WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: March 3, 2017

Docket: C52894

Panel: Watt, Pepall and Tulloch JJ.A.

Between

Her Majesty the Queen Respondent

and

Frederick M. Radcliffe Appellant

Counsel:

• Frederick M. Radcliffe, acting in person
• Brian Snell, appearing as duty counsel
• Christine E. Bartlett-Hughes, for the respondent

Heard: July 14, 2016

On appeal from: the conviction entered by Justice Paul F. Lalonde of the Superior Court of Justice on June 25, 2009, and from the sentence imposed on October 8, 2010.

Decision

Watt J.A.:

Introduction

[1] A judge found Frederick Radcliffe guilty of sexual interference, sexual assault and failing to comply with a recognizance as a result of his conduct with a teenaged complainant one July evening several years ago.

[2] The Crown initiated dangerous offender proceedings against Radcliffe. The trial judge found Radcliffe to be a dangerous offender and sentenced him to imprisonment in a penitentiary for an indeterminate term.

[3] Assisted by duty counsel, Frederick Radcliffe appeals his convictions and the indeterminate sentence imposed upon him at the conclusion of the dangerous offender proceedings.

[4] For the reasons that follow, I would dismiss both appeals.

[5] An elaborate recitation of the evidence adduced at trial is unnecessary to an understanding of the grounds of appeal advanced and my decision to reject them. A brief overview is sufficient for both purposes.

The Background

[6] The essence of the case for the Crown consisted of:

i. the complainant's video-recorded statement to the police, admitted under s. 715.1(1) of the Criminal Code, the contents of which she adopted in giving evidence at trial; and

ii. the complainant's trial testimony.

[7] The complainant was 13 years old at the time of the relevant events and 15 years old at the time of trial where she testified by closed-circuit television with the assistance of a support person.

[8] The complainant described a single incident of non-consensual vaginal and anal intercourse in Radcliffe's truck behind a gas bar where Radcliffe took her as he drove her home from a coffee shop parking lot where they had met earlier the same evening.

[9] Shortly after she returned home, the complainant recounted to her friend what had occurred. The friend called the police. When the police and paramedics responded to the call, they found the complainant in emotional distress. They took her to a local hospital for an examination.

[10] A nurse who examined the complainant at the hospital and administered a sexual assault kit testified that she noticed the complainant's cervix was lumpy and red and her anus had a fissure. The nurse considered both findings unnatural.

[11] Frederick Radcliffe's pants, as well as vaginal and rectal swabs taken from the complainant and a bathing suit bottom the complainant was wearing under her shorts, were subjected to DNA analysis. In two areas near the fly of Radcliffe's pants, on vaginal swabs and inside the front crotch area of the complainant's bathing suit bottom, an expert found a mixture of DNA from the complainant and a male. Frederick Radcliffe could not be excluded as the donor of the male portion of the DNA mixture.

[12] The forensic analysis did not detect spermatozoa (an indicator of the presence of semen) and could not confirm the bodily substance from which the DNA originated. The expert testified that there could not have been full ejaculation. In the absence of condom use (as the complainant testified), the expert would have seen more DNA than she detected in the sample. However, she acknowledged that it was possible to transfer some DNA material without ejaculation including some from saliva transferred from a finger to a vaginal area.

[13] The position of the Crown at trial was that, emboldened by the complainant's lack of resistance to some of his sexually suggestive comments, Frederick Radcliffe offered to drive her home. He deliberately made a wrong turn, stopped at the rear of the car wash/gas bar and entered the back seat of his vehicle where the complainant was sitting. In the back seat, Radcliffe pushed the complainant down, pulled down her shorts and bathing suit bottom and had non-consensual vaginal, then anal intercourse with her. Each then had a cigarette before Radcliffe drove her home, dropping her off at a street corner near her residence.

[14] Frederick Radcliffe, 36 years old at the time of the offence and 38 at trial, testified on his own behalf. He acknowledged having had "sexual problems" since he was a teenager. He had received counselling and treatment. He discontinued use of prescribed medication – Cialis – in the months prior to the alleged offences because it was too expensive.

[15] Frederick Radcliffe admitted that the complainant was in his truck – a sport utility vehicle – on the night she alleged he sexually assaulted her. He offered her cigarettes, but did not participate in any sexual talk with her or ask her for any sexual favours. He agreed to drive her home from the coffee shop parking lot.

[16] En route to the complainant's home, Radcliffe made a wrong turn. He decided to turn around at a car wash/gas bar. He testified that he hit a bump in the pavement in the gas bar, causing his cigarettes to fall on the floor. He got out of the vehicle behind the gas bar to pick up the package. When he returned to the vehicle, he and the complainant each smoked a cigarette. After asking if he had a girlfriend, the complainant leaned over to kiss him. She fondled his penis. She put her fingers in his mouth, then in her crotch after pulling her shorts down. Radcliffe told the complainant he was not interested and then drove her home.

[17] Frederick Radcliffe denied having had sexual intercourse with the complainant in his truck.

[18] Frederick Radcliffe's wife confirmed that he had suffered from erectile dysfunction for at least two years prior to the alleged offence.

THE APPEAL FROM CONVICTION

[19] On the appeal from conviction, Frederick Radcliffe ("the appellant"), advanced two arguments. He says that the trial judge erred:

i. in subjecting the evidence of the appellant to a more stringent standard of scrutiny than the testimony of the complainant; and

ii. in failing to adhere to the principles in R. v. W. (R.), [1992] 2 S.C.R. 122, in assessing the evidence of the complainant.

Ground #1: The Uneven Scrutiny Argument

[20] The appellant says that the trial judge was uneven in his scrutiny of the testimony of the two principal witnesses, the appellant and the complainant. On the one hand, the trial judge subjected the evidence of the appellant to intense scrutiny, finding fault and rejecting it for reasons unrelated to its reliability or the appellant's credibility. His defensive posture in cross-examination. His request that simple, straightforward questions be repeated. His evasive responses. His characterization of some questions as irrelevant.

[21] On the other hand, the appellant continues, the trial judge was markedly less critical and substantially more forgiving of many things that told heavily against her credibility and the reliability of her evidence. Her combative attitude in cross-examination by defence counsel. Unexplained inconsistencies in her testimony. Embellishments in her evidence. Her self-admitted unreliability. Her hasty retreat to "I don't remember" and "I can't recall" when challenged or faced with contradictory physical evidence.

[22] In my assessment of this claim of uneven scrutiny, I keep in mind several basic principles.

[23] First, as the appellant recognizes, this is a difficult argument to make successfully. The reasons are twofold. Credibility findings are the province of the trial judge. They attract significant appellate deference. And appellate courts invariably view this argument with skepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge's credibility determinations and to re-try the case on an arid, printed record: R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59; R. v. George, 2016 ONCA 464, 349 O.A.C. 347, at para. 35.

[24] Second, to succeed on an uneven scrutiny argument, an appellant must do more than show that a different trial judge assigned the same task on the same evidence could have assessed credibility differently. Nor is it enough to show that the trial judge failed to say something she or he could have said in assessing credibility or gauging the reliability of evidence: Howe, at para. 59.

[25] Third, to succeed on the argument advanced here, the appellant must point to something, whether in the reasons of the trial judge or elsewhere in the trial record, that makes it clear that the trial judge actually applied different standards of scrutiny in assessing the evidence of the appellant and complainant: Howe, at para. 59; George, at para. 36.

[26] Fourth, in the absence of palpable and overriding error, there being no claim of unreasonable verdict, we are disentitled to reassess and reweigh evidence: George, at para. 35; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20.

[27] After a careful review of the reasons of the trial judge, considered as a whole, I am not persuaded that this ground of appeal has been made out.

[28] I begin with the obvious. The mere fact that the trial judge accepted the evidence of the complainant and rejected that of the appellant in concluding that guilt had been established beyond a reasonable doubt does not move the yardsticks on an argument based on uneven scrutiny.

[29] Read as a whole, the reasons of the trial judge reveal a keen awareness of the issues raised about the complainant's credibility and the reliability of her evidence. The inconsistencies and their relationship with the core elements of her testimony. Her frequently denied memory about incidental events. Her combative attitude with defence counsel. Her age, attitude, level of education and lack of sophistication. The time that had elapsed between the events of which she testified and the time of which she gave her evidence at trial. She got no free pass from the trial judge.

[30] In addition, I am mindful of the fact that, in some respects at least, the complainant's evidence was confirmed by other testimony and findings. The condition of her cervix and anus. The DNA deposits on the fly area of the appellant's pants and the crotch of the complainant's bathing suit bottom.

[31] Further, the trial judge explained why he rejected the testimony of the appellant. His reasons were firmly grounded in the evidence and in the manner in which the appellant testified. There was nothing unfair, unreasonable or hyper critical in his approach or findings. Nor does the balance of the trial record suggest that the trial judge subjected the appellant's testimony to a more demanding level of scrutiny than that of the complainant.

Ground #2: The W. (R.) Error

[32] The appellant advances a second ground of appeal against conviction, a complaint somewhat related to the first alleged error.

[33] This ground of appeal has its roots in the decision in W. (R.).

[34] The appellant accepts the teachings of W. (R.) about the manner in which trial judges are to assess the reliability of the evidence of children. Not on the basis of some inherent unreliability or special caution, but rather on a common sense individualized basis taking into account the strengths and weaknesses which characterize the evidence offered in the case: W. (R.), at p. 134. In the assessment of the evidence of a child (even an adult) about things that happened during childhood, a trier of fact should consider the presence of inconsistencies, especially those having to do with peripheral issues like time and location, in the context of the age of the witness when the events about which she or he testifies happened: W. (R.), at p. 134.

[35] The appellant says that the trial judge failed to consider the need to properly scrutinize the evidence of the child complainant and failed to subject it to the same standard of proof as required of adult witnesses in a criminal case.

[36] I would not give effect to this ground of appeal. In my view, read as whole, the reasons of the trial judge do not reflect either an inappropriately superficial level of scrutiny of the complainant's evidence or a diminution of the standard of proof.

[37] After a lengthy review of the substance of the evidence adduced at trial, the trial judge enumerated several principles that governed his decision. The onus and standard of proof. The limitations on demeanour as a credibility determinant. The obligation to consider the whole of the evidence, not simply to choose between competing versions of relevant events. The value of inconsistencies in assessing credibility of witnesses and the reliability of their evidence. And that proof of the case for the Crown did not follow from rejection of the appellant's evidence.

[38] The trial judge made it clear that he was not applying some prefabricated rule in his assessment of the complainant's credibility, rather, as W. (R.) directs, was adjudging it by reference to her mental development, understanding and ability to communicate. The judge also took into account that aspects of the complainant's testimony were confirmed by independent evidence of her physical and emotional condition within minutes and hours of the alleged assault and the results of DNA analysis of stains on the fly of the appellant's pants and the crotch of the complainant's bathing suit bottom.

[39] As noted in relation to the first ground of appeal, the trial judge's assessment of the complainant's credibility and reliability demonstrated clear awareness of the inconsistencies and frailties in her evidence. He rejected certain aspects of her evidence as untrue, discounting some of them as relating to peripheral matters. Despite the recognized issues with the complainant's evidence, fundamentally the trial judge accepted her evidence on the central issue at trial – whether or not a sexual assault occurred – as truthful. He was fully alive to the Supreme Court of Canada's directions in W. (R.). While the trial judge considered the complainant's mental development, understanding and ability to communicate, he did not weaken the standard of proof by situating her evidence in that context. He was entitled to reach the conclusion that he did.

[40] It is also worth remembering that contradictions emerging in cross-examination of parts of a video admitted under s. 715.1, do not render the contradicted parts inadmissible. Self-evidently, a contradicted videotape may well be accorded less weight in the final determination of the issues. But contradiction of the video in cross-examination does not necessarily mean that the video is wrong or unreliable. It is open to the trial judge to conclude that the inconsistences are insignificant and find the video more reliable than the trial testimony: R. v. F. (C.C.), [1997] 3 S.C.R. 1183, at para. 47.

[41] In the result, I would dismiss the appeal from conviction.

THE APPEAL FROM SENTENCE

[42] The appellant advances a single ground of appeal against the sentence of imprisonment in a penitentiary for an indeterminate term imposed by the trial judge.

[43] The appellant does not contest the trial judge's finding that the evidence satisfied the requirements for a dangerous offender (DO) designation. Where the trial judge went wrong, according to the appellant, was in failing to order a Gladue report or to consider the influence of Gladue factors and s. 718.2(e) of the Criminal Code in determining whether there was a reasonable possibility of eventual control of the appellant's risk of re-offence in the community. Had the trial judge embarked on that course and analysis, the appellant says he would have been designated a long-term offender (LTO) and sentenced to a term of imprisonment followed by a period of long-term supervision, rather than the sentence imposed.

[44] In support of his sentence appeal, the appellant tenders two reports from the Correctional Service of Canada. Each describes the appellant's progress in the penitentiary and his participation in various programs there.

The Background

[45] The trial judge found that the appellant met the criteria for dangerous offender under ss. 753(1)(a)(i), 753(1)(a)(ii) and 753(1)(b) (the last of which the appellant admitted).

[46] In closing submissions at the end of the dangerous offender hearing, trial counsel for the appellant referred the trial judge to a brief letter from a staff member at the Ottawa Carleton Detention Centre where the appellant had been detained prior to trial and the dangerous offender proceedings.

[47] For a portion of this time, the appellant was serving a sentence for an unrelated offence. The author of the letter, a native inmate liaison officer, reported on the appellant's self-identification as Aboriginal and participation in Aboriginal programs. The letter was filed as an exhibit.

[48] In closing submissions, trial counsel for the appellant made brief reference to the letter and the appellant's claimed Aboriginal status. Counsel, relying on the then state of the law (post-Gladue, but pre-Ipeelee), noted that some offences required lengthy jail terms regardless of the offender's ethnicity. However, counsel did link Aboriginal status to a finding that the appellant was an LTO. The appellant self-reported that he was adopted at an early age by supportive adoptive parents.

[49] The trial Crown emphasized the need for evidence of the availability of some measures to help manage the risk of re-offence by the appellant in the community. The absence of evidence, the trial Crown argued, was fatal to the submission that the appellant should be found an LTO.

The Arguments on Appeal

[50] In oral argument, duty counsel contended that the trial judge's failure to consider Gladue factors in determining the designation to be made and sentence imposed was a fatal flaw in the sentencing proceedings and required a new hearing. There, duty counsel says, a Gladue report can be prepared and proper consideration given to the appellant's Aboriginal status in determining whether he should be found an LTO, rather than a DO, and sentenced to something other than imprisonment in a penitentiary for an indeterminate term.

[51] The respondent points out that the trial judge did consider the limited evidence about the appellant's Aboriginal status. While it may have been preferable to have a more robust record on the issue, the respondent reminds us that Aboriginal status and s. 718.2(e) have a diminished role in dangerous offender proceedings. They exert no influence on the fundamental decision of whether the requirements for designation of an offender as a DO have been met. Further, to the extent that it has anything to say about eventual control of the risk in the community, what is critical, and lacking here, is evidence about the availability of programs realistically likely to achieve that goal. Here, the risk resides in the appellant's paraphilias and his personality disorder, neither of which can be ameliorated by Aboriginal programming.

The Governing Principles

[52] It is now firmly established that when sentencing an Aboriginal offender, a judge must consider:

i. the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the court; and

ii. the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage and connection.

See R. v. Gladue, [1999] 1 S.C.R. 688, at para. 66; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 59.

[53] Systemic and background factors may bear on the culpability of the offender, to the extent they illuminate the offender's level of moral blameworthiness: Ipeelee, at para. 73. The second set of circumstances – the types of sanctions that may be appropriate – has to do with the effectiveness of the sentence itself: Ipeelee, at para. 74.

[54] Courts are required to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society. But, on their own, these matters about which judicial notice must be taken do not necessarily justify a different sentence for Aboriginal offenders. They provide the necessary context for understanding and evaluating the case-specific information which counsel have a duty to present, absent express informed waiver of the right to have it presented: Ipeelee, at para. 60.

[55] Although systemic and background factors provide the necessary context to enable a judge to determine an appropriate sentence, rather than to excuse or justify the underlying conduct, it is only where the unique circumstances of an offender bear on culpability, or indicate which sentencing objective can and should be actualized, that they will influence the ultimate sentence: Ipeelee, at para. 83.

[56] Section 718.2(e) of the Criminal Code imposes a statutory duty on a sentencing judge to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case of an Aboriginal offender offends this statutory obligation and constitutes an error justifying appellate intervention: Ipeelee, at para. 87.

[57] As a matter of general principle, characteristics that make an offender "less blameworthy" have little impact on a dangerous offender application: R. v. B. (D.V.), 2010 ONCA 291, 254 C.C.C. (3d) 221, leave to appeal refused, [2011] S.C.C.A. No. 207, at para. 80. Where Gladue factors serve to establish the existence and availability of alternative Aboriginal-focused means aimed at addressing the environmental, psychological or other circumstances which aggravate the risk of re-offence posed by the Aboriginal offender, a sentencing judge must make reference to them: R. v. Jennings, 2016 BCCA 127, 384 B.C.A.C. 152, at paras. 35, 38; R. v. Standingwater, 2013 SKCA 78, 417 Sask. R. 158, at para. 51.

[58] To determine whether a lesser measure will adequately protect the public, there must be evidence before the sentencing judge that the dangerous offender can be safely released into the community. Mere hope, even a judicial assumption about the existence of community programs or other necessary resources, is inadequate to the task of addressing the reasonable expectation of protection of the public. Evidence of the existence and availability of community resources that will provide the essential level of extra-custodial supervision to adequately protect the public is necessary: R. v. Smarch, 2015 YKCA 13, 374 B.C.A.C. 291, at para. 48.

[59] Some courts have pointed out that the application of Gladue factors must be practical. Sometimes, the long-standing problems of a person declared a dangerous offender simply cannot be adequately ameliorated, the risk of re-offence reduced to an acceptable level, by Aboriginal programs or facilities alone. The failure to consider Aboriginal circumstances may be overcome by evidence regarding risk of re-offence and the absence of any reasonable possibility of eventually controlling that risk in the community: Jennings, at paras. 40-41.

[60] A final point has to do with the admissibility of fresh evidence on appeals from indeterminate sentences imposed in dangerous offender proceedings. Among other things, fresh evidence must be sufficiently cogent that it could reasonably be expected to have affected the result of the dangerous offender proceedings had it been adduced there along with the other evidence: R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728, at para. 15; R. v. Peekeekoot, 2014 SKCA 97, 446 Sask. R. 22, leave to appeal refused, [2014] S.C.C.A. No. 502, at para. 46. We are concerned here with a review of the sentence imposed by the trial judge in 2010, not with what the outcome might be were the proceedings held today. For the most part, evidence of institutional progress since sentence, including participation in and completion of various programs, exerts no meaningful influence on the trial judge's sentencing determination: Peekeekoot, at paras. 48-52; R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 40.

The Principles Applied

[61] As I will explain, I would decline to admit the proposed fresh evidence and would not give effect to this ground of appeal.

[62] At the outset, we acknowledge that the trial judge did not refer to either Gladue or to s. 718.2(e) in reaching his conclusion on sentence. Section 718.2(e) requires that, as a matter of substantive decision-making, an offender's Aboriginal status and related circumstances must be considered when determining an appropriate sentence. Despite this error, we are satisfied that express consideration of Gladue factors and s. 718.2(e) would have made no difference in the result.

[63] It is well settled that Gladue factors and s. 718.2(e) of the Criminal Code have limited relevance in dangerous offender proceedings. They have no say in whether an offender meets the statutory requirements for designation as a dangerous offender. Their influence has to do with the subsidiary question of whether there is a reasonable possibility of eventually controlling the offender's re-offence risk in the community, thus on the divide between dangerous and long-term offenders. With the paramount sentencing objective of protection of the public, the judicial discretion to determine an appropriate sentence is significantly circumscribed.

[64] The trial judge gave extensive consideration to whether there was a realistic possibility of eventual control of the risk of the appellant re-offending in the community. He concluded that the evidence disclosed no such possibility. The evidence revealed that the appellant had an abysmal record of response to treatment. He lacked any recorded history of completion of any treatment program. Repeated breaches of court orders. Unmotivated. Continued involvement in high-risk situations. An unreliable source of historical fact and promise of future conduct.

[65] In this case, the trial judge had to determine whether there was a realistic possibility of eventually controlling the risk that the appellant would re-offend in the community. It was not a close contest. An offender with an incurable anti-social personality disorder, several equally-incurable paraphilias and a significantly elevated likelihood of violent recidivism. One who had a richly documented history of treatment avoidance. It is inconceivable in these circumstances that Gladue considerations, especially without evidence of the availability, much less the nature of ameliorative programs, could have converted an unmanageable risk into a manageable one.

[66] I would not admit the proposed fresh evidence for want of cogency. We are not concerned here with the appellant's current situation, or with whether, if sentenced today, there would be a realistic possibility of controlling the risk of his re-offence in the community. Our focus is historical, statutorily locked into a consideration of the sentence imposed about seven years ago.

CONCLUSION

[67] For these reasons, the appeals against conviction and sentence are dismissed.

Released: March 3, 2017 ("DW")

"David Watt J.A."

"I agree. S.E. Pepall J.A."

"I agree. M. Tulloch J.A."