Man who sent woman’s in­ti­mate photo to her son has prison term up­held

The Hamilton Spectator - - LOCAL - COLIN PERKEL

TORONTO — A man who se­cretly down­loaded in­ti­mate pic­tures from a woman’s cell­phone, threat­ened to pass them around, and sent one of the images to her son had his three-year prison term up­held on Mon­day even though the pros­e­cu­tion and de­fence had pro­posed a much lower sen­tence.

In dis­miss­ing a sen­tenc­ing chal­lenge by Daniel Myles, the On­tario Court of Ap­peal sided with a lower court judge in Hamil­ton who re­jected the joint pun­ish­ment sub­mis­sion last year.

“Three years was within the range that this court has iden­ti­fied for se­rial ha­rassers,” the Ap­peal Court said. “It was rea­son­able for the trial judge to em­pha­size spe­cific de­ter­rence, pub­lic de­nun­ci­a­tion and sep­a­ra­tion from so­ci­ety, and to con­clude that a pen­i­ten­tiary term was re­quired.”

Court doc­u­ments show Myles pleaded guilty be­fore Judge Ti­mothy Cul­ver to crim­i­nal ha­rass­ment for down­load­ing the con­tents of his vic­tim’s cell­phone onto his com­puter and threat­en­ing to send the in­ti­mate images to her friends, co-work­ers and son. Myles did fol­low through on his threats by send­ing photos of the woman’s gen­i­tals to her son, the doc­u­ments said.

Af­ter hear­ing the de­fence and pros­e­cu­tion sug­gest a sen­tence of six to nine months, Cul­ver in­formed them he thought that would be in­suf­fi­cient. He in­di­cated that three years would be a more ap­pro­pri­ate pun­ish­ment. Cul­ver then gave them time to come back and ar­gue the issue. He also gave Myles the op­por­tu­nity to with­draw his guilty plea but the ac­cused de­cided against do­ing so, court doc­u­ments show.

Pros­e­cu­tion and de­fence then sug­gested in a new joint sub­mis­sion a sen­tence of nine to 12 months. Cul­ver said no. He sen­tenced Myles last June to three years af­ter de­scrib­ing him as some­one who was “preda­tory, lacks em­pa­thy for his vic­tims, lacks in­sight into his of­fend­ing be­hav­iour,” and had failed to mend his ways de­spite nu­mer­ous runins with the law.

Myles ap­pealed, ar­gu­ing Cul­ver was legally out of line to re­ject the joint sub­mis­sion.

In up­hold­ing the sen­tence, the Ap­peal Court said Cul­ver had fol­lowed the cor­rect process by giv­ing the par­ties clear no­tice of his con­cerns about the ad­e­quacy of the pun­ish­ment they were propos­ing, invit­ing them to ar­gue the issue, and by giv­ing Myles the op­por­tu­nity to with­draw his guilty plea.

“Noth­ing more was re­quired,” the Ap­peal Court said.

The Ap­peal Court noted Myles had a long crim­i­nal record, in­clud­ing con­vic­tions for ha­rass­ment and ut­ter­ing threats. He was also known for do­mes­tic vi­o­lence and a “con­tin­u­ing pat­tern of threat­en­ing and abu­sive be­hav­iour to­ward part­ners” and peo­ple in the com­mu­nity, the Ap­peal Court said.

Given those cir­cum­stances, the Ap­peal Court found, Cul­ver was en­ti­tled to con­clude that the pro­posed pun­ish­ment was “wholly in­ad­e­quate and con­trary to the pub­lic in­ter­est,” and in­stead im­pose the three-year term.

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