Her Majesty the Queen v. Folino
[Indexed as: R. v. Folino]
77 O.R. (3d) 641
 O.J. No. 4737
Court of Appeal for Ontario,
McMurtry C.J.O., Blair J.A. and Kozak J. (ad hoc)
November 3, 2005
Criminal law — Sentencing — Child luring — Conditional sentence will be appropriate for offence of child luring only in rarest of cases — Accused having no criminal record, not suffering from pedophilia or hebephilia and extremely unlikely to re-offend — Fresh evidence showing accused in fragile mental and physical state as result of criminal proceedings and assaults in jail before and after sentencing and that his young children would be detrimentally affected were he incarcerated — Conditional sentence appropriate — Custodial sentence of nine months’ imprisonment varied on appeal to 18 months’ conditional with house arrest.
The accused pleaded guilty to one count of child luring. Over a period of about three weeks, he engaged in Internet chat sessions with and sent e-mails to a person he believed to be a 13-year-old girl, but who was in fact an undercover police officer. He engaged in sexually explicit conversations with the “girl”, arranged to meet her for the specific purpose of having sex with her, and drove 22 kilometres to the specified meeting spot. The 35-year-old accused had no criminal record. No child pornography was found in his possession, and he did not suffer from pedophilia or hebephilia. He and his wife were expecting their third child. As a result of the criminal charges, he lost his employment as a mechanical engineer and production manager at an automotive parts manufacturing plant. He was suffering from stress and depression at the time of the offence, but the sentencing judge was not convinced that this was the cause of the offence. There was evidence before the sentencing judge that the accused presented a negligible risk of re-offending. The sentencing judge, stressing the importance of protecting children from sexual abuse through means of the Internet, and stating that a clear message has to be sent by the courts that this type of conduct will be harshly dealt with, sentenced the accused to nine months’ incarceration followed by three years’ probation. A lifetime order under s. 161 of the Criminal Code, R.S.C. 1985, c. C-46 and a ten-year sex offender registration order were also imposed. The accused appealed.
Held, the appeal should be allowed.
In most circumstances involving the offence of child luring, the sentencing goals of denunciation and deterrence will require a sentence of institutional incarceration. It will only be in the rarest of cases that a conditional sentence will be appropriate. This was one of those rare cases. The sentencing judge did not consider significant mitigating factors, including the uncontradicted evidence that the risk of the accused repeating this type of behaviour, or other socially unacceptable behaviour, was negligible. The sentencing judge did not refer to the expert evidence that the accused had taken responsibility for his actions, had been receiving therapy and was making significant progress. Also not referred to by the sentencing judge was the evidence indicating that the proceedings had had a devastating impact on the accused and his family. The accused was assaulted in jail following his arrest and, according to fresh evidence admitted on appeal, was again assaulted in prison following the sentencing hear ing. He had developed severe hypertension and tachycardia, and was in a very fragile mental and physical state. The fresh evidence indicated that incarcerating the accused would have a detrimental impact not only on him, but on his three young children. The sentence [page642] was varied to 18 months’ conditional, with house arrest, followed by three years’ probation. The s. 161 order was reduced to ten years.
R. v. Jepsen,  O.J. No. 5521 (S.C.J.), consd Other cases referred to R. v. Cohen,  O.J. No. 1606, 144 O.A.C. 340, 49 W.C.B. (2d) 555 (C.A.); R. v. M. (C.A.),  1 S.C.R. 500,  S.C.J. No. 28, 194 N.R. 321, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269; R. v. Proulx,  1 S.C.R. 61,  S.C.J. No. 6, 142 Man. R. (2d) 161, 182 D.L.R. (4th) 1, 249 N.R. 201, 212 W.A.C. 161,  4 W.W.R. 21, 140 C.C.C. (3d) 449, 49 M.V.R. (3d) 163, 30 C.R. (5th) 1 (sub nom. R. v. P. (J.K.D.)) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 152 [as am.], 161 [as am.], 172.1 [as am.], 490.012 [as am.], 687(1) Sex Offender Information Registration Act, S.C. 2004, c. 10
APPEAL by the accused from the sentence imposed by Kelly J.,  O.J. No. 2924 (C.J.) for child luring.
Murray H. Shore, for appellant. Karey Katzsch, for respondent.
The judgment of the court was delivered by McMURTRY C.J.O.:–
 The appellant pleaded guilty before Kelly J. to one count of child luring, contrary to s. 172.1 of the Criminal Code, R.S.C. 1985, c. C-46. He was sentenced to a term of imprisonment of nine months, followed by three years’ probation. The sentencing judge imposed a lifetime order under s. 161 of the Criminal Code, which prohibits the appellant from attending near public places where minors can be expected to be present, from obtaining employment which may involve him being in a position of trust or authority towards minors, and from using a computer system for the purpose of communicating with a person under the age of 14 years. The sentencing judge also imposed an order under s. 490.012 of the Code requiring him to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for ten years.
 The appellant seeks leave and, if leave is granted, appeals the sentence of imprisonment and submits that he should receive a conditional sentence of equal or greater length. He also seeks to vary the duration and terms of the s. 161 order and the probation order. For the reasons that follow, I would allow the appeal. [page643]
 On June 25, 2003, the appellant was arrested and charged with the offence of luring a child contrary to s. 172.1 of the Criminal Code. This provision provides in part:
172.1(1) Every person commits an offence who, by means of a computer system within the meaning of subsection 342.1(2), communicates with
. . . . .
(c) a person who is, or who the accused believes is, under the age of fourteen years, for the purpose of facilitating the commission of an offence under section 151 or 152 . . . with respect to that person.
(2) Every person who commits an offence under subsection
(1) is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction.
 On April 28, 2005, the appellant pleaded guilty to the offence. He admitted that from June 6, 2003 to June 25, 2003, he did, by means of a computer system, communicate with a person whom he believed was under 14 years of age, for the purpose of facilitating the commission of an offence of invitation to sexual touching. The appellant was not arraigned on a charge of invitation to sexual touching contrary to s. 152 of the Code. However, it was agreed that the facts with respect to that charge were to be considered by the sentencing judge when sentencing the appellant on the charge of luring under s. 172.1.
 The sentencing hearing proceeded on the basis of an agreed statement of facts. Between June 6 and 25, 2003, the 35- year-old appellant, using a fictitious name, had six live chats on the Internet and sent eight e-mails to a person whom he believed was a 13-year-old girl named “Jessie”, but who turned out to be an undercover police officer.
 In the chat sessions, the appellant engaged in sexually explicit conversations with “Jessie”, including asking what kinds of sexual acts she would perform on him and repeatedly suggesting that they should find a private place to meet. During one chat session, he stated that he was 34 years old and acknowledged that he could get into trouble due to her young age. In another session, he suggested that she penetrate herself digitally that night in preparation for their meeting. On June 20, the appellant sent “Jessie” a picture of himself and a picture of a penis.
 In a chat session on June 24, the appellant made arrangements to meet “Jessie” the next day at a specific location. He told her that he would perform various sexual acts on her, including [page644] cunnilingus. He told her not to wear a bra or underpants. He told her that he expected her to perform sexual acts on him, including fellatio and masturbating him. He stated that when they became comfortable, he could rent a hotel room.
 On June 25, the appellant drove 22 kilometres from his place of work to the specified meeting spot. He arrived at the location at the stated time, left his vehicle and was on his way over to a female seated in the pre-arranged spot when police arrested him.
 Police examined the appellant’s home and work computers. No child pornography was found, nor were any other instances of similar Internet chats found on the appellant’s computers.
 At the time of the offence, the appellant had no prior criminal record. He and his wife had two young children and were expecting their third child. He was employed at an automotive parts manufacturing plant as a mechanical engineer and production manager.
 Crown counsel sought a term of imprisonment of one year followed by a three-year term of probation. She also requested a prohibition order pursuant to s. 161(1)(a), (b) and (c) for life, or alternatively for at least ten years, a forfeiture order of the appellant’s computer and hard drive and an order to comply with the Sex Offender Information Registration Act for ten years.
 Defence counsel sought a conditional sentence of imprisonment. In support of this position, counsel presented numerous character references, including from the appellant’s pastor, members of the Bar, his doctor, family, friends, community representatives and co-workers, attesting to his previous good character and their continued support of the appellant. The defence also presented evidence that the appellant had accumulated over 560 hours of community service since being charged.
 Defence counsel tendered four psychiatric and psychological assessments of the appellant, which were performed following the offence. These reports indicated that the appellant’s conduct occurred while he was suffering a major depressive illness and was under significant stress at work. According to the uncontradicted psychiatric and psychological evidence, the appellant does not have any sexually deviant proclivities, he has taken responsibility for his actions, he has sought and benefitted from psychological therapy and counselling following his arrest, and he presents negligible risk of re-offending.
 The sentencing judge determined that the conviction required a sentence of imprisonment. He then considered whether [page645] a conditional sentence was appropriate in light of the criteria described by the Supreme Court of Canada in R. v. Proulx,  1 S.C.R. 61,  S.C.J. No. 6, 140 C.C.C. (3d) 449.
 The sentencing judge listed the mitigating factors in this case, including that the appellant has no criminal record, he has never done this type of thing before, and he is a good father, husband, worker and provider who has the support of his family and many others. He briefly referred to the expert evidence presented by the defence and commented:
The psychological and psychiatric reports are from doctors, of course, who saw Mr. Folino post-arrest. And at that time he was understandably depressed and anxious at that point.
In short, I accept Mr. Folino was under stress and possibly depressed, but I am not convinced that this was the cause of his luring of this 13-year-old child. It may be a mitigating factor, but that is all that can be said.
 The sentencing judge next listed the aggravating factors: the communications took place over an extended period of time involving several instances; the appellant thought the person was 13 years old; he was the verbal aggressor throughout; the conversations were sexually explicit and “very vile”; he carefully planned the meeting with the child, including telling her what to wear so as to facilitate sexual activity; the appellant drove 22 kilometres to the meeting place; the appellant suggested that she digitally penetrate herself so that it would not hurt so much the first time; the appellant described in lurid detail what sexual activities he hoped to do to her and what he hoped she would do to him; and he fully intended to carry out these activities with a 13-year- old girl.
 The sentencing judge referred to the decision of Ratushny J. in R. v. Jepson,  O.J. No. 5521 (S.C.J.). In that case, the 44-year-old accused had sexually explicit computer communications over a three-week period with a girl who he believed was 13, but who was actually an undercover police officer. They arranged to meet at a McDonald’s restaurant where the accused was arrested. Police searched his computer and found six images of child pornography, some being of very young girls between four and six years of age. The accused had no criminal record. He was diagnosed by a psychiatrist as having mild pedophilia and was assessed as being a low risk for future sexual offences. He had undertaken treatment at a sexual behaviour clinic since his arrest. He pleaded guilty to an offence under s. 172.1(2) of the Code. Ratushny J. concluded that in the circumstances of this offence, denunciation and general deterrence required institutional incarceration. He was sentenced to a term of 12 months, plu s three years’ probation. [page646]
 The sentencing judge viewed the facts of Jepson as close “to being identical to this case”, except for the six photos of child pornography on the accused’s computer in Jepson.
 The sentencing judge went on to stress the importance of protecting children from sexual abuse through means of the Internet, which “allows predators to surreptitiously and easily communicate with youths and negatively influence them and prey upon them, undetected by parents or other responsible adults”. According to the sentencing judge, “a clear message has to be sent out by courts that the type of conduct as seen in this court will be harshly dealt with”.
 He concluded that a conditional sentence was not appropriate: Given the facts and circumstances surrounding the commission of this offence, the aggravating and mitigating factors that I have mentioned, bearing in mind the principles laid down in Proulx and other cases to which I have referred, I conclude that a conditional sentence would be inconsistent with the principles set out in ss. 718 to 718.2, since I do not believe that a conditional sentence could adequately express denunciation for this offence or adequately deter the accused or others from committing this particular offence.
Position of the Parties on the Appeal
 The appellant contends that the sentencing judge erred in principle by failing to impose a conditional sentence of imprisonment. He acknowledges that an appellate court should show deference to the sentencing discretion vested in trial judges. However, he contends that the sentencing judge erred in principle by misapprehending or failing to give sufficient weight to the uncontradicted expert psychiatric and psychological evidence before him. He further submits that the sentencing judge erred in principle by concluding that the sentencing principles of general deterrence and denunciation of the offence of child luring could only be satisfied by way of actual imprisonment.
 The Crown responds that the sentencing judge committed no error in principle by concluding that the paramount considerations in a case involving child luring over the Internet are denunciation and deterrence and that a period of actual incarceration was called for given the aggravating features of this case.
 The Supreme Court of Canada in R. v. M. (C.A.),  1 S.C.R. 500,  S.C.J. No. 28, 105 C.C.C. (3d) 327, at p. 565 S.C.R., p. 374 C.C.C. states that appellate courts must not lightly interfere with the discretion of trial judges in fixing sentences: [page647]
Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.
 In my view, in the circumstances of this particular offender, the sentencing judge overemphasized the punitive sentencing objectives of denunciation and deterrence and failed to consider the restorative objectives of rehabilitation, reparations and promotion of a sense of responsibility. The sentence of nine months’ incarceration thus reflects an error in principle justifying the intervention of this court.
 Having come to this conclusion, I wish to first make it clear that I fully agree with the sentencing judge that the offence of child luring must be dealt with seriously by the courts. The social policy underlying the enactment of this offence is clear. Many Canadian families have home computers with Internet access. Children are frequent users of the Internet. Children, as vulnerable members of our society, must be safeguarded against predators who abuse the Internet to lure children into situations where they can be sexually exploited and abused. In most circumstances involving the offence of child luring, the sentencing goals of denunciation and deterrence will require a sentence of institutional incarceration. Indeed, it will only be in the rarest of cases that a conditional sentence will be appropriate in a case involving this offence. In my view, however, this is one of those rare cases.
 In considering the mitigating factors of the case before him, the sentencing judge recognized that the appellant’s record was unblemished prior to this incident, and that he was a good husband and father who provided for his family and has the support of many members of his community.
 However, the sentencing judge did not consider other significant mitigating factors, including that the uncontradicted expert evidence presented at the hearing was that the risk of the appellant repeating this type of behaviour, or other socially unacceptable behaviour, is negligible. The sentencing judge noted that according to phallometric testing, the appellant does not suffer from pedophilia or hebephilia. But he failed to distinguish the facts of Jepson, supra, on that basis or take into account other relevant evidence, and proceeded to rely on that case in fashioning the sentence. We agree that on the facts as found by the trial judge in Jepson, supra, the sentence imposed in that case was appropriate. That sentence was not appealed.
 The sentencing judge did not refer to the expert evidence indicating that the appellant has taken responsibility for his actions and has been receiving ongoing psychological therapy as [page648] well as marital and family counselling. According to that evidence, the appellant has shown significant progress through this treatment in terms of learning how to better cope with stress.
 Also not referred to by the sentencing judge is the evidence indicating that these proceedings have had a devastating impact on the appellant and his family. The appellant lost his well-paid job as a result of these proceedings, which created financial hardship for his family. The appellant was assaulted while in jail following his arrest and is extremely fearful of returning to prison. A psychiatric assessment of the appellant performed by Dr. R. Sirman indicates that any period of incarceration might “open him up to the risk of fatal dissociation culminating in possible suicide”.
 The sentencing judge of course did not have the benefit of the fresh evidence filed on this appeal, which this court is entitled to consider pursuant to s. 687(1) of the Criminal Code. According to an assessment report dated August 8, 2005 by Dr. Sirman, the appellant was again assaulted in prison following the sentencing hearing and has developed “moderate to severe hypertension and tachycardia”. The appellant also suffered an acute angina attack during a recent visit to Dr. Sirman’s office. Dr. Sirman repeats the opinion that was in evidence before the sentencing judge that any period of incarceration would have absolutely no rehabilitative value and that the appellant poses no risk of repeating this type of behaviour or any other socially unacceptable behaviour. According to Dr. Sirman: “[A]ny period of incarceration would be extremely harmful to Mr. Folino’s mental state.”
 The appellant also files as fresh evidence the report of a family counsellor, Gail Millar, dated July 12, 2005, indicating that the appellant and his wife have participated in 22 marital and family counselling sessions with her since July 2003. She states that it is in his three children’s best interests to have the continued involvement of their father. According to Ms. Millar, “[t]he long-term effect of Mr. Folino not attending his children’s functions would have a detrimental effect on both their self-esteem and natural development over time, thereby creating emotional hardship for these children”.
 In summary, the fresh evidence reveals that the appellant is currently in a very fragile mental and physical state as a result of these proceedings and that incarcerating the appellant will have a detrimental impact not only on him, but on his three young children.
 Considering the mitigating circumstances of this offender, I am of the view that denunciation and deterrence in this particular case can be achieved by imposing a significantly longer custodial term than the nine-month term imposed by the sentencing [page649] judge and by imposing punitive conditions of house arrest. To this end, I would impose a conditional sentence of 18 months. The terms of the conditional sentence should reflect the strict terms imposed by this court in R. v. Cohen,  O.J. No. 1606, 144 O.A.C. 340 (C.A.):
(a) keep the peace and be of good behaviour;
(b) appear before the court when required to do so by the court;
(c) report to a supervisor within a week after the making of this order, and thereafter when required by the supervisor and in the manner directed by the supervisor;
(d) remain within the Province of Ontario unless written permission to go outside the province is obtained from the court or the supervisor;
(e) notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation;
(f) remain in his house at all times except as required for employment, community service, medical treatment or dental care, religious observance, or attendance at children’s school events;
(g) refrain from using the Internet except as required by his employment;
(h) perform one hundred hours of community service work, commencing within thirty days of this judgment, and to be completed within ten months at a rate of no less than ten hours per month;
(i) not associate or hold any communication directly or indirectly with any person under the age of eighteen years except his own children, unless in the company of at least one other adult; and
(j) make reasonable efforts to find and maintain full-time employment.
 In light of the expert evidence, which speaks to the minimal risk of recidivism by the appellant and his importance to the lives of his children, I would vary the terms of the order under s. 161 to permit the appellant to attend a public park or public swimming area where persons under the age of 14 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre with his own children, provided he is accompanied by an adult who is 21 years of age or older. I would reduce the duration of this order from life to ten years.
 The Crown does not object to the appellant’s request to vary the terms of para. (p) of the probation order to read as follows: . . . not to associate, contact or hold any communication directly or indirectly with anyone under the age of 18 unless in the presence of another adult who is 21 years of age or older, save and except his own children with whom he can associate, and save and except as permitted by the probation officer from time to time. [page650]
 I would not otherwise interfere with the terms of the probation order. Nor would I interfere with the order under s. 490.012 of the Code.
 Leave to appeal the sentence is granted and the appeal from sentence is allowed in accordance with these reasons.