Her Majesty the Queen - v. -, 2012 SKPC 17

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 017 Date: January 13, 2012 Information: 43398472 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - R.K. Appearing: Leslie Dunning For the Crown Timothy Hawryluk For the Accused SENTENCING DECISION B. KLAUSE , J [ 1 ] R.K. has pled guilty to one count of sexual assault on C.K., contrary to s. 246.1(1) of the Criminal Code between January 1, 1982 and December 31, 1983 at or near Saskatoon, Saskatchewan. [ 2 ] The facts are not in dispute.

The accused married P.M. in 1979 and the complainant is the step-daughter of the accused. The accused has acknowledged one incident of complete sexual intercourse with the complainant when she was 13. There is no suggestion of any other sexual or inappropriate activity with the complainant or any other member of the accused’s family.

[3] The complainant was in Court on the day the facts were presented and was unable to present her victim impact statement whichwas filed. In her statement, she advises that this incident affected her greatly and that she went from being a happy child to being awithdrawn child, not talking to anyone and being quiet. It is apparent that the effect on her was dramatic, long lasting and continues tothis day. [4] A Pre-Sentence Report was prepared and presented.

It is positive in that the accused is married, has strong family andcommunity support, has no related criminal record, is and always has been productively employed, is a non drinker and is deeplyremorseful for what he has done to his step-daughter. Indeed his only conviction is a 1977 conviction for impaired driving. In his ownwords, “I made a bad judgment call and now I have to pay my dues” and “not a day goes by that I don’t regret what I have done”.

Heaccepts responsibility for what he has done and clearly recognizes that he violated a position of trust with a vulnerable family member. [5] He is considered a low risk to re-offend both for general recidivism and sexual recidivism and would be manageable in thecommunity. He accepts responsibility for his offending behaviour and is prepared to attend a sex offenders program. Position of the Crown [6] The Crown quite properly points out that this is a serious offence involving a vulnerable victim, the step-daughter of the accused,who has been greatly and perhaps irrevocably damaged by the offending behaviour.

They suggest that the proper sentence would besubstantive incarceration in the range of two years and cites the cases of R. v. W(G.I.) (1994), (SK CA), 120 Sask. R.236 and R.V. v. (V.M.) (1989), (SK CA), 76 Sask. R. 299. [7] In G.I.W., the Saskatchewan Court of Appeal had to consider a situation where the accused was convicted of three counts ofsexual assault on his niece when she was between 5 and 12 years old. The trial judge suspended the passing of sentence and placed theaccused on probation with electronic monitoring for the first six months.

The matter went to trial before a jury and the accused wasconvicted. There were over 40 acts of sexual intercourse during the relevant time frame. In increasing the sentence to thirty months, theCourt of Appeal held that the threshold for serious or major sexual offences is three years and that there was nothing in the facts of thecase to lower that threshold.

Specifically aggravating were the number of incidents over a lengthy period of time and that the accusedshowed no remorse for her plight as he denied the offences throughout and forced the complainant through a jury trial. [8] In R. v.W.(V.M.), the accused pled guilty to three counts of sexual assault on his two step-daughters aged 7 and 8 and his niece,aged 12. The trial judge sentenced him to a three year suspended sentence with probation. The facts disclosed digital penetration but nosexual intercourse.

The Saskatchewan Court of Appeal increased the sentence to nine months to be followed by two years of probationholding that while the accused had pled guilty, had no record and was remorseful, the trial judge did not place sufficient emphasis onprotection of society and in particular, young children, deterrence and public confidence in the administration of justice. Position of the Defence [9] The defence points out the following: That the accused is now sixty years of age and is and has been in a stable relationship since 2003 with his current spouse, M.K. Sheknows of the charges and remains supportive.

He has advised his siblings of the charge and they are supportive. The accused is fullyemployed and has been on strict bail conditions for 23 months without incident. These conditions included a residence, no contact withthe complainant and her mother, no contact with any child under the age of 16 years of age, not be at any residence where children underthe age of 16 years are present and not be near any school, playground or park where children are likely to be present.

He points out thatthe accused has pled guilty and has spared the complainant the continuing trauma of a preliminary inquiry, a subsequent trial and theinevitable cross examination that would accompany each of those procedures. He points out that the accused has accepted fullresponsibility for one incident occurring nearly thirty years ago and suggests that the appropriate sentence would be a conditionalsentence, or at most, a substantive incarceral sentence of 12 months.

[ 10 ] The defence relies on the following cases: In R. v. Crispen , the Court of Appeal in 2009, considered the appropriateness of a sentence of nine months incarceration for one count of sexual assault which consisted of the accused touching the complainant once on her chest while he was test driving her car. The complainant was 18. The assault consisted of touching over her clothes, her chest area on one occasion. There was no position of trust involved.

The Court of Appeal reduced the sentence to one of nine months conditional on the basis that the sentence was outside the norms and was demonstrably unfit based on other similar cases within the jurisdiction. At paragraph 26 of the judgment, Hunter JA observed the following: I note the offence for which the appellant was convicted is at the lower end of the spectrum with respect to sexual offences which involve inappropriate touching. There was no violence and the touching was brief and over clothing.

This was not an offence committed against a child, and the appellant was not in a position of trust in relation to the complainant. This was a singular incident, between two individuals who had no relationship, previous, current or anticipated. There was no “abuse” in this case, historical or otherwise. [ 11 ] Clearly the Court of Appeal has indicated that the sentencing must dramatically increase where the incident involves a more serious sexual assault, ie: penetration and where there is a position of trust.

These two facts are present in the instant case and indicate to me that a conditional sentence of imprisonment is not appropriate. The historical nature of the assault and the fact that it occurred on one occasion must be taken into account as well, but in my opinion, that would essentially only reduce the sentencing range from federal time to provincial time. [ 12 ] In my opinion, the only real support for a CSO in the materials I have been provided with by defence and from my own canvas of the Court of Appeal decisions, is the case of R. v. C(JH) in the dissenting opinion of Mr. Justice Vancise.

The majority held in that case, on appeal, that a CSO was not an appropriate sentence for a sexual assault involving a breach of trust and increased the sentence to one year incarceration taking into account the time already spent on a conditional sentence. [ 13 ] In the dissent, which is really the only support I can find for the defence’s position, Mr. Justice Vancise indicated that in his opinion the lower court should be given considerable deference in its sentencing options and for that reason, he would have upheld the conditional sentence.

However, it was more a dissent about form and the respect given to a lower court’s decision as opposed to an enthusiastic endorsement of a conditional sentence of imprisonment for a sexual assault involving a position of trust. [ 14 ] Indeed, in that same case, the majority held as follows: ...the trial judge failed to consider the seriousness of the offence on a young child by an adult in a position of trust.

The trial judge also failed to impose a sentence that was similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 15 ] The defence further provided the following cases: (

a) R. v. U.(A.S.), a 1990 decision of the Court of Appeal which imposed an incarceral sentence of 15 months for one incident of sexual assault and penetration on the accused’s step-daughter. (

b) R. v. T.(J.J.) , a 1989 decision of the Court of Appeal, where the accused committed a single act of sexual penetration on his 16 year old daughter. In that case, the accused on appeal received one year incarceration to be followed by two years of probation. (

c) R. v. C.(J.H.), a 1997 decision of the Court of Appeal, where on a historical sexual assault which involved 12 acts of anal intercourse, the accused received a sentence of one year in custody after the lower court had imposed a sentence of 18 months conditional. (

d) R. v. D.A , a 2003 decision of the Court of Appeal, where the accused who was the older brother of the complainant, forced a variety of sexual acts upon her, including intercourse. The charges were laid 25 years later and he was sentenced in the lower courts to a two

year CSO. On appeal, the Court of Appeal increased this to fourteen months in custody. In that decision, the Court considered as mitigating the fact that the accused was only 18 at the time of the offence and had also been under extensive electronic monitoring pending the appeal. [ 16 ] In my opinion, as outlined, there are several mitigating factors in this instant case including the guilty plea and that there is one act complained of which, however, did involve full penetration and was committed on a child with whom the accused occupied a position of trust.

The accused, however, was not a child or a very young man at the time of the offence; he was between the ages of 32 and 35 and while he has been on many conditions since his release, he has not been on electronic monitoring, house arrest, or a curfew, all of which involve some restrictions on his liberty. [ 17 ] Based on my review of the relevant sentencing authorities it is my opinion that a fair and reasonable sentence , taking into account all of the above factors and in particular the Court of Appeal’s admonition of similar penalties for similar offenders in similar circumstances, is the following: A period of 18 months incarceration followed by 12 months of probation with the following conditions: (

i) to keep the peace and be of good behaviour; (ii) to reside at and not change that address without the prior written consent of the court; (iii) to report to probation services within 24 hours of release and thereafter as directed; (iv) you shall participate actively as directed by the Probation Officer in counselling, assessments, education, and or treatment in an approved program for sex offending and you shall not give cause for dismissal from such program. [ 18 ] In addition, there is a DNA order, a firearms weapons prohibition for a period of ten years, and SOIRA for a period of twenty years. [ 19 ] I waive all surcharges in view of the sentence I have imposed. ___________________________ B.M.

Klause, J