

January 7, 2016.

Summary:

The accused pleaded guilty to luring a child by means of a computer system. The Crown proceeded by way of summary conviction.

The Newfoundland and Labrador Provincial Court sentenced the accused to nine months' imprisonment and two years' probation. The court also imposed a DNA order, a prohibition order under s. 161 of the Criminal Code, and an order requiring the accused to comply with the Sex Offender Information Registration Act for 10 year.

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 5798.1

Punishments (sentence) - Prohibition orders - Respecting contact with children - The 39 year old accused pleaded guilty to luring a child by means of a computer system (summary conviction) - In 2012, the victim was 14 and 15 years of age and living with her grandmother - The accused began communicating with her through Facebook - Despite knowing her age, he persisted and escalated the communication into one of a sexual nature and advised her that he wanted to have sexual intercourse with her - The victim terminated the communications - The accused created three fictitious identities- The victim received messages from those identities, advising her that the accused loved her and would kill himself if she did not love him - The victim's mother invited her to a restaurant - The victim and the mother did not have a lot of contact - When the victim arrived at the restaurant, the accused was with her mother - The accused denied sending the Facebook messages and claimed that his computer had been hacked - The victim called her grandmother who came and drove her home - The accused had prior convictions as a young person, including two for sexual assault - Despite his guilty plea, he had not taken responsibility for the offence - He was now engaged to the victim's mother and was living with the mother and the victim's two siblings - The Crown sought a sentence of four to six months' imprisonment and two years' probation - The Newfoundland and Labrador Provincial Court concluded that an appropriate sentence was 12 months' imprisonment and two years' probation - However, based solely on the Crown's submissions, the court imposed nine months' imprisonment and two years' probation, reduced by 4.5 days for three days of pre-sentence custody - The court also imposed a DNA order, a prohibition order under s. 161 of the Criminal Code and an order requiring compliance with the Sex Offender Information Registration Act for 10 years - The s. 161 order exempted the victim's siblings.

Criminal Law - Topic 5805

Sentencing - General - Statutory range mandatory - Mandatory minimum sentence - The accused pleaded guilty to luring a child by means of a computer system (summary conviction) - At the time of the offence a minimum prescribed period of incarceration had not been enacted - The Newfoundland and Labrador Provincial Court stated that "I recognize that the enactment of a minimum period of incarceration for section 172.1 offences can be seen as creating an 'inflationary floor' (though reference should be made to R. v. W.A.E., [2009, NLCA]) ... However, it is overly simplistic to conclude that this means all section 172.1 post-mandatory incarceration sentencing decisions have no relevance in this case or that lower sentences are always required for pre-mandatory incarceration cases. As the Supreme Court of Canada pointed out at paragraph 58 of [ R. v. Lacasse (T.) (2015, SCC)] the 'determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case.'" - See paragraph 56.

Criminal Law - Topic 5831.7

Sentencing - Considerations on imposing sentence - Accused abused as a child - MC pleaded guilty to luring a child by means of a computer system (summary conviction) - The Newfoundland and Labrador Provincial Court stated that "As can be seen, MC was sexually abused as a child. How is this to be considered in imposing sentence in this case? In Stewart v The Queen [2015] VSCA 368, it was noted that Australian case law recognizes that circumstances 'of deprivation, abuse and other social disadvantage occurring during an offender's formative years are more than matters of historical significance to the administration of justice ... The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender's criminal behaviour ... Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.' The Court of Appeal went on to indicate in Stewart that it has been held that when 'considerations of specific and general deterrence and community protection become increasingly important sentencing factors, the significance of personal circumstances will correspondingly decrease.'" - See paragraph 23.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle and sentencing ranges) - [See Criminal Law - Topic 5805 ].

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle and sentencing ranges) - The Newfoundland and Labrador Provincial Court reviewed the proper use of sentencing ranges - See paragraphs 57 and 58.

Criminal Law - Topic 5849.7

Sentencing - Considerations on imposing sentence - Representations of counsel - [See Criminal Law - Topic 5798.1 ].

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children - [See Criminal Law - Topic 5798.1 ].

Criminal Law - Topic 5959.1

Sentence - Internet luring - [See Criminal Law - Topic 5798.1 ].

Counsel:

L. St. Croix, for Her Majesty the Queen;

S. MacKinnon, for M.C.

This sentencing was heard at Corner Brook, N.L., on January 4, 2016, by Gorman, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following judgment on January 7, 2016.