R. v. W.P., 2018 NLSC 113

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. W.P. , 2018 NLSC 113 Date : May 17, 2018 Docket : 201608G0189 Her Majesty The Queen v. W.P. Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Frances J. Knickle Reasons for Judgment Given Orally Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Date of Hearing: May 4, 2018 Date of Oral Judgment: May 17, 2018

Summary:

W.P. was found guilty by a jury of two acts of sexual abuse against his granddaughter when she was 12 and 15. The acts consisted ofgrabbing her vagina on the first occasion, and fondling her inside her underwear on the second occasion. W.P. had no record and was aprominent member of the community. He was 78 at the time of sentencing. He was sentenced to a total of six months’ imprisonmentand two years’ probation. Appearances: Rochelle O. Palmer Appearing on behalf of the Crown Randolph J. Piercey, Q.C. Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v.

Kienapple, (SCC), [1975] 1 S.C.R. 729; R. v. Giovanni, 2016 NLTD(G) 160 at paras. 29– 30; R. v. Boalag, [2016] N.J. No. 262, 133 W.C.B. (2d) 94 (Prov. Ct.)); R. v. A. (K.J.) (1988), 2009 NLTD 138 , 289 Nfld. &P.E.I.R. 333, 84 W.C.B. (2d) 923 (Nfld. C.A.) R. v. B. (A), 2015 NLCA 19 at para. 26; R. v. W. (L. F.) (1997), (NLCA), 155 Nfld. & P.E.I.R. 115, 36 W.C.B. (2d) 76; R. v. Waterman, 2018 NLSC 80; R. v. W. (R.J.), 2014 NLTD(G) 63; R. v. W. (C.),2012 NLTD(G) 22; R. v. Regular, [2011] N.J. No. 248, 95 W.C.B. (2d) 318 (Prov. Ct.); R. v. R. (B.), [2007] N.J. No. 111, 73 W.C.B.(2d) 297 (Prov. Ct.); R. v.

Hancock, [2015] N.J. No. 307, 1158 A.P.R. 228 (Prov. Ct.); R. v. H. (C.T.), 2015 NLTD(G) 56; R. v. Daye,2010 NLTD(G) 192; R. v. S. (E.C.), (NL SC), [1997] N.J. No. 88, 148 Nfld. & P.E.I.R. 347 (S.C. (T.D.)); R. v. L.(T.J.), (NL SC), [2001] N.J. No. 328, 208 Nfld. & P.E.I.R. 163 (S.C. (T.D.)); R. v. Proulx, 2000 SCC 5; R. v. M.(R.N.) (2001), (NL SC), 198 Nfld. & P.E.I.R. 218, [2001] N.J. No. 58, (Nfld. S.C. (T.D.)); R. v. B. (E.P.), 2003NLSCTD 26 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46; Sex Offender Information Registration Act, S.C. 2004, c. 10 REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] W.P. has been found guilty by a jury of two (2) counts of sexual assault, under Section 271(1)(a), and one count of sexualinterference under Section 151(1)(

a) of the Criminal Code, R.S.C. 1985, c. C-46. [2] This is the decision on sentence. The circumstances of the offences [3] As W.P. has been found guilty by a jury, the Trial Judge must determine the facts of the offences consistent with the guiltyfinding of the jury pursuant to

Section 724 of the Criminal Code. [4] The circumstances constituting the offences are straightforward, as recounted by the victim, H.P. who is W.P.’sgranddaughter. There were two distinct acts that occurred several years apart; one occurring on a snowmobile ride, and anotheroccurring while H.P. was taking a driving lesson from her grandfather, in W.P.’s vehicle. the Touching on the snowmobile [5] H.P. described that she was very close to her grandfather growing up. It was usual for her to travel with her grandfather by

snowmobile in the winter months to visit friends. She testified that she would sit in the front and he would be behind her and hold her. She said she started to notice that on several occasions while traveling by snowmobile, his hand would drift to her vaginal area and grabher outside her clothing in that area. She would try to move away. She described one particular occasion however where the grabbingwas very forceful, despite her efforts to move away from him.

She testified that she was so upset that he would not stop; despite herefforts to move away from him towards the front of the snowmobile, that she deliberately drove the snowmobile in to a snow drift;tipping the vehicle. They both fell off. H.P. remembered that W.P. was hurt, she thought in the leg area. They were not far from thedestination, the cabin of his friends, so they completed the journey by foot. H.P. remembered W.P. limping. [6] She testified that after the incident, nothing was said, and she said nothing to anyone.

She did not continue to travel with himby snowmobile after that incident. [7] She was 12-13 years old at the time. The incident while driving W.P.’s vehicle [8] H.P. said that many years went by and she learned to trust W.P. again. The next incident occurred when H.P. was learning todrive. She was 15 years old. W.P. offered to take her for a driving lesson. She remembered it was summertime, and she was wearingshorts. W.P. was seated in the passenger side beside her. The vehicle, known as a “Yukon”, was big, so there was some distancebetween them.

While driving, W.P. started to reach across with his hand and touched her thigh. He moved his hand up her leg until hisfingers were touching her vagina inside her shorts and underwear. [9] H.P. testified that she kept trying to move away from his hand, towards the driver’s door. While he had his fingers touchingher vagina inside her underwear, she was still trying to drive, and W.P. was still talking to her about driving. [10] She said, because he would not stop she finally yelled at him to “f—ing stop” and he did stop.

H.P. said this was the first timein her life that she had spoken to her grandfather in such a way. She said W.P. then asked her to go to a cabin to talk. [11] At first H.P. did not want to go, but reluctantly went with him. At the cabin, W.P. apologized asking her not to tell anyone,saying it would kill H.P.’s mother. There was evidence that H.P.’s mother had suffered from mental health issues. THE POSITION OF THE PARTIES [12] In many respects, the parties are not far apart as to the appropriate sentence.

The Crown submits that each offence warrants aperiod of imprisonment of three to four months for a total period of imprisonment of six to eight months; with a period of probation tofollow. The Crown also seeks an Order pursuant to

Section 161 of the Criminal Code. [13] Defence submits a total period of four to six months’ imprisonment is sufficient for both offences, and does not opposeprobation. Defence counsel submits the sentences should be served by way of conditional imprisonment. [14] Both parties agree that since the circumstances of the first incident resulted in a conviction for both sexual assault and sexualinterference, the Kienapple principle applies (R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729). This means that for theincident that occurred while snowmobiling, W.P. will be sentenced on the more serious offence, the

section 151 offence. A conditionalstay will be entered with respect to the sexual assault offence under

Section 271 (see R. v. Giovanni, 2016 NLTD(G) 160 at paras. 29 –30; R. v. Boalag, [2016] N.J. No. 262, 133 W.C.B. (2d) 94 (Prov. Ct.)). I agree. The principles of sentencing [15] The principles of sentencing are well established under sections 718 - 718.2 of the Criminal Code and the common law. Asentence must be commensurate with the gravity of the offence and the degree of responsibility of the offender, sometimes referred to asthe level of “moral blameworthiness” of the offender (see

Section 718.1 of the Criminal Code). [16] Under

section 718, the fundamental purpose of the sentence, as best as can be achieved, is to protect the public, promoterespect for the law, and to maintain a peaceful and safe society. The court must impose sanctions that are just and have one or more of anumber of objectives.

Section 718 states: 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respectfor the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders;

(

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [17] The fit sentence depends not only on the circumstances of the offence but the circumstances of the offender. [18] Several of the same principles stated in the Criminal Code are referred to in R. v. A. (K.J.) (1988), 2009 NLTD 138 ,289 Nfld. & P.E.I.R. 333, 84 W.C.B. (2d) 923 (Nfld. C.A.) at paragraph 32, by our Court of Appeal (see also Givovanni, at paragraph 20citing R. v. B. (A), 2015 NLCA 19 at para. 26).

Some of the appropriate considerations include: - The extent of the assault; - The degree of violence or force used; - The impact of the crime on the victim, family and the offender; - The degree of trust; - Public abhorrence; - The circumstances of the offender including his or her age, attitude towards the offence, including the lack of remorse; and - Prospects for rehabilitation, his antecedents. THE EXTENT OF THE ASSAULTS AND THE DEGREE OF VIOLENCE USE [19] The gravity or seriousness of the circumstances of the offence in this case are both serious and non-serious.

I agree with theparties that the nature of the touching and the assault are at the minor end of the spectrum, as much as such offences can so be. Theoffences of sexual assault and sexual interference cover a wide range of conduct from a simple touch to intercourse. The first incidentoccurred outside clothing only. The second incident is more serious, in that W.P.’s fingers actually reached the inside of H.P.’sunderwear, but was nonetheless no more than touching of H.P. [20] There was some force used with respect to the first incident.

It makes this incident slightly more serious insofar as the forceused resulted in H.P. believing she could only stop the touching by crashing the snowmobile. There was no violence beyond the inherentviolence in the offence itself with regards to the second incident. [21] There are also only two incidences. [22] While the nature of the touching was relatively minor, the circumstances surrounding were troubling.

On both occasions W.P.engaged in this inappropriate touching, while, H.P., his granddaughter was trying to operate a motor vehicle. [23] In the first instance, H.P. felt she had to crash the vehicle to stop the touching. This significant action H.P. believed she had totake, in order to stop her grandfather, increases the seriousness of what would otherwise have been a much less serious touching. Bothparties are lucky no serious harm befell them by H.P.’s efforts to stop the inappropriate touching.

Her young age is also aggravating. [24] Similarly, the second incident occurred while H.P. was trying to learn to drive. On this occasion, the touching stopped atH.P.’s insistence, but the fact that W.P. was prepared to inappropriately touch his own granddaughter while she was learning to drive acar, shows a disconcerting lack of judgement on his part. H.P. herself explained that because she was older, she was prepared to standup to her grandfather regarding his behavior.

The impact of the crime on the victim, family and the offender [25] H.P., her sister and her father provided victim impact statements at the sentencing hearing. H.P.’s statement was eloquent, andreveals, as is so often the case, the hurt and long-term grief caused by these kinds of crimes. I accept from all three statements that theimpact of this crime has had significant long-term emotional impact, not only for H.P. but for the other members of her family. All threeindividuals expressed how H.P.’s coming forward with the allegations has caused dissention in the family.

W.P.’s counsel disagreedwith this statement. Whether or not this is the case, it is how H.P. and the other members of her family feel - and there is some supportfor this view in how the proceedings unfolded. Court proceedings do not happen in the abstract. It was not lost on the court that therewas a noticeable division where those who came to court to view the proceedings sat; based on who supported H.P. and who supportedW.P. THE DEGREE OF TRUST [26] The degree of trust involved in these circumstances is aggravating pursuant to

Section 718.2((a)(ii.1). The level of trust owedby W.P. toward H.P. as her grandfather is very high - if not at its highest because of his relationship with H.P. in the circumstances of thiscase. In both her testimony and her victim impact statement, H.P. expressed how W.P. meant a great deal to her, and was a father figureto her because of the family circumstances. [27] H.P. should have been able to feel absolutely safe in his company. [28] It is also troubling that W.P., knowing of his relationship with H.P., would then use the illness of H.P.’s mother as a way of

leveraging H.P. into not saying anything to anyone about what had happened after the second incident. This evidences someone who ismore concerned with the consequences for himself than the harm he may cause to H.P. PUBLIC ABHORRENCE OF THE CRIME [29] Public abhorrence of this kind of crime is also very high. Sexual offences against children continue to make up far too much ofa criminal docket.

Section 718.01 states that the primary principles to be considered for such offences are denunciation and deterrence. THE ATTITUDE AND CIRCUMSTANCES OF THE OFFENDER [30] W.P. is 78 years old. He has never been convicted of criminal wrongdoing and has been a member of the community of GooseBay for most of his life. He has been a community leader in business, has been involved with Rotary, and is described by family, friendsand business associates as caring, generous, and devoted to family.

Over 30 letters of support were filed. [31] It is clear from the many letters of support filed on his behalf, that W.P. has significant support in the community. [32] However, it must also be noted that the prominence and good reputation and character of an individual in the community, isoften the very attribute that permits the offender to commit these kinds of crimes. [33] The evidence, through the letters filed on his behalf, and as well the testimony of H.P., and defence witnesses, of W.P.’s manyyears of a positive and contributing member of society, must be balanced against the expense at which that prominence came: H.P’ssilence (see R. v.

W. (L. F.) (1997), (NL CA), 155 Nfld. & P.E.I.R. 115, 36 W.C.B. (2d) 76, affirmed by the SupremeCourt of Canada, at paragraph, 5-7). Indeed, H.P. testified that one of the reasons she stayed silent as long as she did was because she didnot think anyone would believe her. [34] H.P. explained that her delay in reporting these incidents, resulted in her own feelings of shame and emotional hurt. This wasexpressed in her victim impact statement to the Court: I felt the weight of the world having to keep such a disturbing secret.

I instantly filled with shame, guilt, and an enormous resentment… This has most definitely NOT come without consequences for me. This entire process has cost me financially. I have spent thousands intherapy over the last five years. It has cost me time off work. It has required other members of my family to be here. It has cost themtime. It has cost me relationships. And some days it feels as if it has cost me my sanity. [35] Further, while W.P.’s positive antecedents support the emphasis on rehabilitation, they also evidence why there is very highlevel of blameworthiness.

It was evident from his testimony at trial that W.P. is educated and articulate. Yet he nonetheless tookadvantage of his granddaughter for his own gratification. [36] Also, the circumstances of these offences show poor judgement in not only in engaging in the impugned conduct, but to do sowhile the victim was driving a vehicle. [37] W.P. pleaded not guilty and maintains his innocence. It is in no way aggravating on sentence that an offender has pleaded notguilty.

The effect significance to pleading not guilty, is that the potential mitigating effect that a guilty plea may have on sentence, isabsent in these circumstances. [38] According to his counsel, W.P. does not feel he is in need of rehabilitation such as counselling.

Summary of Mitigating and Aggravating Factors on Sentence [39] In this case the aggravating factors are the fact that the offence was committed on a child, and that the offender was in aposition of a very high level of trust towards the victim; his granddaughter. While the touching itself was of a relatively minor nature,the circumstances in which it occurred were reckless. I also find that W.P. had a high level of moral blameworthiness in his commissionof the offences. [40] In mitigation, is the fact that W.P. has no previous criminal history and has the support of family and many friends and businessassociates.

The circumstances of the offences are less serious than many sexual assaults or sexual interference offences that come beforethe court. THE RANGE OF SENTENCE [41] The Crown provided the recent case of R. v. Waterman, 2018 NLSC 80, per Goulding, J. Mr. Waterman was convicted by ajury of sexual offences against a victim who was between the ages of 7 and 13 years of age at the time of the offences. Mr. Watermanwas known to the victim. There were four incidents where the offender invited the victim for a ride on his motorcycle and exposed hispenis to the victim.

There was one incident where the offender masturbated in front of the victim. On the fifth incident, when the victimwas 13, he punched the offender. Mr. Waterman had an unblemished history, was married with grandchildren. A period of conditionalimprisonment of 12 months was imposed; followed by one-year probation. [42] In R. v. W. (R.J.), 2014 NLTD(G) 63 upon conviction, a period of six months consecutive each on two counts of indecentassault was imposed to be served conditionally, for a total of 12 months. The victims were the offender’s nieces by marriage.

Theoffender fondled their breasts, unzipped their pants, and stroked the thigh of one victim. The offender was 71 at the time of sentencingand suffered from medical conditions. He was also remanded for two days in custody, pending sentence. An 18-month probation order

followed. [43] In R. v. W. (C.), 2012 NLTD(G) 22 an accused, aged 90, was convicted of sexual interference with a 13-year-old girl. Theoffence occurred four years earlier. The offence consisted of grabbing the girl’s crotch area outside her clothes while making a“crunching” gesture with the hand. Because of the date of the offence, a conditional sentence was not available. The offender wassentenced to six months in prison and two years’ probation. [44] In R. v. Regular, [2011] N.J. No. 248, 95 W.C.B. (2d) 318 (Prov.

Ct.) a 15 year old girl awoke to find a family friend kissingher neck and touching her breasts and vagina outside and inside her clothing. He bit her breasts. The victim pretended to be asleepduring the ordeal that lasted 30 minutes. The sentencing judge imposed four months imprisonment, less time served in custody,followed by two years’ probation. [45] In R. v. R. (B.), [2007] N.J. No. 111, 73 W.C.B. (2d) 297 (Prov. Ct.) the 56 year old offender with no prior record, wasconvicted of fondling his young child inside and outside her clothing.

He was considered to be akin to an uncle or grandfather, and wasalso the godfather of the victim. A period of six months’ imprisonment was imposed followed by probation. [46] In R. v. Hancock, [2015] N.J. No. 307, 1158 A.P.R. 228 (Prov. Ct.) while supervising a sleepover, the accused fondled thecomplainant’s vagina, who was under the age of 14 at the time while she was sleeping. When she awoke to the touching, she got up andmoved. He apologized. He was sentenced to nine months, less time served followed by two years’ probation. It appears a conditionalsentence was not available. [47] In R. v.

H. (C.T.), 2015 NLTD(G) 56 an offender fondled the vagina of the 8-year-old daughter of his then girlfriend, while theshe was not home. He was sentenced to nine months’ imprisonment, and two years for what Goulding, J. described as reprehensibleconduct. [48] In R. v. Daye, 2010 NLTD(G) 192, a ten month sentence was reduced to five months on appeal for fondling and kissing ayoung girl. The victim in that case was 11. The offender pleaded guilty, and was 60 at the time of sentencing.

He had no prior recordand had been continuously employed since he was 16. [49] All of the cases cited by the defence were recently reviewed by Goulding, J. in Waterman at paragraphs 19 - 28. These casesprovided numerous examples where the court determined it appropriate to impose a conditional sentence of imprisonment for similarforms of inappropriate sexual contact with children, and involving varying degrees of trust. [50] The cases provided a range of sentence generally a low of 60 days, in R. v. S. (E.C.), (NL SC), [1997] N.J.No. 88, 148 Nfld. & P.E.I.R. 347 (S.C. (T.D.)) to a high of 12 months in R. v.

L. (T.J.), (NL SC), [2001] N.J. No.328, 208 Nfld. & P.E.I.R. 163 (S.C. (T.D.)).

The decisions filed by defence counsel predated the amendments to the Criminal Code in2005; amendments which precluded the availability of a conditional sentence. [51] Upon review of all of these cases, I am satisfied that the range of sentence for offences of this nature typically attract a periodof imprisonment anywhere from a couple of months to 12 months, with a period of probation often, to follow. [52] I am in agreement with both counsel that a total period of six months adequately reflects the seriousness of the crimes, is inkeeping with similar sentences imposed for similar offenders, and takes into account the mitigating factors of W.P.’s positiveantecedents. [53] In my view, given the circumstances of each of the offences in the present case, a period of incarceration of two (2) months forthe first offence and (4) months consecutive for the second offence, should be imposed.

This will be for a total of six (6) months. CONDITIONAL SENTENCE [54] The real issue in this sentencing is not whether W.P. should receive a period of imprisonment, but how that term ofimprisonment should be served. This determination is complicated by the changes in the Criminal Code as to the availability ofconditional sentences for sexual offences involving children. [55] At the time the offences occurred, in 1996 and 2000, conditional sentences were available.

However, the amendments in 2005,by imposing mandatory minimum sentences for such offences, means that if the offences occurred today, a conditional sentence wouldnot be available. [56] The Crown opposes a conditional sentence given that the Criminal Code now mandates an emphasis on general deterrence anddenunciation; where sentences are imposed for offences against children.

The Crown submits a conditional sentence will not give theproper effect to the principles of denunciation and deterrence. [57] On the other hand, counsel for W.P. submits W.P. should be permitted to serve his sentence in the community. [58] Conditional sentences are governed by

Section 742.1 of the Criminal Code which states: 742.1. If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, forthe purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community,subject to the conditions imposed under

section 742.3, if (

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community andwould be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (b the offence is not an offence punishable by a minimum term of imprisonment;

(

c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life; (

d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more; (

e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that (

i) resulted in bodily harm, (ii) involved the import, export, trafficking or production of drugs, or (iii) involved the use of a weapon; and (

f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions: (

i) section 144 (prison breach), (ii)

section 264 (criminal harassment), (iii)

section 271 (sexual assault), (iv)

section 279 (kidnapping), (

v) section 279.02 (trafficking in persons — material benefit), (vi)

section 281 (abduction of person under fourteen), (vii)

section 333.1 (motor vehicle theft), (viii) paragraph 334(a) (theft over $5000), (ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house), (

x) section 349 (being unlawfully in a dwelling-house), and (xi)

section 435 (arson for fraudulent purpose). [ 59 ] W. (L.F.), established that conditional sentences are available for all offences that met the legislative criteria; which at the time included sexual offences involving children (see paragraph 24). The cases provided by defence counsel, and the guidance from our Court of Appeal in W. (L.F.), means that conditional imprisonment is available for this type of offence in the appropriate circumstances.

Waterman illustrates that a conditional sentence may be appropriate, even today, if available. [ 60 ] A sentencing judge must take into account legislative amendments that affect the availability of sentencing options. This means that the court must now be cognizant that since 2005, there are mandatory minimums for the offences before the court. Parliament signaled a move away from the availability of conditional sentences for such offences. [ 61 ] A sentencing court must also be careful to not place so much weight on legislative amendments that the sentence imposed offends the principle of parity.

This is why the sentencing cases previous to the amendments are still relevant and can assist in finding the fit sentence (see Daye at paragraph 14). [ 62 ] While the decisions provided by counsel in which a conditional sentence has been imposed, assist the Court in finding the appropriate range and circumstances for the imposition of conditional sentences, those decisions that pre-date the 2005 amendments to the Criminal Code must also be viewed through that change in sentencing as directed by Parliament. [ 63 ] This point was made by our Court of Appeal in W. (L.F.).

As stated by the Court, the judicial task is to “apply the legislated policy which has shown to be a considered one formulated following wide consideration” ( W. (L.F.) , at paragraph 50). At paragraph 24, the majority stated: 24. … The purpose of providing the new option of conditional sentences is to provide an additional vehicle to lessen the rate of incarcerations which, as the Minister observed in piloting Bill C-41 through second reading, is “extremely high compared with other industrialized countries” (Hansard House of Commons, September 20, 1994, p. 5872).

Indeed the new option enacted under s. 742.1 may be viewed as conveying clear guidelines of policy direction to courts to adopt a new sentencing policy of lowering that rate and of reserving penal institutions for the more serious offender. [ 64 ] This does not mean that one loses sight of the principle that an offender not be deprived of liberty if a less restrictive sanction may be appropriate in the circumstances, under

Section 718.2 (d). There is no dispute that a conditional sentence is an option that must be considered as part of all sentencing options in this case. [ 65 ] But it would also be wrong in my view to ignore that for almost 15 years, Parliament has directed that sexual offences such as the ones before the court, require a mandatory minimum term of imprisonment. [ 66 ] In this case, I am satisfied the first two criteria under

Section 742.1 are met. There is no issue that the sentence to be imposed falls below the two-year limit. I am also satisfied that to impose a conditional sentence would not endanger the community.

[67] W.P. has never been previously convicted of a criminal offence. He has strong antecedents and support in the community, andthe offences are at the lower end of the spectrum in terms of seriousness (as much as can be with these offences). That an offender whohas otherwise lived a productive and unblemished life is compelling evidence of an offender’s prospects for rehabilitation.

This positiveaspect of an offender’s circumstances supports the viability of a conditional sentence [68] The concern for me, in these circumstances, is whether or not the sentence would be consistent with the fundamental purposesof sentencing. [69] Applying the above considerations to the particular circumstances of this case, a conditional sentence is inconsistent with thefundamental purposes of sentencing.

In this case, taking into account the circumstances of the offences, the harm to the victim, and theantecedents and attitude of the offender, the principles of denunciation and deterrence will be given insufficient effect by way of aconditional sentence. [70] As stated in R. v. Proulx, 2000 SCC 5 at paragraph 106: 106. The amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of the offender,the nature of the conditions imposed, and the community in which the sentence is to be served.

As a general matter, the more serious theoffence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be.

However, there maybe certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which toexpress society's condemnation of the offender's conduct. [71] In my view, the need for denunciation and deterrence in relation to the sexual offences against children generally is pressing.The need for denunciation particularly in relation to W.P. as being in such a high position of trust towards H.P, as her grandfather, makesa conditional sentence inappropriate. [72] The high level of trust in his case, is a significant distinguishing feature from Waterman, where Goulding, J, was satisfied aconditional sentence could be imposed.

The very high breach of trust in this case is a strongly aggravating factor that militates against aconditional sentence. It is further aggravating that W.P. endeavored to secure H.P.’s silence regarding the incidents. [73] As discussed earlier, his level or moral blameworthiness is also high in these circumstances. This also warrants a higheremphasis on denunciation. [74] The offences occurred when H.P. was 12 and around 16. H.P. is now 33. They are “historical”, in the sense that they did notoccur recently, but they are not the distant past.

For example, the offences in Waterman occurred some 40 years previously. [75] I take no issue that W.P. is a community leader and has the support of many in his family and community. It is evidence of agood reputation and character in the community. But as stated earlier, this must be seen in the context that this is not an unusual aspectof the circumstances of such offenders and was at the expense of H.P.’s wellbeing; by her silence for many years. [76] Finally, as discussed below in relation to the imposition of probation, I am concerned with W.P.’s attitude towards the offences.

I appreciate that he maintains his innocence, and because of this does not have the benefit of remorse. But in this case, there was noevidence proffered, apart from the letters of support, that showed any insight into the wrongfulness of the conduct. To the contrary, hiscounsel’s submission is that no counselling is necessary or needed in this case. Given this, in my view a conditional sentence will notpromote the sense of responsibility or acknowledgment of the harm done. PROBATION ORDER [77] The parties agreed that a period of probation was appropriate.

While counsel for W.P. took no issue with any conditionprohibiting contact between he and H.P., submitted that W.P. does not need counselling or any programming in relation to the offences. [78] I am somewhat troubled by this submission. Probation provides a means of achieving the ultimate purpose, protection of thepublic, without having to incarcerate an individual and is a key tool in the rehabilitation of an offender (Proulx, at paragraph 32).

Programming in relation to underlying causes of particular criminal behavior, by way of a period of probation allows a court to givepractical effect to the principle of rehabilitation one of the objectives under

section 718. [79] An offender’s willingness to take counselling related to considerations that may underlie the impugned criminal conduct, mayprovide compelling evidence to a sentencing court of the offender’s prospects for rehabilitation – even in circumstances where anoffender maintains his innocence as is the case here. For example, in R. v. M. (R.N.) (2001), (NL SC), 198 Nfld. &P.E.I.R. 218, [2001] N.J. No. 58, (Nfld.

S.C. (T.D.)), cited by defence counsel, O’Regan, J. at paragraph 5 noted: 5. …Although the offender denies any involvement in the charges, and still maintains his innocence, he states that he is willing totake counselling for sexual offences in order that he can cope with his own past. [80] See also paragraph 6. [81] In R. v.

B. (E.P.), 2003 NLSCTD 26, also submitted by defence in support of a conditional sentence, Adams, J. found that thewillingness of an offender to comply with any counselling requirements; notwithstanding the offender maintained his innocence, was apositive factor in the consideration of sentence (see paragraphs 20-21). [82] In other words, there was evidence that supported more of an emphasis on the rehabilitative aspects in sentencing not present

here.

The absence of this willingness on W.P.’s part means that, unlike the above cases where conditional sentences were imposed, this positive evidence re relation to W.P.’s prospects for rehabilitation is not available for the Court to consider. [ 83 ] The circumstances of these offences, sexual assault and interference against his granddaughter on two separate occasions, supports that someone in W.P.’s circumstances could benefit from rehabilitative programming or counselling in relation to appropriate conduct towards children. [ 84 ] Notwithstanding his 78 years, it is clear W.P. is still vital, and lives life to its fullest.

Rehabilitation is an objective that is available to all offenders regardless of age. [ 85 ] W.P. shall be subject to a period of supervised probation for two (2) years. The usual mandatory conditions shall apply. W.P. shall also: - Refrain any contact or communication directly or indirectly with H.P. and remain away from her place of residence, schooling or employment; - Report immediately to a supervisor upon release, and thereafter as required; and - Take such counselling as recommending by his supervisor, with particular attention to be counselling with regard to the commission of sexual offences.

ANCILLARY ORDERS [ 86 ] The following ancillary orders are imposed: Firearms’ Prohibition [ 87 ] There will be a firearms prohibition pursuant to section 109 (1) - (2) of the Criminal Code . DNA Order [ 88 ] As both offences are primary designated offences under the Criminal Code , there will be a mandatory order authorizing the taking of DNA from W.P., pursuant

Section 487.051 of the Criminal Code . Sex Offender Information Registration Act [ 89 ] As W.P. has been found guilty of two designated offences under

Section 490.011 of the Criminal Code, W.P. is subject to an order pursuant to pursuant to Sections 490.012(1) and 490.013(2.1) to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“ SOIRA ”) for life. Victim Fine Surcharge [ 90 ] W.P. shall pay victim fine surcharges in relation to both offences as required under the Criminal Code . [ 91 ] There will be no Order under

Section 161 of the Criminal Code as requested by the Crown. There is insufficient evidence to warrant such an order in these circumstances. CONCLUSION [ 92 ] W.P. please stand. On Count 1, the offence under

Section 151, W.P. is sentenced to two (2) months; Count 2 the offence under

Section 271 is stayed, and on Count 3, for the offence of sexual assault, W.P. is sentenced to four (4) months’ imprisonment, for a total of six (6) months’ imprisonment. [ 93 ] Two years supervised probation will follow that sentence. [ 94 ] A DNA order, firearms’ prohibition and SOIRA order are imposed accordingly. _____________________________ Frances J. Knickle Justice