Her Majesty the Queen v. Boston

Her Majesty the Queen v. Boston [Indexed as: R. v. Boston]

58 O.R. (3d) 460

[2002] O.J. No. 887

Docket No. C36041

Court of Appeal for Ontario

Doherty, Weiler and Charron JJ.A.

March 6, 2002

Criminal law -- Sentence -- Conditional sentence -- Sexual offences -- Accused pleaded guilty to two counts of sexual interference and one count of sexual assault involving 13- and 15-year-old boys -- Accused breached conditions of judicial interim release -- Crown's appeal from 18-month conditional sentence allowed -- Accused having record for possession of child pornography and breach of recognizance -- Serious and repeated violations of sexual integrity of vulnerable young victims -- Trial judge erring in attributing part of blame on victims -- Accused was poor candidate for conditional sentence in view of his admitted sexual attraction to young men, absence of any relevant treatment plan and his repeated failure to abide by court-imposed conditions designed to minimize risk of re-offending -- Appropriate sentence 18 months' incarceration -- Accused given credit for 12 months served under conditional sentence and sentenced to 6 months' incarceration.

The accused pleaded guilty to two counts of sexual interference and one count of sexual assault. He befriended the victims, two 13-year-old boys and a 15-year-old boy, by providing entertainment in his apartment, including computer games, alcohol and pornographic movies. Over a period of a few months, he performed various sexual acts with each victim, including grabbing of genitals, mutual masturbation and fellatio. At the time of his guilty plea, the accused had prior convictions for possession of child pornography, breach of recognizance and possession of a controlled substance. The latter two convictions were committed while the accused was on judicial interim release with respect to the sexual interference and sexual assault charges. By the time he was sentenced for the sexual offences, he had been convicted of another charge of breach of recognizance, having violated a term of his bail prohibiting him from associating with children. The accused admitted to sexual arousal by young men but denied any sexual interest in children. The trial judge sentenced the accused to 18 months' imprisonment, to be served in the community. The Crown appealed.

Held, the appeal should be allowed.

A conditional sentence was manifestly unfit in the circumstances of this case. The offences involved serious and repeated violations of the sexual integrity of young, vulnerable victims. The trial judge's reasons for sentence reflected an improper attribution of responsibility to the victims and a consequent failure to appreciate the full impact of the accused's criminal conduct. The trial judge also erred in his assessment of the risk posed by the accused. Given the accused's admitted attraction to young men, the absence of any relevant treatment plan and his repeated failure to abide by those court-imposed conditions that were specifically crafted to minimize the risk of re-offending, the accused was a poor candidate for a conditional sentence. The sentence should be varied to 18 months' imprisonment, less 12 months' credit for time served under the conditional sentence, resulting in a sentence of 6 months' imprisonment.

APPEAL by the Crown from a sentence for sexual interference and sexual assault.

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, s. 161

Counsel

Ian W. Bulmer, for appellant. Marie Henein, for respondent.

[1] BY THE COURT: -- The Crown appeals from the 18 months' conditional sentence imposed on the respondent following his plea of guilty to three sexual offences involving three young boys. The victims, two of whom were 13 years old and one 15 years old at the time of the offences, lived in the same apartment building as the 29-year-old respondent. The respondent befriended each victim by providing entertainment in his apartment, including computer games, alcohol and pornographic movies. Over a period of a few months in the early part of 1999, the respondent performed various sexual acts with each victim including grabbing of genitals, mutual masturbation and fellatio.

[2] The respondent was arrested with respect to these incidents in April 1999. On August 18, 2000, the respondent pleaded guilty to two counts of touching the body of a person under the age of 14 years for a sexual purpose and one count of sexual assault. At the time the respondent entered his plea, he had a criminal record with previous convictions for possession of child pornography, breach of recognizance and possession of a controlled substance. The convictions for breach of recognizance and possession of a controlled substance related to the respondent's possession of marijuana and were committed while he was released on the present offences. The respondent was convicted of these two offences on May 5, 2000 and was sentenced to one day in jail in addition to 17 days of pre- trial custody.

[3] The sentencing was adjourned from time to time and the sentence was ultimately imposed on February 26, 2001. By the time the sentence was imposed on February 26, 2001, the respondent had been convicted of another charge of breach of recognizance relating to his release on the instant offences. By the terms of his recognizance, the respondent was prohibited from associating with children. He breached this condition of release when he moved [into] a friend's home where two children aged ten and three also lived. The respondent pleaded guilty to this additional charge on January 23, 2001, and received a sentence of 70 days in jail.

[4] Further material was filed at the sentencing hearing including victim impact statements describing the significant detrimental effect these offences had on the young victims; letters of support from a previous employer, acquaintances and friends of the respondent generally attesting to his honesty and loyalty, with some expression of disbelief at his involvement in these offences; a pre-sentence report; and a letter from a psychiatrist, Dr. Conlon.

[5] The pre-sentence report, completed prior to the respondent's second conviction for breaching his recognizance, was generally positive. It revealed that, although the respondent presently had positive relationships with his family, his childhood was signified by violence, alcohol abuse and little family communication. He was also a victim of sexual abuse over a lengthy period of time by a male babysitter. The respondent expressed remorse for the present offences, stating that his behaviour was "stupid" and that he was shocked by his actions, knowing how he himself felt as a victim of sexual abuse. The author of the report indicated that the offences occurred during an unstable period of time in the respondent's life when he had lost his job, was drinking and using drugs, relocated to a poor area and engaged in promiscuous behaviour. The pre-sentence report also revealed that, following his arrest on these charges, the respondent attended a number of counselling sessions with a psychiatrist, Dr. Conlon, and that the respondent indicated a willingness to attend for further counselling and treatment at the court's direction.

[6] Dr. Conlon, in a letter dated December 7, 1999, reported that the respondent admitted to sexual arousal by young men but adamantly denied any sexual interest in children. Dr. Conlon, noting that his assessment was based primarily on self-report, diagnosed the respondent as having a sexual disorder of an unspecified type, but stated that he did not fit the diagnostic criteria for pedophilia. He also diagnosed the respondent as having an adjustment disorder with depressed mood and alcohol abuse. Dr. Conlon concluded his report by indicating that the respondent was compliant with his visits and that he would continue to see him on an outpatient basis. However, once the respondent started working, he discontinued the counselling due to his concern over maintaining his employment. An update from the probation and parole officer provided to the court at the hearing of the appeal revealed that no specific treatment has yet resumed as mandated by the terms of the conditional sentence, again due to conflicts wit h the respondent's work schedule.

[7] Crown counsel at the sentencing hearing took the position that a custodial sentence in the upper reformatory range should be imposed, together with a period of probation and an order under s. 161 of the Criminal Code, R.S.C. 1985, c. C-46 prohibiting the respondent's access in specified circumstances to persons under the age of 14 years. The defence submitted that a conditional sentence should be imposed. The sentencing judge acceded to the defence's request and imposed a conditional sentence of 18 months followed by three years' probation. He did not make a prohibition order under s. 161 of the Criminal Code.

[8] The Crown submits that the sentencing judge erred in principle in two significant respects: first, he erred in finding that the respondent did not represent a risk to the public, and second, he erred in his assessment of the gravity of the offences. It is submitted that the first error is particularly manifest in the trial judge's trivialization of the respondent's repeated breaches of the conditions of his release and his failure to appreciate the full impact they ought to have had on his assessment of the suitability of a conditional sentence for this offender. It is further submitted that the second error is apparent from the sentencing judge's minimization of the respondent's responsibility by importing a degree of complicity onto the young victims who he described as interested in "hanging out with this older man" and "not innocent bystanders".

[9] In our view, the imposition of a conditional sentence was manifestly unfit in the circumstances of this case. The offences involved serious and repeated violations of the sexual integrity of young vulnerable victims. With respect to the sentencing judge, who evidently gave this matter much consideration, we agree with Crown counsel's submission that his reasons for sentencing reflect an improper attribution of responsibility to the victims and a consequent failure to appreciate the full impact of the respondent's criminal conduct. The sentencing judge also erred in his assessment of the risk posed by this offender. Given the respondent's admitted attraction to young men, the absence of any relevant treatment plan and, perhaps more importantly, his repeated failure to abide by those court-imposed conditions that were specifically crafted to minimize the risk of re-offending, the respondent was demonstrably a poor candidate for a conditional sentence. While the term suggested by both counsel at the sentence hearing was within the range of appropriate sentences, the respondent should not have been allowed to serve his sentence in the community.

[10] For these reasons, leave to appeal the sentence is granted, the appeal is allowed, the conditional sentence order is set aside and, in substitution, a term of 18 months' imprisonment is imposed less 12 months' credit for the time served under the conditional sentence, resulting in a sentence of 6 months from the time he is taken in custody. A warrant may issue if necessary. The probation order shall remain the same. While incarcerated, we recommend that the respondent have access to any available temporary absence program that would allow him to continue his employment.

Appeal allowed.