A B.C. Supreme Court justice will decided whether to extend the sentence of a Kamloops man who sent a 13-year-old girl cash, pizza and clothing in exchange for a nude photo.
Justin Harvey McGowan, 36, pleaded guilty to using telecommunications to arrange a sexual offence against a child. In March, he was sentenced to a mandatory minimum six months in jail, which the Crown is appealing.
At a hearing in Kamloops court on Friday, prosecutor Frank Caputo argued the sentence was unfit given the severity of the crime, saying trial Judge Roy Dickey failed to adequately address the principals regarding deterrence and denunciation.
“The trial judge talked about efforts at rehabilitation, but didn’t say how does this sentence deter other people from soliciting child sex abuse imagery from 13-year-olds,” Caputo said.
The mandatory minimum sentence for internet luring in place at the time of the trial has since been struck down. Caputo feels the appropriate sentence range should be between 12 and 24 months.
Court heard McGowan met the complainant, whose identity is protected by a publication ban, last September through the online app Whisper, which allows users to post anonymously.
Despite knowing the complainant was 13, McGowan requested nude photos of her and subsequently paid for a picture with $100, pizza and clothing, which he dropped off near her home. He also invited the complainant to his house.
Defence lawyer Don Campbell said McGowan didn’t initiate the interaction and was responding to a post the complainant left on the app that said “Super bored, feeling risky, anyone want to meet up with me in Kamloops?”
“This may be an unfair characterization, given her age, but she’s controlling the flow of this,” Campbell said.
Presiding Justice Joel Groves interjected, noting the offender is an adult and should have known better.
“The adult response when you’re trolling the internet looking for a hookup, and you find out someone is 13, is ‘Call me in six years,’” Groves said.
Caputo said the offence of luring was committed as soon as McGowan made the request, noting his actions went much further.
The transaction, the image, which constitutes child pornography and, though the two don’t meet in person, the invitation to his residence are all aggravating factors, Caputo argued.
“The Crown submits the sentencing judge failed to consider the overall and deliberate nature of this offence based on what occurred and the overall moral culpability was higher than was found by the trial judge,” Caputo said.
Campbell said Judge Dickey’s decision considered all the relevant factors, weighed them appropriately and felt the Crown had not established the six month sentence was “demonstrably unfit.”
Campbell also described the sentence imposed on McGowan as having a greater impact on his client than someone who has been in and out of jail and cited as mitigating factors the fact McGowan co-operated with police, was remorseful for his actions and pleaded guilty.
Groves reserved judgment. Lawyers will return to court on July 29, at which time a date will be set for Groves’ decision on the appeal.