R. v. R.J.H., 2012 NLCA 52

Date: 20120808 Docket: 12/09 & 12/13 Citation: R. v. R.J.H. , 2012 NLCA 52

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 : R.J.H. APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, Rowe and White JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, Trial Division (General Division), Happy Valley-Goose Bay, 201008T0022 Appeal Heard: June 28, 2012 Judgment Rendered: August 8, 2012 Reasons for Judgment by Welsh J.A. Concurred in by Rowe and White JJ.A. Counsel for the Appellant: Michael Ralph

Counsel for the Respondent: Sheldon Steeves Welsh J.A.: [1] R.J.H. was convicted of sexual assault against two girls, one eleven years old and the other thirteen, and four breaches ofprobation. His appeal against conviction was dismissed in a separate judgment (2012 NLCA 44). This decision deals with the Crown’scross-appeal against the sentence of twelve months imposed for the assault against the thirteen year old.

At issue is the trial judge’sconsideration of R.J.H.’s rehabilitation prospects, the use of conditions on judicial interim release pending trial as a mitigating factor insentencing, and the trial judge’s failure to consider “grooming” as an aggravating factor. BACKGROUND [2] The factual background is set out in the decision dismissing the appeal against conviction: [2] In 2009, the appellant was 32 years old. K.M. was 13. A.D. was 11. R.J.H. knew K.M. from her birth. A.D. was a friend ofK.M. and came to know R.J.H. via K.M.

R.J.H. communicated with K.M. and A.D. via a “chat” computer application. [3] K.M. testified that in his truck R.J.H. asked her to have sex with him. She testified that she told him no, but he pulled down herpants and panties, and (to quote the trial judge) “tried to put his penis in her vagina, but was not successful”. He drove her home. Shetestified that she was scared. She reported the incident to police a month later.

R.J.H. acknowledged that K.M. had been in the truckwith him, but denied the sexual assault. [4] A.D. testified that in his truck R.J.H. had (in the trial judge’s words) “picked her up and put her on his lap while he was asking herto have sex … He asked her more than once. She kept saying “no”. He did not touch her other than her legs”. While this washappening, K.M. was driving the truck; her evidence supported A.D.’s testimony.

R.J.H. denied the assault. [3] R.J.H. was sentenced to twelve months imprisonment for the sexual assault against K.M., one month (thirty days) for thesexual assault against A.D., and one month (thirty days) for the first breach of probation, to be served consecutively for a total offourteen months.

He was also sentenced to one month imprisonment, to be served concurrently, for each of the three remaining breachesof probation, to be followed by probation for twenty-four months. [4] On appeal, the Crown submits that the trial judge erred in imposing a sentence of twelve months imprisonment for the sexualassault against K.M., and requests a sentence in the range of thirty to thirty-six months. R.J.H. submits that the twelve month sentencewas excessive and should be reduced, or, at least, the trial judge should have ordered that the sentence be served conditionally.

The onemonth sentences imposed for the sexual assault against A.D. and for breach of probation are not in issue. ISSUES [5] At issue in the Crown’s appeal against sentence is whether the trial judge erred in: (1) taking R.J.H.’s time on judicial interimrelease into account as a mitigating factor; (2) overemphasizing R.J.H.’s rehabilitation prospects; and (3) minimizing the offence,particularly by failing to take into account the presence of “grooming” of the complainants.

ANALYSIS Conditions of Release Pending Trial [6] The trial judge concluded that the “conditions under which [R.J.H.] was released pending disposition of these matters wereakin to house arrest” (2012 NLTD(G) 12, at paragraph 44). He explained: [45] [R.J.H.] was required to live with his parents and not be outside of their residence between 10:00 pm and 7:00 am daily; this hesaid, prevented him from forging normal relationships.

He could not even go to his parents’ cabin with them on a weekend. [46] [R.J.H.] was not permitted to be in a room with a person under the age of 16 unless one of his parents was with him; this meantthat he could not, for example, go to a corner store without first looking in the window to see who was there. The police interpreted thiscondition to mean that he could not go to the hospital without one of his parents while he was undergoing investigations for the cancerfor which he was eventually diagnosed.

This, he maintains, was an infringement of his entitlement to privacy. [47] [R.J.H.’s] initial release conditions forbade him from any use of a computer; upon application by him this was quickly amendedto permit him to use one, but only for job hunting and to complete an on-line course. [48] [R.J.H’s] release conditions were changed a second time to permit him to travel for medical treatments. [49] [R.J.H.] testified that he was offered a job by a contractor to a regional telecommunications firm but had to turn it down becauseof his release conditions.

No proof of this job offer was adduced and it was not explained why [R.J.H.] did not apply for modification ofhis conditions to accommodate the position as he had done with respect to the computer use and travel for medical treatments. [7] The circumstances in which time on judicial interim release will be given effect as a mitigating factor in sentencing arelimited. In R. v. Downes (2006), (ON CA), 205 C.C.C. (3d) 488 (ONCA), the Ontario Court of Appeal accepted thatvery restrictive conditions of house arrest imposed on Mr. Downes pending trial could be considered as a mitigating factor in hissentencing.

Subsequently, that Court cautioned that Downes must be considered in context (R. v. Ijam, 2007 ONCA 597, 226 C.C.C. (3d)376). MacPherson J.A., for the majority in Ijam, drew a distinction between the curfew imposed in Ijam and the very restrictive housearrest imposed in Downes. He also emphasized the difference between release pending trial, which permits the accused a large measureof liberty, and remittal of the accused on remand which, being imprisonment, amounts to “a profound loss of liberty” (paragraph 36). Insummary, MacPherson J.A. wrote:

[37] The import of the above reasoning is this: Pre-trial bail and pre-trial custody are very different concepts. Their foundations are different because their realities for accused persons are different. That said, there will be cases – Downes , with long-term house arrest bail conditions, is one – where a sentencing judge should give mitigation effect to pre-trial bail. However, there will be many other cases – Lawes and Hunjan are examples – where this factor will attract little, if any, weight. [ 8 ] To a similar effect, in R. v.

Irvine , 2008 MBCA 34 , 231 C.C.C. (3d) 69, Scott C.J.M., for the Court, explained: [30] While the accused’s counsel referred on a number of occasions at the sentencing hearing and before this court to the “strict” terms of bail constituting “effectively house arrest,” no further details with respect to any alleged undue hardship were provided. For bail conditions to be considered as a mitigating factor they must impose significant custodial and penal attributes. As this court said in R. v. Higgins , 2001 MBCA 177 , 160 Man. R. (2d) 105 (Man.

C.A.), when the terms “merely mimic the conditions of ordinary life for the accused … [they] do not contain any punitive sanction” (at para. 17), nor do they if the “house arrest required duplicates the hours when most working people are at home in any case” (at para. 20). [ 9 ] It is unnecessary for purposes of this appeal to deal with the question of house arrest. A curfew is not house arrest. Indeed, a curfew from 10:00 p.m. to 7:00 a.m. as imposed in this case is generally consistent with the hours when most working people are at home in any event.

The condition was imposed in this case as a preventive measure pending trial. The offences R.J.H. was alleged to have committed took place during the night and involved inviting young girls to come to his truck. The curfew was intended to strike a balance between protection of the public by putting preventive measures in place and R.J.H.’s right to the presumption of innocence until proven guilty. [ 10 ] In addition, the trial judge pointed to alleged hardships claimed by R.J.H. resulting from the conditions of release.

Where an accused alleges that a condition of release constitutes a hardship warranting mitigation of sentence, consideration will be given to whether the accused applied to have the relevant condition varied or clarified to reduce the effect of hardship. Failure by the accused to take such action is discussed in R. v. Voeller , 2008 NBCA 37 , 335 N.B.R. (2d) 143: [24] In the present case, Mr. Voeller was released on an undertaking to abide by a 10 p.m. to 7 a.m. curfew and to report twice a week. His conditions of release are a far cry from the virtually total “house arrest” that was considered in Downes . Mr.

Voeller testified at the sentencing hearing that the reporting requirement interfered with his employment and caused him to lose his job, thereby causing him hardship. The evidence revealed that Mr. Voeller made no attempt to request a variation in the terms of his bail as one would have expected if indeed the reporting condition was interfering with his employment. Considering the preventive nature of the order, it is difficult to conceive that a court would not have been receptive to varying the reporting condition to suit Mr. Voeller’s employment.

Surely, there is an onus on an accused in these circumstances to not idly sit by and later be able to argue that conditions, which likely would have been varied if an application had been made, caused him significant consequences so as to warrant being considered a significant mitigating factor. [ 11 ] One of R.J.H.’s complaints with the curfew was that it prevented him from going to his parents’ cabin with them. This is a particular effect of the order which may not have been considered at the time the conditions were drafted.

It was open to R.J.H. to seek a variation of the condition to permit him to accompany his parents if he could establish that such a change would not undermine the purpose sought to be achieved by the condition. [ 12 ] The condition not to be alone in the presence of young people under sixteen years of age was also intended to serve a preventive function and was, for that purpose, a reasonable term of release.

Nonetheless, I would note that the condition was stated in broad language: “You are not to be in the presence of any person under the age of 16 years unless one of your parents is continuously present in the same room.” This was interpreted to mean that R.J.H. could not enter a shop or go to the hospital without either having a parent with him or ensuring he would not encounter any person under sixteen years of age.

If this condition was, in practice, unnecessarily restrictive, it was open to R.J.H. to apply for a clarification or variation of the language which would more appropriately achieve the preventive objective. [ 13 ] In

summary, the conditions of R.J.H.’s release pending appeal were reasonable in light of the charges he was facing. To the extent that the conditions had a broader effect than might have been necessary or intended, it was open to R.J.H. to apply for a clarification or variation of the relevant condition. In the result, there is no basis on which to support the trial judge’s determination that R.J.H.’s conditions of release were akin to house arrest or such as to warrant consideration as a mitigating factor in sentencing.

Overemphasizing R.J.H.’s Rehabilitation Prospects [ 14 ] Under “The Prospect of Successful Rehabilitation”, the trial judge commented: [21] Counsel for the offender submits that [R.J.H.] can be rehabilitated. I agree. [R.J.H.] has employment skills and has been employed for most of his adult life. He is fortunate to have strong family support. Once he has served his sentence and is reintegrated back into society, it is hoped that he will be able to put these incidents behind him and make a meaningful contribution to his community. [ 15 ] This conclusion fails to recognize several relevant factors.

First, in the pre-sentence report, R.J.H. was assessed to be a high risk to re-offend: … This assessment looks at what the literature refers to as “the big 8” criminogenic risk/needs factor. The accused scored overall as High risk on the LSCMI ; scoring High in the areas of leisure/recreation, alcohol drug problem and procriminal attitude/orientation. (Emphasis added.) The trial judge referred to this portion of the pre-sentence report but did not indicate how the assessed overall high risk to re-offend might affect his conclusion as to the prospect for successful rehabilitation.

[16] Similarly, the trial judge summarized R.J.H.’s criminal record, but did not incorporate reference to it in his consideration of theprospects for rehabilitation: [26] Although this factor [criminal record] may well be addressed when considering the antecedents of the offender, I prefer toconsider it separately. [R.J.H.] has 11 prior Criminal Code convictions in the past 5 years, although none are for violent crimes. Theoffences include uttering forged documents, fraud under $5000, failure to attend court, dangerous operation of a vehicle, driving whiledisqualified, and failure to comply with probation.

When coupled with the offender’s latest 4 convictions for breaching a probationorder, his prior convictions for failure to attend court, driving while disqualified and failure to comply with probation, demonstrate apattern of disregard for the law and orders of the court. [17] R.J.H. was thirty-three years old at the time of the offences. A criminal record provides information about the prognosis forrehabilitation.

Given R.J.H.’s age and criminal record, it was necessary for the trial judge to advert to these factors in relation to hisexpectation for a positive outcome as to R.J.H.’s rehabilitation upon completion of his sentence. [18] Finally, regarding R.J.H.’s employment, the pre-sentence report states: The accused successfully completed High School in 1995 and then went on to Post Secondary training in St. John’s. He successfullygraduated from a three (3) year program offered at Compu-College.

He informed that for the past three (3) years he has been involved inan on line Aircraft Maintenance correspondence course offered by the International Career School (ICS) Canada. The accused reported that while he has been unemployed since 2008, he has been employed the majority of his adult life sincecompleting Post Secondary training. He reported only short periods of unemployment in between employment prospects.

He reportedthat he has not been employed since working with Parrot Surveyors working on the Churchill Road in 2008. [19] This information must be read together with R.J.H.’s admission that he began using cocaine when he was in College, and withintwo years of his graduation, he was addicted. He reported for purposes of the pre-sentence report that in 2006, “he was using more drugsand working less”. He reported that his last relapse was in 2009. In that year he was also convicted of uttering a forged document.

Thishistory does not appear to have been taken into account in the trial judge’s positive assessment of R.J.H.’s rehabilitation prospects. [20] Finally, the offences were committed when R.J.H. was on probation, a further indicator that his past history would not lead tothe conclusion that the prospects for rehabilitation were good. [21] In the circumstances, the trial judge erred when he failed to consider relevant factors when he assessed the prospects forR.J.H.’s rehabilitation.

When those factors are taken into account, the principle of rehabilitation would, in fact, have little weight indetermining an appropriate sentence. Relevance of “Grooming” [22] The Crown’s submissions regarding “grooming” are based on facts referenced in the trial judge’s decision on conviction (2011NLTD(G) 143): [47] K.M.’s evidence, together with that of B.M. and C.G., confirms that the accused socialized with her in inappropriate ways. Hemade sexual comments and innuendoes to her and her friends by computer the night that they met to exchange cigarettes.

He met thesevery young girls late at night or early in the morning in that regard. I do not find the minor inconsistency as to whether the accused gavethem cigarettes or whether C.G. gave the accused cigarettes detracts from the overall truthfulness of the witnesses’ testimony and findthat the event took place generally as they described. Nor is it critical how many computers were used or that C.G. confused theaccused’s Nissan truck with a similar S-10. [48] Furthermore, the accused admitted engaging in other inappropriate activities with K.M.

His frequent communications with heron MSN Messenger generally seem to be inappropriate and excessive for a 33 year old with a girl 13 years of age. He testified that hedid not mind her smoking and would not hesitate to provide her with cigarettes. He testified that he taught her to drive [his truck] andwould allow her to drive his vehicle even with other young people in it. [23] These facts constitute evidence of “grooming”. A helpful discussion of what is meant by “grooming” is found in R. v.

Legare,2009 SCC 56, [2009] 3 S.C.R. 551: [28] … for example, by “luring” or “grooming” young persons to commit or participate in the prohibited conduct; by reducing theirinhibitions; or by prurient discourse that exploits a young person’s curiosity, immaturity or precocious sexuality. … [30] As Hill J. explained in R. v. Pengelley, [2009] O.J.

No. 1682 (QL) (S.C.J.), at para. 96: … computer communications may serve to sexualize or groom or trick a child toward being receptive to a sexual encounter, to cultivate arelationship of trust, or to undertake a process of relinquishing inhibitions, all with a view to advancing a plan or desire to physical sexualexploitation of a young person. [24] Evidence of “grooming” is an aggravating factor to be taken into account in determining an appropriate sentence (R. v. F. (G.C.)(2004), (ON CA), 188 C.C.C. (3d) 68 (ONCA), at paragraph 21).

In the circumstances of this case, the trial judge’sfailure to advert to this factor, despite the enumeration of factors amounting to “grooming” in the conviction decision, constituted anerror. Sentence Imposed by the Trial Judge

[25] In imposing a sentence of twelve months for the sexual assault against K.M., the trial judge explained: [54] The sexual assault [against K.M.] was a one time fleeting occurrence. Aggravating factors include: the disparity in ages betweenthe offender and his victim; his criminal record; his lack of remorse; and his assessment as a high risk to re-offend. Still, [R.J.H.] hasgood prospects for rehabilitation. A significant mitigating factor is the time spent by the offender on conditions akin to house arrestfollowing disposition of a matter.

Based upon the cases referred to above and the cases referred to in those cases, an appropriate range ofsentence for attempted sexual intercourse with a 13 year old would be 12 to 24 months in custody. For this offender in thesecircumstances, the appropriate sentence normally would be 18 months in custody.

Because of the mitigating factors, especially theconditions of [R.J.H.’s] release on bail, the offender is sentenced to 12 months imprisonment, consecutive to the sentence for the sexualassault against A.D. [26] For the reasons set out above, the trial judge erred in his determination of an appropriate sentence by taking R.J.H.’s conditionson judicial interim release into account as a mitigating factor, overemphasizing his rehabilitation prospects, and failing to take“grooming” into account as an aggravating factor. In the result, pursuant to

section 687 of the Criminal Code, the sentence for sexualassault against K.M. must be varied by this Court in accordance with the considerations set out above. Fit Sentence [27] This was a very serious assault. K.M. was just thirteen years of age. While sexual intercourse did not occur, there wasattempted penetration. K.M. indicated that she was frightened and that she had said no to R.J.H.’s request for intercourse. R.J.H.engaged in activities amounting to “grooming” by means of the internet and meetings with the girls in the dead of night. [28] Pursuant to

section 718.01 of the Criminal Code: When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primaryconsideration to the objectives of denunciation and deterrence of such conduct. [29] The Crown is requesting a sentence in the range of thirty to thirty-six months imprisonment. Defence counsel submits that asentence of twelve months as imposed by the trial judge, or less, would be appropriate. Both submissions are outside an appropriaterange on the facts of this case. [30] The decision in R. v. E.M.W., 2011 NSCA 87, 308 N.S.R. (2d) 15, provides a useful

summary of sentences imposed for sexualassault against children, without intercourse. Factors that affect the seriousness of the offence include: age of the child, age of theoffender and whether that person was in a position of trust in relation to the child, whether the assaults occurred over a period of time,and whether there was attempted, but unsuccessful intercourse. The Court referred to cases where, based on these factors, sentences ofthree to six years imprisonment were imposed.

Fichaud J.A. noted: [30] Moving downward from the high end of the range in the cases, one sees incarceration sometimes more and sometimes less thantwo years, depending on the severity of the circumstances, for sexual assaults on children without intercourse: … [31] Decisions cited by Fichaud J.A. of assistance in determining an appropriate sentence in this case include: [30] … (

d) Three years for one incident of sexual assault without intercourse on offender’s four year old daughter. R. v. E.E.C., 2005 NSSC 3. (

e) Three years for indecent assault without intercourse with the offender’s daughter over a period of three years when she was 8 to 11(R. v. I. (Part 2), [1996] N.S.J. No. 153 (S.C.)). The offender had no criminal record and was unlikely to reoffend. … (

g) Two and one half years each (concurrent) for two counts of sexual assault and sexual touching, including attempted but unsuccessfulintercourse, of the offender’s 15 to 18 year old stepdaughter. R. v. N.J.B., [2003] N.S.J. No. 225 (S.C.). (

h) A larger global sentence (with remand credit) that included twenty eight months each (concurrent) for two offences of sexualtouching and invitation to sexual touching over a period of time of an 11 to 14 year old girl who was unrelated to the offender. D.W.B.[(1998), (NS SC), 169 N.S.R. (2d) 94 (S.C.)]. … [32] In R. v. Samson, 2005 ONCJ 278, 67 W.C.B. (2d) 613, the offender was sentenced to fifteen months imprisonment. The assaultinvolved fondling the ten year old complainant under her clothing and kissing her. Mr.

Samson was a snowplough operator who had“groomed” the young complainant by giving her gifts and taking her riding in the snowplough. The Court considered this to be aminimal sentence given a prior sexual assault conviction. [33] In the case now before this Court, aggravating factors include: K.M.’s age and the disparity in age between her and R.J.H.; thenature of the assault, being attempted intercourse though penetration was not achieved; and the successful “grooming” activitiesundertaken by R.J.H.

Although failure by a thirteen year old to object is not a mitigating factor, K.M.’s voiced rejection of R.J.H.’srequest for sex is an aggravating factor. Further, R.J.H.’s criminal record, and the fact that he committed the offences while on probationare aggravating factors. [34] In the circumstances, an appropriate sentence for the sexual assault against K.M. is twenty-one months. The sentences of onemonth imposed for the assault against A.D. and the first breach of probation, to be served consecutively, are unaffected by the appeal.

Similarly, the sentences of one month for each of the remaining three breaches of probation, to be served concurrently, are unaffected. A total sentence of twenty-three months results. [ 35 ] In view of the number of sentences imposed, it is necessary to consider the principle of totality as discussed in R. v. Hutchings , 2012 NLCA 2 , 316 Nfld. & P.E.I.R. 211. The total sentence of twenty-three months is not unduly long or harsh in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender. [ 36 ] R.J.H. requested a conditional sentence.

Such a sentence would not be available even though the sentence is less than two years. One of the preconditions to a conditional sentence is that the conviction must be for an offence “other than a serious personal injury offence as defined in

section 752 ” of the Criminal Code . That definition includes “an offence, or attempt to commit an offence mentioned in

section 271 (sexual assault)”. This provision was in effect in 2009 when the assault occurred.

SUMMARY AND DISPOSITION [ 37 ] The trial judge erred in: (1) taking R.J.H.’s conditions of release into account as a mitigating factor in sentencing; (2) overemphasizing R.J.H.’s rehabilitation prospects; and (3) failing to take account of R.J.H.’s “grooming” of K.M. as an aggravating factor. In the result, the sentence must be varied pursuant to

section 687 of the Criminal Code . [ 38 ] Accordingly, the appeal against sentence is allowed. The sentence imposed by the trial judge is varied, and a sentence of twenty-three months imprisonment is imposed. This will be followed by a period of probation of three years on the following conditions:

a) Keep the peace and be of good behaviour;

b) Check in with the RCMP in Happy Valley-Goose Bay, NL, in person once a week, Monday to Friday, between 9:00 a.m. and 5:00 p.m.;

c) Notify the court or your probation officer in advance of any change in name or address, and promptly notify the court or probation officer of any changes in employment or occupation;

d) Seek assessment and actively participate in counseling and other programs as recommended by your probation officer, particularly in respect of drug abuse, any attraction to children for sexual purposes and the risk of recidivism; and

e) Have no contact directly or indirectly with A.D. or K.M. and stay away from their respective homes and place of employment and education. _______________________________ B. G. Welsh J.A. I Concur: _____________________________ M. H. Rowe J.A. I Concur: _____________________________ C. W. White J.A.