R. v. O, 2018 NLCA 11

Reginald O’Keefe (appellant) v. Her Majesty the Queen (respondent) (17/01) Indexed As: R. v. O’Keefe 2018 NLCA 11 2 C.A.N.L.R. 557 Court of Appeal of Newfoundland and Labrador Welsh, Harrington and Hoegg JJ.A. February 16, 2018 RESTRICTION ON PUBLICATION: By court order made under subsection 486.4(1) of the Criminal Code , information that may identity the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.

Summary: The appellant, Reginald O’Keefe, was convicted of six counts of indecent assault and sentenced to 60 months imprisonment - ten months consecutive for each offence, less the time he served in pre-trial custody. Mr. O’Keefe appeals one of his convictions, arguing that the Judge erred in finding that he was the perpetrator of the offence leading to that conviction, the central issue being identification. He also appeals his sentence on the basis that the Judge erred by failing to apply the totality principle when determining sentence.

Held: Conviction appeal dismissed, sentence appeal allowed, sentence reduced to 30 months imprisonment. Hoegg J.A. (Welsh and Harrington JJ.A. concurring): The appellant argued that the trial judge erred in finding that his identity had been proven as the perpetrator of one of the offences because the assault occurred in a dark room and he was unknown to the complainant, who identified him on the basis that her friend had told her the man’s name at the time of the assault and she was able to recognize him when she Googled his name 35 years later.

He argued that no weight could be given to the complainant’s identification of him in court, and that the Judge must have relied on the friend’s hearsay identification evidence in order to convict. The appellant argued that the trauma of the assault would have impaired the complainant’s powers of observation or memory of the perpetrator. While it is possible that trauma could impair one’s powers of observation or memory, it is also possible that trauma could enhance one’s powers of observation.

There was no evidence which raised concerns about the effect of trauma on the complainant or which brought her memory or recall ability into question. The complainant’s identification of Mr. O’Keefe in court was not a bare dock identification. She had also identified him approximately two years before trial from an internet photograph, which adds cogency to her identification of him in court. The testimony of the complainant’s mother, who testified the appellant was known to her and she confronted him the next morning, is other evidence tending to confirm the identification of Mr. O’Keefe at trial.

There is no suggestion that the complainant was biased toward Mr. O’Keefe. Moreover, it is apparent from the Judge’s decision that he gave her identification evidence special scrutiny before concluding he was satisfied beyond a reasonable doubt that Mr. O’Keefe was the man who had assaulted her. In the result, the Judge did not err in his conclusion that Mr. O’Keefe had assaulted the complainant. The notion that the Judge could not possibly have reached that conclusion without relying on the friend’s identification of Mr. O’Keefe is speculative and not borne out by the record.

There is no indication in the record or in the Judge’s decision that he relied on the friend’s identification of Mr. O’Keefe for the truth of its contents. However, if he had done so, he could have been entitled to do so under the res gestae exception, as a statement that is spontaneously declared under shock or pressure sufficient to ensure the declaration’s reliability, to the hearsay rule or the principled approach to the admissibility of hearsay evidence, because the friend’s identification of Mr. O’Keefe had the hallmarks of trustworthiness and reliability and may have been necessary.

Whenever a judge is sentencing an offender for more than one offence, he or she should first determine an appropriate sentence for eachoffence and then determine whether the respective sentences should be served concurrently or consecutively. If the sentences areproperly to be served consecutively, then the judge is required to take one last look at the total sentence to determine whether it is undulylong or harsh, in the sense of it being disproportionate to the gravity of the offence and the degree of responsibility of the offender.

The Judge’s decision that the sentences he imposed be served consecutively because each offence was separate and distinct in time andplace was appropriate. However, the sentence was imposed without consideration or application of the totality principle. Accordingly,the Judge erred in law.

Determining a fit sentence in a case of multiple offences involves considering, among other things, the normal level of sentence for themost serious of the offences, the number and gravity of the offences, the offender’s criminal record, the effect of the total sentence on theoffender’s rehabilitation, and the relevant sentencing jurisprudence. Although a sentence of 10 months for each offence is fit, a totalsentence of 60 months is unduly long and harsh in the circumstances. An appropriate sentence would be 30 months.

The conviction appeal was dismissed, but the sentence appeal allowed and the sentence reduced to 30 months imprisonment less timespent in pre-sentence custody. Cases cited: R. v. Nikolovski, (SCC), [1996] 3 S.C.R. 1197 R. v. Tat (1997), (ON CA), 35 O.R. (3d) 641 (C.A.) R. v. Shea, 2011 NSCA 107, 309 N.S.R. (2d) 349, leave to appeal to S.C.C. refused, 34870 (September 20, 2012) R. v. Smith, (SCC), [1992] 2 S.C.R. 915 R. v. Khan, (SCC), [1990] 2 S.C.R. 531 R. v. Hutchings, 2012 NLCA 2, 316 Nfld. & P.E.I.R. 211 R. v. O’Quinn, 2017 NLCA 10, 1 C.A.N.L.R. 460 R. v.

Crocker (1991), (NL CA), 93 Nfld. & P.E.I.R. 222, 292 A.P.R. 222 (Nfld. C.A.) R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 R. v. O. (J.N.) (1993), (NL CA), 103 Nfld. & P.E.I.R. 256, 326 A.P.R. 256 (Nfld. C.A.) R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500 Counsel: Derek Hogan, for the appellant; Sheldon Steeves, for the respondent. This appeal was heard on November 9, 2017 before Welsh, Harrington and Hoegg JJ.A.

The following judgment was delivered on February 16, 2018 by Hoegg J.A. for the Court. ______________________________________________________________ Hoegg J.A.: INTRODUCTION [1] On September 23, 2016 Reginald O’Keefe was convicted after trial by a judge sitting alone of six counts of indecent assault –three counts in relation to the complainant B.W., and one count in relation to each of the complainants T.S., D.K., and T.N. The Judgesentenced Mr. O’Keefe to ten months consecutive for each offence, less the time he served in pre-trial custody. Mr.

O’Keefe appealsone of his convictions, arguing that the Judge erred in finding that he was the perpetrator of the offence leading to that conviction, thecentral issue being identification. He also appeals his sentence on the basis that the Judge erred by failing to apply the totality principle

when determining sentence. FACTS [ 2 ] Three of the complainants are sisters who grew up in the same community as Mr. O’Keefe but now live far away from each other. Each went to the police independently in 2014 after learning that Mr. O’Keefe had been recently convicted of sexually assaulting a young child. All of the offences involving the sisters occurred over a 14-year period between 1967 and 1981 when they were between six and ten years old. The sisters knew Mr. O’Keefe so his identity was not an issue in the offences involving them.

The Judge found the charges relating to the sisters proved beyond a reasonable doubt, saying they were credible and trustworthy witnesses “direct and compelling in their testimony” with “no particular animus from them toward Mr. O’Keefe even though he hurt them gravely” (2016 NLTD(G) 154 at para. 124). He convicted Mr. O’Keefe of the five offences involving them. [ 3 ] The Judge also found the charge relating to a fourth complainant, T.N., proved beyond a reasonable doubt. Mr. O’Keefe appeals the conviction, arguing that his identification as the perpetrator was not properly proved at trial.

He maintains that the Judge relied on the hearsay evidence of a friend of Ms. N. in concluding that Mr. O’Keefe was guilty of the offence. [ 4 ] Ms. N. was sexually assaulted during a sleepover at her friend’s house in Labrador City when she was nine or ten years old. The circumstances of this assault, summarized by the Judge at paragraphs 56 to 60 of his decision, bear repeating as they illustrate the identification issue Mr. O’Keefe raises on appeal: [56] Ms. N. says that she and K. were alone since K.’s mother was out to a club, there were no other adults in the house and K.’s older sister was also away.

The girls were in bed and Ms. N. remembers that she had no pillow so she rolled up a jacket to use as a pillow. She says she woke up to see a silhouetted person standing over her. She alerted K. to his presence and she says K. jumped up and ran out of the room: “She left the room. She left me there with him”. [57] Ms. N. says the male person sat down on the bed and put her on his lap. He was “cradling me” and “rubbing me” and his “right hand was very adventurous over the breast area and working downward”. She says he held her on his left leg and placed his left hand around her back to support her. Ms.

N. says he put his hand under her nightgown and rubbed her bare skin, all the while telling her that he would buy her boots and other things at the Labrador City Mall. She says she was crying profusely for K. and calling out for her and she thinks she may have irritated him. [58] Ms. N. says the person touched her groin, pubic area and all her genitals, underneath her clothing but did not penetrate her vagina. Ms. N. says there were no lights on in the bedroom when the male person was attacking her but the door to the room was open and a light shone in from the hallway outside.

She says she saw his face as she sat on his leg right next to his body. Ms. N. says the person left the room and said he was going to look for K. [59] Ms. N. says she went down to the main level of the house and K. emerged from the basement with a knife in her hand. She says “I bolted out of the house, looking for a house with a light on”, bypassing one house where there were lights on because “the lady there scared us” and ended up at a house belonging to G. and E.M. who had just moved into the neighbourhood. [60] Ms. N. said it was much too cold to be outdoors dressed only in a nightgown.

She says they knocked at the door and told the M.[s] what had happened and they called the police. Ms. N. says a police officer “spoke to K. in the squad car” but no one spoke to her. Mr. M. escorted Ms. N. back to her own home. Ms. N. says that K.’s family knew the man who had assaulted her but he was not known to their family. She says she was told he was “R.O’K.” but she noted that she never saw the man before or after the incident. [ 5 ] Ms. N.’s mother also testified. Her evidence was summarized by the Judge at paragraphs 70 to 72: [70] Ms. A. says “something happened to T.” when they lived on C[...] Square.

She says T. went for a sleepover at her friend K.’s house. She says they heard a loud bang on the door about 1:30 am and found T. at the door with G.M., their next door neighbour. Ms. A. says her daughter was “white and very scared” and “just wanted to get in the house to feel secure”. She says her daughter was “just happy to be home” and “I could see the horror in her face”. Ms. A. says that T. was eleven years old at the time. Ms. A. remembered that she was eight to eight and a half months pregnant with her son, G., Jr. and he was born on […], 1981. [71] Ms.

A. says T. told her what happened the next morning, saying that R.O’K. had assaulted her. Ms. A. says she was “pretty mad” and “I went over and confronted him”; by which Ms. A. meant that she went across the street to the house where K.W. lived and asked for Mr. O’K. Ms. A. says that Mr. O’K. “came out and I told him what a lowlife he was to be at small kids”. [72] Ms. A. says that Mr. O’K. denied the allegations and they “argued back and forth a bit, while he was edging himself in to get away from me”. Ms. A. told Mr. O’K. that she would call the police about the incident but she did not.

She was “75% sure” that the R.O’K. in Court was the person she spoke to about T.’s allegations more than thirty-five years ago. [ 6 ] The Judge explained his reasons for convicting Mr. O’Keefe of the assault involving Ms. N. at paragraphs 125 to 128 of his decision: [125] T.N. stood alone in her complaint but was as compelling and unwavering as the O’K. complainants. I want to highlight how she identified Mr. O’K. as her assailant, because I share the certainty that she drew from the intertwining events. Let me explain. [126] Ms.

N. did not know R.O’K. when he assaulted her in the bedroom, upstairs of the M. household in Labrador City. Her friend, K.W., who had been in bed with her and left the bedroom when Mr. O’K. entered it, told Ms. N. he was R.O’K. The next morning Ms. N. told her mother, L.A., that it was R.O’K, who assaulted her in the upstairs bedroom of the M. house. Ms. A. confronted Mr. O’K.

directly, he denied the assault and neither Ms. A. nor Ms. N. did anything more about it at the time. [127] Mr. O’K.’s assault troubled Ms. N. over the intervening years so that periodically she searched his name online to see if she couldfind out more about him. Ms. N. knew him as “R.O’K.” and searched accordingly. In 2014, on a whim, she “Googled” him as “R.O’K.”and within seconds she saw the Mr. O’K. who K.W. named as the man who had assaulted her thirty-five years ago. Mr. O’K.’s imageappeared in a “Google banner” and Ms. N. says “I lost it” when she saw him. [128] Ms.

N.’[s] identification of the accused is based on circumstances that could not possibly be contrived. Those circumstances andMs. N.’[s] references – who K.W. said committed the assault, her mother’s confrontation of Mr. O’K. where the assault occurred thenext morning, Ms. N.’[s] subsequent recognition of Mr. O’K. from the Google search and J.L.’s evidence that Mr. O’K. was in LabradorCity at the time – are incontrovertible. Those “circumstances” are consistent with Mr. O’K. as being the person who assaulted Ms. N.and do not allow for any other explanation; including the “explanations” that Mr.

O’K. offered that I rejected earlier in these reasons. THE APPEAL [7] Mr. O’Keefe argues that the Judge relied on Ms. N.’s friend’s identification of Mr. O’Keefe as the man who entered the girls’bedroom in convicting him. He says that the friend’s identification of Mr. O’Keefe was hearsay evidence because the friend did nottestify and her identification of Mr. O’Keefe was not subject to cross-examination. He maintains that Ms. N. could not possibly haveidentified Mr.

O’Keefe in court some 35 years after the incident without having seen him in the meantime, especially because the assaulthappened at night in a dark room. Mr. O’Keefe argues that no weight can be given to Ms. N’s identification of him in court, and arguesthe Judge must have relied on the friend’s hearsay identification evidence in order to convict. [8] Mr. O’Keefe also appeals his sentence, arguing that the Judge failed to consider and apply the totality principle when hesentenced Mr. O’Keefe to 60 months incarceration. ANALYSIS Identification Evidence [9] Mr.

O’Keefe supports his argument by relying on several cases which highlight the frailties of identification evidence. [10] In R. v. Nikolovski, (SCC), [1996] 3 S.C.R. 1197, at para. 19, the Supreme Court of Canada identified factorswhich inform the consideration of eyewitness identification: 19 … So many factors come into play with the human identification witness. As a minimum it must be determined whether the witnesswas physically in a position to see the accused and, if so, whether that witness had sound vision, good hearing, intelligence and theability to communicate what was seen and heard.

Did the witness have the ability to understand and recount what had been perceived? Did the witness have a sound memory? What was the effect of fear or excitement on the ability of the witness to perceive clearly and tolater recount the events accurately? Did the witness have a bias or at least a biased perception of the event or the parties involved? Thisforeshortened list of the frailties of eyewitness identification may serve as a basis for considering the comparative strengths of videotapeevidence. [11] Mr. O’Keefe also relies on the following four factors that Doherty J.A. listed in R. v.

Tat (1997), (ON CA), 35O.R. (3d) 641 (C.A.) at para. 100 as concerns to be addressed when considering whether eyewitness identification of an accused hasbeen proved: 1) knowledge of the accused where the person identified is a stranger to the witness, 2) whether the circumstances of theidentification are conducive to accurate identification, 3) whether pre-trial identification processes are flawed, and 4) whether there isother evidence tending to confirm or support the identification evidence.

These four factors incorporate the concerns listed inNikolovski, except for the bias concern, which I will address separately. Knowledge of the Accused [12] Ms. N. did not know Mr. O’Keefe when the assault occurred. She learned his identity from her friend contemporaneously withthe assault. He was standing over the girls’ bed immediately before the friend bolted from the bedroom and the assault occurred. Mr.O’Keefe was known to the friend and her family. The friend told Ms.

N. who the man in the bedroom was either moments before shebolted from the room or moments after she emerged from the cellar and the two girls ran from the house. [13] Ms. N. testified that she did not recall seeing Mr. O’Keefe after the assault and the evidence was that he moved away fromLabrador City several months later. However, Ms. N. knew his name, and she periodically searched for him on the internet, eventuallyfinding his picture once she used his full name. She immediately recognized him.

Random identification of an accused from his or herpicture on the internet may not, without more, constitute knowledge of the perpetrator or indeed positive identification. However, thecircumstances of this case, including Ms. N. knowing Mr. O’Keefe’s name, remembering what he looked like from years ago, andimmediate recognition of him on seeing his picture, indicate that he was not unknown to her in the sense that concerned Justice Doherty. Circumstances of the Identification [14] Ms. N. identified Mr. O’Keefe at trial as the man who assaulted her in her friend’s bedroom many years before. Ms.

N.’sevidence, which the Judge accepted, was that she was certain Mr. O’Keefe was the man who had assaulted her. She testified that she hadhad a clear view of him despite the dark bedroom because a hallway light shone into the bedroom which enabled her to see his face when

he lifted her from the bed and placed her on his leg. She also testified that she recognized Mr. O’Keefe by his facial features and eyes when she saw his picture on the internet and when she identified him in Court. [ 15 ] Mr. O’Keefe argues that the trauma of the assault would have impaired Ms. N.’s powers of observation or memory of the perpetrator. The circumstances of the assault were admittedly traumatic for Ms. N.

While it is possible that trauma could impair one’s powers of observation or memory, it is also possible that trauma could enhance one’s powers of observation in that images from traumatic events could leave an indelible mark on one’s memory. In this case, there was no evidence which raised concerns about the effect of trauma on Ms. N. or which brought her memory or recall ability into question. Ms. N. explained how she was able to see her assaulter’s face and subsequently identify Mr. O’Keefe and that she was certain that Mr. O’Keefe was the man who had assaulted her. [ 16 ] Mr.

O’Keefe’s appellate counsel asserts that Ms. N.’s “dock identification” of Mr. O’Keefe can be given little to no weight. In so asserting, he relies on the point made in a “subset of specific issues” to be considered in assessing identification evidence listed at 32:100.50 of McWilliams’ Canadian Criminal Evidence , 5th ed., loose-leaf (Toronto: Canada Law Book, 2017). The reference highlights the need for special scrutiny when there is dock identification without a properly controlled pre-trial identification procedure. [ 17 ] Ms. N.’s identification of Mr. O’Keefe in court was not a bare dock identification.

In addition to her evidence respecting how she recognized Mr. O’Keefe by his eyes and face, Ms. N. knew the name of the man who had assaulted her, having been told it by her friend who knew Mr. O’Keefe at the time of the assault in circumstances which did not give rise to calculated insincerity, fabrication, or memory lapse. Ms. N. had identified him approximately two years before trial from an internet photograph, which adds cogency to her identification of him in court. Pre-trial Identification [ 18 ] There was no official pre-trial identification process in this case, like a police line-up or Ms.

N. identifying her assaulter from a selection of photographs. However, she did identify Mr. O’Keefe pre-trial from his picture on the internet as noted above. Also however, she knew who she was looking for, and finally found him by Googling his full name (not his nickname as she had done previously) while she was at home one day. She told the court when she saw Mr.

O’Keefe’s picture that she immediately recognized him and “lost her mind”, which she described as “rapid breathing, visibly upset, crying, just felt like I was being crushed” and that she went directly to her husband who was in the house (transcript, volume IV, page 29). She testified that she recognized Mr. O’Keefe from “his facial features, his eyes, his eyes gave it away”, and on cross-examination she explained that when she saw his face in a banner on her computer screen she recognized him before reading the

article about him. She was alone when she first saw his picture and therefore uninfluenced by police or others in identifying him. Other Confirmatory Evidence [ 19 ] The morning following the assault, Ms. N.’s mother, who had been informed by her daughter that Mr. O’Keefe was the man who had assaulted her, went across the street to the friend’s house where Mr. O’Keefe was staying – the house where the assault had taken place just hours earlier – and asked for him when the door was answered. Ms. N.’s mother knew Mr. O’Keefe. When he came to the door the mother berated him for “going at small kids”. Mr.

O’Keefe denied the mother’s accusation. [ 20 ] The mother testified that she learned the name of her daughter’s assaulter from her daughter. Ms. N. testified she was brought home by the neighbour at whose home she and her friend had sought refuge. The record shows that the neighbour called the police and that Ms. N. and her friend separated when the police showed up and her friend was taken to the police car to be interviewed. Ms. N. did not see her friend again before she was brought home. Ms.

N. told her mother and step-father what had happened when she got home, and when morning broke her mother went over to the friend’s house and confronted Mr. O’Keefe. The mother identified Mr. O’Keefe in court as the man she had confronted. When she was asked to put a percentage on her certainty that the man in the dock was Mr. O’Keefe, she said 75%. However, a reading of her evidence leaves no doubt that Mr. O’Keefe was the man she confronted that morning because she conversed with him during cross-examination in the first and second person. (Mr.

O’Keefe conducted the cross-examination of the mother at trial.) [ 21 ] The mother’s testimony is other evidence tending to confirm Ms. N.’s identification of Mr. O’Keefe at trial. It does not give rise to reliability concerns, as Mr. O’Keefe was known to the mother, and known to the friend who imparted Mr. O’Keefe’s identity to Ms. N., in circumstances which did not give rise to reliability concerns. It is a matter of evidence that Mr. O’Keefe was staying at the friend’s house that night and that he was there in the morning when Ms. N.’s mother confronted him. Bias [ 22 ] There is no suggestion that Ms.

N. was biased toward Mr. O’Keefe. [ 23 ] It is apparent from the Judge’s decision that he gave Ms. N.’s identification evidence special scrutiny before concluding he was satisfied beyond a reasonable doubt that Mr. O’Keefe was the man who had assaulted her. Ms. N.’s identification of Mr.

O’Keefe in court and her explanation of why and how she was able to do so, informed by her having recognized him by his picture on the internet, and by the circumstances and details of the assault including how she learned the name of her assaulter, gave her evidence trustworthiness and reliability “which could not possibly be contrived”, as the Judge found. The basis for his convicting Mr. O’Keefe was Ms. N.’s identification of Mr. O’Keefe. The notion that the Judge could not possibly have reached that conclusion without relying on the friend’s identification of Mr.

O’Keefe is speculative and not borne out by the record. [ 24 ] In the result, the Judge did not err in his conclusion that Mr. O’Keefe had assaulted Ms. N. A Word about Hearsay [ 25 ] Evidence that is not first-hand is only hearsay if it is relied on for the truth of its contents. In this case, Ms. N’s evidence that she was told by her friend that it was Mr. O’Keefe who entered the bedroom was tendered as part of the narrative of her evidence explaining the circumstances of the assault and how she came to eventually find and identify Mr. O’Keefe and make her complaint to the police.

There is no indication in the record or in the Judge’s decision that he relied on the friend’s identification of Mr. O’Keefe for the truth ofits contents. However, if he had done so, he could have been entitled to do so under the res gestae exception to the hearsay rule or theprincipled approach to the admissibility of hearsay evidence. [26] In this regard, I refer to R. v.

Shea, 2011 NSCA 107, 309 N.S.R. (2d) 349, leave to appeal to S.C.C. refused, 34870 (September20, 2012), wherein the Nova Scotia Court of Appeal concluded that the res gestae exception allowed for consideration of evidence givenin somewhat similar circumstances.

In Shea, the Court summarized the law respecting the admissibility and consideration ofcontemporaneously made statements for the truth of their contents in the following fashion: 64 A review of the case law shows that the key elements of this test are a statement that is spontaneously declared under shock orpressure sufficient to ensure the declaration’s reliability and remove any suspicion of concoction or fabrication, and made undercircumstances of relative contemporaneity to the traumatic event. [27] The friend’s identification of Mr.

O’Keefe may also have been considered for the truth of its contents on the principled approachto the reception of hearsay evidence, which is directed to admitting relevant and reliable evidence going to the truth-seeking function of acourt of which the court would otherwise be deprived (R. v. Smith, (SCC), [1992] 2 S.C.R. 915 and R. v. Khan, (SCC), [1990] 2 S.C.R. 531). The friend’s identification of Mr. O’Keefe had the hallmarks of trustworthiness and reliabilityand may have been able to meet the necessity criterion.

The Failure of the Judge to Consider the Totality Principle [28] The totality principle in sentencing evolved from the principles set out in sections 718.1 and 718.2 of the Criminal Code, whichrequire a sentence to be “proportionate to the gravity of the offence and the degree of responsibility of the offender” and “whereconsecutive offences are imposed, the combined sentence should not be unduly long or harsh.” [29] In R. v. Hutchings, 2012 NLCA 2, 316 Nfld. & P.E.I.R. 211, this Court described when the principle is engaged and how it is tobe applied.

The Court ruled that whenever a judge is sentencing an offender for more than one offence, he or she should first determinean appropriate sentence for each offence and then determine whether the respective sentences should be served concurrently orconsecutively. If the sentences are properly to be served consecutively, then the judge is required to take one last look at the totalsentence to determine whether it is unduly long or harsh, in the sense of it being disproportionate to the gravity of the offence and thedegree of responsibility of the offender.

In so doing, the judge must consider and balance a number of factors, and if indicated, adjustthe sentence in accordance with the Hutchings framework. (See also R. v. O’Quinn, 2017 NLCA 10.) [30] The Judge’s decision that the sentences he imposed be served consecutively because each offence was separate and distinct intime and place was appropriate and consistent with sentencing case law (see R. v. Crocker (1991), (NL CA), 93 Nfld.& P.E.I.R. 222, 292 A.P.R. 222 (NFCA) and Hutchings at paragraph 84). However, the Judge’s conclusion that Mr.

O’Keefe beimprisoned for a total of 60 months less time served was imposed without consideration or application of the totality principle, whichwas clearly engaged as Mr. O’Keefe’s sentencing involved more than one offence. Accordingly, the Judge erred in law. [31] In R. v. Lacasse 2015 SCC 64, [2015] 3 S.C.R. 1089 at para. 44 the Supreme Court of Canada stated that an appellate court canonly overturn a sentencing judge’s decision if the judge’s error affected the result.

In this case the Judge’s failure to consider the totalityprinciple affected the result. [32] Determining a fit sentence in a case of multiple offences involves considering, among other things, the normal level of sentencefor the most serious of the offences, the number and gravity of the offences, the offender’s criminal record, the effect of the totalsentence on the offender’s rehabilitation, and the relevant sentencing jurisprudence (Hutchings at paragraph 84). [33] In this case there were six offences, all perpetrated many years ago by a mature man on vulnerable pre-pubescent girls.

Theassaults involved touching the girls’ private parts, having them touch his, and his rubbing against them. There was no intercourse, but insome cases the girls were held captive and assaulted in circumstances which instilled great fear. The offences are all serious, but somewere more serious than others. A ten month sentence for any one of them cannot be said to be excessively high or otherwise unfit. [34] Mr. O’Keefe did not have a criminal record when he committed the offences in issue.

He was subsequently convicted of othersexual offences (indecent and harassing phone calls and sexual assault) in relation to different people at different times over his longadult life, but these later convictions can affect his sentence only insofar as they suggest that his prospects for rehabilitation are dim. [35] Mr. O’Keefe is now in his 74th year and in a supportive relationship. He recently served a prison term following his sexualassault conviction in 2013.

He was sentenced for the within offences in 2016. [36] The case law in this jurisdiction respecting offenders of advanced age appears to relate to the state of the offender’s health and itsrelationship to life expectancy and thus would not be a reason to reduce the sentence in Mr. O’Keefe’s case because there is no evidenceof declining health (R. v. O. (J.N.) (1993), (NL CA), 103 Nfld. & P.E.I.R. 256, 326 A.P.R. 256 (NFCA) at para. 13). More recently, however, the Supreme Court of Canada has acknowledged advanced age to be a legitimate sentencing consideration, asstated by Lamer C.J. in R. v.

M.(C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 74: However, in the process of determining a just and appropriate fixed-term sentence of imprisonment, the sentencing judge should bemindful of the age of the offender in applying the relevant principles of sentencing. After a certain point, the utilitarian and normativegoals of sentencing will eventually begin to exhaust themselves once a contemplated sentence starts to surpass any reasonable estimationof the offender’s remaining natural life span.

Accordingly, in exercising his or her specialized discretion under the Code, a sentencingjudge should generally refrain from imposing a fixed-term sentence which so greatly exceeds an offender’s expected remaining life spanthat the traditional goals of sentencing, even general deterrence and denunciation, have all but depleted their functional value.

But withthat consideration in mind, the governing principle remains the same: Canadian courts enjoy a broad discretion in imposing numericalsentences for single or multiple offences, subject only to the broad statutory parameters of the Code and the fundamental principle of ourcriminal law that global sentences be “just and appropriate”.

[ 37 ] Accordingly, advanced age can be a legitimate factor for consideration on sentencing an offender on the logical basis that his or her sentence could surpass any reasonable expectation of his or her natural life span. [ 38 ] In Mr. O’Keefe’s case his advanced age is only of minimal consideration.

This is because he was convicted in 2013 for the sexual assault of a very young child which was committed when he was already in his mid-sixties, thus favouring emphasis on the sentencing principles of denunciation, deterrence, and promoting a sense of responsibility in offenders and acknowledgement of the harm done rather than on rehabilitation and any humanitarian concerns associated with advanced age. [ 39 ] The offences in this case were serious and Mr. O’Keefe is wholly responsible for them. I note, however, that two of the three offences committed against B.W. were the least serious of all the offences.

Nevertheless, I am of the view that his sentence of 60 months is unduly long and harsh in the circumstances. [ 40 ] In applying the relevant factors including those set out in the Hutchings analysis as discussed above, an appropriate sentence would be 30 months.

I would therefore adjust the sentences as follows: Count 1, indecent assault of T.S. 10 months Count 2, indecent assault of B.W. 10 months consecutive Count 3, indecent assault of B.W. 10 months concurrent Count 4, indecent assault of B.W. 10 months concurrent Count 5, indecent assault of D.K. 10 months concurrent Count 6, indecent assault of T.N. 10 months consecutive DISPOSITION [ 41 ] In the result, the Judge did not err in convicting Mr. O’Keefe of sexually assaulting Ms. N. However, he did err in failing to consider and apply the totality principle in imposing sentence on Mr. O’Keefe. [ 42 ] Mr.

O’Keefe’s sentence is reduced to 30 months less time spent in pre-sentence custody in relation to the within offences. Appeal against conviction dismissed. Appeal against sentence allowed.