R. v. G.H., 2020 NLSC 12

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. G.H. , 2020 NLSC 12 Date : January 30, 2020 Docket : 201801G5447 Her Majesty The Queen v. G.H. 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Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.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 James P. Adams Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: September 23, 24, 25, 26, 27, 30, 2019 October 1, 2, 3, 22, 2019 January 14, 30, 2020

Summary: G.H. was convicted of sexual assault and exposure of his genitals to E.H., his partner’s niece. The assaults ranged from touching E.H.’s breasts outside her clothing to several incidents of sexual intercourse. G.H. was sentenced to a total of 3.5 years in prison, plus he was placed on the Sex Offender Registry. Appearances: Shawn I. Patten Appearing on behalf of the Crown

Rosellen Sullivan Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. G.H., 2019 NLSC 197; R. v. A.(K.J.), (1988) (NL CA), 69 Nfld. & P.E.I.R. 99, 1988CarswellNfld 124 (C.A.); R. v. B. (A.), 2015 NLCA 19; R. v. Barrett, 2012 NLCA 46; R. v. W. (L. F.) (1997), (NLCA), 155 Nfld. & P.E.I.R. 115, 1997 CarswellNfld 173 (C.A.); R. v. Branton, 2013 NLCA 61; R. v. M. (C.A.), 1996 SCC 230; R. v.Giovannini, 2016 NLTD(G) 160; R. v. J.B., 2018 Carswell Nfld 397, 151 W.C.B. (2d) 660 (Prov. Ct.); R. v. W.P., 2018 NLSC 113; R. v.P.N., 2011 NLTD(G) 158; R. v. I.K.L., 2011 NLTD(G) 7; R. v.

A.T.S., 2004 NLCA 1; R. v. Hutchings, 2012 NLCA 2 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Sex Offender Information Registry Act, S.C. 2004, c. 10 REASONS FOR JUDGMENT Adams, J.: INTRODUCTION [1] G.H. was convicted on 3 October 2019 by a jury of two counts of sexual assault on E.H., contrary to

section 271(

a) of theCriminal Code, R.S.C. 1985, c. C-46 and one count of exposing his genitals to E.H., contrary to section 173(2) of the Criminal Code. E.H. was 13 years old at the time of the offences. This is my decision on sentencing. background [2] The relevant sections of the Criminal Code state: 271 Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or 173(2) Every person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of 16years (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years and to a minimum punishment ofimprisonment for a term of 90 days; or [3] G.H. is the common law partner of E.H.’s aunt, E.H.’s mother’s sister, L. G.H. lives in a community close to St. John’s wherehe owns a home. He also owns a trailer which he often brought to the Arnold’s Cove area for the summer. [4] E.H. and her family often visited G.H. and L.’s home and their trailer. G.H. had recreational vehicles such as an ATV and aside by side.

At times, G.H. took E.H. for a ride in these recreational vehicles. [5] Following the trial, the Crown conceded that the evidence in each of the counts was ambiguous. E.H. had testified that therewere several incidents of sexual assault ranging from the touching of E.H.’s breasts to sexual intercourse. She also testified that therewere several incidents of exposure. [6] In light of this, the Crown applied, pursuant to

section 724 of the Criminal Code to have the Court determine the facts to berelied on for the purpose of sentencing, a so called Gardiner application. On 4 November 2019 I rendered a decision in the Gardinerapplication and made the following factual determinations (R. v. G.H., 2019 NLSC 197). [7] In respect of count number 2, sexual assault, I found the following facts on the balance of probabilities: G.H. touched E.H.’sbreasts over her clothes in the smoke room in the basement of his house on one occasion. [8] In respect of count number 4, exposure, I found on a balance of probabilities that G.H. exposed his genital organs to E.H. on a

number of occasions, including in his truck while he masturbated, in the smoke room in his house and in the pictures and videos he sent to E.H. via Snapchat. [ 9 ] In respect of count number 5, sexual assault, I determined that the Crown had proved beyond a reasonable doubt that G.H. had had sexual intercourse with E.H. on four occasions at or near Arnold’s Cove, Newfoundland and Labrador. These occurred while G.H. had taken E.H. for a ride on either his ATV or his side by side. considerations [ 10 ] The principles of sentencing are set out in sections 718 to 718.2 of the Criminal Code .

Those sections provide: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

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. 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. … 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, … (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, … shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [11] In applying these principles, the courts have established a number of factors to be considered based on the facts of each case. InR. v. A.(K.J.), (1988) (NL CA), 69 Nfld. & P.E.I.R. 99, 1988 CarswellNfld 124 (C.A.) commonly known as the“Atkins” case, Goodridge, C.J.N. set out a list of factors to be applied when imposing sentence.

These have been applied almostuniversally in this Court. In paragraphs 32 and 33, he stated: 32. There are many factors to be considered in imposing sentence in any case.

In cases of sexual assault these factors include theextent of the assault (for sexual assault encompasses a very wide range of human misbehaviour), the degree of violence or force used, theimpact of the crime upon the victim, the family of the victim and the offender, the degree of trust involved, public abhorrence to the typeof crime involved, the attitude of the offender to what he has done, his plea, the biological and psychiatric factors that lead to thecommission of the offence, the need for specific and general deterrence, the prospect of successful rehabilitation, the antecedents and ageof the offender, the time spent in custody prior to trial and sentences imposed by other courts in Newfoundland and elsewhere in Canada. 33.

Vengeance is not a factor. A sentence is designed to protect the public, not to abate its anger at a particular crime. As hasfrequently been said, protection is attained through a balance of deterrence and rehabilitation. Neither should overwhelm or negate theother. The proper balance will vary from case to case. [12] In R. v. B. (A.), 2015 NLCA 19, the Court of Appeal expanded on the Atkins factors and added a few more. At paragraph 26,the Court provided a

summary of factors to be applied as drawn from a review of the relevant case law: 26. … 1. Position of trust, more serious where the offender is in a position of authority; 2. Age of the victim, being less serious where the victim is close to the age of consent; 3. Significant age difference between the parties; 4. Sexual encounters occurring over a period of time; 5. Manipulation of the victim; 6. Planned or calculated conduct by the offender;

7. Knowledge of and acting on the victim's vulnerability; 8. Continuation of conduct after being warned; 9. Particular impact on the victim; 10. Lack of remorse or acceptance of responsibility; placing of blame on the victim or others; limited appreciation of the harm caused; minimization of the offence; 11. Previous criminal record; 12. Prospects for rehabilitation and risk of re-offending; 13. Positive pre-sentence report; 14. Guilty plea; and 15.

Willingness to access counselling. [ 13 ] The range of sentence in the case of an adult committing sexual assault involving intercourse with a complainant who is under the age of consent is from three to seven years: R. v. Barrett , 2012 NLCA 46 , paragraph 43 . In B. (A.) , the Court of Appeal established that three years’ imprisonment is at the low end of that range and that three years is a starting point. Counsel for G.H. conceded this point. [ 14 ] I will now apply the relevant factors in B. (A.) and Atkins to the case at hand.

There is some overlap. 1) Position of Trust [ 15 ] While there was no legal position of trust between G.H. and E.H., I find there was a general position of trust. G.H. was the romantic partner of E.H.’s aunt, her mother’s sister. E.H. was entitled to feel safe in his company. 2) Age of Victim [ 16 ] E.H. was 13 years old at the time of the offence in 2016. 3) Age Difference Between the Parties [ 17 ] There was a significant age difference between the complainant and the offender.

G.H. was approximately 59 years of age and E.H. was 13 at the time of the offences. 4) Time of the Offences [ 18 ] The offences occurred over several months in 2016 between June and August. There was more than one occasion of assault and of exposure. 5) Manipulation of Victim [ 19 ] There was little evidence of manipulation. However, G.H. provided E.H. with a cellphone and a data package which he used to contact her often. He offered her rides in his recreational vehicles. He showed favoritism to E.H. over her sibling.

There was no evidence of factual consent by E.H. 6) Planned and Calculated [ 20 ] There was no evidence of actual planning by G.H. However, he took advantage of opportunities to assault E.H. when she was visiting his home or his trailer. 7) Knowledge of and Acting on Victim’s Vulnerability

[21] G.H. knew he could take advantage of E.H. due to her age and accessibility. He knew her parents trusted him to be alone withher. 8) Continuation of Conduct After Being Warned [22] There was no evidence of this in this case. 9) Impact on the Victim [23] E.H. suffered a serious impact from the assaults. She read her Victim Impact Statement into the record. At times it waspoignant and revealing. She stated in part: As a result of my toxic childhood, I have developed severe depression, anxiety, and PTSD. I see a counsellor and a psychiatrist.

I alsomake frequent trips to my family doctor and the emergency for migraines due to stress. This is not how my life should be at 16. I wouldprefer to be exploring and enjoying my life, rather than spending so much time alone and thinking about how this has impacted me. [24] E.H. complained of having suicidal thoughts and that the assaults impacted the way she felt about herself and others. She statedthat she has “ongoing trust and relationship issues”. She said the incidents have “taken my childhood years … and my confidence.” [25] There were portions of the Victim Impact Statement which were inadmissible.

I have not taken them into consideration in mydecision. 10) Lack of Remorse or Acceptance of Responsibility [26] G.H. has maintained his innocence which he has every right to do. However, he has not shown any remorse or empathytowards E.H. 11) Previous Criminal Record [27] G.H. has no prior criminal record. 12) Prospects for Rehabilitation [28] A Pre-Sentence Report (“PSR”) was conducted by Jason Kelloway, an Adult Probation Officer dated 3 January 2020. At Page11 of the report, G.H. was found to be a low risk to reoffend.

I agree with Crown counsel that, in light of G.H.’s denial of havingcommitted the offences, it is difficult to predict G.H.’s prospects for rehabilitation. 13) Pre-Sentence Report [29] The PSR was generally positive. 14) Plea [30] G.H. pleaded not guilty. This is not an aggravating factor. 15) Willingness to Access Counselling [31] G.H. expressed a willingness in the PSR to abide by any conditions imposed by the Court. However, the Court has no authorityto mandate counselling. [32] I now turn to apply the Atkins factors except where they have already been addressed above.

Extent of the Assault [33] Sexual intercourse is the most serious assault and arguably the greatest violation of the victim’s physical integrity. However,the assault in the smoke room was also a serious incident in light of E.H.’s age and vulnerability. The exposure of his genitals by G.H.was a crude and insulting violation of E.H.’s personal integrity. Degree of Violence [34] There was no evidence of physical violence except that which is inherent in any sexual assault. Impact on the Victim, the Offender and their Families [35] I have already dealt with the impact on E.H.

There is no evidence of the impact on G.H. or E.H.’s family, although, it wasnoted throughout that there were several people from the families of both E.H. and G.H. who sat through the trial. Public Abhorrence of the Crime [36] The public maintains the greatest abhorrence of crimes such as those here, particularly an adult having sexual intercourse with achild: R. v. W. (L. F.) (1997), (NL CA), 155 Nfld. & P.E.I.R. 115, 1997 CarswellNfld 173 (C.A.)

The Need for General and Specific Deterrence [ 37 ] Specific and general deterrence is the main principle of sentencing to be applied in determining a sentence in a case such as this. The sentence must be sufficient to warn the offender and the general public that crimes of this sort will be dealt with harshly by the Court. [ 38 ] In R. v. Branton , 2013 NLCA 61 the Court of Appeal directed judges to give primary consideration to denunciation and deterrence when weighing and balancing the objectives of sentencing where the facts involve the sexual violation of a child. At paragraph 19, the Court stated: 19. By enacting

section 718.01, Parliament has recognized that offences involving the abuse of children and young persons call for special attention. Abuse which constitutes criminal conduct is wrong no matter what the age of the victim, but criminal abuse of persons under 18 years of age is particularly serious because young persons are less able than mature adults to withstand assaults to their persons because of their physical, mental and emotional immaturity. They are also more likely to be more vulnerable to emotional scarring, as they are still "finding themselves" in these formative years.

For this reason offenders who criminally abuse young people are particularly deserving of society's denunciation. They must be made to realize, or to be reminded, that what they have done is wrong. This denunciation also affords some reparation to young victims, who need reassurance that they are not to be blamed for what has happened to them so that they can move on with their lives.

Offenders and like-minded others who abuse young people must also be deterred from repeating or engaging in the criminal abuse of young persons by the knowledge that sentences involving such conduct are going to be treated seriously by the justice system. Antecedents and Age of the Offender [ 39 ] The PSR states that G.H. is currently 63 years of age, having been born on 23 June 1956. G.H. claims to have had a healthy home life as a child. He maintains a close relationship with his elderly mother. G.H. has been gainfully employed his entire life.

He took a medical leave of absence from his current employer when he was charged with these offences. G.H. has a high school education and some post-secondary education in mechanics. [ 40 ] G.H. owns his own home where he resides with his common law partner of eight years. He denies any problems with substance abuse and he is in generally good health, although he claims to suffer from stress due to these charges. He enjoys the support of his partner.

Sentences Imposed in Courts in Newfoundland and Labrador and Elsewhere in Canada [ 41 ] While these cases are instructive, sentencing is a very individualistic task and each case will largely depend on its own circumstances ( R. v. M. (C.A.) , 1996 SCC 230 , paragraph 92). [ 42 ] The following authorities were referred to by the parties: Crown Count No. 5 • R. v. Giovannini , 2016 NLTD(G) 160 [ 43 ] Giovannini was convicted of sexual assault, sexual interference and luring of a 14 year old girl. The offender repeatedly ignored the pleas for him to stop.

He drove the victim to a secluded spot where he had sexual intercourse with her. Hall, J. imposed a sentence of 3.5 years’ imprisonment. • R. v. Barrett , supra [ 44 ] Barrett sexually assaulted three young girls aged 14 and 12, committing sexual intercourse with two of them. He persistently ignored one of the girl’s (B.S.) express wish not to engage in intercourse and exposed her to the risk of pregnancy.

The Court of Appeal held that three years’ imprisonment was an appropriate sentence for the other girl with whom Barrett had had sexual intercourse and in which there was evidence of factual consent although the victim could not legally consent. The Court imposed a sentence of 3.5 years in respect of the assaults on B.H. to account for Barrett’s treatment of her. • R. v. J.B. , 2018 Carswell Nfld 397, 151 W.C.B. (2d) 660 (Prov. Ct.) [ 45 ] J.B. pleaded guilty to having transmitted sexually explicit material to a person under 16 and sexual assault of a minor, among other things.

There was a joint submission of four years’ imprisonment. The offences involved several incidents of intercourse, numerous aggravating factors, and a significant difference in age between the offender and the victim. The offender did not have a criminal record, had a relatively positive PSR, and was in a position of trust being akin to an uncle. The victim suffered significant negative consequences. Gorman, P.C.J. reluctantly imposed a sentence of four years, feeling himself bound by the joint submission of counsel. Count No. 2 • R. v.

W.P. , 2018 NLSC 113 [ 46 ] W.P. was convicted of touching his granddaughter in the vaginal area outside her clothing while he was a passenger behind her on a snowmobile. In order to stop him H.P. deliberately crashed the snowmobile. She was 12 – 13 years old at the time. On another occasion when she was 15 years old W.P. was taking H.P. for a driving lesson in his vehicle. While driving, W.P. reached his hand across and moved his hand up and down H.P.’s leg until his fingers were touching her vagina inside her shorts and underwear. She told

him to stop in no uncertain terms and he did. He later apologized. The aggravating factors were that the offence was committed on a child and that the offender was in a very high level of trust towards the victim, his granddaughter. The Court found that W.P. had a high level of moral blameworthiness. These were historical offences. Mitigating circumstances were that W.P. had no previous criminal record and strong family supports and that the circumstances of the offences were on the less serious side.

He was sentenced by Knickle, J. to a total of six (6) months’ imprisonment, 2 years’ probation and was placed on the Sex Offender Registry. Defence • R. v. P.N. , 2011 NLTD(G) 158 [ 47 ] P.N. committed sexual assault by having intercourse with his 23 year old niece and threatening her. The offender forced his way into the victim’s home while her infant child lay on the bed by the victim hysterically crying during the assault. The offender had no criminal record and showed no remorse or empathy for the victim. There were particularly aggravating factors. There was no position of trust.

The Court imposed a sentence of three years. • R. v. I.K.L., 2011 NLTD(G) 7 [ 48 ] The offender who was 18 years old pleaded guilty to sexual assault and numerous incident of intercourse with his 11 year old niece. There was a joint submission of sentence for three years. The Court imposed the three year sentence (declared to be on the low end of the range) due to mitigating circumstances of a guilty plea, the victim not having to testify and positive prospects for rehabilitation of the offender.

Aggravating factors included: the age of the victim, the number of incidents of intercourse, breach of trust in a family setting and very negative consequences for the victim. • R. v. A.T.S. , 2004 NLCA 1 [ 49 ] A.T.S. committed numerous sexual assaults including intercourse on his three children. In the most serious case, (W.S.) the assaults continued for over eight years and included incest. The accused pleaded guilty. There was severe emotional impact on W.S. There was a total sentence of three years which was increased on appeal to four years. issue [ 50 ] What is an appropriate sentence for G.H.?

Positions of the parties Crown [ 51 ] The Crown submitted that G.H. should be sentenced to one year in prison on Count No. 2 (which is the minimum prescribed under the section), six to nine months on Count No. 4 and four years on Count No. 5. This would total five years, six – nine months, which, pursuant to the totality principle, the Crown conceded would be excessive in the circumstances.

The Crown then suggested that the sentence in Count No. 2 and Count No. 4 be made concurrent to that in Count No. 5 for a total of four years in prison. [ 52 ] The Crown also requested the following ancillary orders be imposed: A DNA Order, registration under the sexual offender registry and a non-communication Order. Defence [ 53 ] Counsel for G.H. agreed with the Crown’s submissions on the applicable legal principles.

She also agreed with the Crown’s submission on Counts 2 and 4 but disagreed with the submission on Count No. 5 in respect of which she submitted a fit sentence would be three years in all the circumstances. [ 54 ] Counsel agree that the totality principle should be applied to make Counts 2 and 4 concurrent with Count 5 for a total of three years in prison. She took no issue with the Crown’s submissions on ancillary orders. decision [ 55 ] Where an offender is convicted of multiple offences, the appropriate approach to sentencing was set out in R. v. Hutchings , 2012 NLCA 2 , at paragraph 84 : 84.

The foregoing analysis, as well as the fact that the Ruby formulation which was referred to in M. (C.A.), pre-dated ss. 718.1 and 718.2 (c), requires a restatement of the applicable approach. I would state the following as guidelines for the analytical approach to be taken henceforth: 1. When sentencing for multiple offences, the sentencing judge should commence by identifying a proper sentence for each offence, applying proper sentencing principles.

2. The judge should then consider whether any of the individual sentences should be made consecutive or concurrent on the ground that they constitute a single criminal adventure, without consideration of the totality principle at this stage. 3. Whenever, following the determinations in steps 1 and 2, the imposition of two or more sentences, to be served consecutively, is indicated, the application of the totality principle is potentially engaged. The sentencing judge must therefore turn his or her mind to its application. 4.

The approach is to take one last look at the combined sentence to determine whether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender. 5. In determining whether the combined sentence is unduly long or harsh and not proportionate to the gravity of the offence and the degree of responsibility of the offender, the sentencing court should, to the extent of their relevance in the particular circumstances of the case, take into account, and balance, the following factors: (

a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved; (

b) the number and gravity of the offences involved; (

c) the offender's criminal record; (

d) the impact of the combined sentence on the offender's prospects for rehabilitation, in the sense that it may be harsh or crushing; (

e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender's degree of responsibility. 6. Where the sentencing judge concludes, in light of the application of those factors identified in Step 5 that are deemed to be relevant, that the combined sentence is unduly long or harsh and not proportionate to the gravity of the offences and the offender's degree of responsibility, the judge should proceed to determine the extent to which the combined sentence should be reduced to achieve a proper totality.

If, on the other hand, the judge concludes that the combined sentence is not unduly long or harsh, the sentence must stand. 7. Where the sentencing court determines that it is appropriate to reduce the combined sentence to achieve a proper totality, it should first attempt to adjust one or more of the sentences by making it or them concurrent with other sentences, but if that does not achieve the proper result, the court may in addition, or instead, reduce the length of an individual sentence below what it would otherwise have been. 8.

In imposing individual sentences adjusted for totality, the judge should be careful to identify: (

a) the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, without considerations of totality; (

b) the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and (

c) the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are, for this purpose, to be made concurrent or to be otherwise reduced. 9. Finally, the sentencing judge should indicate whether one or more of the resulting sentences should be further reduced to reflect any credit for pre-trial custody and if so, by how much.

Count No. 2 – Sexual Assault [ 56 ] I agree with counsel for the Crown and defence that the appropriate sentence for Count No. 2 should be on the low side. It involved touching of the victim’s breasts outside her clothing on one occasion in the offender’s home.

Section 271 (

a) of the Criminal Code mandates in the case of a sexual assault on a complainant under 16 years of age a minimum sentence of one year imprisonment. [ 57 ] In light of all of the circumstances of the offence, including deterrence, rehabilitation and the effect on the victim, I find the appropriate sentence on Count No. 2 is one year imprisonment. Count No. 4 [ 58 ] Section 173(2) (

a) of the Criminal Code mandates a minimum sentence of 90 days’ imprisonment for this offence. It involved G.H. exposing his genitals to E.H. on a number of occasions both directly and indirectly through photographs and videos and included masturbation. I find the appropriate sentence to be nine months’ imprisonment. Count No. 5 [ 59 ] This is the most serious of the offences. It involved several incidents of sexual intercourse.

Aggravating factors include the age of E.H. and familial relationship between G.H. and E.H., the age difference between them and the lack of any remorse or empathy by G.H. [ 60 ] I find the Crown’s suggestion of four years to be somewhat excessive in the circumstances. The only previous decision in which four years was imposed was in A.T.S . which involved a horrific fact situation involving a father severely assaulting his young daughter by numerous incidents of intercourse, among other things, over a lengthy period of years.

This is a far worse case than the one before me. [ 61 ] I find the suggestion by the defence of three years to be somewhat too lenient. While I was referred to cases where that was the sentence for sexual intercourse with a minor, as already noted, each case is dependent on its own facts. In this case, the aggravating factors referred to above in respect of section 173(2) (

a) plus the exposure of E.H. to the possibility of pregnancy mandate a somewhat higher sentence than the minimum of the range. [ 62 ] I therefore find the appropriate sentence for Count No. 5, sexual assault, to be 3.5 years. [ 63 ] In accordance with Hutchings , supra , I must consider whether any of the sentences should be concurrent on the ground that they constitute a single criminal adventure. [ 64 ] The offences occurred over the summer of 2016 roughly between the months of June and August.

The actual dates of the offences are unclear but the period is somewhere between one month and approximately three months. They occurred at different locations and involved different forms of sexual misconduct by G.H.

I find they do not constitute a single criminal adventure, therefore, the sentences should be consecutive. [ 65 ] The combined sentence is therefore 3.5 years plus one year plus nine months, for a total of five years and three months. [ 66 ] This constitutes a sentence that is substantially longer than the normal level of sentence which might be imposed for the most serious of the offences, Count No. 5.

Bearing this in mind, together with the number of offences, G.H.’s lack of a criminal record, his chances for rehabilitation and the effects of the assaults on E.H., I find that the combined sentence is unduly long and not proportionate to the gravity of the offences and G.H.’s degree of responsibility. conclusion [ 67 ] I find that the appropriate sentence is 3.5 years in prison. To achieve this result, I make the sentences in Counts 2 and 4 concurrent with Count No. 5. G.H. was remanded into custody on 14 January 2020, that is 16 days ago.

I therefore give him credit of 1.5 days for each day he has been in prison since 14 January which amounts to 24 days for the time served in prison to date. That means that G.H. will serve 3.5 years, less 24 days. [ 68 ] I also impose the following ancillary orders: 1) Pursuant to section 523(1)(b)(ii), the conditions under which G.H. was released following his conviction and sentencing are revoked; 2) Pursuant to

section 487.051, G.H. shall allow the taking of the number of samples of bodily substances that is reasonably required for the purpose of DNA analysis; 3) Pursuant to

section 743.21, G.H. is prohibited during his custodial period from communicating either directly or indirectly with E.H. or her immediate family (i.e., her father, mother and brother); 4) Pursuant to

section 490.012(1) and 490.013(2) of the Criminal Code , G.H., having been convicted of two designated offences under

section 490.11 of the Code , is ordered to comply with the Sex Offender Information Registry Act , S.C. 2004, c. 10 (“ SOIRA ”) for life.

_____________________________ James P. Adams Justice