R. v. Hodder, 2019 NLSC 148

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Hodder , 2019 NLSC 148 Date : August 2, 2019 Docket : 201803G0097 Her Majesty The Queen v. COLBY HODDER Restriction on Publication: By court order made under subsection 486.5(1) of the Criminal Code , information that may identify the person described in this judgment as K.H. or the complainant or the victim shall not be published, broadcasted, or transmitted in any manner. Before: Justice Kendra J.

Goulding Edited Oral Reasons for Judgment Place of Hearing: Grand Falls-Windsor, Newfoundland and Labrador Dates of Hearing: March 12, May 21, June 18 & June 21, 2019 Date of Oral Judgment: June 25, 2019

Summary: A youthful first offender pleaded guilty to one count of sexual interference involving a 15 year old child. He was sentenced to three years imprisonment with mandatory orders imposed.

Appearances: Karen J. O’Reilly and Tina. M. Walsh Appearing on behalf of the Crown Derek Ford Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Nasogaluak , 2010 SCC 6 ; R. v. A.B. , 2015 NLCA 19 ; R. v. Turner , 2019 NLPC 0918 A00321; R. v. Hammond , 2011 NLTD(G) 8; R. v. Muise , 2018 NLSC 8 ; R. v. Nightingale (2013), 332 Nfld. & P.E.I.R. 60 , 1030 A.P.R. 60 (N.L. Prov. Ct.) . STATUTES CONSIDERED: Criminal Code of Canada , R.S.C., 1985, c. C-46 . REASONS FOR JUDGMENT Goulding, J. : INTRODUCTION [ 1 ] The Offender, Colby Hodder, pleaded guilty to one count of sexual interference contrary to

section 151 of the Criminal Code of Canada , R.S.C., 1985, c. C-46 , which occurred on January 22, 2017, at a community in Central Newfoundland, in the Province of Newfoundland and Labrador. He was 21 years of age while the complainant, K.H., was 15 years old. Issue [ 2 ] The issue is the determination of a fit and just sentence for this Offender considering the circumstances of this offense.

Agreed Statement of Facts [ 3 ] K.H., was 15 years 9 months old on the date of the offense and was in the custody of the Manager of Child and Youth Services, residing at a home in Central Newfoundland which was supervised and staffed by Key Assets. [ 4 ] In January 2017, K.H. created a profile on Plenty of Fish which is an online dating site. It requires its users to confirm they are at least 18 years of age or older. Although K.H. acknowledged she was at least 18 years of age when she joined the dating site, in her profile visible to other users, she said she was 15 years old and was looking to make friends.

K.H. deleted her profile at the urging of a friend but before she did, she received some messages and had responded to several. K.H. began communicating with Colby Hodder through Plenty of Fish and subsequently, they started texting each other. [ 5 ] Hodder does not recall seeing K.H.’s age on her biography on Plenty of Fish. He was interested in having sexual intercourse with K.H. but also wanted to get to know her. [ 6 ] On Sunday, January 22, 2017, K.H. messaged Hodder and told him they could meet that day if he wanted. Hodder said okay and he would come when he got off work.

K.H. gave him directions to her residence. When K.H. expected Hodder to arrive, she went to the bottom of the street. Hodder texted her “blue car”. K.H. walked over to Hodder’s car. He rolled down the window and said he would move up because of the snowbank. She got in and they drove around. She told him they could not be long because her mom would be mad. Hodder does not recall K.H. mentioning her mom but does recall she said she could not be long. [ 7 ] Hodder turned the car around at the bridge and passed by K.H.’s house.

He went to a sandpit used by dump-trucks and drove in as far as he could, approximately 20 feet from the highway, and then parked. Hodder turned off all the lights except for the dashboard lights. K.H. could see the headlights passing on the highway. Hodder asked K.H. if this was as awkward for her as it was for him. K.H. said it was not awkward and Hodder said good. [ 8 ] Hodder reclined his seat and told K.H. to get on top of him, which she did facing him. Hodder held K.H.’s face close to his and started kissing her.

Both were fully clothed at this point and Hodder placed his hands down inside K.H.’s pants feeling her vagina and she placed her hand on his genitals. He then put his hands on her breast under her bra. Hodder then told K.H. to get off him so she could “do him”. K.H. got off of Hodder and sat in the passenger seat. Hodder pushed his seat back, undid his pants and asked K.H. if she wanted to “suck it”. K.H. performed oral sex on Hodder while Hodder placed his hands in K.H.’s pants again feeling her.

This continued for some time until K.H. gagged at which point Hodder said K.H. could stop. [ 9 ] Hodder took his own pants down but not all the way off. K.H. sat back in the passenger seat and then took off her boots and

Hodder removed the rest of her clothing. K.H. had been wearing black leggings, a Pokémon shirt, black bra and boots. Hodder told K.H. she was hot and told him to get on top of him again. He digitally penetrated her vagina and then he inserted his penis. Hodder told K.H. to kiss him, which she did. Hodder kissed K.H.’s neck and she told him not to leave any hickies because her parents would find out. Hodder said she could cover any hickies with makeup. [ 10 ] Hodder was hugging K.H. while thrusting his hips. K.H. told him it hurt and he told her it was supposed to.

Hodder sucked K.H.’s breasts and told her he had seen it in porn. Hodder told K.H. to kiss him again but she did not. Instead she hugged into him while he continued to thrust. K.H. told Hodder her mom was going to be mad because she was late. Hodder said she was already a little late, more would not matter. Hodder does not recall K.H. mentioning her mom. They continued and Hodder bit K.H.’s breasts again. Hodder then told K.H. to “blow him” and she performed oral sex on him again.

This time Hodder had his hands on her breasts where he had been sucking them and it hurt. [ 11 ] Hodder then asked K.H. to get back on top of him again. She did and they continued having sexual intercourse. Following this, Hodder told K.H. to lie down on her seat, which she did. Hodder then performed oral sex on her and pulled on her vagina. Hodder told K.H. to get on him, which she did. They engaged in sexual intercourse again with Hodder biting and kissing K.H. Hodder told K.H. she could sit in the passenger seat and get dressed, which she did. K.H. said she needed to get home. At no time did Hodder ejaculate.

Hodder pulled his pants back up and K.H. finished dressing. [ 12 ] While Hodder was driving K.H. back home, he had his hand down her pants again. When he dropped her off, they kissed and he said see you next time. K.H. got out of the car and Hodder hit her buttocks. [ 13 ] K.H. was gone for approximately one hour. She was late getting home and got in trouble with a Key Assets employee. Hodder texted K.H. later and said he hoped she had fun. She asked him if he wanted more and he said definitely.

They continued texting and made arrangements to meet January 25, 2017 in Grand Falls-Windsor. [ 14 ] In their messages between January 22 and January 25, 2017, Hodder and K.H. discussed what they intended to do sexually. This was mostly acts Hodder suggested and K.H. either agreed to do it or try it or to see how it goes. These acts ranged from oral sex to anal sex to light choking to bondage. Also, in these messages between January 22 and January 25, 2017, K.H. asked to stay with Hodder for the night but Hodder was concerned her parents would call the police to try to find her.

Further, he was concerned that if someone saw them together, it would be reported and they would both get in trouble. Hodder also believed K.H.’s parents would drive her to Grand Falls-Windsor, return home and would text her when they were coming back to get her. He also believed she would be able to stay until 8:30 p.m. Following these messages on January 25, 2017, a Key Assets employee dropped K.H. off at a gym in Grand Falls- Windsor but stayed in the car outside the gym. She saw K.H. leave the gym, go across the street and get in a car with Hodder. When Hodder saw the employee coming, he stopped his car.

The employee stood in front of the car so it could not leave and told Hodder that K.H. was 15 years old. K.H. then got out of the vehicle and Hodder left. [ 15 ] Hodder and K.H. continued to message each other up to and including the following day wherein they discussed meeting again and Hodder expressed his desire that he did not want any trouble and also asked if K.H. had gotten into trouble. [ 16 ] On January 26, 2017, a Key Assets employee contacted the Grand Falls-Windsor Royal Canadian Mounted Police (“RCMP”) regarding K.H. and Hodder’s communication and meeting.

At approximately 12:00 p.m. on January 26, 2017, Constable Jonathon Milley attended the Key Assets facility to speak with K.H. Constable Milley seized K.H.’s phone, read some of the messages between K.H. and Hodder on the phone and obtained photographs. [ 17 ] K.H. was reluctant at first to speak with Constable Milley about the matter but opened up somewhat. She was unable to finish the interview and asked to speak with a female officer. Arrangements were then made for her to speak with Constable Denise Sutton on January 30, 2017. Constable Sutton met with K.H. and obtained a second statement.

Constable Sutton also observed and took photographs of two bruises on K.H’s breasts which she said were caused by Hodder biting her. K.H. advised there was a third bruise but would not allow Constable Sutton to take a photograph as she was shy. K.H. also told Constable Sutton she was worried she was pregnant. It was later determined K.H. was not pregnant. [ 18 ] On February 21, 2017, Constable Ian Dollimount attempted to contact Hodder by calling the cell number provided by K.H. but it was no longer in service. The police were able to obtain a current address and attended same.

Hodder answered the door and identified himself using a provincial driver’s licence with photo. Hodder was advised he was under arrest for sexual interference. When asked if he understood the reason for his arrest, he asked if this had to do with K.H. Constable Dollimount advised him it did and asked if he understood the reason for his arrest at which time he said yes. Hodder was then advised of his

section 10 Charter rights and indicated he understood and wished to speak with a lawyer. Constable Dollimount advised Hodder he could speak with a lawyer privately when they arrived at the detachment. Hodder said okay. Hodder was then provided the police caution and indicated he understood. [ 19 ] While travelling to the detachment, Constable Dollimount explained to Hodder that there were three charges. Hodder kept saying yes and also said that he “fucked up” and he knew it.

He said it was not until after that he found out that K.H. was actually 15 years old. [ 20 ] Once at the detachment, Hodder spoke to legal counsel. After his call with counsel ended, Hodder again said to Constable Dollimount that he knew he “fucked up” and would have to face it.

Constable Dollimount asked Hodder if he knew how old K.H. was when they met and while Hodder said he knew her age, he was confused over when K.H. actually told him saying it was the night they met and then saying it was when a Key Assets employee approached him. [ 21 ] Hodder was then brought to the formal interview room where the interview was audio and video recorded. During the formal interview, he did not provide any new information. He was held overnight and released before a Provincial Court judge the following morning. Position of the Crown

[22] The Crown submits that a term of imprisonment of three years with mandatory ancillary orders is appropriate and is at the lowend of a sentence for sexual intercourse with a child under the age of 16 years. Position of the Defence [23] The Defence requests a term of imprisonment in the range of 18 to 24 months be imposed given the presence of mitigatingfactors. The Offence Sexual Interference under

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

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment ofimprisonment for a term of one year; or Principles of Sentencing [24] In R. v. Nasogaluak, 2010 SCC 6, Justice Label highlighted the relevant principles of sentencing pursuant to

section 718 of theCriminal Code of Canada at paragraphs 39 and 40: 39 The objectives and principles of sentencing were recently codified in ss. 718 to 718.2 of the Criminal Code to bring greaterconsistency and clarity to sentencing decisions. Judges are now directed in s. 718 to consider the fundamental purpose of sentencing asthat of contributing, along with crime prevention measures, to "respect for the law and the maintenance of a just, peaceful and safesociety".

This purpose is met by the imposition of "just sanctions" that reflect the usual array of sentencing objectives, as set out in thesame provision: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation, and a recent addition:the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community. 40 The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be "proportionate to the gravity ofthe offence and the degree of responsibility of the offender".

Thus, whatever weight a judge may wish to accord to the objectives listedabove, the resulting sentence must respect the fundamental principle of proportionality.

Section 718.2 provides a non-exhaustive list ofsecondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity andtotality, and the instruction to consider "all available sanctions other than imprisonment that are reasonable in the circumstances", withparticular attention paid to the circumstances of aboriginal offenders. [25]

Section 718.01 of the Code states that a court imposing a sentence for an offence that involved the abuse of a person under theage of eighteen years shall give primary consideration to the objectives of denunciation and deterrence of such conduct. Section718.2(ii.1) requires that the abuse of a person under the age of 18 years be deemed an aggravating circumstance. Caselaw Cited by the Crown [26] In R. v.

A.B., 2015 NLCA 19, at paragraph 23, Welsh, J.A., writing for a unanimous court, referenced the conclusion in R. v.Payne, 2012 NLCA 72 23. …that a three year term of imprisonment for sexual assault of a thirteen year old girl involving intercourse is at the low end of therange. [27] At paragraph 24, Welsh, J.A., referred to R. v. Barrett, 2012 NLCA 46: 24 In R. v. Barrett, 2012 NLCA 46, 324 Nfld. & P.E.I.R. 246 (N.L. C.A.), the Court discussed the effect of the statutory inability of aminor to consent to sexual conduct contrary to

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

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 for thesexual assault of H.P. [28] In Barrett, an additional six months over the three years was appropriate to:

…take account of Mr. Barrett's persistence in disregarding B.S.'s express desire not to engage in sexual intercourse and exposing her to the risks of pregnancy, as well as his "premeditation and planning", ….

These sentences, being at the low end of the range, take account of the principles of sentencing listed in s. 718 of the Code , and in particular, the objective of assisting in the rehabilitation of offenders. [ 29 ] Welsh, J.A. summarized the relevant factors for a sentencing judge in paragraph 26: 26 These decisions indicate that a term of imprisonment of three years is at the low end of the range in sentencing an adult offender for sexual assault involving intercourse where the complainant is below the age of consent.

The range serves to assist the court in determining a sentence consistent with the principle that similar sentences should be imposed on "similar offenders for similar offences committed 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. CaseLAW CitED by the Defence [ 30 ] In R. v. Turner , 2019 NLPC 0918 A00321, Linehan, P.C.J. sentenced Mr. Turner to 20 months imprisonment followed by 12

months of probation. Mr. Turner, who was 21 years old at the time of the offence, was involved in a relationship with a 15 year old complainant for one month. The sexual misconduct consisted of kissing and one incident of intercourse of short duration as it ended when the complainant said it hurt. Mr. Turner pleaded guilty. It was noted he suffered from frontal lobe deficits and had borderline intellectual functioning.

Linehan, P.C.J. referred to A.B. and stated he would have imposed a sentence of three years as there was no basis to depart from the range as set out in A.B. ; however, the Crown had requested only 20 months imprisonment and he was reluctant to impose a longer term. There is no indication from my review of the Turner decision that the Crown explained the rationale for requesting a sentence which was 16 months less than the low end of the range. [ 31 ] In R. v. Hammond , 2011 NLTD(G) 8, a 26 year old first offender was sentenced to 12 months imprisonment for sexual interference involving a 14 year old complainant.

Mr. Hammond had supplied alcohol to the complainant prior to engaging in sexual intercourse with her. The Crown takes issues with the Justice’s comments in paragraph 23. I agree with the Crown that deterrence is a primary consideration. This decision predates Payne , Barrett and A.B. (all decisions of the NLCA) in which there is a very clear and binding direction as I referenced earlier. [ 32 ] In R. v.

Muise , 2018 NLSC 8 , an aboriginal offender, who was 18 years old on the date of the offence, was sentenced to 30 months imprisonment for sexual interference involving sexual intercourse with an intoxicated 13 year old complainant. Mr. Muise pleaded guilty and eventually accepted responsibility for his actions. Mr. Muise is Mi’kmaq and a recognized member of Qalipu First Nation Band which triggered a Gladue analysis, a factor which is not present in the case before me. [ 33 ] Mr. Muise was born to a young alcoholic mother. His parents were largely absent from his childhood.

His father was serving a Federal sentence for a sexual offence on a child. Mr. Muise had been in foster care and eventually a treatment centre wherein he witnessed incidents of physical discipline on aboriginal children. The systemic and background factors affecting him as an aboriginal were considered by Stack, J. and resulted in a sentence below what has been identified as the floor for sentencing in such circumstances. [ 34 ] In R. v. Nightingale (2013), 332 Nfld. & P.E.I.R. 60 , 1030 A.P.R. 60 (N.L. Prov.

Ct.) , a 24 year old was sentenced to 30 months imprisonment for sexual intercourse with a 13 year old after grooming her through extensive sexual contact by way of Facebook. Again, the Crown sought 12 to 15 months on each count to be served consecutively. The Crown appeared to have relied on decisions that pre- dated Barrett , Payne and A.B .

Extent of the Assault and the Degree of Violence or Force Used [ 35 ] The offence occurred on January 22, 2017 during which Hodder directed K.H. to perform various sexual activities, including three episodes of sexual intercourse, two incidents of oral sex on him and one on her, digital penetration of her vagina and biting of her breasts. At one point, K.H. told Hodder the sexual intercourse hurt and he replied it was supposed to and continued. Eight days later, Constable Sutton was still able to observe bruises on K.H.’s breasts. [ 36 ] Planned or Calculated Conduct by the Offender .

The Offender planned to have sexual intercourse with the victim. He took her to a dumpsite and engaged almost immediately in sexual activity. After the first occasion, he continued to text her indicating his desire to see her again and suggesting further sexual activities including, but not limited to, anal sex, light choking and bondage. Fortunately, on the second occasion, the diligence of an employee who ran after Hodder’s vehicle and stood in front of it, prevented any further violation and abuse of this victim. [ 37 ] The Degree of Trust . Hodder was not in a position of trust over the victim.

However, he is the adult and he must accept full and total responsibility for this offence on a child. [ 38 ] Impact of the Crime on the Victim . The victim impact statement of K.H. indicates she is angry and sad over what happened to her. It has affected her attendance at school, she is very stressed over Court appearances and has harmed herself by cutting. I believe she is determined to not let the actions of the offender defeat her.

I recognize her strength and courage in participating in this proceeding to its conclusion and in her expression that despite everything that has come her way, she will shine. [ 39 ] Impact on the Offender and his Antecedents . It is stated in the pre-sentence report that Hodder lost employment when he was charged. He resides with his parents and is now 23 years old. He is presently involved in a relationship with a woman who is aware of this matter. He advised that he has a very loving family who are supportive of him. He graduated from high school and commenced a paramedics course.

He assists his parents around the home as his father was involved in an accident many years ago and is disabled. Family members report he was the victim of severe bullying and suffers from depression. He has attempted suicide in the past, the latest being since he was charged. He indicated to the Probation Officer that he takes full responsibility for the offence. [ 40 ] Prior Criminal Record . Hodder is a first offender which is a mitigating factor. He was 21 years old on the date of the offence and is a youthful offender. [ 41 ] Plea . Hodder has entered a guilty plea and appears to be sincerely remorseful.

However, K.H. was required to testify at the Preliminary Inquiry. [ 42 ] Disparity in Ages . Hodder is approximately five years ten months older than K.H. I have noted K.H. was about three months away from the age of consent. [ 43 ] Risk to Offend . The Probation Officer determined that Hodder was at a low to medium risk to commit another sexual offence. The risk factors are his age, single status and the fact he did not know his victim. The defence points out that Hodder is now in a relationship. I accept that his prospects for rehabilitation are positive. [ 44 ] Public Abhorrence of the Crime .

Sexual crimes against children attract a high degree of public abhorrence. Such despicable conduct must be clearly denounced with emphasis on deterrence of like-minded persons. SENTENCING

[ 45 ] The mitigating factors of a guilty plea, the lack of a prior criminal record, the youthfulness of the offender and the sincere expression of remorse require a term of imprisonment at the low end of the range, which is three years imprisonment. After full review of the matter, there are no factors present in this case that would take it outside the low end of the range. [ 46 ] Hodder is sentenced to a term of imprisonment of three years (less three days pre-sentence custody). I impose the following orders: i. DNA order pursuant to

section 487.051 of the Criminal Code permitting the taking of bodily substances from Colby Hodder for DNA profiling and analysis; ii. In accordance with

Section 490.013(2) (

b) of the Criminal Code , to comply with the Sexual Offender Information Registration Act for 20 years commencing today; iii. Mandatory firearm prohibition order under section 109(1)(

a) for 10 years commencing on the date of his release from prison. _____________________________ Kendra J. Goulding Justice