DATE: 20030509
DOCKET: C39269

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) -and- G.L. (Appellant)

BEFORE:

LABROSSE, WEILER and CRONK JJ.A.

COUNSEL:

Christopher Hicks, for the appellant

Kim Crosbie, for the respondent

HEARD:

May 6, 2003

RELEASED ORALLY:

May 6, 2003

On appeal from the sentence imposed by Justice Gladys I. Pardu of the Superior Court of Justice dated November 22, 2002.

ENDORSEMENT

[1] The appellant was convicted on charges of sexual touching and sexual assault on his thirteen-year-old sister-in-law. The complainant described approximately eighteen incidents over an eighteen-month period which included kissing, touching of her breasts and vagina, both over and under her clothes, and inserting his finger into her vagina. Anything more serious, she declined his advances and he accepted her refusal. The sexual abuse became progressively more invasive.

[2] The appellant was thirty years old during the relevant period. He was raised in a dysfunctional home environment and was abused when he was young. He left his family at a young age to become active in the workforce. He had an unsuccessful marriage that produced two children, whom he continues to support. He is remarried with three children, two of them from his wife's previous marriage. He and his wife operate a waste disposal business and a towing company. Due to a physical disability, his wife operates the businesses from their home and he performs the manual labour on site. He has made contributions to his community.

[3] At the sentencing hearing, the Crown was seeking a period of imprisonment of 9 to 12 months and the defence was seeking a conditional sentence of 12 to 18 months. The trial judge imposed a 10-month sentence of imprisonment to be followed by probation for three years. The appellant appeals the sentence. He has already served 49 days of his sentence.

[4] It is conceded that, by virtue of s. 45 of the Young Offenders Act, the trial judge should not have considered or been made aware of the appellant's youth record for sexual assault. Neither counsel nor the trial judge appeared to be aware of s. 45 of the Act.

[5] The appellant's prior conviction for sexual assault as a young offender clearly figured in the trial judge's reasons. In her reasons, she stated:

Most significantly, the accused was convicted at age 15 of sexual assault of a ten year old girl and sentenced to six months probation.

In this case, I fear that serving the sentence in the community would endanger the community. The accused's two convictions at age 15 and at age 33 for sexual assaults of female children raise concerns that he has a long-standing problem of sexual deviancy involving little girls. This puts the community at risk.

[6] The trial judge erred in relying on the appellant's young offender record and, as a result of this record, in her assessment of the risk that the appellant presented to the community. This was an error in principle and this court must now address the appropriate sentence for the appellant.

[7] This court has repeatedly stressed both the serious nature of sexual abuse against children and the importance of sentencing sexual offenders with the principles of denunciation and deterrence in mind. See R. v. Palmer (1985), 7 O.A.C. 348 (C.A.) and R. v. D. (D.) (2002), 58 O.R. (3d) 788 at 797 (C.A.). In R. v. D. R., an unreported decision, released February 24, 2003, this court said at para. 8:

This court has repeatedly indicated that a conditional sentence should rarely be imposed in cases involving the sexual touching of children by adults, particularly where, as here, the sexual violation is of a vulnerable victim by a person in a position of trust. In addition, circumstances that involve multiple sexual acts over an extended period of time and escalating in intrusiveness generally warrant a severe sentence.

[8] The appellant was in a position of trust and the complainant was exceptionally vulnerable. He used the complainant for his own sexual gratification, told her that he loved her and threatened that disclosure would destroy his marriage and hurt her sister. More importantly, the sexual offences were not isolated incidents and they occurred over a lengthy period of time. They were progressively more invasive and they had a marked impact on the complainant. According to the pre-sentence report, the appellant has not accepted responsibility for his actions. Subsequently, he abandoned his appeal against conviction.

[9] Although the imprisonment of the appellant may have adverse financial consequences for the appellant and his family, the sentence of actual imprisonment was, and continues to be, the most appropriate disposition in this case, having regard to the principle of general deterrence and the need to express society's condemnation of the appellant's conduct.

[10] In these circumstances, the sentence imposed was fit.

[11] Accordingly, while we would grant leave to appeal sentence, the appeal is dismissed.

Signed: "J.-M. Labrosse J.A." "K.M. Weiler J.A." "E.A. Cronk J.A."