R. v. D.C., 2020 NLSC 78

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. D.C. , 2020 NLSC 78 Date : May 21, 2020 Docket : 201808G0109 Her Majesty The Queen v. D.C. 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Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.

AND: Restriction on Publication: By court order made under subsection 539(1) of the Criminal Code , the evidence taken at the Preliminary Inquiry shall not be published in any document or broadcast or transmitted in any way until the Accused is discharged after the preliminary hearing, or, if the Accused is committed to stand trial, until the end of the trial. Before: Justice Frances J. Knickle Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Dates of Hearing: May 6, 2020

Summary: The Accused was convicted having committed sexual offences against his step-daughter when she was between the ages of 5 to 6 years

old, and 11 years old. The sexual contact started with fondling and progressed to full intercourse. The Accused was sentenced to aperiod of imprisonment totaling seven years. In company with the usual ancillary orders, the Court also imposed a lifetime order undersection 161 of the Criminal Code. Appearances: Stephen A. Anstey Appearing on behalf of the Crown Scott Hughes Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. D.C., 2019 NLSC 227; R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729; R. v. Lacasse, 2015SCC 64; R. v. Friesen, 2020 SCC 9; R. v. B.(A.), 2015 NLCA 19; R. v.

Kendell, 2017 NLTD (G) 145; R. v. L.(M.), 2018 NLSC 150; R.v. Lander, 2018 ONCJ 368; R. v. D. H., 2018 BCPC 2135; R. v. S.S.S., 2018 BCSC 2470; R. v. Scott (2014), 359 Nfld. & P.E.I.R 179,121 W.C.B. (2d) 609 (NLPC); R. v. Cooper, 2011 NLTD(G) 121; R. v. Hammond, 2011 NLTD(G) 8; R. v. Hann (1992), (NL CA), 100 Nfld. & P.E.I.R. 339, 17 W.C.B. (2d) 55 (Nfld. C.A.); R. v. Hutchings, 2012 NLCA 2. STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46; Sex Offender Information Registry Act, S.C. 2004, c. 10.

REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] D.C. was found guilty after a trial of having committed several sexual offences against his step-daughter, R.W. The allegedconduct ranged from rubbing her vagina when R.W. was 5 or 6 years old, to full intercourse when she was 11 years old. The trialproceeded over the course of four days. Upon being found guilty, D.C. was remanded into custody and has been in custody since thattime. The sentencing hearing was scheduled to proceed in February of 2020, however the hearing had to be postponed due to a change incounsel for D.C.

The hearing was then scheduled to proceed in late March but again had to be postponed, in part because of the COVID-19 pandemic. The hearing proceeded on May 6, 2020. [2] This is the decision on sentencing. THE CIRCUMSTANCES OF THE OFFENCES [3] The evidence at trial was reviewed in detail in the decision on verdict in R. v. D.C., 2019 NLSC 227. R.W. testified D.C. hadintercourse with her maybe three to four times, and that the number of sexual assaults overall were between ten and fifteen times. However she could be specific about a few incidents. These are the incidents for which I am sentencing D.C.

The facts will not berepeated in detail except to the extent necessary to explain the sentence imposed. A brief

summary of the particular facts on the specificcounts is provided below. Count 1 –

Section 151 - touching for a sexual purpose between January 1, 2007 and December 31, 2012 [4] Count 1 consisted of three incidents when D.C. rubbed R.W.’s vagina while she was very young. The first incident occurredwhen R.W. was 5 or 6 years old; the second incident as described when she was in Grade four; and the third specific incident that R.W.confirmed started in the living room and finished in the bedroom. While R.W. testified there were other incidents, she could notremember the details. [5] On the first occasion, D.C. came into R.W.’s bedroom asking if she wanted to have her back rubbed.

He gradually moved hishands down her back until he rubbed her vagina, both outside and inside her underwear. He stopped when she asked, and apologized toher. [6] R.W. described another incident when she was sleeping in her mother’s bedroom. D.C. again came into the room and gave her

a back rub, working his hand down towards her vagina. This time he placed his fingers in her vagina. R.W. testified this was the secondor third incident, and occurred about a month before her younger sister was killed in a car accident. [7] There was another specific incident at a different residence when R.W. was 8 or 9 years old. This time D.C. not only rubbedher vagina with his fingers, and placed his fingers inside, but also licked her vagina. [8] R.W. stated that D.C. apologized each time he committed the offences against her, saying he would never do it again. Count 2 -

Section 151- touching for a sexual purpose [9] R.W. also described two specific incidences of intercourse. The progression of touching was similar to the earlier incidences,but resulted in intercourse with R.W. Both incidences occurred when she was in her bedroom. D.C. apologized but also told R.W. notto tell anyone or she and her mother would “lose” him. R.W. found the intercourse painful. After the first incident, R.W. noticed bloodon her underwear. Count 3 –

Section 152 - invitation to sexual touching [10] With respect to Count 3, in the first incident of intercourse, R.W. testified that the Accused took her hand and placed it on hispenis. Count 4 –

Section 271 - sexual assault [11] This count covers the same conduct as Counts 2 and 3. Given this, while I have found D.C. guilty of this offence, I amconditionally entering a stay of proceedings against this count under the principles in R. v. Kienapple, (SCC), [1975] 1S.C.R. 729. THE PRINCIPLES OF SENTENCING [12] The principles of sentencing are codified under the Criminal Code of Canada, R.S.C. 1985, c. C-46, at sections 718 to 718.2. [13] Under

section 718.1, a sentence must be commensurate with the gravity of the offence and the degree of responsibility of theoffender, sometimes referred to as the level of “moral blameworthiness” or the “proportionality principle.” Wagner, C. J. in R. v.Lacasse, 2015 SCC 64 explained the relationship between the proportionality principle to its subset the “parity principle” in sentencing,at paragraph 12: 12. In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentenceimposed on an offender.

The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, theheavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences,but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. … [14] The fit or proportionate sentence must serve the fundamental principle under

section 718: 718. Purpose The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for thelaw 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. [15] Under

section 718.01, where sentences are imposed for offences committed against persons under 18 years of age, the courtshall give primary consideration to the principles of denunciation and deterrence. Under

section 718.2(a), a sentence should be increasedor decreased according to any aggravating or mitigating factors. Under

section 718.2 (a)(ii.1), abuse of a victim under the age of 18 is anaggravating factor, and under

section 718.2(a)(iii), that the offender was in a position of trust towards the victim is also aggravating.

R. v. Friesen, 2020 SCC 9 [16] The Supreme Court of Canada had opportunity recently to review the principles of sentencing as they relate to sexual offencesagainst children, and in particular the fitness of a particular sentence for sexual interference, in R. v. Friesen, 2020 SCC 9. Thecircumstances in that case involved a violent sexual assault upon a 4 year old child.

After the appellate court had reduced the initialsentence, upon further appeal, the Supreme Court reinstated the sentence imposed by the trial judge of six years imprisonment. [17] Apart from reaffirmation of the approach of appellate courts to the review of sentences imposed at the initial instance, theSupreme Court of Canada provided a thorough review of sentencing in this area of criminal law. At paragraph 30, the court stated: Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences againstchildren in the Criminal Code.

Our society is committed to protecting children and ensuring their rights and interests are respected (Bakerv. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, at para. 67). As Otis J.A. stated inR. v. L. (J.-J.) (1998), (QC CA), 126 C.C.C. (3d) 235 (Que. C.A.), [translation] “the protection of childrenconstitute[s] one of the essential and perennial values” of Canadian society (p. 250). Protecting children from becoming victims of sexualoffences is thus vital in a free and democratic society (R. v.

Mills, 2019 SCC 22, at para. 23). [18] Friesen also provided clear direction about the approach to sentencing of offenders for sexual offences against children. Atparagraph five, the court stated: Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerabilityand cause profound harm to children, families, and communities. Sentences for these crimes must increase.

Courts must imposesentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, asinformed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and the harmfulness ofsexual violence against children. [19] The Supreme Court of Canada stated that given that Parliament has increased maximum sentences for many of the sexualoffences in the Criminal Code, this is a signal to sentencing courts that Parliament intended that such offenders be sentenced moreharshly and is a shift in “the distribution of proportionate sentences for an offence” (see Friesen, at paragraphs 95 to 100).

As stated at inFriesen at paragraph 100: Sentencing judges and appellate courts need to give effect to Parliament’s clear and repeated signals to increase sentences imposed forthese offences. [20] Friesen explains the gravity of sexual offences against children; the long term emotional harm on both the victims and familiesinvolved. It is important that the sentencing court understand that the harm involved in these kinds of offences goes beyond potentialphysical harm; although of course that may well be present.

At paragraphs 57 and 58, the court stated: [57] A number of this Court’s decisions provide insight into these forms of harm. In R. v. L. (D.O.), (SCC), [1993] 4S.C.R. 419, L’Heureux-Dubé J. emphasized the emotional trauma that the nine-year old complainant experienced from sexual violence(pp. 439-42). Similarly, in McDonnell, McLachlin J. (as she then was) stressed the emotional harm of “the violation of the child victim’sintegrity and sense of self-worth and control over her body” that the child victim experienced as a result of being sexually assaulted whilesleeping (para. 111).

The likely result of the sexual assault would be “shame, embarrassment, unresolved anger, a reduced ability to trustothers and fear that . . . people could and would abuse her and her body” (para. 113). [58] These forms of harm are particularly pronounced for children. Sexual violence can interfere with children’s self-fulfillment andhealthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities toovercome adversity (Sharpe, at paras. 158, 184-85 and 188, per L’Heureux-Dubé, Gonthier and Bastarache JJ.; G.

Renaud, TheSentencing Code of Canada: Principles and Objectives (2009), at § 12.64). For this reason, even a single instance of sexual violence can“permanently alter the course of a child’s life” (Stuckless (2019), at para. 136, per Pepall J.A.).

As Otis J.A. explained in L. (J.-J.), at p.250: [translation] The shattering of the personality of a child at a stage where [the child’s] budding organization as a person has only a veryfragile defensive structure, will result — in the long term — in suffering, distress and the loss of self-esteem. [21] Friesen provides clear guidance that the inherently violent nature of sexual offences as crimes committed against children andthe profound harm caused, as well as the moral blameworthiness of the offender in such cases, means that the application of theprinciples of sentencing require a strong response. [22] In R. v.

B.(A.), 2015 NLCA 19, the Newfoundland and Labrador Court of Appeal provided a helpful review of some of theconsiderations that are relevant to sentencing offenders for sexual offences against children based on a review of other precedents. Atparagraph 26, Welsh, J.A. speaking for the court stated: Determination of an appropriate sentence will, of course, depend on the facts of the particular case. A review of the case law provides ahelpful

summary of some relevant factors: 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. [ 23 ] Keeping in mind the guidance in Friesen , and taking into account the above considerations as outlined in B.(A.) , I will now review the circumstances here. [ 24 ] The first nine factors in B.(A.) fall into the category that may be described as the gravity or seriousness of the offence and surrounding circumstances. Of course, as explained in Friesen , all sexual offences committed against children are abhorrent. But there will be varying degrees of the gravity of the offence depending on the circumstances. 1.

Position of trust [ 25 ] In these circumstances, the position of trust is very high, perhaps at the highest. As stated by Furey, J. in R . v. Kendell , 2017 NLTD (G) 145 at paragraph 34: There can be no greater position of trust than that in the relationship of a parental figure and child. The former is in a position of power. The parental figure is supposed to protect and support a child in their pre-teenage years. A child of that age is in a position of dependency. That dependency was even more pronounced in this case noting that the victim is autistic.

The victim clearly took advantage of the victim at a vulnerable time in her pre-teenage years. [ 26 ] R.W. testified that D.C. was the only father she had ever known, and looked up to him for guidance and support; particularly in light of the tragedy of the loss of her sister, for which, as she testified, she blamed herself. D.C. knowingly and intentionally violated that trust. As R.W.’s father figure, this violation of her trust and dependency is a major aggravating factor and the sentence must adequately reflect this. 2. Age of the victim; 4.

Sexual encounters occurring over a period of time [ 27 ] Taking these two factors together, as they are related, R.W. was only 5 or 6 years old when the first incident of sexual touching occurred. She was only 11 or 12 years old when her step-father had sexual intercourse with her. All harm to children is serious, but that the abuse started when R.W. was only 5 and continued intermittently until age 11, means that R.W. was in many ways, robbed of her

childhood. The long term nature of this abuse is also related to why the abuse of the position of trust is profound. R.W. testified she did not understand what had happened was even wrong until she was older. This is an aggravating factor and the sentence must adequately reflect this. 3. The age of the offender [ 28 ] This consideration is not as relevant to addressing the seriousness of the present circumstances. D.C. was R.W.’s step-father, and while a young man, he was an adult.

Whether he was in his twenties or thirties does not affect the seriousness of the fact that he was in the highest position of trust towards R.W. as her parent. 5. Manipulation of the victim; 6. Planned or calculated conduct by the offender; 7. Knowledge of and acting on the victim’s vulnerability [ 29 ] These factors can be considered together as they are also related, and are illustrations of why the level of moral blameworthiness in these circumstances is very high. [ 30 ] R.W. was manipulated by D.C.

Under the pretense of acting as a parent comforting his child by giving her a back rub, D.C. repeatedly used this ruse to sexually take advantage of R.W. She was in no position to refute his advances as a small child. [ 31 ] I am also satisfied the conduct was more than opportunistic. While there was no evidence of specific planning by D.C., he clearly intentionally took advantage of R.W.’s vulnerable position as a small child to satisfy his own sexual urges.

This is aggravating. [ 32 ] I am also satisfied D.C. was completely aware of R.W.’s vulnerability as a small child, and even more vulnerable after the death of her sister, and in need of his support. While I take no issue that D.C. as well may have been suffering from the loss of his daughter, this is no excuse for taking advantage of his step-daughter to satisfy his sexual urges. 8.

Continuation of conduct after being warned [ 33 ] I am also satisfied that given the peculiar circumstances here that during part of the time when the offences occurred D.C. was actually bound by a Court Order, as well as by child protection authorities to not be alone with children, he was fully aware of the wrongfulness of his conduct. This is highly aggravating and elevates his level of moral blameworthiness. 9. Impact on victim [ 34 ] Both R.W. and her mother, O.W., have filed victim impacts statements on the impact of these crimes.

Their victim impact statements illustrate eloquently the long term harm caused by this kind of criminal conduct as described in Friesen . The effect on O.W. is to have destroyed her trust in men and doubt her own ability as a mother. [ 35 ] With R.W., she has suffered long lasting emotional trauma as a result of what happened. She has had some difficult moments.

To have suffered the unbearable tragedy of losing her younger sister, of which R.W. blamed herself for having happened, and then to have her own step-father engage in sexual acts with her, R.W. is to be commended for having come through this ordeal. [ 36 ] R.W. has shown tremendous resilience and courage. She had the courage to come forward and disclose the abuse knowing how this would devastate her mother, but thinking of her other younger sister. As a young child she had to testify, not once, but twice to these events.

She even wrote a poem about what has happened which shows just how resilient a young woman she has become. [ 37 ] While R.W. has shown resilience, I accept that R.W. has suffered emotional and long term harm. This is highly aggravating in these circumstances, and exactly why, as Friesen tells us, the courts must respond strongly to such crimes, in the effort to protect children as some of the most vulnerable members of society. THE CIRCUMSTANCES OF THE OFFENDER [ 38 ] The circumstances of D.C. must be taken into account. These are the factors as outlined in B.(A.) , numbers 10 through 15. 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 [ 39 ] There is no evidence of remorse in these circumstances. D.C. denies committing the offences so this cannot be expected. The absence of remorse is never an aggravating feature in sentencing. However it can be a significant mitigating factor when present.

The absence of remorse in these circumstances means that the benefit of this mitigating factor is not available to be taken into account. [ 40 ] However the pre-sentence report suggests a lack of insight by D.C. into the gravity of the circumstances. As pointed out by Crown counsel, D.C. expressed some hope that someday he might be able to return to being a father to R.W. This lack of insight does raise a legitimate concern for protection of the public, in that D.C. continues to pose a danger to children. I must take this into account in fashioning the fit sentence. 11. Previous Criminal History

[ 41 ] D.C. possesses one conviction for the offence of internet luring under

section 172.1 of the Criminal Code . I find this a highly aggravating factor. This conviction underscores D.C.’s predilection to engage in sexual conduct with children. This means that there must be a significant emphasis on the protection of the public; in particular children. 12. Prospects for rehabilitation and risk of re-offending; 13. Positive pre-sentence report [ 42 ] I am discussing these two factors together, as any evidence of D.C.’s prospects for rehabilitation comes largely from this report.

There was no other evidence presented on D.C.’s behalf at sentencing. [ 43 ] The pre-sentence report described that D.C. was born on the island of Newfoundland, but was raised in the community where the offences occurred. His childhood was healthy and he grew up in a supportive family. He advised the writer of the report that he attended church every week growing up and his father still attends church every week.

He described his relationship with his parents as “good” and while not particularly close, they were there for him if he needed them. [ 44 ] D.C. described in the report that O.W., the mother of the victim, was the only significant relationship in his life. He also explained how devastating (understandably) the loss of their daughter, and R.W.’s younger sister, was for the entire family. Since the disclosure of the offences involving R.W., D.C. is no longer in a relationship with O.W. but is now in a new relationship. [ 45 ] The report discloses that D.C. suffers from Crohn’s disease.

He has received his Grade 12 equivalency and has been employed in various capacities over the years. He is currently unemployed. The report also discloses that D.C. has used drugs in the past. He has not done so for many years, and told the author of the report that he “came clean” on his own. [ 46 ] When asked about his view of the current charges, D.C. did not want to speak about them. When asked of his future plans, D.C. stated that “ The only thing I know for sure is, I just want to be a good father and take care of my family.

Whether it be [O.W.] and the girls, my mom and dad or my girlfriend and her son ” (pre-sentence report, page 9). [ 47 ] I find the report to be more neutral than negative or positive. It is clear that D.C. is capable of employment, notwithstanding his illness. The report also shows that he has the support of his family. While the support of family or other social structure can be important in considering an offender’s prospects for rehabilitation, I note that D.C. was living with his parents during part of the period when these offence were committed.

Thus it is not clear to me that the presence of family supports has assisted D.C. in any meaningful way in curbing his conduct to engage in sexual activity with his step-daughter. For this reason, I do not attribute significant weight to this factor in mitigation of sentence. 14. Guilty Plea [ 48 ] There is no guilty plea in these circumstances. D.C. maintains his innocence, and proceeded to trial as he had every right to do. In no way can the absence of a guilty plea be aggravating. However, as with the presence of remorse, the presence of a guilty plea can be a significant mitigating factor on sentence.

It can be a significant mitigating factor because the guilty plea is a formal statement of acceptance of responsibility. Acceptance of responsibility is an important step for an offender on the road to rehabilitation. [ 49 ] There is no ability to consider such factors in mitigation in these circumstances. 15. Willingness to access counselling [ 50 ] There is little evidence one way or the other on this consideration. From the pre-sentence report, it appears that D.C. is not opposed to counselling. He attended counselling in relation to the loss of his other daughter, which he stated he did not mind so doing.

THE POSITION OF THE PARTIES [ 51 ] The Crown requests a total sentence in the upper range of the cases provided and in the range of six to eight years incarceration. The Crown seeks the usual ancillary orders and as well orders under

section 161 of the Criminal Code . The Crown emphasizes the very high position of trust, given D.C. was acting in the role of father to R.W., the fact that the incidents occurred over multiple years, the inherently serious nature of the offences as crimes against children and the need for particular emphasis on denunciation and deterrence. [ 52 ] Counsel for D.C. acknowledges that a significant period of incarceration is warranted, but given D.C. is still relatively young, at 35 years of age, the Court cannot lose sight of the prospects for rehabilitation.

The Court must be careful to avoid a sentence that is so harsh it may be crushing for D.C. THE RANGE OF SENTENCE Sentencing decisions provided by the Crown [ 53 ] In support of its position of an overall sentence of six to seven years, the Crown relies on Friesen ; not only for the principles as discussed earlier, but as an example of the appropriate range of sentence that must be applied in sentencing for sexual interference. As discussed earlier, in Friesen , the Supreme Court of Canada reinstated the six year sentence imposed by the sentencing judge.

In that case, the offender had pleaded guilty for committing a violent assault against the 4 year old daughter of the woman with whom he was having a relationship. The assault occurred in the child’s home, and in the presence of her mother. The assault stopped only because a witness intervened. The offender also pleaded guilty. [ 54 ] The Crown also relied on B.(A.) ; not for the actual sentence imposed but for the statement by the court at paragraph 26 (after a review of several precedents) that a period of imprisonment of three years would be considered in the “low range” when sentencing an

adult offender for sexual intercourse where the victim is below the age of consent. [55] In R. v. L.(M.), 2018 NLSC 150, a recent sentencing decision by my colleague Khaladkar, J., a period of imprisonment of sixyears was imposed for an on offender who was convicted after a trial. The victim was his step-daughter, and the offences occurred whenshe was between the ages of 15 and 18 years old. The circumstances of the offender were similar to the circumstances of D.C. The factthat there was sexual conduct over a longer period of time in the present circumstances is more aggravating in my view.

As well, R.W.was much younger when some of the offences were committed by D.C. [56] In R. v. Kendell, supra, Furey, J. imposed a sentence of five years in relation to sexual interference and sexual exploitation by anoffender against a 12 year old girl with autism. The offender was in a relationship with the victim’s mother and in a position of trusttowards the victim. The court had the added mitigating factor that the offender pleaded guilty. [57] In R. v.

Lander, 2018 ONCJ 368, the offender was sentenced to six and one half years imprisonment for repeated acts ofintercourse and other sexual acts with an 11 year old girl. The sexual contact caused physical harm to the child. The abuse occurredwhile the offender was living in the same home. The offender pleaded guilty very soon after being charged with the offences. The courtplaced significant weight on the guilty plea in the circumstances. The position of trust was not as high as in the present case. [58] In R. v.

D.H., 2018 BCPC 2135, a foster parent was convicted of sexually abusing his foster child when she was between theages of 10 and 14 years old. The sexual conduct included intercourse and fellatio. The offender pleaded guilty and possessed no criminalhistory. The offender was sentenced to four years imprisonment. [59] In R. v. S.S.S., 2018 BCSC 2470, after a trial, the offender was sentenced to seven years for incest with his granddaughter whileshe was between the ages of 6 and 16 years. At the time of the sentencing the offender was aged, 80 years old and infirm.

Thesentencing court reviewed a number of sentencing authorities at paragraphs 42 to 50. The sentencing authorities all involved long termsexual abuse by a person who was in a position of trust towards the victim, similar to the circumstances here. While of course there weredistinguishing features in all cases, the sentences ranged from five to eight years imprisonment. [60] In R. v. Scott (2014), 359 Nfld. & P.E.I.R 179, 121 W.C.B. (2d) 609 (NLPC), Gorman, J. sentenced Mr. Scott to a period of fouryears. Over the course of a year, Mr. Scott had sexual intercourse with a friend of his 13 year old daughter.

He also had her performfellatio. The offender pleaded guilty. He was also on probation at the time. The offender initially blamed the victim for what happenedbetween them. The offender has a lengthy criminal history including for two counts of sexual assault. The court imposed a sentence offour years for the sexual interference. I note this decision pre-dates B.(A.). Sentencing decisions provided by Counsel for D.C. [61] In support of its position, counsel for D.C. has provided three decisions. [62] In R. v.

Cooper, 2011 NLTD(G) 121, my colleague Stack, J. imposed sentences of ten months imprisonment and eighteenmonths imprisonment for two separate incidences of sexual interference. The offender was convicted after trial. The two incidencesinvolved separate victims. The first victim was 13 years old, and Mr. Cooper was 25 years old at the time. The victim performed fellatioon Mr. Cooper. The second incident was more serious in that the offender had sexual intercourse with the victim, who was only 15 yearsold at the time.

Both offences were more opportunistic than the result of long term manipulation of a young child towards whom theoffender is in a position of trust. His antecedents were good, and he possessed a minor and dated conviction for theft. [63] In R. v. Hammond, 2011 NLTD(G) 8, Diamond, J. imposed a sentence of twelve months imprisonment on a 27 year oldoffender who pleaded guilty to breaching

section 151, for having one incident of sexual relations with a 14 year old female. Theoffender supplied alcohol to the young girl at the time. The offender clearly took advantage of the girl who was under the influence ofalcohol. The offender possessed no criminal history and according to the pre-sentence report prepared was a “good” candidate forcommunity service. The offender apologized to the victim in open court, demonstrating remorse for the offence. The Crown sought aperiod of imprisonment of between twelve and eighteen months.

The offender’s prospects for rehabilitation were good and he wasconsidered at low risk to re-offend. [64] Counsel also provided R. v. Hann (1992), (NL CA), 100 Nfld. & P.E.I.R. 339, 17 W.C.B. (2d) 55 (Nfld.C.A.), where the Newfoundland Court of Appeal upheld a sentence of one year imprisonment for a breach of sexual exploitation undersection 153 of the Criminal Code. The maximum sentence available at that time was five years imprisonment. The maximum availablesentence is currently fourteen years imprisonment.

In light of the comments in Friesen, and the significant change in the maximumsentence available, as well as the distinguishing circumstances, I do not find this case helpful in determining the appropriate sentence inthese circumstances. [65] Upon review of the cases, it appears to me that the range of cases imposed for circumstances similar to the presentcircumstances is between four and eight years. I am not considering the sentence imposed in the Hann decision.

I also keep in mind theguidance from Lacasse, that ranges are not “straightjackets” but provide guidance as to what may constitute the proportional sentence ina given set of circumstances.

THE FACTORS IN AGGRAVATION [66] There are several aggravating features to the present circumstances: the significant position of trust, the long period over whichthe incidents of abuse occurred, the emotional trauma suffered by R.W. as well as O.W., and D.C.’s conviction for internet luring, whichin my view is an offence that is relevant to the present circumstances. [67] In my view, the fact that the Accused has been convicted of another criminal offence that relates to children and potential sexualcontact, means that there is a need to protect children from being in a vulnerable situation with D.C.

This prior conviction, and theconviction for these sexual offences against his step-daughter, support that he is a danger to children. The sentence I impose mustadequately protect the public, in particular children, from him.

[ 68 ] I also find D.C.’s level of moral blameworthiness high. He manipulated R.W. and knowingly took advantage of her. As his step-daughter, she was vulnerable and dependent on him for his support. THE FACTORS IN MITIGATION [ 69 ] There is little in mitigation in these circumstances. However, I acknowledge that D.C. is still only 35 years old. I agree with his counsel that the sentence I impose must not be so severe that it is a crushing sentence. It bears repeating that the sentence must be proportionate to the circumstances and D.C.’s level of moral blameworthiness.

Even though he is highly blameworthy, and appears to have little insight into his behavior, he has been an otherwise contributing member of his community. D.C. has been gainfully employed in the past, and has the support of his family.

D.C.’s father listened in on the sentencing hearing and has been present for much if not all of the proceedings. [ 70 ] Taking into account all of the above considerations, the sentences imposed in other and similar circumstances, and that the primary considerations are deterrence and denunciation, I am satisfied that a significant period of incarceration is warranted. [ 71 ] The conduct in this case progressed from D.C. touching R.W. with his hands to at least two full incidences of intercourse. As per the guidance in R. v.

Hutchings , 2012 NLCA 2 , I must satisfy myself as to the appropriate sentence for each count, then consider for adjustments to individual sentences to achieve the proper totality. [ 72 ] For Count 1, I am satisfied that a period of three years imprisonment is warranted. For Count 2, which covers the two incidences of intercourse, I am satisfied a period of seven years imprisonment is warranted. For Count 3, I am satisfied a period of two years imprisonment is warranted to run concurrently with Count 2, as that conduct formed part of one of the incidences of intercourse.

Count 4 will be “stayed” conditionally. [ 73 ] The total sentence is ten years imprisonment. In my view this duration is not in keeping with similar precedents, and I see no basis to maintain so severe a sentence. I will adjust the sentence further for totality. Adjusting for totality, the sentence for Count 1 will run concurrently to Count 2. In my view, seven years imprisonment would achieve the proper parity and is proportional to the gravity of the offences and the moral blameworthiness of D.C.

A period of imprisonment totaling seven years reflects both the seriousness of all the offences committed, and the highly aggravating features of the circumstances, while acknowledging that at some point D.C. must return to society. [ 74 ] D.C. has been in custody since December 16, 2019, which constitutes a total of 171 days as of today’s date. As per

section 719 of the Criminal Code he shall receive one and one half days of credit for every day served on remand awaiting sentence. That is a credit of 256.5 days which I will round up to 257 days credit. [ 75 ] Applying this credit, D.C. is sentenced to a total of seven years imprisonment, less 257 days in lieu of time spent on remand awaiting sentencing. [ 76 ] I further impose under

section 743.21 of the Criminal Code that D.C. have no contact or communication with R.W. or O.W. while serving his period of imprisonment. ANCILLARY ORDERS Order Authorizing the Taking of Bodily Substances for Forensic DNA Analysis [ 77 ] Sections 151 and 152 of the Criminal Code are primary designated offences under

section 487.04 (a)(i.1) and (i.2). As a primary designated offence, a DNA Order is mandatory under

section 487.051(1). It is ordered that a peace officer be authorized to take or cause to be taken from D.C. the number of samples of bodily substances that is reasonably required for forensic DNA analysis, provided that the person taking the samples is able, by virtue of training or experience, to take them by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code and that, if the person taking the samples is not a peace officer, they take them under the direction of a peace officer. Firearms’ Prohibition [ 78 ] Section 109(1) (

a) of the Criminal Code requires a mandatory prohibition where the conviction for the indictable offence is ten years or more, and I order that such is imposed in this case. D.C. is prohibited from possessing any firearm, other than a prohibited firearm or a restricted firearm (for which another prohibition is made therein), and any crossbow, restricted weapon, ammunition and explosive substance, for ten years. Order to Comply with Sex Offender Information Registration Act (SOIRA) [ 79 ] Sections 151 and 152 are designated offences under subsections 490.011(a)(ii), and (iii), respectively, of the Criminal Code .

Section 490.012(1) requires an offender be subject to the Sex Offender Information Registry Act , S.C. 2004, c. 10 ( SOIRA ) and an Order in Form 52 for a designated offence. I order that D.C. is subject to such an Order for life, as per

section 490.013(2.1)(b). Order pursuant to

section 161 of the Criminal Code [ 80 ] The Crown has also submitted that D.C. be bound by an Order under

section 161 (a), (

b) and (

c) of the Criminal Code . Counsel for D.C. does not dispute that such orders may be imposed. Orders under

Section 161 provide a measure of protection for children as an alternative to imprisonment. I am satisfied that such orders are appropriate given D.C.’s previous conviction under

Section 172.1 and the present offences (see Scott , per Gorman, J., at paragraphs 133 to 138). I am satisfied that D.C. poses a danger to children and that in order to ensure protection of the public, in particular children, he should be prohibited from being in a position to have unsupervised contact with children.

[ 81 ] I order that D.C. shall be prohibited for life under

section 161 from: (

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre; (

b) 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 16 years; (

c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person of whom the court considers appropriate. CONCLUSION [ 82 ] D.C. is sentenced as follows : Count 1: three years imprisonment concurrent to all other sentences (for totality); Count 2: seven years imprisonment; Count 3: two years imprisonment concurrent to Count 2; and Count 4: a conditional stay of proceedings is entered, as that conduct is addressed under Count 2. [ 83 ] The Accused will be subject to DNA, lifetime SOIRA and firearms prohibition orders. He will also be bound by conditions under

section 161 . [ 84 ] Judgement accordingly. _____________________________ Frances J. Knickle Justice