2013 MBCA 102, 2013 MBCA 102

IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella BETWEEN : HER MAJESTY THE QUEEN ) R. P. Rolston ) for the Appellant Respondent ) ) N. P. Steen - and - ) for the Respondent ) STUART GARRETT YOUNG ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) November 13, 2013 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or a witness(es) (see s. 486.4 of the Criminal Code ).

HAMILTON J.A. (for the Court): [ 1 ] The accused seeks leave to appeal his total sentence of eight years for numerous sexual offences which involved three teenage boys (S., B. and W.) and were committed while he was their Scout leader. [ 2 ] The accused pled guilty to two counts of sexual assault (involving S. and B.), two counts of sexual exploitation (involving B. and W.), voyeurism (involving W.), making child pornography (involving B.), possession of child pornography and breaching an undertaking by contacting B. and S. when under court order not to do so. [ 3 ] The accused committed the offences between 2008 and 2011 under the guise of assisting the three victims with their self-confidence and self-control.

In the case of B. and S., the accused invited the victims to participate in a three-level “program.” The abuse escalated from one level to the next. For example, the abuse started with having the victim strip and watching him masturbate. It progressed to fondling of genitals and the demand that the victim exercise self-control by not having an erection. The abuse culminated in intensive sexual contact as “punishment” for “obsessive thoughts.” In this regard, he would blindfold S., tie him to the bed and place paperclips on his nipples. He then fondled him and penetrated his anus digitally.

He also fondled B., who was at times blindfolded with his hands tied behind his back. [ 4 ] The accused never fondled W., but surreptitiously took nude pictures of him and gave him full body massages. [ 5 ] After B. and S. disclosed the abuse, the police found 449 images of child pornography and several short videos on the accused’s computer. The images were of youths, aged 6 to 16, posing nude and performing fellatio, masturbation, anal sex, vaginal sex, bondage and acts of torture.

These were also pictures that the accused took of B. naked and blindfolded. [ 6 ] The abuse occurred at least weekly over about two years for each victim and was an egregious breach of trust for the three victims, as well as society as a whole. [ 7 ] The harm caused to the three victims is significant and has been devastating, particularly to S. and B., who suffer from anxiety and depression. [ 8 ] The accused spent 15 and one-half months in pre-sentence custody. [ 9 ] The judge found that the sexual assaults of S. and B. were major sexual assaults, as defined in the case law. [ 10 ] The accused filed a forensic risk assessment prepared by Dr.

Lawrence Ellerby, who assessed him as a moderate to high risk for sexual recidivism. While Dr. Ellerby noted that the accused was starting to have insight into his offending, he concluded that institutional sex-offender treatment will be important for the accused, and treatment will be necessary after his release.

[ 11 ] The accused had no prior criminal record.

One of the many tragedies here is that the accused himself was a victim of similar sexual abuse at the hands of some of his Scout leaders, starting at the age of 12. [ 12 ] At the sentencing, the Crown sought eight years in total for the offences, based on the following submission: four years for the sexual assault of S., four years consecutive for the sexual assault and sexual exploitation of B., one year consecutive for the making of child pornography, one year consecutive for the sexual assault and voyeurism with respect to W. and one year consecutive for possess child pornography.

The Crown then argued that the total of 11 years be reduced by three years to address the principle of totality. [ 13 ] The accused sought a total sentence of four to five years. [ 14 ] The judge described the offences as “reprehensible, degrading and disgusting and, … abhorrent.” He concluded that the offences called for an emphasis on denunciation and deterrence. [ 15 ] He stated that “the sentence advocated by the Crown is appropriate” and accepted that the sentence of eight years globally is fit and appropriate as it balances the aggravating and mitigating factors and takes into account totality.

He indicated that “I won’t go through the analysis that [the Crown] made.” [ 16 ] He then imposed the following sentences to take into account “totality and all the appropriate sentencing principles” : - For the sexual exploitation of B. – three years by way of time in custody of six months and 30 months in penitentiary; - for the sexual assault of B. – 30 months concurrent; - for the sexual assault of S. – time in custody of six months consecutive to the time in custody with regard to B., and 30 months going forward, also consecutive; - for the sexual assault, sexual exploitation, and invitation to touch involving W. – six months consecutive; - for the voyeurism involving W. – six months concurrent; - for the breach of undertaking – six months, but not consecutive time; - for possession of child pornography – time in custody of three and one-half months consecutive to the time in custody already allocated, plus two and one-half months consecutive; and - for making pornography – the mandatory minimum, one year, consecutive. [ 17 ] The accused asserts that the judge erred in law by determining the sentence globally and then apportioning the sentence relating to each offence, contrary to this court’s decision in R. v.

Wozny (C.P.) , 2010 MBCA 115 , 262 Man.R. (2d) 75 . We disagree. The judge adopted the approach of the Crown, which used the methodology set out in Wozny , and other decisions of this court, when consecutive sentences are appropriate. He then imposed sentences for each offence, with pre-sentence credit apportioned among some of them. We agree with the Crown that the allocation of each sentence to each offence, before and after adjustments for totality, is ascertainable from the reasons and the record. See R. v.

Traverse (L.) et al. , 2008 MBCA 110 , 231 Man.R. (2d) 123 . [ 18 ] The accused also asserts that the judge failed to appropriately factor in mitigating circumstances. Again we disagree. The judge accepted that the accused’s offending behaviour is rooted in his own victimization. He noted the accused’s lack of prior criminal record and his “unequivocal remorse,” his fragile mental state as evidenced by his two suicide attempts, his efforts to seek treatment in jail and his cooperation with Dr. Ellerby.

He stated that, in many respects, the accused was a “tragic figure.” However, the judge found that the accused’s background did not reduce his moral culpability for the offences that he committed over an extensive period of time and with premeditation. Deference is owed to this finding. The accused’s tragic background was a factor that the judge properly considered. We see no reversible error with respect to the weight that he gave to this factor. [ 19 ] The accused argues that the sentence imposed should have been more in keeping with that imposed in R. v.

James (G.M.) , 2013 MBCA 14 , 288 Man.R. (2d) 269 , and a number of other cases that he refers to in his factum. In James , this court held that the starting-point guideline for a major sexual assault on a young person by a person in a position of trust is four to five years’ imprisonment and that starting point may be increased or decreased depending on the aggravating and mitigating circumstances of the particular case.

In James , this court allowed the Crown’s appeal and imposed a total sentence of five years for offences against two victims, after reducing two, four-year consecutive sentences by three years for totality. Important to the court was the finding of fact of the sentencing judge that Mr. James had been rehabilitated. [ 20 ] Here, there were three victims as well as child pornography offences, which was not the case in James . That alone distinguishes this case from James . [ 21 ] We see no error in principle with respect to totality or parity and no palpable and overriding error of fact.

While the judge took into account the mitigating factors, he, rightly in our view, concluded that the overriding sentencing principles were denunciation and deterrence. The sentence was imposed in accordance with applicable principles of sentencing for offences of this nature and for when consecutive sentences are imposed. As such, it is not unfit. We would grant leave to appeal, but dismiss the appeal.

J.A. J.A. J.A.