COURT OF APPEAL FOR ONTARIO

DATE:20020628 DOCKET:C36103

CHARRON, BORINS AND FELDMAN JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Paul Calarco for the appellant

Respondent

• and -

JAMES MARTIN ESMONDE

Randy Schwartz for the respondent

Appellant

Heard: May 16, 2002

On appeal from the sentence imposed by Justice G. Regis dated April 2, 2001.

FELDMAN J.A.:

[1] The appellant pled guilty to indecent assault of a young male. The offence was historical, having occurred approximately 20 years earlier. The appellant was sentenced to a period of 13 months in reformatory plus three years probation. The issue on the appeal is whether the trial judge erred in his reasons for refusing the defence submission for a conditional sentence and if so, whether a conditional sentence is the appropriate sentence for this court to impose.

FACTS

[2] Between 1979 and 1983, when the appellant was between 21 and 24 years old, on fewer than 12 occasions he indecently assaulted a young boy who was between the ages of 12 and 16 or 13 and 17 years of age. The two got to know each other because the young boy assisted the appellant in running a lob-ball team. The appellant began by rubbing the boy's back, then touched his penis, then went on to masturbate and perform fellatio on him on a number of occasions. The appellant supplied the victim with alcohol and marihuana on these occasions. The incidents resulted in the victim ejaculating. It was agreed that there were no threats of violence and that when the victim asked the appellant to stop, he did so.

[3] The appellant pled guilty and agreed to do so early, so that there was never an issue of the victim being required to testify.

[4] The appellant had a criminal record, which included three alcohol-related driving offences, one in 1981, one in 1992 and one in 1996 for which he received 45 days intermittent. He also had a record for a subsequent sexual offence involving a young boy, which occurred in 1993 and to which he pled guilty in 1994. In that case, the appellant had invited friends to his cottage. They brought their 15 year old son. Everyone drank. The appellant was drunk, and went to a bedroom where the boy was asleep. He got into bed with him and rubbed his back. The boy rolled over with an erection, he masturbated the boy, then the mother came in. The appellant apologized to the mother and the boy. The police were called. The appellant was sentenced to 75 days intermittent and 18 months probation. He also saw a therapist for about a year and attended group therapy for sex offenders.

THE SENTENCING HEARING AND TRIAL JUDGE’S FINDING

[5] At the sentence hearing the trial judge had a very helpful pre-sentence report, the victim impact statement, a letter and update from Dr. Dickie, a senior psychiatrist and Head of the Sexual Behaviours Clinic at the Center for Addiction and Mental Health, as well as a letter from the appellant’s employer.

[6] Crown and defence counsel essentially agreed that a sentence in the mid to upper reformatory range was appropriate given the nature and circumstances of the offence and of the offender. The issue was whether the sentence should be served in custody or in the community.

[7] Dr. Dickie had concluded that the appellant posed a moderate to low-moderate risk of reoffending and that the risk would be at the lower end if he abstained from alcohol and participated in treatment, both of which he had done and was willing to continue doing. The appellant’s siblings were very supportive of him. Since his arrest, he had given up alcohol, entered recommended rehabilitative programs, improved in his job, not breached any terms of his release nor disobeyed any court order. Defence counsel therefore submitted that there was a reasonable assurance that the danger of reoffending was not present.

[8] Crown counsel’s position was that a moderate risk of reoffending was nonetheless significant and that even if the risk was low, the consequences to a victim of reoffending were very serious. Counsel referred to the aggravating features of the offence itself in terms of the exploitation and vulnerability of the victim.

[9] The trial judge reviewed the circumstances of the offence including the age difference between the appellant who was a young adult at the time, and the child victim together with the administration of alcohol and marihuana, and concluded that a denunciatory sentence was required.

[10] The trial judge concluded that there was some risk of re-offending, but even if he was wrong about that, if the appellant did reoffend, the potential for damage was grave, and that as a result of those two factors, a conditional sentence was not appropriate in this case.

ANALYSIS

[11] In R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. 449 (S.C.C.)at pp. 482 and 483, Lamer C.J. set out the approach for trial judges to take in assessing the danger to the community factor for determining the propriety of a conditional sentence. He described two factors, the risk of the offender re-offending and the gravity of the damage that could ensue in the event of a re-offence and stated that even if the risk of reoffence is minimal, the gravity of the danger can offset the minimal risk. He went on to qualify the analysis by providing that the risk is to be assessed in light of the conditions that can be imposed as part of the sentence in order to achieve the purposes of rehabilitation, securing the good conduct of the offender and preventing a repetition of the offence.

[12] In this case, the trial judge appears to have given little weight to the significant steps that had been taken by the appellant to turn his life around and to minimize the risk of re-offending, particularly in the context of imposing a strict house arrest conditional sentence regime. Although the approach of the trial judge may not have amounted to error, we are entitled on a sentence appeal, to take into account the fresh evidence of the circumstances of the appellant as they have developed since the date of sentencing (s. 687(1) of the Criminal Code).

[13] The appellant who is now 44 years old, was granted bail pending appeal in April, 2001 on conditions of effective house arrest. He has been complying with those conditions since that time. Part of the fresh evidence filed on this appeal includes an opinion letter from Dr. Julian Gojer, a staff psychiatrist in the Law and Mental Health Program at the Center for Addiction and Mental Health, University of Toronto. Dr. Gojer has been counseling the appellant on a weekly basis since June, 2001. His diagnosis of the appellant is “alcohol dependence which is currently in remission”. He noted that past phallometric testing had revealed some attraction to young teenage males and that a diagnosis of homosexual hebephilia had also been considered.

[14] Dr. Gojer evaluated the appellant using the Sex Offender Risk Appraisal Guide. He tested in the group where 59% go on to reoffend sexually in ten years. Dr. Gojer noted that the appellant had good insight into his alcohol problems and his sexually offending behaviour, that he had managed to stay off alcohol partly because of court sanctions and partly on his own; he had been attending Alcoholics Anonymous regularly and had also joined a relapse prevention program at the Addiction Services for York Region. He was also attending a counseling group with Dr. Gojer to address his sexually offending behaviour, and was a very active and productive participant in the group. The doctor said that the appellant does not have a major mental illness or personality disorder and is not a psychopath. He is of above average intelligence. Dr. Gojer concluded:

[The appellant’s] genuine remorse for what he has done, the fact that he has not reoffended subsequent to his last conviction, prior attendance for counseling through the YRAP program and his ongoing high degree of motivation for remaining substance free and abstinence from inappropriate sexual behaviour go strongly in favor of an individual who is at low risk to reoffend. His involvement in therapy with me has been exceptional and this is a reflection of his motivation and intelligence, two factors that bode well for a good prognosis. Overall I see him as a low risk to reoffend.

[15] Dr. Gojer recommended that the appellant continue to attend Alcoholics Anonymous, abstain from using alcohol or illegal drugs, and continue with the counseling for inappropriate sexual behaviour. His opinion was that the appellant is “appropriate for ongoing management in the community”.

[16] The appellant was also tested and interviewed by a psychologist, Dr. G.E. Ilacqua, who provided a report dated July 31, 2001. Dr. Ilacqua concluded that the appellant does not require any rehabilitative psycho-therapeutic intervention for future criminal risk and that: “He does not present with any sexually deviant proclivities and does not present a risk for future criminal involvement.”

[17] As part of the fresh evidence there is also a positive report from the Addiction Services for York Region counseling group and a positive report from his employer.

CONCLUSION ON SENTENCE

[18] Indecent assault by an adult on a child is an extremely serious crime which will always require denunciation and general deterrence as primary objectives of sentencing. However, sentencing is an individual, case-specific process which requires the assessment of many factors in order to determine the most appropriate sentence for the particular offender in all the circumstances.

[19] Another factor that is primary in sentencing for this type of offence is rehabilitation, if that is realistically possible. In R. v. Wismayer (1997), 1997 3294 (ON CA), 33 O.R.(3d) 225, Rosenberg J.A. noted at p. 245 that: “The conditional sentence can also have important beneficial effects for the community. Use of the conditional sentence provides the opportunity for rehabilitation through mandatory treatment, reduction in the costs of incarceration, and, where appropriate, the possibility of encouraging the offender to take responsibility for his or her actions through community service or other measures.”

[20] It is obvious that society must be protected from sexual predators. Although many sentencing plans include requirements, for example, for counseling, attendance at group therapy and drug and alcohol abstinence programs as part of probation, it is unclear how effective these are or can be when the offender is unwilling to actively participate, or is unable, or unwilling, to admit the need for these treatments.

[21] In this case, the appellant has demonstrated that he is committed to overcoming both his substance abuse problem and his sexual deviation problem. His siblings noted that he changed dramatically after his arrest for this offence, both in personality, with respect to giving up drinking, and in his employment. He has attended many programs, apparently very successfully, to continue to address his problems. He has been living under house arrest for over a year, obeying the strict conditions imposed. Although he has some teenage relatives, he is not alone with them.

[22] The appellant has made gains in many areas of his life following his arrest for this offence. He indicated that he would be pleading guilty at an early stage of the proceedings, ensuring that the victim would not have to suffer further in the process. He has expressed and demonstrated sincere remorse. In my view, this is the type of offender who should be viewed as a serious candidate for a conditional sentence. It is important for the system to encourage those who are truly remorseful, who want to change their path, and who have taken steps to do so, by holding out to such people the real potential for the imposition of a sentence to be served in the community.

[23] I would allow the appeal and set aside the incarceration portion of the sentence imposed. The appellant has been on bail pending appeal for 14 months, under terms of house arrest. His original sentence was 13 months incarceration plus three years probation. In my view, at this stage the appellant should serve a further two months as a conditional sentence under similar terms as are contained in the conditions of his bail pending appeal. He must also attend all counseling programs as required by his supervising officer in consultation with Dr. Gojer. The three years probation will remain as part of the sentence under the very appropriate terms imposed by the trial judge, which include ongoing treatment as required by the probation officer.

Released: June 28, 2002 “LC”

“The appellant need not surrender in custody prior to the release of this judgment. Condition 1 of the bail order dated May 16, 2002 is thereby deleted. Louise Charron J.A.”

“K. Feldman J.A.

“I agree Louise Charron J.A.”

“I agree S. Borins J.A.”