R v JCW, 2020 MBCA 40

Citation: R v JCW, 2020 MBCA 40 Date: 20200330 Docket: AR18-30-09154 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Freda M. Steel Madam Justice Jennifer A. Pfuetzner BETWEEN: HER MAJESTY THE QUEEN ) A. J. Kavanagh and ) L. M. Nagy Respondent ) for the Appellant ) - and - ) A. C. Bergen ) for the RespondentJ. C. W. ) ) Appeal heard: (Accused) Appellant ) January 21, 2020 ) ) Judgment delivered: ) March 30, 2020 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). pfuetzner JA [1] The accused seeks leave to appeal and to appeal a sentence of eight years’ incarceration imposed after he pleadedguilty to one count of sexual assault. Upon his entering the guilty plea, the Crown stayed a charge of incest. Background [2] The agreed facts are that the accused forced vaginal intercourse on his 16-year-old daughter (who he did not raise andwho was in the care of Child and Family Services) after inviting her to stay overnight with him and his five-year-old son at his hotelroom and promising to take both the children to the zoo the next day.

The accused instructed the victim to shower and to wear a pair ofboxer shorts prior to going to bed. He began to fondle her and she told him to stop. She then pretended to fall asleep, hoping he wouldleave her alone. Instead, he removed her shorts and underwear and had unprotected intercourse with her while his son slept in the nextbed. In the morning, the victim reported the assault to her foster mother, who took her to the hospital and to the police station to providea statement.

The accused’s DNA was found in the victim’s vagina. [3] The offence occurred on May 16, 2015 and the accused pleaded guilty on January 30, 2018. On June 29, 2018, theaccused was convicted after a trial of another sexual assault on an adult female that occurred in 2012 (the 2012 assault). The accusedwas sentenced for the present offence on September 6, 2018. He was sentenced for the 2012 assault on September 21, 2018. [4] The accused has a prior criminal record that includes several convictions for violent offences as well as the 2012assault.

The accused is Indigenous and the Gladue principles are applicable (see R v Gladue, (SCC), [1999] 1 SCR688). He is himself a victim of childhood sexual abuse. The sentencing judge referred to a pre-sentence report and noted that theaccused “accepts minimal responsibility for his actions” and “displayed no victim empathy or insight into the precursors to hisoffending.” [5] The sentencing judge, citing R v Sidwell (KA), 2015 MBCA 56, indicated that the starting point for a sentence for a

major sexual assault of a child by someone in a position of trust is four to five years. After considering the aggravating factors, such as the planned nature of the assault, and the relative lack of mitigating factors, the sentencing judge imposed a sentence of eight years less time in custody. Issues [ 6 ] The accused argues that the sentencing judge erred in principle by failing to properly consider the Gladue factors, overemphasising his criminal record and giving insufficient weight to his guilty plea.

The accused also argues that he was not in a traditional trust relationship with his daughter as he had only met her a few times prior to the offence and that the sentencing judge mischaracterised the facts when she said the accused “lured” his daughter to his hotel room. Alternatively, the accused argues that the sentence is harsh and excessive. [ 7 ] The Crown submits that, while higher than sentences imposed in other cases, the eight-year sentence was not arrived at due to an error in principle and is not demonstrably unfit. Analysis [ 8 ] The standard of review on a sentence appeal is well established.

Great deference is owed to the decision of the sentencing judge unless there has been an error in principle that had an impact on the sentence or the sentence was demonstrably unfit ( see R v Houle , 2016 MBCA 121 at para 11 ; and R v Reilly , 2019 MBCA 84 at para 11 ). [ 9 ] In weighing the relevant factors, the sentencing judge properly gave primary consideration to denunciation and deterrence as the offence involved the abuse of a person under the age of 18 (see

section 718.01 of the Criminal Code (the Code )). As a result, her focus was necessarily on the conduct of the accused rather than on his personal circumstances (see R v McMillan (BW) , 2016 MBCA 12 at para 12 ). [ 10 ] The sentencing judge considered the accused’s Gladue factors in detail, including his family’s experience in residential schools and that the accused suffered sexual abuse as a child at the hands of extended family members.

However, the sentencing judge determined in this particular case that deterrence and denunciation were to be given priority as she was obligated to do. [ 11 ] The sentencing judge observed that the accused “has a lengthy and fairly serious criminal record which disentitles him to leniency.” I note that the sentencing judge stated that, despite him having been convicted of the 2012 assault, she would not “treat him as a second time sex assault offender for the purposes of sentencing in this case.” To the extent that the sentencing judge considered the 2012 assault irrelevant for purposes of this sentencing, I disagree with this approach.

While the sentencing judge properly noted that it was not her task to sentence the accused for the 2012 assault, that conviction was nonetheless a relevant factor at the sentencing for this offence.

As indicated in R v Wright , 2010 MBCA 80 , in general, a prior criminal record can assist a judge in considering several relevant sentencing principles, such as entitlement to leniency, specific deterrence, public safety and the jump principle (see para 7). [ 12 ] The circumstances are somewhat unusual in that, while the 2012 assault was committed prior to the present offence, the accused was convicted of the 2012 assault after pleading guilty to, but prior to being sentenced for, the present offence.

In addition, he had not yet been sentenced for the 2012 assault when he was sentenced for the present offence. [ 13 ] I would adopt the following passage from R v J (HJ), 1989 CarswellBC 936 (CA) , as reflecting how the 2012 assault conviction is relevant to the sentencing for the present offence in these circumstances (at para 8): . . .

Other similar offences, whether committed before or after that for which an accused is being sentenced, may well be of considerable importance in determining the character of the accused, the extent, if any, to which there has been rehabilitation, the likelihood of rehabilitation in the future, the extent to which the accused is likely to be deterred by the fact of conviction, brief incarceration or a term of probation and — to some extent a factor related to all of these — the extent to which imprisonment is appropriate for the protection of the public against the commission of further similar offences by the accused.

See also R v Keats , 2018 NSCA 16 at paras 36-37 ; and R v Johnston , 1980 CarswellQue 39 (CA) at para 15 . [ 14 ] At the end of the day, the sentencing judge used the accused’s criminal record solely for the purpose of determining whether the accused was entitled to leniency, and she made no error in doing so.

I am not persuaded that the sentencing judge overemphasised the accused’s criminal record. [ 15 ] As for the weight given to the accused’s guilty plea, the sentencing judge noted that it was made “over two-and-a-half years after the charge was laid, in the face of a strong case, particularly given the DNA evidence and his familial relationship to the victim.” Relying on R v Racca , 2015 MBCA 121 , she found that “the impact of the guilty plea in favour of the offender is lessened in these circumstances.

It is not, however, diminished entirely, and it does constitute a mitigating factor, albeit of limited importance in the circumstances”. She was entitled to come to this conclusion. The accused has not convinced me that the sentencing judge failed to give

sufficient weight to his guilty plea. [ 16 ] The accused’s submission that he was not in a traditional trust relationship with his daughter is not persuasive. The only reason she went to his hotel room to stay the night was because of their family relationship.

I agree with the sentencing judge’s statement that the accused “lured the victim to his hotel room, with the promise of a family outing to the zoo the next day”. [ 17 ] Also important in this case was the negative pre-sentence report which was referred to at length by the sentencing judge and which serves to illustrate the lack of significant mitigating factors.

The author of the report describes the accused as appearing “to accept minimal responsibility for his actions”, that he “did not express any empathy” and that he “does not have any truly open and trusting relationships in his life, which is evident in the lack of knowledge his family exhibited in their interviews for this report.” The accused was assessed as a “[h]igh risk for re-involvement in criminal behaviour” and an “ Above Average Risk for being charged or convicted of another sexual offence.” The author expressed concern that it appears the accused “is unable to control his sexual urges” and that he “lacks any insight into the pre-cursers to this offending and as such would be unable to implement a risk management plan in the community.” [ 18 ] A supplementary pre-sentence report was filed to address the fact that, in his first interview with the author, the accused “did not admit to the details of his offence . . . and instead detailed an alternate version of events contrary to the agreed statement of facts”.

After pressing, the accused “finally admitted he had sexual intercourse with his daughter.” [ 19 ] The mitigating factors in this case are few. There are several aggravating factors, including two that are statutorily aggravating: the accused abused a victim under the age of 18 and abused a position of trust in relation to the victim (see sections 718.2(a)(ii.1), 718.2(a)(iii) of the Code ).

In all of the circumstances, I am not convinced that the sentencing judge erred in principle when she weighed the relevant factors. [ 20 ] The final issue is whether the sentence is harsh and excessive. [ 21 ] In light of the accused’s prior criminal record and the conviction for the 2012 assault, a sentence at the starting point of the range referred to in Sidwell would not be appropriate. [ 22 ] As indicated in R v Norton , 2016 MBCA 79 at paras 23-25 , 42-44, penalties and sentences for sexual offences against children have been increasing.

Indeed, the Supreme Court of Canada, in R v Friesen , appeal to SCC granted with reasons to follow, 38300 (16 October 2019), recently restored a six-year sentence imposed for a sexual interference offence against a child where the offender was not in a position of trust. [ 23 ] In the result, while the sentence is high, I am not persuaded that it is demonstrably unfit. [ 24 ] I would grant leave to appeal sentence and I would dismiss the appeal. JA I agree: CJM I agree: JA