R. v. R.J., 2016 MBPC 25

CITATION: R. v. R.J. , 2016 MBPC 25 Date: 2016 05 11 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Jennifer Mann ) for the Crown ) and ) ) ) R. J. ) Amanda Sansregret ) for the Accused ) ) ) ) Reasons for Decision delivered: ) May 11, 2016 ROLSTON P.J. [ 1 ] The court is required to determine the sentence for R.J., who sexually abused three children that he was responsible for

protecting. The offences took place over long periods of time and involved several instances of abuse in each case, some of which was video recorded on the offender’s phone. [ 2 ] The accused has pleaded guilty to the following offences: • Sexual interference (contrary to

section 151(a)) against CH between November 7, 2002 and November 7, 2005; • Sexual interference (contrary to

section 151(a)) against TH between January 1, 2012 and April 1, 2013; • Sexual interference (contrary to

section 151(a)) against HR between January 1, 2012 and August 9, 2013; • Making Child Pornography (contrary to

section 163.1(2)) between January 1, 2012 and April 1, 2013. [ 3 ] The Crown has suggested that the court sentence R.J. to a series of consecutive sentences that total 20 years on account of the serious nature of the offences and the high moral blameworthiness on R.J.’s part. The Defence acknowledges the seriousness of the offences but urged the court to impose a sentence of eight years in total. [ 4 ] In order to arrive at a sentence that is just and appropriate in the circumstances, the court must first consider whether the sentence for each offence should be concurrent or consecutive to each other.

In each case, the court must apply the principles of sentencing as set out in the Criminal Code . The court must then consider the facts of each offence, paying attention to the aggravating and mitigating circumstances of each incident as well as those related to R.J. Ultimately, the court must ensure that the final sentence imposed upon R.J. is proportionate having regard to the circumstances of the offence and taking into account the degree of responsibility of this offender.

Consecutive Versus Concurrent Sentences [ 5 ] Given that the present case involves multiple counts committed, it is incumbent upon the court to follow the direction of the Manitoba Court of Appeal most recently affirmed in R . v. L.L.P. , 2016 MBCA 28 : 1. Are the offences to be served consecutively? 2. If they are to be consecutive, what is the appropriate sentence for each offence? 3. Is the total sentence excessive for this offender as an individual? 4. If it is excessive, then it should be given a last look and adjusted accordingly. [ 6 ] In R . v.

Draper , 2010 MBCA 35 (at paragraph 38 ) the Court of Appeal directed that a sentencing judge should determine whether the offences are separate and distinct from one another. If so, sentences should be dealt with by consecutive sentences. On the other hand, where offences are “sufficiently interrelated”, they should be treated in a concurrent fashion. [ 7 ] In the present case, R.J. has three victims. Each of C.H., H.R., and T.H. were victimized in their own distinct way. Each of those victims will individually have to learn to cope with their own victimization.

While the offences perpetrated on T.H. and H.R. were conducted in a similar way and during the same time frame, each act was a distinct offence. Based upon the approach endorsed by the court in R. v. P.K. , 2012 MBCA 69 , it is appropriate to impose consecutive sentences in respect of each of the individual victims. [ 8 ] R.J. committed the offence of making child pornography while he was assaulting both T.H. and H.R. The wording of the child pornography count includes both victims.

The offences of making child pornography and sexual interference against each child were committed in the course of concurrent actions by R.J. At first blush, it is difficult to separate the physical act of abuse from the fact that R.J. captured the event by photograph. [ 9 ] However, both H.R. and T.H. were victimized by R.J.’s separate acts (of abuse and by photographing) in two distinct and disturbing ways. The fact that the abuse was photographed served to allow R.J. to re-victimize each of the two girls repeatedly at his whim. This is always the case in respect of the offence of making child pornography.

In fact, new amendments to the Criminal Code are in place, having received Royal Assent on June 18, 2015. These new provisions require the court to impose consecutive sentences where an offender creates child pornography and sexually abuses the victim at the same time: 718.3

(7) When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct (

a) that a sentence of imprisonment it imposes for an offence under

section 163.1 be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another

section of this Act committed against a child; and (

b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under

section 163.1 , be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under

section 163.1 . [ 10 ] Since

section 718.3(7) was not yet in force at the time of the incidents, the court is not required to apply it to this case. The court must, however, consider the proposed

section along with the cases filed by the Crown (particularly R. v. G.M. , 2014 MBPC 57 (which was appealed on others grounds)), to determine whether concurrent or consecutive sentences are appropriate here. [ 11 ] As stated previously, the court must determine whether each count is separate and distinct from the other. To begin with, it is noteworthy that the information is sworn such that both T.H. and H.R. were included on the same count of making child pornography. This is a subtle indication that the focus of the charge is the production rather than the sexual abuse.

The investigation determined that R.J. made child pornography by photographing both T.H. and H.R. before he physically abused them on several occasions (see Agreed

Statement of Facts, exhibit s-12): • He took a photograph approximately one year prior to the interview of HR, who was changing after swimming. The photograph was of her naked, with a towel over her hair, from behind. • He took a similar photograph of HR after she got out of the shower and was running around. Again, she was naked and he took the photograph from behind. • He took a third photograph of HR when she was either sleeping or lying down. He indicated her pants were partially down, with her buttocks exposed.

He said: “The reason I took the picture is because it was half hanging there, the way she was sleeping. . .” It was just like. . .I like butts.” He also said: “For me it’s – I’m a butt man, I guess. . . And sometimes when I see things I shouldn’t I do – if I have my phone out then I’ll take a picture.” He was asked by the officer whether he had touched HR because TH had said his hand was on HR’s buttocks area and he replied that he had not touched her. He was asked if he was sure and he replied: “Absolutely.

I might have been holding her pyjama bottoms but I was not touching her.” • He indicated that, given the manner in which these photographs were taken, HR was not aware he had taken them. [ 12 ] Each of the above events represents a separate instance of making child pornography. R.J.’s offending evolved such that each of T.H. and H.R. were eventually photographed while R.J. sexually abused them, representing other instances of making child pornography.

The extent to which the photographs allowed R.J. to re-victimize each is starkly evident in R.J.’s own words to the police (see Agreed Statement of Facts, exhibit s-12): [R.J.] said that every time he sexually touched them (HR and TH) he took a photograph and that: “Literally I took the picture before I ejaculated, after I ejaculated I erased them.” He also stated: “The only pictures that weren’t erased were right at the very end. [ 13 ] Based upon the evolution of the production of R.J.’s child pornography related to T.H. and H.R. and the fact that each was victimized in a separate way by the production of child pornography, it is clear that the counts are separate and distinct from one another.

Accordingly, the sentence for making child pornography will be consecutive to the count of sexual interference against T.H. and consecutive to the count of sexual interference against H.R. [ 14 ] Having determined that the offence of making child pornography will be dealt with by way of a consecutive sentence, the court must be mindful that R.J. should not be “double punished”.

That is to say, the fact that he photographed himself while he abused T.H. and H.R. cannot serve as an aggravating factor that weighs against him for the charge of sexual interference against both T.H. and H.R., as a separate consecutive sentence will be imposed for the count of production of child pornography. Principles of Sentencing Generally [ 15 ] In the present case, all parties have agreed that an appropriate sentence for R.J. requires that the court separate him from society for a significant period of time.

Nonetheless, the fundamental principle and therefore goal of sentencing, is to impose a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender. This goal is achieved by applying several principles of sentencing that are set out in

section 718 of the Criminal Code . [ 16 ] The two primary objectives that must be considered and balanced in the sentencing process are punishment and rehabilitation. The extent to which a sentence reflects each of these objectives varies in each case. Punishment is achieved through the principles of deterrence and denunciation and are the primary consideration in circumstances where the offender abuses a child under the age of 18 ( sections 718.01 and 718.2 (ii.1) of the Criminal Code ). This is so in the present case in respect of each of the victims.

R.J. appears before the court having previously been afforded a sentence that focused on rehabilitation, reparation and acknowledgement of harm. He failed to avail himself of the opportunity to benefit from that rehabilitative sentence. Accordingly, while rehabilitation, reparations and acknowledgement of harm are all factors to consider, deterrence and denunciation are paramount considerations for each of the individual charges before the court. [ 17 ] The court is obligated to consider aggravating and mitigating factors as they apply to each of the individual charges against R.J.

The Criminal Code mandates that several factors be considered as aggravating factors: • The offender abuses a position of trust or authority in relation to the victim (section 718.2(iii)); • The offence had a significant impact upon the victim (section 718.2(iii.1)); and • The offender was subject to a conditional sentence order at the time of the offence against C.H. (section 718.2(vi)). [ 18 ] Accordingly, each of these principles are to be considered to the extent that they apply to the facts of each of the offences perpetrated by R.J. and balanced against any mitigating factors that relate to R.J. and the offence in question.

Sexual Interference against C.H. between November 7, 2002, and November 7, 2005 C.H. [ 19 ] C.H. is the stepson of R.J. At the time of R.J.’s sentencing hearing C.H. was 23 years old. The offences before the court in relation to C.H. are historical in nature, and date back to when he was 10 to 13 years old. [ 20 ] R.J. was, for all intents and purposes, C.H.’s father during the relevant time. R.J. began a relationship with C.H.’s mother, P.H., when C.H. was three to four years old. C.H. and his mother moved to Neepawa to live with R.J. According to submissions made in court, C.H. was R.J.’s “special” child.

P.H. was afflicted with rheumatoid arthritis and on permanent disability during C.H.’s youth. In his victim impact statement, C.H. stated, “my mother was suffering health problems at the time, so I believe I used him as a primary

parent figure for a time so I wouldn’t make mommy sore looking after me. It’s only now that I realize how him buying me all of those video games and junk food was a way to keep me inside the home and provided him a way to bond with me even more over a mutual interest, essentially grooming me like some kind of sick pet.”. There is no question that R.J. was in a position of trust in relation to C.H. [ 21 ] Between the dates of November 1, 1999 and October 31, 2000, C.H. was seven years old. R.J. at that time had been a part of C.H.’s life for three to four years.

R.J. sexually offended against C.H. during this time, which resulted in R.J. being charged and convicted of sexual interference. R.J. was the subject of a presentence report in relation to that charge in which he expressed a willingness to engage in sex offender treatment.

At the time, R.J. explained that C.H. initiated the sexual contact saying, “It was him touching me and him wanting me to touch him.” Despite the fact that R.J. blamed his young victim, he was given the benefit of a conditional sentence order on January 2, 2002. [ 22 ] While serving his conditional sentence order, R.J. made efforts to complete sexual offender programs. In his words, he completed, “every course there was to complete”. He was perceived as having done well in the courses that he completed as Probation Services and Child and Family Services deemed family re-unification as appropriate at the time.

Little did anyone outside of C.H. and R.J. know, the offending behaviour continued. R.J. told the police when arrested on the offences before the court that he had offended against C.H. during his community based jail sentence, “a couple of times”. At the time, R.J. was prohibited from having contact with C.H. On one occasion, while probation staff (who would have been his conditional sentence supervisor) conducted a curfew check, R.J. had C.H. hide behind a shower curtain to avoid having R.J. detected.

This epitomizes the level of control that R.J. had over C.H., and demonstrates the degree to which C.H. had been groomed by R.J. It is in this context that the current charges occurred, and these circumstances are a major aggravating factor that must be considered in imposing sentence upon R.J. [ 23 ] There were two instances of abuse that form the charge before the court. One episode was described in R.J.’s statement as a time when he “almost raped” C.H.: ‘Cause I remember I stuck my finger in his butt a little bit and he was uncomfortable with it and then I tried to penetrate him and didn’t even come close.

He was like, “No, no, no, no.” Never get away with this and I just started bawling and I was – apologized and. . . [ 24 ] On the other occasion of abuse, R.J. fondled and groped C.H.’s penis while in the shower. He also had C.H. perform fellatio upon him, and performed fellatio on C.H. R.J. described the incident in the shower as follows: R.J.: Just looking at him made me cry. I was like I knew I’d taken advantage of him, I knew I’d take advantage of him again, and he just looked at me with those eyes. He didn’t even say anything, it was just that, “Why?” That why look.

Why? ‘Cause – and it wasn’t like. . .How did that happen? He was in the shower and I remember when I was performing fellatio on him and for whatever reason he decided to try and do it to me as well. Det. Peters: Mm-hmm. R.J.: For about three or four or five seconds. And it think that’s the moment when – that made him snap, where he was – . . . Det. Peters: -- not – where he was not comfortable with what was happening. R.J.: Yeah. . . [ 25 ] Given that the conditional sentence order expired January 1, 2004, C.H. was between 10 and 11 years of age when these abuses occurred.

After the incident in the shower, C.H. promised that he would not disclose the abuse so long as R.J. stopped the abuse against him and never offended against another child. [ 26 ] There are several aggravating factors to be considered in relation to the offending against C.H., each of which is significant: • R.J. was in a position of trust in relation to C.H.; • C.H. was between 10 and 11 years old at the time; • R.J. was serving a conditional sentence order for sexually abusing C.H. when the present offence occurred; • R.J. was not to have contact with C.H. when his offending occurred; • The offending occurred on two occasions; • Each of the incidents that form the offence were serious affronts to the sexual integrity of C.H. and as such constitute major sexual assaults; • R.J. exerted a significant degree of psychological and emotional control over C.H.; • The impact on the victim is significant; and, • He initially denied the offences, only admitting them when he had been caught in relation to T.H. and H.R. [ 27 ] On the other hand, there are very few mitigating factors in relation to the offences: • R.J. went close to 10 years without further offences; • He pled guilty to offending against C.H.

This is a major mitigating factor. The case against R.J. would have been dependent upon the credibility of C.H., who is already devastated by R.J.’s actions and the court process. By pleading guilty, R.J. has spared C.H. from having to take the stand and relive the events in front of several strangers.

Sexual Interference against H.R. between January 1, 2012 and August 9, 2013 H.R. [ 28 ] R.J. was in a nine month romantic relationship with A.R., H.R.’s mother. At the time A.R. and H.R., aged 9, were residing in the same shelter as was R.J. and T.H., aged 10. In her victim impact statement, A.R. described how she came to be in a relationship with R.J. after 15 years of single life. She wrote that R.J. pursued her saying, “if I asked for something, he’d drop everything and come running” and that R.J. had talked to the young girls about marriage and being together as a family.

A.R. also wrote that she was confused by R.J.’s lack of sexual interest in her and the betrayal of learning that his sexual interest was in respect of her daughter. Although they slept in the same bed, they never consummated the relationship. R.J. did invite A.R. and H.R. to meet his family. R.J. was left to care for H.R. during sleepovers. He was clearly in a position of trust in relation to H.R., as it is apparent that he was caring for her during the times the offences were committed. [ 29 ] H.R. was 12 years old at the time of R.J.’s sentencing hearing.

H.R. does not remember the offending behavior but did describe her relationship with R.J. She told police that when she slept over at T.H.’s, R.J. would sleep with them on the floor of the living room, and cuddle her to sleep by rubbing her back. On one hand, she liked this attention as it was similar to her mother’s attention, but it also scared her because R.J. would also touch her breast area. [ 30 ] On one occasion while A.R. was sleeping, R.J. took pictures of her naked buttocks using his smart phone.

On another occasion R.J. photographed A.R. while in a state of undress after she had finished showering after swimming. Unfortunately, R.J.’s behaviour escalated such that on another occasion, while H.R. was sleeping, he photographed himself while he placed his penis close to her anus. On other occasions, R.J. performed cunnilingus on H.R., and on occasions partially and fully penetrated her anus with his penis. Astoundingly, these incidents occurred while H.R. was sleeping and H.R. did not wake up. R.J. denies that he administered any drugs such that he induced her to be sleeping at the material times.

Several of these abuses against H.R. were also photographed. Each of the photographs were immediately erased by R.J., but remained saved to unallocated space on his smart phone’s hard drive. [ 31 ] In March or April, 2013, T.H. was playing with R.J.’s smart phone and discovered three photographs that depicted H.R. partially naked, including one in which H.R.’s pyjamas were partially pulled down with a hand that appeared to be her father’s touching H.R.’s buttock.

T.H. confronted her father who took the phone, went into the washroom and deleted the pictures. [ 32 ] The police were contacted upon the discovery of the photographs of H.R. by T.H. R.J. was interviewed on August 9, 2013.

While R.J. admitted that he had taken the photographs the police knew about and that he was attracted to children, he denied offending against C.H. or T.H., and minimized the extent to which he offended against H.R. [ 33 ] There are several significant aggravating factors to consider in respect of the offences against H.R.: • R.J. manipulated H.R.’s mother in order to gain access to H.R.; • H.R. was 10 years old at the time; • R.J. was in a position of trust in relation to H.R.; • The offending occurred on multiple occasions; • Each of the incidents that form the offence were serious affronts to the sexual integrity of H.R. and as such constitute major sexual assaults; • H.R. was particularly vulnerable, being asleep when she was assaulted; • The impact on the victim is significant; and, • He initially denied and later minimized the offences, only fully admitting them when the photographs were recovered from his phone. [ 34 ] The only mitigating factor to consider is that R.J. pled guilty.

As stated in relation to the previous count, this is a major factor in mitigation. Sexual Interference against T.H. between January 1, 2012 and April 1, 2013 T.H. [ 35 ] T.H. is the biological daughter of R.J. She was 10 or 11 years old when R.J. offended against her. T.H. does not remember being abused by R.J. [ 36 ] T.H.’s discovery of the photographs of H.R. led to the police obtaining and executing a search warrant on his smart phone. During the course of the forensic analysis of the phone, the police examined the unallocated space on the phone’s memory. The Crown described this location as akin to a

chapter in a book that exists but is not listed in the index. This is a place where the phone may store deleted information. In this space, the police located photographs that R.J. had taken of himself sodomizing both T.H. and H.R. The police were able to determine that the assaults against each girl happened on separate days. In the presentence report, R.J. reported that these events happened about three weeks before T.H. found the photos. [ 37 ] After discovering evidence of the abuse of T.H., the police confronted R.J. a second time.

The following admissions regarding T.H. were made by R.J. (as taken from the Agreed Statement of Facts, exhibit s-12): He stated that the victims, TH and HR had no idea of his abuse of them because he made sure they were sleeping when he abused them.

He stated: “. . .I was very careful to make sure that they didn’t have to suffer mentally because of my sickness.” He also stated: “I never touched or made any kind of advance to anybody while they were awake.

And that’s the whole thing, all these things happened while they were sleeping.” He said that every time he sexually touched them (HR and TH) he took a photograph and that: “Literally I took the picture before I ejaculated, after I ejaculated I erased them.” He also stated: “The only pictures that weren’t erased were right at the very end.” With respect to TH, he admitted to penetrating TH’s anus with his penis and with his finger while she was sleeping. He admitted to three incidents of sexual abuse. He said the actual penetration was near the end of his offending behaviour and stated: Like right at the end.

It was probably the last picture that was on my camera on the phone. I had never tried before to penetrate – penetrate. But I was fooling around and I realized that it just slipped – slipped in and she didn’t wake. [ 38 ] The discovery by T.H. of the existence of the photographs that depicted her father abusing her only friend H.R. was upsetting. T.H. was devastated to learn from the police that R.J.’s phone contained photographs of him abusing T.H., herself, while she slept.

R.J. begged the police not to disclose the photographs to her as the police would destroy her by doing so. [ 39 ] T.H. provided a victim impact statement that described how she had become depressed and started cutting herself; that she thinks everyone hates her; that she can’t sleep at night; that she feels alone inside; that she cannot concentrate; and that she feels a need to show her body “to fit in”. T.H. is in weekly therapy.

There is no doubt that the impact of R.J.’s actions to H.R. will reverberate for H.R.’s entire lifetime. [ 40 ] There are several significant aggravating factors that apply to the offences against T.H.: • R.J. is the biological father and as such was in a position of trust in relation to T.H.; • T.H. was 10 or 11 years old at the time; • The offending occurred on multiple occasions; • Each of the incidents that form the offence were serious affronts to the sexual integrity of T.H. and as such constitute major sexual assaults; • T.H. was particularly vulnerable, being asleep when she was assaulted; • The impact on the victim is significant; and, • He initially denied and later minimized the offences, only fully admitting them when the photographs were recovered from his phone. [ 41 ] The only mitigating factor to consider in respect of the offence is that R.J. pled guilty.

As stated in relation to the previous count, this is a major factor in mitigation. Making Child Pornography between January 1, 2012 and April 1, 2013 [ 42 ] As previously stated, R.J. began by secretly taking photographs of T.H. and H.R. when they were partially dressed in the midst of changing clothes and evolved to photographs while they were sleeping, then later to photographs while he abused them while sleeping.

There is one count of making child pornography that encompasses all of these circumstances regarding H.R. and T.H. where R.J. photographed his acts of abuse, and several other instances of the girls in various states of undress. Background of R.J. [ 43 ] The court was provided background information about R.J. in the form of two presentence reports; one from December 18, 2001, which was generated as a result of the first offence against C.H., and the other from November 24, 2014, which was ordered in relation to the present charges.

Unfortunately, a rather inconsistent portrait of R.J.’s background has been painted. While it is clear that he has faced certain unenviable challenges in his life, other aspects remain somewhat unresolved. [ 44 ] R.J.’s young life was not without conflict. His mother was addicted to heroin and he spent a significant portion of his youth being transferred between his mother and father, who had remarried to a stepmother who R.J. reports emotionally and physically abused him.

This is in contrast to the report of R.J.’s brother, who told the probation officer, “I think we had it pretty good, to be honest in our childhood” and that although R.J. was grounded a lot, that they were not beaten. [ 45 ] R.J. also told the probation officers in the 2014 report that he had been sexually abused by a male babysitter, then later by a friend’s brother and sister when he was six or seven years old. He also stated that he had sexual contact as young as five years old during daycare when he inappropriately touched another boy during nap time.

This is in contrast to the 2001 report in which R.J. reported that his first sexual experience was at age 15 or 16 years old, and that he had learned about sex at age eight or nine by watching “R-rated movies”. R.J.’s brother also did report that he did remember that there were some “incidents with a young male family member that were weird” in hindsight.

[ 46 ] R.J. acknowledged to Probation Services in the 2014 report that he has struggled with fantasies about children his entire life. While his history does include several pro-social relationships, R.J. revealed that he has always had difficulties with maintaining adult relationships as he is uncomfortable around men and women. Alternatively he reported that children are “not judgemental”. Attitude towards Offences [ 47 ] R.J.’s perception of his conduct has evolved somewhat over time. It is evident that R.J. realized early on that he has an unhealthy predilection towards children.

After the convictions in 2000 against C.H., R.J. minimized his actions and blamed C.H. for initiating the sexualized behaviour. During this time period, R.J. was also working in a pornography store and would spend his evenings on night shift in that employment, watching pornography and developing a fascination with “sleep porn” (having sexual relations with someone when they are asleep). It is evident, in light of his comments in the 2014 report, that R.J. was not forthright with Probation Services and the many counsellors that treated him as to the depths of his sexual deviancy at that time.

As stated by the Crown in submissions, R.J. committed a fraud on the court, Child and Family Services, probation officers, and counsellors by deceiving all while serving his sentence, undergoing counselling and at the same time offending against C.H. Had R.J. been more honest about his state of mind at the time, perhaps some the present charges would have been avoided. [ 48 ] During the ensuing decade, R.J. did not reoffend. He does acknowledge now that around 2012, he began to experience “relapses” in that he started to have thoughts about offending against children.

During this period of time, his daughter, T.H., would have friends over to swim and he was regularly left to care for children that he was attracted to. During this same period of time while R.J. was having difficulty managing his sexual arousal, numerous resources through Child and Family Services had been offered to him to support him in being a father. R.J. would have been aware by this point that left unchecked, he was capable of acting out on his fantasies and that he had been experiencing relapses in thought.

Nonetheless, he continued to place himself in positions of danger and did not attempt to help himself in any meaningful way. [ 49 ] Even once the present offences were discovered, R.J. continued to display a lack of insight into his actions. As stated earlier, R.J. continued to minimize his behaviour when he was confronted by the police. He initially denied offending against H.R. and T.H. and only acknowledged his guilt once the photographic evidence was located. [ 50 ] More recently, R.J. at age 37 has to some degree come to recognize the extent of his problem.

He has acknowledged that he should not be around children and that he previously minimized the extent of his issues. He stated that he wants to be completely honest going forward. He is open to ongoing treatment. In fact, as of the date sentencing submissions were made by his counsel, R.J. had gained acceptance into the Assiniboine Treatment Program within the confines of Headingley Correctional Institution. The program focuses on various forms of rehabilitative programs that may or may not be relevant to R.J.’s specific needs.

The program is however, the best he can do where he is and the fact that he has engaged in treatment does show his willingness to rehabilitate. At the end of the day, while there are few mitigating factors about R.J. that assist him at this stage, it is evident from R.J’s words in court that he has gained some, albeit limited, insight into his offending behaviour, having spent considerable time in custody. Similar Sentences for Similar Offenders [ 51 ] In order to be proportionate, R.J.’s sentence must be similar to sentences imposed upon similar offenders in similar circumstances.

While many cases can be said to be similar, every case bears its own blend of aggravating and mitigating aspects, and each offender their own aggravating and mitigating circumstances ( see R. v. Sidwell , 2015 MBCA 56 at paragraph 36 ). Nonetheless, several principles can be distilled from the case law relating to this area. Counsel have filed many cases for the court to consider. The principles that guide the court in sentencing are applied in each of those cases.

While the court has reviewed all of the cases filed, there are several watermark cases in Manitoba and several outside of the jurisdiction that properly illustrate the principles and range of sentences for the offence in question. [ 52 ] In R . v. James , 2013 MBCA 14 , an in-depth analysis was undertaken in the approach to sentencing offenders who have committed “major sexual assaults” in breach of trust with multiple victims.

It is conceded that each of the present cases amount to a “major sexual assault”, and accordingly that term need not be discussed at length at this juncture. (However, the court has considered Sidwell , supra as to the definition of this term and its application to the facts of this case.) The starting point for committing one act which amounts to a major sexual assault on a young person by a person who is in a position of trust is four to five years in the penitentiary. This starting point presupposes an offender who is of otherwise good character and who has no prior criminal record.

Aggravating factors such as those already mentioned in this case serve to increase what is an appropriate sentence. Mr. James, a well respected hockey coach had a rather unique set of circumstances where he had been convicted and sentenced on several historical sexual offences, served his time and completed significant rehabilitation to the extent of having received a pardon prior to being back into the system by the disclosure of historical sexual offences against separate victims. Mr.

James committed hundreds of incidents of major sexual assaults against his victims, but was before the court to answer to two counts that encompassed several years of ongoing abuse.

The Manitoba Court of Appeal, in reviewing the original sentence determined that the appropriate sentence in that case was four years for each offence, for a total of eight years, but then reduced the sentence to five years for totality sake. [ 53 ] Subsequent to the James, supra case, our appeal court reviewed a sentence for an offender who had sexually abused a 12 year old for whom he was in a position of trust over a 16 month period in Sidwell, supra . Mr. Sidwell was sentenced on one count of sexual interference.

The court clarified the application of sentencing precedence in sexual offences, which were neatly summarized at paragraphs 52 and 53: [52] What is important is to find an appropriate sentence which responds to the conduct of the accused and the aggravating and mitigating circumstances, rather than determining specifically whether the accused’s conduct constituted a major sexual assault. Sentencing precedents should be sought out that involve similar sexual acts and circumstances. [ 53 ] It is impossible to list all the aggravating and mitigating factors that courts might consider.

However, when weighing the nature of the sexual violation in a particular case, courts have looked to the following factors, among others:

• The relative ages of the child and the accused; • The nature of the position of trust between the child and the accused; • The exact nature of the conduct involved; • The length of time the relationship existed and the frequency of the incidents; • Whether the sexual violations were accompanied by physical violence, threats of physical violence, or other forms of extortion or psychological manipulations; and • The impact on the child. [ 54 ] Mr. Sidwell was employed at a youth drop in centre and established a friendship with the victim and his parents.

He eventually had the victim stay at his home overnights and began to engage in masturbation, oral and anal sex with the boy. When the boy ended the “relationship”, the offender became violent. Mr. Sidwell, similarly to the James, supra case, was not charged until several years later and after serving a sentence on other similar offences. Mr. Sidwell had “made progress in his life” since the offending behaviour which factored into the court determining that the offences warranted four years of jail. [ 55 ] In R . v.

G.J.M ., 2015 MBCA 103 , the offender pled guilty to 10 offences primarily involving sexual and pornographic offences in relation to children. In that case, the offender was found to possess thousands of images of child pornography, and had altered some of the child pornography photographs to create an image that appeared to be a sexual encounter between himself and his friend’s prepubescent daughter.

The offender had also sexually interfered with the friend’s daughter, video recorded himself assaulting another of his daughter’s friends while she slept, and had planted a hidden camera in a bathroom in order to capture photographs of the genitalia of his 8 year old daughters and their friends. There were also offences of voyeurism and criminal harassment charges against his ex- girlfriend and several breach charges that factored into the sentence.

In G.J.M ., the original sentence imposed was 105 months (8.75 years) but was reduced by the Court of Appeal to 87 months (7.25 years). [ 56 ] The Crown also relies upon R. v. D.C., 2015 MBPC 16 . The accused in that case pled guilty to nine counts of sexual offences that included making and possessing child pornography involving his five children. Similarly to R.J., D.C. was under order to not have contact with his children when the offending occurred. D.C. also photographed himself sexually assaulting his children in some instances. D.C. also attempted to distribute these images leading to his arrest.

The facts in D.C. involved many instances of abuse of the five children that ranged in ages from four years old to nine years old. In some cases, D.C. had the children abuse each other. An entire family was decimated by the actions of D.C. The total sentence imposed on D.C. was 16 years. [ 57 ] The most recent Manitoba Court of Appeal case involving sentencing for an offender who has committed a breach of trust major sexual assault is R. v. L.L.P. , 2016 MBCA 28 . Over a period of seven years, the offender sexually assaulted four young girls, three of whom were his granddaughters.

The offences ranged from touching and kissing to oral sex, digital penetration of the vagina and anus on numerous occasions. In some instances, the offender pinned down his victim in order to perpetrate the assault. The Court of Appeal increased the original five and one half years sentence to eight years. [ 58 ] The Ontario Court of Appeal dealt with an offender who pled guilty to a breach of trust major sexual assault that also involved the production of child pornography in R. v. M.P. , 2012 ONCA 162 .

The offences involved incest, sexual assault and making and possessing child pornography in relation to the offender’s teenage daughter. The offender was also found to have been suffering from post-traumatic stress disorder stemming from his military service in Bosnia and Afghanistan. The victim did not want her father to go to jail as she felt he needed to be in a hospital, having seen the significant change in him after his military service. The court acknowledged that the original punishment imposed was lenient but upheld the sentencing court’s six year sentence. [ 59 ] In R. v.

L.(B.C.), 2010 BCCA 183 , the court upheld a seven year global sentence against the offender who had a prior record of sexual offending and was being sentenced for major sexual assaults against his four year old daughter and playmate, some of which was video recorded by him. [ 60 ] As stated in Sidwell, supra sentencing precedents should be sought out that involve similar sexual acts and circumstances.

These precedents can assist the court in considering the appropriate sentence for each individual count against R.J., and then serve as a final check to determine whether the final sentence is proportionate on the last look as mandated by R. v. L.L.P ., supra . What is the Appropriate Sentence for Each Count? [ 61 ] As stated, the court must determine the appropriate sentence for each count that R.J. had pled guilty to. Sexual interference carries a maximum sentence of 10 years in jail.

C.H. [ 62 ] Having considered the principles of sentencing, aggravating and mitigating factors as they relate to the offence and the offender, and bearing in mind the principle of restraint, the appropriate sentence for the count of sexual interference against C.H. between November 7, 2002, and November 7, 2005, is seven years in the penitentiary.

T.H. [ 63 ] Having considered the principles of sentencing, aggravating and mitigating factors as they relate to the offence and the offender, and bearing in mind the principle of restraint, the appropriate sentence for the count of sexual interference against T.H. between January 1, 2012, and August 9, 2013, is five years in the penitentiary. H.R.

[64] Having considered the principles of sentencing, aggravating and mitigating factors as they relate to the offence and the offender,and bearing in mind the principle of restraint, the appropriate sentence for the count of sexual interference against H.R. between January1, 2012, and August 9, 2013, is five years in the penitentiary. Child Pornography [65] As previously stated, it is important to ensure that R.J. is not double punished in respect of the sexual interference countsinvolving T.H. and H.R. and the child pornography counts.

Production of child pornography carries a minimum sentence of one yearand a maximum sentence of 10 years. Similarly to sexual interference, production of child pornography calls for deterrence anddenunciation as the primary focus in sentencing. The range of sentences for this offence is between 1 and 3 years in jail (see R. v. G.M.,2014 MBPC 57 (reversed on other grounds: see R. v. G.J.M., supra.), at paragraph 65). [66] In R.J.’s case, there was no distribution or even thought that the photograph would be distributed to others.

R.J. intended andattempted to erase the photographs after he used them for his own sexual gratification (for which an appropriate sentence has alreadybeen determined). At the same time, his two victims were young, unsuspecting, vulnerable and in his care when the photographs weretaken. [67] In the circumstances, the appropriate sentence for this offence is two years in the penitentiary. [68] Accordingly, the total sentence for R.J., before the court considers the principle of totality amounts to 19 years of custody. Last Look [69] According to

section 718.2(

c) of the Criminal Code, where consecutive sentences are imposed, the combined sentence shouldnot be unduly long or harsh. The court is required therefore to take a last look at the aggregate sentence to ensure that it is proportionatehaving regard to the circumstances of the offence and taking into account the degree of responsibility of this offender (see R. v. M.(C.A.), (SCC), [1996] 1 SCR 500 at paragraph 42). [70] The purpose of the last look principle has been succinctly described in Sidwell, supra., at paragraph 31: The totality principle serves a different purpose in sentencing.

It looks to the future and offers one last reality check. Having alreadyconsidered the offences and the offender, and the aggravating and mitigating factors for the multiple offences, and having arrived at anappropriate sentence for each offence, the principle requires the sentencing judge to ask the following question: Is the aggregate lengthof the future incarceration, for the consecutive multiple offences so long that, given this accused and his prospects for rehabilitation, itdeprives him of all hope? [71] An important balancing of principles still remains in considering the last look principle.

The court must be cognizant of thedanger of imposing a sentence that amounts to allowing an offender a “free ride” on certain offences, if the totality principle is notcorrectly applied. This issue was identified in R. v. P.K., 2012 MBCA 69 at paragraph 23 and 24 where the court applied the principle of“no free ride” to instances where the court imposes concurrent sentences in the application of the totality principle.

The court ultimatelyconcluded in that case (at paragraph 27): The reason for this notion of no “free ride” is to ensure that some punishment is imposed on a crime which has been found to besufficiently separate and apart so as to warrant a consecutive sentence. Generally, the last look will often justify some reduction in thetotal sentence. There may be times when the balancing of the principles of totality or proportionality with the no “free ride” concernmay call for the imposition of a concurrent sentence as opposed to a reduced consecutive sentence.

This is especially so when theaccused has committed numerous separate and distinct crimes against many different victims. [72] In light of these concerns, how is the court to apply the totality principle? The Manitoba Court of Appeal offered assistance inR. v. G.J.M., supra. at paragraph 10: The question of whether a combined sentence for multiple offences is unduly long or harsh, and therefore not proportionate, on a lastlook requires a sentencing judge to take into account and balance several factors that Green CJNL neatly summarized in R v Hutchings(R), 2012 NLCA 2 , 316 Nfld & PEIR 211 (at para 84): (

a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offencesinvolved; (

b) the number and gravity of the offences involved; (

c) the offender’s criminal record; (

d) the impact of the combined sentence on the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing; (

e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of theoffences and the offender’s degree of responsibility. [73] This approach was also endorsed in R. v. L.L.P., supra. In the present case, some of the factors identified weigh in favour of areduced sentence, while others suggest that the sentence should not be reduced for totality sake. [74] A 19 year aggregate sentence for R.J. is over double the sentence that would be imposed for the most serious offence for whichR.J. is facing.

The maximum sentence for any of the individual counts is 10 years. Further, when compared to sentences for similaracts, albeit where offenders have no prior records but are facing similar offences with multiple victims, a sentence in the range of eightyears has been found to be appropriate. There is no question that a 19 year sentence would impede the prospects for rehabilitation for

R.J. as he would spend many of the remaining productive years of his life in custody resulting in a real danger that he would become institutionalized. In many respects, a 19 year sentence would be crushing to him. [ 75 ] At the same time, R.J. has offended against three victims multiple times in a manner that infringes on their sexual integrity in a significant way and as such each of the counts can be defined as a major sexual assault. Accordingly, the gravity and number of the offences involved is significant.

R.J. has a criminal record that is significantly connected to the offences before the court in that the offence against C.H. was perpetrated against the same victim and while R.J. was serving his sentence. The cost to the emotional well being to each victim is high. Accordingly, R.J. comes before the court with a high degree of moral culpability. This is necessarily factored into the court’s consideration as it relates to the offender’s degree of responsibility. The higher degree of moral culpability, the less likely the total sentence will be reduced to any great extent, if at all (see R. v.

James , supra at paragraph 63). [ 76 ] In R.J.’s case, the balance of factors dictate that a reduction of his sentence is necessary and just in order to account for the principle of totality. Nonetheless, R.J.’s action required that his sentence reflect his high degree of moral blameworthiness. Accordingly, the sentence shall be adjusted as indicated: • Sexual interference (contrary to

section 151(a)) against C.H. between November 7, 2002, and November 7, 2005 – reduced from seven years to five years; • Sexual interference (contrary to

section 151(a)) against T.H. between January 1, 2012, and April 1, 2013 – Reduce from five years to four years; • Sexual interference (contrary to

section 151(a)) against H.R. between January 1, 2012, and August 9, 2013 – reduced from five years to four years ; and • Making Child Pornography (contrary to

section 163.1(2)) between January 1, 2012, and April 1, 2013 - reduced from two years to one year. [ 77 ] The total sentence after considering the principle of totality is 14 years. While this sentence falls at the higher end of the range, it is nonetheless appropriate in light of all the circumstances. Time Already Served [ 78 ] As of today’s date, R.J. has been in custody for 961 days. He is entitled to 1.5 days credit for each day that he has served, equating to 1,442 days. This amounts to the equivalent of 4 years. [ 79 ] Accordingly, the sentence going forward shall be 10 years.

Ancillary Orders [ 80 ] The Crown is also seeking a number of ancillary orders. [ 81 ] All of the counts before the court are primary designated offences within

section 487.051 of the Criminal Code . Therefore R.J. will submit to the authorities upon their request to submit to the taking of a sample of his DNA. [ 82 ] Pursuant to

section 109 of the Criminal Code , there will be a lifetime weapons prohibition. [ 83 ] Pursuant to

section 490.013(21) of the Criminal Code , there will be a lifetime order in accordance with the Sex Offender Information Registration Act. [ 84 ] Pursuant to

section 161 of the Criminal Code , R.J. is prohibited for life from: • attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre; • being within 200 metres of any dwelling-house where C.H., T.H., H.R. ordinarily resides; • seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years; • having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of an adult person who is aware of the nature and extent of R.J.’s criminal record; and, • using the internet or other digital network, unless the offender does so in the course of employment. [ 85 ] Pursuant to

section 748.21 of the Criminal Code , there will be an order that R.J. not have any contact or communication, directly or indirectly with C.H., T.H., H.R., P.H. and A.R. while he is in custody. [ 86 ] There will be an order of forfeiture of all items seized, and specifically destruction of all photographic evidence of and electronic devices that contained child pornography. [ 87 ] Lastly, the court is required to impose cost and surcharges in the amount of $808.00. The fine shall be paid forthwith. Pursuant to sections 737.9(

a) and 734.7(2.1) of the Criminal Code , R.J. will serve one day concurrent to his sentence in default of non-payment thereof. “Original signed by:”

_________________________ ROLSTON P.J.