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. Subsections 486(3) and 486(5) of the Criminal Code provide:

486.(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) 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

(iii) 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; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).

(5) Every person who fails to comply with an order made under subsection (3) or (4.1) 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; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20.

DATE: 20050608

DOCKET: C41104

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Applicant/Appellant) -and- K.J.B. (Respondent)

BEFORE:

ARMSTRONG, LANG and ROULEAU JJ.A.

COUNSEL:

Riun Shandler

for the appellant

Timothy E. Breen

for the respondent

HEARD:

June 2, 2005

On appeal from the sentence imposed by Justice Clair B. Marchand of the Superior Court of Justice on November 20, 2003.

E N D O R S E M E N T

[1] This is a Crown appeal of an effective fourteen-year sentence for possession of child pornography and multiple counts of sexual assault.

[2] The respondent pled guilty to the possession of child pornography and to sexual assault of his common-law wife’s four young children. In addition, the appellant was convicted for sexually assaulting his seventeen-year-old son.

[3] The trial judge sentenced the respondent to fourteen years (including ten years attributed to his approximate five years of pre-trial custody). He refused to designate the respondent a dangerous offender, but did designate him a long-term offender with a ten-year long-term supervision order to follow after completion of his incarceration.

[4] The Crown argues that the sentences were demonstrably unfit given the circumstances surrounding and impact of the offences, the position of trust occupied by the respondent, and his overall moral blameworthiness. The Crown seeks to vary the total effective sentence to one of eighteen years. The Crown asks that this be done by imposing a sentence of ten years attributable to the sexual assaults of the four young children, a consecutive sentence of four years for the assault on the respondent’s son, and an additional consecutive four years for the child pornography count.

[5] The circumstances surrounding the offences are egregious. The respondent repeatedly abused the young children, who ranged in age from three to eleven. That abuse involved digital penetration, fellatio, sexual touching, cunnilingus, and other intrusive sexual acts. In addition, the respondent coerced the children into committing sexual acts with each other. The abuse was further aggravated by the respondent’s use of extortion and by his knowledge that the children had been previously sexually abused. As well, the respondent videotaped much of the abuse that he perpetrated on these young children. The impact of this cumulative abuse on the four children has been profound and will continue to impact them for the rest of their lives.

[6] The child pornography count related to the respondent’s possession of videotapes containing images of other children as well as images of his abuse of these children. The respondent was also found guilty after trial of sexually assaulting his seventeen-year-old son by performing fellatio on him while his son slept. As well, the respondent had coerced his son into engaging in sexual intercourse with his girlfriend in the respondent’s presence and for the respondent’s sexual gratification.

[7] These offences occurred over a prolonged period of time in circumstances where the respondent occupied a position of trust in relation to all the victims. In all the circumstances, these offences were extremely serious and their impact profound.

[8] At the time of sentence, the respondent was forty-three years old. He had a long history of drug and alcohol use, irregular employment, and numerous previous convictions for property-related offences. While remorseful, the respondent minimized certain elements of the abuses that he had perpetrated.

[9] In mitigation, after this matter came to the attention of the police, the respondent cooperated fully with the police and voluntarily provided them with the identities of the children depicted in the videotapes. He also provided the police with a videotaped statement and cooperated throughout. He pled guilty to the sexual assaults of the younger children and to the possession of child pornography. Further, he voluntarily underwent testicular castration, which reduced his risk of re-offending to a minimum level.

[10] The principles of sentencing for this nature of sexual assault were canvassed by Moldaver J.A. in R. v. D.D. (2002), 2002 44915 (ON CA), 163 C.C.C. (3d) 471 (Ont. C.A.):

To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. (p. 484)

[11] On a sentence appeal, appellate intervention is permissible only where the sentence imposed demonstrates a substantial and marked departure from sentences customarily imposed for similar offenders committing similar crimes. In our view this case does not represent a marked departure and cannot be said to be unreasonable.

[12] In careful reasons for sentence, the trial judge considered the circumstances of the offences, the impact on the victims, and the circumstances of the offender. In our view, the sentencing judge made no error in principle in arriving at the sentence. He correctly considered all relevant factors, and did not overemphasize any of the appropriate factors. His attention was specifically drawn to R. v. D.D. (supra). In determining the appropriate sentence, the trial judge was entitled, and indeed obliged, to consider concerns about the totality of the sentence. We see no reason to interfere with his sentence.

[13] There was a separate issue on the appeal as to the calculation of the respondent’s pre-trial custody. Before the trial judge, both counsel agreed that the respondent had served five years of pre-trial custody. The Crown now says that calculation was in error by about four months, and argues that the respondent’s sentence should be increased accordingly. Given the totality of the sentence, we do not think that it is appropriate to intervene on this issue.

[14] Accordingly, we would grant leave to appeal but dismiss the appeal.

Signed: “Robert P. Armstrong J.A.”

“Susan E. Lang J.A.”

“Paul Rouleau J.A.”