R v RJ, 2017 MBCA 13

Citation: R v RJ, 2017 MBCA 13 Date: 20170113 Docket: AR16-30-08608 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre BETWEEN: HER MAJESTY THE QUEEN ) A. L. Sansregret ) for the Appellant Respondent ) ) J. M. Mann- and - ) for the Respondent ) R. J. ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) January 13, 2017 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that coulddisclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code). On appeal from 2016 MBPC 25, 329 ManR (2d) 1 MAINELLA JA (for the Court): Introduction [1] The accused seeks leave to appeal his fourteen-year sentence, less credit for the equivalent of four years of pre-sentence custody, arising from his guilty pleas to three counts of sexual interference (section 151(

a) of the Criminal Code (the Code))and one count of making child pornography (section 163.1(2)(

a) of the Code). [2] The issues on the appeal relate to whether the combined sentence is disproportionate to the overall culpability of theaccused (see R v M (CA), (SCC), [1996] 1 SCR 500 at para 42). The accused says his sentence is excessive and,therefore, is demonstrably unfit. We disagree. After hearing the appeal, it was dismissed with reasons to follow. These are thosereasons. Background [3] The accused is 38 years old. His criminal record is dated, but related.

In 2002, he was sentenced to a conditionalsentence of two years less one day, followed by probation, for the offence of invitation to sexual touching in relation to his stepson, C.H. When C.H. was nine years old, he and the accused repeatedly engaged in mutual touching of genitalia. The accused said at the time thathe was not sexually aroused by the activity and it was suggested, by him and his wife, that C.H. initiated the sexual contact. The accusedprofessed a desire to control his sexual-impulse issues towards children and subsequently participated in sexual-offender treatment.

[ 4 ] The reality of the accused’s rehabilitation prospects was quite different. After being arrested for the offences that are the subject of this appeal, the accused admitted he violated the terms of his judicial interim release on the invitation to sexual touching offence by having contact with C.H. and continued to engage in sexual fondling of the child.

He also admitted he had minimized the extent of his “problem” regarding children at the time and during treatment. [ 5 ] The first count of sexual interference relates to two incidents between 2002 and 2005 involving C.H. when the child was between the ages of 10 and 12 and the accused was serving his conditional sentence. The first incident occurred when the accused was subject to a no-contact order with C.H. In that incident, C.H. was sleeping over at the accused’s residence. The accused said he “almost raped” the child.

While C.H. was asleep, the accused touched him around the anus, digitally penetrated him and then unsuccessfully tried to penetrate him with his penis. The second incident occurred after the no-contact condition was deleted as child welfare authorities were prepared to allow the family to be reunited. In the second incident, the accused and C.H. took a shower together. During the shower, they engaged in sexual touching and fellatio on each other.

C.H. delayed disclosure of the abuse until the incidents relating to the other complainants came to light. [ 6 ] The other two counts of sexual interference relate to T.H., the accused’s daughter, and H.R., a friend of T.H., and occurred while they were asleep. The accused and his wife had two daughters together (T.H. and Te.H.) (there are no allegations of sexual abuse in relation to Te.H. as, according to the accused, she is a light sleeper).

Because of the inability of the accused’s wife to care for the two young girls when the couple separated, child welfare authorities placed the two girls in the care of the accused, believing he was addressing his sexual-impulse issues towards children. [ 7 ] In 2012, T.H., aged 9, met H.R., aged 8. The two became close friends. They regularly slept over at each other’s residences. The accused and H.R.’s mother developed a close relationship, but it never evolved into a sexual one. He would often sleep over at her house, along with T.H.

Arguments between the two adults led to their not having much contact after the end of January 2013, but the two girls remained friends. [ 8 ] During an approximate nine-month period in 2012-2013, the accused sexually abused T.H. and H.R. He also made child pornography of the two girls for the purposes of masturbation. The pictures included him having anal intercourse with both T.H. and H.R. In addition, he took pictures of H.R. when she was naked after showering.

The accused later described his paraphilia to police by explaining that he was “a butt man” and would take pictures when he saw things he “shouldn’t” see. [ 9 ] The accused pursued his predatory behaviour at night and was careful not to wake the girls. It started with his fondling their buttocks and masturbating; the behaviour escalated. In relation to T.H., on three occasions, he penetrated her anally with his fingers or penis. He used a lubricant when he anally penetrated her with his penis.

In relation to H.R., there were two incidents of full and partial anal penetration with his penis (resulting in a tear to her anus), and other incidents of his placing his penis in her intergluteal cleft or engaging in cunnilingus. Police discovered pornographic photographs of the two girls on the accused’s phone, as well as numerous website searches relating to child pornography and erotica relating to unconscious girls. [ 10 ] The accused acknowledges he has ongoing deviant sexual thoughts and arousal towards children. He has “struggled” with fantasies about children his entire life.

Some of his problems he attributes to sexual abuse as a child (from non-family members) and being a “pothead” since he was a teenager. He also advised he is addicted to “sleep porn” (videos of sexual contact with someone who is asleep). The accused says he is uncomfortable in his sexual relationships with adult women and would prefer to never be unsupervised around children going forward so that he does not act out any of his fantasies.

He was scored as a 4 on STATIC-99R (an actuarial rating method to assess a sexual offender’s future risk to the public), which places him in the 80th percentile, meaning there is a “moderate-high risk” for him to commit another sexual offence. He requires intensive psychological assessment and treatment before he can be released under strict supervision in the community. [ 11 ] Not surprisingly, the victim impact statements confirm that the accused’s actions have had a significant negative impact on each of the complainants and their family members. As C.H. explained, “He still haunts my dreams”.

The harsh and grim reality of child sexual abuse is that the sentence of the victim is always longer than that of the perpetrator. The consequences of the accused’s crimes will affect his victims for the rest of their lives, well after the accused has completed any punishment that the courts can mete out.

Analysis and Decision [ 12 ] The standard of review on a sentence appeal was discussed in R v Houle , 2016 MBCA 121 at para 11 : The law affords a sentencing judge great latitude in tailoring a sentence to the offence and the offender ( R v Ipeelee , 2012 SCC 13 at para 38 , [2012] 1 SCR 433 ; and R v Nasogaluak , 2010 SCC 6 at paras 43-46 , [2010] 1 SCR 206 ).

Accordingly, the threshold for appellate intervention with a sentence is “very high” and limited only to situations of material error or where the sentence is demonstrably unfit (section 687(1) of the Code and R v Lacasse , 2015 SCC 64 at para 52 , [2015] 3 SCR 1089 ). A material error has two qualities beginning with demonstration of an error in principle, such as an error in law, a failure to consider or give sufficient weight to a relevant factor, consideration of an irrelevant factor or an overemphasis of an appropriate factor.

The second aspect is that the error must have impacted the sentence in more than just an incidental way ( see Lacasse at para 44 ). Where the error is harmless, as it has “no real effect” on the sentence, appellate intervention is not permitted ( Lacasse at para 45 ).

A sentence will be demonstrably unfit where it unreasonably departs from the principle of proportionality taking into account the individual circumstances of the offence and the offender and the acceptable range of sentence for similar offences committed in similar circumstances ( see Lacasse at paras 52-55 ; and R v Ruizfuentes (HS) , 2010 MBCA 90 at para 7 , 258 ManR (2d) 220 ).

[ 13 ] The proper approach to sentencing on multiple offences is well-known. First, the judge examines the degree of nexus between the offences, as required by

section 718.3(4) of the Code , to decide whether any or all of the offences will be served concurrently or consecutively. Second, where concurrent sentences are imposed, the judge determines a fit sentence for the most serious offence and makes the other sentences lesser in length or determines a single sentence for the set of offences. Where concurrent sentences are imposed, the judge is required to ensure that the length of the sentence does not give an offender a free ride for any criminal conduct. Alternatively, if consecutive sentences are imposed, the judge determines a fit sentence for each offence.

Third, in the case of consecutive sentences, the judge totals the sentences and then gives the combined sentence a last look in accordance with the totality principle to see if the combined sentence is “unduly long or harsh” because it exceeds the overall culpability of the offender (see

section 718.2 (

c) of the Code ). Fourth, where the judge determines that the combined sentence is excessive, the sentence is adjusted to the point where it is proportional to the offender’s overall culpability. When a sentence is reduced to maintain the fundamental principle of proportionality, the judge must, as far as possible, ensure that the offender does not get a free ride on any criminal conduct. [ 14 ] The accused concedes, as the judge decided, that consecutive sentences for the four individual offences were appropriate (the offences occurred prior to the passage of

section 718.3(7) of the Code ). The judge determined that a fit sentence for the four offences, before considerations of totality, was: for sexual interference–seven years for C.H.; five years for T.H.; five years for H.R.; and two years for making child pornography. [ 15 ] The judge concluded that a combined sentence of 19 years was excessive on a last look.

Mindful of the factors discussed in R v GJM , 2015 MBCA 103 at para 10 , 323 ManR (2d) 282 , and the record before him, he determined that the accused had a “high degree of moral culpability” (at para 75) in terms of calculating what would be a proportional sentence in the circumstances. He commented that “The higher degree of moral culpability, the less likely the total sentence will be reduced to any great extent, if at all” (at para 75).

He then decided to reduce the total sentence of 19 years for the 4 offences by approximately 25 per cent to a combined sentence of 14 years as follows: for sexual interference–5 years for C.H.; 4 years for T.H.; 4 years for H.R.; and 1 year for making child pornography. [ 16 ] The accused has not persuaded us that the judge made an error, let alone a reversible one, in determining what was a fit sentence, before considering totality, for each of the three counts of sexual interference in light of the gravity of the offences, the degree of responsibility of the accused, and the relevant circumstances and sentencing objectives and principles. [ 17 ] At the sentencing, the accused acknowledged that each of the three allegations of sexual interference amounted to what the common law has called a major sexual assault.

In R v Sidwell (KA) , 2015 MBCA 56 , 319 ManR (2d) 144 , it was noted that the starting point for sexual interference, with circumstances that amount to a major sexual assault (such as anal or vaginal intercourse, fellatio and cunnilingus) committed on a child by an accused in a position of trust who is “mature” and “with no criminal record and prior good character”, is four to five years’ imprisonment (at para 49). [ 18 ] A starting point means exactly what it says. It is the beginning of the necessary reasoning to make an informed sentencing decision as to what is a fit sentence in a particular case.

The ultimate sentence may go up or down from the starting point based on the relevant circumstances and the proper exercise of judicial discretion ( see R v Delacruz , 2017 MBCA 10 at para 6 ). The judge’s reasons satisfy us that he used the correct starting point to arrive at an individualized sentence tailored to the circumstances of each of the three allegations of sexual interference, the circumstances of the accused, and the relevant sentencing objectives and principles.

The high threshold required for appellate intervention with a sentence has not been demonstrated. [ 19 ] The same is true for the two-year sentence the judge imposed for the offence of making child pornography before considering totality. That offence has a minimum punishment of one year.

A two-year sentence for making child pornography, where the content included penetrative sexual activity between adults and children, is well within the range for an offender whose purpose in making the child pornography is limited to personal use of the material produced ( see GJM at para 15 ). [ 20 ] We have also not been persuaded by the accused’s other submissions that the judge erred in assessing his degree of moral culpability and that his actual, lesser level of culpability required a more meaningful adjustment to the combined sentence for reasons of totality than what the judge gave ( see GJM at para 18 ).

In our view, there is no basis to disturb the judge’s assessment of the accused’s moral culpability. Unlike GJM, this case involved conduct that amounted to major sexual assaults. There was also evidence of premeditation and predatory behaviour in the manner in which the offences were committed, which evidences a high degree of moral culpability. Based on the record that was before him, the judge’s assessment cannot be said to be unreasonable.

Also, the judge properly understood the relevant factors to consider in applying the totality principle in light of the accused’s high degree of moral culpability ( see GJM at para 10 ). [ 21 ] Sentencing offenders in a principled fashion for multiple disturbing crimes committed against children is no easy task. While it is unquestionable that the sentence here was severe, it was arrived at in thorough and thoughtful reasons. We see no grounds for appellate interference. Accordingly, while leave to appeal sentence is granted, the appeal is dismissed. JA JA

JA