DATE: 20051202

DOCKET: C43106

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Applicant (Appellant) – and – R.S. (Respondent)

BEFORE:

ROSENBERG, GOUDGE and SIMMONS JJ.A.

COUNSEL:

Jamie Klukach

for the appellant

Brian Callender

for the respondent

HEARD & RELEASED ORALLY:

November 29, 2005

On appeal from sentence imposed by Justice Michael Quigley of the Superior Court of Justice dated January 21, 2005.

E N D O R S E M E N T

[1] The twenty-year passage of time from when these offences occurred was a factor to be taken into account in fixing where on the range suggested in R. v. D.(D.) (2002), 58 O.R. (3d) 788 (Ont. C.A.) the sentence should be imposed. It was not however an exceptional circumstance to take the case out of the range. The range for offences involving persistent sexual abuse of children for a long period of time with intercourse and physical violence requires sentencing in the “upper single digit low double digit penitentiary term.” This means a range of eight to fourteen years.

[2] The respondent subjected his children to a reign of terror. He not only sexually assaulted one child and repeatedly raped another child, but beat and humiliated the children and threatened them with a loaded firearm. The victim impact statements demonstrate the tragic consequences of this conduct.

[3] The sentence imposed was manifestly inadequate. The trial judge also erred in principle in giving the respondent credit for the delay in sentencing. The respondent was on bail and not under onerous conditions.

[4] In our view, the appropriate sentence is nine years imprisonment. Accordingly, leave to appeal sentence is granted, the appeal is allowed and the sentence on Count No. 10 is increased to five years imprisonment, on Count No. 7 increased to 3 years imprisonment consecutive, and on Count No. 3 increased to one year imprisonment consecutive. The other concurrent sentences imposed by the trial judge will stand.

Signed: “M. Rosenberg J.A.”

“S.T. Goudge J.A.”

“Janet Simmons J.A.”