R. v. Jewell (E.T.) and Gramlick (G.), (1995) 83 O.A.C. 81 (CA)

• Judge: Finlayson, Doherty and Abella, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 21, 1995
• Jurisdiction: Ontario
• Citations: (1995), 83 O.A.C. 81 (CA);1995 CanLII 1897 (NS CA);1995 CanLII 1897 (ON CA);100 CCC (3d) 270;[1995] OJ No 2213 (QL);28 WCB (2d) 48;83 OAC 81

R. v. Jewell (E.T.) (1995), 83 O.A.C. 81 (CA)

MLB headnote and full text

er Majesty the Queen (respondent) v. Edward Thomas Jewell (applicant)

Her Majesty the Queen (respondent) v. Gary Gramlick (applicant)

(C18639; C18641)

Indexed As: R. v. Jewell (E.T.) and Gramlick (G.)

Ontario Court of Appeal

Finlayson, Doherty and Abella, JJ.A.

July 21, 1995.

Summary:

The accused, Gramlick and Jewell, pleaded guilty to numerous charges involving obscene material, child pornography and the commission of various sexual acts involving young boys and adults. Gramlick was sen­tenced to a total of 10 years and Jewell to 15 years. Both accused were also subject to orders under s. 741.2 of the Criminal Code requiring them to serve half their sentences before being eligible for parole. Lifetime prohibition orders restricting their access to young boys were also imposed under s. 161 of the Code (i.e., the accused were pro­hibited from attending public parks, public swimming areas, schoolgrounds etc. (s. 161(1)(a)) and restricted from obtaining employment or volunteering in situations where they would be in a position of trust or authority towards children under the age of 14 (s. 161(1)(b)). The accused appealed their sentences.

The Ontario Court of Appeal allowed the appeals. With respect to Gramlick, the court reduced the total sentence to five years, set aside the order under s. 741.2 and restricted the prohibition order to s. 161(1)(b) of the Code. With respect to Jewell, the court reduced the total sentence to seven years and set aside the orders under ss. 161(1)(a) and (b) and 741.2.

Criminal Law - Topic 5662.1

Punishments (sentence) - Imprisonment and parole - Term of imprisonment - Consecutive sentences - [See all three Criminal Law - Topic 5804 ].

Criminal Law - Topic 5670.8

Punishments (sentence) - Imprisonment and parole - Parole - Power of court to delay parole - [See both Criminal Law - Topic 5874 ].

Criminal Law - Topic 5798.1

Punishments (sentence) - Prohibition orders - Respecting sexual offenders - [See both Criminal Law - Topic 5874 ].

Criminal Law - Topic 5804

Sentencing - Consecutive sentences - Reduced total term - Totality principle - Two accused appealed sentences for numerous counts relating to sexual abuse of young children and child pornography - The Ontario Court of Appeal stated that "the appropriate approach in cases such as the two under appeal is to first, identify the gravamen of the conduct giving rise to all of the criminal offenses. The trial judge should next determine the total sentence to be imposed. Having determined the appro­priate total sentence, the trial judge should impose sentences with respect to each offence which result in that total sentence and which appropriately reflect the gravamen of the overall criminal conduct. In performing this function, the trial judge will have to consider not only the appro­priate sentence for each offence, but whether in light of totality concerns, a particular sentence should be consecutive or concurrent to the other sentences imposed." - See paragraph 27.

Criminal Law - Topic 5804

Sentencing - Consecutive sentences - Reduced total term - Totality principle - The accused, Gramlick, age 61, was sen­tenced to 10 years after pleading guilty to nine counts of counselling children for a sexual purpose and manufacturing and possessing child pornography - The accused paid underprivileged boys to engage in sexual acts with each other and with adult males while the accused made videotapes - He did not touch the boys himself - Not a paedophile - Co-opera­tive - Prior record of two offences - The Ontario Court of Appeal discussed the approach to be applied in determining the total sentence and which sentences should be served concurrently or consecutively - Applying this approach the court reduced Gramlick's total sentence to five years - See paragraphs 5 to 12, and 22 to 29.

Criminal Law - Topic 5804

Sentencing - Consecutive sentences - Reduced total term - Totality principle - The accused, Jewell, age 42, was sen­tenced to 15 years after pleading guilty to 10 counts relating to counselling and touching of children for a sexual purpose and to making and possessing child por­nography - The accused paid underprivi­leged boys to engage in sexual acts with each other and with himself - The activ­ities were videotaped - The accused was a homosexual hebophile (i.e. his sexual preference was for mid-adolescent boys) - Several prior convictions - Lacked remorse - The Ontario Court of Appeal discussed the approach to be applied in determining the total sentence and which sentences should be served concurrently or consecutively - Applying this approach (and considering that two convictions for anal intercourse were set aside), Jewell's total sentence was reduced to seven years - See paragraphs 13 to 33.

Criminal Law - Topic 5807

Sentencing - Imposing sentences respect­ing multiple convictions - [See all three Criminal Law - Topic 5804 ].

Criminal Law - Topic 5874

Sentence - Manufacture or possession of child pornography - The accused, Gram­lick, age 61, pleaded guilty to nine counts of counselling children for a sexual pur­pose and manufacturing child pornography - The accused paid underprivileged boys to engage in sexual acts with each other and with adult males while the accused made videotapes - He did not touch the boys himself - He was not a paedophile - Co-operative - Two prior offences - He was sentenced to 10 years, ordered to serve half his sentence before parole eligi­bility (Criminal Code, s. 741.2) and pro­hibited for life from attending public parks, schoolgrounds etc. (s. 161(1)(a)) and restricted from working or volunteering with young children (s. 161(1)(b)) - The Ontario Court of Appeal reduced the total sentence to five years, set aside the order under s. 741.2 and restricted the prohib­ition order to s. 161(1)(b).

Criminal Law - Topic 5874

Sentence - Manufacture or possession of child pornography - The accused, Jewell, age 42, pleaded guilty to 10 counts of counselling and touching children for a sexual purpose and to making and pos­sessing child pornography - He paid un­derprivileged boys to engage in sexual acts with each other and with himself - The activities were videotaped - He was a homosexual hebophile (i.e., his sexual preference was for mid-adolescent boys) - Several prior convictions - Lacked remorse - He was sentenced to 15 years, ordered to serve half his sentence before parole eligibility (Criminal Code, s. 741.2) and prohibited for life from attending public parks, schoolgrounds etc. (s. 161(1)(a)) and restricted from working or volunteering with young children (s. 161(1)(b)) - The Ontario Court of Appeal reduced the total sentence to seven years and set aside the orders under ss. 741.2 and 161(1).

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - [See second Criminal Law - Topic 5874 ].

Criminal Law - Topic 5963

Sentence - Inviting sexual touching - [See both Criminal Law - Topic 5874 ].

Cases Noticed:

R. v. C.M. (1995), 82 O.A.C. 68 (C.A.), refd to. [para. 19].

New York v. Ferber (1982), 458 U.S. 747 (U.S. Sup. Ct.), refd to. [para. 25].

R. v Goulet (J.) (1995), 79 O.A.C. 233; 22 O.R.(3d) 118 (C.A.), refd to. [para. 32].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 161(1)(a), sect. 161(1)(b), sect. 741.2 [para. 1, Schedule C].

Counsel:

D. Fletcher Dawson, for the appellants, Jewell and Gramlick;

W. Graeme Cameron, for the respondent, the Crown.

This appeal was heard on June 21, 1995, before Finlayson, Doherty and Abella, JJ.A., of the Ontario Court of Appeal. The follow­ing decision of the court was released by Finlayson, J.A., on July 21, 1995.