R. v. L.H., 2011 NLCA 4

Date: 20110107 Docket: 09/122 R. v. L.H. , 2011 NLCA 4

Section 486.4 of the Criminal Code respecting the non-publication of the identify of a complainant or of a witness and any information from which they might be identified applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : L.H. APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT AND Docket: 10/04 BETWEEN : HER MAJESTY THE QUEEN APPELLANT AND : L.H. RESPONDENT Coram: Wells, White and Hoegg, JJ.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division (Happy Valley – Goose Bay)

200808T0096 Appeal Heard: September 24, 2010 Judgment Rendered: January 7, 2011 Reasons for Judgment by White, J.A. Concurred in by Wells, J.A. Dissenting Reasons (in part) by Hoegg, J.A. Counsel for the Appellant: Derek Hogan Counsel for the Respondent: Stephen R.

Dawson White, J.A.: [1] The appellant (L.H.) seeks leave to appeal and, leave having been granted, appeals from a sentence imposed upon himfollowing his trial and conviction on three offences under the Criminal Code: (1) touching for a sexual purpose, a person under 14 years of age, contrary to s. 151 (sexual interference); (2) invitation to touch for a sexual purpose, a person under 14 years of age, contrary to s. 152 (invitation to sexual touching); and (3) sexual assault contrary to s. 271 (sexual assault).

The Crown elected to proceed by indictment in respect of all three offences. [2] The victim (S.H.), L.H.’s adopted daughter, was between the ages of 9 and 12 during the period September 1, 2004 andMarch 31, 2007 when the offences occurred. [3] The trial judge imposed a total sentence of four years imprisonment made up of three years for sexual assault, one year(consecutive to the three year sentence) for invitation to sexual touching, and, six months (concurrent to all other sentences) for sexualinterference. [4] L.H. was given credit on a one for one basis by the trial judge for the time he was detained in custody between convictionand sentencing (a period of 41 days). [5] This appeal deals with the fitness of sentence.

ISSUES [6] The issues in this appeal are: (1) did the trial judge misapprehend the evidence regarding the incidents of oral sex and touching; (2) did the trial judge err in crediting pre-sentence custody on a one for one basis; (3) if the answer to one or both of the above is “yes”, what is a fit sentence; and, on the cross-appeal: (4) did the trial judge err in imposing a 10 year Sex Offender Information Registration Act (SOIRA) order? [7] In considering issue (1), the Court is mindful that “[a]ppellate courts should not interfere with a trial court’s exercise ofdiscretion in sentencing except where there is an error in principle …” (see R. v.

R.G. 2003 NLCA 73 per Cameron J.A. at para. 3) and,with respect to issue (3), that “[o]ne function of appellate courts is to minimize disparity of sentences involving similar offences andsimilar offenders …” (see R. v. Stone, (SCC), [1999] 2 S.C.R. 290 per Bastarache J. at para. 244, and s. 718.2(

b) of theCriminal Code). [8] It is, then, for this Court, despite the repugnant nature of the offences for which L.H. has been convicted, to dispassionatelydetermine if there has been an error by the trial judge and, if so, to set aside the trial judge’s imposition and impose a sentence that isappropriate and consistent. ANALYSIS (

a) misapprehension of the evidence

[ 9 ] While arguing that the trial judge misapprehended material evidence, counsel for the appellant acknowledges that the facts he is prepared to accept are “abhorrent”. While frequency is disputed, it is conceded that L.H. molested his stepdaughter while she was between the ages of 9 and 12 years by petting her breasts and thighs and digitally penetrating her vagina. He invited her to rub lotion on his penis (which she did) and stroked her bare chest as she sat on his lap. He also performed oral sex on her. (

i) oral sex [ 10 ] The appellant argues that the trial judge’s finding that the appellant “often” performed oral sex on S.H. during a four year period is not supported by the evidence. [ 11 ] The trial judge, in his sentencing decision, stated: [6] The sexual abuse took a number of forms. Usually it took place at night when other family members were asleep or when S.H. was preparing to sleep. L.H. would enter her room, pull down S.H.’s pajama pants and place his hands between her legs and her genital area. He would penetrate her vagina with his fingers causing her to experience sharp pain.

L.H. would also, at the same time, engage in acts of oral sex on her, or as S.H. stated, “he licked me in the same place, my clitoris, my genital area.” This happened often according to S.H. and on the occasion that he did not engage in the licking of her vagina he would, “stick his finger up my vagina”, to use her own words. (Underlining added) [ 12 ] This finding, that the appellant “often” engaged in acts of oral sex on S.H., is one of fact. This Court can only overturn a trial judge’s finding of fact where it finds that it is clearly wrong, unsupported by the evidence or otherwise unreasonable.

The Court must satisfy itself that the trial judge made a palpable and overriding error. (See R. v. Clark , 2005 SCC 2 at para. 9 .) [ 13 ] A portion of the direct evidence of S.H. is as follows: Q. … Was it going on during the school year or can you remember or? A. Like it would be all throughout the school year and like yeah, through the school year and up to, up to grade seven. Q. Up to grade seven, so this was going on for a few years then? A. Yes. Q. When would this usually happen, or when I say when, what time in the day would these things happen? A.

In the night, either if, well my brother would be asleep, mom would usually either be traveling or asleep early. Q. So your mom travels or she used to travel I guess? A. She used to travel, she still does on occasion, for work she has to travel. Q. When you say travel, do you know where she would go or? A. Usually along the coast, sometimes she’d be gone for a couple of weeks back then. Q. Okay. So not just within town then? A. No not within town. Q. So usually your brother would be asleep. So where would you be? A. I would be in a separate room, in my own room. Q. Okay. And what would you be doing in the room?

A. I’d usually be reading and getting ready to go to sleep or I’d be lights out and almost asleep. Q. So can you describe for us what would happen or what you can remember happening? A. Well I remember one time when I was getting a bath before bed, he came in and he asked me if I knew like anything about sex or anything like that and he asked what different body parts were.

This was, I think, before it happened, but then after when, like in my actual bedroom I’m not sure if this was the same night or if it was different but at the time I remember I was reading a book and he came in and he, I’m not sure how it started, but he came in and he (witness starts to cry) and he started, he pulled down my pants and he started, he started rubbing me, like around, around me, like he started rubbing me in between my legs and, and, and I remembered he licked me and I was reading a book, I was afraid to look, but I did glance in a mirror, like I had a closet with a big mirror and he was, he was touching me and (witness sobbing).

Q. Let me ask you a couple of questions about that okay? A. Um-hm. Q. So was this after you were gone to bed? Is that what I think you were saying? A. Yeah, I was in bed and I was reading before I went to sleep. Q. Now you were saying that he pulled down your pants. Do you remember what kind of pants you were wearing? A. Pajama pants. Q. When you go to bed or when you did go to bed that night, did you normally wear pajamas? A. Yes. Q. What type of pajamas did you wear or did you wear different types or? A. I usually just wear like pajamas like pants and shirt. Q. Did you ever wear nightdresses? A.

I might have back then, but I can’t remember. Q. But you were wearing pants, you remember that? A. I’m pretty sure yes. Q. So you say he was touching you, you said that he licked you? A. Yes. Q. Where did he lick you? A. The same place, like I guess the clitoris, I suppose yes. Q. So he licked your genital area? A. Yes.

Q. Okay and how long did that last for? A. Ah…I’m not sure, like altogether or just? Q. Just this one that you’re telling me about? I know you can’t remember it’s been a long time. A. I’m not sure, it was long enough for me to think and be able to look in the mirror and see but I’m not sure exactly how long. Q. Do you know how long he would have been in the room with you? A. It seemed like a long time but I assumed like, it could have been 20 minutes, it could have been less but I’m not sure. Q. Was this the first time this happened or just one of the times you remember? A.

I’m not sure, I think it’s the first time but I’m not exactly sure. Q. [S.H.], how often, you told us this happened over a number of years, do you have any idea how many times it happened? A. In grade 4 it was fairly often and less so in grade 5 and even less so in grade 6 and then even less so, it barely happened in grade 7. Q. When you say fairly often, what does fairly often mean, like? A. Well, …. Q. …I’m not trying to put words in your mouth, are we talking a couple of times a week or couple times a month or? A. Not a couple of times, maybe I suppose at least once a month if mom was travelling. Q.

This night you were telling us about where the licking and what not happened, did anything else happen that evening or do you remember anything else? A. He, I’m not quite sure, I know, I’m not quite sure but this night if I felt anything but I remember on at least other nights when he would stick his finger up my vagina it would hurt some, I’m not sure if that was on that particular night but I know it happened on at least some, cause there was like this sharp pain. Q. Did you ever bleed or anything like that do you know? A. Not that I know of. (Witness crying). Q.

How often would that happen when he would stick his finger inside you? A. Most of the times he did it I think. (Transcript Vol. I, pp. 12-15) [ 14 ] The appellant argues that since his evidence acknowledges only one incident in which he kissed S.H.’s pubic bone, the trial judge’s finding that he “often” performed oral sex on S.H. cannot be a conclusion reasonably drawn from S.H.’s evidence. [ 15 ] The Crown argues that since S.H. is quite specific with respect to fondling under her clothes in saying “this happened only once” (Transcript Vol.

I, p. 18) and invitation to touch in saying “About like two or three times at most” (Transcript Vol. I, p. 23), the implication is that the other actions of the appellant (oral sex, digital penetration) were part of the continuous conduct which S.H. otherwise described in more general terms as occurring over four years. [ 16 ] S.H. is clear that digital penetration occurred more than once: Q. How often would that happen when he would stick his finger inside you? A. Most of the times he did it I think. (Transcript, Vol.

I, p. 15) [ 17 ] The evidence of S.H. relating to oral sex was interpreted by the trial judge as establishing that oral sex was a regular part of the sexual assaults, as was digital penetration. The appellant argues that the evidence of S.H. only points to one such incident and not to “often”. [ 18 ] S.H.’s description of the oral sex starts with her recollection of “one time when I was getting a bath before bed”. Further references throughout that portion of her evidence include: Q. When … you did go to bed that night , did you normally wear pajamas. A. Yes. … Q.

So you say he was touching you, you said but he licked you? A. Yes. … Q. Okay and how long did this last for? A. Ah … I’m not sure, like altogether or just? Q. Just this one you’re telling us about. (Underlining added) [ 19 ] Additional time specific references include “… he licked me and I was reading a book …” and “that evening” and “that particular night”. [ 20 ] As can be seen from the portions of the transcript set out, S.H. is at times talking about the assaults generally and at other times talking about one assault specifically.

While it is clear that she is referring to more than one incident of digital penetration, she does not appear to refer to more than one incident of oral sex. In fact, S.H. appears to carefully avoid generalized statements in reference to oral sex, employing specific temporal and contextual descriptors to that incident. [ 21 ] Two provisions of the Criminal Code are particularly relevant to this issue. First, s. 718.2(

a) establishes as a principle of sentencing that “a sentence should be increased … to account for any relevant aggravating … circumstances relating to the offence or the offender …”. Second, s. 724(3)(

e) provides that “the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact”. Thus, in order to increase the sentence imposed on L.H., because oral sex occurred often over four years, that conclusion must be proven beyond a reasonable doubt.

[ 22 ] In light of the appellant’s acknowledgement of one incident only, and S.H.’s responses to questions which appear to restrict the occurrence of oral sex to one occasion it is an unreasonable

interpretation of S.H.’s evidence to infer that oral sex happened “often” during a four year period. That finding is not supported by the evidence and cannot reasonably be inferred. In particular, it cannot be relied upon to meet the requirements of s. 724(3)(e). [ 23 ] With respect, I must conclude that the trial judge erred in that he misapprehended the evidence in finding that oral sex occurred often.

The evidence is not sufficient to establish this conclusion beyond a reasonable doubt, the standard that must be met if the conclusion is to be considered an aggravating factor. (ii) invitation to sexual touching [ 24 ] The trial judge, in relation to the charge of touching for a sexual purpose, stated: [68] In relation to

section 152 of the Criminal Code for the offence of inviting S.H., a person under the age of fourteen, to touch the body of L.H. for a sexual purpose, and in consideration that these events continued over a period of four years on a decreasing scale of frequency and that these touchings were independent of the sexual assault under section 271(1) above, … (Underlining added.) [ 25 ] In describing sexual touching (where L.H. asked S.H. to rub lotion on his penis), S.H. stated that the frequency of such incidents was: “About like two or three at the most” (Transcript Vol.

I, p. 23) [ 26 ] The trial judge in his review of the facts before him stated: [9] … on two or three occasions L.H. instructed S.H. to rub lotion over his entire body including his penis and genitals.

He specifically instructed S.H. to pull back the foreskin and rub the head of his penis … [ 27 ] The Crown conceded that it was incorrect for the trial judge to describe these incidents as continuous contact (Respondent’s Factum, para. 35) as the evidence (according to S.H. there were at most three incidents) does not support a finding that such behaviour continued over a period of four years. [ 28 ] Counsel for the appellant submits that since the appellant is to receive the benefit of any reasonable doubt about an aggravating fact, the maximum number of incidents should be considered as two. [ 29 ] While the appellant is correct that the frequency of these incidents constitutes an aggravating fact and, as outlined above, aggravating facts must be proved beyond a reasonable doubt, it was open to the trial judge to make a factual finding with respect to how frequently these incidents occurred in light of the evidence presented at trial.

In both, his decision on conviction and in setting out the facts in his sentencing decision the trial judge noted that L.H. invited S.H. to touch his penis on two or three occasions. However, in determining the appropriate sentence, the trial judge observed that “these elements continued over a period of four years on a decreasing scale of frequency …”.

The trial judge’s characterization of these incidents in that manner is clearly unreasonable and constitutes a palpable error. [ 30 ] With respect to the appellant’s argument that the trial judge could only reasonably have concluded that this occurred on two occasions, as opposed to three, it will be evident from the reasons below that, even if the appellant is correct in this assertion, the fact that only two incidents were involved would not render the one year sentence the trial judge imposed for this offence unfit.

For this reason, notwithstanding that the mischaracterization may be a palpable error, I am not persuaded that it is overriding. (

b) credit for pre-sentence custody [ 31 ] The trial judge considered the issue of appropriate credit for pre-sentence custody: [70] In relation to the time served, L.H. will be credited with the time he has already been in custody. However, since that time in custody was following conviction and not pre-conviction remand, L.H. will receive credit on a one-to-one basis …. [ 32 ] The trial judge calculated the period to be 35 days.

It was in fact 41 days (November 5 to December 15). [ 33 ] Other than the statement in para 70 of his sentencing decision, there is no other analysis of the trial judge’s basis for denying a greater than one for one credit for pre-sentence custody. Clearly, the basis relied on was that the time in custody was “following conviction”. [ 34 ] In a recent decision of this Court, Mercer J.A. stated that “it has long been the practice across Canada generally to give credit of double time for pre-sentence custody …”.

While the amount of credit is a discretionary matter, discretion “must be exercised on a principled basis” (see R. v. Leyte , 2010 NLCA 8 at paras. 7-9 ). [ 35 ] As with pre-conviction time on remand, double credit for time in custody awaiting sentence was generally given on the basis that such custody is hard time with no access to programs.

While the extent of such credit remains discretionary, the practice of granting double credit for pre-sentence custody had become so pervasive that it would result in inconsistent treatment of similar offenders not to grant such credit absent a principled basis for refusing to do so. It is necessary, therefore, to determine if the discretion to deny extra credit has been exercised on a principled basis. [ 36 ] The only basis for the trial judge’s denial of extra credit here is that the time served was post conviction – the operative principle invoked to deny extra credit being the conviction itself.

No other matters are considered by the trial judge. [ 37 ] The rationale for the two for one practice was described in R. v. Wust , 2000 SCC 18 . As explained by Arbour, J. at paragraph 45 of that decision, it is twofold: 1) the remission calculations pursuant to the Corrections & Conditional Release Act remain

unavailable to an offender until after sentence; and 2) remand time may be “hard” time due to the absence of educational andrehabilitative programs. This Court also recognized the two for one practice in R. v. Cooper (1997), (NL CA), 153Nfld. & P.E.I.R. 106 (Nfld. C.A.). Of note, Cooper involved an accused who had spent 18 months in pre-sentence custody afterpleading guilty. [38] In this case, the trial judge distinguished between pre-conviction custody and pre-sentence custody.

The logical inference fromhis distinction is that time served post-conviction yet pre-sentence is no different than time served post-sentence. The question,therefore, is whether this is a principled basis upon which the trial judge is able to exercise his discretion to depart from what was theusual practice until the recent relevant amendments to the Criminal Code. [39] An accused is presumed innocent until found guilty. When an accused is held in pre-trial custody, he has lost his libertydespite his right to be presumed innocent.

After conviction for serious sexual assault, the loss of an accused’s liberty is to be expected. Additional credit for loss of liberty would not therefore appear to be justified. However, the difference between post-conviction but pre-sentence custody and post-sentence custody is that the offender is serving time on remand. [40] The two reasons for crediting custodial time on a two for one basis referred to in paragraph 37 are just as applicable when anoffender serves remand time after conviction but before sentence as they are when an offender serves remand time pre-conviction.

Accordingly, the trial judge’s reasons for denying two for one credit cannot form a principled basis for denying the usual two for onecredit. To this extent, the trial judge erred. [41] In Leyte, the exercise of discretion by the trial judge in denying extra credit was upheld on the basis that the trial judgeconsidered the effect of the accused’s misleading statements to police, which necessitated further investigation and delay, on the lengthof custody.

The likelihood that the accused would not benefit from rehabilitation programs (had such been available while on remand)was also considered. [42] In other cases the exercise of discretion to deny extra credit has been based on clear reasons establishing a judicially determinedprincipled basis. (See, for example, R. v. Jesso, 2008 NLTD 36, where numerous actions of the accused delayed the start of the trial; R.v. Provost, 2006 NLCA 30, where the offender committed the same type of offence while on bail for the first offence; and, R. v.

Sooch,2008 ABCA 186, where an accused did not apply for bail.) [43] The mere statement by the trial judge that there is to be no extra credit simply because the time on remand was post convictionprovides no information this Court can consider to determine if his discretion was exercised on a principled basis. Consideration ofwhether or not to grant extra credit for pre-sentence custody has not historically been made on the basis of considering the time onremand only up to the date of conviction.

The time served is generally referred to as pre-sentence remand. [44] I cannot find that a conviction, in and of itself, is a principled basis to decline any consideration as to whether there ought to begreater than one for one credit for time on remand between conviction and sentence. Since, I cannot find a principled basis, or anyreason, clear or implicit (as in Leyte), for denying the longstanding practice of double credit, I would grant two for one credit for the 41days on remand. (

c) what is a fit sentence? [45] Chief Justice Lamer stated in R. v.

M.(C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 90: Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis on the appropriate factors, a court ofappeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. [46] In this case the trial judge misapprehended the evidence relating to an aggravating factor, the frequency of oral sex, andmischaracterized the extent of the invitation to sexual touching. [47] On the charge of sexual assault the trial judge imposed a sentence of three years incarceration.

He made an error in findingthat oral sex occurred often. There is no evidence establishing beyond a reasonable doubt that it occurred more than one time. [48] On the charge of invitation to sexual touching the trial judge imposed a sentence of one year incarceration. He erred in findingthat a maximum of three such incidents amounted to continuous behaviour over four years on a decreasing scale of frequency. [49] Frequency of incidents (be they assaults or touchings) are appropriately considered aggravating factors in arriving at a fitsentence.

This being so, where frequency is a significant factor and the trial judge misapprehends evidence of frequency, the trial judgehas committed a reversible error. [50] That is the case here where the trial judge clearly misapprehended or mischaracterized the evidence relating to the aggravatingfactors. Accordingly, the sentences imposed must be set aside and sentences that are fit in all the circumstances must be imposed. [51] The trial judge imposed a sentence of three years incarceration for sexual assault.

The assaults took place in four calendaryears (but involved an elapsed period of just over 2 l/2 years) during the time S.H. was between the ages of 9 and 12, and involved, asstated by the trial judge, “varying degrees of sexual contact”. [52] All of the sexual contact imposed by L.H. on S.H., his adopted child, during years when she was dependent on him as herfather, are reprehensible.

While L.H. attempted to minimize some of his actions based on the family’s lifestyle (casual nudity and fullbody massages), that does not provide an excuse acceptable to society for the actions the trial judge found that L.H. directed towards hisadopted child. [53] The Crown argued that the finding of the trial judge that oral sex occurred continuously was amply supported by the evidence. As indicated above, this submission must be rejected. The evidence does not prove this beyond a reasonable doubt. In his factum,

counsel for the Crown states that the trial judge’s finding that continuous acts of oral sex occurred increased the seriousness of theoffences. [54] As to the sentence for invitation to sexual touching, the trial judge’s mischaracterization of frequency is difficult to understandin light of his accurately noting that there were “two or three” incidents. The only issue is whether such incidents occurred two times orthree times.

I conclude that the distinction between whether there were two incidents of causing a daughter, while a child, to rub lotionon a father’s penis (for a sexual purpose), or three such incidents is insignificant. [55] The Crown, in referring to a number of cases where sentences for similar offences were lower also noted that there is thesignificant distinction in those cases that the accused pleaded guilty. [56] In sentencing, this is a mitigating factor, but failure to plead guilty is not an aggravating factor. [57] The Crown referred to the accused as “an intelligent individual who … violated his young daughter for his own sexualgratification for a lengthy period ….

His level of moral blameworthiness is at its highest” (Respondent’s factum, para. 58). The Crownsubmitted that the overall sentence of four years is just. [58] The cases put forward by the Crown do not, however, fully support the sentence imposed by the trial judge. The Crown cites: - R. v. N.E.A. (2008), 275 Nfld. & P.E.I.R. 356 (Nfld. Prov. Ct.), where there was similar conduct to the present case. The victimwas between 8 and 10 years old. The offences occurred frequently over a two year period. The offender was the child’s grandfather. The incidents involved oral sex and digital penetration.

The offender pleaded guilty. A two year sentence was imposed. - R. v. R.(M.J.), 2004 Carswell Nfld. 438 (Prov. Ct.), where a father was convicted for repeated acts of oral sex upon his daughterwhen she was in the age range of 7 to 9 years old. The court imposed nine months for each of three specific acts of oral sex (for a total of27 months) and 2 years to run concurrently for other oral sex acts included in one count. The accused pleaded guilty. - R. v.

J.R. (1997), (NL CA), 157 Nfld. & P.E.I.R. 246 (NLCA), the sentence imposed for one act of sexualassault (sexual intercourse) where pregnancy resulted was increased by this Court from fifteen months to three years. The offender wasthe victim’s father. She was thirteen years old at the time of the assault. [59] In R. v. J.R., Cameron J.A. stated at para. 11: [11] So then, while in theory the appropriate range for sentencing for a sexual assault may be from suspended sentence to 10 years,the range which is appropriate for any particular sexual assault must depend upon the nature of the assault itself.

Surely, no one wouldsuggest that the range of sentence appropriate for rape is the same as the range appropriate for touching of a woman’s breast outside herclothing, yet both acts are charged as sexual assault. Further, both acts must be examined in light of aggravating or mitigatingcircumstances. [60] Counsel for the appellant refers to the trial judge’s reliance on R. v. C.T., 2008 NLTD 112, where Goulding J. imposed asentence of 4 years imprisonment. In distinguishing this case, and suggesting that the factors in R. v.

C.T are more aggravating than inthe present case, counsel notes that there were two complainants, one of whom was younger than S.H., one incident of simulatedintercourse, and between 150-300 incidents involving the younger complainant “involving oral sex, digital penetration, forcedmasturbation of the offender to ejaculation and at least two incidents involving attempted intercourse”. The complainants were assaultedby their stepfather once or twice a week over three years.

Both children were very young when the assaults commenced, the youngestbeing 3 years old. [61] Counsel for the appellant cited several other cases involving sexual assault and sexual exploitation of a young person. Thesentences range from a nine month conditional sentence to 2 years less a day. (See R. v. S.L.C., 2009 NLTD 66; R. v. D.S. (1995), (NL SC), 127 Nfld. & P.E.I.R. 176 (Nfld. SCTD); and, R. v. E.P.B. (2003), (NL SC), 222 Nfld. &P.E.I.R. 281 (NLTD)). [62] Counsel particularly relied on R. v.

E.J.K. (2002), (NL SC), 211 Nfld. & P.E.I.R. 239 (NLTD) where theoffender was convicted at trial of sexual interference, sexual assault and invitation to sexual touching, all against his step-daughter whenshe was nine to twelve years old. In that case, the sexual interference involved numerous incidents of touching the complainant’s breastsand vagina, and, on one occasion, digital penetration; and once the offender “smacked her face with an open hand”. In sexuallyassaulting the complainant, that offender entered the shower naked, pinned the complainant in a corner, and fondled and digitallypenetrated her vagina.

He also punched her in the head. The invitation to sexual touching consisted of incidents where “the accusedwould be naked and would place the complainant’s hand on his penis and move it up and down”. The offender had one conviction forimpaired driving and one for assault. [63] In R. v. E.J.K. the total period of incarceration imposed was 18 months. Notably, the accused did not plead guilty and had acriminal record. [64] In

summary, the Crown argues that a total sentence of 4 years is appropriate and should be upheld. The appellant says that 15months for the sexual assault, and 3 months consecutive for invitation to sexual touching (for a total of 18 months incarceration) is a fitsentence. [65] Counsel for the appellant states that the trial judge did not misapprehend the evidence with respect to the offence of sexualinterference and that the sentence is not demonstrably unfit. He argues the 6 month sentence imposed by the trial judge should remainconcurrent. [66] As noted by Cameron J.A. in R. v. J.R., “[the acts] must be examined in the light of aggravating or mitigating circumstances”.

[ 67 ] The approach of the trial judge was to impose a sentence based on the nature and frequency of the assaults – he clearly saw these factors as aggravating. It can be reasonably inferred that his misapprehension of frequency of oral sex led him to impose a higher sentence than he otherwise would have. [ 68 ] The nature and frequency of sexual assault are considered in the case law with the nature ranging from minor to sexual intercourse as the most aggravating factor in determining sentence. [ 69 ] In R. v.

R.W.B. , 2000 NFCA 13 , Cameron J.A. stated that “… the range of sentence for incest or sexual assault involving intercourse by a step-parent … in this province, is generally from 3 to 7 years”. [ 70 ] There are a number of other cases decided by this Court involving multiple sexual assaults on minors. The sentences range from 28 months to 48 months incarceration. All involve sexual intercourse and some involve multiple victims (see R. v. E.W. , 2002 NFCA 49 ; R. v. A.T.S. , 2004 NLCA 1 ; R. v.

J.J.M.H. , 2009 NLCA 27 ). [ 71 ] The case law does not support the overall sentence of 4 years imposed in the case on appeal. [ 72 ] The aggravating factors which remain are the time span over which the sexual assaults (some of which involved digital penetration) took place and the breach of father-daughter trust. [ 73 ] The mitigating factors are that L.H. has no criminal record and has better than average prospects. [ 74 ] Considering the case law and the aggravating and mitigating factors I would impose the following sentences: Sexual assault: (2 years – reduced from 3 years); Invitation to sexual touching: (1 year consecutive – same as trial judge) Touching for a sexual purpose: (6 months concurrent – same as trial judge) [ 75 ] The overall custodial sentence is, then, 3 years incarceration reduced by 82 days credit for pre-sentence custody.

This is a significant custodial sentence and sufficient to meet the objectives of s. 718.01 of the Criminal Code which mandates that primary consideration be given to denunciation and deterrence where the abuse involves a person under the age of eighteen years. It also fulfils the requirement of s. 718.2(

c) that, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. [ 76 ] I note that regardless of the disposition of the issue of misapprehension of the evidence relating to the frequency of oral sex, the case law, where there is no sexual intercourse, does not support a sentence of 3 years for sexual assault. CONCLUSION [ 77 ] Leave to appeal is granted. I would set aside the sentence of 3 years for sexual assault and impose a sentence of 2 years.

I would affirm the sentences for invitation to sexual touching of 1 year (consecutive to the sentence for sexual assault) and the concurrent sentence of 6 months for sexual interference. The overall sentence should be reduced by 82 days credit for pre-sentence custody. CROSS-APPEAL [ 78 ] The trial judge made an order pursuant to the Sex Offender Information Registration Act (SOIRA) effective for a period of 10 years.

The Crown cross appealed on the basis that the applicable time period for the SOIRA order is 20 years as the Criminal Code requires that such order be for 20 years where, as here, the maximum term of imprisonment for the offence is 10 years or 14 years. Counsel for the appellant agreed. Accordingly the order of the trial judge for 10 years pursuant to SOIRA is replaced with an order for 20 years. _______________________ C.W. White, J.A. I concur: _____________________ C.K. Wells, J.A. Hoegg, J.A.: [ 79 ] I have had the benefit of reading my colleague White’s judgment in this case.

I am unable to agree with part of it. That

part is the reduction of the offender’s sentence for sexual assault from three years to two years. [ 80 ] As stated above, the Appellant appeals his sentence of four years, comprised of three years for sexual assault, one year consecutive for invitation to sexual touching and six months concurrent for sexual interference. THE LAW [ 81 ] I begin by setting out the role of an appellate court on a sentence appeal. Former Chief Justice Lamer put it succinctly in R. v. M.( C.A. ) at paragraph 90 :

Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court ofappeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. In the next following paragraph the learned Chief Justice explained the rationale for the deferential standard, noting that trial judges areadvantageously positioned to determine sentence: This deferential standard of review has profound functional justifications.

As Iacobucci J. explained in Shropshire, at para. 46, where thesentencing judge has had the benefit of presiding over the trial of the offender, he or she will have had the comparative advantage ofhaving seen and heard the witnesses to the crime. But in the absence of a full trial, where the offender has pleaded guilty to an offenceand the sentencing judge has only enjoyed the benefit of oral and written sentencing submissions (as was the case in both Shropshire andthis instance), the argument in favour of deference remains compelling.

A sentencing judge still enjoys a position of advantage over anappellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge alsopossesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. … He continued at paragraph 92: Appellate courts, of course, serve an important function in reviewing and minimizing the disparity of sentences imposed by sentencingjudges for similar offenders and similar offences committed throughout Canada. See, e.g., R. v.

Knife (1982), (SKKB), 16 Sask. R. 40 (C.A.), at p. 43; R. v. Wood (1979), 21 Crim. L.Q. 423 (Ont. C.A.), at p. 424; R. v. Mellstrom (1975), (AB CA), 22 C.C.C. (2d) 472 (Alta. C.A.), at p. 485; R. v. Morrissette (1970), (SK CA), 1 C.C.C. (2d) 307(Sask. C.A.), at pp. 311-12; R. v. Baldhead, (SK CA), [1966] 4 C.C.C. 183 (Sask. C.A.), at p. 187. But in exercisingthis role, courts of appeal must still exercise a margin of deference before intervening in the specialized discretion that Parliament hasexplicitly vested in sentencing judges.

It has been repeatedly stressed that there is no such thing as a uniform sentence for a particularcrime. See Mellstrom, Morrissette and Baldhead. Sentencing is an inherently individualized process, and the search for a singleappropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

As well,sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, asthe "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particularcommunity where the crime occurred.

For these reasons, consistent with the general standard of review we articulated in Shropshire, Ibelieve that a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judgeis in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes. I also note the statement of Iacobucci, J. at paragraph 46 of R. v.

Shropshire, (SCC), [1995] 4 S.C.R. 227: “Theformulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of thewitnesses whereas the appellate court can only base itself upon the written record.” [82] In R. v. Oates, 2004 NLCA 6 this Court applied the above stated principles. In Oates, Wells, C.J. (as he then was), alsoquoted the following from R. v. Brewer (P.J.) (1999), (NL CA), 182 Nfld. & P.E.I.R. 14, (Nfld.

C.A.): [22] It is clear therefore that in discharging its duty, mandated by Parliament under s. 687, a court of appeal does not have unfettereddiscretion to substitute the sentence it considers fit for that determined by the trial judge. The principles identified above clearlycircumscribe the manner in which, and the extent to which, this court can intervene and vary the sentence on the basis of its view offitness. See as well R. v. Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206. [83] Also relevant to this appeal is the law governing an appellate court’s review of a trial court’s findings of fact.

In Clark, theCourt stated at paragraph 9: “Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by thetrial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, beplainly identified.

And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendiousexpression of this well-established norm …” THE APPEAL [84] The Appellant alleges that the trial judge misapprehended the evidence supporting the sexual assault sentence by overstatingthe frequency of oral sex.

The trial judge stated in his sentencing decision that the Appellant sexually assaulted his daughter by lickingher genitals often, when the evidence, in the Appellant’s view, supports sexual assault by oral sex on one occasion only. [85] My colleague White has set out the relevant part of the complainant’s transcribed evidence in his paragraph 13.

In thisevidence the complainant provided detail with respect to one incident of oral sex, but then when asked how long that lasted, sheanswered with “altogether or just …” and then when asked whether the description she gave was of the first time it happened or just oneof the times she remembered, she said she wasn’t sure, she thought it was the first time but she wasn’t exactly sure. The complainantthen said in answer to a question as to how many times it happened: “in grade four it was fairly often and less so in grade five and evenless so in grade six and then even less so, it happened barely in grade seven”.

On this testimony, I conclude that there is no basis forsaying that a reasonable trier of fact could not have come to the conclusion that oral sex happened often. Therefore, there is no basis fordisturbing the trial judge’s finding in this regard. Accordingly, I see no overemphasis of the frequency of oral sex or misapprehension ofthe evidence by the trial judge. In my view his factual finding that oral sex happened often is well supported by the evidence. [86] Even if the complainant’s evidence could be said to be imprecise, such imprecision would not justify this Court’s intervention.

It is not for an appellate court in considering the correctness of a judge’s findings of fact to reconsider the complainant’s evidence on thebasis of a written transcript on a standard of beyond a reasonable doubt. This standard of proof is to be applied by the trial judge, whosees and hears the evidence. In this case, the trial judge saw and heard the testimony of the complainant, as well as that of the offenderwhose evidence he clearly rejected.

In order for this Court to overturn the trial judge’s finding that the oral sex happened often, thefinding must be plainly seen to be clearly wrong, or otherwise unreasonable, as Clark makes abundantly clear. In my view it cannotreasonably be said that the trial judge’s finding of frequency of oral sex is plainly seen to be clearly wrong or otherwise unreasonable.

[ 87 ] Furthermore, even if the trial judge could be said to have erred in overstating the frequency of oral sex, overemphasis of this evidence did not affect the sentence imposed. Oral sex was only one part of the evidence on which the trial judge relied in sentencing the Appellant. The other evidence of serious sexual assault was that the Appellant digitally penetrated his daughter regularly and often during the period of years set out in the Indictment. The complainant testified that the sexual assaults happened “at least once a month when mom was traveling”.

Counsel for the Appellant acknowledged that the assaults involving digital penetration happened often. [ 88 ] Oral sex performed on a child and digital penetration of a female child are each forms of serious sexual assault. I see no distinction between them in terms of gravity. The evidence is that this father sexually assaulted his daughter regularly and often over a period of two to three years. Whether he performed oral sex on her or digitally penetrated her on any of these frequent occasions was his choice. In other words, the particular form the assaults took at any given time was at the abuser’s pleasure.

The evidence does not show that the assaults involving oral sex were materially different or in addition to the assaults involving digital penetration. The sentence was not determined by adding a sentence for the oral sex assaults to another sentence for the assaults involving digital penetration so as to total a three year sentence. Nor did the judge identify the frequency of the oral sex, as distinct from the digital penetration, as an aggravating factor on sentence.

The trial judge’s three year sentence was based on the totality of the evidence of frequent and serious sexual assaults perpetrated by a father on his young daughter over a period of two to three years. Accordingly, even if the trial judge did misapprehend the frequency of oral sex, which I do not see, the overall frequency and seriousness of the sexual assaults is not diminished. It remains exactly the same. In these circumstances the alleged misapprehension, even if established, has no rational connection to the three year sentence and cannot be said or be shown to have affected it.

Accordingly, it would not be one which would justify interference by this Court. (See Clark .) [ 89 ] There being no error in the trial judge’s assessment of the evidence, this Court can only interfere if that sentence is demonstrably unfit. Is the three year sentence in this case demonstrably unfit?

What is the range of sentence for this type of offence against which a substantial and marked departure can be assessed? [ 90 ] One constant in sentencing for sexual assault offences which has been repeatedly stated by this Court is that the range of sentence for serious sexual assaults involving intercourse is from three to seven years. (See R. v. A.T.S. ) The range for serious sexual assault just short of intercourse is not so easily stated, perhaps understandably. In this regard, I refer to the following comments of the British Columbia Court of Appeal in R. v.

Bernier , 2003 BCCA 134 at paragraph 74 : [74] This system of establishing ranges is imperfect… They are guidelines, not rules. They are not, nor could they be, mandatory minimum and maximum sentences which demand compliance by trial judges. [ 91 ] As well, I rely on the comments of this Court made in R. v. Oxford 2010 NLCA 45 , at paragraph 75 : [75] It must be remembered that notions of proportionality and determinations of appropriate ranges of sentence are protean concepts. In R. v.

Nasogaluak , 2010 SCC 6 LeBel J. made the following comments about the sentencing process: [43] The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender.

The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case… [44] The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code .

But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range so long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit.

Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. [ 92 ] In underscoring that sentencing is a highly individualized exercise of a judge’s discretion, I also rely on the words of former Chief Justice Lamer in R. v. M.( C.A. ) , “there is no such thing as a uniform sentence for a particular crime”. [ 93 ] This Court was provided with a number of authorities showing the sentences for serious sexual assault not involving intercourse in the one-to-two-plus-year range, like R. v.

R.(M.J.) , where the offender, after pleading guilty, was sentenced to 27 months for the serious sexual assault on his young daughter and R. v. E.J.K. where the offender was sentenced, after trial, to 18 months for offences similar to those at issue in this case. There are also cases of serious sexual assault short of intercourse which have garnered higher sentences, like R. v. C.T. , in which the offender, after pleading guilty, was sentenced to four years for the frequent, long-time and serious sexual abuse of two stepchildren.

Many of the other cases referred to involved offenders pleading guilty, which is a well recognized mitigating factor in sentencing. All things considered, the range can be legitimately said to be from months to four years. [ 94 ] The trial judge’s decision reveals he convicted the Appellant after careful consideration of the trial evidence on the correct standard – that of beyond a reasonable doubt. He concluded that the conduct of the Appellant was particularly abhorrent.

In convicting, he rejected the Appellant’s attempt to justify his digital penetration of his daughter (the Appellant said he was checking to see if she had been abused) and also rejected the Appellant’s evidence that his daughter may have misinterpreted her father’s kissing of her “Chakra points” (one of which is her pubic bone) as unsuccessful in convincing him the Appellant’s behaviour was not intentional. [ 95 ] It is clear from the trial judge’s sentencing decision that he considered the Appellant’s conduct grave, and also that denunciation and deterrence were relevant factors to be considered.

While a three year sentence may be at the high end of the range of sentence for serious sexual assault short of intercourse, the facts and circumstances of this case, in my view, are also at the high end. As stated in Bernier at paragraph 42 : [42] A “range” does not preclude on grounds of deterrence or denunciation or the gravity of the particular offence a sentence different from that “range”. Nor does a “range” preclude a lesser sentence if some special circumstances warrant such a course …

[ 96 ] Again, these assaults were of a very serious nature and considerable frequency over a period of two to three years. They were committed by a father against his daughter when she was between nine and twelve years of age, exploiting a relationship of high trust. The Appellant, having had a preliminary inquiry, was convicted after a full trial before a Supreme Court Justice. There was no pre- sentence report. There is no indication of remorse.

In my view, this three year sentence cannot be said to be demonstrably unfit. [ 97 ] With respect to the one year consecutive sentence for invitation to sexual touching, I agree with my colleague White that this is a fit sentence on the facts of this case despite the trial judge’s overstatement of the frequency of the acts of sexual touching. [ 98 ] I also agree with my colleague White with respect to credit for pre-sentence custody. [ 99 ] I am in agreement with my colleague White’s decision respecting the Crown’s cross-appeal. _______________________ L.R. Hoegg, J.A.