Docket: CACR2458 Her Majesty the Queen Appellant - v. -, 2014 SKCA 126

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 126 Date: 2014-11-20 Between: Docket: CACR2458 Her Majesty the Queen Appellant - and - N.M. Respondent Publication Ban: An order has been made in accordance with s. 486.4 of the Criminal Code directing that any information identifying the complainant or witness shall not be published. Coram: Lane, Jackson and Whitmore JJ.A. Counsel: Erin Schroh for the Appellant Andrew Appolloni for the Respondent Appeal: From: Provincial Court Heard: November 20, 2014 Disposition: Appeal allowed (orally) Written Reasons: November 28, 2014

By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr.

Justice Whitmore Jackson J.A. [1] The essential issue on this appeal is the fitness of the sentence imposed on N.M. for sexual offences committed against hisgranddaughter. [2] N.M. pled guilty to the following counts: 1. between the 8 September 2011 and 8 September 2013 … for a sexual purpose, invite, counsel or incite A.M., a person under theage of 16 years to touch, directly or indirectly, with a part of the body, his penis, the body of A.M., contrary to s. 152 of the CriminalCode, RSC 1985, c C-46; 2. between the 8 September 2011 and 8 September 2013 … being in a position of trust or authority toward A.M., … for a sexualpurpose, touch, directly or indirectly, with a part of the body, his penis, any part of the body of A.M., contrary to s. 153(1)(

a) of theCriminal Code; 3. on or about 12 September 2013 have in his possession child pornography to wit: images or videos of a person who is or depictedas being under the age of 18 years engaged in or depicted as being engaged in explicit sexual activity, or the dominant characteristic ofwhich is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of 18 years, contrary tos. 163.1(4) of the Criminal Code; 4. on or about 21 June, 2010 … did make child pornography, to wit: images or videos of a person who is or depicted as being underthe age of 18 years engaged in or depicted as being engaged in explicit sexual activity, or the dominant characteristic of which is thedepiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of 18 years, contrary to s. 163.1(2) of theCriminal Code. (Emphasis added) [3] The following sentences were imposed: (

i) s. 152—sexual touching—30 months; (ii) s. 153—sexual exploitation—30 monthsconcurrent to the s. 152 sentence; (iii) s. 163.1(4)—possession of child pornography—six months consecutive; and (iv) s. 163.1(2)—making child pornography—one year consecutive. The total sentence before the application of credit for pre-sentence custody was fouryears.

The usual ancillary orders—lifetime SOIRA order; DNA order; and a five-year s. 161 order—were also imposed. [4] The Crown appeals all of the custodial sentences, arguing that that they are demonstrably unfit. [5] The offences for sexual touching and sexual exploitation arise from the same incidents. It is not necessary to recount all of thealarming detail. It is sufficient to note that N.M. admitted to touching A.M. sexually, beginning when she was still in diapers. Headmitted to touching her “between 20 to 30 times,” with fingers, mouth and genitals.

He also enticed the child to touch him and he placedhis penis in her mouth. The first sexual act took place when she was about three years old and ended when she was approximatelyfive years old. It ended when she began to exhibit sexualized behaviour at her daycare, which was subsequently reported to the motherand then to the police. [6] On one occasion, when N.M. was watching a pornographic video of people engaging in oral sex, A.M. came into the room andasked what the video was. He stopped the video and explained what the people were doing.

Shortly afterwards, he began engaging inacts of oral sex with the child. He put his penis in her mouth and said A.M. would insist that he do the same to her because it felt “good.” [7] N.M. took two photographs of A.M. while she was sleeping: one of her vagina and one of her genitalia while he was arrangingthem to obtain the picture he wanted. The first of the two pictures was taken when she was about three years old. The police located oneother image on his computer of a naked girl, who was between the ages of 12 and 14, exposing herself for the camera.

There was also adepiction of a cartoon character performing a sexual act while watching his mother breastfeed a baby. These actions and activitiesresulted in the charges under s. 163.1. [8] Needless to say, the impact on family cohesion has been significant. The child exhibits behaviour that is inappropriate for herage, and she acts out her anger and confusion regularly. The family is torn apart. [9] This Court has imposed sentences for offences under ss. 151 and 152 of the Code from nine months to four years (see R v J.(D.J.)(1998), (SK CA), 172 Sask R 182 at para 32 (Sask CA)).

The lower end of the range is available only atthe lower end of the very broad spectrum of gravity encompassed by the offence defined by s. 151 of the Code (see R v K.(E.G.), 2001SKCA 77 at paras 8 and 9, 207 Sask R 198).

Sustained sexual abuse of a child by a family member usually attracts a penitentiary term:see R v J.L.S., 2006 SKCA 95 at para 7, 289 Sask R 153). [10] This Court has used different words to convey the need for significant sentences for the sustained sexual abuse of a child, butsentences less than three years have usually been confined to the particular facts of an individual case: [8] Since R. v. Bird [(1992), (SK CA), 105 Sask R 161 (CA)], there have been no cases comparable to the appealbefore us where this Court has imposed a sentence that has not been a penitentiary term.

The Court has sometimes expressed itself interms of a starting point sentence (see: R. v. G.J.N. [(1997), (SK CA), 152 Sask R 158 at para 5 (QL) (CA)]; R. v.

D.L.M. [2001 SKCA 39, 207 Sask R 228]; R. v. E.S. [2001 SKCA 38, 213 Sask R 312]) or a range (see: R. v. E.K. [2001 SKCA 77, 207Sask R 198]) or acknowledged the offence as constituting a serious sexual assault (see: R. v. M.S.T. [(1995), (SK CA),131 Sask R 311 (CA)]) or a serious breach of trust (see: R. v.

P.D. [(1997), (SK CA), 158 Sask R 154 (CA]), but ineach case, the result has been the same: a penitentiary term of three years or more. [9] Any case less than three years has been one where the Crown has asked the Court to address some other issue, e.g., consecutiveas opposed to concurrent sentences [R v A.(V.G.) (1994), (SK CA), 123 Sask R 132 (CA)], or the assault was a datedone coupled with other extenuating circumstances [R v J.H.C. (1997), (SK CA), 158 Sask R 265 (CA)], or theaccused, not the Crown, has appealed and the Court has simply dismissed the appeal. (See R v J.L.S.) [11] The learned sentencing judge clearly demonstrated the knowledge of the law and the reasoning of this Court’s sentencingdecisions, as summarized above.

In our respectful view, notwithstanding the sentencing judge’s correct understanding of the law, hecommitted errors. [12] First, he determined that the appropriate sentence for all of these offences is four years and then imposed the minimum penalties ofone year for the offence under s. 163.1(2) of the Code and six months for the offence under s. 163.1(4) of the Code. Given the number ofdifferent offences, the sentencing judge should not have limited himself in this manner. By fixing an artificial cap of four years, he lefthimself no room to consider what would be a proportionate sentence for the sexual offences.

He left himself no option but to fix asentence of 30 months for the offences under ss. 152 and 153 of the Code. [13] Secondly, again in our respectful view, the sentencing judge did not give effect to the principle of proportionality—that is to say,he did not give sufficient weight to the gravity of these offences or the degree of responsibility of the offender. At three years old, A.M.is one of the youngest, and therefore the most vulnerable, victims of sexual abuse that this Court has seen.

Her age would leave her withno vocabulary, let alone knowledge, to describe what was happening to her or to seek help from anyone who would have been able tointervene. [14] A number of other aggravating factors are prevalent in this case, which increase the gravity of the offences and N.M.’sresponsibility for them: the number and duration of the incidents, the grooming of the child, the abuse of an important family member’strust, and the impact on the victim and her family.

It is also aggravating that the abuse did not stop until A.M. herself begandemonstrating sexualized behaviour towards others. [15] In considering these errors, the Court is not unmindful of the standard of review, which requires that considerable deference beaccorded to sentencing decisions (see R v Shropshire, (SCC), [1995] 4 SCR 227 at paras 46 and 50, and R v (M.)C.A., (SCC), [1996] 1 SCR 500 at para 90). Applying this deferential standard, we see no basis to intervene with thesentencing judge’s decisions with respect to the s. 163.1 offences.

While by no means trivial, the Court agrees with the trial judge thatthe actions underlying the s. 163.1 offences place them at the lower end of the spectrum. [16] The sentences for the sexual offences, however, are a different matter. Applying the standard of review to those sentences, weconclude that intervention is warranted. [17] The Crown seeks a sentence of five years for the offences under ss. 152 and 153 of the Code.

In our view, such a sentence wouldgive no effect to the number of mitigating factors present in this case or the other principles of sentencing. [18] There are a number of mitigating factors in this case. N.M. pled guilty, which saved the family and the child from what wouldhave been significant additional trauma associated with a preliminary inquiry and a trial. He cooperated fully with the police andprovided the extensive details that are available in the court record. He is 67 years old. He has no record.

The sentencing judge foundthat these offences appear to be out of character for N.M. and he seeks treatment. He is at a low risk to reoffend. He accepts fullresponsibility for what he has done.

He is deeply remorseful for the harm he caused the whole of his family, and in particular for theharm he caused his granddaughter. [19] Applying the principle of proportionality, which requires a consideration of all aggravating and mitigating factors, this Court,therefore, increases the sentence for the offences under s. 152 and s. 153 of the Code to 42 months from 30, both sentences to beconcurrent to each other, which results in a total sentence of five years for all four offences. [20] The Court understands that the sentencing judge granted a credit of 412 days as credit for pre-sentencing custody.

If there is anydifficulty in determining how to apply that credit, the parties have leave to speak to the Registrar who will communicate with the panel. [21] The appeal is allowed to the extent reflected in these reasons.