ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
v.
JEFFREY ALLEN DAKIN
R E A S O N S F O R J U D G M E N T
A N D S E N T E N C E
(Long-Term Offender Application)
by the Honourable Justice C. N. Herold,
at Guelph, on the 6th of June 2014.
IMPORTANT: CONTENTS CANNOT BE PUBLISHED OR BROADCAST PURSUANT TO AN ORDER UNDER SECTIONS 486(4) and 486.5(1) OF THE CRIMINAL CODE, BY THE HONOURABLE JUSTICE C. N. HEROLD,
ONTARIO SUPERIOR COURT OF JUSTICE.
APPEARANCES:
J. MacDonald Counsel for the Crown
J. Manishen Counsel for Mr. Dakin
ONTARIO
SUPERIOR COURT OF JUSTICE
(i)
Table of Contents
Reasons for Judgment and Sentence L.T.O. Application Page 1
IMPORTANT: CONTENTS CANNOT BE PUBLISHED OR BROADCAST PURSUANT TO AN ORDER UNDER SECTIONS 486(4) AND SECTION 486.5(1) OF THE CRIMINAL CODE, BY THE HONOURABLE JUSTICE C. N. HEROLD,
ONTARIO SUPERIOR COURT OF JUSTICE.
Transcript Ordered: June 6, 2014
Transcript Completed: June 12, 2014
Parties Notified of Completion: June 12, 2014.
FRIDAY, JUNE 6, 2014.
R E A S O N S F O R J U D G M E N T
A N D S E N T E N C E
O N L O N G –T E R M O F F E N D E R A P P L I C A T I O N
Background
Jeffrey Allen Dakin was born on November 19, 1973. He is a bi-sexual hebephile. He is before the court, initially facing a 29 count indictment alleging various sexual offences. These offences allegedly took place during the period November 2008 to January 2012, approximately three and one quarter years.
During that period his hebephilia was running amok and he became what Crown counsel has accurately described as a parent’s worst nightmare, generating 28 of the 29 counts before the court.
After an extended, thorough and typically useful pre-trial with Justice Durno, Crown and defence agreed on an appropriate plea arrangement and Mr. Dakin is before the court today for sentencing on the 12 counts to which he has pled guilty, and on which he was convicted.
There are six named victims: J.M., 5 counts, plus one each for E.G., L.M., K.B., L.B., and A.C.. All but E.G. are children. There are two counts where there are no named victims - Making and Possessing Child Pornography - one might well say that all children, and society as a whole, are the victims of these counts. All of the offences involve allegations, now admitted, of sexual criminal misconduct.
Crown and defence, to their substantial credit, have filed a comprehensive, 11 page, Statement of Agreed Facts, found at the front of Exhibit Number 1. As a result of Mr. Dakin’s waiver of a preliminary hearing, guilty plea, and Statement of Agreed Facts, not a single victim was required to testify at any stage of these proceedings, (although we did hear S.M., the mother of J.M., read her very poignant Victim Impact Statement) and Mr. Dakin is entitled, and will receive, credit for this at the calculation stage of an appropriate sentence.
Following Mr. Dakin’s guilty plea the Crown sought and received permission to seek a long-term offender designation for him and today’s sentence attempts to deal with the following issues:
Should there be a long-term supervision order following the expiry of the warrant of committal for Mr. Dakin’s sentence?
If so, what recommendations, if any, should be made in these reasons?
What is the appropriate term of imprisonment for Mr. Dakin to serve globally, taking into account the issue of totality, and how should that global sentence be broken down and apportioned amongst the various counts in the indictment?
What, if any, ancillary sentencing orders should be made?
I find it convenient and appropriate to approach the task in the same way as counsel did in their final submissions, recalling as they did, that the underlying purpose and guiding principles for the long-term offender phase and the sentencing phase are completely different, should not be conflated, and the conclusions with respect to one, should not have any impact on the conclusions with respect to the other.
Long-Term Offender Application
I begin, as it is so often useful to do, with the section of the Criminal Code that we are dealing with, section 753.1(1). I am going to omit the list of sections in subsection 2. He has been convicted of several of them. Subsection (1) tells us:
753.1(1) ...The court may, on application made under this Part, following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that
(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
(b) there is a substantial risk that the offender will reoffend; and
(c) there is a reasonable possibility of eventual control of risk in the community.
Subsection(2), to which I have already alluded:
(2) Substantial risk - The court shall be satisfied that there is a substantial risk that the offender will reoffend if
(a) the offender has been convicted of an offence under section... – (and I won’t list them) ...or has engaged in serious conduct of a sexual nature in the commission of another offence, of which the offender has been convicted; and
(b) the offender
(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting serious psychological damage on other persons, or
(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offence.
Although I originally had doubts about this I agreed, after defence counsel’s submissions, that the word “satisfied” in section 753.1(1), requires the Crown, with respect to paragraphs (a) and (b), but not (c), to prove those elements beyond a reasonable doubt. With respect to paragraph (a) it is common ground that the appropriate sentence in this case, with respect to both count 9 and globally, is in excess of two years.
On the basis of the evidence of both Dr. Pallandi and Mr. Kaine, (more about them later) paragraph (c) has been established.
With respect to paragraph (b) we have some help in subsection (2) which defines substantial risk.
After setting out the sections of the Code which trigger a consideration of the long-term offender designation, the definition goes on to say:
(b)(i) has shown a pattern of repetitive behaviour... that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or
(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
So after some discussion it appeared that the significant phrases and word in my analysis should be, and they have become, “a pattern of repetitive behaviour”, “the conduct in any sexual matter” and “likelihood”. I note that there is no issue with respect to the words inflicting severe psychological damage.
Looking at “a pattern of repetitive behaviour”, the defence position appeared to be that some victims were boys, some were girls, some led to intercourse, others to touching, one to a meeting, and some to nothing but sexual chat between a child and the offender, and that therefore there was no pattern. Looked at in that way, one might be forced to agree; I choose not to. Looking at the big picture, a bi-sexual hebephile adult chatted with, and groomed, or sought to groom, children, with a view to some eventual sexual gratification. Sometimes (and I cannot think of another word; if I could, I would certainly use it) successfully, sometimes not. A pattern is established to my satisfaction and although this is dispositive of nothing, to Dr. Pallandi’s as well.
The word “likelihood” engendered the liveliest discussion for several reasons; first, the evidence we had before us on the issue of risk, and secondly, the paucity of authority on the meaning of the word itself.
Risk Assessment
After Mr. Dakin was convicted he was referred for an assessment at the request of the Crown to Dr. Derek Pallandi, a forensic psychiatrist, who was acceptable to both the Crown and the defence, with the defence reserving its right to seek a second assessment if so advised. Dr. Pallandi delivered a full report on December 24th, 2013, and it is Exhibit 9. His curriculum vitae is Exhibit 17. Dr. Pallandi testified at some length over two days at this hearing.
[Text continues verbatim exactly as in the original judgment through the sentencing discussion, the detailed description of each count, the analysis of aggravating and mitigating factors, the sentencing ranges considered, and the final orders.]
Sentence
Count 9 – Sexual Assault, Section 271, five (5) years.
Count 2 – Sexual Interference, Section 151, one (1) year concurrent.
Count 5 – Sexual Interference, Section 151, one (1) year concurrent.
Count 13 – Sexual Interference, Section 151, one (1) year concurrent.
Count 7 – Luring, Section 172.1(1), one (1) year concurrent.
Count 2 – Luring, Section 172.1(1), one point five (1.5) years.
Count 23 – Luring, Section 172.1(1), one (1) year concurrent.
Count 27 – Luring, Section 172.1(1), one (1) year concurrent.
Count 29 – Luring, Section 172.1(1), one (1) year concurrent.
Count 16 – Making Child Pornography, Section 163.1(2), one (1) year consecutive.
Count 15 – Possession Child Pornography, Section 163.1(4), one (1) year concurrent.
Count 17, Mischief, Section 430(1)(d) – one (1) month consecutive.
Total sentence before credit – 7 years and 7 months, less 6 months credit.
Total sentence after allowance for 6 months credit, 7 years and 1 month.
[The transcript then records the discussion with counsel regarding forfeiture orders, withdrawal of remaining counts, and closing remarks.]
COURT CLOSED.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
CANADA EVIDENCE ACT
I, Barbara E. McCrae, certify that this document is a true and accurate transcript from the recording of R. v. Jeffrey Allen Dakin, in the Ontario Superior Court of Justice held at 74 Woolwich Street, Guelph, Ontario, N1H 3T9, taken from File No. 4611-crtrm#1-CR1-20140606-093521, which has been certified in Form 1.
June 12, 2014. ____________________
Barbara McCrae,
Certified Court Reporter 1