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

58 O.R. (3d) 788

[2002] O.J. No. 1061

Docket No. C33289

Court of Appeal for Ontario

Moldaver, Feldman and MacPherson JJ.A.

March 21, 2002

Criminal law -- Sentence -- Sexual offences -- Breach of Trust -- Sexual assaults over several years -- Accused convicted of 11 sexual offences involving four boys aged between four and eight -- Offences involving wide range of sexual activities including anal intercourse and were accompanied by physical violence, threats of violence and extortion -- Trial judge determined that global sentence of nine years and one month was appropriate and sentenced accused to eight years and one month's imprisonment after crediting him with pre-trial custody -- Six-year sentence imposed on Crown appeal in previous case not representing high-water mark for sexual predators who prey on innocent children -- Sentence in upper single digit to low double digit range will generally be appropriate where adult offender in position of trust sexually abuses children on regular or persistent basis over substantial period of time and where abuse involves full intercourse and is accompanied by other acts of physical violence or threats -- Accused's sentence at low end of appropriate range -- Appeal from sentence dismissed.

The accused was convicted after trial of 11 sexual offences involving four boys. The accused only admitted responsibility for the offences after the complainants had testified at the preliminary hearing and at trial. Over a seven-year period, starting when he was 25 years old, the accused befriended the four victims, who ranged in age from five to eight years, and regularly and persistently engaged them in all manner of sexual activity, including attempted or successful anal intercourse. He bought them expensive gifts, took them on trips, provided them with beer and cigarettes and exposed them to pornography. When necessary, he used violence to compel compliance. He also used threats of violence or extortion to keep the victims quiet. He held one of the victims over his 30th-floor apartment balcony and warned him that he would be thrown off if he ever complained to anyone. The accused stood in a position of trust towards the boys. In three cases, he was a close and trusted family friend. In the case of the boy who was held over the balcony, he had assumed a role akin to that of stepfather. The victim impact statements demonstrated the severe and devastating impact of the offences on the complainants and their families.

The trial judge held that the appropriate global sentence was nine years and one month's imprisonment. Taking pre-trial custody into account, he sentenced the accused to eight years and one month's imprisonment. The accused appealed, submitting that the six-year sentence imposed by the Court of Appeal in the Crown appeal in R. v. Stuckless represents the high-water mark for adult offenders who groom and sexually abuse children over prolonged periods of time.

Held, the appeal should be dismissed.

The sentence of six years' imprisonment imposed on the Crown appeal in Stuckless represents the lower end of the appropriate range of sentence for offences of similar magnitude involving adults who, while in a position of trust, groom innocent children and then sexually assault them over a substantial period of time. In Stuckless, the accused waived the preliminary hearing and pled guilty. He demonstrated sincere remorse and was motivated to seek treatment.

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 and 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 to reflect the enhanced gravity of the offence and the increased level of moral culpability of the offender. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. The accused was 34 years old and had a minor, unrelated criminal record. Fresh evidence, admitted on consent during the appeal, indicated that correctional officials assessed the risk that the accused will re-offend as being medium to high range at present but they expected that the risk would decrease over time. They noted that the accused still seems to have little insight into the seriousness of his offences and their impact on the complainants. The sentence imposed by the trial judge in this case, far from being too high, fell at the lower end of the appropriate range.

APPEAL from a sentence for sexual offences.

R. v. Stuckless (1998), 1998 7143 (ON CA), 41 O.R. (3d) 103, 127 C.C.C. (3d) 225, 17 C.R. (5th) 330 (C.A.); R. v. S. (W.B.) (1992), 1992 2761 (AB CA), 73 C.C.C. (3d) 530, 15 C.R. (4th) 324 (Alta. C.A.), consd Cases referred to R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, 194 N.R. 321, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269; R. v. W. (L.K.) (1999), 1999 3791 (ON CA), 138 C.C.C. (3d) 449 (Ont. C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 100, 161, 718(a), (b), (c)

Michelle Fuerst, for appellant. Kenneth L. Campbell, for respondent.

[1] MOLDAVER J.A.: -- At issue in this appeal is the appropriate range of sentence for adult offenders who prey upon innocent children to satisfy their deviant sexual cravings. The appellant in the instant case was found guilty after trial of 11 sex-related offences involving four young boys. He was sentenced to eight years and one month on each count concurrent. [See Note 1 at end of document]

[2] The appellant takes issue with the length of his sentence. He relies on R. v. Stuckless (1998), 1998 7143 (ON CA), 41 O.R. (3d) 103, 127 C.C.C. (3d) 225 (C.A.) and submits that the six-year global sentence, [See Note 2 at end of document] considered by this court to be a fit sentence in that case, represents the high-water mark for adult offenders who groom and sexually abuse innocent children over prolonged periods of time. He further submits that there are no significant differences between the facts and circumstances of his case and those in Stuckless and certainly none that would justify the additional three years' imprisonment imposed upon him. Accordingly, he asks that his sentence be reduced by three years to bring it into line with the sentence imposed in Stuckless. I would not give effect to his request for two reasons.

[3] First, I reject the submission that there are no significant differences between this case and Stuckless. A comparison of the aggravating and mitigating features in each satisfies me that the facts and circumstances of this case are more egregious than those in Stuckless and for that reason alone, the three-year additional penalty imposed on the appellant was clearly warranted.

[4] Second, I sharply disagree with the appellant's contention that the six-year global term, considered to be a fit sentence in Stuckless, represents the high-water mark for sexual predators who prey on innocent children. On the contrary, for reasons that will become apparent, I consider the six-year global sentence in Stuckless to be at the lower end of the appropriate range of sentences for crimes of the magnitude committed by Stuckless. It follows, in my view, that in the appellant's case, where the facts and circumstances are even more egregious than those in Stuckless, the higher nine-year global sentence selected by the trial judge was appropriate. Indeed, if anything, I believe it fell at the lower end of the appropriate range of sentences for crimes as grave as those committed by the appellant.

The Appellant's Crimes

[5] Details of the nature, extent and magnitude of the appellant's crimes are found in a 25-page document entitled "Agreed Statement of Facts". The 'Agreed Statement' format proved necessary because the appellant did not plead guilty but chose instead to maintain his innocence and proceed to trial. The trial lasted some two weeks and the appellant took the witness stand and denied the allegations against him. The trial judge rejected his evidence, accepted the evidence of the victims and convicted the appellant on all counts. It was not until the sentence hearing and then, only at the eleventh hour, that the appellant, through counsel, admitted that he had in fact committed the offences for which he now stood convicted. By this time of course, the four young victims had been compelled to testify not once but twice, first at the preliminary hearing and then again at trial. In each instance, they were required to re-live the horror of their ordeals and suffer the humiliation of cross-examination designed to impugn their integrity.

[6] For present purposes, I find it unnecessary to identify the individual victims or detail the specifics of the crimes committed against them. Suffice it to say that over a seven- year period, beginning in 1990 when he was 25 and ending in 1997 when he was 32, the appellant befriended four young boys ranging in age from five to eight years and for periods of time ranging from two to seven years, he regularly and persistently engaged them in all manner of sexual activity. The abuse took many forms, including countless acts of masturbation and oral sex, group sexual encounters involving the appellant and several of the boys, attempted acts of anal intercourse in the case of three of the boys and completed acts of anal intercourse in the case of two. A somewhat more detailed account is found in the following excerpt from the Crown's factum:

The Appellant coerced his young victims to engage in virtually every conceivable homosexual act with him. More specifically, the Appellant French kissed them; he licked them (their backs and "bums"); he fondled their buttocks and genitals; he masturbated them, masturbated himself in front of them, and had them masturbate him; he relentlessly attempted to anally penetrate them (thinking that "sooner or later" it would fit); he had them anally penetrate him; he had them commit acts of fellatio on him (sometimes ejaculating into their mouths); he performed oral sex on them; and he successfully had anal intercourse with them. Sometimes these sexual acts took place in groups, or with others watching the sexual activities.

[7] At all material times, the appellant stood in a position of trust towards the boys. In three cases, he was a close and trusted family friend and in the fourth, he assumed a role akin to that of stepfather.

[8] In order to gain his way with the boys and keep them compliant, the appellant made life interesting and exciting for them. He bought them expensive gifts, took them on fun-filled adventures, including overnight camping trips, allowed them to use his video games and his off-road vehicles and, on occasion, provided them with beer and cigarettes. In addition, as part of the "grooming process", he exposed the boys to pornography in the form of a video tape that depicted all manner of sexual activity, including women engaged in acts of bestiality with dogs and horses.

[9] The means chosen by the appellant to ensure compliance, on the one hand, and secrecy, on the other, involved not only the carrot but the stick. When necessary, he used violence to compel compliance. For example, one boy recalled that whenever he tried to stop the appellant from penetrating him anally, the appellant would "smack" or "punch" him. The appellant also used threats of violence and extortion to keep the boys quiet. One of the boys was told that he would go to jail and not see his parents again if he said anything. Another was told that if he disclosed, his parents would think there was something wrong with him and they would dislike him and kick him out of the house. Still others were photographed while engaging in homosexual acts and told that if they disclosed to anyone, the pictures would be posted at their schools. And finally, in the case of his surrogate stepson, the appellant held the child over his 30th-floor apartment balcony and warned him that he would be thrown off if he ever complained to anyone.

Impact on the Victims and their Families

[10] As expected, the appellant's conduct has resulted in untold grief and misery for the children and their families. The lives of four families have been shattered; four children have been robbed of their youth and innocence; four children have been permanently scarred and possibly damaged psychologically for life. This is attested to in the victim impact statements filed at the sentence hearing.

[11] One boy speaks of the fear he felt while being sexually assaulted, a fear surpassed only by the terrifying prospect of being thrown over the appellant's 30th-floor balcony should he dare disclose. To this day, when he thinks about what the appellant did to him, he feels sick and dirty and sometimes he actually "gets sick". In his words, the appellant "took away my childhood". The boy's mother reports that the appellant's conduct has affected the family to "degrees unimaginable". She explains how she herself was molested as a child by her father and how the appellant's conduct has caused her to live her son's pain and re-live her own pain. In her words, "this has taken many years from my son's life and I know this will hurt me for the rest of my life." The child's father speaks about his son's emotional problems and the symptoms that appeared with the onset of abuse, including withdrawal, misbehaviour and bed-wetting. He also talks about the amount of time the family has spent taking their son to doctor s to try "to get a handle on his emotional problems" and how he himself suffers from bouts of depression and ongoing stomach problems as a result of all that has happened.

[12] Another boy reports that the appellant's misconduct has left him angry, nervous and scared. At times, when he gets angry, he has visions of "stabbing" the appellant a "million times" until he looks like a "chunk of red pulp". According to his parents, the child is filled with anger and frustration and he sometimes becomes "belligerent" and "outright mean". His school work has suffered and his marks have dropped considerably. He has a hard time focusing on his studies and difficulty sleeping. On occasion, his mother reports that she hears her son moaning in his sleep: "Stop, Stop, Don't, I'll tell my Mom." Whereas her son was formerly kind, considerate and confident, she now describes him as self-centred, lacking in self-esteem and someone who sees himself as a "stupid, bad kid". Both mother and father speak of the constant torment they feel when they think of the horrible things that the appellant, a once-trusted friend, did to their child. Both wonder with skepticism whether their relationship with their son will ever be the same.

[13] Another mother speaks about how the appellant was able to deceive her completely and how she feels so guilty about encouraging her son and his friends to build a friendship with the appellant. Never again she says, will she be able to accept anyone's "good charity" for what it is because to her, such "graceful acts" now mean "hurt, pain and deceit". She reports that her son is doing very poorly at school, that he is "angry" and "mad" at the appellant and that "he thinks of little else". She now finds herself having "to try to console a boy who has lost his childhood . . .".

The Appellant

[14] The appellant was 34 years old at the time of sentencing. He was adopted when he was six days old and he learned of this and the dynamics of his family at age 16. His upbringing was uneventful. He was raised in a traditional household and taught traditional values. He has a grade 11 education, with some grade 12 credits and he has taken additional courses in management, development and computers at Seneca College.

[15] After completing his schooling, he worked at Canadian Tire for 11 years and then as a truck driver for several years before his arrest in 1997. The appellant has never been married but in 1989, he entered into a year-long common-law relationship with a woman and a child was born of the union. After separating, the appellant was given visitation rights to his daughter, but since his arrest, those rights have been terminated and he no longer sees the child.

[16] The appellant has a relatively minor criminal record. In 1980, he received a conditional discharge and 12 months' probation for stealing a car. In 1995, he was given an absolute discharge for possession of marijuana and, in 1998, he was convicted of breaking the conditions of his recognizance in respect of the present charges and he was sentenced to ten days' imprisonment.

[17] In a psychiatric report prepared for the sentence hearing at the appellant's behest (in which the appellant continued to maintain his innocence), the psychiatrist stated that he was "unable to detect any mental illness" in the appellant, although given the nature of the offences, he could not rule out "the specter of homosexual pedophilia". It was his opinion that phallometric testing was needed to determine the appellant's erotic preference and to evaluate his risk to the public.

[18] According to an institutional report entitled "Correctional Plan Progress Report" dated November 7, 2001, filed on consent as fresh evidence, phallometric testing has now been performed and the results show that the appellant "did not respond sexually to appropriate or inappropriate material that was presented to him . . .". In the author's opinion, this result was undesirable because a desirable result "would be for the subject to not respond to the inappropriate material and to have a measurable response to the appropriate material being presented". The report also refers to an unspecified but "inappropriate" and "somewhat concerning" reaction by the appellant during the post-treatment testing.

[19] The Correctional Report goes on to indicate that although the appellant represents a medium to high risk of re- offending, with continued treatment in the sex offender treatment program, "his level of risk will be expected to decrease". Significantly, it also indicates that although the appellant is making some progress in treatment, he "appears to have little understanding of the impact of his offences on the victims, or the seriousness of his actions".

[20] With this background, I turn to the issues.

Issue One

Are there significant differences between the facts and circumstances of this case and those in Stuckless?

[21] As indicated, it is the appellant's position that there are no significant differences between the facts and circumstances of this case and Stuckless. Accordingly, he seeks to have the sentence reduced by three years to bring it into line with the sentence imposed on Stuckless.

[22] The facts of Stuckless may be briefly stated. Stuckless pleaded guilty to 24 counts of indecent assault and sexual assault. The assaults spanned an almost 20-year period and involved many young boys ranging in age from ten to 15 years. Stuckless engaged the boys in a wide range of sexual activities but at no time did he perform or attempt to perform acts of anal intercourse on them, nor did he require them to perform such acts on him.

[23] Stuckless was diagnosed as both a paedophile and a hebephile. Psychiatric evidence called on his behalf indicated that he was motivated to take treatment and sex-reducing medication and that he was genuinely remorseful for his crimes.

[24] According to the record, Stuckless groomed his victims and established a relationship of trust and confidence with them. His strategy involved enticement and the exploitation of trust, but not the use of overt physical violence or threats of violence. Nonetheless, as attested to in the victim impact statements, his conduct had a devastating effect on the lives of the victims and their families.

[25] Comparing Stuckless to the case at hand, at one level, Stuckless presents as more serious because of the greater number of victims and the longer time frame over which the offences occurred. That said, there are significant aggravating features in the present case that do not exist in Stuckless and significant mitigating features in Stuckless that do not exist here.

[26] On the aggravating side of the ledger, unlike Stuckless, this case involves:

-- Repeated and persistent acts of anal intercourse against two of the boys and attempted acts of anal intercourse with a third.

-- The use of violence, extortion and death threats to gain compliance and maintain secrecy.

-- The victimization of extremely young children ranging in age from five to eight years.

-- The use of corruptive means to groom the children, including exposing them to pornography, alcohol and cigarettes.

-- The deceit used by the appellant to gain the trust and confidence of the childrens' parents.

[27] On the mitigating side of the ledger, in Stuckless, unlike the present case:

-- Stuckless waived the preliminary hearing and pleaded guilty, thereby sparing the children from having to re-live the horror of their ordeals and undergo the humiliation of cross-examination.

-- Stuckless exhibited sincere remorse and appeared to appreciate the seriousness of his crimes and the harm he had caused to his victims.

-- Stuckless was motivated to take treatment and sex-reducing medication.

[28] Manifestly, this brief comparative analysis shows that there are significant differences between the two cases. In short, the facts and circumstances of the present case are in many ways more egregious than those in Stuckless and for that reason alone, I am satisfied that the three-year differential in the global sentences imposed is amply justified. Accordingly, I would not give effect to the appellant's first submission.

Issue Two

Does Stuckless represent the high-water mark for sentences imposed on adult sex offenders who prey on young children?

[29] As indicated, the appellant submits that the global sentence of six years, considered by this court to be a fit sentence for Stuckless, represents the high end of the appropriate range of sentences for adult offenders who groom innocent young children and sexually abuse them over substantial periods of time. With respect, I disagree.

[30] In Stuckless, this court increased the sentence that had been imposed at trial. [See Note 3 at end of document] In arriving at the six-year global sentence, there is no reason to believe that the court departed from its customary practice, when increasing a sentence imposed at trial, of substituting a sentence at the lower end of the appropriate range. Indeed, in concluding that a six-year global sentence was fit, Abella J.A., writing for herself and Borins J.A. (Austin J.A. concurring in the result), took into account "Stuckless' recent efforts at rehabilitation". Absent such positive steps on his part, it is reasonable to conclude that the global sentence would have been higher than six years.

[31] Read that way, as I believe it should be, Stuckless does not stand for the proposition that six years represents the high end of the appropriate range of sentences for like offenders convicted of like offences. On the contrary, it indicates to me that in similar circumstances, mid to upper single digit penitentiary terms will, as a general rule, represent the appropriate sentencing range.

[32] Cases like the present one however, which involve repeated acts of anal intercourse and attempted anal intercourse, as well as the use of other physical violence, threats of physical violence and extortion, are in a different category. Such cases, in my view, call for a higher range of penalty because of the enhanced gravity and seriousness of the crimes and the greater degree of moral culpability attributable to the offender. As a general rule, I believe that upper single digit to low double digit penitentiary terms are called for in these circumstances. Thus, the global sentence of nine years selected by the trial judge in this case was, in my view, within the appropriate range.

[33] Before going further, I wish to emphasize that the ranges which I have identified are not meant to be fixed and inflexible. On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.

[34] The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718(a), (b) and (c) of the Criminal Code, 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.

[35] We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and, as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

[36] In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known.

[37] Two such consequences were identified by the Alberta Court of Appeal almost ten years ago. In R. v. S. (W.B.) and R. v. P. (M.) (1992), 1992 2761 (AB CA), 73 C.C.C. (3d) 530 at p. 535, 15 C.R. (4th) 324, the court, composed of Major J.A. (as he then was) and McDonald and Quigley JJ. made the following observations:

When the victim of a major sexual assault is a child, it is also no doubt true that such an assault frequently results in serious psychological harm to the victim.

When a man has assaulted a child for his sexual gratification, then, even if no long-lasting physical trauma is suffered by the child, it is reasonable to assume that the child may have suffered emotional trauma, the effects of which may survive longer than bruises or broken bones, and may even be permanent.

One consequence of being abused sexually may be that the child will never be able, as an adult, to form a loving, caring relationship with another adult of the opposite sex, being always fearful, even unconsciously, that such a partner will use sexual acts to hurt him or her rather than as an intimate expression of caring and affection. There is no empirical way of proving that a particular child victim's emotional trauma will or will not make it more difficult or impossible for him or her to love another, without fear of abuse. We have only the recorded experiences of men and women who attribute their difficulties as adults in forming mature and fulfilling relationships to their having been abused sexually when they were children.

Another consequence of being abused sexually may be that the child, when he or she becomes an adult, will treat a child or children as he or she had been treated as a child -- that is, he or she may abuse a child sexually. There is no empirical way of proving that a particular child victim, when he or she becomes an adult, will do to some child what has been done to him or her. We do know that sentencing judges are commonly told by defence counsel that the accused claims to have been sexually abused by a man (or by a woman, or both) who had stood in a parental relationship to him or her when he or she was a child.

[38] As is apparent from these passages, with which I completely agree, the Alberta Court of Appeal was focusing on the potential long-term effects of sexual abuse. Time alone will tell whether the children in the present case will fall victim to one or both of these consequences. In the short term, the immediate harm to them (a third consequence) is well documented. I have earlier referred to the devastating effects of the appellant's conduct and there is no need to repeat it. Manifestly, the situation in the four affected families is tragic.

[39] A question arises in this case whether the appellant should benefit from the fact that unlike Stuckless, he has not been diagnosed as a paedophile. In particular, the appellant submits that because he has not been found to be a paedophile, this should be viewed as a mitigating factor weighing in his favour.

[40] With respect, I disagree. If the appellant is not a paedophile and he does not suffer from some other psycho-sexual disorder that could account for his reprehensible behaviour, then arguably his degree of moral culpability rises significantly. Surely, that cannot translate into a mitigating factor weighing in his favour.

[41] My rejection of this aspect of the appellant's argument should not be taken as an indicator that had the appellant been diagnosed as a paedophile, I would have concluded that the nine-year global sentence selected by the trial judge was too high. It was not.

[42] In this respect, assuming that the appellant is a paedophile, I agree entirely with the views expressed by Abella J.A. at pp. 118-21 O.R., pp. 242-46 C.C.C. of Stuckless under the subheading "The Role of General Deterrence and Rehabilitation". In a nutshell, as my colleague points out, the sentencing objectives of denunciation, and general and specific deterrence, can and do play a significant role in the sentencing of paedophiles. Moreover, as Abella J.A. observes at p. 120 O.R., pp. 244 C.C.C.:

Pedophilia is an explanation, not a defence. Society is entitled to protection no less from paedophiles than those who sexually abuse children without this tendency.

[43] I agree wholeheartedly with this observation and would only add that in the case of paedophiles, while their degree of moral culpability may be somewhat diminished by virtue of their psycho-sexual disorder, absent successful treatment, [See Note 4 at end of document] they remain dangerous and represent a very high risk to society. As such, in the case of paedophiles who have not been successfully treated, I believe that in addition to the sentencing objectives of denunciation and deterrence, serious regard must be had to the objective of separating such individuals from society to protect our children and spare them from the risk of irreparable harm.

[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 higher penalties will be warranted. (See, for example, R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327 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.)

Conclusion

[45] The appellant was prepared to risk the lives of innocent children to satisfy his sexual cravings. His conduct was reprehensible and it must be condemned in the strongest of terms. The harm occasioned by the appellant and others like him is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear -- prey upon innocent children and you will pay a heavy price!

[46] The price in this case was a global sentence of nine years and one month, reduced to eight years and one month by reason of time served in pre-sentence custody. The sentence selected by the trial judge was within the appropriate range. Far from being too high, in my view, it fell at the lower end of the range of sentences for crimes as grave as those committed by the appellant.

[47] Accordingly, although I would grant leave to appeal, I would dismiss the appeal from sentence.

Appeal dismissed.

Note 1: The trial judge determined that a global sentence of nine years and one month was appropriate. The reduction to eight years and one month takes into account the time spent by the appellant in pre-sentence custody. The trial judge also imposed prohibition orders for a period of ten years under ss. 161 and 100 of the Criminal Code, R.S.C. 1985, c. C-46. Those orders are not under appeal.

Note 2: After crediting Stuckless with 12 months' pre- sentence custody, the actual sentence imposed totalled five years.

Note3: The trial judge imposed a sentence of two years' less one day imprisonment, to be followed by probation for three years.

Note 4: By successful treatment, I mean the successful completion of a program of treatment that either cures the disorder (assuming that such is possible) or that modifies the offender's behaviour such that he can be trusted to contain and control his sexual urges.