R v. DRMG, 2016 NSSC 306

SUPREME COURT OF Nova Scotia Citation: R v. DRMG , 2016 NSSC 306 Date: 20161021 Docket: CRS No. 446148 Registry: Sydney Between: Her Majesty the Queen v. DRMG Respondent Restriction on Publication: Pursuant to s. 486.4 (2.1) of the Criminal Code of Canada SENTENCING DECISION Judge: The Honourable Justice Patrick J. Murray Heard: June 6 – 15, 2016, in Sydney, Nova Scotia Final Oral Submissions: June 16, 2016 Oral Decision: August 15, 2016 Counsel: Steve Melnick, for the Crown Blair Kasouf, for the Respondent, DRMG Order restricting publication — sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or (b), the presiding judge or justice shall

(

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. Victim under 18 — other offences

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. Mandatory order on application

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (

a) as soon as feasible, inform the victim of their right to make an application for the order; and (

b) on application of the victim or the prosecutor, make the order. Child pornography

(3) In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. Limitation

(4) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. ** Editor’s Table ** Provision Changed by In force Authority 486.4 2005 c32 s15 2006 Jan 2 SI / 2005-104 486.4 2010 c3 s5 2010 Jun 29 R.A. 486.4 2012 c1 s29 2012 Aug 9 SI / 2012-48 486.4 2014 c25 s22 2014 Dec 6 Act, s 49 486.4 2015 c13 s18 2015 Jul 22 Act, s 60(1) ****** S.C. 2005, c. 32, s. 15, as amended by S.C. 2005, c. 43, s. 8(3), effective November 25, 2005 (Act, s8(1) and (3)); S.C. 2010, c. 3, s. 5; S.C. 2012, c. 1, s. 29; S.C. 2014, c. 25, ss. 22, S.C. 2015, c. 13, s. 18 By the Court (Orally): Introduction [ 1 ] The Accused, DMG, was found guilty of aggravated assault contrary to section 268(1) of the Criminal Code of Canada , following a lengthy trial.

This is a serious offence resulting in serious injuries to the victim, who is a child and the step-daughter of the Accused, HM. [ 2 ] In my trial decision I found that the injuries suffered by HM were inflicted on her by Mr. MG and were traumatic.

According to law it was not necessary for the Crown to prove that the Accused had a specific intent to wound, but had to prove that bodily harm was a foreseeable consequence of the force that was applied. [ 3 ] In terms of the assault I found that the force intentionally applied did wound the victim as specified in the indictment. [ 4 ] The injuries to her involved a subdural hemorrhage, retinal hemorrhages, vertebrae fractures brain injury, liver damage (laceration) and extensive bruising.

The most severe as appears from the medical evidence is the damage to the brain which occurred, especially to the right side. As explained in Dr. Larson’s report at trial this involved damage to the substance of the brain, one injury being the primary injury and another being a secondary injury. (Psychological report) [ 5 ] The facts of this case are profoundly sad and tragic for the family of DMG as well as his common law spouse, their children and the grandparents.

Three families have been severely impacted. [ 6 ] The offence of aggravated assault carries with it the maximum penalty of 14 years imprisonment under s. 268(2) of the Criminal Code of Canada . [ 7 ] The ultimate goal of this Court is to arrive at a fit and proper sentence, in all of the circumstances.

Crown Position [ 8 ] The Crown submits the Court must ensure that the sentence imposed is a true and accurate reflection of the moral blameworthiness and/or culpability of the Accused, in all of the circumstances, including those of the Accused. [ 9 ] This Crown says, among others, the age and vulnerability of the victim are aggravating factors and that the offence involved a serious breach of trust. [ 10 ] The Crown respectfully submits that the principles of sentencing and the caselaw call for a lengthy custodial sentence of 6 – 8 years imprisonment. [ 11 ] This they say is the appropriate sentence based on the fact that the injuries to the child were numerous, severe and required great force to inflict.

Defence Position [ 12 ] The Defence submits there is a wide range of sentencing options for this category of offence. [ 13 ] Further, the Defence argues the actual mechanism of the offence and the Accused’s intent is unclear in this situation. [ 14 ] The Defence submits the Court need not adhere to the Crown’s recommendation to be respectful of the sentencing principles. [ 15 ] The Defence submits the Accused has no prior record and that there are positive features in the pre-sentence report. Pre-Sentence Report [ 16 ] Mr.

MG is […] years of age and presently resides with his parents, in their family home at […] Street, […]. [ 17 ] Mr. MG had difficulties in school. He did not complete high school. He was diagnosed with ADD and ADHD at the age of 3. His struggles in school involved behavioural issues and as an adult he has had issues with anger management and has sought out counselling in that regard. He did complete grade 10 and entered grade 11. [ 18 ] He has the support of his family and has a brother who is quite ill. He has been close to his brother and called him his best friend while growing up. [ 19 ] Mr.

MG’s work has been limited. He has during the past 5 years helped on a fishing boat and he has been described by his employer as a good worker. He has also worked as a flagger and as a mover. [ 20 ] His mother describes his involvement as being out of the norm and not consistent with his past behaviour. She described him as a model father. [ 21 ] His hobbies are limited. Video gaming and X Box seem to be a part of his life. In 2009 he sought treatment of his anger management issues and was re-referred in 2015 to the Second Chance Program, now Cornerstone Cape Breton.

Kim Sadler, Executive Director advises he has been actively engaged in a voluntary maintenance group on a weekly basis for the past number of years. [ 22 ] He was referred in 2012 by his family physician for recommended treatment/change in medication but the pre-sentence report states he did not appear to follow through on this. [ 23 ] Self-confidence has been an issue for Mr. MG. He has poor frustration tolerance and difficulty coping with stress. [ 24 ] There are some positive features to his pre-sentence report. He was described by Ms.

Sadler, as very active and engaged as well as being very likeable but also vulnerable. [ 25 ] The report indicates that Mr. MG is a source of concern to the police because the offence for which he has been convicted involves violence. [ 26 ] The report states that due to a lack of treatment for his issues and Mr. MG’s poor tolerance for frustration, probation services

considers him a candidate for recidivism and not eligible for community service work. [27] Finally, the report indicates that Mr. MG showed little remorse and did not express regret for the overall circumstancesincluding the injuries to the child. [28] The report does indicate that these events have had affected him and have taken a toll on him in that his children have beenplaced on a permanent basis through the Minister of Community Services. Principles of Sentencing [29] The underlying consideration for the Court is set out in

section 718.1 of the Criminal Code which is referred to as thefundamental principle of sentencing. A sentence must be proportionate to the gravity of the offence and the degree of responsibility ofthe offender. In plain words, it must be a fit and proper sentence. In determining that, I must look at and consider the fundamentalpurpose of sentencing and the objectives which are set out in the Criminal Code. There are six of them.

Section 718 of the Code reads: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [30] There are additional considerations and those considerations involve aggravating and mitigating factors. A sentence shouldbe increased or reduced to account for aggravating or mitigating circumstances relating to the offence or to the offender. Also, asentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

There areothers which I will not refer to verbatim, but one of those reflects a consideration that incarceration and deprivation of liberty would be alast resort. The Defence has brought these principles to the Court’s attention in its brief. [31] The caselaw has clearly stated that the objectives of denunciation and deterrence should be a primary consideration when thevictims are children. As such, a sentence must properly reflect the moral blameworthiness of the particular offender. Denunciationrequires that a sentence should communicate society’s condemnation of the offender’s conduct.

Deterrence is another objective and itrefers to a sentence that will specifically deter the offender from committing further offences as well as deter other like-mindedindividuals from offending. [32] These objectives are particularly relevant here. [33] These, however, are not the only objectives. For example, rehabilitation is an important factor in establishing any sentenceand is of particular importance when dealing with young people and first offenders. Mr. DMG is a first time offender, having not beenbefore the Courts. [34] There is, as well, the need to account for individual circumstances.

I am not intending to make an exhaustive list at this timebut have referred to those which may apply here. Sentencing Caselaw Generally [35] Counsel have spent considerable time referring to the caselaw. I have read carefully and considered the authorities providedto me by both Crown and Defence counsel, and other cases.

I will refer to these cases for guidance knowing full well I must decide whatis a fit and proper sentence based on the facts before me, having regard to the sentencing principles as they apply to these circumstances. [36] I remind myself that these are not principles which demand strict adherence in all cases, regardless of the circumstances andthat depending on the circumstances a flexible approach may be required to ensure a balance with all other considerations which are tobe properly taken into account. (R. v Gordon, ) Analysis [37] The Crown in its brief referenced R. v MacDonnell, 2013 NSSC 29, which cited the Supreme Court of Canada in R. v L.M.,2008 SCC 31 , [2008] 2 S.C.R. 163, at paragraph 22 stating there is “no precise standard” for applying the objectives ofsentencing, which are general in nature. [38] This is desirable the court said since sentencing is fundamentally an individualized process and that sentences will necessarilyvary from one offender to another, having regard to all the circumstances. [39] The Defence referred in its brief to the recent Nova Scotia case of R. v A.H.H., 2016 NSSC 239, where in paragraph 13 theSupreme Court of Canada case of R. v LaCasse, 2015 SCC 64, also recently decided stated although the objectives are clearly defined,sentencing by definition involves the exercise of broad discretion in balancing all of the factors to meet the objectives.

Justice Wagner

referred to the principle of parity of offences and that sentences are to be proportionate by the exercise of that discretion. I adopt these references to LaCasse at paragraphs 1, 2, 3, 4 and 11 of A.H.H . Aggravating Factors [ 40 ] There are a number of aggravating factors in this case:

i) The assault was committed on a person under 18 years – s. 718.2(a)(ii.1), the Accused’s step daughter; ii) As such the Accused abused a positon of trust – s. 718.2(a)(iii), the victim being 18 months; iii) The offence has had a significant impact on the victim, and in particular, her medical condition. There are serious health consequences for the victim, which include delayed developmental issues and behavioural issues. The victim has been left with permanent injury to her brain – s. 718.2(a)(iii.1)); iv) Psychological report – Findings; and

v) The pre-sentence report states Mr. MG is a high risk for recidivism. [ 41 ] The Crown further submits that DMG has shown no remorse for the injuries suffered by the victim, whether or not he believes that were caused by him. [ 42 ] Further aggravating circumstances argued by the Crown are that the Accused’s explanation of the injures to health care officials was incomplete. In addition, the Crown says he minimized the seriousness of the offence. For example they refer to his comment, that this was small potatoes. I will digress for a moment that this comment I find was more of a reflection of what Mr.

MG’s mom was dealing with at the time rather than a direct comment as to his view of the circumstances of this case. Mitigating Circumstances (

i) Mr. MG has no criminal record; (ii) Mr. MG took steps to obtain medical attention. For example, calling 911 and attempting CPR on the child; and (iii) DMG has paid a heavy personal price, his children, all of them, including his daughter that he raised, who is now approximately 8 or 9 years. This also extends to his common law spouse, and the grandparents. [ 43 ] The Defence has argued that many of the injuries have resolved and that it is difficult to determine the further prognosis. It is noted in the recent medical report of Dr.

Larson dated September, 2016 that the learning deficits may be pre-existing or genetic or potentially the sole cause. [ 44 ] Mr. MG has denied his involvement with this offence which is his right. The Crown has said he lacked a general remorse in the matter but he is entitled to maintain his innocence in this regard. [ 45 ] The Defence says the statements to police by DMG do express concern and remorse. At trial, however, Mr. MG objected to these statements, stating he was not in his right mind. [ 46 ] Mr. MG has his own medical history of ADD and ADHD from a young age.

The Defence maintains he has been engaged in a group to address those issues. [ 47 ] Crown and Defence provided caselaw in support of their positions. Prior to discussing that caselaw it is important to place in context, in my view, the medical evidence and Dr. Larson’s opinion as to the difficulties caused by these injuries. 4. On MRI scan, H has sustained significant permanent damage – enough to cause loss of volume of brain tissue – in several areas of her brain, including the right frontal and temporal lobes, and to a lesser extent the left frontal lobe. 6.

H continues to exhibit, in a variety of environments and in spite of attempts at management, significant emotional and behavioral issues consistent with deficits of executive function. Executive function deficits are the expected result of the specific areas of damage found on imaging of H’s brain. Environmental facts and pre-existing temperamental factors may make some contribution to these difficulties.

However, in my opinion, with reasonable medical certainty, the inflicted injuries to her brain are a major and possibly the major contributor to these difficulties. [ 48 ] This deals with of course, her behaviour and is supported by the findings in the psychiatric report where it’s stated that for someone with her cognitive and language skills HM’s social skills are more impaired. [ 49 ] Secondly, in terms of the footnote in the psychological report that the evaluation may become outdated, I would suggest that when you read Dr.

Larson’s September 22, 2016 letter she continues to be guarded and fair in her opinions, stating only what she can say with reasonable medical certainty, for example. Otherwise, qualifying her opinion stating that she cannot reliably exclude a pre-existing and possibly genetic learning disorder, referring to #5 in the

Summary. [ 50 ] Dr. Larson does indicate that certain injuries have resolved but it also states that the future course of other difficulties, for example with executive function cannot be predicted with certainty. (See medical

summary, item #6)

Caselaw [51] The Crown provided a number of cases for review by the Court. Some of these involve instances where a child was subjectedto abuse on more than one occasion. For example, in R. v McCrindle, 1997 CarswellOnt 5462, (a 6 year sentence). Another, R. vBighead, 2002 CarswellSask 864, involved a 19 month old son of the accused with a lasting and permanent brain injury. The crownsought 8 years.

The court imposed a 5 year sentence stating a message had to be sent that child abuse will not be tolerated. [52] There are others at the very upper end of the range, such as R. v H. (B.J.), 1989 CarswellAlta 463, Alberta Court of Appeal,where the injures were numerous, severe and inflicted with great force. In R. v G.(P.) and G.(A.), 1988 CarswellOnt 1496, there was apattern of consistent violent behaviour. The assault involved a child less than one month old.

The sentence was 4 years. [53] In the present case the Crown has placed emphasis on the decision of O’Neill, J., in R. v Marks, (MLCA),where he noted the distinction between the two types of child abuse cases that are frequently before the Courts. One are the cases thatinvolve the application of force with the expectation, if not the intention of causing injury, or an indifference as to whether injuriesresult.

The second involves the application of force where a parent or guardian is immature and unskilled and is acting out of emotionalupset or frustration and does not fully appreciate the injuries which might result. [54] In the first category moral culpability is high and calls for a more severe sentence. In the second category there would be ashorter sentence followed by probation in order for the abuser to receive counselling. [55] Justice Chipman referred to Marks in A.H.H., and Justice Goodfellow seems to have approved of it in R. v.

D.B., 2002 NSSC73. [56] The Crown here submits that DMG falls into the first category, as he is not an unskilled parent, for example, being the fatherof a 7 year old daughter at the time. The Crown submits there is a high degree of culpability calling for a more severe sentence. [57] The Defence says there was a lack of premeditation and that a shorter sentence is in order followed by a probationary period. [58] I have given this careful consideration and I am reluctant to apply this distinction, based on the facts of this case.

The reasonis, I do not think it is clear from the proven facts that the Accused falls into one category or the other. It may be that child abuse cases“frequently” fall into these categories, but as stated in sentencing individual circumstances must be taken into account. [59] At paragraph 47 and 227 of my decision I found that a reasonable person would foresee that the application of force, whichDr. Larson stated would be significant, would place the child at risk of suffering bodily harm. Whether that person would fullyappreciate the serious injuries which might result is another matter.

I will address this later in my decision. See paragraph 81. [60] In addition, I am not satisfied that already having a child necessarily makes you a skilled or mature parent.

Even if it did, itdoes not mean you cannot still act out of emotion or frustration. [61] In the present case, I am of the view that the principles of sentencing, including the fundamental purpose and objectives canbe applied to render a fit and proper sentence and that they are sufficient to do so. [62] In terms of further cases submitted by the Crown, I have found cases such as R. v M. (S.W), 2006 BCSC 184 , 2006CarswellBC 248, and R. v Costello, 2003 CarswellBC 1860, and R. v Ricketts, 2012 CarswellOnt 15170, to be helpful.

In M.(S.W.), thechild was younger, at 3 months, but it involved brain injury, and the force was delivered with a power blow. The sentence was 41/2 yrs. [63] In Costello, the victim was the 3 year old son of the accused’s girlfriend and suffered an abdominal and brain injury to the leftside. The sentence imposed was 5 years. In Ricketts the accused received 7 years for the violent shaking in an attempt to calm, causingpermanent and significant brain damage, resulting in severe developmental and physical delay. [64] The Defence has submitted a number of cases for review by the Court.

For the most part the sentences in these decisions arewithin the 2 year range. [65] In R v. Harwood Jones, 2010 MBQB 8, the accused intentionally dropped his 4 month old son on the floor and shook him onnumerous prior occasions. The accused was sentenced to 18 months imprisonment and three years probation. There were no permanentdeficits suffered by the child. [66] In R v. H, 2014 BCSC 600, the victim’s mother repeatedly bounced the baby causing life threatening injuries. The offendertook minimal responsibility. The child made a strong recovery.

While the future prognosis was guarded there was cause for optimismwith no apparent physical disability. The sentence was two years. [67] In R. v McCuley, (ON SC), 2007 CarswellOnt 2551, the child was 31 days old. There was a guilty pleaand no criminal record. There was expert evidence of poor impulse control and depression that caused the accused to be overwhelmed. There were aggravating factors including a breach of trust and the life threatening nature of the injuries. The incident was of an isolatednature and the accused was young at 20 years.

The sentence was 12 months imprisonment and three years probation. [68] It was noted by Hill, J. in McCauley, that permanent injury to the child increases the seriousness of the crime. [69] In R. v McInroy, 2014 ONSC 2843, there were multiple fractures and liver damage to the victim who was the accused’sinfant son and eight weeks old. There was no prior record and the accused immediately called 911.

The child appeared to make a fullrecovery and the sentence imposed was two years less a day. [70] In R. v R.A.L., 2015 BCPC 98, the accused was charged with aggravated assault based on endangering her 8 month old son’slife. The child was not seriously injured. The accused was 24 years of age, and the sentence was tempered by the limited functional

capacity of the accused. The sentence imposed was 18 months imprisonment and 18 months probation. [71] In R. v Sharpe, 2010 ABQB 576, the accused threw his girlfriend’s son in the air several times while fussing and crying. There was bleeding behind the eyes and to the brain. There was no evidence of ongoing problems with the infants health. The sentencewas a conditional sentence of two years less a day. [72] According to the current law a conditional sentence is no longer an option to this Court in relation to the charge of aggravatedassault.

This is noted in the Defence brief and was commented upon by the Crown. [73] The Defence further notes there is no mandatory minimum sentence and that conceivably a probation order combined with ashort provincial custodial sentence could extend over a three year period with very strict conditions. The Defence submits that a lengthypenitentiary sentence is not necessary. [74] Apart from the case of R v.

A.H.H. of the remaining cases submitted by the Defence, none had the long lasting deficits anddifficulties experienced by the victim here, though a number of them involved life threatening injuries. [75] In A.H.H. there were serious and life threatening injuries, which included evidence that the offences had a significant impacton the victim with permanent physical and mental disabilities. The court found that the child’s condition was compromised and that hisyoung mother would have to provide enhanced care indefinitely to her son. [76] In A.H.H. there were serious head injuries.

In the present case in addition to the serious and permanent brain injuries and theretinal hemorrhages in both eyes, there was the five cervical fractures, the damaged liver including the laceration. [77] In the present case there was as well the multiple bruising. It was noted by Dr. Larson the bruising is something that sets thiscase apart and which caused Dr. Larson, an experienced pediatrician, to be “taken back”. [78] In terms of the injuries, the major concern of course is the discussion at page 3 of Dr.

Larson’s letter where it states inreference to H, “her ability to make reasonable choices of often impaired”. Here she is referring to the volume loss and the significanteffects it has on the brain. Disposition [79] In the Nova Scotia case of R. v Wood, (NS CA), 1986 74 NSR (2nd) 31, the court spoke of sending amessage to those who abuse children.

Although it was a different type of case, Chief Justice Clarke stated: If defenseless children are to receive some measure of protection, the message must be sent to those who are inclined to take theiradvantage that such will not be tolerated. [80] The Criminal Code states that abuse of a person under 18 is an aggravating factor in sentencing (s. 718.2(a)(ii.1)) as isevidence that the offender abused a position of trust or authority in relation to the victim (s. 718.2(a)(iii)) as is evidence that the offenderhad a significant impact on the victim, considering their age and other personal circumstances (s. 718.2(a)(iii.1)). [81] It is my view that all of these are relevant in the case before me. [82] The Crown is seeking a substantial term of imprisonment.

In the circumstances they are seeking a period of incarceration ofsix to eight years. They feel this is justified and not out of the question here. [83] It appears there is not a more innocent or vulnerable victim. As well the injuries are numerous and severe. Mr. MG hasabused his position of trust in an egregious way. [84] Whether DMG fully appreciated the damages he could cause by the force he applied, a blow or blows goes to his degree ofculpability. The exact mechanism of the event is not known.

But we do know it was a significant force applied to various areas of thebody resulting in multiple injuries and bruises. It may be inferred that any reasonable person would realize such force is likely to causesignificant injury, but the evidence that the Accused realized this is not entirely clear. The photos in Exhibit 3 and 7 alone do not refutethat this was a series of events that happened at a moment in time, a very short span of time, according to Dr. Larson. This is not to saythat the extent of the injuries caused do not impact on the sentence.

Such an offence must be met with consequences, in my view. [85] Mr. MG did phone 911 for help but when he did, he did not tell them exactly what happened. At paragraph 162 of mydecision I found that he misinformed the police and EHS, despite the child being in a semiconscious and critical state. [86] He did attempt to apply CPR and to revive the child. He said he was in a panic state at the time which in these circumstances,is not surprising. [87] Aggravated assault is a serious offence as evidenced by the maximum penalty of fourteen years.

I agree with the Defence thatthere are a wide range of sentences that have been imposed. [88] The cases also explain that where defenceless children are assaulted the Court must step in and send a message that abuse tochildren will not be tolerated. There are a number of cases with substantial prison terms especially where the injuries are lasting andserious. [89] In the present case it is the extent and severity of the injuries caused to the victim that is remarkable. I have mentioned thebruising as noted by Dr.

Larson, but the most significant injury is that of the brain injury, which is permanent. [90] We have seen in the medical reports entered as exhibits, that HM’s development is delayed, and that the brain itself has

suffered permanent injury. This is something she will face every day of her life. [ 91 ] In particular, Dr. Larson most recently noted the behavioural issues that are significant, which she has attributed directly to the assault. [ 92 ] In the present case, the actions of Mr. MG have been described as not in keeping with his pattern of past behaviour by his mother, although the pre-sentence report speaks of a poor tolerance for frustration. [ 93 ] As well, Mr. MG has complied with his release conditions for the period that he has been on them, approximately 2 years now. [ 94 ] Mr. MG is a relatively young man.

He has the support of his parents. He has lost a lot, almost everything as a result of this event which occurred on October 6, 2014, two years ago. By all accounts, it was a single episode at a moment in time, even if it involved a series of actions at the time. [ 95 ] As a youth DMG was frustrated in high school. He had disciplinary issues.

According to the pre-sentence report, he was diagnosed with ADD and ADHD when he was 3 years of age and he has had anger management issues and has sought help for those issues in the past. [ 96 ] The caselaw is clear such action by parents cannot be excused from responsibility by the existence of their own problems. R. v Turner , 2001 EWJ No. 2494 (C.A.) [ 97 ] The pre-sentence report positively states that he is engaged in a working management (counselling) group and has been doing so weekly for the past nine years.

He did not follow up on the advice received from his family physician. [ 98 ] His work record is limited, but from what is reported he is a good worker according to Mr. MacPherson. He’s also been a flagger, highway safety directional worker and has in the past worked for his father moving furniture. [ 99 ] Mr. MG has no criminal record. It is his first and only time before the Courts.

Apart from this incident he has been described as a good parent and an attentive father and husband. [ 100 ] No matter the sentence or its length, it will not repair the damage that has been done and in particular, the lasting development and behavioural issues which will be dealt with by the victim throughout her lifetime. The full extent of that is yet to be seen as she grows and develops.

Hopefully, she will do so to her maximum abilities. [ 101 ] The Crown has submitted DMG has shown no remorse and that the pre-sentence report describes him as a candidate for recidivism. [ 102 ] There is no question that according to law the principles of denunciation and deterrence need to be emphasized here, both specific, and in particular, general deterrence. These are the factors which must govern the sentence.

The message must continue to be sent that abuse of children will not be tolerated and the courts will step in with appropriate sanctions. [ 103 ] Given the age of this young man however and his life circumstances, I don’t think the Court should lose sight of rehabilitation for him.

I think society would surely understand that in addition to reparations for the harm done that an offender’s circumstances may warrant him being rehabilitated and that society will benefit from that later in his life. [ 104 ] Therefore, while a substantial term of incarceration may be called for, I don’t think it should be so long so as to prevent Mr.

MG from being rehabilitated, especially in light of his anger management issues and other conditions, which he has suffered from since he himself was a child. [ 105 ] Having carefully considered all of the circumstances including the caselaw, the pre-sentence report, the medical documents, the victim impact statement and more generally, the overriding purpose and principles of sentencing, the submissions of counsel of course, I find a fit and proper sentence for Mr.

MG in this case to be 4 ½ years or 54 months in custody. [ 106 ] It is hoped that this sentence will adequately serve the principles of sentencing and properly reflect the degree of culpability and moral blameworthiness of Mr. MG’s actions. [ 107 ] I would also add that, if possible Mr. MG should have mental health counselling made available to him with the federal penitentiary system. [ 108 ] As to the ancillary or additional orders requested, I find: 1) pursuant to

section 109 of the Criminal Code , DMG is prohibited from possessing any firearm, any crossbow, restricted weapon, ammunition and explosive substance for 10 years; 2) pursuant to s. 487.051 of the Criminal Code , I order the taking of the number of samples of bodily substances from Mr. MG that is reasonably required for the purpose of a forensic DNA analysis; and 3) pursuant to s. 743.21 of the Criminal Code , DMG shall not communicate directly or indirectly with NMN, MMN and JMN during the custodial period of his sentence. Murray, J.