R. v. N.M., 2022 MBPC 13

CITATION: R. v. N.M., 2022 MBPC 13 THE PROVINCIAL COURT OF MANITOBA WINNIPEG CENTRE BETWEEN Her Majesty the Queen ) S. Sivarouban for the Crown ) - and - ) ) N.M. ) G. Wiebe for the Accused ) ) ) Reasons delivered: April 19, 2022 Restriction on publication by court order under

section 486.4(1) of the Criminal Code of Canada: Any information that could identifythe complainant/witness shall not be published in any document, or broadcast or transmitted in any way. L. Martin, P.J. INTRODUCTION [1] This is a sexual interference sentencing decision which examines the impact of the Supreme Court of Canada’s decision R. v.Friesen, 2020 SCC 9 (Friesen) on case law pre-dating that decision. [2] On May 28, 2021, N.M. (N.M.) was found guilty of committing sexual assault, sexual interference and invitation to sexualtouching contrary to sections 271, 151 and 152 of the Criminal Code (the Code).

The offending occurred against his wife’s cousin, T.L.,between the dates of June 1, 2015 and June 16, 2019 when T.L. was between the ages of 12 and 17. T.L. has FASD. Due to somedifficulties she was experiencing at school, N.M.’s wife offered to homeschool T.L. It was in this context that N.M. victimized T.L.every week she was living at his residence to be homeschooled. The offending was serious, consisting in forced fellatio resulting inejaculation in T.L.’s mouth, cunnilingus and vaginal and anal intercourse. The intercourse was protected through the use of a condomuntil N.M. had a vasectomy.

He would hold T.L. down or stuff socks in her mouth if she struggled, tried to bite him or cry out. Theoffending often occurred while N.M.’s wife was at home or in front of his young children. It continued until T.L. disclosed the abuse toher family, despite being questioned by his wife about her suspicions of his criminal behaviour. [3] These are indictable proceedings. N.M. was found guilty of all counts after trial (May 28, 2021 MBPC, unreported). Thesexual assault was conditionally stayed pursuant to Kienapple v. The Queen, (SCC), [1975] 1 S.C.R. 729.

The Crownsubmits that the Court should impose a sentence of 14 years of custody for the sexual interference, and a 10-year concurrent sentence forthe invitation to sexual touching. Defence counsel submits that a sentence in the range of five to seven years is appropriate. Thedifference in sentencing recommendations resides in counsels’ view of N.M.’s moral culpability and

interpretation of Friesen. TheCrown says that N.M.’s moral culpability is high and that Friesen prescribes an upward departure from prior precedents and sentencingranges. Defence counsel submits that N.M.’s moral culpability is reduced because of his Gladue factors and mental health issues. Shealso submits that Friesen does not say that case law pre-dating Friesen is of no value. On the contrary, she submits that where prior caselaw is consistent with Friesen, it can be used in determining a fit sentence post-Friesen. SENTENCING PRINCIPLES: The Effect of Friesen on Prior Precedents [4]

Section 718 and following of the Code set out the purpose and principles of sentencing. In cases such as this one where thesexual offending is against a vulnerable female child under the age of 18, the Court must give primary consideration to the objectives ofdenunciation and deterrence (see sections 718.01 and 718.04 of the Code).

Notwithstanding these primary objectives, the Court mustensure that the sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender and take intoconsideration relevant aggravating and mitigating circumstances while ensuring parity. [5] The law’s understanding and degree of condemnation of sexual offending against children has evolved over the years (Friesenat paras 53-55, 98-101).

In 2020, the Supreme Court of Canada specifically considered whether the sentencing ranges for sexual offencesagainst children that existed at the time were still consistent with Parliamentary and judicial recognition of the severity of these crimes(Friesen at para 33). At the risk of minimizing the Supreme Court’s comprehensive reasons, it is helpful for the purpose of the currentissue before this Court to distill the key rationale of the Friesen decision, as it relates to prior case law; • Beginning in 1987, then in 2005 and 2015, Parliament has progressively reflected society’s increased understanding of the

harmfulness of sexual offending against children by amending legislation and increasing sentences (paras 53-55, 98-101). • Sentences need to reflect Parliament’s decision to increase maximum sentences and should be higher than those imposed prior to the legislative amendments ( Friesen at para 100 ). • Starting points and ranges set out by provincial appellate courts are an expression of the minimum and maximum sentences imposed in the past (para 36) and some ranges may need to be increased, mindful that mid-single digit penitentiary terms are normal and upper single digit and double digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances (para 114). [ 6 ] In Manitoba, the pre- Friesen starting point for offences of sexual interference and sexual assault against a child was set in R. v.

Sidwell (K.A.), 2015 MBCA 56 ( Sidwell ), a case which pre-dates the 2015 legislative amendments increasing the maximum sentence for both offences from 10 to 14 years. [ 7 ] Sidwell dealt with a case of sexual interference over a period of 16 months by an accused in a position of trust. The Court was clear that a principled approach to sentencing is required and while it is fact-specific and offender-centric, the starting point for sexual interference that constitutes a major sexual assault is four to five years. [ 8 ] Sidwell has not been overruled since Friesen (See: R. v. S.A.D.F. , 2021 MBCA 22 ; R. v.

B.A.J.N. , 2021 MBCA 32 ). Nonetheless, the Manitoba Court of Appeal is clear that in weighing the circumstances of the offence, courts need to express the primary objectives of denunciation and deterrence in a manner consistent with the guidelines set out in Friesen . In R. v.

K.N.D.W., 2020 MBCA 52 ( K.N.D.W. ), the Court of Appeal commented that “the Supreme Court pressed the reset button with respect to the approach to be used in sentencing for sexual offences against children and directed that these sentences should better reflect both the gravity of the offence and Parliament’s intention in amending the Criminal Code (the Code ) provisions with respect to these offences” (para 2). More emphatically, the Court noted that the “message in Friesen was unequivocal . . . [S]entences for sexual offences against children must increase.” (para 38) Likewise, in R. v.

Alcorn , 2021 MBCA 101 , the Court described Friesen as a “watershed decision” (para 32), echoing its comments in K.N.D.W. that the Supreme Court sent an unequivocal strong message as to how sentencing objectives and principles are to be applied and how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children (para 33).

Care must therefore be taken before relying on pre- Friesen sentencing precedents as they do not necessarily reflect the Friesen guidelines; as often stated in the case law, it is not sufficient to simply state that sexual offending against children is serious, the sentence must reflect that seriousness. [ 9 ] A review of case law subsequent to Friesen shows a definite upward trend in sentences. This upward trend does not however mean that all cases will attract a significant sentence, as the circumstances of the offence and the offender’s moral culpability always need to be considered and appropriately weighed.

As noted in Friesen para 91 , “sexual assault and sexual interference are broadly- defined offences that embrace a wide spectrum of conduct” and an “offender’s conduct will be less blameworthy in some cases than in others”. Further, personal circumstances, such as cognitive limitations and Gladue factors, may have a mitigating effect on moral blameworthiness even though “[i]ntentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child” ( Friesen at para 88 ).

In the end, Friesen calls for a common sense approach: if the offending is serious and the moral blameworthiness is high, the sentence should reflect that. However, Friesen is not a call to increase all sentences involving a child complainant. Proportionality remains a fundamental principle of sentencing and due care must be taken to ensure that it is respected. R. v. Marsden , 2020 MBPC 57 ( Marsden ) is a good example of the application of proportionality. In Marsden , the 28-year-old offender committed sexual interference against his neighbour’s 15-year-old foster son.

The offending consisted in one instance of masturbation and fellatio. When the foster father discovered the offending in progress, Marsden called the police, admitting to the offence. The offender had a dated, unrelated record and no subsequent reoffending. He also had significant Gladue factors, including victimization at the hands of his grandfather. The judge imposed a sentence of two years less a day, followed by three years of supervised probation. [ 10 ] With this review in mind, I turn now to the case law submitted by counsel to support their position on sentence.

As is the situation in most cases, the circumstances of the offending and the offender are not on par with the current case, particularly as regards the nature, duration and frequency of the offending. It does however serve to illustrate where N.M. falls on the spectrum of offending. Pre- Friesen but post-2015 amendments and Sidwell [ 11 ] R. v. S.J.B. , 2018 MBCA 62 ( S.J.B .) was decided before Friesen but after the 2015 legislative amendments and Sidwell . In S.J.B. , a 31-year-old stepfather sexually exploited his 17-year-old stepdaughter 10 to 12 times over a two month period.

The sexual offending consisted in unprotected sexual intercourse. He did not stop until discovered. He had no prior record, had led a pro-social life and was determined to be a low risk to reoffend sexually. Subsequent to the offence, the accused underwent significant clinical therapy on his own initiative. He accepted responsibility for his offending and pleaded guilty. The Court of Appeal overturned the sentencing decision of 18 months and imposed a sentence of three years imprisonment.

Post- Friesen [ 12 ] The following cases were decided after Friesen but may involve offending which occurred before the 2015 amendments. pre-2015 offences [ 13 ] In R . v. G.J.K ., 2020 MBQB 130 , the accused was convicted of committing sexual interference, sexual assault and invitation to sexual touching between the dates of September 1998 and August 1999 when the maximum sentence was 10 years as opposed to 14. The offending consisted in three instances of sexual touching and one instance of fellatio against a seven to eight-year-old victim by a stay-at- home childcare worker.

The accused had a prior conviction for sexual interference from 1990. He had led a productive and law-abiding life during the 22 years since the commission of the offences; he also suffered from cognitive difficulties from birth and poor health. The Court imposed a 4 ½-year sentence, noting that given the historical nature of the offending, the accused would have been eligible to receive a conditional sentence had the victim come forward earlier.

[ 14 ] In R. v. K.D.M. , 2021 MBQB 107 , the victim was the biological daughter of the offender. She was sexually assaulted by her father between the ages of five to eight. The sexual abuse was significant, including touching, fellatio, cunnilingus, and both vaginal and anal penetration; there was also psychological, verbal and physical abuse. Noting the offender’s position of trust and his high degree of moral blameworthiness and likelihood to reoffend, the Court imposed the maximum sentences available at the time, of 10 years for sexual interference and 14 years for incest. [ 15 ] In R. v.

Zoldy (March 23, 2021 MBQB, unreported), the accused was sentenced after trial for the sexual assault and sexual interference of three of the offender’s nephews committed before the 2015 legislative amendments. The offending against one of the nephews occurred over a period of five years beginning when the child was four years of age. It included sexual touching, oral sex and an attempt at anal penetration. The offending against the other nephews involved sexual touching for a lesser period of time.

Applying the Friesen analysis and rationale, the Court imposed sentences of seven, six and two years respectively. post-2015 offences [ 16 ] In R. v. S. (D.) , 2020 MBQB 163 , the offender was sentenced after conviction to nine years for one instance of sexual interference against his stepdaughter. The offending was described as brutally violent and consisted in unprotected vaginal and anal intercourse, digital penetration of her vagina, cunnilingus, and threats against the victim and the victim’s family if she disclosed the offence.

The offender had significant Gladue factors, as well as physical and mental health disorders. He had a relatively lengthy but unrelated criminal record. [ 17 ] In R. v. J.D.W. , 2021 MBCA 49 , the offender anally penetrated his seven-year old biological daughter. At the time, he was on charge for assaulting her and on conditions to have no contact with her.

The Court of Appeal upheld the sentencing judge’s eight-year sentence, noting that they had considered and were guided by the principles in Friesen and had reasonably balanced the accused’s background, Gladue factors, and lengthy criminal record with the seriousness of the crime. [ 18 ] In R. v. R.W. , 2021 MBCA 71 , the Court of Appeal upheld a nine-year sentence for an offender who sexually assaulted his common-law wife’s 13-year-old sister on three occasions, vaginally penetrating her, once without a condom. The accused had no prior criminal record but had accumulated several convictions since the offending.

He presented with several Gladue factors and prospects for rehabilitation. The sentencing court found many aggravating factors, including the victim’s vulnerability given her state of intoxication on the final incident, the fact that the accused had been on bail for previous incidents, the breach of trust, as well as the destructive impact on the victim and the relationships with members of her immediate family. Post- Friesen case law from other jurisdictions [ 19 ] Case law from other jurisdictions also reflect an upward trend in sentences. In R. v.

S.J.M ., 2021 NSSC 235 , the accused pleaded guilty to several sexual offences against his 12 to 17-year-old stepdaughter, most of which were perpetrated prior to the 2015 legislative amendments. The offending was serious, highly invasive and spanned five years. The accused had no prior criminal record and had been confined to house arrest pending sentencing.

The Court imposed a 9-year sentence after totality (seven years for sexual interference, reduced to three years; six years for sexual exploitation, reduced to three years consecutive; five years for sexual assault, reduced to two years consecutive, and three years for making child pornography, reduced to one year consecutive). The Court commented that but for the guilty plea, it would have imposed at least a 10-year sentence of imprisonment. [ 20 ] In R. v. O. , 2020 ABQB 497 , the offender was convicted of incest. The offending occurred over a period of five years.

It began with sexual touching and increased to vaginal penetration and oral sex. It also included pornography. The Court imposed a sentence of 14 years. SERIOUSNESS OF THE OFFENCE [ 21 ] Without displacing specific factors identified by provincial appellate courts, such as the Manitoba Court of Appeal in Sidwell at para 53 , the Supreme Court in Friesen (paras 121-154 ) noted some significant factors a court may consider in determining a fit sentence.

Though not exhaustive nor mandated, Sidwell and Friesen offer the following factors that may be considered in Manitoba: • The age of the victim; • The relative ages of the victim and the accused; • Whether there was an abuse of a position of trust or authority and if yes, what the nature of that position was; • The exact nature of the offending conduct and degree of physical interference; • The duration and frequency of the offending conduct; • The impact on the victim. [ 22 ] In assessing the nature of the offending conduct, Friesen cautions against considering victim participation in, or de facto consent to the offending conduct, noting that “[a]dults, not children, are responsible for preventing sexual activity between children and adults” (para 154). [ 23 ] Further, in considering sentencing objectives, Friesen indicates that an offender’s likelihood to reoffend should be considered when determining the objectives of separation from society (para 123) and rehabilitation (para 124).

[ 24 ] The offending in this case is on the very high end of the spectrum. T.L. was vulnerable due to her FASD diagnosis and her young age of 12 when the offending began. N.M. was in his late twenties and was in a position of trust as a caregiver to T.L. The offending was brazen and highly invasive, both physically and emotionally.

Not only did N.M. infringe T.L.’s sense of security in a home that was meant to be hers for three to four days a week over the school year, he perverted her sense of self and her relationship with N.M.’s wife and children as she was subjected to sexual abuse while his wife was home and while the children were present to observe. It also put her in an untenable position given her desire to further her education. The offending was weekly during the school year for four years, amounting to approximately one hundred instances of abuse.

It did not stop until T.L. disclosed the abuse, despite her trying to fight him off and his wife confronting him with her suspicions. [ 25 ] The impact of the offending on T.L. as well as her parents and N.M.’s former wife and family has been catastrophic and life- changing. T.L. is now an adult. She was born with a diagnosis of FASD and adopted into a loving and supportive family.

Because of some of the challenges she faced in a regular school setting, including bullying by other children, her cousin, the spouse of N.M., welcomed her into her home to provide homeschooling in a setting that was intended to be safe to assist T.L. in achieving the educational goals that she had set for herself. What she encountered instead, was years of abuse that ruined her self-esteem and caused her to have feelings of shame, worthlessness, confusion, anger, fear and powerlessness. She had difficulties with sleep, headaches, nightmares, and depression.

She felt alone and was at a loss of how to deal with the abuse she was suffering and how to disclose it to her cousin and parents. She suffers from post-traumatic stress disorder (PTSD) and continues to be anxious and fearful. Her life has been forever altered as a result of the sexual offending perpetrated against her. She lost her childhood, her innocence and her happiness. The impact on T.L. has had ripple effects on her parents, who witnessed her behaviour changing for the worse, without knowing why.

Upon receiving disclosure of the sexual abuse, her parents have blamed themselves and have felt the immeasurable pain of knowing that their daughter has been violated in such an invasive manner. [ 26 ] N.M.’s family, particularly his former wife, has likewise suffered. His former wife feels immense guilt at not having listened to her suspicions of her husband’s sexual offending against T.L. and of having allowed herself to be talked into feeling like she was paranoid, jealous or of low self-esteem. She feels guilty for having welcomed T.L. into their home and not having protected her.

As the former wife of a man who has sexually offended against a child, she questions her own self-worth as a partner and worries about the future of her two young children who were made to witness some of the sexual offending and who will have to live with the knowledge of their father being such an aggressor. MORAL CULPABILITY [ 27 ] N.M. is Métis through his mother. No Gladue report was prepared. Instead, defence counsel provided information during submissions.

Though there was no family history, counsel invited the Court to take judicial notice of systemic Gladue factors that had an impact on N.M.’s early childhood. That childhood was traumatic and chaotic. He was apprehended 12 times before the age of six due to domestic violence, substance abuse and neglect. At the age of six, N.M. was adopted by his maternal aunt and her husband. By N.M.’s account, he was welcomed into a well-functioning and healthy family that he sees as his own.

He has limited contact with his birth- siblings or half-siblings from his biological mother’s other partners. [ 28 ] N.M. has led an industrious life, though he has been unemployed since 2019 when COVID emerged and he was charged with these offences. [ 29 ] N.M. underwent psychological testing in December 2021 with Dr. Kolton for the purposes of a psychological risk assessment. Defence counsel relies on the findings of this report as support for her submission that N.M. has rehabilitative prospects and that his moral blameworthiness is reduced pursuant to R. v. J.M.O. , 2017 MBCA 59 ( Okemow ).

Conversely, the Crown submits that there are many concerning features in N.M.’s risk assessment, most notably his lack of insight, denial of offending and his assessed risk to reoffend. [ 30 ] The psychological tests administered by Dr. Kolton were designed to measure N.M.’s personality as well as his emotional and behavioural functioning to understand his offending conduct and assist in treatment and risk-management planning. Overall, Dr.

Kolton found that although N.M. was generally forthcoming in his self-reported history, he demonstrated limited insight into his own emotional and psychological functioning and into how his own experiences shaped his behaviour. There was some evidence that N.M. provided a distorted picture of his functioning, either tending to minimize his problems or portray himself in a negative or pathological manner.

He also found that N.M. reported numerous symptoms of PTSD. [ 31 ] N.M.’s risk to reoffend sexually was determined through the Static-99R to be at a level three, placing him at an average risk, meaning that he has multiple criminogenic needs, varying in severity, in psychological, interpersonal and lifestyle domains. Dr. Kolton noted that these needs are likely to be barriers to the effective use of any available pro-social resources and strengths. He also found that N.M. registered several criminogenic concerns on the sexual deviant factor.

Despite being assessed at a level three on the Static-99R, upon further testing with other psychological tests, Dr. Kolton found that N.M.’s risk for further sexual offending would be considered below-average to average and consistent with a level two or three offender for acting out in a sexually aggressive manner. [ 32 ] Dr.

Kolton opined that N.M.’s interest in and motivation for psychological treatment was somewhat below average and that he impressed as being satisfied with himself as he currently is, that he does not believe he is experiencing any marked distress and that he sees little need for change in his behaviour. Notwithstanding N.M.’s presentation, Dr. Kolton found that N.M. did have a number of strengths that would situate him well for a relatively smooth treatment process, if he makes a commitment to treatment. [ 33 ] Although N.M. continues to deny having committed the offences he was convicted of, Dr.

Kolton did not find that it affected his risk factor in any way. As for rehabilitative prospects, Dr. Kolton opined that once N.M. came to terms with the conviction, he would be amenable to ongoing treatment and support. He recommended a number of relevant treatment targets to assist N.M. in adapting to a healthy sexual orientation, including programming for trauma symptomology and mental health concerns, processing past experiences of childhood neglect, addressing the potential problematic use of substances to escape and cope, and discussing healthy relationship dynamics and skills.

[ 34 ] Though this treatment plan appears sound, I question Dr. Kolton’s opinion about N.M.’s rehabilitative prospects given his limited insight into his own past trauma, current level of functioning, and below average interest in and motivation for any psychological treatment.

As such, although N.M. might have rehabilitative prospects, it is unclear at this time how motivated he will be in the future to address his criminogenic needs. [ 35 ] Defence counsel submits that N.M.’s past trauma as a child and his resulting mental health disorders and behavioural functioning, are clearly linked to his offending such that it reduces his moral blameworthiness above and beyond his Gladue factors. She points to Dr. Kolton’s rehabilitative plan as proof of the nexus between his mental health and the offending behaviour.

Crown counsel disagrees, submitting that the nexus is tenuous at best. [ 36 ] In Okemow at para 73 , the Manitoba Court of Appeal suggested that sentencing judges consider the following three questions when determining the moral blameworthiness of an offender with a mental illness or some other form of cognitive limitation: 1. Is there cogent evidence that the offender suffers from a recognized mental illness or some other cognitive limitation? 2.

Is there evidence as to the nature and severity of the offender’s mental circumstances such that an informed decision can be made as to the relationship, if any, between those circumstances and the criminal conduct? 3.

Assuming the record is adequate, the sentencing judge must decide the offender’s degree of responsibility for the offence taking into account whether and, if so, to what degree his or her mental illness or cognitive limitation played a role in the criminal conduct. [ 37 ] The pertinence of determining whether an offender’s moral blameworthiness is affected by their mental illness or other form of cognitive limitation is the potential mitigating effect on the sentencing objectives of denunciation and deterrence which can be accorded less weight and can result in a significantly lighter sentence (see R. v.

Ramsey , 2012 ABCA 257 at paras 24-25 ; and Friesen at para 91 ). [ 38 ] As noted in R. v. J.E.D. , 2018 MBCA 123 ( J.E.D. ) at para 73 , the focus is on whether there is evidence that the offender’s cognitive deficits undermine the offender’s capacity to restrain urges and impulses, appreciate that their acts were morally wrong and comprehend the link between the punishment imposed by the court and the crime for which they have committed. Though the mental illness does not need to have caused the offender to commit the crime, it needs to have at least contributed to the commission of it.

Where there is no, or insufficient evidence of the nexus or causal link, the primary sentencing objectives will not be displaced. However, the mental illness can still be considered a mitigating circumstance ( J.E.D . at para 77 ). [ 39 ] In this case, the evidence before the Court is that N.M. suffers from trauma symptomology and mental health concerns. While Dr.

Kolton opines that targeting these areas in treatment will assist N.M. in adapting to a healthy sexual orientation and enhance his risk management, he does not say that N.M.’s trauma symptomology or mental health concerns played a role in his criminal conduct. As such, I do not find N.M.’s moral blameworthiness is reduced as a result of cognitive limitations or mental illness pursuant to Okemow. His psychological presentation is however a mitigating circumstance.

DECISION [ 40 ] “[C]ourts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle. . . The wrongfulness and harmfulness impact both the gravity of the offence and the degree of responsibility of the offender” ( Friesen at para 75 ). “Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious.

The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers, and communities” ( Friesen at para 76 ). “Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child” ( Friesen at para 88 ).

These quotations from Friesen and the subsequent case law are clear that much of the case law pre-dating Friesen , though expressing the right words, did not express an appropriate condemnation of the severity of the harm or the high moral blameworthiness of an offender. In fact, Friesen found that the six year sentence imposed by the sentencing judge in that case was lenient (para 169).

The Manitoba Court of Appeal and multiple trial courts have generally increased sentences for sexual offending against children post- Friesen , often citing the phrase, “[m]id-single digit penitentiary terms for sexual offences against children are normal and upper-single digit and double digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances” and commenting that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim. [ 41 ] In this case, denunciation and deterrence are primary sentencing objectives.

N.M.’s offending was highly egregious and aggravating. His moral blameworthiness is extremely high. His actions were intentional and there was a degree of planning. He knew of T.L.’s vulnerability and of the pain he was causing her time and time again. He knew it was wrong and acted deceptively so as to continue his offending.

I have taken into consideration his Gladue factors, his difficult upbringing, trauma symptomology and mental health, and lack of prior record, as well as his pro-social supports and potential prospects for rehabilitation. [ 42 ] In balancing all of the foregoing, I find that appropriate sentence is 13 years of incarceration for the sexual interference and a concurrent sentence of 10 years for the invitation to sexual touching. These sentences are accompanied by the following ancillary orders: • a

section 487.04 primary designated DNA order • a lifetime

section 490.013(2.1) Sex Offender Information and Registry Act Order • a

section 109, 10 year weapons prohibition • a

section 743.21(1) non-communication order with the victim T.L. while N.M. is in custody

• A

section 161, 10 year order prohibiting N.M. from:

a) 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 unless under the direct supervision of a responsible adult aware of your conviction;

b) being within two-hundred (200) metres of where T.L. lives, works, worships, goes to school;

c) 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 unless under the direct supervision of a responsible adult aware of your conviction;

d) having any contact – including communicating by any means – with a person who is under the age of 16 years, unless under the direct supervision of a responsible adult aware of your conviction. [ 43 ] Costs and surcharges are waived. “Original signed by:” Judge Martin