COURT OF APPEAL FOR ONTARIO

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 evidence that would tend to identify the complainant, shall continue.

DATE: 20030224

DOCKET: C38870

RE: Her Majesty the Queen (applicant/appellant) – and – D. R. (respondent)

BEFORE: CRONK, GILLESE AND ARMSTRONG JJ.A.

COUNSEL

Robert Kelly,

for the applicant/appellant

Christopher Hicks,

for the respondent

HEARD: February 18, 2003

On appeal from the sentence imposed by Justice C. B. Marchand of the Ontario Court of Justice, sitting with a jury, on September 5, 2002.

E N D O R S E M E N T

Released Orally: February 18, 2003

[1] The Crown seeks leave to appeal and, if leave be granted, appeals against the conditional sentence imposed by Marchand J. of the Ontario Court of Justice on the respondent D. R. following his plea of guilty to one count of sexual assault and one count of sexual exploitation. For the reasons that follow, we are satisfied that the conditional sentence imposed at trial was demonstrably unfit.

[2] The offences here involved the prolonged sexual abuse by the respondent of his 15 year-old daughter in their home, while she was asleep in bed at night. They involved the fondling of the victim’s breasts, buttocks and thighs underneath her clothes 3 to 4 times per month over a period of approximately 14 months. On one occasion, the victim awoke in her bed to find the respondent with his head between her legs near her crotch area. She believed that the respondent had been performing oral sex on her. Although the respondent denied the performance of oral sex, he admitted that he did place his head between the victim’s legs. On another occasion, when the victim again awoke in her bed, she discovered the respondent lying behind her. From his sounds and movements, she believed that he was masturbating. The respondent denied that he did so. On yet another occasion, the respondent told the victim that he would allow her to go out with her friends on condition that she let him rub his penis on her body. She refused.

[3] The respondent’s criminal record dates from 1974. It consists of approximately 17 prior convictions, including a prior sexual assault conviction in 1995. The victim in that case was the respondent’s son’s 16 year-old girlfriend, who had been babysitting the respondent’s children at the time of the incident. The respondent received a sentence of 90 days imprisonment in addition to 3 months pre-trial custody, and probation for 2 years in respect of that offence. His term of probation for that offence ended just a few months before he started sexually abusing his daughter. In addition, the respondent breached the terms of his recognizance on two occasions pending disposition of the charges on the current offences.

[4] Although the respondent has been diagnosed as suffering from symptoms of attention deficient hyperactivity disorder, asthma and diabetes, he does not suffer from a mental disorder or illness, or pedophilia. He was described in a psychiatric evaluation as an individual who is impulsive and inattentive, has trouble concentrating, shows poor judgment, and displays aggressive and anti-social behaviour. While his psychiatric evaluation suggests that future treatment holds some prospect for rehabilitation, he has also been assessed as being at moderate risk of re-offending, that is, at a 40% to 70% risk of re-offending.

[5] The respondent entered a plea of guilty to the current charges. However, he did not do so until after his daughter had been required to testify at a preliminary inquiry.

[6] At trial, Crown counsel proposed a sentence of 18 months to 2 years less a day imprisonment, in addition to pre-trial custody credited at approximately 12 months, followed by probation. Defence counsel sought a conditional sentence, including a term which contemplated house arrest except for treatment and employment requirements. Notwithstanding that Crown counsel at trial also sought a term of house arrest, the trial judge declined to impose such a term on the basis that the respondent was not the type of youthful offender requiring house arrest as a form of monitoring. He sentenced the respondent to an 18 month conditional sentence, followed by 3 years probation.

[7] The respondent concedes on this appeal that the trial judge erred in failing to impose a curfew term as part of the terms of the conditional sentence. However, in light of the respondent’s pre-trial custody and his alleged involvement in the on-going care of his other children, the respondent submits that the terms of his sentence should reflect his counselling and family obligations. In our view, while there are cases where the needs of a dependent family will affect mitigation of sentence, that is not this case.

[8] While sentences imposed by sentencing judges attract considerable deference from this court, on the facts of this case, we conclude that the governing principles of denunciation and deterrence, both specific and general, cannot be satisfied by a conditional sentence. 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. See R. v. Cromien (2002), 2002 4807 (ON CA), 155 O.A.C. 128 (C.A.); R. v. Bedard (2001), 2001 8536 (ON CA), 158 C.C.C. (3d) 216 (Ont. C.A.); R. v. Stuckless (1998), 1998 7143 (ON CA), 127 C.C.C. (3d) 225 (Ont. C.A.); and R. v. G.O. (1997), 1997 14501 (ON CA), 99 O.A.C. 234 (C.A.). See also R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132. The trial judge, with respect, failed in this case to give adequate or any consideration to those controlling principles. Moreover, the trial judge’s error in imposing a conditional sentence was exacerbated by his further error of failing to impose a house arrest term as part of that conditional sentence. In all of those circumstances, the sentence imposed is manifestly inadequate.

[9] In our view, denunciation and specific deterrence in this case require a period of actual incarceration. However, the respondent must be given credit for that part of his conditional sentence already served.

[10] Accordingly, leave to appeal against sentence is granted, and the appeal is allowed to increase the sentence to a term of imprisonment of 2 years less a day, credit of 6 months to be given for that portion of the conditional sentence already served. The term of probation is to remain in effect with all terms unchanged. The sentence shall commence on the day that the respondent surrenders into custody. A warrant shall issue if required.

Signed: “E.A. Cronk J.A.”

“E.E. Gillese J.A.”

“Robert P. Armstrong J.A.”