DATE: 20041210

DOCKET: C42334

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) v. D. L. T. (Respondent)

BEFORE:

DOHERTY, LASKIN and ARMSTRONG JJ.A.

COUNSEL:

Amy Alyea

for the appellant

Ross Stewart

for the respondent

HEARD: December 7, 2004

RELEASED ORALLY: December 7, 2004

On appeal from the sentence entered by Justice W. Dan Chilcott of the Superior Court of Justice dated August 6, 2004.

E N D O R S E M E N T

[1] We agree with the Crown’s contention that the sentence of 9 months was demonstrably unfit.

[2] The respondent sexually molested his stepdaughter on a regular basis over a lengthy period of time of up to three years. The victim was between the ages of nine and twelve. The sexual activity was most intrusive and stopped just short of actual intercourse. The respondent stopped molesting his stepdaughter only after she went to her mother who eventually went to the authorities.

[3] The respondent pleaded guilty and expressed remorse. His appreciation of his personal responsibility for this conduct and its serious impact on the victim is, however, very limited. The respondent has had a difficult upbringing. He was himself a victim of sexual abuse. The victim’s family was dysfunctional, but that was not entirely the responsibility of the respondent.

[4] Having regard to the nature of the conduct, the blatant breach of one of the most sacred trusts in our community and the previous authorities of this court, we think a sentence at or near two years was required in all of the circumstances of this case. The respondent has been in custody for some three months and it would not be appropriate at this time to send him to the penitentiary. Consequently, leave to appeal sentence is granted and the appeal is allowed. The sentence is varied to two years less a day in custody. The probation order imposed at trial stands and will take effect upon release.

“Doherty J.A.”

“J.I. Laskin J.A.”

“Robert P. Armstrong J.A.”