R. v. P.K., 2012 MBCA 69

Citation: R. v. P.K., 2012 MBCA 69 Date: 20120621 Dockets: AR 11-30-07598; AR 11-30-07600 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Richard J. Chartier Mr. Justice Alan D. MacInnes BETWEEN : ) E. C. Pauls HER MAJESTY THE QUEEN ) for the Accused ) Respondent/Appellant ) C. A.

Vanderhooft ) for the Crown - and - ) ) ) Appeals heard: K. (P.) ) April 25, 2012 ) (Accused) Appellant/Respondent ) Judgment delivered: ) June 21, 2012 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(s) (see s. 486.4 of the Criminal Code ). CHARTIER J.A. 1 The accused was convicted after trial of incest and two counts of sexual interference against his two younger sisters, S and H. He was given an effective sentence of 30 months’ incarceration.

The accused has appealed against conviction, while the Crown has appealed the sentence. 2 The facts are disturbing. The accused was six years older than his sister S and ten years older than his sister H. The accused started abusing S when she was approximately five years of age and continued to do so for approximately eight years. He would have been 11 to 19 years of age during that timeframe. It started with doctor games, then progressed to attempted penetration, mutual masturbation, oral sex and finally to full sexual intercourse.

When the accused was 18 to 19 years old, he also sexually assaulted H on two occasions when she was eight to nine years of age. These assaults did not involve sexual intercourse, but rather involved her having to rub his penis, putting his penis between her legs and then, to use H’s words, feeling “icky and sticky.” 3 At trial, the accused admitted to having sexually assaulted S, but maintained that this conduct ended before he became an adult. The accused denied having had any sexual contact whatsoever with H.

The critical issue was whether the Crown could satisfy the trial judge beyond a reasonable doubt that the accused committed the sexual offences after he turned 18 years of age. 4 The principal ground of appeal with respect to the conviction is that the trial judge failed to properly apply the last two parts of the test laid down in R. v. W.(D.) , http://www.canlii.org/en/ca/scc/doc/1991/1991canlii93/1991canlii93.html 1991 CanLII 93 (SCC) , [1991] 1 S.C.R. 742 . I do not agree. The reasons show that the trial judge correctly stated and applied the W.(D.) test.

She respected the substance of the W.(D.) analysis, did not shift the burden of proof and correctly applied the principle of reasonable doubt in the context of a credibility assessment. 5 The accused also argues that the trial judge misapprehended the evidence when she said that S had testified that the “ sexual intercourse continued with [the accused] after her period.” While the evidence is clear that the sexual intercourse activity commenced after she started getting her periods as opposed to having “continued,” I am not persuaded that this mischaracterization as to the “when” of the criminal conduct is of any moment in this case. 6 To secure conviction, the Crown had to satisfy the trial judge beyond a reasonable doubt that the sexual activity

occurred after the accused reached his 18th birthday. The reasons demonstrate that, first, the trial judge was keenly aware of that critical timeframe and, second, she found, based upon evidence clearly available for her to do so, that sexual intercourse did occur between the accused and S after he reached the adult age.

As a result, whether or not there was a misapprehension of the evidence as to when the sexual intercourse began, it did not undermine the trial judge’s ultimate finding on conviction that sexual intercourse with S occurred after the accused turned 18. 7 I would dismiss the conviction appeal. 8 I now turn to the Crown’s sentence appeal.

The Crown argues that the sentencing judge imposed a sentence which was outside the appropriate range, and that she misapplied the principles applicable to sentencing on multiple offences. 9 To begin with, the cases upon which the Crown relies to suggest a range of sentence of four to five years for incest are appropriate when the facts disclose a breach of trust situation. In cases of incest, that breach usually involves a breach of parental trust. As already indicated, the incestuous relationship in this case is between siblings; the incest is not between a parent and a child.

While I acknowledge that there may be situations where the offending sibling can become in loco parentis and occupy the position of parental authority over the sibling that has been abused, the facts do not disclose such a situation in this case. The sentencing judge found the Crown’s cases to be distinguishable.

For the above reasons, I would agree that they are of limited value in this case. 10 In my view, in situations similar to this case, the appropriate starting-point guideline is the same as for any major sexual assault; three years’ imprisonment, subject to the required adjustment resulting from the aggravating and mitigating factors surrounding the offence and offender (see R. v. Wright (C.D.) , 2010 MBCA 80 at para. 21 , 258 Man.R. (2d) 118 ). 11 This brings me next to the question of the fitness of the different individual sentences imposed on the accused.

The sentencing judge said: After considering all of the submissions, I have decided that the appropriate disposition for [the accused] on the charge of incest is one of 30 months. For the sexual interference on [S], the sentence is two years concurrent. For sexual interference on [H], the sentence is one of 18 months. Normally that would be served consecutively, but in my view, a period of four years is excessive. Therefore, I am sentencing him to 18 months concurrent for a total term of 30 months from today’s date. 12 At the sentencing hearing, a psychological assessment report was considered.

The accused declared in that report, and this was not challenged, that the home environment in which he was raised was very much sexualized. He stated that: … [F]rom an early age, “before even my own memories”, his mother was physically and sexually inappropriate in her touching of both him and his siblings. He reported that his father had told him that he had once “caught my mother playing with my penis” during a diaper change; he reported reported [ sic ] that she would “often tickled [ sic ] me and my siblings between the legs” and that this behaviour occurred “virtually up to the day I left home”.

He described his mother having sexually fondled him as a young adolescent. He described frequent disparagement of him as a male, stating that “all you boys are interested in is sex” or that men were “just sex fiends”. 13 Given, first, the sexualized environment in which the accused was raised and, second, the fact that the accused was but a child when he started this offending conduct, I have not been persuaded that the sentencing judge’s individual sentences are unfit.

Where I part ways with the sentencing judge is with respect to the total sentence she ultimately imposed after taking the mandatory last look to address totality concerns. 14 I now turn to the ground of the misapplication of the multiple offence sentencing principles. 15 The Crown argues that if the 30-month sentence in regards to the offences involving S was fit standing alone, how can that same 30-month sentence remain fit after taking the last look when another major sexual assault involving a second victim, his sister H, is included for sentencing consideration. 16 The specifics surrounding the sentencing could not be starker.

There were two sets of separate and distinct offences involving two different victims. The sentencing judge correctly found that the offences were sufficiently separate and distinct to warrant consecutive sentences. She also correctly understood that she had to consider the totality principle, which is applicable only when dealing with consecutive sentences. 17 The sentencing judge first determined “the appropriate disposition” for the incest against S to be a sentence of 30 months.

This means that she sentenced in accordance with the appropriate sentencing principles, which necessarily includes the fundamental principle of proportionality: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender ( s. 718.1 of the Criminal Code ). She then determined that the appropriate sentence for the sexual interference against S was two years concurrent. Finally, she concluded that the fit sentence for the sexual interference against H was 18 months.

After totalling them up (48 months) and after taking the mandatory last look to address totality concerns, the sentencing judge adjusted the total sentence by reducing it from 48 months back to the initial sentence she had given for the offences against S (30 months). 18 In the result, having found the 30-month sentence to be “the appropriate disposition” in regards to the offences involving S, and that the same amount of incarceration was also the fit sentence for all of the offences involving both S and H, the sentencing judge thereby discounted the sentence in regards to H to zero, thus effectively imposing no penalty against the accused for his

assaults against H. This raises the question: having determined that the fit and appropriate sentence for the offences against S was 30months, what was the principled reason for finding that the sentence should remain unaltered after concluding that the crime against Hwas sufficiently separate and distinct to warrant a consecutive sentence? 19 A fair reading of the sentencing judge’s decision would lead me to conclude that she thought any sentence over 30months would exceed the “overall culpability” of the accused. See R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500 (atpara. 42): In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the“totality principle”. The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences formultiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. …. [emphasis added] 20 The issue is whether the sentencing judge’s last look to address totality concerns incorrectly assessed the accused’soverall culpability.

As with proportionality, the accused’s overall culpability requires an examination of his degree of guilt or moralblameworthiness with respect to the offence committed and the harm done to the victim to ensure that the sentence is in line with his“moral culpability, and not greater than it” (see R. v. Nasogaluak, 2010 SCC 6 at para. 42, [2010] 1 S.C.R. 206).

To assess the extent of“moral culpability” in a particular case, due regard must be given to “the intentional risk-taking of the offender, the consequential harmcaused by the offender, and the normative character of the offender’s conduct” (see M. (C.A.) at para. 80). 21 In my view, while the sexual incidents against H were not as frequent as the ones against S and did not involve actualsexual intercourse, the fact remains there were two sexual assaults by an 18-year-old brother against an eight-year-old sister. Moreover,these unfortunate and disturbing events had a profound impact on H.

In my opinion, the accused’s overall culpability with respect to thetwo sets of offences against both sisters called for an increase over what the sentencing judge had found to be “the appropriatedisposition” of 30 months on the charge of incest involving S alone. 22 I am very much aware of the breadth of a judge’s discretion on sentencing and that great deference is owed to thatdecision.

While I also readily acknowledge that a total sentence of 48 months would be, for this accused in these circumstances,“crushing,” in my view the total discounting of the sentence for the offences against H has rendered the overall sentence demonstrablyunfit, thus warranting appellate intervention.

To be clear, while it is not an error in principle for a court to impose concurrent sentencesto address totality concerns, in this case, the use of that option resulted in an unfit sentence. 23 Moreover, by completely discounting the sentence in respect to the sexual interference against H, the sentencing judgecommitted what Scott C.J.M. in R. v.

Lagimodiere (S.M.E.), 2008 MBCA 137, 231 Man.R. (2d) 261, described, what is known in ourjurisprudence, as the “free ride” error. 24 In dissent, my colleague Steel J.A. states that the “no free ride principle” applies only to an individual who has receiveda concurrent sentence, not to situations where a judge, when imposing a consecutive sentence, is applying the totality principle.

Withrespect, while I agree that the “no free ride principle” applies as such when concurrent sentences are imposed, the reasoning underlyingthat principle can become relevant when a court, as in this case, imposes concurrent sentences in its application of the totality principle(see R. v. Wozny (C.P.), 2010 MBCA 115 at para. 44, 262 Man.R. (2d) 75). As I mentioned at para. 19 above and as stated in M. (C.A.),the totality principle is a more particular form of the general principle of proportionality.

And, as stated by Scott C.J.M. (Lagimodiere atpara. 26): .… … [A] delicate balancing act is required so that, while maintaining the essential principle of proportionality, the accused does not geta “free ride”. 25 In R. v. N.A.S., 2007 MBCA 97 at para. 20, 220 Man.R. (2d) 43, this court referenced, with approval, the Alberta Courtof Appeal, sitting with a panel of five members, in R. v.

Johnas, Hammond, Morozoff, Jurgens, MacIntyre, Lodoen and Cardinal (1982),1982 ABCA 331 , 41 A.R. 183 (at para. 26): If all offences after the first one are punished by sentences which are concurrent to the first, it will soon be observed by offenders thatonce one offence has been committed, there is nothing to deter them from subsequent offences. …. 26 See also the recent decision of R. v. B.S.M., 2011 ABCA 105, 502 A.R. 253, where the Crown argued that the judgeerred in principle by making the sentences for the two crimes run concurrently.

In that case, the accused had pled guilty to touching achild for a sexual purpose and making child pornography. He was sentenced to four years three months, and two years, respectively. The judge stated (at para. 24): “While they are different in nature and require separate sentences, in my view, they ought to be dealt withseparately and served concurrently.” The Alberta Court of Appeal disagreed. Côté J.A. stated (at para. 27):

Both crimes are serious offences (as Parliament makes plain); the maximum sentence is 10 years for each. The combination of the twocrimes is far worse. A concurrent sentence simply gives one crime no real effect. It takes years of legal training to doubt that basic point,obvious to lay persons. …. 27 The reason for this notion of no “free ride” is to ensure that some punishment is imposed on a crime which has beenfound to be sufficiently separate and apart so as to warrant a consecutive sentence. Generally, the last look will often justify somereduction in the total sentence.

There may be times when the balancing of the principles of totality or proportionality with the no “freeride” concern may call for the imposition of a concurrent sentence as opposed to a reduced consecutive sentence. This is especially sowhen the accused has committed numerous separate and distinct crimes against many different victims. See for example this court’srecent decision in R. v.

Duerksen, 2012 MBCA 41, where the offender broke into 92 different homes. 28 In the end, I would grant leave to appeal the sentence, and, after taking the mandatory last look to address totalityconcerns, adjust the total sentence of 48 months to 36 months, as opposed to the 30 months imposed by the sentencing judge. Thisincrease of six months will give effect to the offence against H, which will be served consecutively to the 30 month sentence for theoffences against S. The DNA and SOIRA orders imposed by the judge would remain unchanged. J.A. I agree: J.A.

STEEL J.A. (dissenting in part) 29 I agree with the reasons of Chartier J.A. with respect to the accused’s appeal as to conviction. 30 However, I do not agree with his conclusion as to the Crown’s appeal as to sentence. I do not agree that the sentencingjudge misapplied the sentencing principles with respect to multiple offences. 31 Over the last few years, in an attempt to offer some guidelines for trial courts, this court has written on numerousoccasions on the proper approach to concurrent and consecutive offences in sentencing for multiple offences. See R. v. N.A.S., 2007MBCA 97, 220 Man.R. (2d) 43, R. v.

Reader (M.), 2008 MBCA 42, 225 Man.R. (2d) 118, R. v. Traverse (L.) et al., 2008 MBCA 110,231 Man.R. (2d) 123, R. v. Lagimodiere (S.M.E.), 2008 MBCA 137, 231 Man.R. (2d) 261, R. v. Grant (I.M.), 2009 MBCA 9, 236Man.R. (2d) 54, R. v. Arbuthnot (S.M.), 2009 MBCA 106, 245 Man.R. (2d) 244, R. v. Golden (B.R.), 2009 MBCA 107, 245 Man.R. (2d)254, R. v. Draper (T.G.), 2010 MBCA 35, 251 Man.R. (2d) 267, R. v. Maroti (M.), 2010 MBCA 54, 255 Man.R. (2d) 115, R. v. Taylor(M.A.), 2010 MBCA 103, 262 Man.R. (2d) 43, R. v. Wozny (C.P.), 2010 MBCA 115, 262 Man.R. (2d) 75, and R. v.

Duerksen, 2012MBCA 41. 32 In those cases, this court clearly rejected the global approach to sentencing, sometimes referred to as the Jewell method(R. v. Jewell (E.T.) and Gramlick (G.) (1995), (ON CA), 83 O.A.C. 81), in favour of a step-by-step process. This wasdone not to fetter a judge’s broad discretion to tailor sentences to the offence and the offender, but rather to enhance the objectives oftransparency, accountability and ease of appellate review.

As was said in Taylor (at para. 20): …. … [T]here will be more clarity and transparency to the sentencing process to ensure that the sentence imposed bears somerelationship to the offences and the offender.

Moreover, this will allow for proper appellate review of the sentence. 33 So, in the case of multiple offences we now ask sentencing judges to: 1) First determine whether any or all of the sentences are to be served concurrently or consecutively or a combination of both. 2) If treated as concurrent, then, although all circumstances of the offender and the offence must be taken into account inarriving at a sentence, the final sentence for multiple concurrent offences should, absent exceptional circumstances, be higher than thesentence that the judge would have awarded that offender for one count of that offence.

This has come to be known as the “no free rideprinciple.” 3) If treated as consecutive offences, after assigning a sentence to each offence, the judge must take one last look at the totalcumulative length of the sentence with a view to determining whether the total sentence is so high as to be a “crushing punishment” onthis offender. This is often referred to as the totality principle. It must be remembered that the totality principle considerations under s.718.2(

c) of the Criminal Code apply only when consecutive sentences are imposed. When a judge sentences an accused to concurrentsentences, no such considerations arise. 4) If the judge is of the view that the overall sentence is too high, it is within their discretion to reduce the sentence by using avariety of techniques. One of those techniques is to make some of the multiple offences concurrent to each other. This use of theconcurrency principle is for the sole purpose of reducing an excessive sentence as a result of that “last look.”

34 The sentencing judge in this case followed the above guidelines, step by step. She assigned a sentence to each offence. She then decided that the several offences against the one sister should be treated as concurrent.

On the other hand, she decided that theoffences against each of the two sisters were separate and distinct transactions and should be treated as consecutive offences. 35 It was only when the total sentence of four years was arrived at that, as a result of the totality principle, she held that itwas excessive and applied the concurrency principle to arrive at a sentence of 30 months. 36 The majority of the court argues that the sentencing judge applied the totality principle incorrectly. With all duerespect, I disagree.

The sentencing judge is entitled to make offences concurrent as one method to ensure that the sentence is notcrushing. 37 The phrase “no free ride” refers to a situation where the judge is sentencing an individual concurrently for multipleoffences. It does not apply to the totality principle where the sentencing judge takes one last look at the sentence to ensure that it is not a“crushing” sentence for this particular individual. 38 Many cases have indicated that in adjusting the sentence to avoid a crushing impact, the sentencing judge may do anumber of things.

See for example, Taylor at para. 19 where Chartier J.A. comments (when discussing the application of the totalityprinciple to a hybrid situation where some of the offences are sufficiently interconnected to impose concurrent sentences while otherscall for consecutive sentences) that “[a]lternatively, the judge could have carried out this reduction by reducing only some of theindividual sentences or by making some concurrent to others” (emphasis added). 39 The majority acknowledges that it is open to a sentencing judge to make sentences concurrent in order to apply thetotality principle and avoid unduly harsh punishment (see Duerksen).

In fact, it may have been preferable to have expressed the finalsentence differently so that a portion of the remaining sentence still reflected the offence against the younger sister H. But it was not anerror of law to choose to do as the sentencing judge did. She followed the guidelines set out by this court for the sentencing of multipleoffences. 40 Rather, the majority indicates that the sentence was rendered demonstrably unfit when the judge made the sentencesconcurrent. This was because the judge incorrectly assessed the accused’s overall culpability.

While agreeing with the sentencing judgethat four years was excessive, they decided that an increase of six months was necessary to adequately assess the accused’s moralculpability. 41 I agree that the totality principle requires the sentencing judge “who orders an offender to serve consecutive sentencesfor multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender” (R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 42).

With respect, if there is no error of law, I do not see that an increase ofsix months is of such significance so as to reflect a different view of the accused’s culpability. I would point out that the same highdeferential standard that applies on sentencing also applies to the decision of the sentencing judge to order concurrent rather thanconsecutive sentences. See R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948 at para. 46, Traverse, and Wozny at para. 10. 42 More importantly, I believe it is a mistake to further narrow the discretion of a sentencing judge.

The Supreme Courtof Canada has set the bar for appellate intervention in sentencing decisions at such a high level because it understands that sentencing is avery individualized decision.

This type of adjudication requires a considerable amount of discretion so that a judge can respond to themyriad of different circumstances that may arise. 43 While it is the task of appellate courts to set out guidelines, ensure consistency of ranges and correct material errors oflaw, those guidelines should not turn into a set of rigid rules that have the effect of depriving a judge of the appropriate amount ofdiscretion essential to achieve justice both for the individual and the public.

Our court has consistently stated that these guidelines “arenot intended to diminish that broad discretion in any way, but are intended, hopefully, to assist sentencing judges in determining a fitsentence” (Wozny at para. 37). My concern in this case is that the majority decision sets out yet another hurdle for the sentencing judgein the application of the totality principle in a situation where it is acknowledged there is no error of law. 44 An appellate court may also intervene if the length of the sentence is unfit.

In this case, given the uniquecircumstances of the offender, I do not believe that the sentence is outside of the range, although I agree it is on the low end of therange. Normally, incest and sexual interference over such a period of time with two siblings would, and should, attract a highersentence. The lives of these two sisters have been irrevocably damaged. Their family has been torn apart. 45 However, their brother has no history of criminal offending, either as an adult or as a youth, apart from this group ofcharges. To say that his family was dysfunctional is an understatement.

Not only did this brother abuse both sisters, but the youngerbrother pled guilty in youth court to similar offences. It is a telling comment on this accused’s childhood that the offences began when hewas a child.

These offences span a timeframe between 1996 and 2005 when the accused was between the ages of 10 years and 20 years. 46 In the psychological assessment report filed at the sentencing, it relates that his mother, who suffered from epilepsy anddepression, was physically and sexually inappropriate in her touching of both him and his siblings throughout their childhood and thatthis behaviour continued “virtually up to the day I left home.” He described his mother having sexually fondled him as a youngadolescent.

One letter from family friends, which was filed in court, describes his mother physically assaulting some young friends whocame to play with him and his brother. 47 Moreover, prior to sentencing the accused had been in the community since he was charged in February of 2006 withno breaches of any court orders. Dr. Somers indicated that the accused is at a low risk of sexual offending in the future and that he hasno current presentation of any major mental illness.

He has no history of substance abuse, is amenable to psychological treatment and hascompleted a 10-month program addressing sexuality and sexual behaviour. Dr. Somers concluded that “[d]espite horrific early traumareported in his life, his adult lifestyle has been, for the most part, conventional and pro-social. .... … [He] is at a low risk of offendingsexually against persons in the future [and] ... treatment is not required to reduce any discernible risk of future offending behaviour.”

48 Given all of the above, I do not believe the sentence is demonstrably unfit. I would grant leave to appeal sentence, but would dismiss the appeal. J.A.