Her Majesty the Queen v. R.W.E. [Indexed as: R. v. E. (R.W.)]

86 O.R. (3d) 493

Court of Appeal for Ontario,

Weiler, Feldman and Juriansz JJ.A.

June 25, 2007

Criminal law -- Sentencing -- Joint submission -- Accused pleading guilty to sexual offences against his sisters committed between 1970 and 1981 and to sexual offences against daughter of woman with whom he was living committed between 1995 and 2002 -- Former offences including oral sex and attempted vaginal intercourse and latter offences including vaginal and anal intercourse, threats of violence and actual violence -- Trial judge rejecting joint submission for sentence in range of seven to ten years and imposing sentence of 14[cents] years less pre-trial custody -- Trial judge articulating correct test for departing from joint submission but erring in failing to give effect to accused's guilty plea -- Sentence being varied to ten years' imprisonment -- Trial judge erring in holding that D. (D.) mandated sentence of more than ten years regardless of guilty plea -- Bottom of sentencing range proposed, seven years, so low as to be contrary to public interest -- Ten years, top end of joint submission, lenient but not so low as to require its rejection -- Sentence appeal allowed and global sentence of ten years imposed less credit for pre-trial custody.

The accused pleaded guilty to sexual offences against his two sisters, which were committed between 1970 and 1981, and sexual offences against Q, the daughter of a woman with whom he was living, which were committed between 1995 and 2002. The accused was eight years older than his sisters. The offences against his sisters started when they were five or six years old, and included almost daily acts of fondling, masturbation, oral sex and attempted vaginal intercourse. The assaults on Q began when she was between four and six years old. They included acts of fellatio and vaginal and anal intercourse, and were often accompanied by threats. On one occasion, the accused threatened to slit Q's throat; on another, he cut her arm with a knife. The accused also pleaded guilty to production of child pornography, stemming from taking a Polaroid photo during an assault on Q. He also admitted to taking other photographs of Q and to videotaping her while she performed oral sex on him. Finally, he pleaded guilty to possession of child pornography. There was a joint submission for a sentence in the range of seven to ten years, less pre-trial custody. The trial judge indicated that he had concerns about the joint submission, and gave counsel a chance to make further submissions. Ultimately, while acknowledging that joint submissions are entitled to a great deal of deference, he found that the joint submission amounted to "an error in principle". He imposed a global sentence of 14[cents] years, reduced to 12 years' imprisonment after the accused was given 30 months' credit for 15 months' pre-trial custody. The accused appealed.

Held, the appeal should be allowed.

A sentencing judge should not reject a joint submission unless it is contrary to the public interest and the sentence would bring the administration of justice into disrepute. The trial judge's statement that the joint submission was an "error in principle" meant that the proposed sentence was so far outside the range that it demanded rejection and that an appellate court would find it to be manifestly unfit. While he did not specifically address the question of whether it would be contrary to the public interest or bring the administration of justice into disrepute [page494] if effect was given to the joint submission, a sentence that is manifestly unfit meets that test. The trial judge's reasons reflected a conscientious attempt to comply with the requirements for departing from a joint submission. However, he failed to accord sufficient weight to the accused's guilty plea, including his expression of remorse, and the consequence that the complainants were saved the ordeal of testifying at trial. That failure infused his view that the appropriate sentence lay well outside the joint submission. In addition, the trial judge erred in holding that this court's decision in D. (D.) mandated a sentence of more than ten years' imprisonment even if an offender pleads guilty. The lower end of the proposed range of sentence, seven years, is so low as to bring the administration of justice into disrepute. However, given the plea of guilty, although ten years was at the low end of the appropriate range, it is not so low as to require the rejection of the joint submission. Accordingly, leave to appeal is granted and the global sentence of imprisonment is varied to ten years, less credit for pre- trial custody.

APPEAL by the accused from a sentence imposed on June 22, 2005 by Whetung J. of the Ontario Court of Justice.

Cases referred to R. v. D. (D.) (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788, [2002] O.J. No. 1061, 163 C.C.C. (3d) 471 (C.A.), consd R. v. Dorsey, 1999 3759 (ON CA), [1999] O.J. No. 2957, 123 O.A.C. 342 (C.A.), distd Other cases referred to R. v. Bezdan, 2001 BCCA 215, [2001] B.C.J. No. 808, 154 B.C.A.C. 122 (C.A.); R. v. C. (G.W.), 2000 ABCA 333, [2000] A.J. No. 1585, 89 Alta. L.R. (3d) 217, [2001] 5 W.W.R. 230, 150 C.C.C. (3d) 513, [2000] ABCA 333; R. v. Cerasuolo, 2001 24172 (ON CA), [2001] O.J. No. 359, 151 C.C.C. (3d) 445 (C.A.); R. v. Chartrand, 1998 17795 (MB CA), [1998] M.J. No. 508, 131 Man. R. (2d) 114, 187 W.A.C. 114, 131 C.C.C. (3d) 122 (C.A.); R. v. Douglas, 2002 32492 (QC CA), [2002] J.Q. no 418, 162 C.C.C. (3d) 37 (C.A.); R. v. Downey, [2006] O.J. No. 1289, 69 W.C.B. (2d) 155 (C.A.); R. v. Druken, 2006 NLCA 67, [2006] N.J. No. 326, 215 C.C.C. (3d) 394 (S.C.(A.D.)); R. v. Guignard, [2005] N.B.J. No. 132, 282 N.B.R. (2d) 346, 738 A.P.R. 346, 195 C.C.C. (3d) 145, 2005 NBCA 35 (C.A.); R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, 194 N.R. 321, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269; R. v. Ramos, [2007] O.J. No. 1779, 2007 ONCA 341; R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52, 129 D.L.R. (4th) 657, 188 N.R. 284, 102 C.C.C. (3d) 193, 43 C.R. (4th) 269; R. v. Stuckless (1998), 1998 7143 (ON CA), 41 O.R. (3d) 103, [1998] O.J. No. 3177, 127 C.C.C. (3d) 225, 17 C.R. (5th) 330 (C.A.); R. v. Tsicos, 2006 33849 (ON CA), [2006] O.J. No. 4041, 216 O.A.C. 104, 71 W.C.B. (2d) 148 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 24, 138(1), 141, 145(5.1), 149, 152, 157, 163.1(2), (4), 170, 264.1(1), 267(2), 271, 272(1), 687(1)

David M. Humphrey, for appellant. Susan Magotiaux, for respondent.

The judgment of the court was delivered by

[1] WEILER J.A.: -- The appellant appeals the custodial portion of his sentence for a series of sexual offences committed against three young complainants to whom he was in a position of trust. Following his pleas of guilty, the sentencing judge sentenced the [page495] appellant to a global sentence of 14 and a half years, reduced to 12 years incarceration by reason of his pre-sentence custody. In imposing the sentence he did, the sentencing judge rejected a joint submission for a sentence in the range of seven to ten years less pre-sentence custody.

[2] The appellant submits that the sentencing judge erred in principle by failing to impose a sentence in the range jointly submitted by the Crown and defence counsel. The appellant further submits that the sentencing judge failed to properly consider the appellant's remorse as expressed by his guilty plea and at the sentencing hearing.

The Facts

[3] The offences took place over two distinct time periods. The first time period involved offences committed while the appellant was a young person between 1970-1975 and then as an adult between 1975-1981. The second time period related to offences the appellant committed as an adult between 1995-2004.

[4] As I have indicated, the three complainants are people towards whom the appellant was in a position of trust. The offences committed from 1970-1981 involved the prolonged, frequent victimization of the appellant's younger twin sisters, S.K. and S.E. They included almost daily acts of fondling, masturbation, oral sex and attempted vaginal intercourse. The appellant was eight years older than his sisters; he started to abuse them when they were five or six years old and he was a teenager. His abuse of them ended only when they became teenagers, threatened him, and left the house in which he resided.

[5] Between 1995 and 2002, the appellant also engaged in the prolonged, regular victimization of A.Q., the daughter of a woman with whom he lived in a relationship. The assaults began when A.Q. was between four and six years old. They included acts of fellatio and vaginal and anal intercourse, and were often accompanied by threats. They occurred on an almost daily basis when A.Q.'s mother was out of the house and only ended when the appellant's relationship with the mother ended. At the time, A.Q.'s mother was not aware of this abuse.

[6] The sexual assaults sometimes included physical violence. On one occasion when A.Q. was seven, she began to scream when the appellant came into her bedroom. The appellant wrapped a towel around her throat and threatened to slit it. On another, he cut A.Q.'s arm with a knife because she would not take her clothes off. That cut left permanent scars on her bicep. A.Q. was afraid to tell anyone about the assaults because she thought that the appellant would kill her if she did so. [page496]

[7] The count relating to the production of child pornography stemmed from a Polaroid photo taken by the appellant during an assault on A.Q. The appellant also admitted to taking other photographs of her and to videotaping her while she performed oral sex on him.

[8] Finally, the appellant pleaded guilty to a separate count of possession of child pornography. 170 digital images were found on the appellant's computers in a search executed by the police. In addition, the police uncovered one box containing magazines and other child pornography materials, including the photo of A.Q.

[9] Criminal harassment charges in relation to the appellant's son were withdrawn as part of the plea agreement. Prior to this, the appellant had signed an undertaking that prohibited him from contacting his son, [D.E.], and had breached it on two occasions, once in person, and once via an internet chat room. He pled guilty to these two breaches of his recognizance.

The Sentencing Hearing

[10] All of the complainants filed victim impact statements with the court at the sentencing, as did the mother of A.Q. No other evidence was tendered by the Crown. The appellant did not tender any evidence at the sentencing hearing. No psychological report or pre-sentence report was filed.

[11] Counsel for the Crown presented the joint submission at the hearing. He sought a sentence at the high end of the seven to ten-year range, submitting that the assaults against the three separate victims each called for a separate and distinct sentence. He submitted that the more recent offences against A.Q. were the most serious and deserved a sentence in excess of five years. This sentence was to be in addition to consecutive sentences with respect to the assaults against the appellant's sisters, the suggested length of which the Crown did not enumerate, and 18 months for the two child pornography offences.

[12] During the Crown's submissions, the sentencing judge indicated that he had concerns with the joint submission in that the cases and arguments advanced by the Crown appeared to the sentencing judge to justify longer total terms than that proposed. In particular, the sentencing judge opined that, in accordance with R. v. D. (D.) (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788, [2002] O.J. No. 1061, 163 C.C.C. (3d) 471 (C.A.), he would be unable to apportion terms that adequately reflected the severity of the appellant's different offences while remaining within the range proposed by counsel. His concern was that: [page497]

. . . if I accede to the Crown position of a sentence in the range of five years for the sexual assault matters, including a sexual assault with a weapon upon A.Q., of a five year sentence and then 18 months. . . for the production and possession of child pornography, then that only leaves, within the range, a total of three and one-half years to deal with all matters involving [the sisters] and, in fairness, the two breaches . . . don't I run the risk of, in comparison, trivializing the matters involving [the sisters] . . . if that's the way [the] sentence is to be structured?

[13] The Crown indicated that the joint submission was based on the appellant pleading guilty to the multiple offences and informations and saving all parties from the emotional effects of a trial. In response to further submissions by the Crown, the sentencing judge reiterated his concern:

. . . if, within the range provided, I'd break out the offences individually as suggested then, for some of the victims, the numbers aren't big and they can't of necessity be big if I operate within the range absent a global disposition because then there simply . . . aren't enough years involved to apportion the . . . sentence in a way that the numbers -- that some of the numbers have a significance.

[14] Defence counsel emphasized that the appellant was a young person when the offences began and that the early offences against his sisters did not involve full intercourse. The appellant had only one prior unrelated offence on his criminal record, had completed high school and a college program and had held various jobs. He was 48 years old at the time of sentencing.

[15] Defence counsel did not take a specific position as to which part of the agreed upon range was appropriate. He indicated to the sentencing judge that the joint position was the product of lengthy discussions between himself and both the Crown Attorney's Office and the investigating police officer. He addressed the judge's concern about the totality of the proposed sentence by emphasizing the fact that the appellant had pleaded guilty to all charges, a considerably mitigating factor to which he hoped the sentencing judge would give a "a great deal of credit". His position was that, regardless of what end of the agreed upon range the sentencing judge determined appropriate, the sentence would be substantial enough to give effect to the relevant sentencing principles.

[16] After the submissions of counsel, the sentencing judge asked the appellant if he would like to speak. The appellant said he was really sorry for what he had done and that it was "very disgusting and personal that I took advantage of people and the trust". In response to these comments the sentencing judge asked the appellant when he came to this realization. He replied that it was when he lost his relationship with his son. The sentencing judge clarified that the appellant had received a letter from one of [page498] his first victims explaining the horrible consequences that his sexual molestation had caused in her life before beginning the relationship with A.Q.'s mother, and that the appellant had written a response saying that he realized at that time that he had hurt people. The sentencing judge indicated he did not understand how the appellant could go on to violently and persistently sexually assault A.Q. after this but say that he only gained insight into the offending behaviour when his relationship with his son faltered.

The Reasons for Sentence

[17] The sentencing judge identified general and specific deterrence as relevant sentencing principles. He noted that sexual offences against children always require a sentence that contemplates general deterrence. He determined that there was a need for specific deterrence here in light of the fact that the appellant had been informed of the impact of his earlier assaults on his sisters but he had nonetheless "re-offended" 13 years later. The sentencing judge also considered the fact that his sentence must contemplate rehabilitation. He identified the appellant's guilty plea as the lone mitigating factor and noted the aggravating factors -- the age of the victims, the persistent and ongoing nature of the abuse, the extreme nature of the assaults, and the fact that each involved breaches of trust.

[18] The sentencing judge then turned to the joint submission. The sentencing judge accepted the joint position of 2:1 credit for the 15 months the appellant had spent in pre- sentence custody but did not accede to the agreed upon range of seven to ten years.

[19] In rejecting the joint submission, the sentencing judge made the following comments:

This matter was not judicially pre-tried and, prior to the pleas being entered no discussions were held with a judicial officer about disposition. Other than what was said in open court, the only discussions had with counsel off the record were in chambers before the return to court following the lunch recess. At that time, the discussion primarily dealt with the procedural aspect of Youth Criminal Justice Act matters and how they would be dealt with by way of amendments to the existing Information and new Informations being laid.

It was disclosed to me at that time the nature of the joint submission as well as the Crown and defence position of two- for-one time for pre-sentence custody. Prior to the pleas being entered, there were no discussions with the judicial officer about the efficacy of the joint submission.

Joint submissions are to be granted a great deal of deference by sentencing judges. The joint submission placed before me is for a range of seven to ten years in custody. A sentencing judge is only entitled to reject a joint submission if it is an error in principle. A great number of joint submissions deal with matters that are the usual sort of charges that courts often see. [page499]

The present matter is, in my opinion, not within that sort of offence, or offences, and is extremely unusual. It involves, at the completion of this matter, in addition to the Youth Court matters which I've already dealt with, pleas to a total of 19 offences covering a chronological period from January 1st 1970 to March 22nd, 2004 with a hiatus of charges from July 30th, 1981 to January 1st, 1995.

I appreciate that a joint submission is placed before me by extremely experienced counsel in this matter but I am, on a very fundamental level, deeply troubled by the joint submission and I'm deeply troubled by it for a number of reasons.

While I am troubled by it, I am essentially bound by it unless it is an error in principle and, in my opinion, with a great deal of regret, I am obliged to advise both Crown and defence in this matter that I am of the opinion that the joint submission is an error in principle and, in my opinion, not in accordance with sentencing guidelines established by the Ontario Court of Appeal.

(Emphasis added)

[20] Referring to R. v. D. (D.), supra, he explained how this court has set a range of upper single digit to low double digit penitentiary terms for abuse of children by adults in positions of trust involving full intercourse on a regular and consistent basis over substantial periods of time, accompanied by violence or threats of violence.

[21] He determined that in these circumstances, the sexual assault of A.Q. standing alone fell within the guidelines, involving as it did threats and the use of a weapon in addition to the frequency, duration and seriousness of the assaults. For this he imposed a sentence of 11 years in custody in addition to 2:1 credit for 15 months pre-sentence custody. He stated, "That essentially amounts to the rough equivalent of a maximum sentence." On the count of production of child pornography for making the videotape of A.Q. being forced to perform oral sex, he sentenced the appellant to one year to be served consecutively. The sentences he imposed relating to the other victims ranged from five to seven and one-half years and were imposed concurrently, as were the six-month sentences for each breach of an undertaking. The total sentence was effectively a 14-year sentence.

Did the trial judge apply the wrong test in rejecting the joint submission?

[22] It is trite law that a sentencing judge is not bound to accept a joint submission. It is well-settled, however, that a judge should not reject a joint submission unless it is contrary to the public interest and the sentence would bring the administration of justice into disrepute: R. v. Cerasuolo, 2001 24172 (ON CA), [2001] O.J. No. 359, 151 C.C.C. (3d) 445 (C.A.); R. v. Dorsey, 1999 3759 (ON CA), [1999] O.J. No. 2957, 123 O.A.C. 342 (C.A.). [page500]

[23] A sentencing judge must also explain and justify a departure from a joint submission. In R. v. Cerasuolo, supra, Finlayson J.A. held at para. 9:

While we cannot over emphasize that these agreements are not to fetter the independent evaluation of the sentences proposed, there is no interference with the judicial independence of the sentencing judge in requiring him or her to explain in what way a particular joint submission is contrary to the public interest and would bring the administration of justice into disrepute.

[24] Provided, though, that a sentencing judge effectively considers the public interest and whether a departure from the joint submission would bring the administration of justice into disrepute, the sentencing judge need not specifically use those words: R. v. Ramos, [2007] O.J. No. 1779, 2007 ONCA 341. This conclusion accords with the jurisprudence from other provinces.

[25] In R. v. Douglas, 2002 32492 (QC CA), [2002] J.Q. no 418, 162 C.C.C. (3d) 37 (C.A.), Fish J.A., as he then was, compared the requisite test in Ontario, which originated in the Martin Report, to the prevailing standards in other provinces that seem to provide a sentencing judge with more leeway in rejecting a joint submission. He concluded that the standard in Ontario is not at variance with those that operate in other provinces. He explained at para. 51 that:

. . . a reasonable joint submission cannot be said to "bring the administration of justice into disrepute". An unreasonable joint submission, on the other hand, is surely "contrary to the public interest". Accordingly, though it is purposively framed in striking and evocative terms, I do not believe that the Ontario standard departs substantially from the test of reasonableness articulated by other courts, including our own. . . . Their shared conceptual foundation is that the interests of justice are well served by the acceptance of a joint submission on sentence accompanied by a negotiated plea of guilty -- provided, of course, that the sentence jointly proposed falls within the acceptable range and the plea is warranted by the facts admitted.

[26] The New Brunswick Court of Appeal recently endorsed the views of Fish J.A. in Douglas, supra, in R. v. Guignard, 2005 NBCA 35, [2005] N.B.J. No. 132, 195 C.C.C. (3d) 145 (C.A.).

[27] The British Columbia Court of Appeal has suggested that the standard in Ontario is not exhaustive. In R. v. Bezdan, 2001 BCCA 215, [2001] B.C.J. No. 808, 154 B.C.A.C. 122 (C.A.), after considering how a departure is justified when the proposed sentence is contrary to the public interest and would bring the administration of justice into disrepute, Prowse J.A. stated [at para. 15]: "It is not clear to me that these two circumstances cover all situations in which a sentencing judge might conclude that the sentence proposed was 'unfit'."

[28] The comment by Prowse J.A. refers to the standard of appellate review of sentencing decisions generally that has been [page501] set out by the Supreme Court of Canada in R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, 105 C.C.C. (3d) 327, at p. 565 S.C.R., p. 374 C.C.C.:

[A]bsent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

[29] Similarly, in R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52, 102 C.C.C. (3d) 193, in reviewing the fitness of a sentence under s. 687(1) [of the Criminal Code, R.S.C. 1985, c. C-46], Iacobucci J. held at para. 46 that:

A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable.

[30] In Alberta, the Court of Appeal requires that joint submissions be accepted by the trial judge unless they are "unfit" or "unreasonable": R. v. C. (G.W.), 2000 ABCA 333, [2000] A.J. No. 1585, 150 C.C.C. (3d) 513 (C.A.). Also, in R. v. Chartrand, 1998 17795 (MB CA), [1998] M.J. No. 508, 131 C.C.C. (3d) 122 (C.A.), the Manitoba Court of Appeal cautioned at para. 9 that "where a joint submission has been made between competent counsel which is not so unfit that it demands rejection, then that recommendation should not be ignored" (emphasis added). More recently, in Ontario, in R. v. Downey, [2006] O.J. No. 1289, 69 W.C.B. (2d) 155 (C.A.) at para. 5, this court agreed with the sentencing judge's assessment that the joint submission in question was low but was not satisfied that "the proposed sentence was so low that it would bring the administration of justice into disrepute" (emphasis added). As the sentencing judge had not addressed how the joint submission would bring the administration of justice into disrepute, the court concluded that he erred in principle in rejecting the joint submission.

[31] Here, the trial judge held that an appropriate sentence lay "outside the range of sentence suggested to me" and he used the term "error in principle" in rejecting the joint submission. I take his comment to mean that, on his interpretation of D. (D.), the proposed sentence was so far outside the range that it demanded rejection and that an appellate court would find the sentence to be manifestly inadequate. While the sentencing judge did not specifically address the question of whether it would be contrary to the public interest or bring the administration of justice into disrepute if effect was given to the joint submission, a sentence that is manifestly inadequate meets that test. I would not interfere with the exercise of the sentencing judge's discretion [page502] simply because he failed to articulate the requisite words in rejecting the joint submission.

Did the sentencing judge otherwise err in rejecting the joint submission?

[32] The Crown's position is that, while the sentence imposed significantly exceeded the joint submission, it was within the appropriate range and the sentencing judge carefully explained his reasons for departing from the joint submission. Consequently, there is no basis on which to interfere with the sentence imposed.

[33] This court's recent decision in R. v. Tsicos, 2006 33849 (ON CA), [2006] O.J. No. 4041, 216 O.A.C. 104 (C.A.), mentions a number of factors that a sentencing judge should consider in rejecting a joint submission. After explaining why the joint submission is contrary to the public interest or how it could bring the administration of justice into disrepute, it suggests that a court should acknowledge the high threshold for rejecting a joint submission; inform counsel that the court is disinclined to accept a joint submission and afford them the opportunity to make submissions on the matter; and, if imposing a different sentence, a court must fully consider the circumstances of these offences and this offender in determining a fit sentence.

[34] The sentencing judge's reasons reflect a conscientious attempt to comply with the requirements for departing from a joint submission. The reasons indicate an awareness of the deference due to a joint submission from experienced counsel and that the submission required serious consideration. The reasons make specific reference to the process leading up to the joint submission, namely, that there had been no pre-trial but a general discussion in the sentencing judge's chambers where he was apprised in a general way of the nature of the case. During the Crown's submissions, the court indicated that it was having trouble accepting the proposed range.

[35] While the sentencing judge did not offer the appellant an opportunity to make submissions as to whether his plea should be withdrawn, or suggest that a full pre-trial might be of assistance, neither the Crown nor defence suggested that he do so. It is important to note, however, that the sentencing judge gave both the Crown and the defence the opportunity, of which they availed themselves, to make further submissions.

[36] The reasons also indicate what the joint submission was on sentencing and give the sentencing judge's reasons for departing from the joint submission. [page503]

[37] The appellant submits that the sentencing judge erred in concluding that a higher sentence was mandated by this court's decision in R. v. D. (D.). As part of this submission, the appellant argues that the sentencing judge failed to give appropriate weight to the appellant's plea of guilty and expression of remorse. I agree with this submission.

[38] In sentencing the appellant as he did, the sentencing judge cited D. (D.), supra, as his authority for imposing a sentence that was four and a half years higher than the joint submission, stating as follows:

I note that the Court of Appeal makes no mention of mitigation of pleas of guilty as opposed to matters from trial issues. They simply establish these guidelines.

[39] Although earlier in his reasons the sentencing judge explicitly recognized the ". . . mitigation to be attached to the plea of guilty", the comment cited above appears to indicate that he was of the opinion that the ranges in D. (D.) applied regardless of whether the accused has pled guilty. Instead, in D. (D.) at paras. 26-27, Moldaver J.A. distinguished the situation from that in R. v. Stuckless (1998), 1998 7143 (ON CA), 41 O.R. (3d) 103, [1998] O.J. No. 3177, 127 C.C.C. (3d) 225 (C.A.), in part on the basis that in Stuckless the accused waived his preliminary hearing and pled guilty. Moldaver J.A.'s comments as to the ranges of sentence were made in the context of rejecting the submission that Stuckless represented the high-water mark for sentences imposed on adult sex offenders who prey on young children and that a sentence no higher than six years should be imposed, as opposed to the global sentence of nine years and one month that the appellant received in D. (D.). [See Note 1 below]

[40] The authorities of this court and other courts make it clear that the sentencing of an accused is dependent upon the individual circumstances of the accused and the offence committed. Here, in return for the Crown's agreement to make a joint submission as to the range of sentence before the sentencing judge, the appellant gave up his right to a trial and pleaded guilty. His plea of guilty spared his victims the horror of reliving their ordeal by having to testify. As recently explained in R. v. Druken, 2006 NLCA 67, [2006] N.J. No. 326, 215 C.C.C. (3d) 394 (S.C.(A.D.)), at para. 19, the assessment of the reasonableness of a proposed sentence must take into account the incentive that is necessary for the accused to plead guilty, which requires some adjustment down from the [page504] normal range of sentence to account for the accused's decision to forgo his right to trial.

[41] Further, unlike the situation in R. v. Dorsey, supra, in this case the appellant did not have a prior criminal record of significance and had not served any prior lengthy period of incarceration. Despite never having been adjudged guilty of the first set of sexual offences, the sentencing judge appears to have considered the appellant to be a repeat offender because of the gap between the first and second set of offences and because of the letter he had received from one of his sisters after the first set of offences. Nor does he appear to credit the appellant's expression of remorse as being sincere.

[42] In D. (D.), the offences involved repeated and persistent acts of anal intercourse with young children over a seven-year period together with the use of violence and death threats to gain compliance and to maintain secrecy. They also involved deceit to gain the trust and confidence of the children's parents and the use of corruptive means to groom the children, including exposing them to pornography. The appellant did not give up his right to a trial and it was only at the sentencing hearing that an agreed statement of facts was reached in which he admitted culpability for the offences. The global sentence of nine years, which the court upheld, was considered to be at the low end of the range having regard to the seriousness of the crimes and the harm caused to the victims.

[43] In this case, the cumulative period is almost 20 years. The appellant's gross breach of trust involved a series of reprehensible assaults against his powerless young sisters, anal and vaginal intercourse with A.Q. accompanied by physical violence and threats, and the humiliation and degradation of having oral sex with him captured on a photograph and on videotape. Having regard to the moral culpability of the appellant and the serious nature of these offences, I would hold that the lower end of the joint submission, namely, seven years, was so low as to be contrary to the public interest and to bring the administration of justice into disrepute. The upper end of the range suggested, namely, ten years, while at the low end of the range, is not, however, so low as to demand rejection when the appellant's guilty plea is given appropriate weight.

[44] To summarize, while I would not set aside the sentence on the basis of the sentencing judge's articulation of the standard to be applied to a joint submission, I would hold that, in the circumstances, the sentencing judge erred in the application of that standard. He failed to accord sufficient weight to the appellant's guilty plea, including his expression of remorse and [page505] importantly, the consequence that the complainants were saved the ordeal of testifying at trial. That failure infused his view that the appropriate sentence lay well outside the top of the joint submission. Consequently he erred in rejecting the joint submission.

[45] Accordingly, I would allow the appeal as to the custodial portion of the sentence imposed, set it aside and impose a global sentence of ten years less pre-trial custody. The circumstances require that the sentences imposed with respect to the two sets of offences be consecutive. At the same time, consecutive sentences for multiple offences should not exceed the overall culpability of the offender. R. v. M. (C.A.), supra. At the time the appellant began assaulting his sisters he was a Young Offender and the sentences imposed require me to take into account his age and level of development. As a result I would impose the sentences indicated in the chart below:

[QL:GRAPHIC NAME="86OR3d493-1.jpg"/]

Appeal allowed.

[page508]

Notes ----------------

Note 1: This sentence imposed was eight years and one month to take [into] account the time spent by the appellant in pre-sentence custody.