Her Majesty the Queen - v. -, 2015 SKPC 51

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 051 Date: April 13, 2015 Information: 38280356, 38280355, 38282293 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - A.Q. and V.S. Appearing: D. Kim Jones For the Crown Rod Simaluk For A.Q. Marianna Jasper For V.S. Note: Pursuant to s. 486.4 of the Criminal Code , the Court made an order directing that the identity of the complainants and any information that could disclose the identity of the complainants, shall not be published in any document or broadcast in any way.

SENTENCING DECISION M. BEATON , J [ 1 ] A.Q. has pled guilty to the following offences which were committed between the first day of January 2013 and January 18, 2013: - did in committing assaults on S.S. use a weapon being wax, a knife, a hammer, a frying pan, an extension cord and a high heeled shoe contrary to s. 267 (

a) of the Criminal Code ; - did in committing a sexual assault on S.S. use a weapon to wit: a cucumber, a hammer and a potato contrary to s. 272(1) (

a) of the Criminal Code ; - did make child pornography contrary to s. 163.1(2) of the Criminal Code ; - did in committing an assault on J.C. cause bodily harm to her contrary to s. 267 (

b) of the Criminal Code ; - did in committing an assault on J.C. use a weapon to wit a green extension cord contrary to s. 267 (

a) of the Criminal Code ; - did in committing a sexual assault on J.C. use a weapon to wit: a cucumber contrary to s. 272(1) (

a) of the Criminal Code . [ 2 ] V.S. pled guilty to the following offences which took place between January 1, 2013 and January 18, 2013: - did in committing assaults on S.S. use a weapon being wax, a knife, a hammer, a frying pan, an extension cord and a high heeled shoe contrary to s. 267 (

a) of the Criminal Code ; - did in committing an assault on S.C. use a weapon to wit: a fork contrary to s. 267 (

a) of the Criminal Code ; - did in committing a sexual assault on S.S. use a weapon to wit: a cucumber, a hammer and a potato contrary to s. 272(1) (

a) of the Criminal Code ; - did make child pornography contrary to s. 163.1(2) of the Criminal Code ; - did in committing an assault on J.C. cause bodily harm to her contrary to s. 267 (

b) of the Criminal Code ; - did in committing an assault on J.C. use a weapon to wit a green extension cord contrary to s. 267 (

a) of the Criminal Code . [ 3 ] Initially, sentencing submissions were to be made on December 5, 2013. However, defence counsel for both accused were given leave to withdraw on that date and the accused subsequently applied to expunge their guilty pleas. That application was dismissed following a hearing. Sentencing submissions were made March 13, 2015. This is my decision on sentence. CIRCUMSTANCES OF THE OFFENCES [ 4 ] V.S. is A.Q.’s mother. The complainant S.C. was 16 at the time of the offence and is A.Q.’s daughter.

The complainant S.S. was 11 years old and her younger sister J.C. was 10 years old at the time of the offences. Both of these complainants are A.Q.’s nieces. [ 5 ] I have summarized the facts which are set out in more detail in the Crown’s brief of law. In October 2012, S.S. and J.C. were placed in the care of A.Q. by the Department of Social Services through the Yorkton Tribal Council. Both children had been voluntarily surrendered by their father. Sometime after Christmas, the two accused believed that S.S. had sexually assaulted A.Q.’s two year old son.

The Children’s Justice Centre of the Regina Police Service was called to investigate that complaint. During the course of that investigation the police discovered that S.S. and J.C. had been sexually and physically assaulted by A.Q. and V.S. As a result, they were removed from A.Q.’s home. S.S. had bruises on her face, arms, hands, back and legs. J.C. also had bruising to her face, arms, hands, back and legs with extensive bruising to her genital area and lower abdomen. Some of this bruising was attributed to assaults

committed by each accused. [6] The investigation revealed that on numerous occasions in January of 2013, A.Q. and V.S. had physically and sexuallyassaulted S.S. and J.C. Both accused were involved in forcing S.S. to insert objects such as a cucumber (which had been placed in urine),a potato and a hammer handle into her vagina and/or rectum. Some of these assaults were videotaped and photographed. On one of thevideos which was recovered by the police, both accused can be heard making offensive, derogatory remarks to S.S. Both accused alsopoured hot wax on S.S., primarily on her abdomen and genitals.

They also threatened to cut her clitoris. They also sought the assistanceof 16 year old S.C. in some of the sexual and physical assaults on S.S. [7] Both accused physically assaulted S.S. and J.C. by hitting them in the face and stomach, by choking them and throwingthem against the wall. They forced the girls to watch pornography and to write confessions of sexual behaviour. S.S. stated that shemade up confessions in order to avoid further punishment.

Both accused also threatened to kill S.S. and J.C. and to dispose of theirbodies. [8] A.Q. forced S.S. and J.C. to hit each other with objects such as extension cords, frying pans and high heeled shoes. A.Q. alsohit S.S.’s fingers with a hammer and threatened to break her fingers. A.Q. also sexually assaulted J.C. by forcing a cucumber into J.C.’svagina and buttocks and sexually assaulted S.S. by digitally penetrating her vagina. [9] V.S. stabbed her granddaughter S.C.’s back with a fork as she was not getting food on the dinner plates quickly enough.

VICTIM IMPACT [10] S.S. and J.C. both prepared victim impact statements. J.C. describes being very scared and angry. She was told by theaccused that she was possessed by demons and worried that this may be true. She has suffered from nightmares and has had troublesleeping. [11] S.S. states that she is always angry. She finds it difficult to understand why her family would hurt her and she is now afraid totrust anybody. As a result of this abuse, she had started to cut herself but has now stopped. She also has decided that she never wants tohave any children.

She is in counselling. [12] In assessing victim impact, I also rely on decisions in which courts have taken judicial notice of the psychological effects ofsexual assaults: R v W.B.S.; R v M.P. (1992), (AB CA), 73 CCC (3d) 530 (Alta CA); R v M.(D.), 2012 ONCA 520,111 OR (3d) 721. The Ontario Court of Appeal in M.(D.) stated that there are three well recognized consequences of sexual abuse. Children often suffer immediate physical and psychological harm. Children who have been sexually abused may never be able, as anadult, to form a loving, caring relationship with another adult.

Children who have been sexually abused are prone to become abusersthemselves when they reach adulthood. POSITION OF THE PARTIES [13] The Crown seeks a period of imprisonment of at least eight years. The Crown argues that this sentence is necessary to reflectthe gravity of the offences, the accused’s moral culpability, and to address the need for denunciation and deterrence. [14] The Crown agrees that both accused should receive credit of 1.5 to 1 for time spent on remand from the date of arrest toDecember 5, 2013, which was to be the original sentencing date.

The Crown submits that only 1 to 1 credit ought to be granted afterDecember 5, 2013 and argues that this matter has been delayed due to the actions of both accused, in particular by seeking to expungetheir guilty pleas.

[ 15 ] Counsel for A.Q. agrees that an eight year sentence is appropriate. Counsel for V.S. seeks a sentence lower than that imposed for A.Q. given that V.S.’s criminal record is unrelated to the offences before the Court and V.S. was implicated in fewer assaults on the complainants and therefore is less morally culpable. Counsel also asks the Court to apply s. 718.2 (

e) of the Criminal Code regarding the over incarceration of aboriginal people. Both defence counsel seek remand credit at the rate of 1.5 to 1 and argue that their clients had every right to apply to expunge their pleas. PERSONAL CIRCUMSTANCES OF THE ACCUSED [ 16 ] A.Q. is 39 years old. Her youth was described as difficult, as her family was transient and A.Q. lived in a number of foster homes. Her mother, V.S., was a residential school survivor and was abusive to A.Q. A.Q. was also sexually abused by her father between the ages of 8 and 15 and as a result she acted out and ran away from home.

She started abusing alcohol at age 15. She was eventually able to obtain her GED and attended university for one year. She has four children, one of whom is S.C. A.Q. has a criminal record which includes a conviction for assault with a weapon, a charge relating to two of her children. She received a suspended sentence and was placed on probation for this offence. A.Q. has a history of depression and has been hospitalized in the past due to struggles with her mental health. In the past she has abused cocaine and morphine. [ 17 ] V.S. is 58 years old.

She is a residential school survivor, and was physically and sexually abused as a child. She has never received counselling for this abuse. She has had one prior suicide attempt and has struggled with substance abuse. Through her counsel, V.S. says that she has only seen abuse during her life and that her conduct, ill conceived as it was, was to correct behaviours of the complainants who she believed to be highly sexualized individuals. She asserts that, due to her childhood, she never learned how to deal with children and that she is not solely to blame for her actions.

She argues that she is a product of the environment in which she lived as a youth. V.S.’s criminal record contains convictions unrelated to the current offences. ANALYSIS [ 18 ] A sentencing decision must be guided by the provisions of s. 718 to 718.2 of the Criminal Code . The fundamental purpose of sentencing is to contribute to respect for the law and to maintain a just, peaceful and safe society by imposing just sanctions.

Just sanctions must reflect the sentencing objectives of denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation, promotion of a sense of responsibility in the offender and acknowledgment of the harm caused to the victim and to the community. The relative emphasis to be placed on each of these objectives varies according to the circumstances of the offence and the offender. [ 19 ]

Section 718.1 of the Criminal Code states that the fundamental principle of sentencing is that a sentence must be proportionate to the offence and the degree of responsibility of the offender. Proportionality ensures that a sentence reflects the gravity of the offence. As well, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender.

A just sanction is one that reflects both perspectives on proportionality. [ 20 ] A Court that imposes a sentence must also consider any relevant aggravating or mitigating circumstances relating to the offence or the offender. The presence of aggravating or mitigating circumstances relate to either or both the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 specifically lists certain aggravating circumstances which are relevant to the case at hand, namely, that the offender, in committing the offence, abused a person under the age of 18 years and abused a position of trust in relation to the victim. [ 21 ] Moral blameworthiness includes a consideration of the accused’s criminal record, her overall state of mind in committing the offence and in particular, includes her knowledge of the circumstances of the offence, her method in committing it as well as her motivation in committing it.

Where the crime is planned and deliberate and based on revenge, the degree of the accused’s moral responsibility is higher than where the crime is impulsive.

Section 718.2 also requires the sentencing judge to have regard to additional sentencing principles, including consideration of totality, parity, and the need to consider all available reasonable sanctions other than imprisonment, with particular attention to the circumstances of aboriginal offenders. (

a) Proportionality

[22] According to the Saskatchewan Court of Appeal in R v Yuzicapi, 2011 SKCA 134, 377 Sask R 133, there are three importantconsiderations in determining the gravity of the offence, namely, the nature and comparative seriousness of the offence, thecircumstances of its commission, and the harm caused by it. [23] The offences of assault with a weapon and assault causing bodily harm carry maximum sentences of 10 years imprisonment. The offence of making child pornography carries a maximum penalty of 10 years imprisonment and a minimum penalty of one yearimprisonment.

The offence of sexual assault with a weapon carries a maximum penalty of 14 years imprisonment and a minimumpenalty of five years imprisonment if the complainant is under the age of 16 years. [24] The imposition of minimum sentences of imprisonment for two of the offences faced by the accused demonstrate theirseriousness. [25] The circumstances of the commission of these offences are very disturbing. These crimes were planned, deliberate and“revenge based”. In effect, the complainants were tortured.

Although the complainants did not have any lasting physical injuries, theywere emotionally and psychologically injured. Both accused sought the participation of 16 year old S.C. in the commission of some ofthe offences. The sexual assaults were degrading and some of them were video recorded and photographed.

The video recordings weremade to further humiliate and denigrate the complainants. [26] In addition to considering the gravity of the offence, I must consider the degree of responsibility of the offenders. [27] The degree of responsibility of the offender refers to the offender’s culpability as reflected in the essential substantiveelements of the offence, especially the fault component, and any specific aspects of the offender’s conduct or background that tend toincrease or decrease the offender’s personal responsibility for the crime: R v Hamilton (2004), (ON CA), 186 CCC(3d) 129 (QL) (Ont CA).

The Court in Hamilton discussed how the circumstances which may lead offenders to offend are to beconsidered when courts apply the proportionality principle. The accused in the Hamilton case were convicted with importing cocaine. The Court held at paragraph 140: Even where the crime committed is very serious, however, factors going to personal culpability for the crime must still be considered.For the reasons outlined above, the circumstances which led the respondents to commit these crimes entitle them to some mitigation.

Itmust, however, be stressed that consideration of the circumstances which led an offender to commit a crime is only part of the overallassessment that must be made in determining personal culpability for the purposes of imposing a sentence which complies with theproportionality principle. Our criminal law rejects a determinist theory of crime. The respondents had a choice to make and they madethat choice knowing full well the harm that the choice could cause to the community.

The economic circumstances of the respondentsmade their choice more understandable than it would have been in other circumstances, but it remains an informed choice to commit avery serious crime. The blunt fact is that a wide variety of societal ills - including, in some cases, racial and gender bias - are part of thecausal soup that leads some individuals to commit crimes. If those ills are given prominence in assessing personal culpability, anindividual's responsibility for his or her own actions will be lost. [28] In the case before me both accused felt justified in their conduct.

I am not prepared to find that the accused are remorseful. These offences were a product of deliberate actions and conscious choices on the part of the accused. Both accused made consciousdecisions to torture the complainants as a result of perceived sexual conduct by the complainants. [29] Both the gravity of the offences and the degree of responsibility of both accused lie at the upper end of the scale in this case. (

b) Purposes of Sentencing [30]

Section 718.01 of the Criminal Code makes it clear that for the offences of sexual assaults against children and the making ofchild pornography, primary consideration in sentencing must be given to denunciation and deterrence.

[31] There are many aggravating factors in this case in addition to the nature of the offences. These include: • the accused were in a position of trust to the complainants; • the complainants were under the age of 18 years; • the complainants were threatened with death; • the accused involved their 16 year old relative in the assaults; • the complainants were forced to watch pornography; • there were numerous incidents of abuse; and • the sexual offences were planned and deliberate. [32] I find few mitigating circumstances.

Although the accused have pled guilty, an application to expunge the guilty pleas wassubsequently made and denied. I therefore do not place the same weight on the entering of guilty pleas as I would otherwise. (

c) Parity [33]

Section 718.2(

b) of the Criminal Code states that an offender’s sentence should be similar to sentences imposed on similaroffenders for similar offences committed in similar circumstances. As a matter of principle, the courts ought to avoid disparatesentences, for the same or similar offences, particularly in the case of co-accused. However, sentencing remains an individual processand variations in sentences may exist even in relation to the same crime committed by co-accused: R v Knife (1982), (SK KB), 16 Sask R 40 (SKCA). [34] Counsel could not locate any cases which were analogous to the one before me.

However, certain ranges of sentences forsexual assaults and sentencing guidelines have been established in Saskatchewan Court of Appeal and other Court of Appeal decisionswhich are instructive. [35] The Saskatchewan Court of Appeal has established three years imprisonment as a starting point sentence for serious sexualassaults on adults. This starting point assumes an offender who is of good character and has no criminal record: R v Cappo (1993), 116Sask R 15, R v Jackson, (SK CA), [1994] 3 WWR 125.

Furthermore, the Court has consistently said that apenitentiary term is warranted for repeated acts of sexual abuse short of intercourse committed against a young child by a familymember. In R v J.L.S., 2006 SKCA 95, 289 Sask R 153, the Court reviewed jurisprudence from the previous 15 years and noted thatsignificant penitentiary terms had been imposed in cases of child sexual abuse. As well, in R v D.G.H. (1990), (SKCA), 88 Sask R 115 (CA), Tallis J.A. wrote: In this case the Court must emphasize the principle of denunciation of such serious sexual offences: R. v.

Sandercock 1985 ABCA 218, [1986] 48 C.R. (3d) 154. Societal values cannot be ignored when dealing with such revolting behaviour. Rape by a stranger isoften quick and brutal. It allows for a straight-forward reaction - anger, hate. It is undoubtedly the infliction of an unspeakable indignityon a female person and it is the ultimate in human degradation. But the seduction or coercion of a child by a needed and trusted father isfar more complex. One can only attempt to appreciate and understand the trauma and consequences of such a prolonged period of attackon the victim in this case.

In the circumstances of this case we are all of the opinion that 4 years imprisonment does not place adequate emphasis on the principleof denunciation or repudiation. In our opinion the sentence must be increased to reflect society's revulsion to this type of conduct. ... [36] Most recently, in R v N.M., 2014 SKCA 126, 446 Sask R 249, the Court imposed a five year sentence on a father convicted ofsexually touching and exploiting his granddaughter when she was between three and five years of age. He had also taken two photos ofher genitalia and had two other images of child pornography on his computer.

N.M. had admitted to touching his granddaughter between20 and 30 times with fingers, mouth and genitals. He was 67 years old, had no criminal record, cooperated fully with the police and

provided extensive details of the offences. These offences were out of character for him and he had sought treatment. He was at lowrisk to re-offend, accepted full responsibility and was deeply remorseful for the harm he had caused his granddaughter. [37] The Alberta Court of Appeal has also offered guidance in imposing sentences for major sexual assaults upon children: R vW.B.S.; R v M.P. (1992), (AB CA), 73 CCC (3d) 530 (QL). The Court in W.B.S. stated at page 18 (QL) as follows: ... In our view the starting point should be four years in the case of a single major sexual assault upon a child.

There may be aggravatingfactors, such as the repetition of sexual assaults, protracted confinement or kidnapping, gratuitous violence and injuries, threats to kill orhurt the child if he or she tells anyone what has happened, extreme youthfulness of the child, parental use of the child for the carnalpleasure of a friend of the parent, physical violence with or without a weapon, exposure of the child to printed or visual materialsdepicting pornography, transmission of venereal or other sexually transmitted disease to the child, or pregnancy of the child resultingfrom the sexual assault. ... [38] The case of R v D.M., 2012 ONCA 520, 288 CCC (3d) 564, contains an analysis of previous Ontario Court of Appealdecisions and Supreme Court of Canada decisions dealing with sentences for sexual assaults on children perpetrated by persons inauthority and in a position of trust.

The Court repeated the principles of sentencing mentioned in previous decisions of that Court, andheld that prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust will draw a minimumsentence of five to six years imprisonment. In D.M., the accused was the complainant’s uncle. Over a three year period, while thecomplainant was 15 to 19 years of age, the accused sexually assaulted the victim. The sexual acts included acts of sexual intercourse,and included inserting a six inch carrot into her vagina and forcing her to watch pornographic videos.

As the complainant was from Fiji,the accused threatened to deport her if she disclosed the abuse. The Court found that aggravating factors included the number ofincidents of sexual abuse, including humiliating and degrading the complainant with the carrot, threatening her with deportation, thebreach of trust, and the offender’s complete lack of remorse. The Court imposed a sentence of seven years imprisonment. [39] Offences of sexual assault with a weapon or causing bodily harm committed upon by an offender with no record have yieldedsignificant periods of incarceration.

In particular, in R v Carangan, 2013 SKCA 54, 414 Sask R 207, the Court upheld a sentence of 34months incarceration for an accused who placed a shuffleboard rock in the complainant’s vagina. Although the accused and thecomplainant had had consensual intercourse earlier, the trial court found that the complainant was incapable of consenting to theplacement of the rock due to her level of intoxication. The rock had to be surgically removed and as a result, the complainant sustained avaginal injury. The accused was genuinely a remorseful first time offender who faced deportation as a result of the conviction.

TheCourt held that the sentence was not demonstrably unfit. [40] In R v Black, 2007 SKPC 28, 294 Sask R 33, the accused was sentenced to eight years imprisonment on charges of sexualtouching, invitation to sexual touching, possession of child pornography and making child pornography. The accused and his wifebabysat the three female victims who were approximately one, four and five years of age when the incidents started. The acts of sexualabuse included attempted intercourse, digital penetration, the use of a vibrator on the complainants, and fellatio on the accused over an18 month period.

Much of the sexual abuse was photographed or videotaped. The children were also made to watch pornography. Theaccused had also downloaded child pornography from the internet.

The sentencing judge reviewed numerous cases from the Ontario andAlberta Courts of Appeal in accepting the joint submission for eight years incarceration. [41] In the case of R v W.D., 2008 ABPC 290, 449 AR 267, the accused pled guilty to one count each of sexual interference,invitation to sexual touching, possession of child pornography, making child pornography and administering a drug to overcomeresistance to the commission of a sexual assault.

For approximately three years, from the time the complainant, who was the daughter ofthe accused, was 11 until she was 14 years old, the accused physically and sexually assaulted her and took pornographic pictures andvideos of her. He also counselled her to place objects into her vagina. He sometimes provided her with marihuana before the sexualassaults occurred.

The sentencing judge in W.D. referred to the guidelines imposed by the Alberta Court of Appeal and imposed a globalsentence of nine years imprisonment (five years concurrent for sexual interference and invitation to sexual touching, three years for eachof the child pornography offences, concurrent to each other and consecutive to the five year sentence, and one year consecutive forovercoming resistance). [42] Serious assaults of a non-sexual nature on children will also warrant sentences of imprisonment.

In R v M.E.N. (1994), (SK CA), 123 Sask R 58 (SKCA), the Court reduced a four year sentence of imprisonment to 30 months for a mother whoassaulted her daughter. The accused grabbed her daughter and threw her against a wall a number of times. She told the child that shewanted to kill her and began choking her. The accused then attempted to force some prescription drugs down the child’s throat, althoughthe child was able to spit out the drugs. As a result of the assault, the child had bruising to her neck, arm and chest.

The Court held thatprinciples of rehabilitation and reformation needed to be considered in this case as the accused had been drinking prior to the incident and

required treatment for her addiction. [43] In considering the parity principle, I believe that the sentence of eight years being sought by the Crown and agreed to bycounsel for A.Q. is within the appropriate range. V.S. was involved in a series of assaults, sexual and otherwise against threecomplainants, but she was implicated in fewer assaults than A.Q. This fact must be taken into account in crafting the appropriatesentence for V.S. (

d) Restraint [44]

Section 718.2(

d) requires that offenders not be deprived of liberty if less restrictive sanctions are appropriate. Section718.2(

e) states that sentencing judges must consider all available sanctions other than imprisonment that are reasonable in thecircumstances, with particular attention to the circumstances of aboriginal offenders. Kalmakoff J. in R v McNabb, 2013 SKPC 208, 434Sask R 270, aptly summarized the law as follows: 51

Section 718.2(

e) does more simply than affirm existing principles of sentencing. It calls upon judges to use a different method ofanalysis in determining a fit sentence for aboriginal offenders. It directs sentencing judges to pay particular attention to the circumstancesof aboriginal offenders because those circumstances are unique and different from those of non-aboriginal offenders.

Section 718.2(e)does not mean that aboriginal offenders are to be exempt from accountability, but rather that judges must consider an individual’sbackground in order to craft an appropriate sentence: R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 at para. 37; R. v.Gabriel, 2013 MBCA 45. 52 Therefore, in addition to considering Mr.

McNabb’s personal circumstances, I must also take into account historical factors such asthe legacy of colonialism, displacement, residential schools, systemic racial discrimination, and how those factors have contributed tosocial problems, including a higher rate of incarceration, for aboriginal people. These factors, on their own, do not necessarily justify adifferent sentence for aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating Mr. McNabb’spersonal situation: R. v. Gladue, supra, at para. 78; R. v.

Ipeelee, supra, at para. 60. 53 The Supreme Court also made it clear in Ipeelee that proper consideration of

section 718.2(

e) does not require the offender toestablish a causal link between systemic or background factors and the commission of the offence in order to have those factorsconsidered in sentencing. Furthermore, the remedial purpose of

section 718.2(

e) should not be negated through blind adherence to parityin sentencing. 54 That said, not every case involving an aboriginal offender will call for a mitigated sentence. Although

section 718.2(

e) cannot beignored simply because the offender is convicted of a very serious offence, there are some cases where the goals of deterrence,denunciation and public safety simply must be given greater weight. It is unreasonable to assume that aboriginal people themselves donot believe in the importance of such goals. Even if they do not, in some cases, those goals must be predominant considerations insentencing: R. v. Gladue, supra, at para. 78; R. v. Gabriel, supra, at para. 20. [45] As with Mr.

McNabb, the combination of historical factors and A.Q.’s and V.S.’s personal circumstances cast their moralblameworthiness in a different light. However, given the gravity of their offences and their degree of responsibility, denunciation anddeterrence are still the primary goals which their sentences must address. (

e) Credit for Pre-Sentence Custody [46] Both accused have been held in custody since January 24, 2013. I calculate that time to amount to approximately 26.5 monthson remand. Section 719(3.1) of the Criminal Code states that, if circumstances justify it, I may increase that credit for remand time to amaximum of 1.5 to 1. Enhanced credit under s. 719(3.1) is not available if the offender was denied bail by the Court for reasons of pastrecord or for breaching bail conditions. A.Q. never sought bail. V.S. was denied bail but not for the reasons stated in s. 719(3.1).

I amtherefore not precluded from considering enhanced credit for remand. [47] The recent decisions of R v Summers, 2014 SCC 26, 308 CCC (3d) 471 and R v Carvery, 2014 SCC 27, 308 CCC (3d) 375stand for the proposition that loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1,even if the conditions of detention are not particularly harsh, and parole is unlikely.

[ 48 ] In the case before me, the accused were not quick to find new lawyers to assist in making the application to expunge their guilty pleas. The hearing date also was delayed to accommodate all counsel’s schedules. However, I am unable to conclude from all the circumstances, that the accused were delaying the matter for any improper purpose. Therefore, this delay is not a factor to be considered when determining whether to give credit for pre-sentence custody. I therefore grant both accused credit for their remand time at the rate of 1.5 to 1 which amounts to 40 months. (

f) Totality [ 49 ] Each accused has pled guilty to a total of six offences.

Section 718.2(

c) states that where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh. The offences in this case demonstrated a course of conduct over a two week period. The offences do, however, constitute invasions of different legally protected interests: R v Gillis , 2009 ONCA 312 .

Also, in determining the appropriate sentence, I must not use the commission of the elements of other offences arising out of the same incident to justify the imposition of a maximum sentence for the underlying offence and then impose a consecutive sentence for those other offences: R v Naugle , 2011 NSCA 33 , 271 CCC (3d) 321. [ 50 ] I do find that consecutive sentences are warranted given the nature of the offences but that the total sentence should not exceed what is appropriate, given each accused’s overall level of culpability.

SENTENCE [ 51 ] Having considered all the relevant factors, I impose the following sentence on A.Q. (Before giving credit for pre-sentence custody.) [ 52 ] For the offence of committing sexual assaults with weapons on S.S., I impose a term of imprisonment of five years in a federal penitentiary. [ 53 ] For the offence of committing a sexual assault with a weapon on J.C., I impose a term of imprisonment of five years to be served concurrently to all other sentences. [ 54 ] For the offence of committing assaults with weapons on S.S., I impose a term of imprisonment of two years to be served consecutively to all other sentences. [ 55 ] For the offences of committing an assault with a weapon on J.C., I impose a term of imprisonment of two years to be served concurrently to all other sentences. [ 56 ] For the offence of committing an assault which caused bodily harm to J.C., I impose a term of imprisonment of two years to be served concurrently to all other sentences. [ 57 ] For the offence of making child pornography, I impose a sentence of one year imprisonment to be served consecutively to any other sentence. [ 58 ] I impose the following sentence on V.S. (Before giving credit for pre-sentence custody.) [ 59 ] For the offence of committing sexual assaults with weapons on S.S., I impose a term of imprisonment of five years in a federal penitentiary.

[ 60 ] For the offence of committing assaults with weapons on S.S., I impose a term of imprisonment of 18 months to be served consecutively to all other sentences. [ 61 ] For the offence of committing an assault with a weapon on J.C., I impose a term of imprisonment of 18 months to be served concurrently to all other sentences. [ 62 ] For the offence of committing an assault which caused bodily harm to J.C., I impose a term of imprisonment of 18 months to be served concurrently to all other sentences. [ 63 ] For the offences of committing an assault with a weapon on S.C., I impose a term of imprisonment of six months to be served concurrently to all other sentences. [ 64 ] For the offence of making child pornography, I impose a sentence of one year incarceration to be served consecutively to any other sentence. [ 65 ] Therefore, the total sentence for A.Q. is eight years in a federal penitentiary.

The total sentence for V.S. is seven years, six months. I am crediting each accused 40 months for pre-trial custody. That means A.Q. must still serve four years, eight months in custody and V.S. must serve four years, two months in custody. [ 66 ] I also impose the following ancillary orders for each accused: - a DNA order pursuant to

section 487.051 of the Criminal Code ; - a lifetime order under SOIRA pursuant to

section 490.012 and

section 490.013(2.1); and - a 10 year firearms order pursuant to

section 109 of the Criminal Code . ________________________ M. Beaton, J