R. v. D.G.F.,

• Jurisdiction: Ontario
• Judge: Feldman, Blair and Watt, JJ.A.
• Neutral Citation: 2010 ONCA 27
• Citation: (2010), 259 O.A.C. 364 (CA),2010 ONCA 27,98 OR (3d) 241,250 CCC (3d) 291,72 CR (6th) 299,[2010] OJ No 127 (QL),259 OAC 364,[2010] O.J. No 127 (QL),98 O.R. (3d) 241,(2010), 259 OAC 364 (CA),259 O.A.C. 364
• Date: 28 October 2009
• Court: Court of Appeal (Ontario)

R. v. D.G.F. (2010), 259 O.A.C. 364 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. JA.027

Her Majesty the Queen (applicant/appellant) v. D.G.F. (respondent)

(C48235; 2010 ONCA 27)

Indexed As: R. v. D.G.F.

Ontario Court of Appeal

Feldman, Blair and Watt, JJ.A.

January 18, 2010.

Summary:

The accused pleaded guilty to two counts of sexual assault of his four-year old daughter, three counts of making child pornography using his four-year old daughter, one count of possession of child pornography and one count of distributing child pornography.

The Ontario Superior Court sentenced the accused to four years in jail less 28 months for the 14 months that the accused spent in pretrial custody, plus three years' probation. The Crown appealed, with leave.

The Ontario Court of Appeal allowed the appeal. The accused was sentenced to seven years in jail, which was what the Crown had asked for since the accused's guilty plea was entered on that basis. The accused was to be given credit for all time already served.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 5804

Sentencing - General principles - Consecutive sentences - Reduced total term (totality principle) - [See Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - [See Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 5834.1

Sentencing - Considerations on imposing sentence - Seriousness of offence - [See Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 5834.6

Sentencing - Considerations on imposing sentence - Seriousness of circumstances - [See Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - [See Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children (incl. child pornography) - The accused pleaded guilty to two counts of sexual assault of his four-year old daughter, three counts of making child pornography using his four-year old daughter, one count of possession of child pornography and one count of distributing child pornography - The court described the details as "horrific" with the culminating act being a live sexual assault of the accused's daughter transmitted by webcam in an internet chat room set up for paedophiles - The trial judge sentenced the accused to four years in jail less 28 months for the 14 months that the accused spent in pretrial custody, plus three years' probation - The Ontario Court of Appeal quashed that sentence as unfit - The court held that in focusing on the totality principle, the trial judge had failed to give sufficient weight or effect to the overall gravity of the accused's course of conduct and the cumulative circumstances that put his offences at the high end of moral culpability - The trial judge also failed to address the interrelation of the crimes and the need for a sufficiently long global sentence to address the seriousness and moral blameworthiness of the accused's overall criminal conduct - Finally, the trial judge had not referred to the live broadcast as an act that raised the accused's conduct to a "new level of criminality" - The court substituted a sentence of seven years in jail, which was what the Crown had asked for since the accused's guilty plea was entered on that basis - The accused was to be given credit for all time already served - See paragraphs 1 to 35.

Criminal Law - Topic 5874

Sentence - Manufacture, distribution or possession of obscene matter (incl. child pornography) - [See Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 5932

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

Cases Noticed:

R. v. Kwok (A.), [2007] O.T.C. 2321 (Sup. Ct.), consd. [para. 15].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 21].

R. v. Schan (G.) (2002), 155 O.A.C. 273 (C.A.), refd to. [para. 21].

R. v. Weber (R.) (2003), 175 O.A.C. 138 (C.A.), refd to. [para. 21].

R. v. Kim (Y.J.) (2004), 181 O.A.C. 88 (C.A.), refd to. [para. 21].

R. v. Jewell (E.T.) and Gramlick (G.) (1995), 83 O.A.C. 81; 100 C.C.C.(3d) 270 (C.A.), refd to. [para. 21].

R. v. R.W., [2001] O.J. No. 2810, refd to. [para. 21].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, consd. [para. 23].

R. v. C.N.H. (2002), 167 O.A.C. 292; 62 O.R.(3d) 564 (C.A.), refd to. [para. 33].

R. v. Mann, [1995] O.J. No. 474 (C.A.), refd to. [para. 33].

R. v. Crazybull (C.D.) (1993), 141 A.R. 69; 46 W.A.C. 69 (C.A.), refd to. [para. 33].

R. v. Banci, [1982] O.J. No. 58 (C.A.), refd to. [para. 33].

R. v. Cheng (1991), 50 O.A.C. 374 (C.A.), consd. [para. 34].

Authors and Works Noticed:

Ruby, Clayton C., Davies, Breese, Doucette, Delmar, Loosemore, Sarah, Orkin, Jessica, and Wawzonek, Caroline, Sentencing (7th Ed. 2008), p. 27 [para. 18].

Counsel:

Allison Dellandrea and Lisa Joyal, for the appellant;

Robert Upsdell, for the respondent.

This appeal was heard on October 28, 2009, by Feldman, Blair and Watt, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Feldman, J.A., and released on January 18, 2010.