R. v. M.M., 2014 MBPC 23

CITATION: R. v. M.M., 2014 MBPC 23 Date: 20140609 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) K. Scott Cooper, ) for the Crown ) and ) ) ) M.M. ) Carl O’Brien, Accused ) for the Accused ) ) ) ) Reasons for Decision delivered: ) June 9, 2014 Publication Ban: An Order was made under s. 486.4 of the Criminal Code that the identity of the complainant or any otherwitness and any information that could disclose the identity of the complainant shall not be published in any document orbroadcast in any way. CURTIS, P.J. [1] Mr.

M., currently 82 years of age, has pled guilty to one charge of sexual assault contrary to s. 271 of the Criminal Code ofCanada. The events which gave rise to the plea took place between the dates of January 1, 2009 and January 1, 2013. The victim is hisgranddaughter who at the relevant times was between the ages of 10 and 14, and is at this time 15 years old. The Crown proceeded byindictment. [2] Mr. M. pled guilty to the charge following which a Pre-Sentence Report was prepared.

There is agreement between counselthat the accused’s actions are a major sexual assault and breach of trust, and fall within the category of offence described by theManitoba Court of Appeal in R. v. C.D. (1991), (MB CA), 75 Man.R. (2d) 14. The Court stated at paragraph 16: The starting point to sentencing for a major sexual assault committed in a family relationship where the victim is a young child andserious sexual acts are repeated over a period of time should, in our view, be four to five years imprisonment. [3] The Manitoba Court of Appeal also confirmed in R. v. A., 2012 MBCA 48 , [2012] M.J.

No. 179 the starting pointpresumes that the accused is a mature person with no criminal record and prior good character. [4] The parties in this case are not ad idem on quantum. The Crown submits in these particular circumstances the Court should

impose a sentence in the range of six to seven years, while defence proposes that a sentence in the range of three to four years would suffice. The Facts [ 5 ] The accused is currently in custody at Milner Ridge Correctional Institution. Prior to that he had been a member of the Pembina Valley Hutterite Colony for the majority of his life. (Between the ages of 60 and 72 to he was off the colony to try his hand at his own farming operation but eventually asked the colony to take him back.) He and his wife had five children. Two of his daughters live on the colony and two sons live outside of it.

He lost a son to cancer in 2008. That son was the father of the victim (and complainant) in this case. The accused also lost his wife in 2006. [ 6 ] The complainant in this case and her family did not live on the colony, but after her father’s death her mother fostered the relationship between herself, her brother and her grandfather. The kids would stay with the grandfather and/or the aunts at times such as spring break, in the summertime or on other weekends or holidays. [ 7 ] The accused operated as the massage therapist for the colony.

He used for that purpose a treatment room which was a back bedroom in his house. That is where the offending behaviour took place in all but one instance during the four-year span which ended in December 2012. In the beginning the complainant was referred to him for treatment in relation to a leg and rib injury. He began by massaging her legs in the treatment room which was apparently always locked. He began by massaging her legs and moved on to perform massage in the vaginal region, first of all, over the clothing. Gradually he began to set aside the clothing and digitally penetrate her with his fingers.

He progressed to oral copulation as well as aggressive attention to the breasts, telling her it was to help align her breasts properly. From there he moved to having her perform fellatio on him, something that happened on many occasions. In due course he began to try to penetrate her with his penis. That there was never full intercourse was due to physical inability on his part as a result of a previous surgery. During this period of time he told her what he was doing was out of love for her, that it would help her when she got her period.

She was conflicted and confused and hurt because this was her grandfather and she thought maybe he really was trying to help her. She also knew at times it hurt. There were times when he told her to get ready for a massage when she would say she had her period to avoid him. When she did avoid him and did not go to the massage room he would punish her by being cold and moody, which would make her feel guilty. He would emphasize that he was not hurting her but helping her.

She recalled that in December of 2012 he told her not to tell anyone because he did not want others to misinterpret his conduct which he insisted was to help her. Her mother was eventually advised and went to police. A day after police obtained a lengthy and detailed video statement from the complainant, Mr. M was arrested. [ 8 ] Once under arrest, Mr. M admitted virtually everything in a statement to police. He has been in custody since his arrest on May 28, 2013. His counsel indicates there was not a viable bail plan so he never applied for bail.

It should be noted the accused indicated his plan is to eventually return to the colony. I make that observation because the comments in the Pre-Sentence Report would indicate that the colony is not prepared to have him back at any time. The Law [ 9 ]

Section 718 of the Criminal Code sets out the purpose and principles of sentencing. The fundamental purpose of sentencing is 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; (

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 and to the community. [ 10 ] In particular and in relation to this case, I have to take note of s. 718.01 which states: 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.

I must also take into account are the provisions in s. 718.1 which state: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. And the relevant provisions in s. 718.2 provide: 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.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, Those considerations referenced are required to be deemed aggravating circumstances. I am mindful as well that the overridingprinciples to be considered in a case such as this are those of denunciation and deterrence. That is not to say that rehabilitation or othermitigating circumstances are not to be considered.

They are to be taken into account as well. [11] Defence counsel provided me with several cases to consider. R. v. N.A., [2004] M.J. No. 93, is a Manitoba Provincial Courtdecision which dealt with indecent assault on a male stepson over a 12-year period from the age of six until he was 18. The stepsonexhibited serious behavioural problems during his childhood but did not tell his mother until a number of years had passed. At the time ofsentencing the accused was 62 years of age and had not reoffended in 23 years. He was sentenced to three years of imprisonment. TheManitoba Court of Appeal in R. v.

T. (R.W.), 2006 MBCA 91, dealt with the appeal of a sentence of three years for sexually assaulting astepdaughter over the course of two years. The sentence was reduced from three years to two years, followed by three years supervisedprobation. R. v. J.A.G., 2008 MBCA 55, involved a 77 year old man with no prior record. The conviction was for sexual interference andthe sentence was reduced from two years incarceration to one year to be followed by two years probation. R. v.

N.V., 2010 BCPC 404,involved the sentencing of an 86 year old accused who sexually abused his granddaughters the entire time they were in elementaryschool. The granddaughters reported the abuse when they were 18 and 19 years old. The sentence was two years imprisonment withthree years probation. The case of R. v. D.W.E., 2011 MBQB 6, involved a relationship between an eight year old complainant and a 27year old accused who became a trusted adult by the parents. Over six years there was an increasing intensity of a relationship whichbecame one of a very sexual nature. A sentence of three years was imposed.

And finally, with respect to a sexual assault charge, the caseof R. v. R.(A.), (MB CA), involved an accused who was convicted of having sexual intercourse with his 13 year olddaughter without her consent on three occasions in the early 1970’s. He had no criminal record and was 71 years of age, suffering frommuscular dystrophy. He was wheelchair-bound and required around-the-clock attention.

He was initially sentenced to an acknowledgedlenient 30 months which was reduced on appeal to a suspended sentence of two years, based in large part on his age and infirmity. [12] Although the Crown argued for a higher penalty than the acknowledged starting point, he did not provide any cases with respectto quantum and was content to rely on those provided by defence, as well as the Manitoba Court of Appeal case referenced at thebeginning of this decision, R. v.

C.D. [13] Unfortunately when one seeks to find cases on point, it quickly becomes apparent that there are far too many cases of this kindof child abuse in the annals of the law. As the Court observed in C.D., supra: This starting point...is justified by the frequency with which this offence occurs and by our increasing knowledge of the devastatingeffect it has on the victim. [14] That statement was made by the Court of Appeal 23 years ago. While that is a sobering reality, it is also apparent that each caseis unique to its own set of circumstances.

Aggravating and Mitigating Factors [15] The Manitoba Court of Appeal has given a guideline as to the starting point, but it is just that, a yardstick, a starting point fromwhich various factors will affect the end result. There are statutorily mandated aggravating factors in the Criminal Code to which Ireferred earlier, as well as ones particular to this matter to be considered. There are also mitigating factors to be taken into account. [16] There are a number of aggravating factors: [17] First and foremost is the sexual abuse of a child of tender years.

This is a breach of trust situation which happened over anextended period of time in a pattern of behaviour which was repeated over and over and escalated in seriousness, intensity, andinvasiveness over approximately four years. The sexual abuse was at the hands of a family member, her grandfather. A grandfather who,instead of providing protection, security, loving guidance and nurturing to a young girl who had recently lost her father, stole theremainder of her childhood and entrance into puberty by hurting her both physically and emotionally in a locked room in his house.

Hedeluded himself by telling her he was not hurting, but helping her; it was out of love and for her own good. He manipulated her bymaking her feel guilty if she tried to avoid or did not comply with his direction. He told her not to tell anyone as they mightmisunderstand. He was raised in a community where standards for sexual contact are very strict. He knew what he was doing was wrong.His actions were solely for his personal sexual gratification. [18] The Pre-Sentence Report prepared in this matter reflects an overview of Mr. M’s background, but more importantly it addressesthe risk factor of future behaviour.

The accused admitted his responsibility and stated in the Pre-Sentence Report, to the police and in anapology to the victim in court that he was very remorseful and this type of behaviour would never occur again in the future. TheProbation Officer had some concerns that he did not appear to have the insight to understand why this happened in the first place.Although he accepted his responsibility and expressed remorse, he did not feel that he needed treatment of any sort to prevent a similarbehaviour in the future.

His thought process was that if he no longer worked as a massage therapist, he would no longer be in a positionto be unable to resist temptation. He has a very strong belief that with God’s support he will not do anything like this again in the future.It is also noted that the assessment by Probation Services is that he is a low risk to reoffend unless his personal circumstances changedsuch that, for instance, he was able to return to the colony. In that case, the risk factor would change as children are free to roam aroundon the colony and that would be of concern.

The lack of insight was also reflected in court when subsequent to his verbal apology heasked if he could apologize face to face and shake hands in person with the people who were in court. It did not seem to occur to him thatthey (in particular his granddaughter) might not want to have any physical contact with him at all. [19] In addition to Mr. M’s lack of insight, or perhaps ability to understand what drove his behaviour, there is a lack of recognition ofany factors which might make him a risk in the community going forward. There has been no treatment or programming while incustody.

There is no credit to be given for any done or planned. He told the Probation Officer he does not need treatment because this

will never happen again, as he will not work as a massager, and he has the support of God. He told the Court he prays three to four timesa day. While I do not discount the strength of his faith, the fact he is in this situation strongly suggests there is a need for more in the wayof help. [20] Mr. M is described by counsel as being unsophisticated.

Even so, it is very concerning that he told Court she (hisgranddaughter) should not have reported it (the abuse), but should have come to him. [21] When the abuse ended is not precisely clear, and the circumstances were not put before the Court, but it stopped around the endof December in 2012 after the Christmas break. Sometime in the spring of 2013 the victim disclosed the assaults and her mother reportedthe situation to police. Police arrested the accused on May 28, 2013 and, as noted above, he has remained in custody. [22] A victim impact statement was provided. Mr.

M’s granddaughter read her statement aloud in court. I recognize the courage ittook to do so. She finds it hard to focus on school, sports, etcetera, and is dealing with various emotions such as shame, guilt, anger, andfear of the impact on everyone else. Her relationships are difficult and uncomfortable and trust is hard to come by. She has had problemsin school and nightmares.

Her self-esteem is, not surprisingly, low, and it will take some time for her to deal with all of the issues thatflow from the abuse and degradation imposed on her by her grandfather, and for her to truly understand that none of this is her fault.There has of course been a devastating impact on her, but that impact also extends to her family, her mother and brother who, until shedisclosed it, were not aware of what was going on. They, too, have to deal with the emotional upheaval caused by his behaviour. [23] Ordinarily age would be considered a mitigating factor. As noted by the Manitoba Court of Appeal in R. v.

R.(A.), supra, atparagraphs 35 and 36: Advanced age is usually a mitigating feature. There are two reasons for this. The older a person is the harder it is to serve a prison termand the less is that person's life expectancy after prison. As a general rule, however, advanced age does not entitle a person who has committed an offence of the kind we are dealing with here[sexual intercourse with his 13 year old daughter some 20-some-odd years previously] to a non-incarceratory sentence. The most such anoffender can hope for is a reduction in the time he or she would otherwise have served: see, e.g., R. v.

Dinn (unreported decision ofNewfoundland C.A., January 26, 1993) [since reported (NL CA), 104 Nfld. & P.E.I.R. 263, 18 W.C.B. (2d) 446], inwhich a 79-year-old woman was only given a two-year sentence for assaulting young children. [24] Mr. M has no prior criminal record, and he is 82 years of age. Here, however, age has both aggravating and mitigating features.On the aggravating side is the fact the sexual assaults to which he pled guilty occurred while he was between the ages of 77 and 81.These are not historical events.

The question is open as to whether or not the assaultive behaviour would still be going on but for thecomplainant taking action. [25] Rehabilitation in this case does not, to date, appear to be a factor. [26] On the other hand, Mr. M is 82 years old and cases do take into account reduced life expectancy with the attendant frailtywhich comes with advanced age. I note here that however long his life may be, in the ordinary course of things he will never have to livewith, and deal with, the scars and impact of his actions for as long as will his granddaughter. [27] Mitigating factors to take into account include Mr.

M’s immediate and full cooperation with police upon his arrest. Even afterspeaking to counsel he gave a full statement admitting to virtually everything. At his first appearance in bail court he told the judge hewanted to plead guilty. The matter was never set down, a guilty plea was entered. As a result, his granddaughter did not have to testify orbe cross-examined in what would at the least be a very distasteful and traumatic experience. He acknowledged he should not havebehaved as he did.

He gave an emotional and what I accept as a heartfelt apology in court and expressed his opinion that “they” did theright thing to bring things out, and it should have been done a long time ago to stop it. [28] Mr. M has some health problems. I am told he is diabetic and takes a variety of medications along with wearing hearing aids ashis hearing has deteriorated. As far as I am aware he has no seriously-debilitating physical or mental health conditions.

A letter filedfrom Milner Ridge Correctional Institution discloses no concerns of any nature over the time he has been there (which according to thereport was at least six months at that time). Conclusion [29] The sentence to be imposed has to take into account the guidelines set by the Manitoba Court of Appeal, statutory provisions inthe Criminal Code, and aggravating and mitigating factors unique to this matter. [30] The abhorrent nature of the offence is reflected in the recognition that this kind of behaviour merits a serious denunciatorysentence starting in the range of four to five years incarceration.

The aggravating factors here far outweigh the mitigating factors. Inconsidering all of the factors, I note the comment of the Court of Appeal in C.D, supra, at paragraph 17 which reflects: There is a great deal of misunderstanding as to the circumstances which warrant the reduction of a sentence below the usual range in acase of this kind. Cessation of the criminal conduct before discovery, remorse, a plea of guilty and a willingness to seek treatmentcertainly merit some consideration, but by themselves they do not ordinarily merit a change of emphasis from denunciation anddeterrence to rehabilitation.

Such a change of emphasis ordinarily requires more. [31] I cannot find any special or exceptional circumstances in this case which would go to mitigation of sentence. There is nothing inMr. M’s background which might in some fashion explain his conduct. Except for reliance on his faith, there is no proposed treatment.This is not an historic event. If this had not been reported, would the sexual assault have stopped?

That is perhaps a rhetorical question.But the combination of the currency of the behaviour and the lack of recognition that treatment may be of some help to prevent futuresimilar behaviour raises the appropriate sentence from the previously mentioned starting point. The only factor which meritsconsideration, despite my earlier comments, is age.

[ 32 ] This is one of the most serious breaches of trust as one can contemplate. In my view, in these circumstances the appropriate sentence is one of six years. I recognize that advancing age for most people brings with it varying degrees of physical frailty. Taking into account Mr. M’s advanced age, the sentence will be adjusted to five years and six months. [ 33 ] Mr. M. will be required to register with the National Sex Offender Registry for a period of 20 years pursuant to ss. 490.012 and 490.013 of the Criminal Code . [ 34 ] Mr.

M. will be required to provide a sample of his DNA to the institutional authorities within 30 days pursuant to s. 487.051 of the Code [ 35 ] There will be an order of prohibition from owning or possessing firearms, explosives and ammunition for a period of 10 years, and prohibited weapons for life under s. 109 of the Code . [ 36 ] While he is in custody there will be no contact with the complainant pursuant to s. 743.21 of the Code unless initiated by her. [ 37 ] There will also be a ten year order pursuant to s. 161 of the Code that he not attend 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, school ground, playground or community centre.

He must not seek paid, unpaid or voluntary work which involves being in a position of trust or authority towards anyone under the age of 16, and he must not be in the company of anyone under the age of 16 unless there is another adult present. Original signed by Judge K. M. Curtis _________________________ P.J.