ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
Court File No.: SCA(P) 211/13
Date: 2014 03 04
B E T W E E N:
HER MAJESTY THE QUEEN
A. S. Andersen, for the Applicant/Appellant
Applicant/Appellant
- and -
A.A.
M. Halfyard, for the Respondent
Respondent
HEARD: February 21, 2014
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity, including the names of other Crown witnesses, shall not be published in any document or broadcast or transmitted in any way.
REASONS FOR JUDGMENT
[on appeal from a sentence imposed by
Nelson J. on March 22, 2013]
HILL J.
INTRODUCTION
[1] Following a plea of guilt to sexual assault, a suspended sentence was imposed upon the Respondent.
[2] The Crown appeals that disposition as an unfit sentence, pleading that:
(1) the sentencing court erred in principle by failing to apportion sufficient weight to the aggravating features of the case and the relevant sentencing principles
(2) the sentence imposed was demonstrably unfit and outside the appropriate range of sentence.
[3] For the reasons outlined below the appeal is dismissed.
THE OFFENCE
[4] As of August 2012, for about two years, the Respondent had been in a relationship with M.A., the 21-year-old sister of the complainant, E.A., who was 16 years of age.
[5] On August 8, 2012, at the home of M.A. and E.A.’s parents, the Respondent and M.A. slept in one of the two beds in a bedroom also occupied by E.A. sleeping in the second bed.
[6] At about 7:00 a.m., M.A. left the bedroom to shower. A family dog awakened the Respondent. He sat on the bed and looked across to where E.A. was sleeping with her back to him.
[7] The Respondent approached E.A.’s bed and twice rubbed a hand up and down her back before running two fingers from her back to her front touching her vagina over her underwear. When E.A. awoke, the Respondent quickly returned to the other bed pretending that nothing had happened.
[8] The complainant then reported the incident to her mother and texted a friend: “I’ll never forget this fucking day. My sister’s BF [boyfriend] was touching me! (I hope he fucking dies!!!!!)”.
[9] When E.A.’s mother confronted the Respondent, he at first denied any wrongdoing. When the police were contacted, the Respondent admitted what he had done.
CHRONOLOGY
[10] On August 9, 2012, A.A. was released on an undertaking to an officer-in-charge. He first appeared before the Ontario Court of Justice on September 10, 2012. Immediately following the judicial pre-trial held on January 24, 2013, on agreement of the Crown, the Respondent pled guilty before the pre-trial justice.
[11] The Respondent voluntarily engaged in an assessment/intervention and psycho-educational process with M. Kobsa, a psychotherapist, for a two-month period commencing in November 2012.
[12] The sentencing hearing was held on March 22, 2013 after a presentence report was prepared.
[13] The sentencing court imposed a suspended sentence for a period of 15 months during which the Respondent has been subject to a probationary order on the mandatory statutory terms and optional conditions including requirements that the offender:
(1) have no contact or communication, directly or indirectly, with E.A. subject to her written, revocable consent
(2) actively attend and participate in such assessment, counselling and rehabilitative programs as recommended by probation services
(3) perform 50 hours of community service
(4) write a letter of apology to E.A.
[14] Corollary orders were made respecting a DNA sample as well as a Sex Offender Information Registration Act declaration.
VICTIM IMPACT
[15] E.A.’s victim impact statement stated that since the offence her family had become closer. Her friendships have not changed. Nor have her hobbies. She still enjoys doing things in and out of school.
[16] E.A. stated that there are times when she does not feel safe when alone outside or when in a group which is “chilling” with guys.
THE OFFENDER
[17] The Respondent was born in the Philippines and moved to Canada with his family when he was aged 16.
[18] The Respondent left school after grade 11. He has worked at various jobs securing full-time employment in January 2013 at Apex Graphics.
[19] Prior to his arrest, the Respondent was involved in his church’s activities. He was 24 years old at the time of the offence and has no criminal record.
[20] The offender acknowledged to the PSR author that he was embarrassed to say that at the time of the offence he had fantasies about E.A.
[21] As of the date of sentencing, the Respondent and M.A. were residing with his parents and M.A. was five months pregnant.
[22] The PSR included these observations:
(1) the Respondent “expressed remorse for his behaviour and willingness to address his inappropriate patterns through counselling”
(2) A.A. accepted “full responsibility for his behaviour”
(3) the offender expressed a desire to apologize in person to the complainant and her family
(4) at the time of the offence, the Respondent was under a lot of pressure from M.A.
(5) the offender was devastated about hurting M.A.
[23] In addition, the PSR documented that the complainant and her family have forgiven the Respondent and did not want him to go to jail.
[24] Character letters filed on the Respondent’s behalf during the sentencing hearing described him as devoted to his family, a hard worker, dependable, honest, God-fearing, responsible, and remorseful for his actions.
[25] M. Kobsa’s January 14, 2013 assessment report concluded that:
(1) the Respondent “participated in therapy and counselling in a very open and forthcoming manner demonstrating a strong and genuine desire to address his behaviour”
(2) during the programming in which the offender accepted responsibility for his behaviour, he demonstrated remorse and shame, and the Respondent also attained a clear understanding of victim empathy
(3) there were “no indicators to suggest inappropriate sexual ideations [or] deviate thought processes”
(4) the risk of re-offence was “extremely low”.
SENTENCING SUBMISSIONS AT TRIAL
The Crown
[26] Crown counsel at trial, not Ms. Andersen, submitted that the offence was serious and would, if committed at the time of the sentencing hearing, attract a mandatory minimum sentence. Counsel further argued that, as a matter of law, a conditional sentence could not be imposed. During the course of her submissions, the prosecutor informed the trial judge that:
…we talked about a conditional sentence. It’s not available on my reading of the law. It would be illegal…It is not available.
So-so although that’s certainly something we had discussed at the judicial pre-trial…it’s not available in this particular case. So…a custodial disposition is warranted…
[27] Crown counsel submitted that a 6-month jail sentence followed by 15 months’ probation should be imposed – a non-custodial disposition would be inappropriate. Counsel emphasized that the sentence must discharge the need for general deterrence and denunciation in sexual crimes against young persons in circumstances of a breach of trust. It was submitted that the crime was premeditated in light of the offender’s sexual fantasies about E.A.
[28] Quite fairly, in her role as a minister of justice, the prosecutor also submitted to the sentencing court that:
(1) “I know the entire range is open from a suspended sentence to…the 12 months” which was the Crown’s original sentencing position
(2) “[t]here is clear mitigation in this case” including on account of the guilty plea
(3) the “young” accused had demonstrated genuine remorse
(4) the Respondent had recognized the wrongness of his conduct.
The Defence
[29] Defence counsel submitted to the sentencing court that a conditional discharge should be given serious consideration in light of the Respondent’s out-of-character error of judgment. Counsel argued that specific deterrence was not a real concern. The Respondent was described as an excellent candidate for rehabilitation.
[30] Counsel on behalf of the Respondent emphasized his remorse and acceptance of responsibility from the date of the offence, the early guilty plea, his age and the lack of a prior record, the support of his family, the position of the complainant and her family advocating against a jail sentence, his full-time employment and support of his pregnant partner, and the professional assessment concluding very low risk of re-offence.
[31] In the alternative, it was submitted that a suspended sentence would be a fit disposition.
[32] In exercising his right of allocution pursuant to s. 726 of the Criminal Code, the Respondent stated that he was truly very sorry for what occurred. He wanted an opportunity to apologize to the complainant. The Respondent added that he had learned from the experience and, in his words, “I just can never imagine doing something like that again”.
REASONS FOR SENTENCE
[33] The sentencing judge considered the sexual assault to be serious and to implicate a quasi breach of trust in circumstances where the Respondent had been permitted to sleep in the same bedroom as the 16-year-old complainant. The court concluded that while there have been some repercussions for E.A. as a consequence of her victimization, there has been a relatively minor impact upon her. Across the range of sexually assaultive behaviour, the Respondent’s crime was seen as toward the lower end of the scale.
[34] The sentencing court reviewed mitigating circumstances including the youth of the offender, his significant and genuine remorse, the early guilty plea, a positive PSR and positive reference letters, the lack of a prior record, good family support and a pro-social lifestyle, and ongoing full-time employment.
[35] Nelson J.’s reasons continued with these paragraphs:
I must consider principles of deterrence and – deterrence and denunciation and rehabilitation. They all come into play and to some degree, they conflict with each other.
It is important as the spokesperson for the community that I signal the community’s disgust for the behaviour in this situation and also signal the high regard that the community has to protect people’s sexual integrity and out obligation to protect vulnerable members of our community.
In addition, I must keep in mind principles of general deterrence, that is, the sentence should be such that similar offenders will be dissuaded from committing this particular type of offence.
I must say I am satisfied that specific deterrence is not as significant a factor as it would be in many situations given the genuine remorse and the steps taken by this particular offender and the other consequences of both the charge, the fact that he will be registered on the Sex Offenders Registry and that he will be subject to a sentence of the court. I am satisfied that deterrence is of lesser importance.
I also keep in mind he is a youthful first offender and rehabilitation looms large. Contrary to the submissions of the Crown, I do not agree that a jail sentence is needed to meet the sentencing’s objectives that I must give effect to. It is not proportionate to the offending behaviour. It ignores the mitigating factors and it does not take into account that this is a youthful first offender.
I also do not agree that a conditional discharge is appropriate. It is clearly in this young man’s interest. However, in my view the aggravating factors detailed above make such a disposition contrary to the public interest.
I do however find that a suspended sentence is appropriate and I suspend the passage of sentence and sentence you, A.A., to a period of 15 months’ probation.
PROFERRED FRESH EVIDENCE
[36] At the hearing of the appeal, the Respondent sought to introduce fresh evidence pursuant to s. 683 of the Criminal Code. Mr. Halfyard submitted that the proposed evidence would become relevant in the event that, pursuant to this court’s limited review jurisdiction under Part XXVII of the Code, reversible error was identified in the sentence or sentencing process of the trial court requiring the fitness of sentence to be examined anew.
[37] On behalf of the Appellant, while Ms. Andersen had no objection to the court reading the fresh evidence in determining its admissibility, she argued that it ought not to be admitted to simply repeat or enhance trial sentencing evidence/submissions – the traditional fresh evidence admissibility rules should be applied.
[38] The proposed fresh evidence (Exhibit # 1 on appeal) includes the following information:
(1) by November 2013, the offender completed the ordered 50 hours of community service at a Salvation Army thrift store in Streetsville, Ontario
(2) the Respondent completed the 10-week Sex Offender Relapse Prevention Program of the Ministry of Community Safety and Correctional Service in October and November 2012 ordered by the probation order which order will terminate June 21, 2014
(3) a letter of apology was written and forwarded to E.A. (a copy of which was filed)
(4) by a letter to the offender’s probation officer dated January 2, 2014, E.A. and her parents stated that they forgave the Respondent
(5) in a separate letter of February 17, 2014, E.A. expressed her forgiveness and acceptance of the offender’s apology, adding that she had no desire to see him go to jail
(6) the first child of M.A. and the Respondent was born on […], 2013/the couple rent a basement apartment in the offender’s parents’ home
(7) the Respondent continues to work full time at Apex Graphics as a machine operator with an annual salary of $28,000/M.A. is employed with a storage company and both incomes are required to support the family.
ANALYSIS
[39] A review of trial court sentencing dispositions is highly circumscribed on appeal. Sentencing is a highly discretionary function. “The trial judge’s discretion should not be interfered with lightly”: R. v. King, 2013 ONCA 417, at para. 39. Appellate intervention is permissible in limited circumstances only where the sentencing court proceeds on an error in principle, fails to consider a relevant factor, engages in overemphasis of appropriate factors or imposes a disposition which is a substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes.
[40] The point was put in sharp relief by Doherty J.A. in R. v. May, 2011 ONCA 74, at para. 8:
The trial judge had to shape a sentence that maximized the potential to achieve rehabilitation, which as indicated was a very real prospect in this case. However, at the same time, he had to impose a sufficient penalty to adequately reflect the needs of general deterrence and denunciation. Balancing these competing, if not somewhat antagonistic, principles, was not an easy task. I think it is fair to say that other trial judges might have come down with a different sentence. However, deference means yielding to the sentence imposed by the trial judge where the balancing engaged in by the trial judge does not reflect error in principle or result in a manifestly unreasonable sentence.
[41] Based on the submissions of counsel at trial as to their respective positions as to what would constitute a fit sentence for A.A., and in particular the representation that a conditional sentence was legally unavailable, the sentencing court only considered the option of incarceration versus the non-custodial options of a conditional discharge or suspended sentence.
[42] Regrettably, this approach was premised on a consideration of s. 742.1 of the Criminal Code as it read at the time when the offence was committed and also when the Respondent was charged. However, less than four months prior to the date of sentencing, s. 742.1 of the Code was amended by a provision of Bill C-10, the Safe Streets and Communities Act, S.C. 2012, which was proclaimed on November 30, 2012, permitting the imposition of a conditional sentence for sexual assault where the prosecution proceeded summarily. Accordingly, the offender, by virtue of s. 11(i) of the Charter, was entitled to have the trial court consider a legally complete range of sentencing alternatives including a conditional sentence.
[43] Where a sentencing judge is innocently misled in this way as to her sentencing jurisdiction, the deference ordinarily owed the sentencing court changes.
[44] Sentencing sexual offenders ordinarily warrants the courts in assigning primacy to the principles of general deterrence and denunciation. The trial judge recognized this mandate.
[45] Non-consensual sexual crimes engage violation of the victim’s sexual autonomy and inevitably risk harm.
[46] Characterizing the seriousness of a particular sexual assault within the range of potential offending behaviour can at times be seen, incorrectly, as depreciating the gravity of some of the offences.
[47] Generally, “a conditional sentence should rarely be imposed in cases of sexual touching by adults, particularly where…the sexual violation is by a person in a position of trust”.
[48] Nevertheless, at the point of commission of the offence here, for a prosecution proceeded with summarily, Parliament had left open the sentencing option of a conditional sentence.
[49] As a general rule, a sentencing submission that a statutory harshening of the penalties for a particular crime should inform present-time sentencing for an offence committed under a prior, and more lenient, sentencing regime, is unhelpful.
[50] Quite appropriately, Ms. Andersen accepted that a sentencing court is entitled to consider, as a relevant factor worthy of some weight, that the victim does not view incarceration as necessary.
[51] Without diminishing the gravity of the abuse-of-trust character of the Respondent’s offence, many of the aggravating features of sexual crimes associated with strong jurisprudential expressions of condemnation are absent here.
[52] Sentencing in this case was obliged to take into account the prescription of these subparagraphs of s. 718.2(a) of the Code.
[53] Of course, “[u]ndue emphasis ought not to be placed upon …statutory aggravating factors”.
[54] As E.A. was aged 16 at the time of the commission of the assault, subpara. 718.2(a)(ii.1) applied.
[55] Contrary to the Appellant’s position that “abused a position of trust or authority” in subpara. 718.2(a)(iii) should be given a broader meaning, I disagree.
[56] That said, the sentencing court, in employing the expression “quasi breach of trust” properly viewed the circumstance of the Respondent being permitted to sleep in the same bedroom as the victim as implicating a violation of a trust situation.
[57] In the present case, the touching was brief.
[58] Apart from the position of the victim and her family emphasizing reconciliation not custodial punishment, by way of personal mitigation these factors fell to be considered at the time of sentencing:
(1) at the outset, the offender admitted the sexual transgression to the police
(2) the Respondent entered a very early guilty plea
(3) the offender had no prior criminal record
(4) the Respondent voluntarily undertook psycho‑educational counselling
(5) the sexual transgression was entirely out of character
(6) the offender had a positive PSR
(7) the offender was genuinely and significantly remorseful
(8) the Respondent was employed full‑time and residing with his pregnant partner
(9) the offender had solid family support
(10) the Respondent was assessed as a low risk to re‑offend.
[59] The fresh evidence assists this court in determining what a fit disposition is at this point in time.
[60] In exercising its appellate authority the court should be reluctant to vary a non‑custodial sentence to a custodial sentence on a Crown appeal.
[61] An appellate court is justified in considering the passage of time since sentence was imposed.
[62] I have no doubt that the sentencing court, but for the legal error of eliminating a conditional sentence as an available sentencing option, would have imposed such a disposition.
[63] At this point in time, nearly a year after the sentencing, the interests of justice militate against the imposition of imprisonment or incarceration.
CONCLUSION
[64] Leave to appeal is granted. The appeal is dismissed.
Hill J.
DATE: March 4, 2014
COURT FILE NO.: SCA(P) 211/13
DATE: 2014 03 04
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
RE: R. v. A.A.
COUNSEL: A. Andersen, for the Applicant/Appellant
M. Halfyard, for the Respondent
HEARD: February 21, 2014
REASONS FOR JUDGMENT
[on appeal from a sentence imposed by
Justice Nelson on March 22, 2013]
Hill J.
DATE: March 4, 2014