R. v. D. H., 2022 MBPC 36

CITATION: R. v. D. H., 2022 MBPC 36 IN THE PROVINCIAL COURT OF MANITOBA Brandon Centre BETWEEN: Her Majesty the Queen ) R. Lonstrup ) for the Crown -and- ) ) D. H. ) M. Davis ) for the Accused Accused ) ) ) ) Reasons for Decision ) Delivered: June 30, 2022 at ) the City of Brandon, in the ) Province of Manitoba Restriction on Publication: pursuant to s. 486.4 of the Criminal Code of Canada , any information that could identify the victim, including the name of the accused, shall not be published in any document, broadcast, or transmitted in any way. S.

Hewitt-Michta, J INTRODUCTION [ 1 ] At issue is a fit and appropriate sentence for the accused, having entered guilty pleas to incest, two counts of sexual interference, and two counts of making child pornography. The accused relentlessly sexually exploited his eldest daughter from ages three through twelve and his youngest daughter over an approximate one-year period when she was five years old. The accused created and saved still and video images of the abuse.

The imagery is repugnant. [ 2 ] For the reasons that follow, I find a total sentence of twenty-three years is proportionate to the gravity of the offences and the moral culpability of the accused. [ 3 ] By way of roadmap, this decision reviews the circumstances of the offence and offender; weighs the victim impact as well as the aggravating and mitigating factors; highlights the paramount principles of sentencing; measures the seriousness of the offences and the accused’s moral blameworthiness; briefly reviews relevant Manitoba case law; and concludes with the final sentence calculation.

CIRCUMSTANCES OF THE OFFENCES [ 4 ] In 2016, authorities suspected the accused was sexually abusing his oldest daughter. She declined to confirm the abuse because she did not want her father to get in trouble. The investigation concluded without charges and the accused returned to the family home. When the victim came across photographs depicting the abuse, she concealed them outside the residence under some wood. [ 5 ] In 2021, the victims’ mother was cleaning when she discovered the hidden photographs depicting

an act of fellatio between her eldest daughter and the accused. She estimates her daughter is ten years old in the photographs. The mother contacted police who attended and arrested the accused. [ 6 ] The oldest daughter provided a statement to police in which she confirmed sexual abuse on an almost daily basis between ages six and twelve, including fellatio and vaginal penetration by the accused’s penis. Subsequent evidence and the accused’s admission confirms the abuse in fact began when the victim was three years old.

[ 7 ] The youngest daughter provided a statement disclosing sexual abuse by the accused when she was five years old including attempted vaginal and anal penetration by the accused’s penis. She reported the accused told her he did it to her sister too. [ 8 ] Police executed a search warrant and seized electronic devices. Computer forensic analysis identified over 1,200 still and video images constituting child pornography.

Discounting duplicated imagery, police identified 473 unique still images of child pornography and 109 unique videos constituting child pornography all of which depict the accused sexually abusing his daughters. [ 9 ] I viewed a representative sample of the sexual abuse imagery during sentencing, including the audio via headphones. The imagery is abhorrent. The majority of the images depict acts of fellatio. Some of the videos contain dialogue, including the victim saying no or asking to stop and the accused persuading her in various ways to do what he asks and / or providing instruction on what to do.

The accused attached titles or labels to some of the videos, including “ Giving a 6 year old her FTV Cumshot to the hair and shirt ”; “ Age 5 Taste of Cum in the kitchen ”; “ Age 4 Penis Vagina Introduction ”; “ Age 8 Tutti Frutti blojob and swallow ”; and “ swallow in the very bed she was conceived in ”. [ 10 ] Police highlighted several videos for the Court. They discovered a forty-nine minute video compilation portraying many incidents of fellatio involving the oldest daughter. It is evident the compilation spans several years as changes in the victim’s appearance and development are apparent.

In addition to assembling many video clips into a movie, the accused added credits to the final product, including “DIRECTED BY (accused’s first name)”, “STARRING (daughter’s first name)”, and “FILMED ON LOCATION At Home”. [ 11 ] Another video labelled “Green Pants Cumstain.wmv” depicts the victim performing fellatio during which semen lands on her green pants. The accused added disturbing text to three screen shot captures.

It describes the victim as eight years of age. [ 12 ] Police found surreptitious video recordings of one of the victims showering. [ 13 ] Police discovered two videos involving attempted or actual anal penetration with his penis. Police could not say with certainty that penetration occurred in one but it seemed to them and appeared to the Court that it did in the other. Notably, the accused persisted in that act despite acknowledging audibly that the young victim did not like it and it hurt. [ 14 ] Additionally, police located over 5,500 collateral photos and videos of which 1,681 are visually unique.

The collateral imagery includes seemingly surreptitious pictures and videos of the accused’s oldest daughter that focus on her breasts or buttocks. Analysis further revealed over 335,000 (over 161,700 unique) images of adult pornography with a predilection for fellatio imagery and females with seminal fluid on their faces. [ 15 ] The accused bribed the victims with treats and rewards. He warned them not to tell anyone, saying they would get into trouble, as would he. [ 16 ] This brief

summary surely highlights the gravity of the offences. CIRCUMSTANCES OF THE OFFENDER [ 17 ] I have the benefit of a Pre-Sentence Report [PSR]. The accused is fifty-three years of age. He comes from a broken home. His father, who drank and gambled compulsively, was absent more than present. The family moved frequently during his formative years. The accused currently has a supportive mother and no contact with his father. [ 18 ] The accused is a veteran of the Canadian Armed Forces. He completed three tours of duty, the last in Afghanistan where he reports witnessing atrocities.

He believes the experience changed him, as does his mother. These offences occurred after his return from Afghanistan. He trained as a journeyman electrician following his time in the military and had employment in that field until February of 2021. [ 19 ] The accused’s relationship with alcohol began at an early age and was problematic during his early years in the military and during times of unemployment.

He does not identify substance abuse as a factor in the offences. [ 20 ] With respect to mental health, the accused self-reports a diagnosis of Attention Deficit Disorder, feelings of depression, a historical suicide attempt, and low self-esteem. Through counsel, he articulated a suspicion he has undiagnosed Post-Traumatic Stress Disorder from his military deployments. [ 21 ] The accused accepted significant responsibility for the offences during the PSR interview. He described himself as a “ pedophile ” in need of psychiatric help. He admitted he took pictures and videos of the abuse.

He knew the opportunity to exploit the victims was time limited and admitted collecting imagery in anticipation of remembering and reliving it in future. Despite his removal from the home for a time in 2016, while authorities investigated sexual abuse suspicions, he was undeterred and resumed the abuse. He expressed a willingness to accept the consequences of his actions and articulated a preparedness to engage in programming. [ 22 ] Probation assesses the accused at high risk to reoffend generally and at below average risk to reoffend sexually.

These risk assessments are predictive tools and actual risk may be higher or lower. VICTIM IMPACT [ 23 ] The Crown filed a Victim Impact Statement authored by the victims’ mother as well as a Community Impact Statement submitted by the Phoenix 11.

[ 24 ] I hesitate to summarize the impact to the victims for fear of unintentionally minimizing. I am mindful the available information speaks only to the harm manifesting itself in childhood and that these victims are likely to experience long-term harm arising in adulthood. Both victims already have diagnoses of Post-Traumatic Stress Disorder. [ 25 ] The oldest victim is now sixteen years old. She is medicated. She has nightmares, insomnia, and flashbacks. She does not trust. She is hyper-vigilant; socially anxious; struggles to concentrate; and rarely feels safe. Her sexual identity is impacted.

She experiences suicidal ideation. Her schooling is severely disrupted and she is unable to manage employment. She is in therapy and will likely continue in therapy for a very long time. So severe are the impacts of her victimization that her mother assesses her “ disabled ”. [ 26 ] The younger victim is now ten years old. She has nightmares; is easily startled; does not trust men; cannot sleep alone in her bedroom; struggles socially; and is medicated. She is in therapy that is likely to continue well into the future. [ 27 ] The rest of the family suffers various impacts as well.

Certainly, the victims’ mother, in addition to living with guilt and a sense of betrayal, shoulders the financial impact of an imploded family. [ 28 ] The Community Impact Statement is a reminder of the enduring victim impact for survivors of these types of offences arising from the profound personal, social, and economic impact of sexual offences and offences related to the creation and possession of child sexual abuse imagery. MITIGATING AND AGGRAVATING FACTORS [ 29 ] The accused’s decision to plead guilty rather than scheduling this matter for hearing is mitigating.

He did spare taxpayers the cost of a trial and, more importantly, saved the young victims from the ordeal of testifying. I note, however, that the video evidence was compelling and may have supported a prosecution without need of the victims testifying. Accordingly, the accused’s guilty plea was perhaps acknowledgement of an inevitable result. Although he did minimize some aspects of the offending during the PSR interview, he accepted significant responsibility.

Based on admissions during the PSR interview, he consented post-guilty plea to the amendment of one of the sexual interference charges, extending the time span over which the offences occurred by four years. [ 30 ] The accused’s lack of prior criminal record is mitigating, but not indicative of longstanding good character given these offences span many years. [ 31 ] The inventory of aggravating factors is voluminous and includes: • the familial relationship between the accused and victims; • the accused’s abuse of his position of trust in relation to the victims; • the victims’ young ages; • the frequency and duration of the abuse; • the abuse occurred in the victims’ home where they ought to have felt safest; • the serious nature of the violations of the victims’ bodily and sexual integrity; • the creation and long-term possession of child sexual abuse imagery, including the addition of demeaning text and “movie credits”; • the significant victim impact; and • the unprotected nature of the sexual activity and consequent exposure of the children to examination for sexually transmitted infections.

PRINCIPLES OF SENTENCING [ 32 ] Sentencing is an individualized process aimed at facilitating respect for the law and long-term protection of the public. The sentencing judge must design a sentence that is proportionate to the gravity of the offence and the moral blameworthiness of the offender. [ 33 ] The Supreme Court of Canada in R. v. Friesen 2020 SCC 9 [ Friesen ] at paragraph 5 declared: “ sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase.

Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large. ” [ 34 ] Pursuant to

section 718.01 of the Criminal Code, R.S.C., 1985, c. C-46 [ CCC ], deterrence and denunciation are the primary sentencing objectives in this case. This Court must fashion a sentence that appropriately communicates society’s condemnation of adults exploiting children for their own sexual gratification. The sentence must be punitive to a degree that discourages this accused and likeminded individuals from repeating, engaging, or continuing these types of offences.

[ 35 ] Other notable sentencing objectives in this case are the need to separate the accused from society as well as promoting a sense of responsibility in the accused and an acknowledgement of the intense harm done to the victims, their family, and the community. The accused lacks insight into the depth of his wrongdoing and its impact on the victims. Aside from his guilty plea, there was no articulation of remorse. [ 36 ] Rehabilitation, while relevant, is secondary. It is difficult to assess the accused’s actual prospects for rehabilitation or his true risk to reoffend.

There is no expert opinion contradicting the PSR predictions of risk assessing the accused at high risk to reoffend generally and below average risk to reoffend sexually. The Static 99R sexual recidivism assessment tool is limited. It does not measure all relevant risk factors. The accused self-identifies as a pedophile in need of expert help. He lacks insight into the cause of his offending or the source of his sexual compulsions and has of yet done nothing to identify or address the underlying issues and causes of his offending.

He assured the PSR author he does not experience sexual interest in girls other than his daughters but that may only have been because of the ease of access to his own daughters. Until the underlying cause of the accused’s offending is identified and remedied, his offences demonstrate an alarming capacity for sexual violence towards children. Protecting children from his criminal impulses and demonstrated capacity for sexual violence is of utmost importance.

SERIOUSNESS OF THE OFFENCES [ 37 ] Further to the earlier description of the offences and list of aggravating features, I note the following factors, which inform the seriousness of the offences. [ 38 ] Sexual offences are crimes of violence. Sexual violence against children is inherently wrong and harmful. It strikes at the heart of a child’s personal autonomy, bodily integrity, sexual integrity, dignity, and right to equality. It often, as in this case, results in damage to the children’s familial and other social relationships.

Further, as in this case, the snowball effects of child sexual abuse commonly cause a secondary victimization of other family members and more broadly of the community and society. [ See Friesen , paragraphs 50 to 64] . The victims are both girls and sexual violence disproportionately affects girls and young women. [ See Friesen , paragraph 68] [ 39 ] The magnitude of the accused’s abuse of his eldest daughter is confounding.

She was subject to countless incidents spanning the vast majority of her childhood in the context of a biological father-daughter trust relationship, in the family home, sometimes with her mother present in another part of the residence. She was of tender years when the violence began and it continued through many of her formative years. The accused’s decision to document the abuse and then to compile, edit, and to add titles and text all compounds the seriousness of this matter. The accused robbed her of her childhood. She is shattered.

She will likely struggle to manage the impact of these offences for the rest of her life. [ 40 ] While spanning a significantly shorter period, the accused’s abuse of his younger daughter was similarly insidious, repetitive, recorded, and harmful. The impact on her is substantial and enduring. [ 41 ] The seriousness of these offences cannot be overstated.

MORAL BLAMEWORTHINESS [ 42 ] The accused’s moral blameworthiness is substantial. [ 43 ] “ Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child ” [ Friesen at paragraph 88] [ 44 ] Here, the accused was an adult. He held a position of trust in relation to the young victims. The abuse began when the victims were of tender ages. He exploited their vulnerability arising from age and dependence. [ 45 ] The intentional sexual abuse was inexorable, spanning nine years.

Each incident was a fresh decision to offend. Not only did he perpetrate countless serious acts of sexual violence, he recorded it in pictures and videos, amassing a substantial collection of sexual abuse imagery. He compiled, edited, labelled it, added text, and possessed that child pornography beyond the scope of the offences until the date of his arrest. [ 46 ] The accused’s actions were considered and deliberate. He enticed, persuaded, and manipulated the victims with treats, promises of rewards, and threats of trouble if they told.

He took measured steps and precautions to avoid detection demonstrating an appreciation of the wrongfulness of the behaviour. When the victims said no or tried to stop, there is video evidencing his persistence. [ 47 ] There is nothing to reduce the accused’s high degree of moral culpability. The accused speculated during the PSR interview, and through his counsel, about the possibility of Post-Traumatic Stress Disorder, noting the offences followed his return from tours of duty where he witnessed atrocities.

He referenced a diagnosis of Attention Deficit Disorder, depression, low self-esteem, and a historic suicide attempt. [ 48 ] Cognitive deficits, severe addictions, and mental disability can significantly mitigate moral blameworthiness. However, there is not cogent evidence supporting a finding in this case that the accused’s criminal conduct arises from or logically connects to any such circumstance. CASELAW

[ 49 ] Pursuant to

section 718.2 (

b) CCC , the sentence imposed should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. Realistically, no two cases are the same and neither crown nor defence provided me with any case law of striking similarity to this one. I reviewed all of the case law counsel provided as well as some additional cases. A

summary review of primarily recent Manitoba cases follows. [ 50 ] Prior to Friesen , R. v. Sidwell , 2015 MBCA 56 identified a four to five year starting point for sexual interference offences involving a major sexual assault. Sidwell pre-dates the 2015 legislative amendments raising the maximum sentences for sexual assault and interference. [ 51 ] Friesen provides strong direction that the sentences for sexual offences against children must increase to communicate the harmfulness and wrongfulness of child sexual abuse and to give effect to the 2015 Criminal Code amendments. [ 52 ] In R. v.

S.(D.) 2020 MBQB 163 , the Court imposed a nine-year sentence on an accused convicted of sexual interference for a one- time assault on his fourteen-year-old stepdaughter involving various serious sex acts. Gladue was a consideration. [ 53 ] In R. v. K.D.M ., 2021 MBQB 107 , the Court imposed a fourteen-year sentence for offences of sexual interference, incest, and sexual assault causing bodily harm for sexual abuse of the accused’s daughter from ages five to eight years. [ 54 ] In R. v.

S.A.D.F ., 2021 MBCA 22 , the appellate court increased a four and a half year sentence to one of six years for an accused who pleaded guilty to two counts sexual interference involving multiple major sexual assaults of his six-year-old daughter and eight- year-old stepdaughter. [ 55 ] In R. v. J.D.W ., 2021 MBCA 49 , the Court of Appeal upheld an eight-year sentence for an accused who sexually assaulted (anal penetration) his seven-year-old daughter while on bail and subject to a no contact condition for physically assaulting her. Gladue was a consideration. [ 56 ] In R. v.

R.W., 2021 MBCA 71 , the appellate court upheld a nine-year sentence for three incidents of sexual assault on the accused’s thirteen-year-old sister-in-law (vaginal penetration). Gladue was a consideration. [ 57 ] In R. v. A.A.J.T ., 2022 MBCA 47 , the Court of Appeal upheld a twenty-two year sentence for sexual interference as well as making, possessing, and distributing child pornography. The Court convicted the accused of repeatedly abusing his girlfriend’s four- year-old daughter involving all manner of forced sexual acts, sometimes involving the victim’s mother at the behest of the accused.

The accused recorded the abuse, distributed the imagery on the internet, and amassed a large collection of child pornography. The mother, who pled guilty just prior to the trial, received a twenty-year sentence for her participation. [ 58 ] In R. v. A.S. 2022 MBPC 12 , a thirty-year sentence followed the accused’s guilty pleas to seventeen child sexual abuse offences involving nine children, spanning twenty-five years, including the creation and possession of child pornography. [ 59 ] In R. v.

C.E.B ., 2022 MBQB 10 , the Court imposed a six-year sentence for a charge of sexual interference upon the accused’s stepdaughter involving three incidents (sexual touching) over a four-year period. [ 60 ] In R. v. McLachlan , 2022 MBPC 13 , the Court imposed a thirteen-year sentence for an accused convicted after trial of sexual offences perpetrated against his wife’s cousin when she was twelve to seventeen years of age, including very serious sexual violence. The case includes a helpful review of several other sentencing cases decided before and after Friesen in Manitoba, as well as other jurisdictions.

SENTENCE [ 61 ] The offences are serious and reprehensible. The accused’s degree of responsibility and moral blameworthiness is very substantial and unmitigated. He was unrelenting in the sexual abuse of his daughters, acting with intention and deliberation. The victim impact is crushing; the harm enduring and unquantifiable. The aggravating factors overwhelm the mitigating factors.

The Court’s primary sentencing objectives are denunciation and deterrence with a view to respect for the law and protection of the public, most notably these victims and other children. [ 62 ] I am mindful of the accused’s guilty pleas, lack of criminal record, personal background, and estimated risk to reoffend. [ 63 ] I find the incest and sexual interference charges involving the oldest daughter are so grave and devastating that they warrant imposition of the maximum sentences. I conclude that those two offences are sufficiently linked and overlapping to warrant concurrent sentences.

I find that the sexual interference charge involving the younger daughter requires an upper-single digit penitentiary sentence. I conclude that the two charges related to the accused’s creation of sexual abuse imagery (child pornography) are discrete transactions that exacerbated the wrongfulness and harmfulness of the accused’s behaviour and its impact on the victims. As such, I will impose consecutive sentences. Differences in length of sentence as between the two victims account for the marked difference in duration of offending.

Because I am imposing consecutive sentences, totality is a consideration. [ 64 ] Before considering totality, I set the individual sentences for each offence as follows: • Incest – fourteen years • Sexual Interference (older victim) – ten years concurrent • Make Child Pornography (older victim) – eight years consecutive • Sexual Interference (younger victim) – nine years consecutive

• Make Child Pornography (younger victim) – six years consecutive [ 65 ] The principle of totality requires a final assessment to ensure the consecutive sentences do not exceed the accused’s overall culpability and are not crushing in terms of rehabilitative prospects. Deterrence and denunciation certainly necessitate a lengthy separation from society but a thirty-seven year sentence exceeds what is necessary and appropriate in this case, particularly where the Static 99 predictive tool, limited as it may be, does not detect the accused as a high risk to reoffend sexually.

There are at least two routes to reducing the sentence for totality purposes – decreasing individual consecutive sentences or converting the child pornography sentences to concurrent time. Both seem justifiable routes to a similar conclusion.

I make the following reductions in consideration of totality: • Incest – ten years • Sexual Interference (older victim) – ten years concurrent • Make Child Pornography (older victim) – four years consecutive • Sexual Interference (younger victim) – seven years consecutive • Make Child Pornography (younger victim) – two years consecutive [ 66 ] The accused is entitled to credit for time already served at time and a half. He has been in custody 402 days which amounts to credit for 603 days.

That time will be deducted from his total sentence. [ 67 ] I make the following ancillary orders: • DNA (Primary Designated Offence – s. 487.051 CCC ); • Lifetime Sexual Offender Information Registry (SOIRA) Order (ss. 490.013(2)(

c) and 490.013(2.1) CCC ); • Lifetime Weapons Prohibition pursuant to

section 109 CCC ; • The accused is prohibited from communicating with the victims named in the Information as well as the victims’ mother and brother ( s. 743.21 CCC ); • Lifetime

Section 161 Order including prohibitions on accused attending public spaces where persons under sixteen years are reasonably expected to be, seeking employment or volunteering in a position of trust to children under sixteen years, having contact or communication with persons under the age of sixteen, and accessing the internet or other digital network outside identified parameters (See Appendix A). “original signed by Judge Hewitt-Michta” Judge S. Hewitt-Michta APPENDIX “A”

Section 161 CCC Prohibition Order For the rest of his life, the accused is prohibited from: [1] Attending any public park or public swimming area where persons under the age of sixteen-years are present or can reasonably be expected to be present, or any daycare center, school ground, playground or community center; [2] Attending or remaining within 200 meters of any dwelling-house where the victims named in the information ordinarily reside; [3] Seeking, obtaining, or continuing any employment, whether or not the employment is remunerated or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of sixteen-years; [4] Having any contact – including communicating by any means – with a person who is under the age of sixteen-years, unless D.H. does so under the supervision of a person whom the Court considers appropriate – the only exception is unavoidable incidental public encounters; and [5] Using the internet or other digital network except within the following parameters: a. must not access or distribute pornography; b. must not communicate with any person under the age of sixteen-years; c. must not use or access any social media websites or applications, including but not limited to Facebook , YouTube , Instagram , SnapChat; d. must not maintain a profile on any social media or file-sharing social media website or application, including but not limited to

Facebook, YouTube, Instagram, Snapchat; e. must not pretend to be someone else while communicating with any person; f. must not distribute, publish, post or make publicly available in any manner any text, photographs, or videos that refer to or depict the victims named in the information; g. must not publish, post, distribute or make publically available in any manner text, photographs, or videos that refer to or depict any child who is or appears to be under the age of sixteen-years; h. must not use or access peer to peer or file-sharing software, programs, or applications; i. must not possess or use any software for purposes of encryption or deletion of electronic files; j. must not password protect any electronic device in his possession; k. must not use or access any cloud server or similar external storage device for the purpose of uploading or saving images, photographs, or videos.