Her Majesty the Queen v. D.M. [Indexed as: R. v. M. (D.)]

111 O.R. (3d) 721

2012 ONCA 520

Court of Appeal for Ontario,

Feldman, Watt JJ.A. and Dambrot J. (ad hoc)

August 1, 2012

Criminal law -- Sexual assault -- Sentence -- Crown appeal from sentence of three years' imprisonment on first offender in position of trust who groomed teenage child and sexually assaulted her over 31 months -- Sexual offences including by frequent acts of sexual intercourse -- Complainant entirely dependent on accused's family and having come to Canada from Fiji to get better education -- Accused threatening her by telling her disclosure of abuse would result in her deportation -- Sentencing range for prolonged sexual assault including penetration on single child by person in position of trust starting at five or six years -- Trial judge erred regarding range of sentence -- Sentence imposed manifestly unfit -- Fresh evidence on appeal regarding accused's rehabilitation not rendering increased sentence unfit as denunciation and deterrence being predominant sentencing principles for such offences -- Sentence varied to seven years' imprisonment.

The accused was convicted of sexual assault, sexual exploitation and invitation to sexual touching. The complainant, his wife's niece, came to Canada from Fiji to get an education when she was 15 years old. She lived with, and was entirely dependent upon, the accused and his family. Over the 31 months, he groomed her by exposing her to pornography, sexual touching and, on one traumatic occasion, by penetrating her with an object. He then subjected her to frequent acts of sexual intercourse, which took place at least twice a month until she moved out of the house. To escape the abuse, the complainant sought and agreed to an arranged marriage in British Columbia. He threatened her with deportation if she revealed the abuse. The accused had no criminal record and a steady employment record. The trial judge found that the appropriate sentencing range was three to five years and that the aggravating factors were not "the worst". The accused was sentenced to three years' imprisonment for sexual assault and one year concurrent for each of the other offences. The Crown appealed.

Held, the appeal should be allowed.

The trial judge erred in setting the range of sentence too low. Where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary. The sentence of three years imposed was manifestly unfit. The primary sentencing factors in such cases are deterrence and denunciation. Therefore, the accused's background and his efforts at rehabilitation after his trial are accorded lesser weight in determining the appropriate sentence. The aggravating factors in this case included the grooming of a vulnerable teenager; the frequency and duration of the abuse, including more than frequent sexual intercourse; the ongoing trauma experienced by the complainant; the huge breach of trust to the complainant and her family; his threats that she would be reported if she disclosed the abuse; and the complete lack of remorse or any understanding of the gravity and extent of the wrongdoing. The sentence was varied to that sought by the Crown, seven years' imprisonment. [page722]

APPEAL by the Crown from the sentence imposed by Gilmore J., [2011] O.J. No. 2753, 2011 ONSC 3183 (S.C.J.).

Cases referred toR. v. B. (J.), [1990] O.J. No. 36, 36 O.A.C. 307, 9 W.C.B. (2d) 622 (C.A.); R. v. D. (D.) (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788, [2002] O.J. No. 1061, 157 O.A.C. 323, 163 C.C.C. (3d) 471, 53 W.C.B. (2d) 188 (C.A.); R. v. M. (P.), [2012] O.J. No. 1148, 2012 ONCA 162, 289 O.A.C. 352, 282 C.C.C. (3d) 450; R. v. Woodward (2011), 107 O.R. (3d) 81, [2011] O.J. No. 4216, 2011 ONCA 610, 284 O.A.C. 151, 276 C.C.C. (3d) 86, 97 W.C.B. (2d) 665, consd R. v. B. (C.), [2008] O.J. No. 2434, 2008 ONCA 486, 237 O.A.C. 387, 78 W.C.B. (2d) 80 (C.A.); R. v. C. (T.) (2004), 2004 33007 (ON CA), 72 O.R. (3d) 623, [2004] O.J. No. 4077, 190 O.A.C. 380, 189 C.C.C. (3d) 473, 63 W.C.B. (2d) 178; R. v. G. (A.), 2004 36065 (ON CA), [2004] O.J. No. 4563, 191 O.A.C. 386, 190 C.C.C. (3d) 508, 65 W.C.B. (2d) 685 (C.A.); R. v. G. (G.A.), 2006 265 (ON CA), [2006] O.J. No. 67, 206 O.A.C. 134, 139 C.R.R. (2d) 275, 68 W.C.B. (2d) 120 (C.A.); R. v. H. (D.A.), 2003 48216 (ON CA), [2003] O.J. No. 143, 168 O.A.C. 176, 171 C.C.C. (3d) 309, 10 C.R. (6th) 109, 56 W.C.B. (2d) 277 (C.A.); R. v. M. (W.W.), 2006 3262 (ON CA), [2006] O.J. No. 440, 206 O.A.C. 342, 205 C.C.C. (3d) 410, 68 W.C.B. (2d) 442 (C.A.), distd Other cases referred to R. v. G. (R.), [2010] O.J. No. 4002, 2010 ONSC 4082 (S.C.J.); R. v. L. (J.), [2009] O.J. No. 4683, 2009 ONCA 788; R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, 194 N.R. 321, J.E. 96-671, 73 B.C.A.C. 81, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269, 30 W.C.B. (2d) 200; R. v. M. (L.), [2008] 2 S.C.R. 163, [2008] S.C.J. No. 31, 2008 SCC 31, EYB 2008-133843, J.E. 2008-1117, 77 W.C.B. (2d) 463, 374 N.R. 351, 231 C.C.C. (3d) 310, 293 D.L.R. (4th) 1, 56 C.R. (6th) 278; R. v. Rezaie (1996), 1996 1241 (ON CA), 31 O.R. (3d) 713, [1996] O.J. No. 4468, 96 O.A.C. 268, 112 C.C.C. (3d) 97, 3 C.R. (5th) 175, 33 W.C.B. (2d) 218 (C.A.); R. v. Stuckless (1998), 1998 7143 (ON CA), 41 O.R. (3d) 103, [1998] O.J. No. 3177, 111 O.A.C. 357, 127 C.C.C. (3d) 225, 17 C.R. (5th) 330, 39 W.C.B. (2d) 309 (C.A.); R. v. Tomigo (June 30, 1981) (Ont. C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 718.01, 718.2(ii.i), (iii) [as am.], 743.21

Matthew Asma, for appellant. Mark Halfyard, for respondent.

The judgment of the court was delivered by

[1] FELDMAN J.A.: -- This is a Crown appeal against sentence. The respondent was convicted by a jury of sexual assault, sexual exploitation and invitation to sexual touching. The victim was a 15-year-old girl who came from Fiji to Canada to get an education and improve her life. She came to live with her aunt and her aunt's husband, her uncle, the respondent. The sexual assaults, including approximately 124 times when the respondent had sexual intercourse with the victim, occurred over a three-year period until the victim was 19. At that point she asked her aunt to arrange a marriage for her as a way of extricating herself from the home. [page723]

[2] The respondent received a sentence of three years, which the Crown submits was manifestly unfit. The Crown asked for a seven-year sentence at trial and renews that submission on appeal. The issue on appeal is the proper range of sentence for prolonged sexual assault including intercourse on a single child by a person in a position of trust. Facts

[3] The complainant came to Canada from Fiji in 1986. She moved into the home of her aunt and uncle by marriage, the respondent, where she was a dependant. She considered her "auntie" and "uncle" as equivalent to her parents.

[4] The sexual improprieties began in March 1988, when the respondent touched her breast. Within a few days, he began to come to her room at night, where he touched her vaginal area and asked her to touch his penis.

[5] A few weeks later, the complainant's aunt asked the complainant to make the respondent tea at 6:00 a.m. every day. This gave the respondent the opportunity for further assaults. He would put his finger into her vagina, ask her to rub his penis and sometimes he would ejaculate. This occurred in the living room or the basement.

[6] After a period of time, the respondent began to have full intercourse with the complainant about two or three times per week in the basement, usually in the morning. On four or five occasions, the intercourse took place in the car, and once or twice in the respondent's bed.

[7] Before the respondent began to have intercourse with the complainant, on one occasion he asked her to sit on the floor and spread her legs, whereupon he tried to insert a six-inch carrot into her vagina. She testified that she was devastated by this incident.

[8] The respondent also oversaw the administration of birth control pills to the complainant. He kept them on a high shelf in the basement.

[9] The respondent required the complainant to watch pornographic videos while he was at work.

[10] She testified that he also asked her to put her mouth on his penis, and she believed, but was not sure, that he put his mouth on her vagina.

[11] He told her that if she told anyone about what they were doing, she would be deported back to Fiji.

[12] When she was 18, the complainant asked her aunt to arrange a marriage for her. This was not unusual in their culture. Her aunt arranged a marriage to a man in Vancouver, and she left in March 1991. Before she left and while she was [page724] engaged to be married, the respondent continued to have intercourse with her. And after her marriage, the respondent called her and visited her in Vancouver, reminding her to ensure that no one find out about their previous sexual activity.

[13] The respondent testified at the trial. He acknowledged that he had had a sexual relationship with the complainant, but gave a different story. On his version, there was no initial sexual touching by him. Instead, the complainant pursued him, and after about two years, they began to have intercourse. It occurred about eight times over a period of one year. He insisted that it was consensual. He denied the carrot incident, the oral sex and having sex in the car. He knew she was on birth control pills, but he denied administering them.

[14] He said he knew that what he did was morally wrong, but he denied that he took advantage of the complainant when she was young, vulnerable and new to the country.

[15] The respondent was convicted by a jury following a nine- day trial. For the purpose of sentencing, the trial judge made some specific findings based on the verdict and the record. First, she found that the respondent groomed the complainant for sex by inserting the carrot and by asking her to watch porn. She also concluded that by its verdict, the jury found that the complainant did not consent, but viewed the respondent as a person with authority over her, that she was financially dependent on him and that he had threatened to have her deported.

[16] The trial judge believed it was important for sentencing purposes that she determine the number of sexual assaults that occurred and she did so. She found that the sexual touching occurred in the mornings approximately 36 times in three months, and that sexual intercourse occurred four times per month over a 31-month period, amounting to approximately 124 times.

[17] The trial judge next turned to the aggravating and mitigating circumstances. It is important to set them out here. She found seven aggravating factors and four mitigating ones (at paras. 72-73):

There are a number of aggravating circumstances present here, including the following: (i) The complainant was under the age of 18 during the majority of times when the offences were committed. (ii) D.M. abused a position of trust and authority while A.C. was in a relationship of dependency to him. (iii) D.M. took advantage of the fact that A.C. was young and vulnerable as a new immigrant. D.M.'s threat of deportation was a theme throughout the trial and A.C. took this threat seriously. There [page725] would have been cultural shame in her leaving her aunt's home and returning to Fiji, and according to A.C. it would have been impossible for her to retain any status as a young woman in Fiji when it became known that she was no longer a virgin. (iv) The abuse was repeated, constant and spanned for three years of A.C.'s residency with D.M. and L.M. (v) D.M. violated A.C.'s dignity and sexual integrity. (vi) He groomed A.C. by preparing her for sexual activity. He forced her to watch pornographic videotapes and inserted a carrot into her vagina in preparation for intercourse. (vii) These circumstances changed the course of A.C.'s life, resulting in a forced arranged marriage which turned out to be abusive. She left school because she could not maintain her grades while D.M.'s abuse was ongoing. She retained a sense of cultural shame that she married without her virginity intact.

By way of mitigating circumstances, I find the following: (i) The offender has no prior criminal record. (ii) He has had a steady employment record. (iii) He has followed his bail conditions without incident. (iv) He has been a contributing member of society with respect to both his family and his community. The letters of support which have already been reviewed in detail describe someone who, apart from this incident, takes family values seriously and is committed to helping both the South Asian and the local communities.

[18] The trial judge also noted three factors that, while not aggravating, spoke against mitigation: (1) the complainant was forced to testify twice, once at the preliminary inquiry and once at the trial; (2) the respondent had not accepted responsibility for the offences; (3) the respondent expressed no remorse, other than indicating that he made a moral mistake.

[19] The trial judge next turned to the issue of the proper range of sentence for this type of crime, and the apparent divergence in the case law between this court's decision in R. v. D. (D.) (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788, [2002] O.J. No. 1061 (C.A.), which set a higher range of sentence for prolonged sexual abuse of children by a person in a position of trust, and its earlier decision in R. v. B. (J.), [1990] O.J. No. 36, 36 O.A.C. 307 (C.A.), which had identified a range of three to five years for prolonged sexual assault of a stepdaughter. I will discuss the case law in more detail later in these reasons.

[20] Before deciding which case was most applicable, the trial judge set out her analysis of the motivation and techniques used by the respondent in his callous abuse of the young victim and its effect on her. I quote this passage in its entirety (at para. 84): [page726]

It is hard to imagine how horrible A.C.'s life with D.M.'s family must have been. Every day that she lived there, she either suffered sexual abuse or the fear of it. A.C. was afraid that if her aunt found out, she would be sent back to Fiji. She took D.M.'s threats of deportation seriously. She told the court that she felt helpless, dumb and stupid. She felt like her body had no feeling and that she was operating as if by remote control. She said it made no difference if she told D.M. to stop. He would simply tell her that everything would be okay and continue on. A.C. came to accept that resistance was futile. The best she could do was emotionally disconnect and carry on as best she could. A.C.'s evidence at trial demonstrated a pattern of increasingly intrusive abuse by D.M. between the ages of 16 and 19. The abuse started as touching, progressed to oral sex, both giving and receiving and ultimately to intercourse. D.M. ensured A.C. would not get pregnant by monitoring the daily administration of birth control pills. As time went on, D.M. became more outrageous in his demands, requiring that A.C. have sex with him in the master bedroom and in his car after he picked her up from work. At times when his wife and children had plans to go out and wanted to take A.C. with them, he would insist that she stay home and iron his pants. Such ruses were designed solely to isolate A.C. and obtain more opportunities for sexual activity when D.M.'s wife and children were out of the house.

[21] Having characterized the offence, the victim and the offender, the trial judge distinguished a number of cases presented by the defence, then turned to a recent Superior Court decision, R. v. G. (R.), [2010] O.J. No. 4002, 2010 ONSC 4082 (S.C.J.), and concluded that the circumstances there were most closely aligned with this case: position of authority, no violence or threats of violence, abuse over a long period of time, but with two points of distinction: a far younger victim and the abuse went on for twice the length of time. The sentence imposed in that case was six and one-half years.

[22] The trial judge then concluded that the appropriate range for this case was three to five years, that the aggravating factors were not "the worst", and imposed a sentence of three years for sexual assault plus one year each concurrent on the sexual exploitation and invitation to sexual touching counts.

[23] The following questions must be addressed by the court. (1) What is the appropriate range of sentence for prolonged sexual assault including intercourse by a person in authority on a vulnerable young person? (2) Did the trial judge make a reversible error by imposing a sentence of three years in this case?

[24] The issues of the principles of sentencing at the trial level, and the proper approach to be taken by a court on appeal, have been the subject a significant number of cases from the Supreme Court of Canada and from this court over the last [page727] 20 years. Certain categories of cases have been the focus of particular scrutiny, including sexual assaults on children perpetrated by persons in authority and a position of trust. See, for example, R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28; R. v. M. (L.), [2008] 2 S.C.R. 163, [2008] S.C.J. No. 31, 2008 SCC 31. This is one of those cases.

[25] To state the obvious, the unfortunate reason why the courts have had the opportunity and the need to focus on sentencing in this type of case is because of the increasing number of such cases that we see. No doubt it is partly because of the prevalence of this crime that the approach of the courts to sentencing has evolved over this period.

[26] The real sea change came in 2002 with the decision of this court in R. v. D. (D.). There, the accused sexually abused four young boys, ages five to eight years old, for periods of time between two and seven years. The sexual abuse included masturbation, oral sex, group sex and attempted and completed anal intercourse. The accused's relationship to the boys was as a close family friend and, in one case, an assumed stepfather. He used both violence and threats of disclosure to obtain compliance and secrecy from the boys. The victims were scarred for life and they and [their] families suffered severely, emotionally and physically.

[27] The trial judge imposed concurrent sentences of eight years and one month on each count. The appeal against sentence was brought by the accused. His main line of attack was based on the then recent decision of this court in R. v. Stuckless (1998), 1998 7143 (ON CA), 41 O.R. (3d) 103, [1998] O.J. No. 3177, 127 C.C.C. (3d) 225 (C.A.), where the respondent was another sexual predator of young boys. On a Crown appeal against sentence in that case, this court increased the sentence imposed following a guilty plea to five years. The accused in D. (D.) argued that this court's decision in Stuckless represented the "high water mark" for sentences of adult sex offenders who prey on young children.

[28] That argument was firmly rejected by this court. Instead, Moldaver J.A. described a new range of sentences in the following terms (at para. 44):

To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still [page728] higher penalties will be warranted. (See, for example, R. v. M.(C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500 in which the Supreme Court restored the 25-year sentence imposed at trial and R. v. W.(L.K.) (1999), 1999 3791 (ON CA), 138 C.C.C. (3d) 449 (Ont. C.A.) in which this court upheld a sentence of 18 and a half years imposed at trial.)

[29] In prescribing this new range of sentences, the court did not specifically overrule other cases where lower ranges had been identified for cases of adult sexual assault on children, with different facts, including this court's 1990 decision in R. v. B. (J.).

[30] In B. (J.), the accused had sexual intercourse and oral sex with his stepdaughter from the time she was six years old until she was 14. This occurred once per week or more except when the accused was serving sentences in prison. One time, the accused put the victim's head in a sink; otherwise, there was no gratuitous violence. The accused used threats of punishment to achieve compliance and secrecy. He was a violent man with a lengthy criminal record including for attempted rape on an eight-year-old friend of the stepdaughter for which he had received a sentence of two years less a day. A serious aggravating factor was that immediately following his release from jail, he continued his assaults on his stepdaughter. The accused showed no remorse, nor any effort to understand the effect of his actions on his stepdaughter.

[31] The trial judge imposed a sentence of eight years for sexual assault and five years concurrent for indecent assault. This court dismissed the accused's appeal of that sentence and confirmed that it was a fit sentence when imposed.

[32] In the course of its discussion, however, the court recorded the fact that both counsel agreed that the usual range of sentence for this type of offence was three to five years, depending on factors, including the age of the victim, the duration and frequency of the sexual assaults, the criminal record of the offender, the effects on the victim and the presence or absence of collateral violence and remorse. However, the court noted that in an unreported decision, R. v. Tomigo (June 30, 1981, Court of Appeal for Ontario), it had gone well beyond the stated range where the circumstances cried out for a more severe penalty. In Tomigo, this court increased the sentence of four years imposed by the trial judge to a sentence of 12 years' imprisonment where the accused had routinely engaged in vaginal and anal intercourse with his three stepdaughters from a very young age over a period of ten years.

[33] To summarize, in B. (J.) this court acknowledged a range based on case law of three to five years for sexual intercourse by an adult in loco parentis to a child. However, the court also made [page729] clear that sentences well beyond that range would also be appropriate if the circumstances were more egregious, including in B. (J.) itself, where a sentence of eight years was upheld.

[34] The respondent asks the court to attribute significance to the fact that D. (D.) does not mention the B. (J.) case or the three- to five-year range, arguing that it was not the intent of the court in D. (D.) to change the range of three to five years for cases where there is one victim and not multiple victims, where the victim is not very young or where there is no gratuitous violence other than the sexual assault.

[35] In my view, this interpretation misunderstands the intent and effect of the decision in D. (D.). First, the argument in that case focused on alleged parallels with the Stuckless decision and not on the previous range of sentence or case law, including B. (J.).

[36] Second, and most importantly, while the court in D. (D.) set specific ranges for categories of cases described by the court that were similar to the facts in D. (D.), Moldaver J.A. also made two things clear: (1) ranges of sentence are only guidelines; they leave trial judges with the flexibility "to do justice in individual cases" (para. 33); (2) for conduct where an adult in a position of trust sexually abuses children on a consistent basis and over an extended period of time, a higher range of sentence is called for. Depending on the specific facts, a penitentiary sentence, ranging from upper single-digit to low double-digit or beyond is appropriate. Although Moldaver J.A. referred to "children" in the plural, it is the conduct that is aimed at; while the number of victims will be a factor, the instruction from D. (D.) does not become inapplicable where there is only one victim.

[37] The recent decision of this court in R. v. Woodward (2011), 107 O.R. (3d) 81, [2011] O.J. No. 4216, 2011 ONCA 610 clarifies any possible confusion on the intended scope of the D. (D.) decision. In that case, a 30-year-old man lured a 12-year-old girl, first through the Internet and then by text messages, to have sex with him in exchange for the transfer of millions of dollars to a bank account to be set up for her. Her family was in financial difficulties at the time. She attended the location, where he had her perform fellatio on him twice and had intercourse with her.

[38] Although the case involved one child victim and one incident with no additional violence, this court made it clear that in sentencing, the principles enunciated in D. (D.) applied. Moldaver J.A. repeated the principles of sentencing arising from D. (D.) and I will repeat them here (at para. 72): [page730]

The relevant considerations and principles from D.D., at paras. 34-38, are summarized below: (1) Our children are our most valued and our most vulnerable assets. (2) We as a society owe it to our children to protect them from the harm caused by sexual predators. (3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators. (4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow. (5) Three such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood. (6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.

[39] For D.D. himself, in upholding the sentence of six and one-half years, Moldaver J.A. again set out the governing, overriding principles applicable when children have been sexually victimized (at paras. 75-76):

Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. The five-year sentence imposed on the appellant for the sexual assault he committed on the 12-year old complainant is not excessive. In the light of the appellant's past criminal activity and the lack of any meaningful mitigating factors available to him, if anything, it was lenient. While acknowledging that trial judges retain the flexibility to fashion a fit and just sentence in the particular case, crimes like those committed by the appellant will typically warrant mid-to upper-level single digit penitentiary sentences. The additional 18 months the appellant received for the offence of luring was entirely appropriate and did not render the global sentence excessive.

In so concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well- being and the well-being of our children must take precedence. [page731]

[40] Counsel has brought to the court's attention a number of decisions since D. (D.) where the three- to five-year range identified by this court in B. (J.) was referred to. See, for example, R. v. G. (G.A.), [2006] O.J. No. 67, 206 O.A.C. 134 (C.A.); R. v. M. (W.W.), 2006 3262 (ON CA), [2006] O.J. No. 440, 206 O.A.C. 342 (C.A.); R. v. B. (C.), [2008] O.J. No. 2434, 2008 ONCA 486, 237 O.A.C. 387; R. v. C. (T.) (2004), 2004 33007 (ON CA), 72 O.R. (3d) 623, [2004] O.J. No. 4077, 190 O.A.C. 380 (C.A.); R. v. H. (D.A.), 2003 48216 (ON CA), [2003] O.J. No. 143, 168 O.A.C. 176 (C.A.). The first four of these cases were appeals against sentence by the accused, where the issue before the court was whether the sentence was too high because of error by the trial judge or because it was manifestly unfit. There was no issue of the sentence being increased. H. (D.A.) was a Crown appeal of sentence of an aboriginal offender where the issue before the court was the application of the Gladue [1999 679 (SCC), [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19] principle of sentencing. It does not appear that the D. (D.) case was considered or referred to in any of these cases.

[41] D. (D.) has certainly been treated as a guiding authority in cases of ongoing sexual abuse of children by an accused who stood in loco parentis. See, for example, R. v. L. (J.), [2009] O.J. No. 4683, 2009 ONCA 788.

[42] Counsel also referred the court to its decision in R. v. G. (A.), 2004 36065 (ON CA), [2004] O.J. No. 4563, 191 O.A.C. 386 (C.A.), where the trial judge had referred to D. (D.) but imposed a sentence below the D. (D.) range because of a number of factors relating to the appellant's reformation and the historical nature of the charges (the offence occurred 30 years earlier) and the penalties formerly provided in the [Criminal Code R.S.C. 1985, c. C-46] for those charges. Rosenberg J.A. held that it was an error in that particular case to apply the D. (D.) range. However, the case involved a very different type of offence and offender, there was no position of trust, no actual intercourse and it involved only two incidents.

[43] Since the argument in this case, Rosenberg J.A. has addressed the issue of any perceived discordance between B. (J.) and D. (D.) in R. v. M. (P.), [2012] O.J. No. 1148, 2012 ONCA 162, 289 O.A.C. 352 (at paras. 43-47). He concluded that the B. (J.) decision must now be read with D. (D.) and that (at para. 46) "the court signalled in D. (D.) that the sexual abuse of a child will attract lengthy penitentiary sentences. In my view, where a father has committed repeated acts of incest with his daughter over many months . . . it will be highly unusual for the court to impose a penitentiary sentence of less than five to six years." He also noted that amendments to the Criminal Code since the [page732] B. (J.) decision regarding aggravating circumstances and objectives of sentencing where children are sexually abused are more consistent with D. (D.): see ss. 718.01, 718.2(ii.i) and (iii) of the Criminal Code. [See Note 1 below]

[44] To conclude on the issue of the proper range of sentence, although sentencing is always an individualized process of decision making, where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary. Was the Three-Year Sentence Imposed by the Trial Judge Manifestly Unfit?

[45] The trial judge made an error of law in setting the range of sentence too low. She then imposed a sentence at the bottom end of the range on the basis that the circumstances were not "the worst". In my view, the sentence was so low as to be manifestly unfit, given the circumstances, all of which were recognized and set out by the trial judge.

[46] The trial judge did not refer to ss. 718.01 and 718.2(ii.i) and (iii) of the Code, which provide that where a child under 18 is sexually abused, the primary sentencing objectives are denunciation and deterrence, and that that fact and the fact that the abuser was in a position of trust are aggravating factors.

[47] This case presented the court with a variant of the pattern of conduct of adult abusers in a position of trust over children. Here, the child was a teenager, but her extra vulnerability came from the fact that she was an immigrant to Canada, totally dependent on the respondent and his wife for everything in life, including the ability to remain in this country. She was in his power in every way.

[48] The aggravating factors were poignantly described by the trial judge, in para. 84 of his reasons, set out above: the prolonged sexual abuse including having sexual intercourse 124 times, grooming of a vulnerable teenager for sexual intercourse including humiliating and degrading her with the carrot; threatening the complainant with deportation if she told, i.e., if she complained; the duration of the abuse over three years; the ongoing effect on the complainant's life; the huge breach of trust [page733] to the complainant as well as to her family; the complete lack of remorse or any understanding of the gravity and extent of the wrongdoing. Although the fact that the respondent is an otherwise responsible member of his community is in one sense a mitigating factor, his status allowed him to be in a position of trust and thereby exploit the complainant and to be unsuspected as a sexual predator in private.

[49] Because the trial judge made an error of law, it is for this court to determine the proper sentence to be imposed: R. v. Rezaie (1996), 1996 1241 (ON CA), 31 O.R. (3d) 713, [1996] O.J. No. 4468 (C.A.), at p. 719 O.R. The defence sought to file some fresh evidence regarding the respondent's progress in the penitentiary and the timing for his parole eligibility. In this case, this information does not affect the proper length of sentence, because the primary factors are denunciation and deterrence.

[50] Given the aggravating factors in the context of the directive of the Code, in my view this case warrants a sentence that is higher than the lowest end of the range. The Crown asked for a sentence of seven years. In my view, that is the appropriate sentence.

[51] The trial judge also imposed a non-communication order for life. The Crown concedes that this order is not authorized by the Code. Accordingly, this order is overturned. The respondent is ordered not to communicate with the complainant directly or indirectly during the balance of the custodial period of his sentence, pursuant to s. 743.21 of the Criminal Code. The issue of communication can also be further addressed by the Parole Board of Canada. Conclusion

[52] I would grant leave to appeal sentence, allow the appeal and impose a global sentence of seven years in prison.

Appeal allowed.

@7 Notes

Note 1: Amendments to the Criminal Code were also enacted this year, to come into force August 9, 2012, increasing the minimum sentences for certain sexual offences against children and young persons (Bill C-54, Protecting Children From Sexual Predators Act).