R. v. A.B., 2015 NLCA 19

Date: 20150414 Docket: 14/72 Citation: R. v. A.B. , 2015 NLCA 19

Section 486.4 of the Criminal Code respecting the non-publication of the identity 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 : HER MAJESTY THE QUEEN APPELLANT AND : A. B. RESPONDENT Coram: Welsh, White and Harrington JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201201G3801 Appeal Heard: March 23, 2015 Judgment Rendered: April 14, 2015 Reasons for Judgment by Welsh J.A. Concurred in by White and Harrington JJ.A. Counsel for the Appellant: Lisa M. Stead Counsel for the Respondent: Sandra J. MacKinnon

Welsh J.A.: [1] On April 14, 2014, A. B. was convicted of one count each of sexual assault and sexual interference, contrary to sections 271and 151 of the Criminal Code. She has not appealed the convictions. She was sentenced to twelve months less a day imprisonment forsexual assault and twelve months for sexual interference, the sentences to be served concurrently, followed by probation for two years. An order under the Sex Offender Information Registry Act, S.C. 2004, c. 10, was made for a period of twenty years. The Crown seeksleave to appeal the sentence and, if granted, appeals the sentence.

BACKGROUND [2] At the time of the assaults, Ms. B., aged twenty-three, and the complainant, a boy aged twelve, were neighbours. The trialjudge accepted evidence that, from June to August 2011, they spent two to three hours together two to three times a week. They alsocommunicated via text messages. The messages sent by Ms. B. to the complainant were obtained from the complainant’s cell phone andentered as evidence. The messages he sent to her had not been stored and were unavailable. [3] The complainant believed that he and Ms. B. were in a romantic relationship.

On October 9, 2011, the complainant’s parentsdiscovered that he had packed his bags, intending to move in with Ms. B. whom he believed would be leaving her partner. [4] Regarding the charge of sexual interference, the trial judge found (2014 NLTD(G) 42): [64] …I conclude that in the summer of 2011, when the Complainant was only twelve years of age, the Accused intentionallytouched the Complainant, for a sexual purpose. The facts that make out this charge are the two occasions described by the Complainantto have occurred at S.H. and B.

I accept the Complainant’s testimony that on these occasions, the Accused fondled the Complainant’sprivate parts outside and inside his clothing, leading him on at least one occasion to ejaculation. I accept the Complainant’s version ofthe events on these occasions and the Crown has met the onus of establishing the elements of this offence, beyond a reasonable doubt.

Ifind the Accused guilty of sexual interference. [5] Regarding the charge of sexual assault, the trial judge found: [68] The Complainant testified that he had sexual intercourse with the Accused in an outdoor public place (C.H.) and in theAccused’s bedroom on a separate day. He testified that this involved having his penis in her vagina wearing condoms that he hadpurchased for the purpose of having sex on both occasions. I have accepted the Complainant’s evidence as a credible account of whatoccurred at C.H. and in the Accused’s bedroom. Both events were planned through two-sided text communication. While

section 271requires the Crown prove only general intent, the facts I have accepted support a finding of specific intent on the Accused’s behalf. Thecircumstances were unquestionably of a sexual nature and the physical contact was not accidental. [69] The Accused’s actions in participating in sexual intercourse with her 12-year-old neighbor on both occasions were both deliberateand committed with reckless disregard for the consequences of the actions. The Crown has met the onus of establishing the elements ofthis offence, beyond a reasonable doubt.

I find the Accused guilty of sexual assault. [6] The trial judge reviewed the principle in R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729, regarding multipleconvictions arising from the same cause or matter. She concluded: [80] On the facts that I have accepted, separate incidents (at S.H. and the B.) have supported a conviction under

section 151, whereas Ihave relied only on the incidents at C.H. and the Accused’s house to support a conviction under

section 271. Under the circumstances,the Kienapple principle does not require that I enter a stay on the conviction of the lesser charge … . [7] In her sentencing decision (2014 NLTD(G) 97), the trial judge recognized that, while the complainant did not object to thesexual activities: [5] … In law, however, the lack of objection by a 12 year old is irrelevant, since a person under the age of 16 cannot give consent toeither activity. [6] As Judge Gorman said in R. v. Young, 2010 CarswellNfld 308 (N.L. Prov.

Ct.) at para. 84, “… This is not a case of sexualactivity or experimentation between teenagers of a similar age and it should not be characterized in such a fashion.” The acts constitutechild abuse. The adult in the situation takes full responsibility. [8] Regarding the impact of the offences, the trial judge explained: [8] In this particular case, I have no victim impact statement. The victim was not anxious to give evidence against [Ms. B.] and hasindicated from the outset that he did not want to get her into trouble.

But for the good instincts and parenting of his mother, the victim’srelationship with the offender may have been overlooked. However, even without a victim impact statement, I recognize that the eventsof the summer of 2011 will obviously affect the young male victim for a long time to come. He has a victim services worker whoattended the sentencing hearing.

She has been working with him to normalize his life. [9] In addition, the trial judge commented: [12] … It was extremely difficult for the victim [giving evidence at the trial], who I witnessed struggling with having to answersensitive questions about private sexual activity. [10] The trial judge noted that Ms. B. was not in a position of trust, in the sense of a person in authority, regarding the complainant.

However, “the significant age difference and the vulnerability of a 12 year old boy in the circumstances when a 23 year old womanexpresses a sexual attraction to him” was a relevant consideration in determining an appropriate sentence (paragraph 9). While Ms. B.has not appealed her convictions, she has refused to acknowledge responsibility for her actions and shows no remorse. As a result,

specific deterrence was considered by the judge to be “particularly important, so that [Ms. B.] is not tempted to consider takingadvantage of another child again” (paragraph 15). [11] Aggravating factors listed by the trial judge are: the assaults involved sexual intercourse; there was an eleven to twelve year agedifference between Ms. B. and the twelve-year-old complainant; Ms. B. engaged in text messaging with the complainant which the judgecharacterized as “akin to luring”; Ms. B. continued her involvement with the complainant after his mother had told Ms. B. to stay awayfrom her son, even though Ms.

B. had given her assurance to the complainant’s mother (paragraph 20). The only mitigating factorconsidered by the trial judge was her characterization of Ms. B. as a youthful, first-time offender. The judge indicated that she had littleinformation to assist in assessing Ms. B.’s rehabilitation prospects. [12] In the result, the trial judge sentenced Ms. B. to imprisonment for twelve months less a day for sexual assault and twelvemonths for sexual interference, the sentences to be served concurrently, followed by probation for two years.

The Crown had requesteda term of twelve months for sexual interference and eighteen to twenty-four months for sexual assault, to be served consecutively for atotal of thirty to thirty-six months. Defence counsel sought a sentence of twelve months on each charge, to be served concurrently. [13] The Crown appeals the sentence imposed for sexual assault and the term of the twenty-year order under the Sex OffenderInformation Registry Act. The sentence for sexual interference has not been appealed. ISSUES [14] Leave to appeal is required.

At issue is whether the trial judge erred by imposing a demonstrably unfit sentence for the offenceof sexual assault and by making a twenty-year, rather than a lifetime, order under the Sex Offender Information Registry Act. ANALYSIS Leave to Appeal [15] Where the Crown appeals against sentence only, leave of the Court is required (section 676(1)(

d) of the Criminal Code). Thetest to be applied is whether the appeal is “frivolous in the sense of having no arguable basis or sufficient merit” (R. v. Murphy, 2011NLCA 16, 304 Nfld. & P.E.I.R. 266, at paragraph 8). [16] In this case, that test is satisfied. A review of judicial authority and the trial judge’s decision leads to the conclusion that, on thefacts here, there is an arguable basis for the Crown’s submission that the sentence of twelve months less a day for sexual assault of achild by an adult, where there is intercourse, falls outside the appropriate range and is demonstrably unfit.

Accordingly, I would grantleave to appeal. The Appeal The Law [17] Ms. Brake was charged with offences occurring between June 1 and August 31, 2011. At that time,

section 151 of the CriminalCode provided: Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of aperson under the age of 16 years (

a) is guilty of an indictable offence and is liable to imprisonment for a term not exceeding ten years and to a minimum punishment ofimprisonment for a term of forty-five days; … [18]

Section 271 of the Criminal Code provided: Every one who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; … [19]

Section 718.01 of the Code addresses offences against children: 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. In addition, under

section 718.2(a)(ii.1), “evidence that the offender, in committing the offence, abused a person under the age ofeighteen years” is deemed to be an aggravating circumstance. [20] Other relevant principles set out in the Criminal Code provide that the “sentence must be proportionate to the gravity of theoffence and the degree of responsibility of the offender” (section 718.1), and that “a sentence should be similar to sentences imposed onsimilar offenders for similar offences committed in similar circumstances” (section 718.2(b)). [21] Where a sentence is appealed, the circumstances in which this Court will intervene are limited, as set out in R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500: [90] Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, acourt of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. … [22] In this case, the Crown takes the position that a sentence of twelve months less a day imprisonment for sexual assault involvingintercourse with the twelve-year-old complainant is demonstrably unfit. In considering this submission, it is necessary to ascertain,

among other things, the appropriate range of sentence. [23] I begin with the proposition set out in R. v. Payne, 2012 NLCA 72, 330 Nfld. & P.E.I.R. 181: [8] A review of the case law leads to the conclusion that a three year term of imprisonment for sexual assault of a thirteen year oldgirl involving intercourse is at the low end of the range. Counsel for Mr. Payne conceded this and did not pursue the appeal on thispoint. See also: R. v. Vokey, 2000 NFCA 14, 186 Nfld. & P.E.I.R. 1. [24] In R. v. Barrett, 2012 NLCA 46, 324 Nfld. & P.E.I.R. 246, the Court discussed the effect of the statutory inability of a minor toconsent to sexual conduct contrary to

section 271 of the Criminal Code. There were three complainants in that case. H.P. was fourteenyears old at the time of the offence. She had been evicted from her parents’ house and accepted an invitation from Mr. Barrett to stay athis residence. She engaged in sexual intercourse with Mr. Barrett, having initially refused, but eventually acceding to his persistentrequests.

In determining that a sentence of three years imprisonment would be appropriate, Hoegg J.A., for the Court, explained: [48] While I am not prepared to say that factual consent can never be a consideration in the sentencing of an offender for the sexualassault of a minor, it is not a mitigating factor, as the trial judge stated in this case, nor can it be used to justify lowering a sentence belowthe normal range.

While I prefer and adopt the reasoning in Hann [(1992), (NL CA), 100 Nfld. & P.E.I.R. 339 (Nfld.C.A.)], I note that H.P.’s eventual factual consent would also not be considered a mitigating factor on an Allen [(1989), (NL CA), 77 Nfld. & P.E.I.R. 138 (Nfld. C.A.)] analysis. Accordingly, the trial judge erred in imposing a two-year sentence forthe sexual assault of H.P. [25] A sentence of imprisonment for three years and six months was found to be appropriate regarding the offence against B.A.S.,who was also fourteen: [49] … The additional six months is to take account of Mr.

Barrett’s persistence in disregarding B.S.’s express desire not to engage insexual intercourse and exposing her to the risks of pregnancy, as well as his “premeditation and planning”, as the trial judge described it,in driving B.S. to the secluded vacant house where the intercourse took place.

These sentences, being at the low end of the range, takeaccount of the principles of sentencing listed in s. 718 of the Code, and in particular, the objective of assisting in the rehabilitation ofoffenders. [26] These decisions indicate that a term of imprisonment of three years is at the low end of the range in sentencing an adult offenderfor sexual assault involving intercourse where the complainant is below the age of consent.

The range serves to assist the court indetermining a sentence consistent with the principle that similar sentences should be imposed on “similar offenders for similar offencescommitted in similar circumstances” (section 718.2(

b) of the Criminal Code). Determination of an appropriate sentence will, of course,depend on the facts of the particular case. A review of the case law provides a helpful

summary of some relevant factors: 1. Position of trust, more serious where the offender is in a position of authority; 2. Age of the victim, being less serious where the victim is close to the age of consent; 3. Significant age difference between the parties; 4. Sexual encounters occurring over a period of time; 5. Manipulation of the victim; 6. Planned or calculated conduct by the offender; 7. Knowledge of and acting on the victim’s vulnerability; 8. Continuation of conduct after being warned; 9. Particular impact on the victim; 10.

Lack of remorse or acceptance of responsibility; placing of blame on the victim or others; limited appreciation of the harm caused;minimization of the offence; 11. Previous criminal record; 12. Prospects for rehabilitation and risk of re-offending; 13. Positive pre-sentence report; 14. Guilty plea; and 15.

Willingness to access counselling. [27] The facts of this case require two issues to be addressed: first, should there be a distinction between male and female victimswhere the offender is an adult of the opposite gender; and second, what is the effect of the child’s willingness to participate in theoffending conduct? [28] Regarding the first issue, there was no evidence tendered to support the proposition that more severe sentences should beimposed where a man sexually assaults a girl as opposed to a woman sexually assaulting a boy. The Criminal Code makes no such

distinction. No evidence was provided to demonstrate that the psychological or other impact on boys as victims is less serious than ongirls. In this case, the trial judge commented on the long-term effect on the complainant who is undergoing counselling. [29] Regarding the second issue, the willingness of the child to participate in the offending conduct cannot be equated with consent. Parliament has specified that children below a certain age lack sufficient maturity and are mentally and psychologically incapable ofconsenting.

Further, psychological manipulation of the child by grooming or luring may lead the child to a false understanding or naïveperception of the relationship with the adult. [30] Given these considerations, the Court has not been provided with a rationale that would support defining a lower range ofsentence where a child, statutorily unable to consent, is sexually assaulted, involving intercourse, by an adult, or for treating a malevictim differently from a female victim.

Where there is reason for imposing a sentence outside the range or for adjusting the range,relevant factors should be identified. (See, for example, R. v. Squires, 2012 NLCA 20, 320 Nfld. & P.E.I.R. 39.) Application of the Law [31] In her decision, the trial judge was not provided with the appropriate case law and did not address the above issues andprinciples.

Nor did Crown counsel, who was different from counsel on the appeal, explain why she requested a sentence of eighteen totwenty-four months for non-consensual sexual assault involving intercourse, rather than a sentence within the range discussed above. [32] I begin with a review of factors relevant to sentencing in this case. Ms. B. used her position as the complainant’s neighbour totake advantage of the vulnerability of a twelve-year-old boy. While the complainant was not a young child, neither was he near the ageof consent.

He was, rather, at what could be expected to be an impressionable age in terms of his sexual development. As noted by thetrial judge, this was not a case involving teenagers of a similar age. Ms. B. was twenty-three years old at the time of the offences and themother of two sons, ages five and seven. The encounters quickly escalated from fondling to sexual intercourse which led thecomplainant to believe that he would be moving in with Ms. B. to become her sexual partner. The conduct ceased only after thecomplainant’s parents involved the police. [33] The trial judge accepted evidence that Ms.

B. and the complainant had exchanged text messages which the judge characterizedas akin to luring. The question of grooming or luring is considered in R. v. R.J.H., 2012 NLCA 52, 325 Nfld. & P.E.I.R. 67: [23] … 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] … computer communications may serve to sexualize or groom or trick a child toward being receptive to a sexual encounter, tocultivate a relationship of trust, or to undertake a process of relinquishing inhibitions, all with a view to advancing a plan or desire tophysical sexual exploitation of a young person. [24] Evidence of “grooming” is an aggravating factor to be taken into account in determining an appropriate sentence (R. v.

G.C.F.(2004), (ON CA), 188 C.C.C. (3d) 68 (ONCA), at paragraph 21). … [34] In this case, while only messages sent from Ms. B. to the complainant were available and entered as evidence, it is clear thatMs. B.’s conduct fell within the above meaning of luring or grooming.

For example, she asked the complainant to stop ignoring her;asked if he loved her; told him she really loved him; complained that he was “playing games”; asked if he was not responding to hermessages because his mother was with him; told him to send a message when he was alone; said she did not “want this to end”;complained that she was “up front” with him but he wasn’t reciprocating; said she missed him and signed with “xoxox”. This sample ofmessages, along with the frequent meetings of the two, even after the complainant’s mother warned Ms.

B. to stay away from her son,indicate a pattern of manipulation of the boy for the purpose of Ms. B.’s sexual gratification. There was evidence that the incidents ofsexual intercourse were planned, with the complainant having purchased condoms. Ms. B. has not shown remorse or acceptedresponsibility for her conduct. [35] Factors in addition to those directly related to the offences are also relevant. While the complainant received counselling as aresult of Ms. B.’s criminal conduct, there is no evidence that he suffered impacts other than what one would expect in the circumstances. Ms.

B. has no previous criminal record. The pre-sentence report records that Ms. B. “states that she would avail of any sex offenderprogramming required but feels that she ‘doesn’t need it’.” Her sons have been placed in the custody of their fathers, with supervisedaccess for Ms. B. While described as immature, Ms. B. completed grade twelve.

As noted by the trial judge, there is no informationregarding prospects for her rehabilitation or her risk to re-offend. [36] Considering the above factors, an appropriate sentence for sexual assault in this case would be three years imprisonment, whichfalls at the low end of the range for non-consensual sexual assault with intercourse. Subject to the comments that follow, there are nofactors that would take this case outside the accepted range or that would operate to alter the low end of the range. [37] However, in these particular circumstances, account must be taken of two additional considerations.

First, in the past, sentenceshave been imposed well below the low end of the range described above. This may have been the rationale underlying the Crown’srequest at trial for a sentence of eighteen to twenty-four months imprisonment for the offence of sexual assault, with the sentence forsexual interference to be served consecutively. Despite submitting on appeal that the facts of this case should have resulted in a sentenceat the low end of the range, that is, three years imprisonment, the Crown took the position that it would be unfair to resile from theposition taken at trial.

Accordingly, at the hearing, Crown counsel submitted that twenty months would be an appropriate sentence forthis offence, with the sentence for sexual interference to be served consecutively. While neither this Court nor the trial judge is bound toaccept the submissions of counsel, in the circumstances, I would be reluctant to impose a term of imprisonment longer than wasrequested by the Crown.

[ 38 ] Accordingly, while an appropriate sentence in this case would have been three years imprisonment, I would impose a sentence of twenty months for the offence of sexual assault, with the twelve month sentence for sexual interference to be served consecutively. This conclusion, involving more than one offence, engages the principles set out in R. v. Hutchings , 2012 NLCA 2 , 316 Nfld. & P.E.I.R. 211.

There is a three step process: [20] The first step in sentencing in the context of multiple convictions is therefore to determine the appropriate sentence for each individual offence, applying the full range of applicable sentencing principles. The sentences so arrived at should presumptively be imposed consecutively. [ 39 ] The second step is to consider whether the offences should be characterized as “a single criminal adventure”, which would generally result in concurrent sentences ( Hutchings , at paragraph 21 ).

In this case, the trial judge was satisfied that the offences of sexual assault and sexual interference constituted separate offences committed at different times and places. The nature of the criminal conduct changed with the escalation over time from touching, the basis of the sexual interference offence, to intercourse which constituted the sexual assault. The offences could not be characterized as a single criminal adventure.

Accordingly, the presumption is that the sentences should be imposed consecutively. [ 40 ] The third step under Hutchings is the application of the totality principle, described as “one last look” at the total sentence to ensure that the total punishment is “just and appropriate” and “not excessive”, but that it reflects “the overall culpability of the offender” (paragraph 26).

An adjustment to the total sentence may be necessary: [25] … If the totality principle would be offended by keeping the remaining sentences consecutive, after following the second step, then the sentencing court should further adjust the overall sentence by either making additional sentences concurrent or if that does not achieve an appropriate result, by shortening some of the individual sentences. [ 41 ] Consideration should be given to factors such as the number and gravity of the offences, the offender’s criminal record, and the impact of the sentence on the offender’s prospects for rehabilitation.

The total sentence should not be “harsh or crushing”, but should be “proportionate to the gravity of the offences and the offender’s degree of responsibility” ( Hutchings , at paragraph 84 ). [ 42 ] In this case, the sentences for sexual assault and sexual interference, imposed consecutively, would result in a total sentence of thirty-two months imprisonment. This is less than a sentence at the low end of the range, being three years, for non-consensual sexual assault with intercourse. Normally, a reduction for totality would not apply.

However, in the circumstances, I would give some effect to the Crown’s position that, for reasons of fairness, given the Crown’s position at trial, and noting that Ms. B. has no criminal history and is at an age when a lengthy term of imprisonment, for these particular offences, may impede her rehabilitation prospects, some adjustment to the total sentence can be justified, particularly given that Ms.

B. will be on probation for two years. [ 43 ] To achieve an appropriate sentence, I would order the sentences to be served consecutively, but, for purposes of totality, I would reduce the sentence for sexual interference from twelve months to four months, for a total of twenty-four months imprisonment. I would follow that term with a period of probation of two years as ordered by the trial judge. [ 44 ] In the result, I conclude that the trial judge erred in the application of the relevant law and that the sentence of twelve months less a day for sexual assault must be set aside as demonstrably unfit.

An appropriate sentence, taking account of the principle of totality is twenty-four months imprisonment to be followed by probation for two years as ordered by the trial judge. Order under the Sex Offender Information Registry Act [ 45 ] Crown and defence counsel conceded, and I agree, that

section 490.013(2.1) of the Criminal Code mandates a lifetime order under the Sex Offender Information Registry Act . The trial judge erred in ordering a period of twenty years.

SUMMARY AND DISPOSITION [ 46 ] In

summary, I would grant leave to appeal.

The trial judge erred in her application of the relevant case law, imposing a sentence for sexual assault that is demonstrably unfit. [ 47 ] Taking into account the circumstances surrounding the offences, together with the submissions of counsel and judicial authority, and applying the principle of totality, I would: (1) impose a sentence of twenty months for sexual assault; (2) reduce the sentence for sexual interference from twelve months to four months to adjust for totality; (3) and order the sentences to be served consecutively for a total of twenty-four months imprisonment; (4) to be followed by two years probation as ordered by the trial judge.

I would amend the twenty-year order under the Sex Offender Information Registry Act to impose a lifetime order, consistent with the requirements of the Criminal Code . [ 48 ] Accordingly, I would grant leave to appeal, allow the appeal, and impose orders as set out above. ____________________________________ B. G. Welsh J.A. I Concur: __________________________________ C. W. White J.A.

I Concur: __________________________________ M. F. Harrington J.A