R v DC, 2016 MBCA 49

Citation: R v DC, 2016 MBCA 49 Date: 20160513 Docket: AR15-30-08381 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN : ) L. J. Tailleur HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) J. M. Mann and ) S. R. M. Seesahai - and - ) for the Respondent ) D. C. ) Appeal heard: ) March 7, 2016 (Accused) Appellant ) ) Judgment delivered: ) May 13, 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 ). On appeal from 2015 MBPC 16 , 322 ManR (2d) 17 BURNETT JA [ 1 ] The accused appeals a sentence of 16 years’ incarceration imposed for nine sexual offences involving his young children. He advances four grounds of appeal, but his main argument is that some of the sentences should be served concurrently, not consecutively. [ 2 ] The sentencing judge carefully considered the evidence and the submissions of counsel, he followed the methodology for sentencing established by the Supreme Court of Canada and endorsed by this Court, and he provided extensive reasons for his decisions.

In so doing, he made no error and the sentences were fit. [ 3 ] For the reasons which follow, I would grant leave, but dismiss the appeal. Background [ 4 ] The accused sexually abused his daughter, Al. C., and his four sons, Dy. C., Da. C., Dr. C. and Day. C. (For the sake of consistency, the five children will be identified by the initials used by the sentencing judge.) He also made and distributed child pornography involving Al. C. [ 5 ] At the sentencing hearing, counsel for the accused conceded that the offences against each of the children were major sexual assaults.

The offences were committed over a period of approximately 3 years. The exact date when the abuse started is unknown, but it continued until the accused was arrested on January 26, 2014. At that time Al. C. was 9 years old, and Dy. C., Da. C., Dr. C. and Day. C. were 8, 7, 5 and 4 years old, respectively. [ 6 ] The accused pled guilty to the following offences:

1. between September 1, 2012 and January 26, 2014, he did for a sexual purpose touch Al. C., a person under the age of 16 years, directly with a part of his body, contrary to

section 151 of the Criminal Code (the Code ); 2. between September 1, 2012 and January 26, 2014, he did make child pornography contrary to

section 163.1(2) of the Code ; 3. between September 1, 2012 and January 26, 2014, he did distribute child pornography contrary to

section 163.1(3) of the Code ; 4. between October 10, 2010 and January 26, 2014, he did for a sexual purpose touch Da. C., a person under the age of 16 years, directly with a part of his body, contrary to

section 151 of the Code ; 5. between January 1, 2013 and January 26, 2014, he did for a sexual purpose touch Dy. C., a person under the age of 16 years, directly with a part of his body, contrary to

section 151 of the Code ; 6. between January 1, 2013 and January 26, 2014, he did for a sexual purpose invite Dy. C., a person under the age of 16 years, to touch directly with a part of his body, the body of Day. C., contrary to

section 152 of the Code ; 7. between January 1, 2013 and January 26, 2014, he did for a sexual purpose invite Day. C., a person under the age of 16 years, to touch directly with a part of his body, the body of Dy. C., contrary to

section 152 of the Code ; 8. between January 1, 2013 and January 26, 2014, he did for a sexual purpose touch Dr. C., a person under the age of 16 years, directly with a part of his body, contrary to

section 151 of the Code ; and 9. between January 1, 2013 and January 26, 2014, he did possess child pornography, contrary to

section 163.1(4) of the Code . [ 7 ] An Agreed Statement of Facts (the Agreed Statement) was filed at the sentencing hearing and is largely reproduced in the sentencing judge’ s decision. A pre-sentence report, a psychological report for each child and photographs were also filed.

The following is a condensed version of the facts and circumstances disclosed in the Agreed Statement, pre-sentence report and psychological reports, as well as the viva voce evidence of a police officer at the sentencing hearing. [ 8 ] On January 25, 2014, an Australian police officer conducted an undercover investigation in relation to an image- sharing website that was known to be frequented by pedophiles. On this website the accused had posted photographs of himself sexually abusing Al. C., as well as a picture of his sons.

In an email exchange with the police officer, the accused said that he had more photographs of Al. C. to trade, and that, while he did not have photographs of the boys, he would custom-make photographs of them. The Winnipeg Police Service Child Abuse Unit was notified, began an investigation and arrested the accused on January 26, 2014. [ 9 ] The specific sexual conduct detailed in the Agreed Statement may be summarized as follows: • Al. C. (sexual interference)—ongoing incidents of fellatio, cunnilingus, mutual masturbation, digital vaginal and anal penetration, and penile touching of the vagina; • Al.

C. (make and distribute child pornography)—photographing the sexual abuse of Al. C. (including penetration) and photographing her naked, posting some photographs on an image-sharing website, emailing photographs to an undercover police officer and others, and showing photographs to Al. C.; • Dy. C. (sexual interference)—ongoing incidents of fellatio on the accused; • Dy. C. and Day. C. (two counts of invitation to sexual touching)—making Dy. C. perform fellatio on Day. C. after Day. C. had urinated, and making Dy. C. lick Day. C.’s anus region; • Da.

C. (sexual interference)—one incident of fellatio on the accused; and • Dr. C. (sexual interference)—ongoing incidents of fellatio on the accused. [ 10 ] The accused collected 489 photographs of child pornography on his cellular telephone. Approximately 70 of these photographs were photographs of Al. C., many of which showed her partially or fully nude, and some of which involved sexual abuse, including penetrative sexual activity between the accused and Al. C.

The remaining photographs were mostly photographs of young girls (under 10 years old) but also included photographs of boys aged approximately 4-8 years old. The content of the photographs included nude posing, fellatio, and vaginal and anal intercourse. There can be no doubt that a significant number of these photographs fall into the fourth (i.e., the second most serious) level of the classification system for pornographic images described in R v Basov (DV) , 2015 MBCA 22 at para 5 , 315 ManR (2d) 222 . [ 11 ] The accused declined to comment when he was initially arrested on January 26, 2014.

On June 12, 2014, when he was again arrested, he told police that he wanted to deal with everything, and he volunteered that he should also be charged with crimes relating to Dr. C. [ 12 ] At the sentencing hearing, a police officer provided viva voce evidence in relation to email exchanges between the accused and others, the child pornography of Al. C., and the child pornography found on the accused’s cellular telephone. [ 13 ] The pre-sentence report revealed that the accused had a long history of sexual deviancy.

According to the accused, he was abused when he was approximately six years old and again when he was nine years old. The accused was assessed as a moderate- high risk for sexual recidivism and as a high risk to reoffend generally. The author of the report concluded that:

To date most of the subject’s behavior and sexual deviancy is connected to his biological children and family. As such, it is suggestedthat he would be at [a] very high level of risk to re-offend if he should enter into a new relationship with a partner who has children orhave future access to his own children. Furthermore should he not have access to children within his intimate relationships this writer’sconcern would be his sexual compulsivity could lead to seeking out children in the community to meet his deviant interests.

Given this,[the accused] is seen to require comprehensive and long term therapeutic interventions that are accessible through the FederalCorrectional System. This would provide him with the time and resources to appropriately attend to his range of deficits and risk, as wellas the required period of intensive community supervision. In relation to this, [the accused] is not currently seen to be a manageable riskin the community. [14] The psychological reports concluded that each of the children had suffered significant psychological harm and wouldrequire long-term treatment for their abuse.

In the report concerning Al. C., the psychologist noted: [Al. C.] presents as anxious and depressive. She worries about her brothers’ safety and attempts to parent them. Currently, she does notunderstand the impact of photographs having been distributed of her on the Internet. This may be devastating for her; not onlyemotionally but in terms of her future relationships and carer [sic] choices. When she does gain this awareness, concern related to shame,further betrayal, anxiety, and depression is highly likely. . . . [Al.

C.], as with other children who too have experienced a myriad of adverse childhood experiences [ACE], remains at 300 to 400%greater risk of future pathology related to mood and anxiety, trauma, self-harm/suicidality, substance abuse/dependence, school-relatedstruggles and failure, relational and parenting challenges, sexual deviances/challenges, personality dysfunction, underemployment, livinga marginal lifestyle, and the possibility of contact with the system [i.e., Justice; Child Welfare] as an adolescent and adult. . . . [Al. C.] appears unaware of the extent the abuse she endured may impact on her life.

It has not been shared that her father sold/tradedpictures of her on the Internet. When she understands the full implications of this it is anticipated that she may further struggle to cometo terms with her abuse. [Al. C.]’s feeling of safety is tenuous at best and she presents as hypervigilant and protective. Knowing thereare pictures of her “out there” will not help in her feeling safe, and may contribute to a heightened sense of violation, betrayal andvulnerability, along with much shame and understandable worry. What this will mean to [Al.

C.] in terms of future relationships andcareer is difficult to predict. However, living with a “dirty secret” will not be easy, and dependent on how [Al. C.] comes to term withthis can have a devastating impact on her life, and on her capacity to become intimate with a partner, to have a family, and to sustain acareer. The Sentencing Judge’s Decision [15] In his decision, the sentencing judge reviewed all of the evidence, including the Agreed Statement, the psychologicalreports detailing the impact on the children and the pre-sentence report. He then summarized the Crown and defence positions onsentence.

He noted that the Crown proposed a specific sentence for each charge and took the position that “the victimization of eachchild requires the court to impose consecutive sentences in each case” (at para 175).

The Crown proposed a total sentence of 37 years tobe reduced for totality to 20 years, less credit for pre-sentence custody. [16] While acknowledging that the accused was a manipulator and that “what he did was horrible” (at para 183), counsel forthe accused took the position that the recommendation put forward by the Crown would amount to a “crushing” sentence (at para 179).He submitted that an appropriate sentence would be a sentence of five years for the offences involving Al.

C. and a further period ofthree years consecutive for the remaining offences (i.e., a total sentence of eight years), less credit for pre-sentence custody. [17] The sentencing judge also reviewed the principles of sentencing and concluded that primary consideration should begiven to the objectives of denunciation and deterrence. He summarized the mitigating and aggravating factors. He specificallyconsidered whether the sentences should be consecutive or concurrent.

Given that this is the main ground of appeal, I set out below thesentencing judge’s analysis and conclusions regarding this issue (at paras 196-203): Given the number of offences for which the accused has entered guilty pleas to, this court must initially determine whether the sentencesto be imposed ought to be served concurrently, consecutively or some mixture thereof. Relying on the case of R. v. James (G.M.) (2013), 2013 MBCA 14 , 288 Man.R. (2d) 269 . . . 2013 MBCA 14 . . ., the Crowncounsel took the position that each [of] the offences before the court warrant the imposition of consecutive sentences.

However, in thecircumstances of this case she conceded there existed an argument and agreed the offences surrounding the making and distribution ofchild pornography could be served concurrently to one another but must still be consecutive to the other sentences. That same

concession also applied to the offences of invitation to touching concerning the children Dy. C. and Day. C. in that they could be servedconcurrent to one another but again consecutive to the other sentences. Counsel for the accused did not comment to any degree on this issue. Although dealing with a fact scenario that involved a number of robberies, the Manitoba Court of Appeal in R. v.

Arbuthnot (S.M.)(2009), 2009 MBCA 106 , 245 Man.R. (2d) 244. . . 2009 MBCA 106, at paras. 21-22 . . . noted the determination as to whethersentences are to be served concurrently or consecutively is a fact-driven analysis for each case. The general rule adopted by the court isthat sentences should be served consecutively when they arise “out of separate and distinct transactions”. In the case at bar, although there may be some overlap of the facts surrounding the offences concerning Al.

C., there remains a distinctdifference in the gravamen of the offences of sexual interference and the making of child pornography to warrant consecutive sentences. I agree with the concession of Crown counsel that the sentences imposed for the making and distribution of child pornography are to beserved concurrently but consecutive to the remaining offences. As for the sexual interference offences involving Dy. C., Da. C. and Dr. C I do note that they all occurred within the same time frames,as is set out in the Information before the court.

However I note the three offences involve three separate victims and the factssurrounding each of them show the offences occurred separately and at different points within the stated time frame. As such it is myposition that they are separate and distinct offences that warrant the imposition of consecutive sentences. The facts supporting the invitation to sexual touching charges concerning Dy. C. and Day. C. are essentially the same for each.

As aresult I agree with the concession of Crown counsel that in these unique set of circumstances there is a sufficient nexus present towarrant that those sentences be served concurrent to each other. However, as they relate to the other offences before the court, they areseparate and distinct and as such that sentence will be served consecutive [to] the other sentences imposed. Finally as it relates to the offence of possession of child pornography I appreciate that the photographs of Al. C. form a part of thatcharge.

That being recognized I note those photographs only form a small part of the overall collection that was seized from the cellularphone of the accused. The majority therefore were of other children, many unknown, and on that basis even with that small overlap inthe facts I find that this offence is distinct from the others and warrants that a consecutive sentence be imposed. [18] The sentencing judge identified the starting point of four to five years’ imprisonment for major sexual assaults on achild by a person in a position of trust, and he proceeded to determine an appropriate sentence for each of the offences.

He then appliedthe totality principle and decided that a total sentence of 22.5 years was excessive and would amount to a crushing sentence. Recognizing that the offences were serious and that the accused’s moral blameworthiness was high, but “mindful also of the accused’scooperation and lack of prior adult record” (at para 255), the sentencing judge concluded that “some further restraint is appropriate tomeet the principle of totality” (ibid). Accordingly, the sentencing judge reduced the total sentence from 22.5 years to 16 years. [19] The following is a

summary of the sentencing judge’s initial sentence and his final sentence (adjusted for totality) inrelation to each offence: Offence Initial Sentence Final Sentence Sexual interference (section 151)—Al. C. 5 4.5 Make child pornography (section 163.1(2)) and distributechild pornography (section 163.1(3))—consecutive tooverall sentence but concurrent to each other 2.5 2

Sexual interference (

section 151 )—Da. C.—consecutive to overall sentence 3 2 Sexual interference (

section 151 )—Dy. C.—consecutive to overall sentence 4 2.5 Invitation to sexual touching (

section 152 )—Dy. C. and Day. C.—two counts—consecutive to overall sentence but concurrent to each other 3 2 Sexual interference (

section 151 )—Dr. C.—consecutive to overall sentence 4 2.5 Possess child pornography (

section 163.1(4) )— consecutive to overall sentence 1 .5 22.5 16.0 [ 20 ] The sentencing judge gave credit for pre-sentence custody at a rate of 1.5:1, and he made a number of ancillary orders, none of which have been appealed. [ 21 ] When delivering his decision, the sentencing judge described the accused’ s conduct as “a gross abuse of trust”: Essentially, [the accused] did not honour the privilege that was bestowed upon him. Instead what he did is he abused his position of trust as a parent in order to meet his own deviant sexual needs and that is really what the case is that is before us.

Issues and Standard of Review [ 22 ] The accused raises four grounds of appeal.

In particular, he says that the sentencing judge erred by: 1. imposing consecutive sentences, and not concurrent sentences, for the offences involving his sons and for the offence relating to possession of child pornography; 2. imposing consecutive dispositions with respect to the offences relating to the making, distribution and possession of child pornography; 3. using a range of sentence for offences involving anal or vaginal intercourse, or threats to children, when none of those circumstances existed in the present case; and 4. imposing a total sentence that was harsh and excessive owing to the age, background and circumstances of the accused. [ 23 ] The standard of review applicable to these issues was described in R v James (GM) , 2013 MBCA 14 , 288 ManR (2d) 269 , and is not in dispute (at para 18): An appellate court must show great deference when reviewing the decision of a sentencing judge, both as regards the length of sentence ordered and the decision to order a concurrent or consecutive sentence.

An appellate court should not intervene in either the duration of

the sentence, or the type of sentence ordered, absent an error in principle or unless the sentence is demonstrably unfit. An error inprinciple includes failing to consider a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to arelevant factor or overemphasizing an appropriate factor. See R. v. Wozny (C.P.) (2010), 2010 MBCA 115 , 262 Man.R. (2d)75; 507 W.A.C. 75; 2010 MBCA 115; R. v. Shropshire (M.T.), (SCC), [1995] 4 S.C.R. 227; 188 N.R. 284; 65B.C.A.C. 37; 106 W.A.C. 37; 102 C.C.C. (3d) 193; R. v.

C.A.M., (SCC), [1996] 1 S.C.R. 500; 194 N.R. 321; 73B.C.A.C. 81; 120 W.A.C. 81; R. v. L.M., 2008 SCC 31 , [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, and R. v.McDonnell (T.E.), (SCC), [1997] 1 S.C.R. 948; (SCC), 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321. In R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089, the Supreme Court of Canada provided an additional refinement, namely that beforean appellate court can intervene, an error in principle must have “an impact on the sentence” (at para 11). The Accused’s Position [24] The accused concedes that the sentence imposed for the offences relating to Al.

C. were appropriate. In particular, hetakes no issue with the sentence imposed for the one count of sexual interference relating to Al. C. (4.5 years) and for the two countsrelating to the production and distribution of child pornography (2 years concurrent to each other, but consecutive to the sentence forsexual interference on Al. C.). [25] However, it is the accused’s position that the sentences for the remaining offences involving his four sons, as well asthe sentence for possession of child pornography, should be concurrent to each other, but consecutive to the sentences imposed for theoffences involving Al.

C. He argues that the offences involving his sons were not separate and distinct offences as all of the offences: (i)involve similar types of sexual offending; (ii) were only against his children; and (iii) were within a similar timeframe. The accused saysthis is akin to a “spree” and relies upon cases from this Court that have found that a spree of drug-fueled robberies within a shorttimeframe generally attracts concurrent sentences. [26] According to the accused, this Court should substitute a sentence of one year for the sexual interference charge relatingto Da.

C. (as opposed to the sentence of 2 years imposed by the sentencing judge) and a sentence of 3 years for each of the sexualinterference charges relating to Dy. C. and Dr. C. (as opposed to the sentence of 2.5 years imposed by the sentencing judge). He takes noissue with the length of sentence for the two counts of invitation to sexual touching (2 years concurrent) or the sentence imposed forpossession of child pornography (6 months). As previously noted, the accused submits that all of these sentences should be servedconcurrently. [27] Finally, the accused argues that the total sentence was unfit.

He submits that the sentences imposed for sexualinterference were outside the range given that there was no anal or vaginal intercourse, or threats to the children. According to theaccused, the significance of waiving a preliminary inquiry and entering a guilty plea without requiring the children to testify was vastlyunderstated and not reflected in the sentences imposed by the sentencing judge. Defence counsel suggested that the sentences imposedwere the same sentences that would have been imposed following a trial.

The Crown’s Position [28] The Crown says that the sentencing judge carefully reviewed all of the evidence before him, and he properly identifiedthe relevant sentencing principles and the aggravating and mitigating factors. Consistent with the approach recommended by this Court,the Crown says that the sentencing judge correctly determined which of the offences should be served consecutively and which shouldbe served concurrently.

He then assessed the sentence for each offence and determined the cumulative sentence to be 22.5 years, whichhe reduced to 16 years on the basis of the totality principle. [29] It is the Crown’s submission that, even if the offences were committed within the same transaction, the sentencingjudge has discretion to order consecutive sentences so as to reflect the seriousness of the separate offences within the same transaction orto address a separate and distinct harm done in each of the offences. [30] The Crown rejects the accused’s submission that the offences were in any way akin to a “spree” with the result thatconcurrent sentences would be appropriate. [31] The Crown says that the making and distribution of child pornography involves different actions by the offender andcauses a separate and distinct harm to the victim and society. [32] Finally, the Crown says that the cumulative sentence of 16 years is a fit and appropriate sentence that addresses theprinciples of denunciation and deterrence given the severity of the circumstances, the number of victims, the tremendous impact of theoffences on the victims, and the significant degree of moral blameworthiness of the accused.

Analysis and Decision [33] I commence with the important observation that the sentencing judge did exactly what this Court has repeatedly saidthat a sentencing judge should do (see R v LLP, 2016 MBCA 28 at para 25, and the authorities cited therein).

[34] In R v Arbuthnot (SM), 2009 MBCA 106, 245 ManR (2d) 244, Chartier JA (as he then was), summarized thecomprehensive sentencing approach set out by the Supreme Court of Canada in R v M (CA), (SCC), [1996] 1 SCR 500,which is to be used when sentencing an offender for multiple offences that call for consecutive sentences (at para 18): 1) The sentencing judge must first determine whether any or all of the offences are to be served consecutively. If all of the offences areto be served concurrently, then there are no totality concerns and there is no need for the sentencing judge to proceed to the next step.

Ifall or some of the offences are to be served consecutively, then the sentencing judge must impose the appropriate sentence for eachoffence or group of offences that are to be served consecutively in accordance with the appropriate sentencing principles (including thosegoverning consecutive sentences), and then proceed to the next step. 2) The total of the consecutive sentences should then be calculated with the sentencing judge taking one last look at the total sentence. The last look is a more focussed application of the general principle of proportionality (see C.A.M., at para. 42).

It does not require areconsideration of the sentencing principles applied in 1) above. Rather, this last look ensures that the total sentence is not unduly long orharsh.

To make this determination, the sentencing judge is to consider the gravity of the offences, the offender’s moral culpability, theharm done to the victims, that the effect of the sentence is not “crushing”, and that it be in keeping with the offender’s record and futureprospects (see Traverse [2008 MBCA 110, 231 ManR (2d) 123], at paras. 33-35, 65). [35] The sentencing judge considered the circumstances of the accused, the specific circumstances of each offence, therelevant sentencing principles and the aggravating and mitigating circumstances.

He then decided whether the sentences should beserved consecutively or concurrently, and he identified an appropriate sentence for each offence. Finally, having determined that someof the sentences should be consecutive, he took a last look at the total sentence, and he reduced each of the sentences so as to ensure thatthe total sentence was neither excessive nor crushing. Each part of this process was done carefully, the correct principles were articulatedand applied, and the reasons for decision are cogent, clear and intelligible.

Simply put, there is no basis for complaint with themethodology or process for sentencing utilized by the sentencing judge. [36] The accused relies heavily on this Court’s decisions in Arbuthnot and in R v Wozny (CP), 2010 MBCA 115, 262 ManR(2d) 75, to support his argument that the sentences for all of the offences involving Da. C., Dr. C., Dy. C. and Day. C. should be servedconcurrently.

He says that the offences were limited to his children and that the incidents were “a single course of behaviour andtransactions within the circumscribed time period and the location (at home).” [37] In Arbuthnot, Chartier JA observed (at paras 19, 24): The decision as to whether or not consecutive sentences should be imposed is not always as straightforward as it may seem. This isespecially so when a sentencing judge is faced with the difficult task of imposing a fit sentence on an offender who, over a short periodof time, goes on a crime spree or sprees to feed an addiction.

The challenge in these types of cases is not only to craft the appropriatesentence, but also to determine whether to order consecutive rather than concurrent sentences.

In my view, in light of the fact that there were a series of similar, continuous and recurring offences with the same gravamen within asustained and relatively short period of time, the accused’s offending conduct with respect to the robbery offences can be viewed assufficiently interconnected to form a single criminal transaction or crime spree and thereby attract concurrent sentences. [emphasis added] [38] And in Wozny, MacInnes JA, speaking for the Court, commented (at paras 46, 51): While this is often not a simple issue to decide, the general rule is that if the offences are sufficiently interrelated to form part of onesingle, continuous criminal transaction, a concurrent sentence is called for.

However, if the offences are separate and distinct, then aconsecutive sentence is to be imposed. Many of the aforementioned cases (Grant [2009 MBCA 9, 236 ManR (2d) 54], Golden [2009MBCA 107, 245 ManR (2d) 254], Draper [2010 MBCA 35, 251 ManR (2d) 267], and Maroti [2010 MBCA 54, 255 ManR (2d) 115])make this clear. But this is only the general or basic rule.

The rationale for permitting a sentencing judge to impose in his/her discretion a concurrent sentence, notwithstanding the fact that “spreeoffences” appear to be separate and distinct, is that the sentencing judge may conclude that the accused was acting under an unbrokeninfluence of addiction, such that the offences could be seen or interpreted as forming a single, continuous transaction.

[emphasis added] [39]

Section 718.3(4) of the Code, and the authorities that have implemented it, demonstrate that the decision to orderconcurrent or consecutive sentences is fact specific and a matter of discretion, and absent an error in principle, is entitled to considerabledeference by this Court. See, for example, R v McDonnell, (SCC), [1997] 1 SCR 948 at para 46. [40] In the present case, the sentencing judge decided that the sentences for the two counts of invitation to sexual touchinginvolving Dy. C. and Day. C. should be served concurrently.

The facts underlying these offences arose out of the same transaction andoccurred at the same time, and the sentencing judge was clearly correct in his decision to order that these sentences be servedconcurrently. [41] The sentencing judge also decided that those sentences should be served consecutive to the other sentences which heimposed. He did so on the basis that the offences were separate and distinct transactions, not sufficiently interrelated to the otheroffences, and he held the same view with respect to the sexual interference charges involving Dy. C., Da. C. and Dr. C.

On the evidencebefore him, he found that the latter offences “involve three separate victims and . . . occurred separately and at different points” (at para201) over a period of approximately 13 months (i.e., between January 1, 2013 and January 26, 2014). With the exception of Da. C., eachof the victims was the subject of abuse on more than one occasion.

Clearly the sentencing judge was of the view, as am I, that thecircumstances of each offence were unique (i.e., separate and distinct) and that the offences were not committed during “a sustained andrelatively short period of time” (Arbuthnot at para 24). [42] The accused’s submission that the offences involving his children were akin to a “spree” is inappropriate. When thisCourt has previously described offences as “sprees”, it has been limited to cases of robberies committed over a short period of time tofeed an addiction. That is not the case here. There was no evidence of addiction.

In this regard, I would adopt the view articulated bythe Alberta Court of Appeal in R v CGJL, 2013 ABCA 140, 544 AR 360 (at para 19): “As a word for these crimes, ‘spree’ trivializesthem and is plainly not a proper term to use.” [43] In my view, concurrent sentences are rarely appropriate where there are separate victims of sexual abuse, each of whomhas suffered an individual harm. (And I note parenthetically that on July 17, 2015, Canada Bill C-26,

An Act to amend the CriminalCode, the Canada Evidence Act and the Sex Offender Information Registration Act, to enact the High Risk Child Sex Offender DatabaseAct and to make consequential amendments to other Acts, 2nd Sess, 41st Parl (assented to 18 June 2015), came into effect amending anumber of the sentencing provisions for child abuse offences.

While these amendments are not retrospective and, therefore, are notapplicable to the present case, sentencing judges will now be obligated to order consecutive sentences for sexual offences involvingchildren, including offences involving child pornography.) [44] Making child pornography is a distinct offence which stands on its own, which addresses a separate and distinct harm tothe victim and to society, and which is deserving of a significant consecutive sentence.

As Joyal CJQB said in R v CM, 2012 MBQB141, 279 ManR (2d) 80 (at paras 124-25): In imposing consecutive rather than concurrent sentences, the trial judge was clearly persuaded, as am I, that notwithstanding theargument of the accused, the offences of Invitation to Sexual Touching and Make Child Pornography do not necessarily involve a nexussuch that they are a part of a single criminal act.

Even if the circumstances suggest that the offences overlapped and occurred within thesame timeframe, the trial judge did not err in principle in concluding that they are two separate types of offences requiring consecutivesentences. There are compelling reasons for identifying the offences in question as separate offences requiring consecutive sentences. The offencesdo indeed involve distinct and separate harms to society.

One harm involves subjecting a young child to a sexual offence and the other,subjecting the child to the photographing of that offence which, in the circumstances of this case, creates child pornography, an offencewhich in its own right represents a separate and particular harm deserving of denunciation, deterrence and punishment. [emphasis added] [45] More recently, in R v GJM, 2015 MBCA 103, 323 ManR (2d) 282, Mainella JA commented on the gravity of theoffence of making child pornography (at paras 14-15): The judge properly recognized the seriousness of the crime of making child pornography.

Victims are harmed not only by the initialproduction of the child pornography, but also perpetually if the material is made available or distributed. Once on the Internet, sexuallyexplicit material is impossible to eradicate and will be used by other offenders domestically and internationally for the purposes of sexualgratification or to exploit other children. Sentences accordingly must be severe for making child pornography to reflect the gravity ofthis pernicious crime.

However, here the accused did not go further down the path of criminality in making child pornography in ways that often occur. First,he did not commission or encourage his daughters or J.P. to perform sexual acts that would fall within categories two and five of thechild pornography classification system recognized by this Court in Basov (at para 5). Second, he did not show or distribute to others thechild pornography he made in relation to his daughters, J.P. and B.B., nor did he intend to do so. While not mitigating, this was a case ofpersonal use of the material produced.

Had the accused commissioned or encouraged children to perform sexual acts or had he intendedto show or distribute the material made to others, or actually done so, his blameworthiness would have been greater and the resultingsentence for making child pornography would be in the mid to upper single digits (R. v. L.M., 2008 SCC 31 , [2008] 2 S.C.R.163; 374 N.R. 351; 2008 SCC 31, at paras. 25-28; R. v. D.G.F. (2010) 2010 ONCA 27 , 259 O.A.C. 364; 2010 ONCA 27, atparas. 21-26; and R. v.

Tettersell (A.J.) (2012), 2012 ABCA 57 , 524 A.R. 88; 545 W.A.C. 88; 2012 ABCA 57). [46] I am also of the view that there is no merit to the accused’s submission that the sentences imposed were not fit. Theaccused conceded that the offences against his children were major sexual assaults.

In R v Sidwell (KA), 2015 MBCA 56, 319 ManR(2d) 144, this Court stated (at para 38): This court has repeatedly affirmed the principle that where major sexual assaults are committed on a young person within a trustrelationship by means of violence, threats of violence or by means of grooming, the starting point for sentence consideration is four tofive years’ incarceration. See James, at para. 69; R. v. Myran (L.), [2004] Man.R. (2d) Uned. 8; 2004 MBCA 7, at para. 4; R. v.R.W.T. (2006), 2006 MBCA 91 , 208 Man.R. (2d) 60; 383 W.A.C. 60; 2006 MBCA 91, at para. 4; R. v.

G.S.F. (2009), 2009MBCA 5 , 236 Man.R. (2d) 51; 448 W.A.C. 51; 2009 MBCA 5, at para. 4; and R. v. J.R.A. (2012), 2012 MBCA 48 ,280 Man.R. (2d) 123; 548 W.A.C. 123; 2012 MBCA 48, at para. 4. [47] The sentencing judge recognized that

section 718.01 of the Code directs that when a court imposes a sentence for anoffence that involves the abuse of a person under the age of 18 years, it must give primary consideration to the objectives of denunciationand deterrence of such conduct. In addition, and in keeping with

section 718.2(a), the sentencing judge took into account as aggravatingfactors the age of each victim (under 10 at the time of each offence), the fact that the accused abused his position of trust, and the factthat the offences had a significant impact on each of the victims, including their psychological health. [48] The final sentence imposed for each of the sexual interference charges relating to the four boys was either 2 or 2.5years. In my opinion, these sentences are well within the established range, and are, if anything, extremely restrained.

Similarly, thesentence of 6 months for possession of child pornography was clearly within the range identified by this Court in Basov. I am alsosatisfied that the offence of possession of child pornography was a separate and distinct offence from the offences relating to theproduction and distribution of child pornography. Here there was abundant evidence that, in addition to the photographs of Al.

C., therewere numerous photographs of other unknown children. [49] The sentencing judge considered all of the matters raised by the accused on appeal including his past victimization, theabsence of a criminal record, his guilty pleas, the absence of threats or violence to gain compliance by his children, the relatively shorttime period and the absence of intercourse. The accused’s conduct was planned and premeditated, he made conscious decisions tovictimize his children, and his moral culpability was extremely high.

I am therefore satisfied that the sentences imposed clearly fallwithin the appropriate range of sentence for this offender and the offences which he committed. [50] The Crown conceded that 16 years is a high sentence, but says that it is not high for this offender given his extremedegree of moral blameworthiness and the serious nature of the offences. I agree. A high sentence is not by itself a sufficient ground ofappeal, and this Court will defer to a sentencing judge, absent error, even where the sentence is high unless it is demonstrably unfit,which is not the case here.

Conclusion [51] The accused has failed to demonstrate any error in principle or that the sentence imposed was unfit. I would grant leaveto appeal, but dismiss the appeal. JA I agree: JA I agree: JA