R. v. R.M., (2015) 363 Nfld. & P.E.I.R. 45 (NLTD(G))

• Judge: Stack, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: January 22, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 363 Nfld. & P.E.I.R. 45 (NLTD(G))

R. v. R.M. (2015), 363 Nfld. & P.E.I.R. 45 (NLTD(G));

    1129 A.P.R. 45

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. MR.035

Her Majesty The Queen v. R.M.

(201301G2091; 2015 NLTD(G) 35)

Indexed As: R. v. R.M.

Newfoundland and Labrador Supreme Court

Trial Division (General)

Stack, J.

March 12, 2015.

Summary:

The 31 year old accused was convicted of offences including sexual assault, sexual interference and uttering threats against his three younger half siblings (the victims). At sentencing, the accused was currently serving a two year Youth Court sentence for offences against one of the victims.

The Newfoundland and Labrador Supreme Court, Trial Division (General), imposed a sentence of six years' imprisonment, to be served consecutively to the Youth Court sentence. The court made an order under ss. 161(1)(b), 161(1)(c) and 161(2) of the Criminal Code prohibiting the accused, for 10 years, from employment or volunteer positions that put him in a position of trust or authority over persons under the age of 16 and from communicating with persons under the age of 16 without adult supervision. The accused was also ordered to provide a DNA sample and was made subject to a 10 year firearms prohibition order and a 20 year order regarding the Sex Offender Information Registration Act.

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 5798.1

Punishments (sentence) - Prohibition orders - Respecting contact with children - The 31 year old accused was convicted of offences including sexual assault, sexual interference and uttering threats against his three younger half siblings, Mike, Todd and Jane (not their real names) - At sentencing, the accused was currently serving a two year Youth Court sentence for offences against Jane - The Crown sought an order under s. 161(a) of the Criminal Code that, for 20 years, the accused was prohibited from public places where children could be expected to be found - The Newfoundland and Labrador Supreme Court, Trial Division (General), declined to make an order under s. 161(a) - As horrific as they were, the accused's crimes were confined to his family - A ban as suggested by the Crown would prevent the accused from attending events and facilities that he might legitimately attend - It was more important to prevent the accused from having the opportunity to forge relationships with children that might lead to further abuses - The court made an order under ss. 161(1)(b), 161(1)(c) and 161(2) prohibiting the accused, for 10 years, from employment or volunteer positions that put him in a position of trust or authority over persons under the age of 16 and from communicating with persons under the age of 16 without adult supervision - See paragraph 73.

Criminal Law - Topic 5802

Sentencing - General - Concurrent sentences - [See second Criminal Law - Topic 5932 ].

Criminal Law - Topic 5803

Sentencing - General - Consecutive sentences - [See second Criminal Law - Topic 5932 ].

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - The 31 year old accused was convicted of offences including sexual assault, sexual interference and uttering threats against his three younger half siblings, Mike, Todd and Jane (not their real names) - At sentencing, the accused was currently serving a two year Youth Court sentence for offences against Jane - The sentences imposed, some of which were to be served concurrently, resulted in a period of incarceration of seven years - At issue was the totality principle - The Newfoundland and Labrador Supreme Court, Trial Division (General), noted that the total sentence imposed, if served in addition to the Youth Court sentence, would be nine years - This was unduly long and harsh and would be disproportionate to the offences' gravity and the accused's degree of responsibility - The accused was a young man, who would have a long life ahead of him when he was released - A balance had to be achieved - A fit and proper sentence was six years to be served consecutively to the Youth Court sentence, resulting in a total period of incarceration of eight years - See paragraphs 64 to 71.

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - The 31 year old accused was convicted of offences including sexual assault, sexual interference and uttering threats against his three younger half siblings (the victims) - At sentencing, the accused was currently serving a two year Youth Court sentence for offences against one of the victims - The Newfoundland and Labrador Supreme Court, Trial Division (General), imposed a sentence of six years' imprisonment, to be served consecutively to the Youth Court sentence - The extent and the number of the assaults were aggravating factors as was the fact that the accused abused the children serially - These were assaults against persons under the age of 18, which was aggravating - Further, this was a terrible breach of familial trust - Deterrence, both general and specific, was key - The accused was a high risk to reoffend, including sexually - While the risk of recidivism could be ameliorated through appropriate programs, the accused's rehabilitation could not displace deterrence and denunciation as the principal sentencing objectives - See paragraphs 5 to 45.

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See Criminal Law - Topic 5831.1 ].

Criminal Law - Topic 5833

Sentencing - Considerations on imposing sentence - Deterrence - [See Criminal Law - Topic 5831.1 ].

Criminal Law - Topic 5833.1

Sentencing - Considerations - Child abuse - [See Criminal Law - Topic 5831.1 ].

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - [See Criminal Law - Topic 5831.1 ].

Criminal Law - Topic 5848.9

Sentencing - Considerations - Sexual offences against children (incl. child pornography) - [See Criminal Law - Topic 5831.1 ].

Criminal Law - Topic 5895

Sentence - Threats - The 31 year old accused was convicted of offences including sexual assault, sexual interference and uttering threats against his three younger half siblings, Mike, Todd and Jane (not their real names) - There were two convictions for uttering threats - The first was for a general threat that the accused would kill Mike if he disclosed the abuse - The second conviction involved the accused telling Todd that he would kill Mike and then driving to the community to look for Mike - Mike went into hiding - The Newfoundland and Labrador Supreme Court, Trial Division (General), imposed a sentence of one month of imprisonment for the first conviction, to be served concurrently with the accused's other sentences - The second conviction was more aggravating - For that conviction, the sentence was six months' imprisonment, to be served concurrently - See paragraphs 59 and 60.

Criminal Law - Topic 5932

Sentence - Sexual assault - The 31 year old accused was convicted of offences including sexual assault, sexual interference and uttering threats against his three younger half siblings, Mike, Todd and Jane (not their real names) - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that a fit sentence for sexual assault against Todd was two years' imprisonment, to be served consecutively to the five year sentence for sexual interference against Mike - Although Todd was not a young child (age 16) when the offences began, he was vulnerable to his older and larger half brother - The accused used an offer of employment and a place to live to groom Todd for the assaults - On the totality principle, the accused's global sentence was reduced to six years - See paragraph 61.

Criminal Law - Topic 5932

Sentence - Sexual assault - The 31 year old accused was convicted of offences including sexual assault, sexual interference and uttering threats against his three younger half siblings, Mike, Todd and Jane (not their real names) - At sentencing, the accused was currently serving a two year Youth Court sentence for offences against Jane - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that a fit sentence for sexual assault against Jane was one year of imprisonment, to be served concurrently to the Youth Court sentence and to the five year sentence for sexual interference against Mike - While the sentences for offences against Mike and Todd ran consecutively to each other as they involved different victims and different "criminal adventures", the offence against Jane was a continuation of the accused's criminal behaviour toward her for which he received a Youth Court sentence - A sequence of events involving the same victim, while resulting in separate convictions, normally resulted in those sentences being served concurrently - See paragraphs 62 and 63.

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - The 31 year old accused was convicted of offences including sexual assault, sexual interference and uttering threats against his three younger half siblings, Mike, Todd and Jane (not their real names) - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that a fit sentence for sexual interference against Mike was five years' imprisonment - The offences against Mike were pervasive and invasive - That they started when he was as young as seven and continued until he was 15 or 16 was seriously aggravating - Mike's childhood was stolen for the sexual gratification of his half brother - Denunciation and deterrence required a lengthy period of imprisonment, particularly as the accused was categorized as a high risk to reoffend - In order to arrive at a just global sentence of six years, this sentence was reduced to four years under the totality principle - See paragraphs 58 and 71.

Cases Noticed:

R. v. Atkins (K.J.) (1988), 69 Nfld. & P.E.I.R. 99; 211 A.P.R. 99; 4 W.C.B.(2d) 348 (Nfld. C.A.), refd to. [para. 5].

R. v. W.W.M. (2006), 206 O.A.C. 342; 205 C.C.C.(3d) 410 (C.A.), refd to. [para. 44].

R. v. G.F. (1996), 143 Nfld. & P.E.I.R. 181; 448 A.P.R. 181 (Nfld. T.D.), refd to. [para. 45].

R. v. Wubbolt (J.J.), [2002] O.T.C. 594; 55 W.C.B.(2d) 46 (Sup. Ct.), refd to. [para. 46].

R. v. Smith (G.A.) (2013), 333 Nfld. & P.E.I.R. 1; 1034 A.P.R. 1; 2013 NLTD(G) 43, refd to. [para. 47].

R. v. M.C. (2011), 314 Nfld. & P.E.I.R. 159; 977 A.P.R. 159; 2011 NLTD(G) 121, refd to. [para. 48].

R. v. Hammond (M.) (2011), 303 Nfld. & P.E.I.R. 221; 941 A.P.R. 221; 2011 NLTD(G) 8, refd to. [para. 49].

R. v. T.W.G.L.K. (2012), 321 Nfld. & P.E.I.R. 1; 996 A.P.R. 1; 2012 NLTD(G) 52, refd to. [para. 50].

R. v. Tapper (G.) (2010), 297 Nfld. & P.E.I.R. 275; 918 A.P.R. 275; 2010 NLTD 42, refd to. [para. 51].

R. v. J.B. (2013), 341 Nfld. & P.E.I.R. 329; 1061 A.P.R. 329; 2013 NLCA 61, refd to. [para. 52].

R. v. J.C.H. (2009), 292 Nfld. & P.E.I.R. 161; 902 A.P.R. 161; 2009 NLTD 177, refd to. [para. 53].

R. v. R.A.R., [2000] 1 S.C.R. 163; 249 N.R. 322; 142 Man.R.(2d) 282; 212 W.A.C. 282; 2000 SCC 8, refd to. [para. 54].

R. v. Barrett (A.W.) (2011), 303 Nfld. & P.E.I.R. 139; 941 A.P.R. 139; 2011 NLCA 5, refd to. [para. 54].

R. v. Freake (J.) (2012), 318 Nfld. & P.E.I.R. 305; 989 A.P.R. 305; 2012 NLCA 10, refd to. [para. 55].

R. v. Hutchings (R.) (2012), 316 Nfld. & P.E.I.R. 211; 982 A.P.R. 211; 2012 NLCA 2, refd to. [para. 63].

R. v. A.T.S. (2004), 232 Nfld. & P.E.I.R. 283; 690 A.P.R. 283; 2004 NLCA 1, refd to. [para. 63].

R. v. McCarthy (S.P.) (2005), 248 Nfld. & P.E.I.R. 14; 741 A.P.R. 14; 2005 NLCA 36, refd to. [para. 65].

Counsel:

Lynn M. Moore, for the Crown;

Tony St. George, for the accused.

This matter was heard at St. John's, N.L., on January 22, 2015, by Stack, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following reasons for judgment on March 12, 2015.