R. v. G.L.C., 2013 NBPC 9

PROVINCIAL COURT OF NEW BRUNSWICK 2013 NBPC 9 R. v. G.L.C. Before : Judge Alfred H. Brien On : March 28 ,2013 At : Woodstock, N.B. Counsel : Crown Damien Lahiton Defence : Angèle Normand REASONS ON SENTENCING ______________________________________________________________________ BAN ON PUBLICATION (Note: This decision was read orally in court without the case citations which are included here) INTRODUCTION [ 1 ] At the outset, the Court is aware that Mr. G.L.C. is hard of hearing so I will attempt to increase the volume of my voice so that he can hear the reasons for the sentence that I’m going to impose.

The volume is not to be construed as anything other than an attempt by the Court to ensure that the accused hears what the Court has to say. [ 2 ] The other note that I’m going to make is that due to the sensitive nature of sentencing when it deals with the very private and personal lives of individuals who have been sexually abused, there is a prohibition on any – the release of any evidence that would identify those victims, and that continues. [ 3 ] Thirdly, the Court wants to indicate that those victims that took the time to prepare victim impact statements and those who very courageously came to court and read those statements, that they should understand, and the Court wants to reiterate, that they share no blame for these offences.

There is only one person who bears the full and moral blame and that is the accused. So even though these ladies who came before the Court or submitted statements before the Court giving their statements as to the impact of when they were very young victims from the eyes of grown women, it must be clear that notwithstanding the time that elapsed before the disclosures, that they are blameless for the actions of the accused. CHARGES

[4] With respect to the charges, the accused pled guilty to nine offences under the Criminal Code all related to sexual abuse of four thenyoung girls. The time period covered for the offences is 1974 to 1988. The four children include the step-daughter of the accused andthree young girls who were, at times, friends with the step-daughter. All of the offences took place at or near Woodstock, NewBrunswick.

As charged, the nine offences comprise four counts of indecent assault, three counts of sexual assault, one count of sexualinterference with a female not his wife without her consent, and one count of sexual intercourse with a female under the age of 14 years. BACKGROUND [5] The Crown outlined the background as to each and every one of the offences grouping them with respect to the individual victims.

Sadly, it is a scenario too often heard in these courts of a male parent or person in loco parentis to one child who uses the opportunitysuch a relationship provides to use the child for his own sexual gratification, and this often extends to other children within the parent’sreach by virtue of friendships or relationship with other unsuspecting and vulnerable children brought to the house. [6] In these fact situations the parent, being the step-father of one of the victims, progressively and deliberately increased the extent ofthe improper sexual contact and at times used offers of incentives such as money and physical force, such as striking what he consideredto be a recalcitrant victim to continue his perpetration.

As noted in the offences, there are incidents of non-penetrative and penetrativesexual activity. The detailed description of the events for each of the victims was outlined by the Crown, to which version the accusedtook no exception and I will not repeat all of those details as they are part of the court record. PRINCIPLES OF SENTENCING [7] Turning to the principles of sentencing, sentencing is an extremely important, but usually a very difficult part of the trial process, following either a plea or a finding of guilt. In this case, the accused pled guilty.

The Court is obligated to structure its sentence keepingin mind the purposes and principles of sentencing as well as the various factors that arise in any particular fact situation. [8] As stated in R. v. L.M., 2008 SCC 31 , [2008] S.C.J.

No 31 at para 17 , To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personalcharacteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code: The objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgement ofand reparations for the harm they have done( s. 718 Cr.

C.) The fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender; (s. 718.1 Cr. C). The principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentenceshould be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and thatavailable sanctions other than imprisonment should be considered.( s. 718.2 Cr.

C) [9] Our Courts over the years have reiterated time and time again the concerns that society has for crimes, particularly sexual crimes,committed against children. (see R. v. Springer (1988) (NB CA), 88 N.B.R.(2d) 177 N.B.C.A.and R. v. D.C. andM.G. 2009 NBCA 59)

[ 10 ] In R. v. D.C. and M.G. , the Court stated : “On the other hand, this Court has, on more than one occasion, made it clear that in sexual crimes involving breach of trust between parents or adults and children, the primary focus for sentencing is denunciation and general deterrence.

This weighs heavily against any mitigating factors….” [ 11 ] Noting, as I have, that the Code provides for Courts to consider both aggravating and mitigating factors, I think they are very easily identified in this case . [ 12 ] I’ll start with the aggravating factors, which are those factors which make the matter more serious and they are very evident. AGGRAVATING FACTORS 1 . Objective Gravity [ 13 ] Parliament of Canada indicates the seriousness of an offence by means of legislated penalties. In this case the maximum and minimum penalties for the offences considering the specified time periods are as follows:.

The offence under s. 144( sexual intercourse with female who was not his wife without her consent) carried a maximum sentence of life (Count 1) The offences under s.149(1) ( indecent assault ) carried a maximum sentence of 5 years. (Counts 3 , 7, 10 and 15) The offence under s. 246.1(1)(a) ( sexual assault) carried a maximum sentence of 10 years. (Counts 6 , 9 and 12) The offence under s. 146(1) ( sexual intercourse with female who was not his wife and under the age of 14 years) carried a maximum sentence of life ( count 14) 2.Nature of the Offences [ 14 ] These are sexual offences committed against children who had not reached the emotional or chronological age to consent to any sexual activity with an adult..

As noted, sexual crimes against children are viewed as very serious. [ 15 ] As to the nature of the offences, such involves a serious and intimate invasion of the privacy of a person. Commission of such against a child is to take advantage of a vulnerable member of society. . 3. Age imbalance [ 16 ] At the relative times there was a very significant age imbalance between the accused and each of the victims 4. Pattern of Abuse

[ 17 [ With respect to each of the victims, and in particular with respect to M.P. there was a progressive and aggressive pattern of abuse which ranged from fondling and non-penetrative sexual activity to oral sex and then to full intercourse. [ 18 ] This pattern perpetrated upon his step daughter resulted in her mistaken belief that such conduct was normal in a father daughter relationship. The accused permitted and fostered such a warped view of normalcy. [ 19 ] With respect to L.L. the pattern was from fondling to oral sex.

With respect to the other two victims, the accused continued a similar pattern now in relation to young girls who had a friednshipo with his step daughter, concluding in intercourse by force and digital penetration. 5. Unprotected Sex [ 20 ] The accused performed the sexual activity with the victims apparently without consideration for protecting the victims from potential transmission of disease or impregnation. [ 21 ] It is noted that he informed that he had a vasectomy as protection from impregnating his step daughter, but this well after he had been engaging in this high risk activity. 6.

Duration and frequency [ 22 ] The duration of the sexual activity varied with each of the victims but extended for long periods. The duration with respect to MP extended for 16 years. With respect to LL it was 5 years KF for 6 years and HG for 1 year. 7. Planning [ 23 ] The accused clearly chose his victims as they came into contact with him through his step daughter.

He utilized both monetary reward and force to achieve his plan to sexual gratify himself with no regard whatsoever for the victims. [ 24 ] Clear as well is that he took deliberate steps and care to foster the notioin of normalcy of such with his step daughter 8. Motive [ 25 ] The accused readily admitted to the motive for his offences, namely his own sexual gratification. He appears to have simply preyed on the weak and vulnerable with reckless abandon. He was prepared to and did use force. In his statement he attributed to one of the victims that she may have enjoyed the incidents of full sexual intercourse .

What is most revealing is that this same case he referred to himself as a ‘rape situation’. 9. Position of Trust [ 26 ] The accused was the step father of MP and when her friends stayed at her home from time to time, the accused was clearly in a position of authority over these victims. [ 27 ] He violated the trust and appears to have not sensed or felt any responsibility for his improper actions.

10. Impact on Victims [28] In her Victim Impact Statement, MP poignantly summed up her experience. “When I was a little girl I was never afraid of monsters under my bed or in my closet, I knew where the monster in my house lived. Heslept in the bedroom down the hall.

No little girl should be afraid of her father” He stole from me my childhood, my innocence every choice that should have been mine to make, every experience a young womanshould have to choose to give to a man she loves you stole from me.” [29] The Victim Impact Statements collectively reflect the hurt and pain that the victims experienced and do so to this day. They do notspeak to revenge, but to justice. One wanted the opportunity to just ‘tell the accused right off’, and she did. [30] It is so difficult to imagine the terrible aspects of life to which these girls were subjected.

It was real and remains real for themtoday. It can only be hoped that this prosecution has brought some small comfort to them; that the accused would be called to accountfor his actions, that they would recognize and be recognized as blameless in this and that such would be therapeutic for them and thecommunity. MITIGATING FACTORS 1. Plea of Guilty [31] The most obvious mitigating factor is that the accused did enter his pleas of guilty and he did so in a timely fashion.

As such, hesaved the victims from having to relive the experience through giving oral testimony, although , in this case I am struck and impressedby the strong desire of these women to find justice and I feel confident that they were prepared for trial, should it have been required. One victim returned from British Columbia just to read her victim impact statement. 2. Cooperation with Investigation [32] It has been referred, by counsel for the accused, that he was cooperative with the police, and that is noted. 3.

No prior offences [33] While the accused acquired a criminal record subsequently to the commission of these offences the former would not constitute aprior record for the matter of sentencing today [34] However as noted in R. v. R.A. )(Man C.A.) an offender with an exemplary life during the intervening yearswith a demonstration of genuine remorse might be considered for a reduced sentence as such might obviate the need for specificdeterrence. [35] In this case the subsequent criminal record for similar offences negates such consideration. 4. Acceptance of Responsibility

[36] Apart from the ultimate indication of legal responsibility as recorded by a plea of guilty, there is some, although equivocal,acceptance of moral responsibility.

In the PSR the author records that the accused “ expressed remorse for his actions describing himselfas a different person at present than in the past.” [37] Later in the same report he is reported to have said “I’m not a criminal if that’s what you’re asking me – I am and I am not” Thereis also the observation that “He maintains he has thought about his actions everyday stating he is more than sorry it happened” [38] The author observed that the accused “ related regret stating “you can’t go back and erase what you have done; wish I would haveknown that at the time” and further the comment of the accused that he “wouldn’t know how to apologize “ 5.

Presentence Report [39] The PSR portrays an old and lonely man who reports “ issues in relation to arthritis, forgetfulness following a stroke and his heartciting a previous heart attack”. The report states that ‘ the subject did reiterate several times throughout the interview in relation to thepresent matter that he no longer has sexual desires and appears to attribute such to having undergone prostate surgery in the past” [40] This 81 year old denies ever experiencing any instances of abuse when growing up, with a wonderful mother on a small farm.

Hehas twice married and had 5 children from the first marriage and was step father to two children from the second marriage. One of thesewas the victim MP. The death of a grandson by accident was difficult for the accused. [41] It is noted that as a result of the subsequent conviction for sexual abuse crimes he benefited from sex offender treatment programs [42] He was gainfully employed during his life until retirement at 65 years. He is now a pensioner with no debts and no savings. He hasbeen involved with a local church for the past 10 years and reports to have outlived his friends. 6.

Historical Aspect, Age and Health [44] These three factors have been argued by the Defence as mitigating factors and disputed by the Crown as such. They are somewhatconnected by virtue of the effects normally experienced by human beings with the passage of time . [45] Both counsel have provided caselaw on these factors and it is helpful to canvass such in consideration of what if any weight theyindividually or collectively may bear on sentence. [46] In R. v.

Dinn, (1992) (NL CA), 104 Nfld. & PEI R 263 the Newfoundland Court of Appeal dealt with a 79 anda half year old woman who had been sentenced to a total of two years for five common assaults, for a pattern of assaults over three tofive years on children three to nine years of age in her foster home in a timeframe of 20 to 26 years prior to her sentence.

In discussingthe appeal of sentence and confirming the importance of the principles of general deterrence, the Newfoundland Court of Appeal notedat paragraph 14 : It must also be clearly pointed out, as this Court has done before, that the passage of time does not of itself diminish the seriousness of aparticular crime from a sentencing viewpoint. [47] On the issue of the advanced age of the accused, who was, at that time, 79 and a half years old, the Court made this observation: As to the age of the appellant, the point must be made that there is no precept of law which states that because someone is old, he or she

cannot be sentenced to a prison term. Age may obviously be a factor for consideration in imposing sentence, and it is incumbent on asentencing judge to consider both the offence and the offender. In this case we have a pattern of extremely serious offences amountingalmost, as stated by Crown counsel before this Court, to torture. The offender had no reason to commit such offences in relation to thesechildren, so when one views the offender herself, one sees a sadistic, remorseless person who now happens to be old. Courts do not existfor the purpose of exacting retribution.

If she was so old and infirm that a prison term could seriously endanger her health, then thatcould well be a different matter. Such, however, has not been demonstrated here, so that while the trial judge did take the appellant’sage into consideration, he in our view quite properly balanced the appropriate factors in arriving at the sentence appealed from. [48] With respect to the issue of health, in addition to the comment in the previous paragraph, the Newfoundland Court of Appeal stated: The same point may be made with regard to the appellant’s state of health.

While the appellant has for some time been subject to certainchronic disorders, it has not been shown that she is in any imminent danger from these disorders. It is thus not strictly relevant. If whileshe is in prison her state of health deteriorates, she may properly be looked at by the prison and correctional authorities and it will betheir decision as to what should be done. [49] The New Brunswick Court of Appeal in R. v.

S.(G.W).,( 1988) (NB CA), 88 N.B.R.(2d) 177 , dealt with a caseof a 76-year-old male with no previous record who had received a sentence that was suspended with two years probation and the courtincreased the sentence to three months and two years probation. The offences were sexual assaults of a 10-year-old daughter of theaccused’s nephew, over a two-month period. At the time of sentencing accused was a diabetic, had a heart condition and problems withhis eyesight and hearing. He was divorced and lived alone.

In emphasizing the need for general deterrence and specific deterrence insuch cases the Court of Appeal noted that notwithstanding the age and health of the accused, that, “to allow this accused to commit suchacts as are alleged without penal consequences would neither deter the accused nor act as a deterrent to those with similar tendencies.” [50] The Appeal Court also responded to the submission by Counsel as to the matter of what was to be gained by sending an old personto jail.

The Court said that society would also gain if other people were deterred by the prospect that they would certainly face a jailsentence if they committed such a crime. [51] In R. v. R.(A) , to which I have made earlier reference, the Manitoba Court of Appeal dealt with a 71-year-old male with no priorrecord who, at the time of sentencing, was wheelchair bound by reason of suffering from muscular dystrophy. This disability requiredround the clock care. He had been convicted of sexual offences, in particular sexual intercourse with a 13-year-old daughter on threeoccasions approximately 20 years prior.

The original sentence was 30 months prison. The Court of Appeal grappled with the issue of afit and just sentence due to the age of the accused and his state of health. The Court observed as to the historical issue as follows,: “The antiquity of the offence is not usually a mitigating factor: see R. v. Spence (1992) 1992 ABCA 352 , 78 C.C.C.(3d)451(Alta C.A.) . Denunciation and general deterrence remain the predominant sentencing principles.

As the Court said in Spence at page455: If a Court were to impose a lenient sentence because of the passage of time, such members of the community might regard the sentenceas judicial condonation of the conduct in question. That could tend to lessen respect for the administration of justice. [52] As to the issue of advanced age, the Court made this observation: 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 toa non-incarceratory term sentence.

The most such an offender can hope for is a reduction in the time he or she would otherwise haveserved. [53] And finally as to health, the Manitoba Court of Appeal observed as follows: An accused’s infirmity, always a factor to be considered, may warrant a reduction in the sentence that would otherwise have beenimposed or a different kind of sentence, it all depends on the nature and effect of the infirmity and the nature and seriousness of thecrime. Compassion must neither be stifled nor allowed to take control.

[54] In R. v. P.M., the New Brunswick Queen’s Bench dealt with the case of a 35-year-old accused being sentencedfor sexual assault and sexual touching of a 13-year-old friend of the accused’s step-daughter. It happened over a nine to ten monthperiod while the accused was in a position of trust. Subsequent to the offences, as a result of an accident the accused became aparaplegic. Evidence was tendered before the trial court judge as to the medical facilities and services available in a federal prison forsuch a medical case if he were so sentenced. In sentencing the accused to a federal penitentiary term the Court addressed the accused’smedical condition citing an Ontario case, R. v. Morin

(1988) O.J. No 2040, where the accused had serious health problems sufferingfrom multiple sclerosis. The Court in Morin at paragraph 21 had stated: “…Although the health condition of an accused may in some instances have an effect on the sentence imposed, the courts should begenerally reluctant to reduce, because of poor health, what would otherwise be the appropriate sentence commensurate with the gravityof the offence and the circumstances of the offender.

Unless it is clearly established that incarceration would have a deleterious effect onthe health of an accused to the extent that incarceration would constitute a more severe penalty on that offender in comparison to anotheroffender in similar circumstances, the court should not make an exception for the particular offender.” [55] In R. v. A.G.W.,(2000) (ON CA), O.J. No 398 the Ontario Court of Appeal upheld a non-custodial sentence fora 78-year-old man convicted of incest and indecent assault on a 9-year-old daughter and her friend, which happened 28 to 32 years priorto the date of sentencing.

The Court considered the strong evidence of his very fragile health of an individual who after 53 days onremand showed dramatically deteriorating health to the extent that the Court was concerned that he may not be able to complete custodyexcept by death. [56] With respect to the issue again of health, it appears clear there must be more evidence before the Court to warrant consideration as amitigating factor than is present in this case. In this case ,other than the reference in the P.S.R. to his health, there is no evidence, otherthan perhaps the advanced age, to establish any deleterious effect on his health.

So incarceration is clearly warranted. [57] This then leaves the aspect of advanced age. The accused presented as one of his authorities the Supreme Court of Canada decisionin R. v. M.(C.A) . (SCC), [1996] 1 S.C.R. 500. The Court there was struggling with the totality principle but madesome observations in conclusion at paragraph 74 as follows : However, in the process of determining a just and appropriate fixed-term sentence of imprisonment, the sentencing judge should bemindful of the age of the offender in applying the relevant principles of sentencing.

After a certain point, the utilitarian and normativegoals of sentencing will eventually begin to exhaust themselves once a contemplated sentence starts to surpass any reasonable estimationof the offender’s remaining natural life span. Accordingly, in exercising his or her specialized discretion under the Code, a sentencingjudge should generally refrain from imposing a fixed-term sentence which so greatly exceeds an offender’s expected remaining life spanthat the traditional goals of sentencing, even general deterrence and denunciation, have all but depleted their functional value.

But withthat consideration in mind, the governing principle remains the same: Canadian courts enjoy a broad discretion in imposing numericalsentences for single or multiple offences, subject only to the broad statutory parameters of the Code and the fundamental principle of ourcriminal law that global sentences be “just and appropriate”. [58] In that decision, the Supreme Court of Canada took notice of a piece of complementary legislation to the Criminal Code, namelythe Corrections Act, which establishes the Parole Board and the parameters for the exercise of their discretion.

The Court took time toclearly differentiate the respective roles between those of the sentencing courts and those of the Parole Board. It did, however,recognize, as other courts have recognized, that the Parole Board and parole exists to empower a board to exercise its discretion as towhen to release an accused depending upon his circumstances. RANGE OF SENTENCING [59] With respect to the range of sentencing, the Crown has referred the Court to what has often been referred to as the Sobey case, but itclearly is referred to as R. v.

E.S. (NBCA) Justice Ryan in the decision analysed many cases which had comebefore courts in New Brunswick for sexual crimes against children to provide some idea as to what ranges were being applied withrespect to the varying degrees of invasion of the child’s privacy. [60] Subsequently, in a recent decision in R. v. R.P.,2013 NBCA 12 , 2013 N.B.C.A. 12 the New Brunswick Court of Appealhas clarified the extent to which R. v. E.S. applies in present day, noting a number of changes in legislation as well as a number ofdecisions which have been forthcoming. R. v.

E.S., however, is informative for this Court as to sentences in a time period relevant to

this matter. [61] In considering sentence I have considered the aggregate sentence, the moral blameworthiness of the accused, and the seriousness ofthe offences. As the New Brunswick Court of Appeal in R. v. F.S.A. (NB CA), [1996] N.B.J. No 396 stated, “The aggregate of the terms imposed reflects the seriousness of all the offences and the impact it ought to have on the offender. As ageneral deterrent it also shows that crimes, hidden and dormant for many years, will not go unpunished or will not be treated lighter thanthey ought to be once they eventually surface.

I want to add that in varying the sentences in this case, I have taken into account the factthat Mr.

Adams pled guilty, thus sparing his victims additional trauma and embarrassment.” [62] I think it fair on my review of the caselaw, that to this decision could be added the fact that the Court can and should factor inaspects of advanced age and life expectancy in the context of the issues as referred to above. [63] Taking into consideration the purposes and principles of sentencing, as well as the jurisprudence referred to above, the sentence ofthe Court is as follows: The total sentence is 12 years in a federal penitentiary. I have addressed these in a global sense with respect to each of the victims.

Withrespect to :Re Victim M.P. Count 1,

section 144, 6 years. Count 3 , section149 1 year concurrent, Count 6,

section 246.1(1)(a) 2 years concurrent. Re Victim L.L. Count 7, section 149(1) 1 year concurrent, Count 9,

section 246.1(1)(a) 1 year consecutive. Re Victim H.G. Count 10 section 149(1) 1 year concurrent Count 12

section 246.1(1)(a) 1 year consecutive. Re Victim K.F., Count 14, section 146(1) 4 years, consecutive, Count 15, section 149(1), 1year concurrent. The total sentence is 12 years. ANCILLARY ORDERS

Section 487.051 DNA Order [64] Pursuant to s. 487.051(1) of the Criminal Code, the accused is ordered to provide such samples of his bodily substances as may berequired for forensic analysis.

Section 490.012 Order [65] Pursuant to s. 490.012(1) of the Criminal Code, the accused is ordered to comply with the requirements of the Sex OffenderInformation Registration Act. for the period prescribed for the respective offences.

Section 109 Firearms prohibition [66] Under

section 109 the Court orders a firearms prohibition, as is required under the Code.

Section 161 Order [67] Being satisfied that there is a nexus between the prohibition and the offender and his conduct as referred to R. v. M.K. 2010 NBCA 71 and pursuant to s. 161 of the Criminal Code , the accused will be prohibited from attending the places and doing the things enumerated therein. This order will take effect on the day the defendant is released from custody and, in the circumstances of life expectancy, will continue in force for a period of 10 years.

Section 737 : [68] In the circumstances, given the length of the sentence in jail, the victim fine surcharge is waived.