R. v. J.R.A., 2012 MBCA 48

Citation: R. v. J.R.A., 2012 MBCA 48 Date: 20120508 Docket: AR 11-30-07676 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Scott Mr. Justice Martin H. Freedman Mr. Justice Richard J. Chartier BETWEEN: ) HER MAJESTY THE QUEEN ) G. R. Clay ) for the Appellant Respondent ) ) R. N. Malaviya- and - ) for the Respondent ) A. (J. R.) ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) May 8, 2012 ) NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that coulddisclose the identity of the complainant(s) (see s. 486.4 of the Criminal Code).

CHARTIER J.A. (for the Court): 1 This is an appeal from a sentence of five years imposed for one count of sexual interference, and six monthsconsecutive on a charge of failing to comply with the conditions of a recognizance. 2 The facts are disturbing and unsettling.

The accused caused his daughter, starting when she was four years old, torepeatedly fellate him over a three and one-half year period. 3 The principal ground of appeal is that the sentence was harsh and excessive. 4 This court has repeatedly stated, first, that the focus of sentencing for a major sexual assault or abuse incidentinvolving a child is denunciation and deterrence and, second, that the starting point to sentencing when the offence is committed in atrust situation or family relationship is four to five years’ imprisonment. See R. v.

G.S.F., 2009 MBCA 5, 236 Man.R. (2d) 51, and R. v.R.W.T., 2006 MBCA 91, 208 Man.R. (2d) 60, where Hamilton J.A. explained (at para. 4): The offence committed by the accused falls within the category of offences described in R. v. C.D. (1991), (MBCA), 75 Man.R. (2d) 14; 6 W.A.C. 14 (C.A.), and R. v. M.F.D. (1991), (MB CA), 75 Man.R. (2d) 21; 6 W.A.C. 21(C.A.): “a major sexual assault committed in a family relationship where the victim is a young child and serious sexual acts are repeatedover a period of time” (C.D., at para. 16). Thus, the focus of sentencing is denunciation and deterrence.

The starting point to sentencingfor such an offence is four to five years’ imprisonment. See C.D., M.F.D., R. v. P.M.T. (1996), (MB CA), 113Man.R. (2d) 179; 131 W.A.C. 179 (C.A.), and R. v. D.B.R. (2005), 2005 MBCA 64 , 195 Man.R. (2d) 42; 351 W.A.C. 42;2005 MBCA 64.

5 As with all starting points, it is presumed that the accused is a mature person with no criminal record and prior good character (see R. v. Borkowsky (H.) , 2008 MBCA 2 at para. 58 , 225 Man.R. (2d) 127). And, a s with all starting points, any relevant aggravating or mitigating circumstances relating to the offence or the offender will then “ push the sentence up or down the scale of appropriate sentences for similar offences” (see R. v. Nasogaluak , 2010 SCC 6 at para. 43 , [2010] 1 S.C.R. 206). See also s. 718.2 (

a) of the Criminal Code (the Code ) and R. v. Wright (C.D.) , 2010 MBCA 80 at para. 9 , 258 Man.R. (2d) 118 . 6 Counsel for the accused acknowledges in this case that the accused committed a major sexual assault, that the starting point is four to five years, and that the primary sentencing consideration is deterrence and denunciation. However, he contends that the mitigating circumstances should have caused the sentencing judge to have imposed a sentence of three years on the sexual interference offence.

The accused submits that the five-year sentence is unfit because the sentencing judge underemphasized the mitigating factors, particularly his acceptance of responsibility, as outlined in Dr. Somers’ report. 7 We disagree. The judge expressly took into account a number of mitigating factors that had been advanced by the accused and, in our view, did not underemphasize any mitigating factors. In addition, the judge was entitled to conclude that Dr.

Somers’ opinion was not determinative on the issue of the accused’s acceptance of responsibility and remorse. 8 The sentencing judge was of the view that “[t]he aggravating factors in this case far outweigh[ed] the mitigating factors.” The reasons also show that he was keenly aware of the statutory sentencing principles in these types of situations, specifically s. 718.01 of the Code , which mandates a court to give primary consideration to denunciation and deterrence when the offences are against children, and s. 718.2 (a)(iii), which expressly deems as an aggravating factor evidence that the offender abused a position of trust or authority in relation to the victim.

See also s. 718.2 (a)(ii.1), which deems as an aggravating factor evidence that the offender abused a child. 9 In the end, we have not been persuaded that the sentencing judge erred in the sentence he imposed, either with respect to quantum or by imposing a consecutive sentence on the breach charge. This was, as the sentencing judge stated “a gross abuse of parental trust.” This court has been clear, as is the Code (see s. 718.01 ) that a sentencing judge is to give “primary consideration” to deterrence and denunciation when a child is abused.

This is even more so when the abuse is by someone in a position of trust or authority. While a sentencing judge should not ignore the other principles of sentencing, such as rehabilitation, they become secondary in such situations. 10 While we grant leave to appeal the sentence, the appeal is dismissed. J.A. C.J.M. J.A.