R. v. L.W.H., 2011 ABQB 22

Court of Queen ’ s Bench of Alberta Citation: R. v. L.W.H., 2011 ABQB 22 Date: 20110113 Docket: 090578303Q1 Registry: Edmonton Between: Her Majesty the Queen In Right of Alberta Applicant - and - L.W.H. Accused Restriction on Publication: By Court Order, information that may identify the accused, complainant and her relatives may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application.

See the Criminal Code , s. 486.4 _______________________________________________________ Reasons for Sentence of the Honourable Madam Justice J.M. Ross Delivered Orally _______________________________________________________

L.W.H. has been found guilty by a jury of one count of sexual interference under s. 151 of the Criminal Code of Canada ( CCC ). Evidence [ 1 ] L.W.H. is the step-grandfather of the complainant, M.J. In January 2009 M.J. and her younger brothers and her father were living in Edmonton with her paternal grandmother and with L.W.H., as well as their children, R.H. and L.H. M.J. was 7 years old at the time. One weekend morning in the second half of January 2009, M.J.’s father was at work, and the paternal grandmother was out of the house, driving R.H. to her weekend job. L.H. was sleeping.

M.J. and her brothers were thus left in the care of their step-grandfather or Poppa, as they called him. M.J.’s brothers were watching TV in the living room on the main floor of the house. M.J. was with L.W.H. in the basement, playing a video game. She was sitting on a chair and wearing her pyjamas. L.W.H. picked her up from the chair and laid her down on her back on the couch, then he took her pyjama bottom off and as she described it, he “licked” her private part with his tongue. She identified her private part as the area of her vagina.

She said he did this for 2 or 5 minutes and then put her pants on and told her not to tell anyone because he could go to jail. Personal circumstances [ 2 ] L.W.H. is 53 years old. He has an unrelated criminal record. This includes a motor vehicle offence, a break, enter and theft offence and a threatening phone calls offence, all in 1983 and 1984. There is also a conviction for assault with a weapon and uttering threats in 1996, and a failure to comply with a recognizance in 2001. Some details were provided at the trial regarding the 1996 offences.

L.W.H. was intoxicated and threatened to take the children away with him. When D.H. would not let him do this, he got a knife and slashed himself. He later pleaded guilty to the two offences and was sentenced to 90 days intermittent on each charge, concurrent. He blames D.H., rather than himself, for this incident, as he feels he should not have been convicted of assault since he slashed himself and no one else. He seems to be unaware of why or how he came to plead guilty. [ 3 ] The Crown has argued that this offence, as it is domestic in nature, is related. I reject that submission.

The offence was not sexual in nature and occurred when L.W.H. was apparently extremely intoxicated. There is no suggestion that alcohol played any role in the offence before me today. I view the circumstances and nature of the two offences as unrelated. [ 4 ] There was evidence at trial that L.W.H. has suffered from depression or a similar psychological disorder for some time and has in fact attempted suicide on more than one occasion.

D.H. testified that he attempted suicide after the offence date, but L.W.H. testified that this was an accidental overdose on his part. [ 5 ] Despite any psychological problems, and at least occasional problems regarding alcohol abuse, L.W.H. has been consistently employed in the siding and soffit trade. He was supporting his family at the time of the offence and continues to provide support, at least to his son, L.H., who is an adult but apparently still requires assistance to support himself. L.H. is living with L.W.H., and is very troubled by these court proceedings.

L.W.H. says that he is more worried about L.H. than about himself. Sentencing Principles [ 6 ] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. [ 7 ] We must also: - denounce unlawful conduct

- deter the offender from committing the crime again - send a message to the public that behaviour such as that we have witnessed in this case is not to be tolerated. - protect the public by separating the offender from the public - assist the convict in his rehabilitation - provide reparation to the victim or the community where harm has been done - promote responsibility in the offender and encourage the offender to acknowledge harm done. [8] While all of these principles apply, the Court of Appeal has held that in cases of child sexual abuse, the principles ofdenunciation and deterrence are paramount. In R. v.

WBS (1992), (AB CA), 73 C.C.C. 3d 530 1992 (Alta.C.A.), thecase establishing the starting point sentence that I will address, the Court stated as follows: Sentencing for a major sexual assault on a child will be based mainly on the principles of general deterrence (the hope that the sentencewill deter other persons from engaging in such acts) and denunciation (the sentence expresses the community’s condemnation of suchconduct and society’s need to reinforce the simple principle that it will not tolerate abuse of power and breach of trust by any person vis-à-vis a child).

On a lesser scale the sentence to be imposed will express the court’s hope that the sentence will teach the accused himselfnot to engage in similar unusual acts again, a hope that will often be slender because sexual abuse of children may be the outwardexpression of an accused’s severe emotional difficulties.

Finally, the court may by its sentence provide an opportunity to rehabilitate theaccused, but this possibility will often not be regarded as significant . . . [9] In this case L.W.H. denies the offence, I have been provided with no expert evidence that any emotional difficulties he mayhave led to the offence, and I have no evidence suggesting that he is a good candidate for rehabilitation. In view of the directions of theCourt of Appeal and the lack of evidence relating to propensity to re-offend or potential for rehabilitation, the sentencing purposes ofgeneral deterrence and denunciation are clearly paramount.

Crown submission [10] The Crown submits that this was a major sexual assault on a child by a person who stood in a position of trust or authority,and that the four year starting point established in R. v. WBS applies. The Crown notes that the starting point applies to a single majorsexual assault, and that repeated assaults would constitute an aggravating factor justifying a higher sentence. The description of thecategory of “major sexual assault” was taken from R. v. Sandercock (1985) 1985 ABCA 218 , 22 C.C.C. 3d 79 (Alta.C.A.).

Itwas described as including “not only what we suspect will continue to be called rape, but obviously also many cases of attempted rape,fellatio, cunnilingus and buggery where foreseeable major harm . . . is present.” [11] The Crown argues that there are no mitigating factors and that L.W.H.’s record is potentially an aggravating factor, with theresult that the sentence should be 4 or 4 ½ years.

The Crown refers to this as a relatively harsh punishment, but argues that the Court ofAppeal has determined that this is the appropriate response for those convicted of significantly intrusive sexual misconduct in relation toa child to whom they owe a duty of care. The Court of Appeal’s concern expressed in WBS is reflected in subsequent amendments to theCCC, which have indicated that both abuse of a child and abuse of a position of trust or authority are aggravating circumstances to betaken into account in imposition of a sentence (ss. 718.2(a)(ii.1) and (iii).

These aggravating circumstances are taken into account insetting the starting point for this offence at 4 years. The Crown refers to R. v. Arcand 2010 ABCA 363 for the proposition that this courtshould regard itself as bound by the established starting point unless there is a material reason to deviate from it and argues that there isno reason to deviate in this case other than a possible increase due to the record.

Defence submission [12] The defence argues that the circumstances of the offence are mitigating, in that many cases of sexual interference or sexualassault on a child involve multiple incidents and are often premeditated. Here there was a single isolated incident with no evidence ofpremeditation. While the defence concedes that the offence comes within the definition of a major sexual assault as provided in the case

law, it is submitted that this case is less serious than other sexual assaults within that category, because it was of short duration and ended without the intervention of others. [ 13 ] The defence also argues that L.W.H.’s character, particularly in terms of his work record, his financial support of his family and his ongoing responsibility with regard to L.H., are mitigating circumstances. [ 14 ] The defence argues that 2 years or less than 2 years is an appropriate sentence in this case, relying on the following authorities: R. v.

MGF 2010 ABCA 102 - The respondent pled guilty to two counts of sexual interference involving his 10 year old stepdaughter. He rubbed her vagina with his hand, both over and under her clothing. He was sentenced to 90 days intermittent, which was increased to 18 months on appeal. The Court of Appeal noted that the respondent “stood in the position of father to this child, having been her stepfather for 6 of her 10 years of life. The assaults both took place while the respondent was charged with her care, in the absence of her mother and in her own home, twice in one day.

The respondent also admitted to previously sexually assaulting the victim; in other words this was not a single random assault, but were two in a series of ongoing abuse. The respondent did not stop the sexual abuse on his own nor did he immediately disclose the conduct.” R. v. Pretty 1998 ABCA 104 . The respondent pled guilty to one count of sexual interference and one count of invitation to sexual touching. He was sentenced to 1 year, which was increased to 2 years less a day and 2 years probation on appeal.

The Court of Appeal noted the following aggravating factors: “A mature offender . . . with a prior criminal record, unrelated but not insignificant. Two victims of a very young age . . . 4 and 7. The predatory dimension to these offences as a result of the perpetrator’s insinuating himself into the lives of the mothers of these victims. . .The degree of opportunistic planning which included taking the two victims out on overnight sleepovers . . . The breach of trust . . . The nature of the acts themselves, which included the perpetrator inducing a 4 year old child to perform fellatio on him.

The number of incidents of touch of the penis of each victim. The bribe of one of the victims.” R. v. GWH 2004 ABPC 241 . In this decision, Judge Allen did an extensive review of case law dealing with sentencing for child sexual assaults and starting points. The offender was “in a position of trust and control of the child. .. He digitally penetrated the child with his finger and molested her while she was in the bath including having her touch his penis. .. His action were motivated by his own need for sexual gratification.” the offence was “very serious”.

The offender entered an early guilty plea and expressed remorse. He was sentenced to 18 months plus 3 years probation. [ 15 ] I have also noted these additional Court of Appeal decisions: R v SPCV 2008 ABCA 280 . The respondent pled guilty to once count of sexual assault and one of invitation to sexual touching of a 7 year old girl. The respondent was in a platonic relationship with the victim’s mother and spent the night in her home. He digitally penetrated her vagina which was red and tender. He asked her to touch his penis, but she refused.

He was sentenced to 9 months imprisonment, which was increased to 18 months on appeal. The Court of Appeal held it was unnecessary to characterize the offence as “major” or “serious”. R. v. Cor Van Den Boogaard , 2006 ABCA 183 . The respondent was convicted following a jury trial of two counts of sexual interference regarding 11 and 13 year old girls. He tied them naked to his bed and, while they were tied up, caressed their breasts and sprayed water on their bodies. The Court of Appeal held that these were not major sexual offences and therefore the starting point must be less than 4 years.

There were serious aggravating factors including that the respondent was in a position of trust toward the girls that he was babysitting, their youth, there were multiple victims, they were bound when assaulted and therefore unable to resist, and the impact on the victims as described in their victim impact statements. The 6 month sentence following trial was increased on appeal to 2 years less a day. Aggravating factors

[ 16 ] Accepting, as conceded by the defence, that this is a major sexual assault and the starting point sentence of 4 years applies, there are no extreme aggravating factors relating to the offence of the type described in WBS (such as repeated assaults, protracted confinement or kidnapping, gratuitous violence and injuries, or threats to kill or hurt the child if he or she tells anyone what has happened). [ 17 ] While M.J. was not threatened with harm to herself if she told anyone, she was told that she should not tell anyone or L.W.H. would go to jail.

This is a type of threat that in my view is also aggravating, although not as seriously aggravating as threats to kill or hurt the child. This type of threat places a burden on the child and may cause her to feel guilty if she discloses the offence. The complainant appears to have felt such a burden in this case. When asked by an interviewer whether she was scared of her Poppa, she replied that she was not, she loved her Poppa, but she had to tell what he did because it was not a good thing to do. She also told the interviewer that he was no longer at home, and wondered whether he was in jail.

She said her grandmother missed her Poppa. [ 18 ] L.W.H. was in charge of M.J. at the time, so there was an element of opportunism, but there was no evidence of planning or predatory behaviour to create the situation. [ 19 ] No victim impact statements were filed in this case, and there was no evidence of specific harm to the complainant. Her aunt testified that M.J. was crying when she disclosed the offence, but, by the time she was interviewed some days later, she did not appear upset and she said only that the assault felt “weird”.

She was also feeling some conflict about having disclosed the offence, as I have already noted. Of course, she is still very young and one cannot know whether or to what extent she will suffer from this incident as she matures. While there is harm implicit in the nature of this offence, there is no evidence of specific harm that would be an aggravating factor. [ 20 ] As to the prior record, because it is not related, and parts of it are quite dated, I do not find it to be aggravating.

To the extent that it might have had some minimal effect as an aggravating factor, this is offset by positive evidence regarding L.W.H.’s character, in terms of his work record and his family responsibilities. In total I regard the evidence relating to the offender’s character as neutral, neither aggravating nor mitigating.

Mitigating factors [ 21 ] There are no mitigating factors relating to the offender. [ 22 ] When it comes to the offence, the Crown argues that, because this is conceded to be a major sexual assault on a child by a person in a position of trust against a child, and because the starting point applies to a single assault, there can be no mitigating circumstances relating to the offence, only a lack of aggravating circumstances. In my view, there is a problem with this approach to

interpretation of WBS . It would mean that, once an offence is found to come within the category of major sexual assault, the 4 year starting point could be reduced only by mitigating factors relating to the offender, such as a guilty plea, remorse or rehabilitative potential. Following conviction at trial of a denying offender, as in this case, 4 years would become a virtual minimum sentence. Arcand was clear that starting points are not intended to operate as minimum sentences: para. 131. [ 23 ] Arcand indicates that starting point sentencing involves 3 steps.

First, the Court of Appeal clearly describes the category created. Second, the Court of Appeal sets set a starting point for the category. Third, the sentencing judge refines the sentence to the specific facts “of the individual case and offender” (paras. 104, 105). [ 24 ] The category of “major sexual offences” in WBS is just that, a category. While the range of conduct comprised within the category is not as broad as that included in the offence of sexual assault, the case law demonstrates that there is still a broad range of conduct that constitutes a major sexual assault.

It follows that not every major sexual offence is as serious as every other. The sentencing judge applying the starting point must consider specific facts of the offence as well as the offender, and these specific facts can justify either a reduction or an increase in the sentence from the starting point.

[ 25 ] The Crown’s approach to

interpretation of WBS would create potentially arbitrary differences between offences that come within the definition of major sexual assault because of the specific type of contact or conduct - in this case cunnilingus - and other types of contact or conduct that are not included in the definition but may still be very serious forms of sexual assault potentially causing similar or even worse harm to children.

The cases earlier cited, involving such actions as assaulting children who are confined, or digital penetration or invitations to perform fellatio, resulted in sentences confirmed by the Court of Appeal in the range of 18 months to 2 years. Most of those cases followed guilty pleas, which is a significant mitigating factor not present in this case. However, in R. v. Cor Van Den Boogaard there was no guilty plea, but a conviction following a jury trial.

Further, many of the cases included significant aggravating factors that are not present in this case, such as multiple assaults or complainants. [ 26 ] Arcand indicates that the primary principle of sentencing is proportionality, that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1. The parity principle in s. 718.2(b), that a sentence should be similar to those imposed on similar offenders for similar offences, is described in Arcand as an indispensable element of the proportionality principle (para. 61).

I would add that the requirement for parity applies not only as between offences within the category of major sexual assaults, but also between offences in the category and similar offences outside the category. [ 27 ] In my view, the offence in this case is similar to offences which have resulted in sentences in the 18 months to 2 year range, with the exception that it involved cunnilingus, one of the types of sexual contact specifically included in the definition of a major sexual assault.

That puts this case in the 4 year starting point category, but does that difference, when looked at in view of the other circumstances of the offence, justify a higher sentence? [ 28 ] WBS provides explanations for the category created in that case and the rationale for the starting point assigned to the category. In part, the category was created to recognize the distinctions between child sexual assault and other forms of major sexual assault, to which the 3 year starting point in R. v. Sandercock applies.

A higher starting point is justified because of the special type of harm that may be suffered by children, including potentially life long emotional trauma which may interfere with loving relationships when the child becomes an adult or have other harmful psychological consequences. The Court of Appeal cited research regarding the impact of child sexual abuse, which referred to both initial and long-term psychological effects, and which associated this harm with certain circumstances.

For example, the research indicated that victims may suffer greater trauma when they are closely related to the offender and that “molestation involving more intimate contact is more traumatic than less intimate contact, but it is less clear that intercourse and penetration are demonstrably more serious than single manual contact.” [ 29 ] In addition to harm to the child, the higher starting point reflects society’s condemnation of the “outrageous” breach of trust involved where a sexual assault is perpetrated by person in a family relationship with a child who has assumed the duty to protect the child and is the repository of trust placed in him by the child. [ 30 ] I conclude that the category of major sexual assault, including the forms of particularly intimate sexual contact referred to in the category, and the starting point applied to that category, were intended to address both the higher potential for harm seen to be associated with more intimate contact, and society’s condemnation of such conduct as a breach of trust.

Thus the type of sexual contact involved in this case does distinguish it from the cases referred to by the defence where sentences of 18 months to 2 years were imposed. But the type of sexual contact is not the only important factor in assessing the seriousness of the offence. I accept the defence submissions that the brief and isolated nature of the offence, and the fact that it was not premeditated and that it ended quickly without intervention of others, mean that this was not at the most serious end of the category of major sexual offences.

The lack of serious aggravating factors relating to the offence, and the lack of evidence of specific harm to the complainant, also contribute to my conclusion that many or most offences in the category of major sexual assaults do involve graver circumstances. I note that even Crown counsel, who advocated a sentence of at least 4 years, did describe such a sentence as “relatively harsh” in this case. While the particularly intimate form of sexual contact justifies an increased sentence as compared with the cases referred to by the defence, it does not in my view justify a doubling of the sentence.

I conclude that the nature of the offence does justify some reduction from the 4 year starting point. Conclusion [ 31 ] Having considered all of these factors, I have concluded that a fair and fit sentence is 3 years of federal incarceration.

DNA Sample This is a primary designated offence under s. 487.04 of the CCC , therefore there will be an order authorizing the taking of sample bodily substances for forensic DNA analysis in the ordinary course under S. 487.051(1) of the CCC . SOIRA This is also a designated offence under s. 490.011(1) of the CCC and therefore, on the application of the Crown, there is also an order that L.W.H. is to be entered on the Sexual Offender Information Registry for a period of 20 years, pursuant to s. 490.12 and .13 of the CCC .

Victim Surcharge In view of L.W.H.’s incarceration, the victim fine surcharge will be waived pursuant to s. 737 of the CCC . Heard on the 10th day of January, 2011. Dated at the City of Edmonton, Alberta this 13 th day of January, 2011. J.M. Ross J.C.Q.B.A. Appearances: M. Huyser-Werenga Attorney General of Alberta For the Crown J. McPike For the Accused