W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any information that would disclose the identity of the complainant, has been made and continues.

DATE: 20031128

DOCKET: C39545, C39547

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Applicant/Appellant) – and – M.T. (Respondent) – and – D.T. (Respondent)

BEFORE:

WEILER, ABELLA and SIMMONS JJ.A.

COUNSEL:

Leslie Paine for the appellant

David Faed for the respondent

HEARD AND ENDORSED:

November 21, 2003

On appeal from the sentence imposed by Justice L.E. Marshall of the Ontario Court of Justice on January 22, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] In our view, the blended sentences of 23 months were manifestly unfit. These were 8 profoundly exploitive breaches of trust performed over a period of 9 years, starting when their son was 11 and concluding when he was 21.

[2] This court stated, in R. v. D.D., 2002 44915 (ON CA), [2002] O.J. No. 1061 44 (C.A.), that offences of this kind require a penitentiary term. There was no basis for deviating from this principle given the repeated nature of the offences and the failure of the parents adequately to appreciate the seriousness of their conduct.

[3] The sentencing judge, moreover, appeared to place undue reliance on what can only be described as an inappropriately absolving report from Dr. Paul Vereshack; ignored the repetitive nature of the assaults and treated them as isolated incidents; and failed to give sufficient consideration to denunciation.

[4] Similarly, a blended sentence was unavailable on these facts. A conditional sentence would not have been appropriate for any of these offences, let alone their totality, rendering the 17 months conditional sentence unfit.

[5] The Crown sought a sentence of 3 years. This, in our view, while on the low end of the range, is not unfit.

[6] Accordingly, leave to appeal the sentences is allowed, the appeals are allowed, the sentences set aside, and a sentence substituted of 3 years, with credit to be given for time served both in the reformatory and on the conditional sentences.