R v LLP, 2016 MBCA 28

Citation: R v LLP, 2016 MBCA 28 Date: 20160310 Docket: AR15-30-08399 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN : HER MAJESTY THE QUEEN ) J. M. Mann and ) C. T. St. Croix ) for the Appellant Appellant ) ) J. J. Gindin and ) S. R. Segal - and - ) for the Respondent ) ) Appeal heard: L. L. P. ) December 10, 2015 ) ) Judgment delivered: (Accused) Respondent ) March 10, 2016 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code ). Corrected Judgment: A corrigendum was issued on March 22, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. CAMERON JA Introduction [ 1 ] This is an application by the Crown for leave to appeal and, if granted, appeal of a total sentence of five and one-half years’ incarceration imposed on the accused for four counts of sexual interference. [ 2 ] An examination of the reasons of the sentencing judge leads me to conclude that he erred in his approach to consecutive sentencing for multiple offences.

While he alluded to the correct methodology for sentencing in such circumstances, in actuality, he conducted a reverse analysis. The resultant sentences failed to acknowledge the significance of each individual offence and led to an overall unfit sentence. [ 3 ] In my view, a proper application of the principles for consecutive sentencing of multiple offences leads to the conclusion that a total sentence of eight years’ incarceration is appropriate. Background [ 4 ] The circumstances surrounding the commission of the offences are grave.

Between 2005 and 2012, the accused sexually interfered with four young girls—three of them his granddaughters. [ 5 ] The first of the offences occurred between 2005 and 2008 and involved the complainant LC, who was between five and seven years of age. The allegations consisted of two incidents that occurred when she was playing at her neighbour’s house. The accused owned the house and rented it out to one of his children. He frequently visited the house and worked in the garage. On the first

occasion, the accused asked LC to come into the garage to help him move some boxes. Once she was in the garage, he grabbed her and made her sit on top of him and touched her vagina underneath her clothing. He kissed her and stuck his tongue in her mouth. After he was finished, he gave her some gum. A second incident occurred in substantially the same manner. After that, the complainant refused to go to her neighbour’s house when she believed the accused was there. [ 6 ] Next, between 2007 and 2008, the accused sexually abused his granddaughter BP, who was between nine and ten years of age.

The accused frequently made her sit on his lap and rub her bum against him. Although she stated that he sexually abused her more than once, she could only clearly remember one incident where he digitally penetrated her vagina. [ 7 ] Between 2010 and 2012, the accused repeatedly sexually abused his granddaughter ZM when she was between seven and nine years of age. The assaults included the accused rubbing and digitally penetrating her vagina and performing oral sex on her. Occasionally, while abusing ZM, he would pin her down and would not let her move.

Within this timeframe, there was a period of six months when the accused resided at ZM’s family home in order to care for her because her parents were consumed with caring for her sister, who had cancer and was receiving treatment. [ 8 ] Also between 2010 and 2012, the accused sexually abused another of his granddaughters, JP. She was between nine and ten years of age at the time of the abuse. Again, the abuse was repeated. It included rubbing of the vagina, digital and anal penetration, and cunnilingus. The accused tried to make JP touch his penis over his underwear.

He also occasionally pinned JP down, thereby preventing her from moving during the abuse. [ 9 ] ZM and JP are cousins. They observed the abuse of each other. They each described instances where one tried to protect the other. One particularly disturbing example involved the accused performing oral sex on ZM. Observing the abuse, JP offered herself to the accused in order to protect ZM. He responded by taking JP to her bedroom. [ 10 ] The accused told both ZM and JP to keep the abuse a secret. [ 11 ] Victim impact statements were filed at the time of the sentencing. LC described the sexual abuse as life changing.

She experienced nightmares and panic attacks. She blamed herself for causing her family pain and stress. She experienced shame and self hatred, to the point that she cut herself many times as well as contemplated suicide. ZM indicated that the harm inflicted by the accused made her close herself off to the world. She suffered physical discomfort, anger, fear of men, betrayal and a myriad of other psychological consequences. JP did not file a victim impact statement; rather, her father did.

He described the psychological pain and suffering JP endured, including recurring nightmares, as well as the emotional and financial resultant harm to the entire family. BP did not file a victim impact statement, but it would be trite to say that the commission of the offence was not without consequence. Decision of the Sentencing Judge [ 12 ] The sentencing judge reviewed all of the circumstances as outlined above. He also considered the circumstances of the accused as described by his counsel and in a pre-sentence report. He noted that, at the time of sentencing, the accused was 69 years old.

He found that it was significant that the accused did not have a criminal record. He also mentioned that the accused had a long-term attraction to young girls and that he had been sexually abused by a priest when he was a teenager. He emphasized that, after his arrest for the offences concerning his granddaughters, the accused did not apply for judicial interim release and that he confessed to the allegations and entered guilty pleas to them. Based on his observations of the accused in court, he felt that the accused exhibited genuine remorse.

Finally, the sentencing judge noted that the pre-sentence report placed the accused at a medium to low risk to reoffend. [ 13 ] He then proceeded to sentence the accused, stating: Crown counsel had asked me to consider what types of sentences should be imposed on each of the [offences] and I have to say that I am familiar with the fact that the Court of Appeal and other sentencing courts look to that type of assessment and then look to the other assessments for totality and the last look. I do not want to suggest that my remarks are an indication that one complainant has suffered more than another. . . .

My goal, rather, though is to impose a sentence which in total reflects the type of denunciation which has to occur. [ 14 ] He determined that a term of incarceration of three to three and one-half years “might” have been imposed with respect to the offences perpetrated on ZM and JP. He said that terms of incarceration in a provincial jail “would have been appropriate” for the offences perpetrated on LC and BP. He then concluded that, after considering the mitigating factors, he would have sentenced the accused to six years’ incarceration.

He then reduced the overall sentence to five and one-half years based on the principle of totality. [ 15 ] After determining that five and one-half years was the appropriate sentence for all of the offences, the sentencing judge proceeded to apportion the individual sentences as follows: (

i) Sexual interference on ZM—3 years (less 475 days pre-sentence credit); (ii) Sexual interference on JP—18 months consecutive; (iii) Sexual interference on BP—6 months consecutive; and

(iv) Sexual interference on LC—6 months consecutive. Grounds of Appeal and Positions of the Parties [16] The Crown appeals on the grounds that the sentencing judge

i) erred in his approach to sentencing for multipleoffences; ii) erred in his assessment of mitigating and aggravating factors; and iii) erred in imposing an unfit sentence. [17] The Crown submits that an appropriate application of the methodology for sentencing for consecutive offences wouldlead to apportionment of the sentences as follows: (

i) four years’ incarceration for the offence on ZM; (ii) four years’ incarceration consecutive for the offence on JP; (iii) three years’ incarceration consecutive for the offence on BP; and (iv) two years’ incarceration consecutive for the offence on LC. [18] The above amounts to thirteen years’ incarceration.

The Crown then submits that the application of the totalityprinciple would allow for a five-year reduction, leading to a fit sentence of eight years’ incarceration. [19] At the hearing of this appeal, counsel for the accused, appropriately in my view, conceded that the test for leave toappeal had been met. [20] He also conceded that, while the sentencing judge said that he was following the correct approach for sentencing formultiple offences, his reasons suggest the opposite.

However, counsel maintains that the sentencing judge properly considered all of theaggravating and mitigating factors, thereby resulting in a sentence that was within the range and therefore not unfit. He submits that,even if this Court considers the sentence to be at the low end of the range, it is subject to review on the standard of deference and shouldnot be interfered with.

Discussion [21] The standard of review applicable to sentence appeals was recently succinctly summarized by Steel JA in R v Sidwell(KA), 2015 MBCA 56, 319 ManR (2d) 144 (at para 12): It is trite law that the standard of review on a sentence appeal is a high mountain to climb. An appellate court should not intervene unlessthere is an error in principle or the sentence is demonstrably unfit.

An error in principle includes failing to consider a relevant factor,taking into account an irrelevant factor, failing to give sufficient weight to a relevant factor or overemphasizing an appropriate factor. “Demonstrably unfit” in the sentencing context refers to a sentence falling outside the acceptable range of sentences under similarcircumstances (R. v.

C.A.M., (SCC), [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; R. v.Ruizfuentes (H.S.) (2010), 2010 MBCA 90 , 258 Man.R. (2d) 220; 499 W.A.C. 220; 2010 MBCA 90, at para. 7; and R. v.Gabriel (Q.J.) (2013), 2013 MBCA 45 , 291 Man.R. (2d) 291; 570 W.A.C. 291; 2013 MBCA 45, at para. 17). [22] In my view, the second ground of appeal, that the sentencing judge erred in his assessment of the mitigating andaggravating factors, is easily dealt with.

Specifically, to the extent that the sentencing judge considered the “loss of [the accused’s]freedom for the last year by not applying for bail” to be a mitigating factor, he was in error. The accused received credit for this custodyat a rate of 1.5:1, resulting in the reduction of his sentence by 475 days. Time spent in pre-sentence custody is part of the totalpunishment imposed on an accused and not a mitigating factor affecting the appropriate range of sentence. See R v Fice, 2005 SCC 32 atpara 22, [2005] 1 SCR 742. However, as stated by the sentencing judge, he did not place much weight on this factor.

In my view, on thefacts of this case, the error is not determinative of the appeal. [23] More problematic is the procedure followed by the sentencing judge when he was calculating the sentence. [24] The sentencing judge correctly concluded that consecutive sentences were appropriate. See R v PK, 2012 MBCA 69,280 ManR (2d) 258. Having done so, it was essential that he impose a sentence for each offence. See R v Wozny (CP), 2010 MBCA 115at para 63, 262 ManR (2d) 75. In this case, the sentencing judge discussed ranges, but he did not fix a sentence for each offence.

Thisled him to the procedural error that he made. [25] In R v Draper (TG), 2010 MBCA 35, 251 ManR (2d) 267, Steel JA reviewed the procedure adopted in Manitoba for

sentencing on multiple counts (at para 30): [The] procedure is for the sentencing judge to first determine whether the offences in question are to be served consecutively or not. Second, if they are to be served consecutively, then an appropriate sentence for each offence should be determined. Third, the totalityprinciple should be applied to the total sentence thereby arrived at to ensure that the total sentence is not excessive for this offender as anindividual. In effect, the sentence must be given a “last look”.

Fourth, if the judge decides that it is excessive, then the sentence must beadjusted appropriately. In some cases that might require a significant adjustment. Also see R v James (GM), 2013 MBCA 14, 288 ManR (2d) 269; R v Kozussek, 2013 MBCA 52; Wozny; R v Grant (IM), 2009 MBCA 9,236 ManR (2d) 54; R v Arbuthnot (SM), 2009 MBCA 106, 245 ManR (2d) 244; R v Traverse (

L) et al, 2008 MBCA 110, 231 ManR (2d)123; and R v NAS, 2007 MBCA 97, 220 ManR (2d) 43. [26] The procedure adopted in these cases stems from a division that had been identified in the jurisprudence regardingsentencing on multiple offences. In reverse of the sentencing procedure outlined above, some courts considered what would be anappropriate “global” sentence when considering multiple offences and then apportioned the individual sentences to fit within the globaldisposition.

That approach, known as the Jewell approach (R v Jewell (ET) and Gramlick (G) (1995), (ON CA), 83OAC 81), was specifically rejected by this Court in Traverse, on the basis that it does not allow for two things (at para 39): Firstly, it does not respect the basic tenet that the sentence imposed must bear some relationship to the offence and offender andsecondly, it does not allow this court to properly review the fitness of the sentence. [27] While sometimes a failure to follow this procedure will not result in an unfit sentence, other times, such as this, it will. [28] In this case, the sentencing judge correctly stated that he had to consider what types of sentences should be imposed foreach offence.

However, as mentioned earlier, he erred when he failed to impose an appropriate sentence that recognized the severity ofeach offence. Rather, he stated: Effectively then, when I have looked at the terms that might have been imposed, with respect to both [JP] and [ZM], a term ofincarceration in the area of three or three and [one] half years on each would have been entirely appropriate. In terms of incarceration ina provincial jail with respect to the other two complainants also would have been appropriate.

When I factored all of the informationtogether, my view was that an appropriate sentence clearly was going to be above the range of four to five years which is suggested as astarting range for offences of this sort and that is largely because of the fact that I am dealing with four complainants. [29] After considering the mitigating factors, he concluded that an overall (or global) sentence of six years would have beenappropriate. Then, he considered the principle of totality and reduced the sentence by six months.

Only at the end did the sentencingjudge apportion what he considered to be the appropriate sentences for each offence. This error, similar to the Jewell error, caused himto impose unfit sentences for the individual offences and resulted in an overall unfit sentence. [30] A material error in principle having occurred, this Court is now free to impose what it considers to be a fit sentence. [31] Denunciation and deterrence are the paramount considerations when sentencing offenders for sexual offencesperpetrated on children (section 718.01 of the Criminal Code (the Code)).

Further, in relation to all four complainants,

section 718.2(a)(ii.1) of the Code deems the fact that each of them was under 18 years of age at the time of the offences to be an aggravating factor. With respect to his three granddaughters,

section 718.2(a)(iii) deems the abuse of a position of trust in relation to the complainants to bean aggravating factor. [32] I recognize that there are mitigating factors applicable to this accused including his guilty pleas, his genuine expressionof remorse and lack of a criminal record. I also consider his personal circumstances of age and health.

I acknowledge that he has lost hisentire family, including his wife, as a result of his actions. [33] However, it must also be remembered that, in Sidwell, this Court affirmed that the starting point for a major sexualassault or sexual interference perpetrated by a person in a position of trust is 4 to 5 years. That starting point assumes “the accused is amature person with no criminal record and prior good character” (at para 49). [34] There can be no doubt that the accused falls within the above range with respect to the offences committed on ZM andJP.

I reach this conclusion based on the nature of the acts committed and the fact that they were numerous. I also consider the breach oftrust and the violence perpetrated by the accused when he pinned the complainants down.

Particularly aggravating is the fear that theaccused caused ZM and JP to have for each other’s safety and the fact that they had to witness each other’s abuse. [35] Therefore, with respect to the offences involving ZM and JP, the appropriate sentence is one of four years’ incarcerationfor each of them, to be served consecutively. [36] Regarding the offences against BP and LC, I agree that a sentence of imprisonment of provincial time is appropriate.

See R v Storheim (SKW) , 2014 MBQB 141 , 308 ManR (2d) 75 , leave to appeal sentence denied, 2015 MBCA 14 , 315 ManR (2d) 162 , for a comprehensive discussion of the range of sentences appropriate for offences such as this. [ 37 ] In the case of BP, I would note that the offence included digital penetration and that this accused was in a position of trust. Therefore, I would fix the sentence at 18 months’ incarceration, consecutive. [ 38 ] Aggravating to all of the offences committed by the accused is the impact suffered by the complainants. However, the impact of the crime on LC was considerable, leading her to harm herself significantly and consider suicide. In these circumstances,

section 718.2 (a)(iii.1) of the Code deems such a result to be aggravating. This offence also had some evidence of grooming, in that the accused gave the complainant gum after the first incident. Therefore, I would fix a sentence of 12 months’ incarceration consecutive in relation to this complainant. [ 39 ] The total of all of these consecutive sentences amounts to ten and one-half years’ incarceration. [ 40 ] Having determined the overall length of the term, I must now take the last look at the sentence and apply the principle of totality.

In R v GJM , 2015 MBCA 103 , Mainella JA summarized the principles and the factors to be considered in its application (at para 10): The question of whether a combined sentence for multiple offences is unduly long or harsh, and therefore not proportionate, on a last look requires a sentencing judge to take into account and balance several factors that Green CJNL neatly summarized in R v Hutchings (R) , 2012 NLCA 2 , 316 Nfld & PEIR 211 (at para 84 ): (

a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved; (

b) the number and gravity of the offences involved; (

c) the offender’s criminal record; (

d) the impact of the combined sentence on the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing; (

e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender’s degree of responsibility. [ 41 ] There is no doubt that a sentence of ten and one-half years’ incarceration is substantial. In this case, it could be said to be harsh for a person such as the accused, who had no prior criminal record. The prognosis for rehabilitation is positive, as demonstrated by the remorse the accused has shown and by his confession to police and early guilty pleas.

Further, he had a positive pre-sentence report indicating a low risk to reoffend and a desire to take long-term sex offender counselling. [ 42 ] Also, a ten and one-half year sentence is more than double the length of incarceration imposed for the most serious of the individual offences involved (four years). While in some cases such a sentence may be appropriate, in this case it is not. [ 43 ] On the other hand, the number and gravity of the offences are significant.

Thus, balancing all of the factors, I would reduce the ten and one-half year sentence by two and one-half years to a period of eight years’ incarceration. In my view, such a reduction achieves the overall goal of proportionality. [ 44 ] In order to achieve a sentence of eight years’ incarceration, I would reduce the sentences in relation to ZM and JP from four years to three years, consecutive. As did the sentencing judge, I would apply the 475 days’ pre-trial credit to the sentence involving ZM. Next, I would reduce the sentence in relation to BP to twelve months’ incarceration, consecutive.

While the circumstances of the sexual interference on LC are less serious than those in relation to BP, the victim impact statement makes it clear that the two incidents had a significant long-term impact on the mental health of LC, to the point that she almost committed suicide. As I said,

section 718.2 (a) (iii.1) of the Code deems that result of the accused’s conduct to be aggravating. Accordingly, it is appropriate that the sentence in relation to LC remain at twelve months’ incarceration, consecutive. Conclusion [ 45 ] For all of the above reasons, I would grant leave to appeal and allow the appeal. I would sentence the accused as follows:

CREST (

a) three years of incarceration less 475 days of pre-sentence credit for the offence on ZM; (

b) three years of incarceration for the offence on JP; (

c) twelve months of incarceration for the offence on BP; and (

d) twelve months of incarceration for the offence on LC. [ 46 ] Each sentence is to be served consecutively. Thus, the total period of incarceration is eight years minus the 475 days of pre-sentence credit. JA I agree: JA I agree: JA COURT OF APPEAL PROVINCE OF MANITOBA WINNIPEG R3C OP9 CORRIGENDUM March 22, 2016 TO WHOM IT MAY CONCERN: Re: R v LLP 2016 MBCA 28 Docket No. AR15-30-08399 Released: March 10, 2016 The attached decision replaces the previous decision which was released March 10, 2016.

In para 39, the phrase “ten years’ incarceration” has been replaced with the phrase “ten and one-half years’ incarceration.” The sentence now reads as follows: The total of all of these consecutive sentences amounts to ten and one-half years’ incarceration.

In para 41, the phrase “ten years’ incarceration” has been replaced with the phrase “ten and one-half years’ incarceration”. The sentence now reads as follows: There is no doubt that a sentence of ten and one-half years’ incarceration is substantial. In para 42, the phrase “ten-year sentence” is replaced with the phrase “ten and one-half year sentence”. The sentence now reads as follows: Also, a ten and one-half year sentence is more than double the length of incarceration imposed for the most serious of the individual offences involved (four years).

Finally, in para 43, the phrase “ten-year sentence by two years” is replaced with the phrase “ten and one-half year sentence by two and one-half years”. The sentence now reads as follows: Thus, balancing all of the factors, I would reduce the ten and one-half year sentence by two and one-half years to a period of eight years’ incarceration.