R. v. D.D., (2002) 157 O.A.C. 323 (CA)

• Judge: Moldaver, Feldman and MacPherson, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 21, 2002
• Jurisdiction: Ontario
• Citations: (2002), 157 O.A.C. 323 (CA);2002 CanLII 44915 (NS CA);2002 CanLII 44915 (ON CA);58 OR (3d) 788;163 CCC (3d) 471;[2002] CarswellOnt 881;[2002] OJ No 1061 (QL);157 OAC 323;53 WCB (2d) 188

R. v. D.D. (2002), 157 O.A.C. 323 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. MR.041

Her Majesty The Queen (respondent) v. D.D. (appellant)

(C33289)

Indexed As: R. v. D.D.

Ontario Court of Appeal

Moldaver, Feldman and MacPherson, JJ.A.

March 21, 2002.

Summary:

The accused was found guilty of 11 sex-related offences involving four young boys. The trial judge determined that a global sentence of nine years and one month was appropriate, but this was reduced to eight years and one month because of time served in pre-sentence custody. The accused applied for leave to appeal the sentence.

The Ontario Court of Appeal granted leave, but dismissed the appeal. The court addressed the issue of what was the "appropriate range of sentence for adult offenders who prey upon innocent children to satisfy their deviant sexual cravings".

Criminal Law - Topic 5833.1

Sentencing - Considerations - Child abuse - [See first Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 5848.9

Sentencing - Considerations - Sexual offences against children - The accused was found guilty of 11 sex-related offences involving four young boys - He received a global sentence of nine years and one month (reduced by a year for time served) - The accused appealed, arguing that the six year global sentence, considered fit in R. v. Stuckless (Ont. C.A., 1998), represented the high-water mark for adult offenders who groom and sexually abuse innocent children over prolonged periods of time - He argued that there were no significant differences between his case and the Stuckless case which would justify the additional three years' imprisonment imposed upon him - The Ontario Court of Appeal dismissed the accused's appeal - The court rejected the accused's submission that there were no significant differences between this case and Stuckless, and "sharply" disagreed with the accused's contention that the 6-year global term, considered to be a fit sentence in Stuckless, represented the high-water mark for sexual predators who prey on innocent children - See paragraphs 1 to 47.

Criminal Law - Topic 5848.9

Sentencing - Considerations - Sexual offences against children - The Ontario Court of Appeal, per Moldaver, J.A., stated that "... I sharply disagree with the appellant's contention that the 6-year global term, considered to be a fit sentence in Stuckless [Ont. C.A., 1998], represents the high-water mark for sexual predators who prey on innocent children. On the contrary, for reasons that will become apparent, I consider the 6-year global sentence in Stuckless to be at the lower end of the appropriate range of sentences for crimes of the magnitude committed by Stuckless. It follows, in my view, that in the appellant's case, where the facts and circumstances are even more egregious than those in Stuckless, the higher 9-year global sentence selected by the trial judge was appropriate. Indeed, if anything, I believe it fell at the lower end of the appropriate range of sentences for crimes as grave as those committed by the appellant." - See paragraph 4.

Criminal Law - Topic 5848.9

Sentencing - Considerations - Sexual offences against children - The accused was found guilty of 11 sex-related offences involving four young boys - He received a global sentence of nine years and one month (reduced by a year for time served) - The accused appealed the sentence - The accused argued that he should benefit from the fact that he was not diagnosed as a pedophile (i.e., this should be a mitigating factor) - The Ontario Court of Appeal disagreed - The court stated that if the accused was not a pedophile and he did not suffer from some other psycho-sexual disorder that could account for his reprehensible behaviour, then arguably his degree of moral culpability would rise significantly - "Surely, that cannot translate into a mitigating factor weighing in his favour" - See paragraphs 39 to 44.

Criminal Law - Topic 5848.9

Sentencing - Considerations - Sexual offences against children - The Ontario Court of Appeal discussed the sentencing of pedophiles - See paragraphs 39 to 44 - The court stated that "as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted..." - See paragraph 44.

Criminal Law - Topic 5848.9

Sentencing - Considerations - Sexual offences against children - The Ontario Court of Appeal discussed the sentencing of pedophiles in a case where the accused was convicted 11 sex-related offences involving four young boys and received a global sentence of nine years and one month (reduced by a year for time served) - The court, in affirming the sentence, stated that "the appellant was prepared to risk the lives of innocent children to satisfy his sexual cravings. His conduct was reprehensible and it must be condemned in the strongest of terms. The harm occasioned by the appellant and others like him is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear - prey upon innocent children and you will pay a heavy price!" - See paragraph 45.

Criminal Law - Topic 5932

Sentence - Sexual assault - [See first Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - Over a 7-year period when the accused was between the ages of 25 and 32, he befriended four young boys ranging in age from 5 to 8 years and for periods of time ranging from 2 to 7 years, he regularly and persistently engaged them in various sexual activities - The abuse included acts of masturbation and oral sex, group sexual encounters involving the accused and several of the boys and attempted and completed acts of anal intercourse - To obtain co-operation, he gave the boys expensive gifts, took them on "fun-filled adventures", etc. - When necessary he used violence and threats to compel compliance and secrecy - Tremendous impact on victims and families - Accused had traditional upbringing - No evidence of mental illness - Not diagnosed as a pedophile - The accused was found guilty of 11 sex-related offences and received a global sentence of nine years and one month (reduced by a year for time served) - The Ontario Court of Appeal refused to disturb the sentence - See paragraphs 1 to 47.

Cases Noticed:

R. v. Stuckless (G.) (1998), 111 O.A.C. 357; 127 C.C.C.(3d) 225 (C.A.), refd to. [para. 2].

R. v. W.B.S.; R. v. M.P. (1992), 127 A.R. 65; 20 W.A.C. 65; 73 C.C.C.(3d) 530 (C.A.), refd to. [para. 37].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 44].

R. v. L.K.W. (1999), 126 O.A.C. 39; 138 C.C.C.(3d) 449 (C.A.), refd to. [para. 44].

Counsel:

Michelle Fuerst, for the appellant;

Kenneth L. Campbell, for the respondent.

This appeal was heard on February 1, 2002, before Moldaver, Feldman and MacPherson, JJ.A., of the Ontario Court of Appeal.

Moldaver, J.A., delivered the following judgment for the Court of Appeal on March 21, 2002.