COURT OF APPEAL FOR ONTARIO

DATE: 20000210

DOCKET: C32699

RE: HER MAJESTY THE QUEEN (Applicant/Appellant) and
A. G. W. (Respondent)

BEFORE: ABELLA, ROSENBERG AND MACPHERSON JJ.A.

COUNSEL: Christine Tier, for the appellant
Neil Jones, for the respondent

HEARD: January 21, 2000

On appeal from the sentence imposed on the respondent by Wallace
J. dated July 21, 1999.

E N D O R S E M E N T

[1] The Crown seeks leave to appeal the sentence imposed on the
respondent by Wallace J.

[2] The respondent was convicted of incest and indecent assault
on July 21, 1999. The incest offence was related to sexual
relations with the respondentÆs daughter between 1967 and 1971.
The activity commenced when the daughter was about nine years
old. The indecent assault conviction related to a single
incident with one of his daughterÆs friends in 1974.

[3] The respondent pleaded guilty to these offences. He
received a suspended sentence and 3 years probation, after
serving fifty-three days pre-trial custody. The Crown submits
that this sentence is too low and that a proper sentence would
have been a custodial term of one year. In view of the time that
has passed since sentencing she now seeks a term of six months
imprisonment or a conditional sentence.

[4] This court has consistency held that the range of sentencing
for an incestuous relationship between a parent and a young child
involving acts of sexual intercourse is between three to five
years in the penitentiary. See for example, Regina v. M.D.
(1999), 1999 1839 (ON CA), 136 C.C.C. (3d) 412, (Ont. C.A.).

[5] The trial judge was aware of the appropriate sentencing
range. Indeed, he made specific reference to the ôthree to five-
year term for the offences which he committedö. However, there
was strong evidence about the very fragile health of the
respondent. He is 78 years old. The trial judge had the benefit
of the respondent appearing before him. He described him as ôa
78 year old hapless, pathetic, feeble man.ö The trial judge
said, ôI doubt if he could have walked into my courtroom without
the assistance of the security person who accompanied him.ö He
also said, ôI note that the offender has served fifty-two of
fifty-three days of pre-trial custody which is a factor to be
taken into account in imposing penalty.ö Apparently the offender
deteriorated dramatically while in custody for those fifty-three
days and if I were today to impose a goal term it is probable
that the offender would die in custody and would not complete
that term.

[6] In our view, the trial judge decided that this was a very
unique case. He was entirely aware of the devastating effect the
respondentÆs conduct had on his daughter. He was also cognizant
of the normal sentencing range for this type of offence.
Nevertheless, on the evidence before him, including medical
evidence, he was concerned that any form of additional custodial
sentence might lead to the death of the respondent. In those
unique circumstances we cannot say that the sentence imposed was
ôclearly unreasonableö. See R. v. Shopshire (1995), 102 C.C.C.
(3d) 193 S.C.C.

[7] Accordingly, the appeal is dismissed.

ôM. Rosenberg J.A.ö
J.C. MacPherson J.A.ö

ABELLA J.A. (Dissenting):

[8] This was a very serious offence, as the sentencing judge
acknowledged. It lasted over several years, caused the admission
of the daughter to a psychiatric facility when she was an
adolescent, and may have resulted in her being pregnant.

[9] The sentencing judgeÆs decision not to impose a custodial
term resulted in a manifestly unfit sentence given the duration
and severity of these offences. The health factors relied on by
the sentencing judge for avoiding custody were the judgeÆs own
conjecture that the appellant might have suffered a stroke and
would die in jail. There was no evidence supporting either
conclusion. The appellant was undoubtedly frail and, according
to the medical evidence, suffered from a pulmonary disease. This
medical state does not render custody inappropriate and this
court has upheld or imposed lengthy custodial terms for elderly
accused with more serious medical problems: see R. v. L.J.S.
(1997), 1997 1292 (ON CA), 116 C.C.C. (3d) 477 (Ont. C.A.) and R. v. Bradley (W.R.)
(1994), 1994 1009 (ON CA), 70 O.A.C. 346.

[10] I would have allowed the appeal and acceded to the CrownÆs
request for a custodial term.

ôR. Abella J.A.ö