R. v. L., 2018 NLSC 150

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. L. (M.) , 2018 NLSC 150 Date : July 11, 2018 Docket : 201701G1971 Her Majesty The Queen v. L. (M.) 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Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.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 Vikas Khaladkar Reasons for Judgment Given Orally Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: June 18, 2018 Date of Oral Judgment: July 6, 2018

Summary:

The offender was convicted of the offences of sexual interference, invitation to sexual touching, sexual exploitation and sexual assault,contrary to sections 151, 152, 153 and 271 of the Criminal Code. The offender was the complainant’s step-father and occupied a position of trust. The offences stem from a relationship that the offenderengineered and promoted over a 3 year period. Although the offender has no previous criminal record, denunciation and deterrence arethe main applicable sentencing principles.

The offences took place over a period of three years from the time that the complainant was 15 years of age until she became 18 years ofage. Inasmuch as some of the charges occupy the same factual and legal nexus, judicial stays were entered in respect of one count ofsexual interference (Count 2), one count of sexual exploitation (Count 4) and one count of sexual assault (Count 5). Sentencingproceeded with respect to one count each of sexual interference, sexual exploitation and sexual assault A totality analysis was undertaken. The offender is sentenced to six years in prison.

A number of ancillary orders are also made. Appearances: Mr. Mike Murray Appearing on behalf of the Crown Mr. Mark Gruchy Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. L. (M.), 2018 NLSC 48; R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729; R. v. A. (K.J.), (NL CA), [1988] 69 Nfld. & P.E.I.R. 99, [1988] N.J. No. 57 (Nfld. C.A.); R. v. D. (D.), (ON CA),[2002] 58 O.R. (3d) 788, [2002] O.J. No. 1061 (Ont. C.A.). STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Sex Offender Information Registration Act, S.C. 2004, c. 10.

REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] The reasons for finding the offender guilty of all charges brought against him are reported at R. v. L. (M.), 2018 NLSC 48 andI need not go into them again in detail in the reasons for sentence. Suffice it to say that the offender, at all material times, was thecomplainant’s step-father. He occupied a position of significant trust towards her, and he breached that trust by engaging in a three yearaffair with an adolescent girl that involved all manner of sexual activity including sexual intercourse, anal intercourse and oral sex.

Thevictim identified in significant detail, during her testimony, the nature of the crimes and the effect that they had upon her. THE SENTENCING POSITION OF THE PARTIES [2] In many respects, the Crown and Defence are not far apart as to the appropriate sentence. The Crown submits that theoffences warrant a global period of imprisonment of six to seven years; The Crown also seeks victim fine surcharges, a DNA order, alifetime SOIRA registration order, an Order prohibiting contact with the victim during his time in custody under

section 743.21(1) of theCriminal Code, R.S.C. 1985, c. C-46, a 10 year firearms prohibition and a lifetime prohibition with respect to prohibited weapons. [3] Defence submits a total period of five years’ imprisonment is appropriate. [4] The offender is 44 years of age. He has a grade 12 education and has completed some post-secondary education. He had been

working in the human resources field but, since his conviction in this matter, has been unemployed. [5] The offender denied any wrongdoing during the course of his trial and has appealed his conviction. It would not beappropriate, under the circumstances, to expect him to proffer any expressions of remorse or to expect him to acknowledge thatcounselling or treatment services would be of any benefit to him.

I do not consider his position aggravating but cannot completely assesshis prospects for rehabilitation because of it. [6] Both counsel left the decision regarding conditional stays on account of Kienapple principles in the discretion of the Court(see R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729). THE PRINCIPLES OF SENTENCING [7] The principles of sentencing are codified by virtue of sections 718 - 718.2 of the Criminal Code. A sentence must becommensurate with the gravity of the offence and the degree of responsibility of the offender.

It should be similar to sentences imposedon similar offenders for similar offences committed in similar circumstances. Sentences should be increased or reduced to account forany relevant aggravating or mitigating circumstances relating to the offence or the offender. [8] To the extent possible, a sentence must protect the public, promote respect for the law, and assist in maintaining a peacefuland safe society. The court must impose sanctions that are just.

Section 718 sets out the objectives of sentencing, and I am mindful ofthem. To paraphrase, the objectives include denunciation, deterrence: general and specific, separation of the offender from society whereappropriate, rehabilitation, reparation and the promotion of a sense of responsibility in offenders. [9] A fit sentence depends not only on the circumstances of the offence but the circumstances of the offender. This is theoffender’s first conviction and, until convicted, he was gainfully employed.

I acknowledge that the offender is now involved in anotherrelationship and that he enjoys the support of his new common law spouse and, as well, of his family members. All three of theoffender’s references made mention of his positive attributes, including his kindness towards them and others and his generosity. Allthree also saw fit to express their opinion that the offender was incapable of committing the crimes of which he had been convicted andthat he had been wrongfully convicted.

Some saw fit to invite me to contact them for additional information on the issue of the proprietyof his conviction. [10] Whether or not the offender has been wrongfully convicted is a matter that I am certain will be decided in a higher Court. I amnot sure, however, that the expression of these sentiments to the sentencing judge who convicted the offender is altogether appropriate.Just as there are parameters governing the content of victim impact statements in criminal matters, so are there some bounds in relation tocharacter references. The statements I have mentioned cross those boundaries.

I will ignore them for the purposes of sentencing thisoffender but have mentioned the issue because, as a matter of practice, the expression of these types of opinions and invitations needs tobe discouraged. THE OBJECTIVES OF SENTENCING [11] The Crown argued that the offender’s actions were morally repugnant and legally reprehensible.

The abuse of the victimoccurred over an extended period of time and, while there was no physical violence beyond the violence inherent in sexual assaults, thepsychological manipulation of the victim was at the worst end of the spectrum. [12] Crown counsel referred to what have been characterized as the Atkins factors as set out in R. v. A. (K.J.), (NLCA), [1988] 69 Nfld. & P.E.I.R. 99, [1988] N.J. No. 57 (Nfld. C.A.).

In that case the Newfoundland and Labrador Court of Appeal setout the factors that ought to be considered in sentencing in cases of sexual assault. [13] Crown counsel suggested that denunciation and deterrence were the primary considerations of sentencing in this case. Thisaccords with

section 718.01 of the Criminal Code – which mandates that a sentence involving the abuse of a person under the age ofeighteen years must give primary consideration to the objectives of denunciation and deterrence of such conduct. He listed the followingfactors for the Court’s consideration: (

a) The degree of trust involved was high – the offender was the step-father of the victim. (

b) The victim was between 15-18 years of age when the offences occurred. (

c) There was a significant age difference between the offender and the victim – 25 years. (

d) The offences occurred over a period of years and, while it may be difficult to quantify, Crown counsel stated that there would havebeen hundreds of instances according to the evidence. (

e) The level of manipulation utilized by the offender was high. The offences were planned and calculated. (

f) Crown counsel suggested that the offender acted on his knowledge of the victim’s vulnerabilities and used them to manipulate her.

(

g) The offender’s conduct continued despite the victim asking him to stop. (

h) Although the victim did not file a victim impact statement, Crown counsel suggested that the Court is entitled to presume that theoffending behaviour has had long lasting effects on the victim. (

i) Crown counsel suggested that since the offender is denying culpability that he lacks remorse. As I indicated earlier, however, thisis not one of the factors that I will consider in arriving at an appropriate sentencing decision. (

j) The offender has no previous convictions. (

k) The offender’s prospects for rehabilitation are unknown because of his position articulated in (

i) above. It is also not clear whetherhe is willing to access and avail himself of counselling as might be deemed appropriate (

l) The offender has a positive pre-sentence report. (

m) The offender did not plead guilty and, therefore, ought not to receive the benefit of mitigation in that regard. [14] I was referred to a number of decisions by both Crown and defence in support of their positions on sentence. Defence counselargued that the Crown’s case authorities were distinguishable because the facts in those cases seemed worse than the facts in the instantcase. Taken together, both sets of authorities point to a sentence that is in the mid to higher single digit penitentiary term ofimprisonment. ANALYSIS [15] Justice Moldaver has been judging for almost three decades.

For a third of that time he has been a justice of the Supreme Courtof Canada. He succinctly provided the range of sentence for cases such as this one while he was a justice of the Ontario Court of Appeal: I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regularand persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms (R. v. D. (D.), (ON CA), [2002], 58 O.R. (3d) 788 (Ont.

C.A.)). [16] That is precisely the situation that confronts this Court today – an adult offender, occupying a position of trust who has beenconvicted of sexually abusing a young, impressionable teenager over a protracted period of time. A sentence in the mid to upper singledigit range is appropriate. [17] I propose to levy the sentences for each of the 6 counts in the indictment. Then I will determine which of the charges should beconditionally stayed, pending appellate scrutiny of my earlier decision on conviction and, lastly, I will perform a totality analysis toarrive at the final sentence.

Sentences without adjusting for Kienapple or totality [18] The sentences for each of the counts, then, would be as follows: Count No. Description of Charge Sentence1 Sexual Interference – s.151 CC 4 years2 Sexual Interference – s.151 CC 4 years 3 Sexual Exploitation – s.153(1)(

a) CC 6 years 4 Sexual Exploitation –s.153(1(

b) CC 6 years 5 Sexual Assault – s.271(a) 6 years 6 Sexual Assault – s.271(a) 6 years The Kienapple Adjustment [19] Counts 1 and 2 both allege sexual interference but at different times – count 1 deals with conduct that occurred when the victimwas 15 and up to the 8th of August, and Count 2 deals with conduct that occurred from August 9th to her 16th birthday. Under Kienappleprinciples one of those charges is superfluous and I conditionally stay Count 2 pending appeal. [20] Counts 3 and 4 are charges of sexual exploitation and both engage the same time periods – November 7, 2012 until November

7, 2014. The charges cover the time period from when the victim was 16 until she turned 18 years of age. Under Kienapple principles one of those charges is superfluous and I conditionally stay Count 4 pending appeal. [ 21 ] Counts 5 and 6 are charges of sexual assault that span the period November 7, 2011 until April 1, 2015. Under Kienapple principles one of these charges is superfluous and I conditionally stay Count 5 pending appeal. Adjusting for Totality [ 22 ] I am left, therefore, with counts Count 1, 3 and 6: for which I have indicated that sentences of 4, 6 and 6 years, respectively, would be appropriate.

Ordinarily, separate criminal adventures ought to be dealt with by consecutive sentences. Sexual interference, sexual exploitation and sexual assault are separate and distinct offences that are committed by separate and distinct behaviours. Ordinarily, therefore, the cumulative effect of the three sentences would be 16 years in prison.

However, such a sentence would be crushing for a first time offender. [ 23 ] Taking the principle of totality into consideration, the sentence imposed shall be: 6 years for Count 3, sexual exploitation, 4 years concurrent for Count 1, sexual interference and 6 years concurrent for Count 6, sexual assault. The total sentence, then, is 6 years. No time was spent on remand. [ 24 ] In addition to the sentence of incarceration, I make the following ancillary orders: 1.

Victim fine surcharges under section 737(2) of the Criminal Code of $200 in respect of each conviction for a total of $600 – which are to be paid within 30 days. 2. The offences are all primary designated offences and there shall be a mandatory DNA Order pursuant to

section 487.051 of the Criminal Code requiring the offender to provide the number of bodily substances that are reasonably required for the purpose of forensic DNA analysis. 3. All three charges are designated offences under

section 490.011 (

a) of the Criminal Code . I Order the offender to comply with the Sex Offender Information Registration Act , S.C. 2004, c. 10 . Pursuant to

section 490.013(2.1) of the Criminal Code the duration of the Order is for life. 4. I have considered Crown’s request to consider an Order under

section 161 of the Criminal Code and, given the circumstances of this case, I do not think that a

section 161 Order is warranted. 5. Pursuant to

section 743.21(1) of the Criminal Code , the offender is to have no contact or communication with the victim, S.R., during the custodial period of sentence. 6. There shall be an Order pursuant to

section 109 prohibiting the offender from having in his possession any firearm, crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years. In addition, the offender shall be prohibited from having in his possession any prohibited firearm or restricted firearm for life. _____________________________ Vikas Khaladkar Justice