WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under s.486.4(1) (Sexual Offences) of the Criminal Code.

Court Information

Ontario Court of Justice

Date: 2016-04-20

Court File No.: Barrie 15-05011, Barrie 15-05001

Parties

Between:

Her Majesty the Queen

— AND —

A.T.

Long Term Offender Application and Sentencing

Heard: April 12, 13, 2016

Sentencing: April 20, 2016

Counsel:

• Mr. Indi Kandola, counsel for the Crown
• Mr. Andrew Perrin, counsel for the accused

KENKEL J.:

Introduction

[1] In the Spring and Summer of 2013, A.T. competed with other young women for the attention of Shayne Lund. It was a dangerous game. Lund was preoccupied with sex and by that time his interests had moved to the abuse of children and animals. He was manipulative and demanding, engaging A.T. and others to assist in fulfilling his desires. A.T. supported and encouraged Lund in hopes that she would win his favour. Over a few short months she went from discussion of child abuse and bestiality to encouragement of those behaviours. She then discussed and planned sexual crimes with Lund and eventually she went beyond discussion and actually assisted him in committing sexual crimes against children. There were four children victimized – a two year old, two four year olds and a five year old.

[2] A.T. pleaded guilty after a preliminary hearing and re-election to the 11 offences listed in paragraph 3 below. The Crown applies for a Long Term Offender (LTO) designation, a sentence of 4-6 years, and a Long Term Supervision Order (LTSO) for the maximum period of 10 years. The defence submits that a sentence of 4 years less credit for the substantial time served is appropriate. The defence concedes that the statutory criteria for an LTSO have been met, but submits that a 2 year term would be sufficient.

Charges

[3] A.T. pleaded guilty to the following counts:

BARRIE INFO 15-05011

• 9 Administer Noxious Substance s.465(1)(c)
• 11 Make available child pornography s.163.1(3)
• 22 Agree to sexually assault person under 16 s.172.2(1)(b)
• 23 Conspiracy to commit abduction s.465(1)(c)
• 24 Agree to sexually assault person under 16 s.172.2(1)(b)
• 40 Conspire to commit sexual assault s.465(1)(c)
• 60 Conspire to administer noxious substance person under 16 s.465(1)(c)
• 62 Make available child pornography s.163.1(3)
• 64 Sexual Assault s.271
• 65 Conspire to commit Sexual Assault s.465(1)(c)

BARRIE INFO 15-05001

• 1 Aid and Abet Sexual Assault s.271

Summary of the Facts of the Offences

[4] A.T. met Shane Lund at school. He was older but he ended up in one of her grade 10 classes. They started dating when she was in grade 11. Lund told A.T. she could be his girlfriend if she'd agree to "threesome" sex with other girls. From there she engaged in an on again/off again relationship with Lund who was seeing other young women throughout. He was manipulative, making sexual demands that became increasingly dangerous. A.T. encouraged him and complied with some of his requests in order she says to compete with other girls for his affection.

[5] Mr. Lund sent A.T. multiple cartoon images of animals having sex and images of people dressed as animals having sex. Over time further images he sent showed that Lund had a sexual interest in children as well.

[6] On May 18, 2013 A.T. took several digital photographs of a young 2 year old girl having her diaper changed. She sent copies of the images to Lund and those images were later found on his computer.

[7] A.T. discussed plans with Lund to obtain access to the 2 year old. A.T. said she was pushing to be allowed to take care of her. She worried that they were both so excited about sex with the 2 year old they might forget to record the experience. "A.T. – I mean that we both want this really bad and we may forget to take the photos bc we're having too much fun .."

[8] On June 14, 2013 A.T. asked her friend if she could watch over her 5 year old niece. She told the friend that she was working on a school project and needed to see how the young girl would play with other children. Her real reason was to provide the 5 year old to Lund.

[9] A.T. took a photo of the young girl in the bathroom with her underwear down. The image is focused on the vaginal area. She sent that to Lund. At the house A.T., Lund and the young girl played a blindfolded "tasting game" where they had to guess different tastes. Lund used that pretext to place a flavoured condom on his penis and put it into the girl's mouth. In a text June 18th Lund noted how the young girl resisted. On July 10th A.T. and Lund discussed the incident further and A.T. asked if it was ok if she watched when he had sex with children. She described the incident with the condom as a "turn on" for her and when he approved she said, "OMG yes please! So need that".

[10] On June 21, 2013, A.T. and Lund conspired together to administer a noxious substance (Gravol) to the same child and then sexually assault her at a drive-in movie. That didn't occur but the text messages show Lund making repeated demands to have sex with young children and A.T.'s encouragement. They then conspired to kidnap a child at random. "LUND – I swear I'm gunna walk into the girls bathroom and take one". "A.T. – Dare you … kids go missing at the drive-in all the time. Then when ur done u put her in the playground …".

[11] A.T. also wrote stories for Lund featuring bestiality or sex with children. She received child pornography photos and images from Lund and sent back messages of approval. On June 30th Lund sent A.T. 50 images ranging from bestiality to prepubescent children including children being sexually abused. Her response, "Those r so hot … Ummm I want it … " Numerous similar distributions occurred.

[12] June 30th, 2013 A.T. also sent further text messages to Lund discussing his interest in sex with children including the 2 year old.

[13] Lund visited a friend with a 4 year old daughter. While there he touched the child's vagina. He also took photos of her. In texts July 8th 2013 A.T. encouraged Lund to perform more sexual acts with the child. She suggested he insert his finger into the child and in later texts says she is disappointed that he didn't do it.

[14] On July 14th, 2013 A.T. and Lund planned via text for Lund to have sex with a horse that belonged to a mutual friend. A.T. initiated the conversation and told Lund "I want to see it". She agreed to take him to where the animal is kept. That conversation continued on July 27th, 2013.

[15] On July 17th 2013 A.T. offered to take the 5 year old to a beach. She wanted to provide Lund with access to the child. After swimming she took 18 photos of the young girl depicting her vaginal and breast area. She sent the images to Lund. Lund brought along a Go Pro waterproof camera and made his own recording.

[16] With the assistance of A.T., Lund sexually assaulted the young girl. He touched her vagina and attempted to penetrate her. She struggled and screamed throughout. The next day A.T. texted to Lund, "I'm trying :( I didn't know she was a screamer .. I got her. And I thought the water could hide what u were doing and would distract her …". They then plotted to find younger children who wouldn't resist. "A.T. – I think if u want them to b awake we need younger … I tried keeping her between us in the water when you held me against her to u. But she just kept freaking out. :( the only way it will work is if she is out …But watching u with her is what made me happy …. I just don't want too young bc then u won't fit." The next day they again discussed kidnapping a child and discussed knocking out the same girl they'd sexually assaulted at the beach.

[17] On July 19th, 2013 A.T. and Lund conspired to sexually assault another 4 year old girl who was another niece of a friend.

[18] August 2nd, 2013 A.T. texted Lund regarding plans to borrow two dogs from A.T.'s former stepfather so Lund could sexually abuse them.

[19] A.T. and Lund constantly discussed sexual abuse of children and bestiality throughout that summer. The only line she drew was when Lund suggested he would have sex with their own children in the future. A.T. finally said that would be illegal. She said she'd do anything to hold on to him, but she would never let him touch their baby. The notion that they might have had children was real - A.T. had two pregnancies during her time with Lund but both pregnancies were terminated.

Crown Position

[20] The Crown submits that the accused should be designated a Long Term Offender and sentenced to a term of imprisonment of 4 to 6 years, less consideration for pre-trial custody. The Crown submits that the higher end of that range is appropriate in this case. The term of imprisonment should be followed by a Long Term Supervision Order for the maximum period of 10 years.

Defence Position

[21] The defence submits that a 4 year sentence is appropriate but notes that the accused's extensive pre-trial custody comes close to that point. In those circumstances a sentence of time served for a first offender might be considered.

[22] The defence concedes that the Crown has proved an LTO designation results, but submits that a two year LTSO is appropriate in this case.

LTO and LTSO's – The Statutory Framework

[23] Section 753.1 of the Criminal Code governs Long Term Offender (LTO) applications. A court may find an offender to be a long-term offender if:

• It would be appropriate to impose a prison sentence of 2 years or more;
• There is a substantial risk that the offender will reoffend and
• There is a reasonable possibility of eventual control of the risk in the community.

[24] Where a long-term offender designation is made, section 753.1(3) directs the court to impose an appropriate sentence of not less than two years and to order that the offender be subject to a long-term offender supervision order (LTSO) for a period up to 10 years.

[25] The period of imprisonment and the period of the long-term supervision order are separate aspects of sentence. Each serves a different purpose. The principle objective of a prison sentence is punishment in accordance with the sentencing principles set out in the Criminal Code. The two objectives of an LTSO are to ensure that the public is protected during supervised reintegration into society and to ensure that rehabilitation and reintegration is successful. R. v. Ipeelee 2012 SCC 13 at para 48, R v. LM 2008 SCC 31 at para 47.

Long Term Offender

[26] Both parties agree that given the offences for which A.T. has been convicted and the circumstances of those offences she is deemed a substantial risk pursuant to s.753.1(2)(a). The offences include enumerated offences in circumstances that show repetitive behaviour with a likelihood of causing injury or severe psychological trauma to children.

[27] The evidence otherwise satisfies the "substantial risk" criteria notwithstanding the overall "low risk" conclusion. As Dr. Wilkie explained, while female offenders such as A.T. generally fall into a "low risk" category, given the gravity of A.T.'s conduct and offences that means a low probability of highly dangerous conduct. The danger posed is unlikely but severe if it occurs. The "low risk" overall finding was based on supervision post release. It is only with strict supervision and counselling in the community that A.T. presents a low risk to re-offend.

[28] The parties agree that a sentence of over 2 years applies and that there is a reasonable possibility of control of the risk in the community. The Crown has proved that the circumstances of the offences and of this offender satisfy the long-term offender criteria. I find A.T. to be a Long-Term Offender.

Sentence – Aggravating Factors

[29] Beyond the gravity of the offences the aggravating factors include:

• Breach of trust – using her connection to friends and family to be placed in the care of children solely for the purpose of providing those children to Lund for his sexual gratification
• Betrayal of family – She betrayed her mother by providing candid photos of her to Lund
• Planning – There's a high degree of planning involved including detailed plans to overcome the resistance of actual children who had tried to resist sexual assault and plans to kidnap and sexually abuse other children
• Escalation – A.T. suggested to Lund that he consider even younger children to avoid resistance and detection
• Danger – she planned in detail methods of kidnapping and raping children, while she was aware that Lund had access to children and was sexually abusing them. She encouraged and aided him despite knowing that children were in danger.
• Level of Participation – she planned, encouraged and participated directly in child sexual assaults
• Number of Victims – four children were victimized by the point of police intervention – a two year old, two four year olds and a 5 year old
• Victim Impact – The negative impact of the offences as shown in the victim impact statements. The impact on victims is an important consideration on sentence. R. v. Drabinsky 2011 ONCA 582

Mitigating Factors

[30] There are several important mitigating factors:

• No criminal record – The accused has no criminal record
• Youth – She's a youthful offender
• Potential for rehabilitation – A.T. was attending college at the time of arrest. Her psychiatric and psychological testing shows there are no cognitive or mental health barriers that would limit her potential for future employment or education
• Guilty plea – The guilty plea is a mitigating factor even after a preliminary hearing
• Limited remorse – There is some limited evidence of remorse beyond the guilty plea. While A.T.'s statement to the court referred to remorse she was not truthful with the doctors and showed little insight into her conduct. She remains focused on justifications and excuses. The only time in the difficult proceedings when A.T. showed regret and sorrow was when the Crown submitted the victim impact statement showing what a close friend thought of her. When the discussion was about A.T., she became very emotional and moved to tears. She was plainly affected. The detailed discussions of child abuse over the many months of these proceedings had no such impact. I find her expression of remorse must be given limited weight in that context.

[31] As with her co-accused, A.T. became sexually involved with the older Shayne Lund when she was 15. She was subject to his manipulation towards deviant sexual behaviour from the outset. That doesn't provide her with an excuse for her horrible judgment and actions as an adult, but I find it is a relevant circumstance on sentence.

Risk Assessment

[32] Dr. Wilkie is the forensic psychiatrist who conducted the risk assessment of A.T. with input from several sources including the testing performed by the psychologist Dr. Abramowitz.

[33] The assessment report found that A.T. tended to present herself in an overly positive fashion and she rationalized many of her actions. A.T.'s rationalizations showed a lack of insight into the behaviours that led to the index offences and a failure to take full responsibility for those actions.

[34] When speaking with the doctors, A.T. also denied certain aggravating facts which she had admitted as part of the agreed statement of fact on plea. It was later confirmed directly by the accused during her sentencing hearing that she does not dispute the facts she had previously admitted. Her lack of candour with the doctors is another indication that supports their conclusion that she lacks insight and has not taken full responsibility for her actions.

[35] During the assessment A.T. acknowledged that she encouraged the accused's deviant interests even though she said she didn't share those interests. Such was her need for his attention that she was willing to give him access to children, however she took the position that she often tried to control that access to satisfy his urges without causing harm. There is some support in the text message record for A.T.'s assertion that despite her encouragement of Lund she often made excuses to delay his access to children. The whole of her conduct though shows she was quite prepared to expose children to harm if that satisfied her need for attention from Lund.

[36] On a more positive note, there's no evidence that A.T. had any interest in sexual deviance prior to meeting Lund or outside the context of that relationship. She has no criminal record. These offences were committed in one period over a few months in 2013.

[37] A.T. cooperated with psychological tests and those tests showed no intellectual deficits that would be a barrier to rehabilitation. Tests did not reveal any personality disorder or psychopathology. She was found to have a high need for social approval and a tendency to present herself in a favourable light. She has a tendency towards anxiety and a depressive mood. There's no evidence of a major mental illness.

[38] Dr. Wilkie testified that A.T. is at a low risk to re-offend if there's appropriate supervision and support upon release. I find her conclusion is not just based on the low initial base rate of female re-offenders but is supported in the evidence regarding this offender. However, the circumstances and severity of these offences show a need for intensive counselling to ensure that the risk stays low in the future. Close long term supervision and intensive counselling is essential to ensure that A.T. doesn't fall back into similar patterns of behaviour that pose such a serious risk of harm to others. At page 61 of her report Dr. Wilkie recommended a number of terms and conditions that should be applied to her supervision order. While it is up to Correctional Services to determine the appropriate conditions of the LTSO, the sentencing court may make recommendations in that regard and in this case I recommend they consider the doctor's suggestions.

Mandatory Minimum Sentences

[39] The Safe Streets and Communities Act Bill C-10, 41st Parliament 1st Session, received Royal Assent on March 13, 2012. The Bill contained many amendments and many different effective dates for those changes, but the changes in Part II that relate to sexual offences came into force August 9th, 2012 and apply to the charges here which involve acts that took place after that time.

[40] Five mandatory minimum sentences apply:

Barrie Information 15-05011

• 9 Administer Noxious Substance s.465(1)(c)
• 11 Make available child pornography s.163.1(3) – 1 year min.
• 22 Agree to sexually assault person under 16 s.172.2(1)(b) – 1 year min.
• 23 Conspiracy to commit abduction s.465(1)(c)
• 24 Agree to sexually assault person under 16 s.172.2(1)(b) – 1 year min.
• 40 Conspire to commit sexual assault s.465(1)(c)
• 60 Conspire to admin. noxious substance s.465(1)(c)
• 62 Make available child pornography s.163.1(3) – 1 year min.
• 64 Sexual Assault s.271 – 1 year min.
• 65 Conspiracy to Commit Sexual Assault s.465(1)(c)

Barrie Information 15-05001

• 1 Aid and Abet Sexual Assault s.271 – 1 year min.

The Appropriate Sentence

[41] In sentencing a long-term offender, protection of the public is the primary goal. For this youthful first-offender, rehabilitation remains an important secondary consideration.

[42] Offenders who put the safety of innocent children at risk to satisfy their sexual needs must know that they will pay a heavy price. R. v. D.D.. In my view, that instruction by the Court of Appeal must apply equally to those like A.T. who encourage, enable and assist offenders in committing sexual crimes against children.

[43] Even for first offenders, deterrence, denunciation and the protection of society are the paramount considerations on sentence where the offences involve the sexual abuse of children. Criminal Code s 718.01, R. v. RTM 2008 ONCA 47. The same considerations apply in relation to the child pornography offences. R v Rotman [2015] OJ No 5108 (CA) at para10. Rehabilitation remains a goal, particularly in the case of a youthful offender with no prior record. Criminal Code s 718(d)

[44] "Mid to upper single digit penitentiary sentences are appropriate where an adult in a position of trust sexually abuses a young child on a regular basis over a substantial period of time." R. v. HS 2014 ONCA 323 at para 42, R. v. DD at para 44. The 2005 amendments to the Criminal Code that imposed minimum sentences for many sexual offences against children have shown Parliament's intent that such sentences be increased overall. Pre-amendment sentences must be considered in that light. R. v. KDH 2012 ABQB 471 at para 51

[45] In this case both parties agree that an appropriate sentence does not fall below the 4 year mark. The Crown urges the upper end of a 6 year range given the aggravating features.

[46] A.T. moved rapidly from discussion of abusive sexual behaviour, to rationalization, to encouragement, then planning sex crimes and actual engagement in child sexual abuse, all in a matter of a few months. The gravity of her offences, her level of involvement, the extent of her actions, the number of victims and her lack of insight into her behaviour all distinguish A.T.'s case from that of her co-accused K.T. (no relation).

[47] It's important to remember that A.T. is a youthful first offender who became involved with the manipulative Lund at a young age. She has been detained since arrest so her first experience of custody is likely to have had a significant deterrent impact upon her.

[48] Considering the circumstances of the offences and this accused, I find that the appropriate global sentence is one of 4 years 6 months. That sentence is apportioned as follows (grouped by complainant):

BARRIE INFO. 15-05011

• 64 Sexual Assault s.271 – 2 yrs
• 9 Consp. Admin. Noxious Substance s.245(a)/ s.465(1)(c) – 2 yrs conc.
• 11 Make available child pornography s.163.1(3) – 1 yr conc.
• 22 Agree to sexually assault person under 16 s.172.2(1)(b) – 2 yrs conc.
• 23 Conspiracy to commit abduction (under 16) s.465(1)(c) – 2 yrs conc.
• 24 Agree to sexually assault person under 16 s.172.2(1)(b) – 2 yrs conc.
• 60 Conspire to admin. noxious substance s.245(a)/s.465(1)(c) – 1 yr conc.
• 40 Consp. to commit sexual assault s.465(1)(c) – 1 yr 6 mos consec.
• 62 Make available child pornography s.163.1(3) – 1 yr conc.
• 65 Consp. to commit sexual assault s.465(1)(c) – 1 yr 6 mos conec.

BARRIE INFO. 15-05001

• 1 Aid and Abet Sexual Assault s.271 – 1 yr consec.

TOTAL SENTENCE: 4 YEARS 6 MONTHS

[49] Pre-trial custody may be taken into account on sentence. That includes consideration of pre-trial custody in relation to the statutory minimum sentences R. v. Wust 2000 SCC 18 as well as with respect to the sentence imposed pursuant to s.753.1(1)(a). R. v. Hall. If the sentence imposed is equivalent to 2 years or more then the first LTO pre-condition is met even where the remaining sentence after pre-trial custody is deducted falls below that mark.

[50] A.T. was arrested Wednesday October 2nd, 2013. From October 2nd, 2013 to Wednesday April 20th 2016 she's spent 932 days in pre-trial custody. That's 2 years, 6 months and 19 days. Both counsel agree that pre-trial custody should be credited at 1.5 to 1 per R. v. Summers 2014 SCC 26. 932 x 1.5 = 1398 days. 1398 days is 3 years and 10 months (rounded up by 2 days).

[51] Deducting 3 years and 10 months from the global sentence of 4 years and 6 months leaves a remaining sentence to be served of 8 months.

[52] The warrant of committal requires that the court note the sentence imposed with respect to each count, including the time that would have been imposed before any credit, the pre-trial custody considered just on that count, the credit given for the pre-trial custody on that count, and the remaining sentence to be served. I'm aware that noting a particular sentence for each count is preferable, but in this case dividing pre-trial custody among 11 counts and attributing a portion of time to each then determining credit per count and weaving that among the various concurrent and consecutive sentences per count would not be practical. I've noted the attribution of sentence above in these reasons which should allow for meaningful review, but the warrant of committal will reflect the global sentence of 4 years 6 months on each count with 8 months to serve on each count concurrent.

[53] Despite the 8 months remaining to be served, the sentence remains a federally administered sentence given the LTO order and the consideration of pre-trial custody in relation to minimum sentences. R. v. Mathieu 2008 SCC 21 at para.7.

The Long Term Offender Supervision Order

[54] I find that the risk posed by this offender can be met with supervision for a period of 6 years.

[55] This order must include the conditions set out in r.161(1) of the Corrections and Conditional Release Regulations, SOR/92-620. The National Parole board may impose any other conditions necessary to protect society and reintegrate the offender. Corrections and Conditional Release Act SC 1992 c20. The LTSO begins upon warrant expiry of the sentence of imprisonment. s.753.2(1)

Ancillary Orders

[56] Both parties wished to address ancillary orders upon receipt of this sentence. An application for a s.161 order, s.109, SOIRA, 743.2, VFS, DNA and forfeiture of offence related property is anticipated.

Conclusion

[57] A.T. has been found to be a long-term offender. She is sentenced to a global custodial sentence of 4 years 6 months less credit for time served which results in a remaining custodial term of 8 months. The custodial term will be followed by a Long Term Supervision Order for 6 years.

[58] The psychiatric report, agreed statement of fact on plea and a copy of these reasons will be forwarded to the Correctional Service of Canada as required under s.760 of the Criminal Code.

Released: April 20, 2016

Justice Joseph F. Kenkel