R. v. Innerebner (T.L.), (2010) 496 A.R. 196 (QB)

• Judge: Read, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 06, 2010
• Citations: (2010), 496 A.R. 196 (QB);2010 ABQB 188

R. v. Innerebner (T.L.) (2010), 496 A.R. 196 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. MY.046

Her Majesty the Queen (Crown) v. Thomas Lee Innerebner (defendant)

(080857998Q2; 2010 ABQB 188)

Indexed As: R. v. Innerebner (T.L.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Read, J.

March 23, 2010.

Summary:

The jury convicted Innerebner of sexual interference (count 1) and sexual assault (count 2) of A.B.; sexual interference (count 3) and sexual assault (count 4) of C.D.; sexual interference (count 5) and sexual assault (count 6) of E.F.; sexual interference (count 9) and sexual assault (count 10) of G.H.; sexual assault (count 11) of I.J.; sexual assault (count 13) and sexual interference (count 14) of K.L.; and sexual assault (count 15) and sexual interference (count 16) of M.N. The complainants were all young girls. With one exception (E.F.), Innerebner was the complainants' taekwondo instructor. The Crown had proceeded by way of indictment. A minimum term of imprisonment of 45 days was applicable to the sexual interference convictions.

The Alberta Court of Queen's Bench sentenced Innerebner to a total sentence of seven years, eight months' incarceration. Taking into consideration the totality principle, the court reduced the global sentence to 7 years. Other dispositions included orders that Innerebner provide a sample of his DNA, that he comply with the Sex Offender Information Registration Act, and prohibition orders under ss. 109 and 161 of the Criminal Code.

Criminal Law - Topic 76

General principles - Res judicata (multiple convictions for same subject matter precluded) - General principles - The accused had been convicted of both sexual assault (s. 271 of the Criminal Code) and sexual interference (s. 151) in respect to six complainants, and of sexual assault in respect to a seventh complainant, I.J. - The offences occurred after November 1, 2005, when Parliament had added a mandatory minimum sentence to the offence of sexual interference; there remained no mandatory minimum sentence for sexual assault - The Alberta Court of Queen's Bench reiterated the law regarding multiple convictions for the same actions - The court stayed the charges of sexual assault and entered the convictions for sexual interference where the legal and factual nexus requirements had been met - The court concluded that the charge of sexual assault was the less serious charge because s. 151 carried a minimum sentence and s. 271 did not - Parliament intended to indicate that the more serious charge was that of sexual interference - However, the court entered the conviction for sexual assault involving I.J., as there was no corresponding conviction for sexual interference involving her - See paragraphs 24 to 38.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The accused had been convicted of both sexual assault and sexual interference in respect to six complainants, and of sexual assault in respect to a seventh complainant, I.J. - The offences occurred after November 1, 2005, when Parliament had added a mandatory minimum sentence to the offence of sexual interference; there remained no mandatory minimum sentence for sexual assault - The Alberta Court of Queen's Bench stated that, because of the operation of s. 742.1 of the Criminal Code, "a judge is prohibited from ordering a conditional sentence order where an offender is convicted of a charge for which there is a minimum sentence" - Thus, it was only for the conviction in respect to I.J. that a conditional sentence order could be considered - See paragraphs 39 and 40.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The jury convicted the accused of both sexual assault and sexual interference in respect to six complainants, and of sexual assault in respect to a seventh complainant, I.J. - The Alberta Court of Queen's Bench discussed whether a conditional sentence order should be imposed for the crime involving I.J. (no minimum term of imprisonment applied), and concluded that a conditional sentence was not appropriate - The crime was "an abhorrent attack on the sexual integrity of a young girl" - The incidents were "heinous" and should be denounced by the court - Further, the accused, as a taekwondo instructor, abused the position of trust and power that he was given - "The very nature of his sport commands that pupils obey and respect their teacher" - Deterrence was a fundamental objective - "The objectives of denunciation and deterrence would not be met in this case through the servicing of a sentence in the community" - A just sentence would be nine months' incarceration - See paragraphs 125 to 135.

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - The jury convicted the accused of both sexual assault and sexual interference in respect to six complainants, and of sexual assault in respect to a seventh complainant - The Alberta Court of Queen's Bench sentenced the accused to a total sentence of seven years, eight months' incarceration - Taking into consideration the totality principle, the court reduced the global sentence to seven years - This was an appropriate case for consecutive sentencing: while the acts were similar, the offences were perpetrated against different victims at different times, over a number of months and years - "However, when sentencing consecutively, s. 718.2(c) must be kept in mind, which requires that the overall sentence not be unduly long or harsh. This is termed the totality principle" - See paragraphs 137 to 142.

Criminal Law - Topic 5807

Sentencing - Imposing sentences respecting multiple convictions - [See Criminal Law - Topic 76 ].

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - [See third Criminal Law - Topic 5846.5 and first Criminal Law - Topic 5949 ].

Criminal Law - Topic 5833

Sentencing - Considerations on imposing sentence - Deterrence - [See second Criminal Law - Topic 5720.4 and third Criminal Law - Topic 5846.5 ].

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle) - The Alberta Court of Queen's Bench reviewed the numerous Alberta Court of Appeal decisions that had applied the category of "major sexual assault" and its starting points of three and four years for offences involving adults and children, respectively, as well as the decisions in Alberta that were to the contrary - The vast majority of Alberta cases continued to use the starting point approach - The court concluded that "the principle in Alberta remains ... that the starting point for a major sexual assault of a child by a person in a position of trust is 4 years" - See paragraphs 41 to 74.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle) - At issue was whether the starting point sentence of four years for a "major sexual assault" against a child must be considered - The Alberta Court of Queen's Bench stated that "[i]n applying the sexual assault starting point, a Court is required to determine whether the facts of the offence fit within the category of 'major sexual assault'. If it does then the Court must determine whether a child or an adult is involved. If a child is involved then the Court must determine whether the offender was in a position of trust vis-a-vis that child. The Court must also determine whether the accused has a prior criminal record. If the offender is in a position of trust and has no prior criminal record, then the starting point for a major sexual assault of a child is 4 years" - See paragraph 75.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle) - The accused, a taekwondo instructor, was convicted of sexual assault and sexual interference for incidents involving young girls, including E.F., who was 12 years old - E.F.'s brother was a student in the accused's taekwondo class - E.F. described three incidents, all at the accused's home where she was being paid by the accused to perform chores - Two of the incidents involved digital penetration - The conviction for sexual assault was conditionally stayed - The Alberta Court of Queen's Bench noted from the case law that any act of digital penetration of a child by a person in a position of trust had been found to be a major sexual assault and to attract a starting point of four years - Even if the characterization was incorrect, the interference to E.F.'s sexual integrity was serious, and based on the case law, the mitigating and aggravating factors, and particularly the objectives of denunciation and deterrence, the court concluded that a just sentence was four years - See paragraphs 78 to 100.

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children (incl. child pornography) - [See both Criminal Law - Topic 5949 ].

Criminal Law - Topic 5849.9

Sentencing - Considerations on imposing sentence - Sentencing on charges arising out of same subject matter - [See Criminal Law - Topic 76 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - [See both Criminal Law - Topic 5949 ].

Criminal Law - Topic 5936

Sentence - Multiple offences - [See Criminal Law - Topic 76 ].

Criminal Law - Topic 5949

Sentence - Sexual interference or exploitation by person in position of trust or authority - The jury convicted the accused of sexual interference (count 1) and sexual assault (count 2) of A.B.; sexual interference (count 3) and sexual assault (count 4) of C.D.; sexual interference (count 5) and sexual assault (count 6) of E.F.; sexual interference (count 9) and sexual assault (count 10) of G.H.; sexual assault (count 11) of I.J.; sexual assault (count 13) and sexual interference (count 14) of K.L.; and sexual assault (count 15) and sexual interference (count 16) of M.N. - The complainants were all young girls - With one exception (E.F.), the accused was the complainants' taekwondo instructor - The Crown had proceeded by way of indictment - A minimum term of imprisonment was applicable to the sexual interference convictions - The Alberta Court of Queen's Bench stayed the convictions of sexual assault - In arriving at a sentence for counts 1, 3, 9, 14 and 16, the court identified as aggravating factors the fact that the victims were children, some as young as 7; the accused was in a position of trust with authority over the children; some of the offences occurred on more than one occasion and they were planned and deliberate - While there was no guilty plea or expression of remorse and no amenability to treatment, mitigating factors were that the accused had community support and the support of his family and cooperated with the pre-sentencing process - The court also considered the range of sentences of offenders in similar circumstances - A conditional sentence order was not available under the provisions of s. 151 in effect when the offences were committed - See paragraphs 101 to 118.

Criminal Law - Topic 5949

Sentence - Sexual interference or exploitation by person in position of trust or authority - The jury convicted the accused of sexual interference (count 1) and sexual assault (count 2) of A.B.; sexual interference (count 3) and sexual assault (count 4) of C.D.; sexual interference (count 5) and sexual assault (count 6) of E.F.; sexual interference (count 9) and sexual assault (count 10) of G.H.; sexual assault (count 11) of I.J.; sexual assault (count 13) and sexual interference (count 14) of K.L.; and sexual assault (count 15) and sexual interference (count 16) of M.N. - The complainants were all young girls - With one exception (E.F.), the accused was the complainants' taekwondo instructor - The Crown had proceeded by way of indictment - A minimum term of imprisonment of 45 days was applicable to the sexual interference convictions - The Alberta Court of Queen's Bench stayed the charges of sexual assault and entered the convictions for sexual interference where the legal and factual nexus requirements had been met - The court sentenced the accused to nine months' consecutive (count 1); nine months' consecutive (count 3); four years' consecutive (count 5); four months' consecutive (count 9); nine months' consecutive (count 11); four months consecutive (count 14); and nine months' consecutive (count 16), for a total sentence of seven years, eight months - Taking into consideration the totality principle, the court reduced the global sentence to seven years.

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - [See both Criminal Law - Topic 5949 ].

Cases Noticed:

R. v. D.D.B. (2009), 448 A.R. 146; 447 W.A.C. 146; 2009 ABCA 15, refd to. [para. 25].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 26].

R. v. Prince, [1986] 2 S.C.R. 480; 70 N.R. 119; 45 Man.R.(2d) 93, refd to. [paras. 26, 27].

R. v. M.M.M. - see R. v. R.M.M.

R. v. R.M.M. (1998), 106 O.A.C. 191; 122 C.C.C.(3d) 563 (C.A.), refd to. [paras. 26, 32].

R. v. S.J.M. (2009), 247 O.A.C. 178; 2009 ONCA 244, refd to. [para. 26].

R. v. W.E.B. (2009), 247 Man.R.(2d) 257; 2009 MBQB 312, consd. [para. 31].

R. v. R.C.M. (2007), 263 Nfld. & P.E.I.R. 322; 798 A.P.R. 322; 2007 NLTD 29, refd to. [para. 33].

R. v. M.M.S., [2006] O.T.C. 248; 69 W.C.B.(2d) 343 (Sup. Ct.), refd to. [para. 33].

R. v. D.A.P., 2008 CarswellAlta 2206 (Prov. Ct.), affd. (2009), 448 A.R. 303; 447 W.A.C. 303; 2009 ABCA 72, folld. [para. 39]; consd. [para. 112].

R. v. Sandercock, [1986] 1 W.W.R. 291; 62 A.R. 382; 22 C.C.C.(3d) 79 (C.A.), consd. [para. 41].

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; 15 C.R.(4th) 324 (C.A.), consd. [para. 44].

R. v. Watson (J.A.) (1994), 157 A.R. 80; 77 W.A.C. 80; 1994 CarswellAlta 625 (C.A.), refd to. [para. 45].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, consd. [para. 46].

R. v. Shropshire (M.T.) (1995), 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37 (S.C.C.), refd to. [para. 49].

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. [paras. 49, 141].

R. v. D.J.P. (1997), 200 A.R. 308; 146 W.A.C. 308 (C.A.), consd. [para. 52].

R. v. D.W.G. (1999), 244 A.R. 176; 209 W.A.C. 176; 1999 ABCA 270, consd. [para. 54].

R. v. Stone (B.T.), [1999] 2 S.C.R. 290; 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1; 173 D.L.R.(4th) 66, consd. [para. 54].

R. v. J.T.Q. (1999), 244 A.R. 369; 209 W.A.C. 369; 1999 ABCA 273, refd to. [para. 58].

R. v. Ewanchuk (S.B.) (2002), 299 A.R. 267; 266 W.A.C. 267; 2002 ABCA 95, refd to. [para. 58].

R. v. E.W.D. (2002), 312 A.R. 191; 281 W.A.C. 191; 2002 ABCA 129, refd to. [para. 58].

R. v. C.S. (2003), 348 A.R. 194; 321 W.A.C. 194; 2003 ABCA 325, refd to. [para. 58].

R. v. J.J.W. (2004), 348 A.R. 395; 321 W.A.C. 395; 2004 ABCA 50, refd to. [para. 58].

R. v. Brough (J.D.) (2004), 354 A.R. 38; 329 W.A.C. 38; 2004 ABCA 204, refd to. [para. 58].

R. v. G.C.K. (2004), 357 A.R. 264; 334 W.A.C. 264; 2004 ABCA 348, refd to. [para. 58].

R. v. Lyons (E.J.) (2005), 371 A.R. 74; 354 W.A.C. 74; 2005 ABCA 258, refd to. [para. 58].

R. v. Owusu (K.P.) (2006), 397 A.R. 382; 384 W.A.C. 382; 2006 ABCA 239, refd to. [para. 58].

R. v. T.L.G. (2006), 401 A.R. 16; 391 W.A.C. 16; 2006 ABCA 313, refd to. [para. 58].

R. v. Skwarchuk (K.) (2007), 409 A.R. 87; 402 W.A.C. 87; 2007 ABCA 195, refd to. [para. 58].

R. v. Law (B.K.) (2007), 409 A.R. 190; 402 W.A.C. 190; 2007 ABCA 203, refd to. [para. 58].

R. v. M.F.S. (2008), 432 A.R. 387; 424 W.A.C. 387; 2008 ABCA 157, refd to. [para. 58].

R. v. S.P.C. (2008), 433 A.R. 282; 429 W.A.C. 282; 2008 ABCA 280, refd to. [para. 58].

R. v. K.L.D. (2002), 315 A.R. 177; 2002 ABPC 89, affd. (2002), 317 A.R. 391; 284 W.A.C. 391; 2002 ABCA 226, consd. [paras. 65, 67].

R. v. Kain (K.) (2004), 348 A.R. 159; 321 W.A.C. 159; 2004 ABCA 127, consd. [para. 68].

R. v. White (S.C.) (2008), 440 A.R. 43; 438 W.A.C. 43; 2008 ABCA 328, refd to. [para. 70].

R. v. R.W.K. (2001), 285 A.R. 174; 2001 ABPC 45, refd to. [para. 71].

R. v. A.S., [2003] A.R. Uned. 509; 2003 ABPC 138, refd to. [para. 72].

R. v. A.R.F. (2005), 388 A.R. 192; 2005 ABPC 314, refd to. [para. 72].

R. v. J.W.B. (1994), 25 W.C.B.(2d) 131 (Alta.), consd. [para. 78].

R. v. G.W.H. (2004), 372 A.R. 378; 2004 ABPC 241, consd. [para. 80].

R. v. Church, [2005] A.J. No. 985 (Q.B.), consd. [para. 82].

R. v. J.W.T. (2007), 420 A.R. 390; 2007 ABPC 193, consd. [para. 84].

R. v. H.C., [2009] A.R. Uned. 262; 2009 ABPC 73, consd. [para. 88].

R. v. B.D.H., [2009] A.R. Uned. 478; 2009 ABPC 188, consd. [para. 91].

R. v. B.W.B. (2007), 412 A.R. 182; 404 W.A.C. 182; 2007 ABCA 199, consd. [para. 105].

R. v. A.W.S., [2009] A.R. Uned. 566; 2009 ABPC 225, consd. [para. 107].

R. v. P.A.L. (2008), 447 A.R. 387; 2008 ABPC 223, consd. [para. 109].

R. v. R.N.S., [2000] 1 S.C.R. 149; 249 N.R. 365; 132 B.C.A.C. 1; 215 W.A.C. 1; 2000 SCC 7, consd. [para. 111].

R. v. B.L., 2009 QCCQ 264, consd. [para. 113].

R. v. R.D.H. (2008), 345 N.B.R.(2d) 22; 889 A.P.R. 22; 2008 CarswellNB 668 (T.D.), consd. [para. 114].

R. v. E.C.S. (1997), 148 Nfld. & P.E.I.R. 347; 464 A.P.R. 347 (Nfld. T.D.), consd. [para. 115].

R. v. S.S.S.Y., 2006 BCPC 665, consd. [para. 116].

R. v. D.T.D. (2003), 351 A.R. 19; 2003 ABQB 57, consd. [para. 117].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, consd. [para. 129].

R. v. S.P.M. - see R. v. McCarthy (S.P.).

R. v. McCarthy (S.P.) (2005), 248 Nfld. & P.E.I.R. 14; 741 A.P.R. 14; 2005 NLCA 36, refd to. [para. 137].

R. v. Li (P.S.) (2009), 267 B.C.A.C. 77; 450 W.A.C. 77; 2009 BCCA 85, consd. [para. 139].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 151(a) [para. 16]; sect. 271(1)(a) [para. 18]; sect. 718.01 [para. 20]; sect. 718.2(a)(ii.1), sect. 718.2(a)(iii) [para. 22]; sect. 718.3(4) [para. 23].

Authors and Works Noticed:

Ruby, Clayton C., Davies, Breese, Doucette, Delmar, Loosemore, Sarah, Orkin, Jessica, and Wawzonek, Caroline, Sentencing (7th Ed. 2008), §§ 14.2 [para. 137]; 14.10 [para. 138].

Counsel:

David A. Hill (Crown Prosecutors' Office), for the Crown;

Brian A. Beresh, Q.C. (Beresh Cunningham Aloneissi O'Neill Hurley), for the defendant.

This sentencing matter was heard on March 6, 2010, before Read, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for sentence and sentence, dated March 23, 2010.