R. v. H.D.B., 2012 ABQB 234

Court of Queen ’ s Bench of Alberta Citation: R. v. H.D.B., 2012 ABQB 234 Date: 20120502 Docket: 100539899Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - H.D.B. Accused Restriction on Publication: By Court Order, information that may identify the person described in this judgment as M.W. may not be published, broadcast, or transmitted in any manner.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 _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice W.P. Sullivan _______________________________________________________ Introduction [ 1 ] The accused was convicted after trial of two offences:

1. That he, between the 1 st day of January, 2009, and the 31 st day of December, 2009, both dates inclusive, at or near [...], Alberta, did, for a sexual purpose, unlawfully touch, directly or indirectly, with a part of the body, to wit; his penis, a part of the body of the victim, M.W., a person under the age of fourteen years, contrary to s. 151 of the Criminal Code of Canada . 2.

That he, between the 1 st day of January, 2009, and the 31 st day of December, 2009, both dates inclusive, at or near [...], Alberta, did unlawfully commit a sexual assault upon the victim, M.W., contrary to s. 271 of the Criminal Code of Canada . [ 2 ] The victim, M.W., was the stepdaughter of the accused and was 7 years old at the time of the commission of these offences. [ 3 ] The exact number of sexual assaults on M.W. is not known; however, the evidence at trial revealed that the assaults were numerous. The nature of the sexual assaults occurred always in the same fashion. The victim’s eyes would be covered.

She was blindfolded; and the assaults always occurred in the family home. He always used the same method in the commission of the offence: he would advise M.W. that she was sucking his thumb when in fact it was his penis. He would make his penis go down her throat. He also assaulted her by touching her in the area of her buttocks with his penis and rubbing his penis against her bare buttocks.

He would advise her that in fact what she felt, both in her mouth and on her backside, during the assaults, was liquid soap. [ 4 ] The Accused, is 37 years old with a high school education and is a labour/construction floor installer by trade. He has been in prison on these charges since April 20, 2010 (2 years). He has no criminal record. Law and Analysis [ 5 ] In this case we have a mature offender, 37 years of age, with no prior criminal record, and a victim of a very young age at the time of the offence - seven years.

There was a degree of opportunistic planning by arranging and conducting the assaults while the mother was absent from the home. There was also a breach of his young stepdaughter’s trust. [ 6 ] A further aggravating fact is the nature of the act itself, which involved the performance of fellatio by the seven year old step daughter upon him. The fact that the acts of fellatio and the touching of his penis on her buttocks was repeated is also an aggravating factor. [ 7 ] Chief Justice Fraser in R. v.

P. , ABCA [1998] said this at paras. 4 and 5: 4 The fundamental sentencing principle under the Criminal Code is that a sentence must be proportionate to the gravity of the offence and the culpability of the offender: s.718.1 . The one year sentence here fails to comply with this overarching principle. That principle - proportionality - is the only sentencing principle under the Criminal Code which is mandatory, not only in terms of consideration, but more importantly result.

Thus, merely adverting to the principle will not do; compliance with it is required. 5 In addition, Parliament has decreed that sentences should be similar for those offenders similarly situated: s.718.2(b). On this basis too, this sentence is unfit. This concept, similar treatment for similar offenders, is important, reflecting as it does Parliament’s concern that offenders should be sentenced for what they have done and who they are, and not on the basis of who happens to be presiding that day. [ 8 ] The Alberta Court of Appeal case, R. v.

B.L. , 2011 ABCA 375 , is factually similar to the case at bar and is relevant to determining a fit sentence in this case. In that case, the child involved was eight or nine years old at the time and was related to the accused. As in the case at bar, there was a relationship of trust between the accused and the child. The accused had no prior criminal record and a long history of volunteer work in the community.

The sexual acts performed with similar in nature involving instances of massaging the child’s penis and other touching, and one occasion where the child’s penis was placed in the respondent’s mouth. [ 9 ] In R. v. B.L. the Alberta Court of Appeal said this:

5. The trial judge noted the starting point of four years set out in R. v. S.(W.B.), R. v. Powderface (1992), (ABCA), 127 AR 65, 73 CCC (3d) 530 (CA) for a major sexual assault of a child. He concluded that the “massaging” conviction was not amajor sexual assault, but that oral contact with the child’s penis was a major sexual assault. He also confirmed that the denunciation ofdeterrence are the primary considerations: Criminal Code, s. 718.01. He noted the general principle that the sentence must beproportionate to the gravity of the offence, and the responsibility of the offender.

After a review of a number of prior decisions, includingsome decisions of the Court of Appeal where sentences of two years or less resulted, he imposed the effective sentence of two years. 7. The legitimacy and precedential effect of starting points in sentencing has been confirmed in Arcand. The starting point for a“major sexual assault” on an adult victim is three years imprisonment: Arcand at para. 169; R. V. Law, 2007 ABCA 203, 409 AR 190; R.v. Sandercock (1985), 1985 ABCA 218 , 62 AR 382 at para. 17, 22 CCC (3d) 79 (CA).

The starting point is four years in thecase of a single major sexual assault upon a child by a person in a trust position: R. v. S.(W.B.), R. v. Powderface. [10] The cases of R. v. S.(W.B.) and R. v. Powderface have indicated that the starting point in sentencing for a major sexual assaultupon a child by a person in a position of trust is four years. Sentence [11] As noted in R v B.L. at para 17, a starting point is not a minimum sentence nor is it an ending point.

It is merely a startingpoint in the analysis. [12] In determining the appropriate sentence, it is worthy to note the comments of the Alberta Court of Appeal in R. v. Ostertag(2000), 2000 ABCA 232 , 266 A.R. 57 (C.A.) at paragraph 34: “[s]entencing does not consist of an infinite gradation of factsmatched to an infinite gradation of sanctions ...”. Rather, it is the core of the gravity of the crime that must be addressed in sentencing. [13] The Accused committed major sexual assaults upon the child, M.W., by inserting his penis in her mouth, making it go downher throat.

As her stepfather, he was in a trusted position vis-à-vis M.W. There is some difficulty knowing how often this occurred. It isclear, however, that the sexual acts he performed, rubbing his penis on her body and telling her he was using hand soap to wash her, aswell as the acts he had M.W. perform on him (the fellatio), severely breached his position of trust.

A review of the circumstances of thiscase leads me to conclude that the offences here are on the serious end of the continuum of the category of “major sexual assault”. [14] After locating the offence on the continuum of seriousness, having regard to the starting point, I must consider the mitigatingand aggravating factors present in this particular case. [15] In this case, I do not find that there are any overriding aggravating or mitigating circumstances. Regarding the offender’spreviously clean criminal record, Justice Hunt in her discussions on sentencing in R. v.

Lau, 2004 ABCA 408 at paragraph 29, stated:“The starting point cases are based on the assumption that the offender is of previous good character. While the presence of a record istreated as aggravating, the absence of one is not mitigating.” Ultimately, any aggravating and mitigating circumstances that might befound in this case amount to a neutral net result. [16] Accordingly, I find that the appropriate sentence is five years. Conclusion [17] The accused committed the offences between January and December of 2009.

This crime pre-dates the amendments to theCriminal Code restricting pre-trial credits for time spent in custody. It is relevant to my sentencing decision that s. 719(3) of the CriminalCode, in force during the relevant time frame in 2009, provided:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent incustody by the person as a result of the offence. [18] Once an offender is convicted, pre-trial custody is deemed part of the punishment. While I am not obligated by subsection(3) to give credit for pre-sentence custody, case law indicates that there must be a principled justification for refusing to do so.

Thefailure to give credit for pre-trial custody without good reason has been held to be an error in principle: see R v Rezaie (1996), (ON CA), 112 C.C.C. (3d) 97, 3 C.R. (5th) 175, 31 O.R. (3d) 713 (C.A.); R v. Mills (1999), 1999 BCCA 159 , 133C.C.C. (3d) 451, 194 W.A.C. 284 (B.C.C.A.). [19] Further, while there is no mechanical formula for crediting pre-sentence custody, a 2:1 ratio is common and has generallybeen considered appropriate: R v. Doiron (2005), 2005 NBCA 30 , 194 C.C.C. (3d) 468; 282 N.B.R. (2d) 81 (C.A.).

Thisreflects the harshness of pre-trial custody. [20] In this case, the accused served two years in pre-trial custody and is entitled to a credit of two days for every day in pre-trialcustody. Applying this formula to the five year sentence that I find appropriate on the facts of this case, the accused will be sentenced toone year in goal on each count concurrent. Heard on the 4th day of April, 2012. Dated at the City of Calgary, Alberta this 2nd day of May, 2012. W.P. Sullivan J.C.Q.B.A. Appearances: S. Stewart for the Crown J.M. Lutz for the Accused