R v. C.R.H., 2012 NSSC 233

SUPREME COURT OF NOVA SCOTIA Citation: R v. C.R.H., 2012 NSSC 233 Date: 20120619 Docket: CRH 346803 Registry: Halifax Between: Her Majesty The Queen v. C. R. H. LIBRARY HEADING Editorial Notice Identifying information has been removed from this electronic version of the library sheet. Judge : The Honourable Justice Peter P. Rosinski Heard: February 21, 22, 23, 27, 28, 29, 2012 in Halifax, Nova Scotia Restriction on publication:

Section 486.4 of the Criminal Code Subject: Sentencing for sexual touching and invitation to sexual touching - sections 151 and 152 of the Criminal Code by “ uncle ” on “ niece ” between 10 and 15 years of age.

Summary: Niece was at all material times visiting her father who lived with H. and his family. Actual incidents of sexual abuse were limited but spanned the five-year period. After trial, uncle convicted. Previous related but lesser record; continued to deny offences and refused to participate fully in a sex offender assessment. Impact on victim found to be serious.

Issue: A proper sentence for these circumstances of the offences an offender? Result: Offender sentenced to 30 months in custody. No pre-sentence credit as no remand or onerous bail conditions. Order granted under

section 109, 161, 487.051 and 490.012 [firearms; playground prohibition; DNA; SOIRA - sex offender]. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: R v. C.R.H., 2012 NSSC 233 Date: 20120619 Docket: CRH 346803 Registry: Halifax Between: Her Majesty The Queen

v. C. R. H. Editorial Notice Identifying information has been removed from this electronic version of the judgment. Restriction on publication:

Section 486.4 of the Criminal Code Judge: The Honourable Justice Peter P. Rosinski Heard: February 21, 22, 23, 27, 28, 29, 2012, in Halifax, Nova Scotia Counsel: Eric Taylor, for the Provincial Crown Accused, Self-Represented, By the Court : Background [ 1 ] Mr. H. was charged on an information sworn June 22, 2009 with offences against SG contrary to s. 151 , 152 and 271 alleged between January 1, 2003 and April 1, 2009. On April 4, 2011, after a preliminary inquiry he was committed to stand trial. After trial Mr. H. was found guilty of all offences charged - see 2012 NSSC 101 .

I conditionally stayed the s. 271 conviction / Count #1. Mr. H. is before the court for sentencing on Counts #2, #3 and #4, that is: That he did at Dartmouth, NS: 2) between the 16 th day of October 1999 and the 1 st day of May 2008, did for a sexual purpose touch SG, a person under the age of fourteen years, with a part of his body, to wit, the tongue and hands of C. R. H., contrary to

Section 151 of the Criminal Code . 3) And further that he at the same place aforesaid, between the 16 th day of October, 1999 and the 1 st day of May 2008, did for a sexual purpose invite SG, a person under the age of fourteen years, to touch directly a part of his body, to wit, the penis of C. R. H.,

contrary to

Section 152 of the Criminal Code . 4) And further that he at the same place aforesaid, between the 1 st day of May, 2008 and the 1 st day of April 2009, did for a sexual purpose touch SG, a person under the age of sixteen years with a part of his body, to wit, the hands of C. R. H., contrary to

Section 151 of Criminal Code . Circumstances of the offences [ 2 ] In

summary, I found the Crown had proved beyond a reasonable doubt the following happened [SG was born in October 1993] at residences shared by Mr. H. and his family with DG whom SG believed was her father: Count #2 - s. 151 offences - before SG ’ s 14 th birthday.

i) The first incident was at Mr. H. ’ s residence when SG was 10 years old; Mr. H. took her into a bathroom, sat himself on the toilet seat and put SG, who testified that she was “ tiny ” , across his knees at which point he removed her clothing and licked her vagina (the “ bathroom incident ” ); ii) when SG was 11 years old, Mr. H. intercepted her as she was on her way to the pool outside Mr.

H. ’ s apartment and took her into a bedroom where he placed her on a table, pushed aside her bathing suit and licked her vagina 3 - 4 times (the “ pool incident ” ); iii) when SG was between 10 - 12 years old, sitting alone at night playing computer games, Mr. H. came up behind her and fondled her breast inside her top skin to skin ( “ the breast incident ” ); Count #4 - s. 151 - Sexual touching offences after SG ’ s 14 th birthday.

i) When SG was between 13 - 15 years old, Mr. H. under the guise of “ tickling her ” in his daughter ’ s bedroom, put his hand part way down inside the front of her pants near to her vagina (the “ tickling incident ” ); ii) when SG was 15 years old around March - April 2009, Mr. H. intentionally grabbed or squeezed SG ’ s breast over her clothing while she was holding a garbage bag in the kitchen cleaning up, where Mr. H. ’ s daughter and common law wife had their backs to SG and Mr. H. at the sink (the “ garbage bag incident ” ); Count #3 - s. 152 - Invitation to sexual touching offence

i) When SG was between 12 - 13 years old, she was alone in a bedroom upstairs when Mr. H. stood in its doorway, dropped his pants to his ankles completely exposing his penis to her and said “ If you don ’ t take your pants off, I will ” , and repeatedly told her to “ just touch it ” , which by words and actions she refused to do (the “ dog incident ” ); [ 3 ] Although not the basis of convictions, I did also accept SG ’ s evidence that:

i) At least five times, as random opportunities presented themselves from age 10 to 15 years old, SG was confronted by Mr. H. flashing or completely exposing his penis to her view while he would laugh;

ii) the webcam, upstairs apartment struggle and crashing shower curtain rod incidents all happened as described by SG - the onlyrelevance I take from these is that whether objectively they amount to anything or not (I found they were not relevant to the issue ofwhether the Crown had proved the offences for which he was convicted) I am satisfied that they reinforced SG’s subjective belief /perception that Mr. H. could become a threat to her at any time and this exacerbated the anxiety / fear levels she already had rooted in hermind because of the criminal behaviours for which I have found Mr. H. guilty. [4] During these offences it is important to recall the circumstances included that:

i) At all material times SG believed DG was her biological father (he had always stood in that position since very shortly after herbirth); ii) DG’s sister is Mr. H.’s common law wife and since SG’s birth, SG believed Mr. H. was her uncle by marriage (until told that DGwas not her father by AG after SG had made these allegations); iii) At all material times, DG lived with his sister DG and Mr. H., such that when SG was expected to visit her father, she necessarilyhad to visit the home of Mr. H.. [5] Each time SG was expected to visit her father, she was facing a dilemma: if she visited she would be exposed to Mr.

H.; if shedid not visit, suspicions could be aroused about why, and she would have to lie to provide apparent explanations. This anxiety plaguedher from age 10 - 15 years old. [6] There is no victim impact statement from SG. The likelihood that psychological harm has resulted from Mr. H.’s perverseand inappropriate actions against SG may be inferred and I do so infer - Bateman, JA in R v. RTM (1996) 1996 NSCA 156 , 151NSR (2d) 235 (CA); MacDonald, JA at para. 12 for the court in R v.

Powderface (1992) 73 CCC (3d) 550 (Alta CA), [7] I have also heard of the impact on SG from her mother MG (per s. 722(3) Criminal Code), who observed her as the custodialparent. [8] Her testimony reveals the turmoil that these offences created for MG and SG. While some of this evidence was hearsay Iconcluded that it was not in the interests of justice to compel SG to testify (s. 724(5)) though, I must be cautious not to give suchevidence undue weight. Circumstances of the Offender [9] Mr.

H. was born January *, 1968 and was between 35 and 40 years old when he committed these offences. [10] His prior record is: Offence Sentence Date Sentence

- s. 271 (1)(a) - March 1/94 December 9, 1994 $1500. + victim fine surcharge + 18 months probation. - s. 145(2)(b) (fail to show for s. 271 trial) - August 30/94 (Windsor, N.S.) December 9, 1994 $300 + victim fine surcharge - s. 368(1)(b) - uttering a forged document (Moncton, N.B.) November 22, 1996 4 months conditional sentence order + 24 months probation [ 11 ] Significantly the s. 271 conviction came after a trial and is summarized in the Sentencing Transcript of Provincial Court Judge Robert Prince as Exhibit “ Voir Dire #2" in the trial. [ 12 ] In

summary, Mr. H. was 26 then, estranged from his wife, and temporarily living with his brother ’ s family including his 16 year old daughter. She stayed home from school as she was sick, and while alone in the house with him, Mr. H. fondled her vagina area, while the victim pretended to continue to be asleep on the living room couch. She then told him to stop which he did. [ 13 ] He denied the offence had taken place, even after he was convicted and took no responsibility for it.

In sentencing him, the Provincial Court Judge stated: ...the victim impact statement... reflects... that even activity which can perhaps be characterized as being at the lower end of the continuum [of sexual assaults]... still has a significant impact on the victim. [ 14 ] He declined to impose custody because Mr. H. had no criminal record, it was a low end sex assault and the Pre-Sentence Report “ is not one which contains many negative things ” .

He properly considered the absence of remorse as a neutral factor, and essentially viewed the incident as a serious but momentary lapse in judgment. [ 15 ] On March 8, 2012 I directed that Mr. H. attend at the East Coast Forensic Hospital for an assessment regarding his rehabilitative potential given these convictions and his prior record. [ 16 ] In response I received the May 2, 2012 letter of Dr. Angela Connors, who is a recognized expert in the area of clinical and forensic psychology particularly in the area of sexual deviancy. I am aware of, and accept, her credentials and expertise in this area.

She routinely provides such assessment reports to the courts in Nova Scotia. [ 17 ] She wrote: 1. Mr. H. has determined not to complete Comprehensive Forensic Sexual Behaviour Assessment as scheduled... he rescinded his consent to proceed... [to be tested by the means of the PPG apparatus]... on the grounds that he has never done anything wrong [either in 1994 or recently]... 2. [The circumstances have] raised the possibility that Mr. H. is an approach explicit sexual offender who offends relative to opportunity.

3. Although Mr. H. re-offended after proper sanctions for similar behaviour, and has offended over a lengthy time frame, it is also true that Mr. H. has not attended a treatment program designed to address sexual offending... he is not a viable treatment candidate. [ 18 ] She concludes: Thus, it is the opinion of the undersigned that rehabilitation not be prioritized in sentencing Mr. H.. External Management is more likely to be effective including no contact with females at, or under age 16 years whether supervised or not. [ 19 ] The Pre-Sentence Report indicates that Mr.

H. is employed, and is the sole family bread winner at this time for his common law partner, 21 year old daughter, and 15 year old son. It is otherwise unremarkable, except that it suggests that he has the continued support of his common law partner. She has been his partner for 21 years or since approximately 1992. [ 20 ] When Mr.

H. was asked whether he had counselling for his first sexual offence conviction, he was noted to have stated to the writer of the Pre-Sentence Report that “ he does not remember ” . [ 21 ] His common law partner suggests that “ the victim lied about the offences in retaliation as a result of [her] kicking the victim out of her home ” . [ 22 ] Mr. H. suggests that “ the victim lied... adding he believes the victim ’ s father was the one who was sexually abusing her and she blamed [Mr.

H.] ” . [ 23 ] I observe that at trial, his own daughter testified and neither she nor anyone else made mention of SG being “ kicked out of ” Mr. H. ’ s house at any time; moreover Mr. H. was given the opportunity to call SG ’ s father as a witness, yet with the benefit of occasional legal advice did not do so. [ 24 ] These comments remind me that Mr.

H. ’ s conduct has not only shattered the relationships that existed cordially between himself and SG ’ s mother and father, but also within his own family. [ 25 ] That he did so is not an aggravating factor in this sentencing, but an ongoing effect of his deliberate criminal and inappropriate behaviour regarding SG. [ 26 ] In

summary, I conclude that Mr. H. is an approach - explicit sexual offender who has a preference for young girls between the ages of 10 and 16 years old. He is a risk when in their proximity if an opportunity to offend should present itself, and such risk is greatest when he is known to them, and therefore they may be more easily exploited over time. Because he has refused to be fully assessed by Dr.

Connors and her staff, the precise risk of re-offending is unknown. [ 27 ] I conclude that his prospect for rehabilitation is very poor - he has now twice offended over a number of years; had the benefit of a prior sentence and the opportunity at least to obtain counselling; yet he steadfastly denies both the 1994 offence and those against SG. The internal ambition to rehabilitate himself is not present in Mr. H. at this time. [ 28 ] To best protect the public, as Dr. Connors noted; “ external management is more likely to be effective ” . Applicable Sentencing Principles

[ 29 ] The principles of sentencing have been codified and are set out in the following sections of the Criminal Code : 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. Objectives — offences against children 718.01 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 primary consideration to the objectives of denunciation and deterrence of such conduct. Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. 718.3

(4) The court or youth justice court that sentences an accused may direct that the terms of imprisonment that are imposed by the court or the youth justice court or that result from the operation of subsection 734(4) or 743.5(1) or (2) shall be served consecutively, when (

a) the accused is sentenced while under sentence for an offence, and a term of imprisonment, whether in default of payment of a fine or otherwise, is imposed; (

b) the accused is found guilty or convicted of an offence punishable with both a fine and imprisonment and both are imposed; (

c) the accused is found guilty or convicted of more than one offence, and (

i) more than one fine is imposed, (ii) terms of imprisonment for the respective offences are imposed, or (iii) a term of imprisonment is imposed in respect of one offence and a fine is imposed in respect of another offence; ... [ 30 ] In R v. Adams 2010 NSCA 3 at para. 27 , Justice Bateman stated: 27 In R. v. A.T.S., 2004 NLCA 1 , Rowe, J.A., writing for the Court, discussed these different approaches.

He concluded that, where a judge gives effect to totality by first fixing the global sentence and then assigning the individual sentences to fit within the whole, s/he is more likely to pass a sentence which is problematic. As he observes, this formulation leads to confusion about the appropriate sentence for the individual convictions, had they been committed alone. It creates further difficulties where some but not all of the convictions are

successfully appealed. In that instance, there is no guidance for the appellate court as to the appropriate sentence for the remainingoffences. I would agree. [31] She goes on to say: 23 In sentencing multiple offences, this Court has almost without exception endorsed an approach to the totality principle consistentwith the methodology set out in C.A.M. ... The judge is to fix a fit sentence for each offence and determine which should be consecutive and which, if any, concurrent. The judgethen takes a final look at the aggregate sentence.

Only if concluding that the total exceeds what would be a just and appropriate sentenceis the overall sentence reduced... This Court has addressed and rejected any approach that would suggest that, when sentenced for a collection of offences, the aggregatesentence may not exceed the "normal level" for the most serious of the offences. Ranges of Sentences for Similar Offences committed by Similar Offenders [32]

Section 718.2(

b) requires that there be a sense of parity between sentences imposed on similar offenders having committedsimilar crimes. Justice Bateman commented on the proper

interpretation of this notion in R v. Cromwell 2005 NSCA 137 at para. 26. [33] It is therefore important to consider the reported cases to ascertain the “range” of sentences that would generally apply in thiscase before the mitigating and aggravating factors [s. 718.2] are applied to this case specifically. [34] The Crown brief cites many cases, but I find they are not sufficiently similar to Mr. H.’s situation. The Crown suggests thatsuperficially some of the factually closest to Mr. H.’s offences are:

i) R v. EMW (No. 2) 2011 NSCA 87 - in which a father digitally penetrated his daughter’s vagina repeatedly as she was attempting tosleep between the ages of 9 and 11 years of age. He was convicted after testifying at the trial, and with no prior record, and beingfound not to be predator/danger to the community he was sentenced to two years in jail which sentence was affirmed by our Court ofAppeal. ii) R v. JBC 2010 NSSC 28 (Scaravelli, J) - in which a common law husband three times a week over a four year period sexuallyabused the 9 - 13 year old daughter of his common law wife.

The sexual abuse included occasions of digital penetration of the vagina,fondling of the chest, having her touch his penis, and one occasion of attempted vaginal intercourse. He had a related prior record andplead guilty to those previous offences in 1986. He was found guilty after a Judge and Jury trial on the most recent offences under s.151, s. 152 and s. 271 and was sentenced to six years in jail which the Judge described as “the minimum” appropriate sentence in thecircumstances.

An order delaying eligibility for parole until ½ of his sentence was served was also ordered under s. 743.6, as were ss. 487.051 DNA490.013(2)(

b) SOIRA, s. 161 and s. 109 Criminal Code firearms prohibition orders; iii) R v. DBS (2000) (NS SC), 185 NSR (2d) 101 (NSSC per Saunders, J., as he then was) in which a stepfatherregularly sexually abused his wife’s daughter from ages 6 - 15 years old. He was sentenced to five years in jail. His prior record wasirrelevant. He progressively sexually abused her starting with simulated sexual conduct, skin to skin fondling of her chest and vagina,licking of her chest and vagina and many incidents of sexualizing the home environment by way of pornography and exposing himself toher. No intercourse or fellatio occurred.

[ 35 ] Justice Fichaud of our Court of Appeal in EMW (No. 2) at para. 30, helpfully summarized the range of sentences for cases of sexual offences involving children in which there was no sexual intercourse. [ 36 ] I find that the specific circumstances in this case are not closely enough reflected in those cases to be materially helpful in setting a range of appropriate sentences in this case. [ 37 ] Here, in contrast to the usually cited cases, the actual incidents of criminal behaviour are limited in frequency, yet span many years. [ 38 ] That SG lived in great anxiety at the prospect of finding herself alone with Mr.

H. when she was visiting her father, over all those years between the ages of 10 and 15 years old, was established on the evidence. This ongoing impact of Mr. H. ’ s criminal and inappropriate sexualized behaviour amplified the impact of those occasions when he actually sexually abused SG. I keep this distinction in mind so as not to sentence Mr. H. for that anxiety, as if it was itself an offence. The fact that his actions caused such anxiety is however relevant to appreciate that the consequences of his criminal actions rippled far beyond the moments in which those offences were committed.

Crown Position on Sentence [ 39 ] The Crown argued that Mr. H. should be sentenced to: - 4 - 5 years in jail - delayed parole eligibility til ½ sentence served - s 743.6 - orders under s. 109 (lifetime), s. 161 (up to lifetime) DNA / s. 487.051 (mandatory), SOIRA s. 490.13(2)(b) (mandatory for life) Defence Position on Sentence [ 40 ] Mr. H. argues for the least sentence possible. Aggravating and Mitigating Factors [ 41 ] Fundamentally, the sentencing of Mr. H. must consider the circumstances of the offences (their gravity and nature) and those of Mr.

H., and specifically the level of his moral blameworthiness. [ 42 ] His moral blameworthiness is very high in this case:

i) He was considered to be the “ uncle ” of SG; ii) the offences all happened in locations where SG was in the process of visiting her father and Mr. H. knew SG would continue to return thus giving him further opportunities to abuse her;

iii) he deliberately and persistently over time chose to sexualize the environment of his household which was an effort to create more opportunities for himself to abuse SG; iv) he had a prior record and sentencing dedicated to protecting young girls from sexual abuse, yet it did not deter him;

v) the offences were committed over a long period of time and were wide ranging involving a very troubling invitation to sexual touching, fondling of SG ’ s breasts and vaginal area and two occasions of cunnilingus on SG when she was 10 - 12 years old. [ 43 ] As to mitigating factors, Mr. H. has been steadily employed and provided for his family, but he has not accepted responsibility for the offences so remorse is absent and not a mitigating factor here. He maintains that SG lied, and has the support of his wife.

His Pre-Sentence Report is neutral in effect - I note that commonly sexual offenders have positive Pre-Sentence Reports and no prior criminal record, but courts have indicated that in these kinds of offences usually this mitigating factor is less relevant [because general deterrence must be emphasized]. [ 44 ] On balance, the Court must emphasize deterrence, both specific and general in this case, and rehabilitation while not to be overlooked, has little prominence in these circumstances. [ 45 ] The Court has a duty to, by its sentence, express society ’ s condemnation of Mr.

H. ’ s conduct, to send a message to him and others of like mind that sexual abuse of children will be dealt with accordingly. [ 46 ] I believed SG beyond a reasonable doubt. Mr. H. ’ s actions prevented her from having a safe and happy childhood. It was not an easy thing to reveal what had happened to her in late April 2009, but it was the right thing to do. [ 47 ] Nevertheless, the “ cost ” to SG has been heavy and included: - a lost friendship with AG, whom she characterized as “ like a sister ” , and AG ’ s brother; - a lost connection with DG (Mr.

H. ’ s common law wife) and DG ’ s mother; and - the fact that these highly personal and embarrassing events are known to her family and close friends and perhaps others unknown to her; Decision on Sentence [ 48 ] I conclude that jail is required to deter Mr. H. and others - the prospect for rehabilitation is limited. [ 49 ] While the Crown suggests 4 - 5 years jail, I find that the cases it relies upon tend to involve more serious circumstances (more frequency of abuse; more serious abuse). I bear in mind the sentences affirmed for only several offences by our Court of Appeal in R v.

DNM [1992] NSJ No. 356 (6 months) and R v. TEH 2011 NSCA 117 , per Hamilton, JA (16 months). The maximum sentence available on each of these offences is 10 years in jail - R v. LM 2008 SCC 31 [2008] 2 SCR 163 . There the Court reminded us that even when considering maximum sentences, fundamentally a sentence still must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I conclude that fit and just sentences, keeping in mind the principle of totality are as follows:

Count #2 - 18 months Count #3 - 6 months consecutive Count #4 - 6 months consecutive That is a total of 30 months in jail. [50] I recommend C. R. H. have no contact with SG, MG or DG or the young witnesses in the case for the Crown - K.C., N.S., J.L.;and J.G.. I also recommend that he be considered for a sexual offender treatment program while incarcerated and on parole. Also I orders. 109(2) Firearms Prohibition Order for 20 years after his sentence ends but starting now; no notice of increased punishment was givenso the Order is not available under s. 109(3) for life - R v.

Ellis (2001) (ON CA), 143 OAC 43, per Rosenberg, JA; andorders pursuant to s. 161(2) (for 20 years after he is released from prison), s. 487.051(1) and s. 490.012(3) for life. I waive the victimfine surcharge fee. J.