R. v. G.O., 2022 NLSC 113

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. G.O. , 2022 NLSC 113 Date : July 8, 2022 Docket : 202006G0016 Her Majesty The Queen v. G. O. Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Katherine O'Brien Place of Hearing: Grand Bank, Newfoundland and Labrador Dates of Hearing: October 25-28, 2021; December 10, 16, 2021; May 13, 2022

Summary: This is a sentencing decision for the offences of incest, sexual interference, invitation to sexual touching, uttering threats and assault. The victim of all offences was the offender’s daughter (aged 10 -11). The Court determined the appropriate individual sentence for each offence. Then, in accordance with the principle of totality, the Court decided that some of the sentences should be served concurrently so that the total sentence would not be unduly long or harsh. As a result, a global sentence of 8.5 years of incarceration was imposed, less credit for time served. The Court made additional ancillary orders. Appearances:

Alison J. Manning Appearing on behalf of the Crown Anthony E. St. George Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Friesen, 2020 SCC 9; R. v. Parranto, 2021 SCC 46; R. v. W.(A.) 2018, 150 W.C.B. (2d) 384, 2018CarswellNfld 370 (NLPC); R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729; R. v. R. M., 2015 NSSC 189; R. v. M.O., 2017NLTD(G) 96; R. v. G.C., 2020 ONSC 7381; R. v. H.C.T.T., 2020 BCCA 366; R. v. J. F., 2021 ONSC 7613; R. v. Hutchings, 2012 NLCA2 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Charter of Rights and Freedoms,

Part I of the Constitution Act,1982, being

Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11; Sex Offender Information Registration Act, S.C. 2004, c. 10 REASONS FOR JUDGMENT O'Brien, J.: INTRODUCTION [1] I found G.O. guilty of six offences under the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”) following a trial by judgealone. Those offences are: sexual interference (section 151, 2 counts), invitation to sexual touching (section 152), incest (section 155),uttering threats (section 264.1) and assault (section 266). G.O.’s daughter, A., was the victim of the offences. This is my decision onsentence.

ISSUES [2] I have to decide the appropriate individual sentences for each of these crimes and the appropriate overall sentence for G.O. RELEVANT FACTS [3] G.O. was A.’s primary parent since she was approximately three years old. No one else lived with them. The offenceshappened when A. was 10 and 11 years old. During this period, G.O.’s mental health deteriorated, he drank heavily, and he wasemotionally volatile. The abuse ended when G.O. was hospitalized for mental health treatment and A. left his care. [4] During the first incident of abuse that A. described, G.O. made her touch his penis with her mouth.

A. described repeated actsof sexual abuse of this nature. She said G.O. “showed her” what to do. She said the abuse happened “probably every day” and that itwould usually end when he ejaculated. Sometimes A. would cry or say she did not want to do it. This made G.O. angry. Sometimes,when he was really drunk and angry, he hit her. [5] On one occasion, G.O. penetrated A.’s vagina with his penis. A. recalled screaming because it was painful. [6] On another occasion, with G.O.’s encouragement, A. took a sleeping pill in an effort to avoid the pain of intercourse.

Whenshe became groggy, G.O. attempted to penetrate A.’s vagina with his penis. A. was in and out of sleep and did not recall if penetrationoccurred. [7] The uttering threats offence arises from an incident when G.O. pointed what was likely a pellet gun at A. and threatened to killher and then himself. A. described him as being like a “crazy person” at the time. She was very afraid. [8] The assault offence arises from an incident when one of A.’s friends was present. G.O. lost his temper and threw a booktowards the girls. He then either hit or grabbed A.’s face. [9] A. described a difficult life with her father.

When he was well and sober he was a kind and loving parent and she loved him.When the abuse began, A. described him as changing completely. [10] A. was confused and scared. She loved her father but she did not like what was happening. G.O. told her their sexual contactwas normal, and that her friends’ fathers did it to them. G.O. told her not to tell any anyone it was happening. A. missed long periods of

school because G.O. was lonely and wanted her at home. A. was afraid that if her father could not take care of her, she would have nowhere else to go. DECISION [ 11 ] I have determined that the appropriate global sentence for G.O. is 8.5 years of imprisonment, less time served, plus ancillary orders. My reasons are as follows. SENTENCING OBJECTIVES General principles [ 12 ] Determining an appropriate sentence starts with the principles of

section 718 of the Code . The sentence must contribute to respect for the law and the maintenance of a just, peaceful, and safe society. It should meet one or more of the following objectives: denunciation, deterrence, separation of offenders from society (where necessary), rehabilitation, reparation, and general promotion of a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community. [ 13 ] The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal.

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender ( R. v. Friesen , 2020 SCC 9 , at para. 30 ; R. v. Parranto , 2021 SCC 46 , at para. 10 ). [ 14 ] It is important to consider the offender’s personal circumstances including family and social background, alternatives to incarceration (where they are available and appropriate), and any factors that mitigate or aggravate the offences.

The sentencing sections of the Code have as their primary focus the protection of the public, which is best achieved by crafting a sentence that fits both the offence and the offender. [ 15 ] While each case and each offender is unique, a fit sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is known as the principle of parity. To arrive at a sentence that is in parity with other sentences , courts look at comparable sentencing decisions.

The principle of parity is secondary to the principle of proportionality, but the two are not at odds with each other. This is because parity assists courts in fixing a proportionate sentence ( Friesen , at para. 31 ; Parranto , at para. 11 ). Sentencing for sexual offences against children [ 16 ] In Friesen , the Supreme Court of Canada gave new direction on sentencing for sexual offences against children. The court made clear that protecting children from wrongful exploitation and harm is the overarching objective of the Code provisions that address such crimes.

It also made clear that violence is always inherent in the act of applying force of a sexual nature to a child and so these crimes are ones of sexual violence against children. At paragraph 50, the court stated: To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm they cause. Getting the wrongfulness and harmfulness right is important. [ 17 ] As explained in Friesen , the harm goes far beyond any physical harm, pain, fear or confusion children might feel at the time of the abuse.

Sexual violence can interfere with a child’s healthy development to adulthood. The effects can be devastating and permanent. Sexual violence also causes harm to children by damaging their relationships with their families and communities and can have devastating ripple effects into those groups ( Friesen , at paras. 60-64 ). [ 18 ] The moral wrongfulness of child abuse is particularly high because it exploits children’s weaker position in society. Children are most vulnerable and at risk at home and among those they trust. As a result, sexual violence against children is often invisible to society.

To resist detection, offenders perpetrate sexual violence against children in private, coerce children into not reporting, and rely on society’s false belief that sexual violence against children is an aberration confined to a handful of abnormal individuals ( Friesen , at paras. 65-67 ). [ 19 ] Sexual violence also has a disproportionate impact on girls and young women. Like the sexual assault of adults, sexual violence against children is highly gendered ( Friesen , at para. 68 ). [ 20 ] Denunciation and deterrence are the most important factors to consider in sentencing child abuse ( Code ,

section 781.01). In order to determine a proportionate sentence for G.O. I must recognize and give effect to: (1) the inherent wrongfulness of his offences; (2) the potential harm to A. that may flow from his offences; and, (3) the actual harm that A. has suffered because of his offences ( Friesen , at para. 76 ). RANGE OF SENTENCE UNDER THE CODE [ 21 ] The Code sets minimum and maximum punishments of imprisonment for these crimes when prosecuted by indictment as follows: a. Sexual interference – minimum one year, maximum 14 years b. Invitation to sexual touching – minimum one year, maximum 14 years

c. Incest – minimum five years, maximum 14 years d. Uttering threats – no minimum, maximum 5 years e. Assault – no minimum, maximum 5 years [22] Although a number of mandatory minimum sentences in the Code have been subject to successful challenges under the Charterof Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 (the“Charter”) across Canada, to my knowledge, the above mandatory minimum sentences remain in force and effect in this province[1]. NoCharter challenge was brought in this case. CROWN POSITION [23] Crown counsel submitted that a global sentence of 10 years imprisonment is appropriate. She suggested that the followingsentences of imprisonment were appropriate for each count: a. Sexual interference (section 151) – three to four years b. Invitation to sexual touching (section 152) – two to three years c. Incest (section 155) – 10 years d.

Uttering threats (section 264.1) – three to six months e. Assault (section 266) – six months [24] Applying the principal of totality to prevent the overall sentence from being unduly long or harsh, Crown counselrecommended that the sentences for the other offences be served concurrently with that for incest. [25] Crown counsel agreed that one of the sexual interference charges should be stayed on the basis of R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729.

In Kienapple, the Supreme Court of Canada ruled that an offender cannot be convicted of twocriminal offences on the same or substantially the same elements and facts. The two sexual interference offences were charged with thesame date ranges and there was nothing to distinguish one from the other on the indictment. [26] Additionally, Crown counsel sought ancillary orders under the Code. She sought the following mandatory orders: a DNAorder, a

section 109 firearms prohibition for life, and an order under the Sex Offender Information Registration Act, S.C. 2004, c. 10(SOIRA) for life. She also requested a prohibition order for life pursuant to

section 161 of the Code, which would prohibit G.O. fromcertain activities that could bring him in contact with A. or with other children. Finally, she sought an order pursuant to

section 743.21 ofthe Code to prohibit G.O. from communicating with A. or A.’s mother while he is in custody. [27] Crown counsel asked me to consider the following aggravating factors in relation to sentence: a. G.O.’s position of trust as A.’s father b. A.’s young age c. The violence and high degree of manipulation G.O. used to control A. d. The harm done to A. e. G.O.’s criminal record [28] Crown counsel did not identify any mitigating factors. She submitted that G.O. should be credited at a ratio of one and one-halfdays for each day spent in pre-sentence custody (1.5:1).

DEFENCE POSITION [29] Defence counsel submitted that a global sentence of seven years and the following individual sentences were appropriate: a. Sexual interference (section 151) – two years b. Invitation to sexual touching (section 152) – two years c. Incest (section 155) – seven years d. Uttering threats (section 264.1) – three to six months e. Assault (section 266) – six months [30] He also submitted that the sentences should be served concurrently in accordance with the principal of totality. He agreed withCrown counsel’s submissions regarding 1.5:1 sentencing credit and the mandatory ancillary orders.

He did not take any issue with Crowncounsel’s position regarding the discretionary

section 161 prohibition order or the

section 743.21 non-communication order. [31] Defence counsel acknowledged G.O.’s criminal record but noted that it is dated, with a significant period of no convictions,and that G.O. has no prior sexual offence convictions.

[ 32 ] Referring to the Pre-Sentence Report, defense counsel reviewed G.O.’s personal history noting that G.O. was a victim of child abuse himself. Defense counsel also noted that G.O. has a long history of substance abuse and mental health issues. analysis Circumstances of the Offender [ 33 ] A Pre-Sentence Report was prepared and filed to inform me of G.O.’s circumstances. G.O. is in his fifties and has lived most of his life in the same community. He left school when he was young and his education is limited to upgrading to a grade 10 level.

Other than a prolonged period of work when he was a younger man, G.O. has mostly had only sporadic, short-term work. [ 34 ] G.O.’s father died when G.O. was young. His mother died more recently. G.O. maintains a relationship with his brother and stepfather. [ 35 ] G.O. states that a former partner of his mother physically, emotionally and sexually abused him as a child. He never reported the abuse and does not believe that his mother was aware of it. G.O. began using alcohol and then other drugs when he was a child. G.O.’s substance abuse continued to adulthood. [ 36 ] G.O.’s criminal record dates back to 1987.

The only charges related to his present offences are two convictions for uttering threats, in 2008 and 2009. Other than those offences and another from the same period for obstructing a peace officer, he has had no other convictions since 2002. [ 37 ] The probation officer who completed the Pre-Sentence Report stated that in the course of doing her work, she became aware that G.O. was struggling with his mental health. The probation officer noted that staff at the facility where G.O. has been remanded had recorded concern about his behavior and level of disorientation.

The probation officer spoke to a psychiatrist who has treated G.O. since his incarceration. That doctor advised that G.O.’s levels of paranoia had improved since early February 2022. The doctor had no further concerns and no follow up appointments scheduled with G.O. [ 38 ] The probation officer recommended that G.O. continue to seek the services of psychiatry and mental health staff. She also wrote that G.O. might benefit from programming or counselling directed at reducing sexual offender recidivism. [ 39 ] It is noted in the Pre-Sentence Report that G.O. maintains his innocence.

That is his right and it is a neutral factor for sentencing. Victim Impact Statement [ 40 ] A Victim Impact Statement was filed for A.. In it, A. describes how her world has changed because of G.O.’s abuse. She describes feeling hate and sadness and feeling like the world is against her. A. writes of her loss of self-esteem, confidence, and her freedom to live happily and to trust people. [ 41 ] A. describes not being able to go outside without her body fully covered. She feels like she is being violated. She suffers from nightmares and has trouble with eating.

She also has anxiety and panic attacks for which she is medicated. A. struggles to understand why her father abused her and lied to her. [ 42 ] Despite the harm she describes, A. ends her statement with a positive thought, writing, “I [am] hoping someday as I grow I will be better at putting this all behind me. It will never go away but I [am] sure I can and will fight it and find a way to cope with it all and move on with my life.” Aggravating Factors [ 43 ] The most significant aggravating factor is G.O.’s egregious breach of trust over a two-year period.

A. was a 10 and 11 year old girl who was entirely dependent upon her father. She believed that he was the only person she had in the world and she loved him. [ 44 ] G.O. took A.’s love and trust and manipulated it for his own sexual gratification. He isolated her from school and friends. He told her what he was doing to her was normal. He told her he was lonely and made her feel bad for him. G.O.’s moral culpability is extremely high. [ 45 ] I also find it a significant aggravating factor that G.O. encouraged A. to take a sleeping pill to facilitate his abuse.

Drugging a child to make sexual assault easier is a heinous act. [ 46 ] Several of the statutory aggravating factors apply. The victim was a member of G.O.’s family ( Code ,

section 718.2 (a)(ii)). This applies to all but the incest charge, which has the family relationship as an element of the offence. A. was under the age of 18 years old ( Code ,

section 718.2 (a)(ii.1)), which applies for the offences other than those for which her age is an element of the offence. G.O. was in a position of trust and authority in relation to A. ( Code ,

section 718.2 (a)(iii)). There is evidence that these offences have had a significant impact on A. ( Code ,

section 718.2 (a)(iii.1)). [ 47 ] On this latter point, I note that Friesen has made clear that I do not require specific evidence of harm done to A. in order to consider on sentencing the harm that has been done and which may come to her. Serious harm to children is implicit in these crimes.

However, I do have specific evidence because A.’s Victim Impact Statement very effectively illustrates many aspects of the damage to children that the Supreme Court discussed at length in Friesen . [ 48 ] With respect to the conviction for uttering threats, I consider it an aggravating factor that G.O. was pointing a pellet gun, or something similar, at A. when he threatened to kill her. Mitigating Factors

[ 49 ] I recognize that G.O. has not had an easy life. He lost his father at a young age and he was abused as child. He struggles with substance abuse and mental health issues. Comparable Sentencing Decisions [ 50 ] Of the cases filed by counsel, the following are the best comparators for G.O.: a. R. v. R. M. , 2015 NSSC 189 . A father sexually abused his daughter over a period of eight years, when she was between the ages of 6 and 14. Following trial, he was found guilty of sexual assault, sexual interference, invitation to sexual touching and attempted incest.

The abuse was frequent and regular and escalated over time. The offender manipulated and groomed his daughter in a premediated way. There was a joint submission on sentence for six years of imprisonment for sexual assault, one year (concurrent) for invitation to sexual touching, and six years (concurrent) for attempted incest. The court considered the submission to be on “the low side” because of the many aggregating factors present, but ultimately accepted it as being within the established range of sentences for the offences. Although it pre-dates Friesen , this case has many similarities to that of G.O.

The two most significant distinguishing factors are that in R.M. the abuse continued for a longer period and that I have not been given a joint submission on sentence. b. R. v. M.O. , 2017 NLTD(G) 96. A father pleaded guilty to two counts of sexual assault, two counts of sexual interference, one count of invitation to sexual touching and one count of incest in relation to his 13-year-old daughter. The abuse happened over two distinct periods in the same year, a one-and-a-half month period and a two-week period.

M.O. took responsibility for his actions, had some insight into the seriousness of his offences and showed remorse. He was sentenced to 30 months for the sexual assaults, 18 months for the sexual interferences, 18 months for invitation to sexual touching and 6 years for incest. The sentences were concurrent. From the decision, I cannot tell how many incidents of incest occurred. This case pre-dates Friesen . c. R. v. G.C. , 2020 ONSC 7381 . A father was convicted following trial of sexual assault and incest in relation to his daughter.

The offences took place over twenty years previously, when the daughter was between 16 and 20 years old. The father, who was living in Canada, brought his daughter into the country from Africa shortly before the abuse began. He groomed her and told her that sex between fathers and daughters was a confidential but normal activity. She was dependent upon him. The abuse, including sexual intercourse, took place on at least a weekly basis. The daughter became pregnant at 19 years old. The pregnancy was terminated and kept secret from the rest of the family.

When the daughter finally came forward, she became estranged from her family who viewed her as a ‘home breaker’ and an ingrate. The father was 67 years old at the time of sentencing, had no criminal record and had lived a “pro-social” life in the community. The court considered the direction of Friesen and sentenced G.C. to 10 years for incest and 7 years for sexual assault, concurrent. The abuse in G.C. was for a longer period than that of the present case and included many acts of incest. d. R. v. H.C.T.T. , 2020 BCCA 366 .

The offender was convicted of incest, sexual interference, invitation to sexual touching, making sexually explicit material available to a person under 16, and assault in relation to his daughter. The abuse began when she was 11 years old and continued for four years. It included multiple incidents of intercourse. The offender appealed his sentence of seven-and-a-half years of imprisonment for incest, with sentences for the other charges running concurrently. The appeal was dismissed.

The sentencing judge had considered evidence of the offender’s physical health problems and low cognitive abilities, which would render his incarceration more difficult. The sentencing decision pre-dated Friesen , but the appeal decision did not and the court of appeal considered its guidance. The court of appeal concluded that the sentence given was “entirely fit”. e. R. v. J. F. , 2021 ONSC 7613 . A father sexually abused his daughter over a period of four years, when she was between the ages of 11 and 15.

The assaults progressed from fondling of the breast and vaginal areas to full intercourse on multiple occasions. He was sentenced to nine years of imprisonment for incest, and three years for sexual interference, concurrent. This case was post- Friesen . The judge took guidance from that decision and noted the significant and devastating impact that the abuse had on the victim and other members of her family. The father took no responsibility for his actions and showed no insight into their ramifications.

Without counseling and treatment, the court considered him to continue to be a moderate risk to the community. That J.F. had no criminal record, was supported by much of his family and presented character letters, were not viewed as “particularly strong” mitigating factors. There are many similarities to this case and that of G.O.

The two major distinguishing factors are that in J.F. the abuse period was longer and there were multiple incidents of intercourse. sentence Appropriate sentences for each offence [ 51 ] In Friesen , the Supreme Court of Canada wrote: [114] D. (D.) , Woodward , S. (J.) , and this Court’s own decisions in M. (C.A.) and L.M. make clear that imposing proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will frequently require substantial sentences. Parliament’s statutory amendments have strengthened that message.

It is not the role of this Court to establish a range or to outline in which circumstances such substantial sentences should be imposed. Nor would it be appropriate for any court to set out binding or inflexible quantitative guidance — as Moldaver J.A. wrote in D. (D.) , “judges must retain the flexibility needed to do justice in individual cases” and to individualize the sentence to the offender who is before them (at para. 33). Nonetheless, it is incumbent on us to provide an overall message that is clear ( D. (D.) , at paras. 34 and 45).

That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim , as in this case, Woodward , and L.M. In addition, as this Court recognized in L.M. , maximum sentences should not be reserved for the “abstract case of the worst crime committed in the worst circumstances” (para. 22).

Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para. 20). [Emphasis added.] [ 52 ] With this direction in mind, I have decided that the appropriate individual incarceration sentences for the sexual offences are as follows:

a. Sexual interference (section 151) – two and a half years b. Invitation to sexual touching (section 152) – two and a half years c. Incest (section 155) – eight years [ 53 ] In determining these sentences, I have considered the guidance of Friesen and all of the circumstances discussed above. All children are vulnerable, but A. was particularly so because she lived alone with her father. He kept her home from school, involved her in his lifestyle of substance abuse, was violent, and manipulated her for his own pleasure.

The wrongfulness of his actions and the harm he has caused must be strongly denounced. [ 54 ] In deciding the sentence for incest, I have considered that there was only a single incident. This is the primary reason that I decided upon a lower sentence than the nine-year sentence given for the same offence in J. F.

I decided upon a higher sentence than that which was upheld by the court of appeal in H.C.T.T. , but I did not have evidence of mitigating factors such as were present in that case. [ 55 ] In assessing the principle of parity, I have considered the Supreme Court of Canada’s statements in Friesen that an upward departure from prior precedents or expressed sentencing ranges may be necessary to correspond to Parliament’s legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes (see Friesen , at paras. 107 to 114 ).

In coming to a fit and proportionate sentence, I have evaluated comparable sentences decided pre- Friesen in light of changes to the law and the development of our understanding of sexual violence. This is why the individual sentences I have determined are higher than those received in some of the comparable cases that I reviewed above, such as M.O . [ 56 ] Although I have considered them, there are few mitigating circumstances in this case. I have little information to assess G.O.’s risk of recidivism.

I do not have medical evidence before me that would allow me to conclude that G.O. was or is suffering from any particular mental illness nor what the effect of that might be. No evidence was presented to suggest that he is receiving counselling or other professional assistance to reduce the risk of his reoffending or to address the traumas that he suffered as a child. [ 57 ] Turning to the non-sexual offences, I have decided that appropriate individual sentences are as follows: a. Uttering threats (section 264.1) – six months b.

Assault (section 266) – six months [ 58 ] In coming to this determination, I have considered that G.O. has a related, although somewhat dated, record for uttering threats.

Otherwise, I have given little weight to his criminal record because of its age, the periods of no criminal convictions and the absence of prior sexual offences. [ 59 ] I found that a sentence at the higher end of the range suggested by both Crown and defence counsel for uttering threats was appropriate because of the aggravating factor of G.O. pointing something that looked like a gun at A. when he threatened her. [ 60 ] Although Friesen addressed sexual violence against children, sexual abuse often occurs in conjunction with other forms of violence.

I have decided the above sentences are appropriate for the specific incidents of uttering threats and assault for which G.O. was convicted. However, I have not lost sight of the fact G.O. used violence and the threat of violence to manipulate and coerce A.. She lived in a volatile atmosphere of fear, violence and abuse. I will consider the full context of G.O.’s offences in my assessment of the principle of totality. Kienapple [ 61 ] I agree with the submission of both counsel that one of the sexual interference charges should be stayed on the basis of the Kienapple principle.

The appropriate global sentence [ 62 ] As clarified by the Newfoundland and Labrador Court of Appeal in R. v. Hutchings , 2012 NLCA 2 , s entences for multiple convictions are presumptively imposed consecutively. There are two valid reasons for imposing concurrent sentences. The first is if multiple convictions arise out of several offences that constitute a single criminal venture. The second is if concurrent sentences are necessary to achieve proper totality of the sentence for multiple convictions. [ 63 ] I do not consider that G.O.’s offences have arisen from a single criminal venture.

Although it is not possible to determine exactly when each offence occurred, each one was grounded in distinct events that took place at different times. G.O. was engaged in a pattern of behavior during the period of the offences, but that does not make his wrongdoing a single enterprise or transaction. I would thus not make any of the sentences concurrent on this basis. [ 64 ] Yet if the individual sentences were served consecutively, the total sentence would be 14 years. Such a sentence would be unduly long and harsh.

The global sentence must be proportionate to the gravity of the offences and the degree of G.O.’s responsibility. A proportionate sentence is not one that leaves an offender without hope or the prospect of rehabilitation. [ 65 ] In accordance with the direction of Hutchings , I must first seek to arrive at a fit and proportionate total sentence, by making one or more of the individual sentences concurrent.

I can doing this by making the sentences for sexual interference and invitation to sexual touching run concurrently with the sentence for incest, and by making the sentence for assault run concurrently with that for uttering threats. With these adjustments, the total sentence is eight and a half years of incarceration. [ 66 ] I am satisfied that this total sentence is fair, fit and proportionate to the gravity of the offences and the degree of responsibility of G.O. G.O.’s moral culpability is high. He abused his position of trust. For a period of almost two years, he raised his daughter in an

atmosphere of violence and abuse. He coerced and manipulated her for his own sexual wants. He knew what he was doing was wrong and the harm to A. has been profound. I am satisfied that a global sentence of eight and a half years reflects a proper balance of the sentencing factors set out in the Code , including denunciation, deterrence, and rehabilitation. The sentence is neither unduly harsh nor crushing. Credit for Pre-Trial Custody [ 67 ] G.O. shall be credited for 205 days of pre-trial custody at a ratio of 1.5:1. This is 308 days. DISPOSITION [ 68 ] G.O. is sentenced to incarceration as follows: a.

Incest (section 155) – eight years, less a credit of 308 days b. Sexual interference (section 151) – two and a half years, concurrent c. Invitation to sexual touching (section 152) – two and a half years, concurrent d. Uttering threats (section 264.1) – six months, consecutive to the sentence for incest e. Assault (section 266) – six months, concurrent [ 69 ] Additionally, I make the following ancillary orders: a. Pursuant to

section 487.051(1) of the Code , a DNA order in Form 5.03. b. Pursuant to

section 490.012 of the Code , a SOIRA order in Form 52, for a period of life, in accordance with

section 490.013(2.1). c. Pursuant to section 161(1) of the Code , a prohibition order for life prohibiting the activities of subsections 161 (a), ( a.1 ) in relation to the dwelling-house or school of A., (

b) and (c). d. Pursuant to

section 743.21 of the Code , a non-communication order during the custodial period of G.O.’s sentence in relation to A. and A.’s mother. _____________________________ Katherine O'Brien Justice