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(s), shall continue. As relevant in this case, s. 486(3) and s.486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:

486.(3) Subject to subsection (4), where an accused is charged with

(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,

1. the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.

(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6.

DATE: 20040616

DOCKET: C40355

COURT OF APPEAL FOR ONTARIO

ABELLA, MOLDAVER and JURIANSZ JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Susan Magotiaux for the appellant

Appellant

• and -

Anil K. Kapoor for the respondent

JEFFREY B.

Respondent

Heard: June 7, 2004

On appeal from sentence imposed by Justice Robert Bigelow of the Ontario Court of Justice on June 27, 2003.

MOLDAVER J.A.:

[1] The respondent pleaded guilty to one count of aggravated sexual assault and one count of assault causing bodily harm in relation to his six year old stepdaughter K.H. and one count of aggravated assault in relation to his five week old biological son N.K. He was sentenced to a global term of six years in the penitentiary (in addition to being credited with four years for pre-trial custody calculated on a scale of just less than three for one).

[2] In arriving at the global sentence, the trial judge found that "the assaults on K.H. and N.K. [were] each on their own of a nature to justify penitentiary sentences in the mid to upper range". However, "taking into account the principle of totality", he concluded that "a total sentence of 10 years, less credit for pre-trial custody [four years] would be appropriate". To achieve that result, on the charges relating to K.H., the trial judge imposed a sentence of three years for the offence of aggravated sexual assault and two years concurrent for the offence of assault causing bodily harm. On the charge of aggravated assault in relation of N.K., he imposed a further sentence of three years to be served consecutively.

[3] The Crown applies for leave to appeal and if leave is granted, seeks to have the global sentence increased to sixteen years, less four years credit for pre-trial custody. In other words, the Crown seeks to have the present six-year global sentence increased to twelve years.

[4] For reasons that follow, I am satisfied that the sentence imposed at trial cannot stand. In my view, it was manifestly inadequate and suffered from the following errors in principle:

• it over-emphasized the principle of totality;
• it failed to adequately reflect the gravity and seriousness of the respondent's crimes;
• it failed to adequately address the objectives of deterrence and denunciation; and
• it failed to adequately address the pressing need to separate the respondent from society to protect the lives and safety of other innocent children.

In the end, I accept the Crown's submission that this is a case in which a global sentence of sixteen years (less four years for pre-trial custody)[^1] was called for. Indeed, in my view, the sentence could have been higher.

THE OFFENCES AND THE APPROPRIATE SENTENCES

[5] As indicated, I am of the view that in arriving at the global sentence of ten years (less four years for pre-trial custody), the trial judge committed several errors in principle.

[6] First, on the charge of aggravated sexual assault against K.H., he imposed a sentence that was wholly inadequate. The facts giving rise to that charge are horrific. They involve a vile and sadistic act of brutality.

[7] The assault occurred in 1995 when K.H. was six years old. On the day in question, the respondent came into K.H.'s room where she was lying on her back on the bed. He placed a towel over her knees so that she could not see the lower portion of her body. K.H. suddenly felt severe pain as the respondent forced something into her vagina. She thought it was a crayon but she was not sure. Profuse bleeding followed. Because of this, the respondent forced K.H. to take a bath. Eventually, K.H.'s mother came home and saw the bleeding. After trying unsuccessfully to stop the bleeding, K.H. was taken to the hospital by her mother and the respondent.

[8] At the hospital, it was observed that K.H. had severe bruising on her thighs. Her vagina was torn so violently that she needed a blood transfusion and stitches to repair the damage. During surgery, the doctors noted a second-degree tear to her hymen and intra-vaginal bruising. K.H. was admitted to the hospital where she received ongoing medical treatment. Photographs of her injuries are contained in the record. They are gruesome.

[9] The crime of aggravated sexual assault is punishable by imprisonment for life. What the respondent did to K.H. was degrading and dehumanizing and constituted an extreme act of brutality. Far from warranting a sentence of less than five years (the trial judge imposed a combined global sentence of five years for that offence and the additional offence of assault causing bodily harm), I am of the view that that crime alone warranted a sentence of at least six years in the penitentiary.

[10] Second, on the charge of assault causing bodily harm against K.H., the trial judge erred in imposing a concurrent sentence. A consecutive sentence was called for because the incidents giving rise to that charge were separate and distinct from the incident underlying the charge of aggravated sexual assault.

[11] The facts relating to the charge of assault causing bodily harm are most disturbing. They too occurred when K.H. was six years old. K.H. could only remember five specific incidents. She described them as follows:

• The respondent took her to his workplace. He grabbed her around the neck and held her off the ground, choking her. He eventually dropped her onto the floor.
• K.H. was at home with the respondent. She was lying on her stomach on her bed. The respondent came in, grabbed her legs and bent them up towards her head. K.H. could not breathe. She struggled until the respondent eventually let go.
• On one occasion when family members were visiting, the respondent waited for K.H. to be alone in her room. He came into the room and punched her in the ribs. K.H. fell to the ground. The respondent held her on the ground before getting up and leaving the room.
• The respondent came into K.H.'s bedroom, again when she was alone. He dragged her into the bathroom, wrapped a towel around her neck and pulled it tight to choke her. K.H. thought he was going to kill her.
• When K.H. was having a bath, the respondent came into the room, grabbed her neck and held her head under the water. She struggled and was eventually able to raise her head out of the water to breathe. The respondent continued choking her with his hands around her neck.

[12] When K.H. was hospitalized for the vaginal injury giving rise to the charge of aggravated sexual assault, she was seen by the Suspected Child Abuse and Neglect (SCAN) Program. The SCAN report showed extensive injuries in various stages of healing. At the time she was admitted to the hospital, K.H. had a broken arm, substantial bruising at several different stages of healing on her inner thighs, bruising on her back and shoulders, bruising on her jaw, several groupings of bruises and discoloured areas above and below her left nipple and bruising to her lower abdomen, chest, arms, legs and buttocks. She was unable to bear weight on her right leg. X-rays showed nine healing rib fractures, three other possible rib fractures and fractures of the forearm, left finger and elbow. The report also noted that K.H. had had two previous incidents of vaginal and anal bleeding. Dr. Huyer, a physician with the SCAN program, Hospital for Sick Children, found that the injuries to her vagina could not have been accidental and that the nine rib fractures were attributable to physical abuse.

[13] In short, it is apparent that the respondent brutalized K.H. on a regular and persistent basis. The acts of violence were cruel, vicious, and utterly reprehensible. In some instances, they bordered on torture.

[14] I view this as a most egregious case of assault causing bodily harm. The offence of assault causing bodily harm is punishable by a term of imprisonment not exceeding ten years. On the facts of this case, far from warranting a concurrent sentence of two years (the sentence imposed by the trial judge), I am satisfied that this crime called for a consecutive sentence of at least three years in the penitentiary.

[15] Third, on the charge of aggravated assault against N.K., the sentence imposed by the trial judge was inadequate. The facts giving rise to that charge are shocking.

[16] The respondent married J.K. in 1999. On August 27, 2001, N.K. was born. On September 7, at eleven days old, N.K. was seen by his family doctor who noted a mass on his scrotum. The doctor instructed J.K. and the respondent to take N.K. to the hospital for further investigation. N.K.'s mother took him to the Hospital for Sick Children on September 11. The hospital records show that N.K. had been fussy and inconsolable for three days. He was crying uncontrollably and had a swollen dark testicle. He had two bluish marks on his lower back and a bruise on his inner thigh.

[17] On October 1, J.K. again took N.K. to the family doctor. The doctor noted a "black and blue" right testicle. He referred N.K. to a paediatrician to investigate the testicular bruising.

[18] On October 4, when N.K. was five weeks old, his mother took him to the emergency department of the Hospital for Sick Children. He had a swollen bruised testicle and the top of his scrotum was bleeding. This condition was ongoing for three days before his arrival at the hospital. Medical staff noted bruises on the child's cheek, jaw, chest, abdomen and knee. Haemorrhaging was observed in both eyes and the skin joining his tongue to the floor of this mouth was torn. Doctors were concerned about possible abuse and N.K. was referred to the SCAN program.

[19] On October 5, 2001, doctors in the SCAN program examined N.K. and reviewed his medical records. In addition to the bruising, torn frenulum, and eye haemorrhages, SCAN staff identified the following injuries:

• Thirty rib fractures in various stages of healing (at least one fracture on every rib imaged).
• Fractures of both clavicles (collarbones).
• Two leg fractures, one above the knee and one just above the ankle.
• A wrist fracture.
• A foot fracture.
• A fracture of the spinal process.
• Compression fractures of several vertebrae.

[20] The SCAN report indicated that an infant as young as N.K. could not have sustained the type of bruising he exhibited from normal activity. The bruises were consistent with pinching or grabbing. Bruising of the scrotum was consistent with a forceful blow or twisting. Violent squeezing or shaking could account for the rib and clavicle fractures. Fractures to N.K.'s legs were likely caused by yanking, tugging or twisting of the limbs or violent shaking.

[21] In January 2002, the Hospital for Sick Children provided an updated report outlining the results of MRI scans on N.K.'s brain and spine. The report concluded that N.K. may have suffered brain injury and is at risk for developmental delays and neurological abnormalities.

[22] The offence of aggravated assault is punishable by a term of imprisonment not exceeding fourteen years. The respondent's violent conduct towards N.K. defies comprehension. He brutalized his infant, helpless child who may, tragically, have suffered serious permanent injuries.

[23] The trial judge imposed a sentence of three years imprisonment for this crime (in addition to two years for pre-trial custody). That sentence was inadequate. The respondent's crime was horrific. It warranted a sentence of at least seven years in the penitentiary.

[24] Having determined that a global sentence of sixteen years was warranted, I must consider whether that length of imprisonment offends the principle of totality.[^2] That in turn, brings me to the fourth error committed by the trial judge.

[25] With respect, I am of the view that in imposing the global sentence he did, the trial judge gave too much weight to the principle of totality and insufficient weight to the need to protect society from the respondent. Specifically, he failed to give sufficient consideration to the respondent's severe psychiatric condition and the danger he poses to society.

[26] Without going into detail, the psychiatric evidence portrays the respondent as a sexual sadist with paedophilic tendencies. He is also prone to substance abuse and extreme acts of violence. Indeed, his violence is said to be the product of a "chronic and stable personality disorder which may be difficult to change".

[27] The psychiatric evidence further indicates that without treatment, there is more than a fifty percent chance that the respondent will commit further violent crimes within the next ten years. According to Dr. Fedoroff of the Royal Ottawa Hospital, testing supports the possibility that the respondent "may be sexually aroused from aggressive or sadistic acts, particularly those directed toward male and female children". He recommends treatment for sexual sadism and pedophilia, as well as anger management and substance abuse.

[28] In short, based on the psychiatric evidence, I am satisfied that the respondent presents a continuing danger to society and he puts at serious risk the lives and safety of other innocent children.

[29] In the circumstances, I am firmly of the view that the sentence imposed should have reflected the need "to separate offenders like the respondent from society". That objective of sentencing is identified in s. 718(c) of the Criminal Code. It deserved particular attention in this case. Unfortunately, the trial judge failed to give it adequate, if any, weight (see R. v. D. (D.) (2002), 163 C.C.C. (3d) 471 at 483 (Ont. C.A.)).

[30] When that objective is taken in account, the proposed global sentence of sixteen years does not offend against the principle of totality. Indeed, having regard to the horrendous nature of the respondent's crimes, his high degree of moral blameworthiness, and the pressing need to segregate him from society lest he destroy the lives of other innocent children, it could have been more severe. What spares the respondent (age thirty-five at the time of sentencing) from an even higher sentence, is his lack of prior criminal record, his steady work record and, most significantly, the glimmer of hope, referenced in Dr. Fedoroff's psychiatric report, that he may have some insight into the nature of his crimes and the need for treatment.

DISPOSITION

[31] For these reasons, leave to appeal is granted and the appeal against sentence is allowed. The sentence imposed at trial is varied as follows. On the charge of aggravated sexual assault against K.H., I would impose a sentence of six years less two years for pre-trial custody for a total of four years. On the charge of assault causing bodily harm against K.H., I would impose a sentence of three years consecutive. On the charge of aggravated assault against N.K., I would impose a sentence of seven years less two years for pre-trial custody for a total of five years. Hence, after crediting the respondent for time served in pre-trial custody, the global remaining sentence is increased from six years to twelve years. In all other respects, the sentence imposed at trial shall remain the same.

Signed: "M.J. Moldaver J.A."

"I agree R.S. Abella J.A."

"I agree R. G. Juriansz J.A."

RELEASED: June 16, 2004 "RSA"

[^1]: The Crown did not challenge the four-year figure. For my part, I find it disturbing that eighteen months of actual pre-trial custody can translate into a credit of four years. It seems to me that lately, the issue of credit for pre-trial custody is taking on a life of its own. Unchecked, it can skew and even swallow up the entire sentencing process. In short, it may be time to revisit the manner in which credit for pre-trial custody is assessed. However, since the matter was not raised or argued, it is best left for another day.

[^2]: The principle of totality ensures that the cumulative sentence is not disproportionate to the offender's overall culpability: (R. v. M. (C.A.) (1996), 105 C.C.C. (3d) 327 at 349 (S.C.C.).