R. v. R. (G.W.), 2011 MBCA 62

Citation: R. v. R. (G.W.), 2011 MBCA 62 Date: 20110722 Docket: AR 11-30-07498 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Marc M. Monnin Mr. Justice Alan D. MacInnes BETWEEN : HER MAJESTY THE QUEEN ) A. K. Gowenlock ) for the Appellant Respondent ) ) C. A.

Vanderhooft ) for the Respondent - and - ) ) Appeal heard: ) June 13, 2011 R. (G.W.) ) ) Judgment delivered: (Accused) Appellant ) July 22, 2011 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(s) (see s. 486.4 of the Criminal Code ). STEEL J.A. 1 This is a sentence appeal from a sentence of four years with respect to one count of sexual interference and one year on a charge of breach of a probation order, to be served concurrently.

Facts 2 At the time of the offence in August 2009, the accused was 57 years old with sole custody of his nine-year-old son. He was subject to a three year probation order with a condition that he not have contact or communication with any female child under the age of 14 without the prior written permission of his probation officer. This probation order flowed from a 2008 conviction of assault against a nine-year-old girl. 3 The nine-year-old complainant in this case, along with her five-year-old brother, was playing with the accused’s son outside of the accused’s house.

During the afternoon the accused took the children to a nearby park in his truck. While at the park, the accused engaged in rolling down a hill and “piling on” with the children. According to the facts pled to by the accused, he put his hands down her pants twice. The first time he touched her buttocks. The second time he lifted her pants with one hand and slid his other hand down her pants up to his wrist. He also attempted to put his hand under her underwear trying to touch her vagina and touched her breasts underneath her bra.

During the assault the child told the accused to stop and tried to move his hand out of her pants. 4 After the assault, the accused told the complainant to keep what happened to her a secret and not to tell anyone. He then drove the children to Dollarama where he bought them some toys and then to McDonald’s before returning home with the children and dropping them off in front of his house. 5 The accused’s actions at the park were witnessed by independent people in the park who called the police. After the accused’s arrest, his son was seized by Child and Family Services.

6 The Crown sought a sentence of high provincial time, while the accused sought an intermittent sentence, followed bya period of two to three years’ supervised probation under strict conditions. While the Crown did indicate that its position as to highprovincial time arose as part of the negotiation between counsel so as to avoid the complainant having to testify, it was also made clearby the Crown that this was not a joint recommendation or plea bargain. 7 As a submission, the judge is not bound by the range of sentence suggested by the Crown. See R. v. Koenders, 2007BCCA 378 at para. 52, 221 C.C.C. (3d) 225.

Since it was neither a joint recommendation nor a plea bargain, the law with respect to thedeference owed to those recommendations by the court is not applicable. However, as will be discussed further, in their submissions,neither counsel specifically referred to any of the factors listed in the Criminal Code (the Code) as being aggravating to sentence. 8 The judge, quite correctly in my view, alerted counsel that he was contemplating a sentence considerably higher thanthat recommended by the Crown.

He adjourned the matter to give counsel an opportunity to file case law and make any furthersubmissions they wished. He did not alert counsel that he considered the offence to involve a breach of authority and hence anaggravating factor to be considered in sentencing.

The matter was adjourned a second time to allow the accused an opportunity to obtainan updated pre-sentence report. 9 Between the time the matter was adjourned to the time it was disposed of in court, the accused breached hisrecognizance by consuming alcohol and by twice taking his son to a public park where persons under the age of 16 years couldreasonably be expected to be present, albeit he did so while under the supervision of a Child and Family Services worker.

He wasarrested on these breaches and remained in custody until the date of his sentencing. 10 On the appeal, the accused abandoned his previous position and now argued for a sentence of two years’ incarcerationon the conviction of sexual interference and a period of incarceration to be served concurrently on the charge of breach of probation. 11 The accused argues that the sentencing judge erred in fact by characterizing the touching of the victim as attempteddigital penetration; erred in law by finding, as an aggravating factor in sentencing, that the accused was in a position of authority over thecomplainant; and erred by over-emphasizing the previous record of the accused while at the same time failing to take into account themitigating factors in sentence.

He also argued that he was placed at a disadvantage because neither the alleged fact of attempted digitalpenetration nor the issue of position of authority were raised by anyone until the sentencing judge gave his reasons. Therefore, he wasunable to make any submissions with respect to those two issues. Lastly, it is submitted that the sentence is generally unfit being harshand excessive having regard to the age, circumstances and background of the accused.

Misapprehension of the Facts by the Sentencing Judge 12 Appellate courts are not to interfere with the decision of the sentencing judge unless an error in principle is present orthe sentence is unfit. See R. v. L.M., 2008 SCC 31 at para. 14, [2008] 2 S.C.R. 163. 13 An error in principle includes failing to consider a relevant factor, taking into account an irrelevant factor, failing togive sufficient weight to a relevant factor or overemphasizing an appropriate factor. See R. v. Arbuthnot (S.M.), 2009 MBCA 106 atpara. 4, 245 Man.R. (2d) 244.

The fundamental measure of the “fitness” of a sentence lies in the “principle of proportionality.” “Asentence must be proportionate to the seriousness of the offence and the moral blameworthiness of the offender. If the sentence fails tomeet this fundamental test, it is unfit” (R. v. Draper (T.G.), 2010 MBCA 35 at para. 7, 251 Man.R. (2d) 267). See also R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500. 14 In his reasons for judgment, the sentencing judge stated that “[t]he victim describes attempted digital penetration of hervagina.” Later he stated, “[t]he fact that this offence involved attempted digital penetration represents a significant escalation inoffending behaviour.” 15 While no one doubts that the mere touching of a young girl’s vagina is traumatic to the victim, the facts of the offenceare relied on by judges in sentencing in order to determine the degree of moral culpability and blameworthiness.

In this case, it wasnever put before the court that the victim described attempted digital penetration of her vagina, nor was there any other evidence ofattempted digital penetration. The police report specifically indicated that the complainant said that no digital penetration had occurred. The Crown’s submission of the facts were as follows: She advises how he was trying to put his finger down her privates, but she did not want him to. She points out that, the bird on her chartwhere the suspect tried to touch her, and that’s obviously her vagina.

And she describes how they were rolling down the hill, and hetried to put his hands down her private area, and that he was doing gross things to her. She describes how this goes on, and then they’re doggy-pilling … rolling down the grass, and then when they’re chest to chest, he againtries to put his hand down there, and she tried to get his hand away, and she says he was trying to touch her private. And that

part is thebird, she describes again, her vagina. Then he tries to put his hand all under her clothes, under her pants, and that she was wearing panties. His hand was under her pants, andtrying to put it under her underwear. And he was grabbing at her underwear. 16 A plea of guilty is only an admission of the essential legal ingredients of the offence. Any aggravating facts must beestablished by the Crown. The sentencing judge erred in finding this aggravating factor to be present without proof beyond a reasonabledoubt of the factual foundation for doing so (see R. v. Gardiner, (SCC), [1982] 2 S.C.R. 368).

Having erred, this courtis free to determine the appropriate sentence without any deference to the decision of the sentencing judge.

Position of the Accused on Appeal 17 The accused argues that the circumstances of this offence, aside from the statutory aggravating factor of the victim’s young age, would place it at the lower end of the spectrum of severity if considered in isolation from the circumstances and history of the accused. The touching was done without the use of force, was not ongoing, and was limited to one incident. 18 The accused also submits that his prospects for rehabilitation should not be discounted.

He argues that the sentencing judge over emphasized his previous record by not giving proper consideration to the significant gap that existed in his record and second, in considering the 2008 assault conviction to be a similar, related offence. 19 There are other mitigating factors that, it is submitted, were not adequately considered by the sentencing judge.

For example, the accused owned and operated a landscaping business that employed up to 10 workers full time during the summer months and up to six full time and part time workers during the rest of the year. 20 Also, while the accused was on judicial interim release he voluntarily and at his own expense participated in 17 one-on- one therapy sessions with Mark Westman from the Riverbend Counselling Group over a period of six-and-half months regarding the actions for which he was charged. These sessions were halted due to financial difficulties. By way of letter to the court, Mr.

Westman indicated that the accused was “highly motivated and desirous to engage in therapy and to achieve his therapeutic goals.” He further indicated that “[p]rogress towards [those] goals [had] been steady” and that the accused “[had] been willing to take personal responsibility for his actions, show remorse, and display empathy for those for whom his actions were damaging.” Decision 21 Denunciation and deterrence of the conduct exemplified by the offences charged is of particular importance where the abuse of children is concerned.

The Code makes this explicit in ss. 718.01 and 718.2 when it states: 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. 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, . . . . . (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, . . . . . 22 While it is true that the conduct here was not ongoing and was limited to one occasion (although several attempts), the use of force was obvious, not only to the victim who described trying to move the accused’s hand away, but to independent witnesses to whom the touching was so obviously improper they contacted the police. 23 Next, the accused has a significant record.

It starts in 1970 with a series of property offences occurring between 1970 and 1976 for which he received fines. Of more concern is his related record. In 1979 he was convicted of rape and indecent assault for which he received a sentence of 18 months’ incarceration. He has two convictions for assault causing bodily harm, one in 1981 for which he received two years’ suspended sentence and one in 1982, for which he received one year incarceration. In 1983, he was again convicted of rape and assault causing bodily harm and received a sentence of 10 years and three years’ incarceration to be served concurrently.

In 1992 he received two years’ incarceration for robbery and in 1993 he was sentenced to two years’ incarceration for procuring. He has other convictions, including having had his mandatory release and parole revoked for breaching conditions. 24 After 1993, there is a substantial gap until 2008 when he was convicted of assault for which he received 64 days pre- sentence custody and three years supervised probation.

More will be said of the 2008 conviction later in these reasons. 25 Although this is a record which causes the court substantial concern, especially given the seriousness of the sexual offences, I am mindful of the fact that there were no convictions recorded between 1993 and 2008. The accused put his life together, started a small business and is presently raising his son alone. The letters of support filed on his behalf attest to the change in his lifestyle and he should be given credit for that.

26 Unfortunately, the two pre-sentence reports make me very uneasy as to the extent of his rehabilitation that might otherwise be evidenced by the gap in his criminal record and the other circumstances urged upon us by counsel in mitigation of his actions. 27 The initial report concluded that the accused was not a suitable candidate for supervision in the community given the level of risk he represented to the public coupled with the difficulty he had experienced with his current court order.

In fact, the probation officer assessed the accused as high risk to reoffend generally and a moderate high risk to reoffend for sexual offences. It is especially troubling that the accused initially justified his actions by saying “there was an opportunity to touch somebody soft like the victim,” and that since he was a single dad “it was easier to meet his sexual needs with the people he had contact with, namely his son’s friends.” 28 The supplemental report was no more positive in tone. One of the collateral sources of information was Dr.

Ellerby of Forensic Psychological Services who specializes in the treatment of sexual offenders. Dr. Ellerby used two different risk-assessment tools to assess the risk of sexual recidivism. On both scales the accused scored in the moderate-high risk category. According to the psychological testing done by Dr. Ellerby, the accused is someone who tends to have a “distorted and overly positive perception of themselves and are less aware of their difficulties or weaknesses.” Dr.

Ellerby concluded that female friends of the accused’s son would be “at risk” and that the subject should not be in a situation of being unsupervised with them. 29 The remorse expressed by the accused in the pre-sentence reports demonstrated a complete lack of empathy for the victim. While his guilty plea is entitled to some weight since it resulted in the young victim not having to testify, his articulation of that remorse consisted primarily of the negative impact the offences had on him in that he may lose his business and had his son taken away from him.

He stated that he did not think the victim had been very traumatized by his inappropriate sexual behaviour. Moreover, while a timely guilty plea is clearly a mitigating circumstance, it must be considered in light of the evidence available; here there were two independent witnesses to the assault. 30 As a matter of fact, it is doubtful how much one can rely on the accused’s statements.

So, for example, in the second report he admitted to living with an individual since 2009, although he denied it during the interviews for the first report and used his lack of “a social life” as an excuse for his behaviour. 31 It should be noted that the contact that Dr. Ellerby had with the accused was closer in time (March and April 2010) than that of Mr. Westman from whom the accused had previously sought counselling and whose report was submitted at the initial hearing. As well, the undated letter from Mr.

Westman does not speak to the issue of risk assessment. 32 As mentioned earlier, at the time of this offence, the accused was on a three-year probation order for a previous assault conviction in 2008. The original charge was sexual assault, but the Crown accepted a plea to simple assault in what the Crown described as a true plea bargain. The accused pled guilty to that charge in 2008, and could, and should only be sentenced for simple assault at that time.

However, in considering the prospects for rehabilitation and the level of risk to the public when sentencing for the offence committed a year later in 2009, it is appropriate for this court to consider, as did the sentencing judge, the similarities in the facts. While the offence to which he pled guilty was not one of a sexual nature, it did involve violence against a child. The victim in the 2008 assault was also a nine-year-old female friend of the accused’s son. The assault consisted of the accused slapping the buttocks of that nine-year-old and grabbing near or at her breast area.

The similarity of the facts underlying the conviction should not be ignored. 33 More recently, in R. v. M.G.F. , 2010 ABCA 102 , 477 A.R. 244, the Alberta Court of Appeal overturned a sentence of 90 days intermittent for two counts of sexual interference as being demonstrably unfit and imposed in its place an 18-month jail sentence of which the accused had served three months of his intermittent sentence leaving 15 months yet to be served. In that case, the accused was a first-time offender who rubbed his 10-year-old step daughter’s vagina while in the presence of other children in the home. In R. v.

C.P.S. , 2010 ABCA 313 , 490 A.R. 222, the Alberta Court of Appeal varied a sexual interference sentence of three months imposed on a first-time offender living with the complainant’s mother and replaced it with a sentence of 27 months. 34 In R. v. Johnson (B.S.) , 2010 ABCA 287 , 490 A.R. 145, the accused’s sentence of 90 days’ incarceration to be served intermittently was increased to one year incarceration by the Alberta Court of Appeal.

While travelling on a Greyhound bus, the accused moved to sit beside a 14-year-old girl, placed a blanket over her, touched her ankle, rubbed her legs and placed his hand down the front of her pants under her panties. The court held that, although the nature of the touching was not, in itself, at the serious end of the spectrum of sexual assault, the predatory, deliberate nature of the assault clearly enhanced the accused’s moral blameworthiness. And see R. v.

F.M. , 2009 ONCA 485 , 250 O.A.C. 257, where a first offender received a sentence of 17 months’ imprisonment and two years probation on a charge of sexual interference and sexual assault with a seven-year-old neighbour. 35 In all of the cases cited above, the accused were first-time offenders charged with sexual interference. In R. v. DeMarco , 2008 CarswellOnt 8444 (Ont. S.C.J.) (WL) , the accused was sentenced to six years’ imprisonment when he pled guilty to one count of sexual interference by sexually touching a seven-year-old girl in the washroom of a public school.

Although the court found that the nature of the conduct was on the low end of the spectrum, the accused had a related record of sexual assault. In R. v. M.F.S. , 2008 ABCA 157 , 432 A.R. 387, the accused was sentenced to three years’ incarceration for sexually touching his niece 12 years previously. The accused had a related criminal record and was still serving a sentence of probation for an earlier sexual assault conviction at the time of the assault.

The accused tried to excuse the sexual interference by stating “that he did not have a girlfriend” (at para. 7), which the Court of Appeal considered as an aggravating circumstance in sentencing. 36 The accused in this case has a lengthy criminal record for related offences, albeit with a gap in time. T he accused presented to the probation officer and a psychologist as someone who posed a high risk to re-offend generally and a moderate high risk to re-offend sexually.

The sentencing judge correctly considered the pre-sentence reports and the accused’s inability to understand his own risk due to his minimization, justification, rationalizations and denial. The recent conviction involving assault against a child indicates that he continues to present as a high risk to re-offend sexually. In this case, the need for denunciation and deterrence far outweigh the mitigating factors and personal circumstances of the accused. A penitentiary sentence greater than that of a first offender would be appropriate to adequately address deterrence and denunciation.

37 Moreover, the sentence must take into account both the offence of sexual interference and the breach of probation charge. The latter involved the breach of a prohibition against being in the company of a female under the age of 14. I agree with the sentencing judge that that offence was factually bound up with the sexual interference charge as part of the same transaction and therefore, it would be appropriate to sentence on a concurrent basis.

However, I also agree both that the breach is a serious one in these circumstances and that the quantum of sentence should be elevated to reflect the fact that it refers to both charges. See R. v. Lagimodiere (S.M.E.) , 2008 MBCA 137 at para. 26 , 231 Man.R. (2d) 261, and R. v.

Maroti (M.) , 2010 MBCA 54 , 255 Man.R. (2d) 115 (at para. 26 ): .… Even if the offences are treated as concurrent, the sentence must still ultimately reflect all of the facts, including the number of separate offences committed. …. 38 Although I recognize that the sentencing judge erred in considering a fact that was not in evidence in front of him, taking all of the above into consideration, he came to the right decision in sentencing the accused to four years’ incarceration for the offence of sexual interference and one year concurrent on the breach of probation, and I would impose the same sentence. 39 Having determined that the judge erred with respect to his apprehension of the facts of the case, it is unnecessary to deal with the other grounds of appeal.

However, let me make an obiter comment with respect to the sentencing judge’s characterization of this conduct as an abuse of the accused’s position of authority. 40

Section 718.2(a)(iii) of the Code states that “evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim” shall be deemed to be an aggravating circumstance. The sentencing judge held that the accused was in a position of authority over the complainant and found this to be an aggravating factor, contributing to the severity of the sentence. 41 The accused argued that the Crown had not proven that aggravating factor beyond a reasonable doubt. The facts, as given to the judge, were that the victim was nine years old, while the accused was 57 years old.

The child was known to the accused as a friend of his son and was playing with the accused’s son in front of their house. The accused offered to take her and her five-year-old brother to the park in his truck and did so. There were no other adults caring for the children.

After the park, the accused took the children to McDonald’s and to buy toys at Dollarama. 42 From a common sense perspective, most parents assume, I believe, that when their children play with other children and the parent of those other children undertakes to drive them to other places, there is an assumption of responsibility by such parent that leads to a duty of care and position of authority. See R. v.

F.M. where the Ontario Court of Appeal agreed that the sentencing judge was entitled to analyze the relationship between the accused and the child complainant, who were next door neighbours, and “to conclude that it was at the low-end of a trust relationship, and to use that as an aggravating factor on sentence” (at para. 31). 43 That may well be legally correct. What will constitute a position of authority as a statutory aggravating factor must be based on a number of context-specific factors, as well as a determination of whether such factors amount in law to a position of authority.

That discussion will be for another day. 44 Here, however, the Crown did not rely upon, or raise this conduct as a statutory aggravating factor. Nor did the sentencing judge give any indication that he was considering it as such during submissions. Normally, the relevant factors are asserted by the Crown and responded to by the accused.

The accused should not be expected to raise arguments adverse to his position and then be required to argue against them. 45 The sentencing judge was certainly entitled to raise the applicability of this aggravating factor of his own accord, but it would have been preferable to advise counsel of that so that the accused would have been able to advance his position in respect of it and so that the sentencing judge would have had the benefit of argument in making his determination of what is not necessarily a simple issue. 46 Leave to appeal is granted.

Although the judge did commit an error, as explained in these reasons, I would not change the sentence as imposed by the sentencing judge. The appeal is dismissed. J.A. I agree: J.A. I agree: J.A.