Her Majesty the Queen v. McGregor

[Indexed as: R. v. McGregor]

94 O.R. (3d) 500

Court of Appeal for Ontario,

Simmons, Cronk and Watt JJ.A.

December 8, 2008

Criminal law -- Sentencing -- Conditional sentence -- Accused being convicted of aggravated sexual assault following trial -- HIV-positive accused having sexual relationship with complainant for 18 months without informing her of his HIV- positive status -- Accused having sexual intercourse with complainant on two occasions without using condom -- Accused convicted of aggravated sexual assault -- Trial judge erring in imposing one-year conditional sentence -- Trial judge failing to appreciate that as accused's non-disclosure vitiated consent, accused engaging in lengthy pattern of non-consensual acts with unwitting complainant and that as intimate relationship for lengthy period, accused's conduct amounting to grave breach of trust -- Aggravated sexual assault involving non-disclosure of HIV-positive status generally requiring custodial term of imprisonment -- Sentence imposed by trial judge being outside range of established sentences imposed on similar offenders for similar offences -- Acccused having served six months of conditional sentence at time of appeal and being entitled to one for one credit for portion of sentence served -- Sentence being varied to 12 months' incarceration followed by three years' probation.

The accused dated the complainant and had a sexual relationship with the complainant for 18 months without telling her that he was HIV-positive. While he usually used a condom, he had unprotected sexual intercourse with her on two occasions. The accused was 34 at the time of trial and was diagnosed as being HIV-positive when he was 19 years old. The accused was convicted after a trial of aggravated sexual assault. He had no criminal record, had been on bail without incident and was considered by the author of his pre-sentence report to be a suitable candidate for community supervision. At the time of sentencing, the complainant had not tested positive for HIV. The trial judge imposed a one-year conditional sentence, with strict house arrest, followed by three years' probation. The Crown appealed.

Held, the appeal should be allowed.

The offence was very serious. The accused did not tell the complainant that he was HIV-positive even after having unprotected sexual intercourse with her. The accused was told by a public health nurse several times, including during the period he dated the complainant, that he had to disclose his HIV status to all sexual partners and that he had to wear a condom each time he had sex. While the accused did not occupy a traditional position of trust in relation to the complainant, he breached the element of trust that formed the basis of his intimate relationship with her. The accused's failure to disclose that he had HIV vitiated the complainant's consent to sexual intercourse with him. The trial judge erred in making no mention of the accused's continuing grave breach of trust and the non-consensual nature of the sexual acts in question. While the authorities reflect a wide range of sentences in cases involving sexual intercourse and the non-disclosure of HIV- positive status, absent a guilty plea or a joint submission on sentencing, the sentences imposed involve actual incarceration of some duration except in a few cases in which there had been a joint submission following a guilty plea. [page501] The sentence imposed by the trial judge was outside the range of established sentences imposed on similar offenders for similar offences and was demonstrably unfit. The trial Judge correctly noted the absence of violence or predatory conduct and the accused's prior good character, factors which supported the imposition of a sentence at the lower end of the appropriate range. The appropriate sentence was 18 months' incarceration followed by three years' probation. The accused was given six months' credit for time served both prior to sentencing (four days) and under his conditional sentence (approximately six months), and was sentenced to 12 months' incarceration followed by three years' probation.

APPEAL by the Crown from the sentence of Stewart J. of the Superior Court of Justice dated May 16, 2008 for aggravated sexual assault.

Cases referred to R. v. Lamirande, [2006] M.J. No. 223, 2006 MBCA 71, [2007] 1 W.W.R. 389, 205 Man. R. (2d) 245, 211 C.C.C. (3d) 350, 70 W.C.B. (2d) 341; R. v. M. (J.), [2005] O.J. No. 5649 (S.C.J.), distd Other cases referred to R. v. Cuerrier, 1998 796 (SCC), [1998] 2 S.C.R. 371, [1998] S.C.J. No. 64, 162 D.L.R. (4th) 513, 229 N.R. 279, [1999] 4 W.W.R. 1, 111 B.C.A.C. 1, 57 B.C.L.R. (3d) 42, 127 C.C.C. (3d) 1, 18 C.R. (5th) 1, 39 W.C.B. (2d) 321; R. v. F. (G.C.) (2004), 2004 4771 (ON CA), 71 O.R. (3d) 771, [2004] O.J. No. 3177, 189 O.A.C. 29, 188 C.C.C. (3d) 68, 62 W.C.B. (2d) 492 (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, J.E. 96-671, 73 B.C.A.C. 81, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269, 30 W.C.B. (2d) 200; R. v. Proulx, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, 2000 SCC 5, 182 D.L.R. (4th) 1, 249 N.R. 201, [2000] 4 W.W.R. 21, J.E. 2000-264, 142 Man. R. (2d) 161, 140 C.C.C. (3d) 449, 30 C.R. (5th) 1, 49 M.V.R. (3d) 163, 44 W.C.B. (2d) 479; 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, J.E. 95-2139, 65 B.C.A.C. 37, 102 C.C.C. (3d) 193, 43 C.R. (4th) 269, 28 W.C.B. (2d) 516; R. v. T. (K.) (2008), 89 O.R. (3d) 99, [2008] O.J. No. 460, 2008 ONCA 91, 233 O.A.C. 265, 229 C.C.C. (3d) 331, 76 W.C.B. (2d) 721; R. v. Wells, [2000] 1 S.C.R. 207, [2000] S.C.J. No. 11, 2000 SCC 10, 182 D.L.R. (4th) 257, 250 N.R. 364, [2000] 3 W.W.R. 613, J.E. 2000-414, 250 A.R. 273, 141 C.C.C. (3d) 368, [2000] 2 C.N.L.R. 274, 30 C.R. (5th) 254, 45 W.C.B. (2d) 80; R. v. Williams, [2006] O.J. No. 5037, 2006 ONCJ 484, 73 W.C.B. (2d) 209; R. v. Wismayer (1997), 1997 3294 (ON CA), 33 O.R. (3d) 225, [1997] O.J. No. 1380, 99 O.A.C. 161, 115 C.C.C. (3d) 18, 5 C.R. (5th) 248, 34 W.C.B. (2d) 250 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 490.012, 718 [as am.], 718.01, 718.1 [as am.], 718.2 [as am.], (a)(iii) [as am.], (b) [as am.], 742.1 [as am.] Sex Offender Information Registration Act, S.C. 2004, c. 10

Mary-Ellen Hurman, for appellant. Anthony Moustacalis, for respondent.

The judgment of the court was delivered by

[1] CRONK J.A.: -- The respondent, Roger McGregor, was convicted of one count of aggravated sexual assault arising from two instances of unprotected sexual intercourse with his girlfriend, [page502] M.M., at a time when, unbeknownst to M.M., the respondent was HIV-positive. He was sentenced to a one-year conditional sentence to be served in the community on terms of strict house arrest, followed by three years' probation. The Crown seeks leave to appeal sentence and, if leave be granted, appeals against sentence.

[2] The Crown argues that the sentencing judge erred: (i) by imposing a sentence that fails to reflect the gravity of the offence and which is manifestly unfit; (ii) by failing to adhere to the range of sentences established in similar cases; and (iii) by failing to impose a sentence that gives proper effect to the principles of general deterrence and denunciation.

[3] For the reasons that follow, I conclude that the sentencing judge erred in her approach to sentencing and that the sentence imposed is demonstrably unfit. Accordingly, I would grant leave to appeal sentence, set aside the conditional sentence imposed by the sentencing judge and substitute in its stead a custodial sentence of one-year imprisonment, followed by three years' probation.

I. Facts

[4] At the time of trial, the respondent was 34 years of age. When he was 19 years old, he was diagnosed HIV-positive. To date, he has not developed any symptoms of AIDS.

[5] Following his diagnosis, the respondent received medical treatment. On several occasions, including in December 2004 when his relationship with M.M. was in progress, he was warned by a public health nurse of his obligation to inform all prospective sexual partners of his HIV-positive status and instructed to always use a condom when he engaged in sexual intercourse.

[6] The respondent and M.M. were involved in a relationship from the fall of 2004 until the spring of 2006. During this period, they saw each other almost daily and frequently engaged in sexual intercourse.

[7] Although the respondent was usually careful to use a condom when having intercourse with M.M., on two occasions he failed to use a condom or any other means of protection against the transmittal of sexually communicable diseases. These two instances of unprotected sexual intercourse with M.M. gave rise to the predicate offence.

[8] At no time during their relationship did the respondent disclose to M.M. that he was HIV-positive.

[9] Instead, M.M. discovered the respondent's HIV-positive status by accident, when she found a medication information sheet on the respondent's dresser in his bedroom. She took the information sheet to a pharmacist and inquired about the purpose of the [page503] medication. She was informed by the pharmacist that the drug in question was used to treat HIV. M.M. immediately confronted the respondent with this alarming information and an altercation ensued. Shortly thereafter, the relationship between the respondent and M.M. came to an abrupt halt.

[10] M.M. consulted her family physician and underwent a series of tests to determine whether she had contracted HIV. Understandably, this was a period of great stress and anxiety for M.M. Fortunately, to date, she has not tested positive for HIV.

II. The Charges and the Trial

[11] The respondent was charged with one count each of aggravated sexual assault, assault and unlawful confinement. The latter two charges related to the altercation that occurred between the respondent and M.M. when M.M. learned that the respondent was HIV-positive.

[12] On February 22, 2008, after a four-day trial, the respondent was found guilty of aggravated sexual assault. He was acquitted of the remaining two charges. On May 16, 2008, the respondent was sentenced to a one-year conditional sentence, subject to terms of strict house arrest, plus three years' probation. The sentencing judge also granted a DNA database order against the respondent and ordered that he comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 pursuant to s. 490.012 of the Criminal Code, R.S.C. 1985, c. C-46 (the "Code").

III. The Sentencing Judge's Decision

[13] At the sentencing hearing, the Crown argued that the respondent's conduct was wanton, reckless, self-indulgent, calculated, cavalier, wilful and deliberate. In light of this conduct, the Crown submitted that a sentence of two years' imprisonment, followed by three years' probation, was appropriate.

[14] The defence submitted that a three to six-months' conditional sentence, followed by 18 months' probation, was a fit sentence. In support of this submission, the defence emphasized that the respondent has no prior criminal record; that unprotected sexual intercourse between the respondent and M.M. occurred on only two occasions; that no force or violence was employed; and that there was no evidence of any pattern of sexual aggression by the respondent. The defence also argued that the acts in question were neither planned nor deliberate and stressed that the respondent himself is the victim of a horrendous disease with which he must contend on a daily basis. [page504]

[15] The sentencing judge was alert to the serious nature of the offence. She held that the respondent had been deceitful, that he had deliberately failed to tell M.M. about his HIV- positive status, that his failure to use protection during intercourse on the two occasions at issue "would expose his partner to the risk of a death sentence by this pernicious disease", and that it was "only by great good fortune" that M.M. was spared HIV.

[16] However, the sentencing judge also accepted many aspects of the defence characterization of the respondent's conduct. In particular, she distinguished this case from those cases in which jail terms have been imposed on offenders for engaging in sexual intercourse without disclosing their HIV-positive status to their unsuspecting partners. In the trial judge's view, those cases differ from this case because they involved one or more of the following factors: (i) cavalier, callous, wanton, predatory or uncaring conduct by the offender; (ii) more than one victim; (iii) the victims contracted HIV; and (iv) conduct by the offender that was "calculated solely to obtain sexual partners and to satisfy sexual appetites regardless of the risk or cost to others".

[17] The sentencing judge also noted as other mitigating factors: (i) the absence of any specific planning or deliberation in the respondent's offence; (ii) the respondent had been on bail pending sentence without incident; (iii) the author of the respondent's pre-sentence report considered him to be a suitable candidate for a term of community supervision; (iv) the chance of the respondent re-offending was low; and (v) M.M. herself, as well as other witnesses, testified as to the respondent's good character.

[18] In the end, having weighed those factors that she regarded as aggravating against those she viewed as mitigating, the sentencing judge concluded:

In my view, a sentence of 12 months to be served in the community under strict conditions, followed by three years' supervised probation, would not pose any risk to public safety, would express to an appropriate degree society's denunciation of this conduct, and would otherwise be in keeping with the fundamental principles of sentencing and justice.

IV. Issues

[19] There are three issues on appeal: (1) Does the sentence imposed give proper effect to the principles of general deterrence and denunciation? (2) Does the sentence imposed fail to reflect the gravity of the respondent's offence, such that it is demonstrably unfit? [page505] (3) Is the sentence imposed outside the established range of sentences for similar offences and similar offenders, with the result that it is demonstrably unfit?

V. Analysis

[20] This appeal must proceed on the basis that the disposition of a sentencing judge attracts a high degree of deference from a reviewing court: R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52, at paras. 46-49. Unless the sentencing judge made an error in principle, failed to consider evidence relevant to sentence, misapprehended a material fact or imposed a sentence that is demonstrably unfit, appellate interference with the sentence imposed is precluded: R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, at para. 90; R. v. T. (K.) (2008), 2008 ONCA 91, 89 O.R. (3d) 99, [2008] O.J. No. 460 (C.A.), at paras. 30-31.

[21] With respect, I conclude that the sentencing judge in this case erred in her approach to sentencing and that the conditional sentence imposed by her is demonstrably unfit. I reach this conclusion for the following reasons.

[22] To begin, it is common ground that at the time of the respondent's sentencing hearing, a conditional sentence of imprisonment was available under s. 742.1 of the Code for the offence of aggravated sexual assault if the statutory prerequisites to such a sentence were met: see, for example, R. v. Wismayer (1997), 1997 3294 (ON CA), 33 O.R. (3d) 225, [1997] O.J. No. 1380 (C.A.). [See Note 1 below]

[23] In this case, the statutory prerequisites to the imposition of a conditional sentence set out under s. 742.1 of the Code were satisfied: (i) no minimum term of imprisonment applies to the offence in question; (ii) the sentence imposed was less than two years' imprisonment; and (iii) the sentencing judge was satisfied that the safety of the community would not be endangered by the respondent serving his sentence in the community.

[24] The controversy, therefore, was whether a conditional sentence would satisfy the fundamental purpose, principles and objectives of sentencing set out in ss. 718 to 718.2 of the Code in the circumstances of this case. The determination of this issue required the sentencing judge to undertake a comprehensive review of those principles and objectives in order to assess, among other matters, whether the respondent should serve his sentence in the community or in jail: [page506] R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, [2000] S.C.J. No. 11, at para. 29; Wismayer, at p. 236 O.R.

Denunciation and deterrence

[25] As the sentencing judge correctly noted, denunciation and deterrence are the primary sentencing objectives in this case. In R. v. Cuerrier, 1998 796 (SCC), [1998] 2 S.C.R. 371, [1998] S.C.J. No. 64, Cory J., writing for a majority of the Supreme Court of Canada, emphasized the importance of denunciation and deterrence in "HIV-assault" cases. He put it this way, at paras. 141-42:

[T]he criminal law does have a role to play both in deterring those infected with HIV from putting the lives of others at risk and in protecting the public from irresponsible individuals who refuse to comply with public health orders to abstain from high-risk activities. . . .

Where public health endeavours fail to provide adequate protection to individuals like the complainants, the criminal law can be effective. It provides a needed measure of protection in the form of deterrence and reflects society's abhorrence of the self-centered recklessness and the callous insensitivity of the actions of the respondent and those who have acted in a similar manner. The risk of infection and death of partners of HIV-positive individuals is a cruel and ever present reality. Indeed the potentially fatal consequences are far more invidious and graver than many other actions prohibited by the Criminal Code. The risks of infection are so devastating that there is a real and urgent need to provide a measure of protection for those in the position of the complainants. If ever there was a place for the deterrence provided by criminal sanctions it is present in these circumstances. It may well have the desired effect of ensuring that there is disclosure of the risk and that appropriate precautions are taken.

[26] In some cases, an appropriately crafted conditional sentence may satisfy the principles of denunciation and deterrence: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, at paras. 102 and 107. However, in Proulx, at para. 106, Lamer C.J.C. pointed out that "there may be certain circumstances in which the need for denunciation [or deterrence] is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct". In other words, the nature of the offence or the circumstances of the offender may require a term of actual incarceration to adequately express society's condemnation of the conduct at issue or to achieve the required deterrent effect. In my opinion, this is such a case.

Gravity of the offence

[27] Section 718.1 of the Code provides that "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." This direction requires that, in fashioning an appropriate sentence, a sentencing judge have [page507] regard to both the seriousness of the offence and the offender's degree of responsibility.

[28] The respondent's crime was very serious. On the sentencing judge's findings, the respondent deliberately refrained from disclosing his HIV-positive status to M.M. for approximately a year and a half, notwithstanding that he knew that he was obliged to do so before engaging in sexual intercourse with her and despite prior explicit warnings to him of his disclosure obligation by public health authorities. In Cuerrier, Cory J. commented, at para. 126, "The possible consequence of engaging in unprotected intercourse with an HIV- positive partner is death. In these circumstances, there can be no basis for distinguishing between lies and a deliberate failure to disclose."

[29] By failing to tell M.M. of his HIV-positive status, the respondent deceived M.M. throughout their entire relationship concerning a medical condition that could expose her to a life- threatening illness. Then, on two separate occasions of unprotected sexual intercourse, when the respondent knew that the risk to M.M. of contracting HIV was heightened by his failure to use a condom, he again blithely failed to tell her that he was HIV-positive. The sentencing judge observed: "There is little to be said that can leaven the gravity of this offence." I agree.

Abuse of trust

[30] Section 718.2(a)(iii) of the Code provides that the abuse of a position of trust in the commission of an offence is an aggravating circumstance on sentencing. The respondent did not occupy a traditional position of trust in relation to M.M. However, any intimate relationship of the type entered into by the respondent with M.M. is based on a certain amount of trust and confidence, at least to the extent that each participant may reasonably expect that he or she will not knowingly be exposed by the other to a dangerous contagious disease: see, for example, Cuerrier, at para. 119.

[31] The respondent was M.M.'s boyfriend. For the full duration of their 18-month relationship, he withheld from M.M. information vital to her health and well-being. On two occasions when a clear and real potential for M.M.'s exposure to HIV existed, the respondent continued his pattern of deception by failing to inform M.M. of his HIV-positive status. In so doing, the respondent breached that element of trust that formed the basis of his relationship with M.M.

[32] The respondent's non-disclosure of his HIV-positive status meant that M.M. was essentially duped, for a prolonged period, into having sexual relations with the respondent. The [page508] respondent's failure to disclose that he had HIV vitiated M.M.'s consent to sexual intercourse with him. In Cuerrier, at para. 127, the Supreme Court of Canada bluntly warned:

Without disclosure of HIV status there cannot be a true consent. The consent cannot simply be to have sexual intercourse. Rather, it must be consent to have intercourse with a partner who is HIV-positive. True consent cannot be given if there has not been a disclosure by the accused of his HIV-positive status. A consent that is not based upon knowledge of the significant relevant factors is not a valid consent.

[33] Viewed in this light, the respondent knowingly engaged in a lengthy pattern of non-consensual sex with M.M., animated throughout by a fundamental breach of trust that culminated in two instances of high-risk unprotected sexual intercourse. Despite her otherwise clear and thorough reasons, the sentencing judge made no mention of the respondent's continuing breach of trust and the non-consensual nature of the sexual acts in question. With respect, this was an error.

[34] I note that the sentencing judge found as a fact that "Had [M.M.] known from the outset about McGregor's HIV status, she never would have engaged, however infrequently it may have been, in unprotected sexual intercourse." One might also ask whether, if she had known that the respondent was HIV- positive, M.M. would have engaged in sexual intercourse with him at all: condoms sometimes fail. That choice, which was hers to make, was denied to M.M. by the respondent's deliberate decision to ignore his obligation to disclose his HIV-positive status to her.

Appropriate range of sentence

[35] Section 718.2(b) of the Code obliges a sentencing judge to take into consideration that "[a] sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances".

[36] The sentencing judge adverted to the fact that "[T]here is a significant range of sentences in cases involving HIV- unprotected intercourse. The range suggested in the cases cited . . . ran from one to eleven years of incarceration [citation omitted]" The sentencing judge also stated:

[T]he authorities would tend to indicate that a period of incarceration for an offence of this nature is generally considered to be required to afford protection to the public and to demonstrate society's condemnation of such conduct. Nevertheless, there is no appellate authority in Ontario that would mandate a necessary or automatic term of incarceration in any and every case of conviction for aggravated sexual assault; each case must be approached on its own factual footing. (Emphasis added) [page509]

[37] Later in her reasons, the sentencing judge quoted the following statement in R. v. Williams, [2006] O.J. No. 5037, 2006 ONCJ 484, at para. 20: "There is no settled view as to the appropriate tariff, other than that a period of true imprisonment is consistently imposed."

[38] Although the sentencing judge thus properly directed herself that a custodial sentence is usually required in the circumstances of the offence committed by the respondent, she suggested that the above-quoted observation in Williams -- that "a period of true imprisonment is consistently imposed" in cases involving HIV-positive offenders who knowingly engage in unprotected sexual intercourse -- "is at odds to some extent" with the decision in R. v. M. (J.), [2005] O.J. No. 5649 (S.C.J.). She also relied on R. v. Lamirande, 2006 MBCA 71, [2006] M.J. No. 223, 205 Man. R. (2d) 245 (C.A.) for the proposition that denunciation and deterrence could be achieved in an "HIV- assault" case by a suitably restrictive conditional sentence. In so doing, in my opinion, the sentencing judge erred in her appreciation of M. (J.) and Lamirande.

[39] While it is true that the authorities reflect a wide range of sentences in cases involving sexual intercourse and the non-disclosure of HIV-positive status, absent a guilty plea by the involved offender or a joint submission on sentencing, the sentences imposed involve actual incarceration of some duration.

[40] In M. (J.), the sentencing judge accepted a joint submission for a 12-month conditional sentence, in addition to three years' probation, in respect of an HIV-positive offender who pleaded guilty to two counts of aggravated sexual assault. The offender in M. (J.) suffered from a significant psychiatric illness resulting from her HIV infection, which contributed to her risk-taking behaviours. She had also served nine months' pre-trial custody. That is not this case in any salient respect.

[41] Similarly, Lamirande was a plea bargain case in which an HIV-positive offender pled guilty to aggravated assault on the basis of a negotiated joint recommendation for a conditional sentence of two years less a day. That, too, is not this case.

[42] The respondent has been unable to point to any case where, absent a joint submission on sentence and/or a guilty plea, a conditional sentence was imposed on an accused convicted of aggravated sexual assault for engaging in unprotected sexual intercourse without first disclosing his or her HIV-positive status. The dearth of authority in support of the approach to sentencing taken by the sentencing judge in this case confirms that aggravated sexual assault of the type at issue here will generally compel a custodial term of imprisonment. [page510]

[43] I conclude, therefore, that the sentence imposed by the sentencing judge did not accord with the requirements of s. 718.2(b) of the Code: the sentence was outside the range of established sentences imposed on similar offenders for similar offences. As a conditional sentence, even a conditional sentence that included strict terms of house arrest, was clearly an inappropriate disposition on the facts of this case, it follows that it was demonstrably unfit.

VI. Disposition

[44] Given the errors made by the sentencing judge in her approach to sentencing and the unfitness of the sentence imposed, it falls to this court to determine an appropriate sentence.

[45] For the reasons given, this case called out for a custodial sentence. However, I accept the sentencing judge's findings that the respondent's actions were not wanton or calculated and that no specific planning, deliberation or wilful intent to expose M.M. to the risk of HIV was involved on the two occasions of unprotected sexual intercourse that gave rise to the predicate offence. Nor, on the facts as found by the sentencing judge, did the respondent engage in a pattern of violent or predatory behaviour. There was also evidence at trial, including from M.M. herself, of the respondent's general good character. These factors militate in favour of the imposition of a jail term at the lower end of the established range of sentences for this type of offence and offender.

[46] The respondent served five days in pre-sentence custody. He has also served approximately six months of his conditional sentence of imprisonment. In my view, the custodial sentence to be imposed on the respondent should be discounted by crediting him, on approximately a 1:1 ratio, for his pre-sentence custody and for that part of the conditional sentence that he has served. On the facts of this case, I see no reason why the imposition of the respondent's custodial sentence should be stayed, nor any reason why the respondent should receive any greater credit than the actual time served by him to date: see R. v. F. (G.C.) (2004), 2004 4771 (ON CA), 71 O.R. (3d) 771, [2004] O.J. No. 3177 (C.A.).

[47] Accordingly, I would grant leave to appeal sentence, set aside the conditional sentence imposed by the trial judge and substitute in its stead a custodial sentence of 18 months' imprisonment, reduced by six months for time served by the respondent both prior to sentencing and under his conditional sentence. In the result, I would impose a custodial sentence of 12 months, to [page511] commence on the day that the respondent surrenders, followed by three years' probation. He is to surrender three days after the date of these reasons, failing which a warrant shall issue for his arrest. In all other respects, the sentence imposed by the sentencing judge will remain the same.

Appeal allowed.

Notes

Note 1: A subsequent amendment to s. 742.1, by which a conditional sentence of imprisonment became unavailable for this offence, has no application to offences committed prior to December 1, 2007: see S.C. 2007, c. 12, s. 1.