A former Yellowknife gymnastics instructor who sent a sexually explicit image to an underage girl he once coached had his one-year mandatory minimum sentence upheld after his appeal on constitutional grounds was shot down in NWT Supreme Court.
Ricky Lee Sutherland, 50, was sentenced to a year in prison on Sept. 24.
Justice Louise Charbonneau previously dismissed Sutherland’s appeal on constitutional grounds without offering an explanation for her decision.
Her written response was made public on Nov. 21.
“While child luring can capture a broad range of conduct, any such offence necessarily carries a significant level of moral blameworthiness and constitutes a very serious and morally repugnant act that calls for a significant deterrent and denunciatory sentence,” wrote Charbonneau.
In July Sutherland’s lawyer, Stephanie Whitecloud-Brass, argued in court that the mandatory minimum one-year sentence required by law violated section 12 of the Charter or Rights and Freedoms, which states that everyone has the right not to be submitted to cruel and unusual punishment.
Sutherland, who began working a city gymnastics club in July 2016, used the popular social media app Snapchat to send several messages to the underage victim between Feb. 11 and Feb. 12, 2017, while he was in Toronto.
Sutherland’s penis was visible in at least one of the messages.
Whitecloud-Brass argued the one-year mandatory minimum sentence, which came into effect in 2015, is too severe for Sutherland. Before Charbonneau issued her ruling upholding the minimum, Whitecloud-Brass said a sentence of three to nine months would be more appropriate.
In her statement, Whitecloud-Brass said the underage victim went through an “unquestionable traumatic experience.” But Sutherland never threatened her with violence or physically assaulted her and does not pose a threat to the public, she said.
“He’s simply a man who made a mistake,” Whitecloud-Brass said.
The Crown had been seeking an 18-month sentence for Sutherland.
Pointing to Sutherland’s lack of a criminal record, his good work history, support from family and friends and the fact that he is sole provider for his family, Charbonneau wrote that “by all accounts his conduct was entirely out of character and he is remorseful for his actions.”
However she did not find sufficient justification to overturn his sentence on constitutional grounds. In her decision she pointed to similar rulings, which have upheld the mandatory minimum. She also emphasized the unique and serious nature of child luring as an offence.
“In every child luring case, irrespective of the circumstances of its commission or the circumstances or the circumstances of the offender, the internet of the offender is to use the internet to commit what amounts to (…) a virtual home invasion,” wrote Charbonneau. “Parents, other caregivers and society in general have very few tools to protect children against this.”
Sutherland began serving his sentence on September 24. He received three months and one week for time served in pre-trial custody. He had eight months and three weeks left to serve as of the end of September.