Her Majesty the Queen v. K.T. [Indexed as: R. v. T. (K.)]

89 O.R. (3d) 99

Court of Appeal for Ontario,

Doherty, Sharpe and Gillese JJ.A.

February 12, 2008

Criminal law -- Sentencing -- Conditional sentence -- Sexual assault -- Youthful first offender being convicted of sexual assault -- Accused having unprotected sexual intercourse with passed out 14-year-old girl in presence of other members of her peer group -- Accused dumping victim into snow bank and calling her brother to pick her up -- Accused being aware that female victims of sexual assault were often stigmatized in victim's ethnic community -- Conditional sentence of two years less a day followed by six months' probation being demonstrably unfit despite accused's positive antecedents -- Sentence being varied to nine months' incarceration followed by six months' probation.

The accused, aged 19 at the time of the offence, was convicted of sexually assaulting a 14-year-old girl. The victim became very drunk and passed out while [page100] drinking with the accused and two of his friends. The accused had unprotected sexual intercourse with her and then dumped her partially clad and unconscious into a snow bank under a tree. The accused then called her brother to pick her up. Her brother called 911 and the victim was taken to hospital. She was unresponsive and close to comatose, she was suffering from hypothermia and her condition was life threatening. The accused and the victim were both of Tamil descent, and the accused was aware that female victims of sexual assault are sometimes stigmatized in Tamil culture. The accused had no criminal record and the offence appeared to be out of character. He had strong family support. He had complied with strict terms of bail for three years before his sentencing at trial. The trial judge imposed a conditional sentence of two years less a day, with house arrest for the first nine months, a curfew for the next nine months, with no curfew or house arrest for the final six months, followed by six months' probation. The Crown appealed.

Held, the appeal should be allowed.

The sentence was demonstrably unfit. Generally speaking, general deterrence will play little, if any, role in sentencing youthful first offenders. Serious crimes of violence, particularly sexual assaults, provide an exception to that general rule. This was a very serious sexual assault. Aggravating factors included the age and vulnerability of the victim, the fact that the accused committed the crime in the presence of other members of the complainant's peer group, the emotional harm done to the victim and the potential long-term ostracization of the victim in her ethnic community, the risk of which was known to the accused, and the accused's stunningly callous and highly life-threatening treatment of the helpless victim after the rape. The objectives of denunciation and to a lesser extent general deterrence required the incarceration of the accused despite his many positive features. Any other disposition would not only fail to reflect those objectives, but would be disproportionate both to the gravity of the offence and the accused's degree of responsibility. The appropriate sentence at the time of sentencing would have been in the range of two years less a day to four years' incarceration. But for the accused's age, his otherwise unblemished antecedents, his rehabilitative potential, the support of his family and his three years on a strict bail order, the lower end of that sentencing range would have been a penitentiary sentence. The accused had already served 16 months of his conditional sentence. Notwithstanding the hardship on the accused and on his family of incarcerating him 16 months after the sentence was imposed at trial, the sentence was varied to nine months' incarceration followed by six months' probation.

APPEAL by the Crown from the sentence of two years less a day to be served in the community followed by six months probation imposed by Armstrong J. of the Ontario Court of Justice on September 20, 2006.*

• A non-publication order with respect to the identity of the complainant has been made pursuant to c. 276.3(1) of the Criminal Code.

Cases referred to R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321, [2006] O.J. No. 555 (C.A.); R. v. Ijam (2007), 2007 ONCA 597, 87 O.R. (3d) 81, [2007] O.J. No. 3395 (C.A.); R. v. Kennedy, 1999 3808 (ON CA), [1999] O.J. No. 4278, 140 C.C.C. (3d) 378, 29 C.R. (5th) 133 (C.A.); R. v. Killam, 1999 2489 (ON CA), [1999] O.J. No. 4289, 29 C.R. (5th) 147, (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. McDonnell, 1997 389 (SCC), [1997] 1 S.C.R. 948, [1997] S.C.J. No. 42, 49 Alta. L.R. (3d) 111, 145 D.L.R. (4th) 577, 210 N.R. 241, 43 C.R.R. (2d) 189, 114 C.C.C. (3d) 436, 6 C.R. (5th) 231; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, 142 Man. R. (2d) 161, 182 D.L.R. (4th) 1, 249 N.R. 201, 212 W.A.C. 161, [2000] 4 W.W.R. 21, 140 C.C.C. (3d) 449, 49 M.V.R. (3d) 163, 30 C.R. (5th) 1 (sub nom. R. v. P. (J.K.D.)); R. v. Rezaie (1996), 1996 1241 (ON CA), 31 O.R. (3d) 713, [1996] O.J. No. 4468, 112 C.C.C. (3d) 97, 3 C.R. (5th) 175 (C.A.); 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. T. (J.C.) (1998), 1998 17661 (ON CA), 39 O.R. (3d) 26, [1998] O.J. No. 1688, 124 C.C.C. (3d) 385 (C.A.) [page101]; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, [2000] S.C.J. No. 11, 182 D.L.R. (4th) 257, 250 N.R. 364, [2000] 3 W.W.R. 613, 141 C.C.C. (3d) 368, 30 C.R. (5th) 254 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, Part XXIII, ss. 687, 718 [as am.], 718.1 [as am.], 718.2 [as am.], 742.1 [as am. S.C. 1995, c. 22, s. 6; 1997, c. 18, s. 107.1]

Michelle Campbell, for appellant. Peter Connelly, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: -- I Overview

[1] The respondent was convicted of sexual assault after a trial that took place on several days over a span of about one year (May 2005 -- May 2006). He was sentenced in September 2006 to a term of two years less a day to be served in the community to be followed by a six-month probation term.

[2] The Crown seeks leave to appeal the sentence arguing that despite the respondent's youth, positive background, supportive family, and strong rehabilitative potential, the circumstances of this crime demanded a significant period of incarceration.

[3] I agree with the Crown's submission. The non-custodial sanction imposed at trial failed to reflect the seriousness of this crime and failed to adequately express society's denunciation of the respondent's brutal and callous conduct. A significant custodial sentence was the only appropriate sentence in the circumstances of this case. Having regard to the respondent's positive antecedents, and his successful completion of 16 months of the conditional sentence imposed at trial, I would allow the appeal and impose a custodial sentence of nine months to be followed by probation for six months on the terms imposed by the trial judge. [page102] II The Facts

[4] On December 19, 2003, the respondent, who was 19 years old, asked S.T., the complainant, and her friend if they wanted to skip school and go drinking. The respondent knew both girls. S.T., who was 14 years old, and her friend accepted the respondent's invitation. The respondent and the two young girls walked to a car owned by the respondent's friend. That friend and another young man were at the car. The three young men and two girls drove away in search of liquor.

[5] The respondent purchased some vodka for the group. They drove to a park, left the vehicle and walked into a wooded area. S.T. was drinking heavily. She and the respondent kissed and hugged. S.T. became very drunk and passed out while sitting in the woods. Eventually, the respondent and his two friends carried S.T. back to the car. She seemed unconscious and was dead weight in the arms of the three young men. They put S.T. in the back seat of the vehicle between the respondent and one of his friends. S.T.'s girlfriend and the driver sat in the front seat.

[6] After the five persons were in the vehicle, the respondent put a jacket up as a curtain between the front and back seats. The respondent proceeded to rape S.T., entering her vagina from behind. The car rocked back and forth during the sexual attack. S.T. was unconscious throughout the assault. The respondent did not use a condom.

[7] Some time after the respondent raped S.T., her girlfriend got out of the car a short distance from her home. S.T. was still unconscious in the back seat of the vehicle. The respondent and his two friends did not want to take S.T. home in that condition so they decided to take her to a nearby schoolyard. The respondent called S.T.'s brother and told him that he had found S.T. drunk and passed out in the schoolyard. He asked the brother to come and get S.T. The respondent and his two friends carried S.T. out of the car at the school and dumped her into a snow bank under a tree. She was only partially clad. It was dark and very cold. The respondent and his two friends returned to the warmth of their vehicle to await the arrival of S.T.'s brother.

[8] S.T.'s brother arrived at the school to find his sister unconscious and face down in the snow. She was drooling and unresponsive. The respondent and one of his friends carried S.T. to her brother's car. They drove to S.T.'s home and took her inside. S.T. was still unresponsive. Her brother called 911 and the respondent and his friends left. Before leaving S.T.'s home, the [page103] respondent lied to her brother about what had happened to S.T. and tried to persuade the brother that S.T. did not need medical attention.

[9] The firefighters who responded to the 911 call could not get any response from S.T. They rushed her to the hospital. When S.T. was examined in the emergency unit at the hospital, she was unable to speak, could barely open her eyes and had little control over her limbs. S.T. registered 9 out of 15 on the Glasgow coma scale. Had she scored any lower, she would have been classified as comatose. According to the treating physician, S.T. was one small step away from requiring life support. Blood samples collected after S.T. arrived at the hospital indicated that her blood/alcohol level earlier in the day had been in excess of .252 g, more than three times the legal limit. S.T. was also suffering from hypothermia.

[10] S.T.'s gynaecological examination revealed a band of bruising on the top of the cervix. The bruising was consistent with a traumatic or very rough, forceful penetration of the vagina by an erect penis.

[11] S.T. recovered from her physical injuries. She remains traumatized by the rape, although she has come to forgive the respondent. S.T. candidly acknowledges that she made some poor choices on that day.

[12] Like the respondent, S.T. is of Tamil descent. In the Tamil culture, female victims of sexual assault are sometimes stigmatized as unclean and unworthy of marriage in the Tamil community. The respondent appreciated how his community could react to the female victim of a sexual assault. S.T. has suffered some degree of stigmatization within her community. III The Trial Proceedings

[13] The respondent elected trial in the Ontario Court of Justice and pled not guilty. He testified that S.T. consented to having sexual intercourse with him in the back seat of the crowded vehicle. Counsel for the respondent also advanced the alternative defence of an honest, but mistaken belief in consent.

[14] The trial judge concluded that S.T. was so drunk that she lacked the capacity to consent to sexual activity. The trial judge observed that even on the respondent's evidence, S.T. was at best, semi-conscious. The trial judge further held that any belief the respondent may have had as to S.T.'s consent to sexual intercourse was "completely unreasonable" given her semi-conscious or unconscious state. Although the reasons are not entirely clear, [page104] I read the trial judge as ultimately concluding that on the evidence, the respondent's suggestion of an honest belief in consent had no air of reality.

[15] The sentencing proceedings took place intermittently over about four months. The Crown asked for a sentence of two and [a] half years. Counsel for the respondent submitted that a conditional sentence in the range of 12 months was appropriate.

[16] In his reasons for sentence, the trial judge began by observing that this court had recognized a wide range of sentencing in sexual assault cases. He indicated that although penitentiary terms could be warranted in some cases, a sentence of less than two years was appropriate here. The trial judge went on to hold that the criteria for the imposition of a conditional sentence under s. 742.1 were met and that he proposed to permit the respondent to serve his sentence of two years less a day in the community.

[17] The trial judge characterized the sexual assault as very serious and arising out of "an ill-conceived" drinking event that "got out of hand". The trial judge recognized that considerable force was used in the sexual attack and that the respondent did not wear a condom.

[18] The trial judge listed many of the aggravating factors, including:

-- the victim was 14 years of age;

-- the sexual attack took place in the presence of three other individuals from the victim's peer group at school;

-- the victim was in a helpless, virtually unconscious state;

-- the sexual assault was painful and involved unprotected sexual intercourse; and

-- the respondent's treatment of the victim after the assault almost killed her, and showed a deplorable callousness and disregard for the victim.

[19] The trial judge also recognized the many positive features of the respondent's background. He was 19 at the time of the offence and 22 at the time of sentencing. The respondent had no prior involvement with the criminal justice system. He had the support of a strong, close-knit family. That family had stringently enforced the respondent's strict bail conditions during the almost three years that he was on bail. While on bail, the respondent spent almost all of his time working or going to school. The respondent's father required him to turn his salary over to his father. [page105]

[20] The pre-sentence report was favourable. The respondent was described as a mild mannered young man who was awkward around girls. According to the pre-sentence report, the respondent did little other than go to school and work in a restaurant. By all accounts, the offence was very much out of character.

[21] The trial judge accepted that the respondent was remorseful and felt guilty for the emotional turmoil he had caused to the victim and to his own family. It must be observed, however, that this remorse only manifested itself post-conviction and pre-sentence.

[22] The trial judge also referred to the respondent's good work record, his decision to abstain completely from the consumption of alcohol and the close supervision he had been under since his arrest and release on bail. The trial judge concluded:

Finally, sir, I have taken into account your situation as you described it to me in court. I have taken into account that this incident has caused you, quite apart from anybody else, a great deal of emotional upset, and that you will take some time to shed the awkwardness that you feel around girls at the present time. (Emphasis added)

[23] The trial judge imposed a sentence of two years less a day to be served in the community. In addition to the usual terms, he placed the respondent on partial house arrest for the first nine months of the sentence. The respondent was allowed to leave his home with his parents, for school attendance, employment, medical appointments, attending to legal obligations, or attending religious services.

[24] After completing nine months on house arrest, the respondent was required to abide by a curfew for the second nine months of his conditional sentence. Under the curfew, he was required to be in his home between midnight and 6:00 a.m. unless with his parents or for a medical emergency, attending school, or for purposes of his employment. During the last six months of the conditional sentence, the respondent was not subject to either house arrest or curfew. The respondent was also required to perform 90 hours of community service.

[25] The trial judge also placed the respondent on probation for six months following the completion of the conditional sentence.

IV Was the Sentence Demonstrably Unfit?

[26] Some criminal justice systems seek to achieve justice in sentencing by the extensive use of mandatory minimum sentences coupled with tightly calculated sentencing grids that all [page106] but dictate the sentence to be imposed by the trial judge in any given case. Historically, Canadian criminal law has taken a very different road to justice in sentencing. For the vast majority of offences, Parliament provides no minimum sentence and a broad spectrum of potential dispositions. Trial judges are given a very wide discretion to determine the appropriate disposition in each case. In exercising that discretion, Parliament provides guidance by way of the broadly worded objectives and principles in Part XXIII of the Criminal Code. Trial judges must apply those objectives and principles to the specifics of each case and, in the exercise of their discretion, fashion a sentence that is tailored to the circumstances of the offence and the circumstances of the offender.

[27] This individualization of the sentencing process through the judicial exercise of a broad discretion by the trial judge is the central feature of the sentencing process in Canada. In R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, 140 C.C.C. (3d) 449, at para. 116, Lamer C.J.C. described the central role of the trial judge in the sentencing process:

There is no easy test or formula that the judge can apply in weighing these factors. Much will depend on the good judgment and wisdom of sentencing judges, whom Parliament vested with considerable discretion in making these determinations . . .

[28] The sometimes competing principles that must be weighed by the trial judge in the exercise of his or her sentencing discretion can give rise to difficult problems for trial judges. This trial judge was faced with just such a problem. On the one hand, the circumstances of this offence cried out for a significant jail term. On the other hand, the respondent's personal circumstances strongly suggested that incarceration was unnecessary. The trial judge tried to balance these competing concerns by imposing a conditional sentence with punitive terms that included partial house arrest and a curfew.

[29] The Crown acknowledges that this court must show deference to the trial judge's choice of sentence. Sentencing is a "profoundly subjective process" and the sentence ultimately imposed will reflect a multiplicity of considerations, some of which are beyond the reach of appellate review: see R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52, 102 C.C.C. (3d) 193, at para. 46.

[30] Strong appellate deference to the sentence imposed at trial also reflects the reality that in many cases there is no single correct sentence, but rather a range of appropriate sentences from which the trial judge must select one. There is no reason to think [page107] that the appeal court is more likely to make a better selection from among the range of appropriate sentences than the trial judge. Indeed, the trial judge's position gives him or her certain advantages over the appeal court: 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 pp. 374-75 C.C.C.

[31] Despite the trial judge's central role in the sentencing process, s. 687 of the Criminal Code does authorize sentence appeals. Appellate intervention, where warranted, is part of the sentencing scheme fashioned by the Criminal Code. An appellate court may vary a sentence imposed where the trial judge has erred in principle, failed to consider evidence relevant to sentence, misapprehended a material fact, or imposed a sentence that is demonstrably unfit: R. v. McDonnell, 1997 389 (SCC), [1997] 1 S.C.R. 948, [1997] S.C.J. No. 42, 114 C.C.C. (3d) 436, at paras. 15-16; R. v. Rezaie (1996), 1996 1241 (ON CA), 31 O.R. (3d) 713, [1996] O.J. No. 4468, 112 C.C.C. (3d) 97 (C.A.), at p. 719 O.R., p. 103 C.C.C.

[32] The Crown argued that the trial judge made errors in principle and that the sentence was demonstrably unfit. As I agree with the latter submission, I do not propose to address the alleged errors in principle. A sentence is demonstrably unfit when it falls outside the range of sentences that could reasonably have been imposed in the circumstances. This standard of review does not ask -- does the sentence accord with the appeal court's opinion as to the appropriate sentence, but instead asks -- is the sentence within the range of sentences that could reasonably be imposed in all the circumstances: McDonnell, supra, at para. 15; Rezaie, supra, at p. 719 O.R., p. 103 C.C.C.

[33] The question of whether the sentence imposed in this case is demonstrably unfit comes down to this -- was a conditional sentence a clearly inappropriate disposition in the totality of the circumstances? If it was not, this court must defer to the trial judge's decision even though it might have imposed a different sentence: R. v. T. (J.C.) (1998), 1998 17661 (ON CA), 39 O.R. (3d) 26, [1998] O.J. No. 1688, 124 C.C.C. (3d) 385 (C.A.), at para. 14.

[34] Section 742.1 speaks to the statutory criteria governing the availability and imposition of conditional sentences. It requires that:

742.1. Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court (a) imposes a sentence of imprisonment of less than two years, and (b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,

the court may, . . . order that the offender serve the sentence in the community . . . [page108]

[35] In Proulx, supra, at paras. 46-47, the court identified three prerequisites for a conditional sentence: (1) the offence must not be punishable by a minimum term of imprisonment; (2) the court must conclude that a term of imprisonment of less than two years is an appropriate disposition; and (3) the safety of the community would not be endangered by the offender serving the sentence in the community.

[36] The first and third of these criteria are not in dispute. Sexual assault does not carry a minimum period of incarceration and the Crown does not suggest that the safety of the community would be imperilled were the respondent to serve his sentence in the community.

[37] The remaining prerequisite, that the court impose a term of imprisonment of less than two years, is in issue in this case. Proulx, supra, at para. 58, describes the approach to be taken to this criterion:

... [T]he requirement that the court must impose a sentence of imprisonment of less than two years can be fulfilled by a preliminary determination of the appropriate range of available sentences. Thus, the approach I suggest still requires the judge to proceed in two stages. However, the judge need not impose a term of imprisonment of a fixed duration at the first stage of the analysis. Rather, at this stage, the judge simply has to exclude two possibilities: (a) probationary measures; and (b) a penitentiary term. If either of these sentences is appropriate, then a conditional sentence should not be imposed. (Italics in original; underlining added)

[38] I was initially inclined to the position that a penitentiary term was required in all the circumstances of this case. Upon further consideration, however, I have come to the view that a sentence of two years less a day is within, albeit barely, the appropriate range of sentence in all of the circumstances. I have moved to that position because of the respondent's age, his otherwise unblemished record, his strong rehabilitative potential, his family's support, and his compliance with strict bail conditions for almost three years prior to sentence: see R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321, [2006] O.J. No. 555 (C.A.), at para. 33.

[39] A determination that the three prerequisites for a conditional sentence have been met does not mean that a conditional sentence is an appropriate disposition. A sentencing court must then determine whether the imposition of a conditional sentence would be consistent with "the fundamental purpose and principles of sentencing" set out in the Criminal Code. [page109]

[40] Section 718 speaks to the fundamental purpose of sentencing as contributing "to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions . . ." . The same section goes on to identify the objectives of sentencing: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

[41] Generally speaking, sentences imposed on young first offenders will stress individual deterrence, where necessary, and rehabilitation. General deterrence will play little, if any, role in fashioning the appropriate sentence in this category of offender in most cases: R. v. Ijam (2007), 2007 ONCA 597, 87 O.R. (3d) 81, [2007] O.J. No. 3395 (C.A.), at pp. 93-94 O.R. Serious crimes of violence, particularly sexual assaults, do provide an exception to the general rule described above. While all of the principles of sentences remain important, including rehabilitation, for serious crimes involving significant personal violence, the objectives of denunciation and general deterrence gain prominence: R. v. Ijam, supra; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, [2000] S.C.J. No. 11, 141 C.C.C. (3d) 368, at para. 26.

[42] The emphasis to be placed on denunciation and to a lesser extent general deterrence, grows with the seriousness of the particular circumstances surrounding the sexual assault for which an accused, even a young accused, is being sentenced. As is hopefully clear from the recitation of the facts of this case, this was a very serious sexual assault. I do not propose to repeat all of the aggravating factors. I would, however, stress the following in the context of explaining the need for a strong denunciatory sentence:

-- the age and vulnerability of the victim;

-- the respondent committed this crime in the presence of other members of the victim's peer group, no doubt adding to her long-term humiliation and the need for general deterrence: see R. v. Kennedy, 1999 3808 (ON CA), [1999] O.J. No. 4278, 140 C.C.C. (3d) 378 (C.A.), at p. 386 C.C.C.; [page110]

-- the significant emotional harm done to the victim and potential long-term ostracization of the victim in her ethnic community, the risk of which was known to the respondent; and

-- the respondent's stunningly callous and highly life- threatening treatment of the helpless victim after the rape.

[43] The aggravating circumstances surrounding this offence were such that the fundamental purpose of sentencing could only be properly served by a disposition that placed a heavy emphasis on general deterrence and particularly denunciation. I recognize that a conditional sentence can in some circumstances adequately address these objectives, particularly where the conditions imposed have a significant punitive element: Proulx, supra, at para. 41; R. v. Ijam, supra, at p. 94 O.R. However, there will be circumstances in which the demands of denunciation and/or general deterrence are so pressing that incarceration is the only suitable disposition: Proulx, supra, at para. 106; Wells, supra, at para. 34.; R. v. Killam, 1999 2489 (ON CA), [1999] O.J. No. 4289, 29 C.R. (5th) 147 (C.A.) at p. 151 C.R..

[44] I am satisfied that the objectives of denunciation and to a lesser extent general deterrence required the incarceration of the respondent despite his many positive features. Any other disposition would not only fail to reflect those objectives, but would, in my view, be disproportionate both to the gravity of the offence and the respondent's degree of responsibility: Criminal Code, s. 718.1. In coming to this conclusion, I recognize that incarceration, particularly for young first offenders, is a sanction of last resort: s. 718.2(d), (e).

[45] Given the circumstances of this offence, the positive features of the respondent must be given less weight on sentencing than would be the case if the circumstances of the offence were not so egregious. Nor do I think that the respondent's "emotional upset" or his apparent "awkwardness" around girls can carry any weight in the determination of the appropriate sentence in these circumstances. Finally, while I acknowledge the trial judge's finding of remorse, the mitigating value of that remorse is lessened by its appearance only after conviction and before sentence.

[46] Having determined that the sentence imposed was demonstrably unfit in all the circumstances, it falls to this court to impose a fit sentence. In doing so, the reality of the present situation must be acknowledged. The respondent has completed some 16 months of his conditional sentence. For the first nine of those 16 months, his liberty was substantially restricted as he was under partial house arrest. For the remaining seven months, the [page111] respondent has been held to a relatively strict curfew. He has also completed his community service obligations. There is also no doubt that sending the respondent to jail at this time, some 16 months after he was sentenced, will impose a significant added hardship on him and his family.

[47] Having regard to the circumstances as they existed at the time of sentence, but also to the circumstances as they exist now, some 16 months post-sentence, I would vary the respondent's sentence to one of nine months imprisonment to be followed by six months probation on the terms imposed by the trial judge.

[48] I wish to emphasize, however, that while I am satisfied that nine months incarceration is an appropriate sentence at this time, it would not have been appropriate at the time of sentencing. In my view, the appropriate range at the time of sentencing was between two years less a day and four years incarceration.

V Conclusion

[49] I would grant leave to appeal sentence, allow the appeal and vary the sentence to nine months imprisonment to be followed by probation for six months on the terms imposed by the trial judge. A warrant may issue for the respondent's arrest, if necessary, to secure his surrender into custody.

Appeal allowed.