R. v. R.A.W., 2014 MBQB 82

• Judge: Simonsen, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: April 25, 2014
• Jurisdiction: Manitoba
• Citations: 2014 MBQB 82;(2014), 305 Man.R.(2d) 23 (QB)

R. v. R.A.W. (2014), 305 Man.R.(2d) 23 (QB)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. MY.018

Her Majesty The Queen v. R.A.W. (accused)

(CR 12-15-00513; 2014 MBQB 82)

Indexed As: R. v. R.A.W.

Manitoba Court of Queen's Bench

Thompson Centre

Simonsen, J.

April 25, 2014.

Summary:

The accused was charged with buggery and indecent assault arising from incidents involving a young child which occurred between 1973 and 1979.

The Manitoba Court of Queen's Bench, in a decision reported at 297 Man.R.(2d) 287, convicted the accused as charged. The matter moved to sentencing.

The Manitoba Court of Queen's Bench sentenced the accused to three years of jail for each of the offences to be served concurrently.

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 5703

Punishments (sentence) - Suspended sentence - Considerations - The accused, now 72 and retired, was convicted of buggery and indecent assault respecting events between 1973 and 1979 when the complainant (neighbour) was ages 4 to 9 - Victim traumatized his entire life - The accused had a dated criminal record spanning 1957 to 1970 - No alcohol or drug issues - Low end of medium risk to re-offend - He and his 81 year old wife both had health issues - He was independent - Wife was infirm - He was sole caregiver - The Manitoba Court of Queen's Bench held that suspended sentences were not appropriate because they would not meet the sentencing principles of denunciation and deterrence - See paragraph 23.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The accused, now 72 and retired, was convicted of buggery and indecent assault respecting events between 1973 and 1979 when the male complainant (neighbour) was ages 4 to 9 - The Manitoba Court of Queen's Bench held that the accused had committed "serious personal injury offences" such that conditional sentences were not available - However, even if a more favourable version of the conditional sentencing regime which did not exclude serious personal injury offences was applicable, conditional sentences were not appropriate - The court stated that despite the mitigating factors, the egregious actions of the accused called for incarceratory sentences to sufficiently address the sentencing principles of denunciation and deterrence - See paragraphs 20 to 22.

Criminal Law - Topic 5841

Sentencing - Considerations on imposing sentence - Age of accused - [See Criminal Law - Topic 5918 ].

Criminal Law - Topic 5848.3

Sentencing - Considerations on imposing sentence - Medical - [See Criminal Law - Topic 5918 ].

Criminal Law - Topic 5856

Sentence - Indecent assault - [See Criminal Law - Topic 5918 ].

Criminal Law - Topic 5918

Sentence - Buggery or bestiality - The accused, now 72 , was convicted of buggery and indecent assault respecting events between 1973 and 1979 when the male complainant was ages 4 to 9 - The accused, a neighbour, invited the complainant into his basement to see his aquariums - The incidents which occurred once or twice a week, started with touching and escalated to oral and anal sex - Threats involved - No trust relationship - The complainant was traumatized his entire life - The accused had a dated criminal record - 40 years of crime-free behaviour - No alcohol or drug issues - Low end of medium risk to re-offend - He and his 81 year old wife both had health issues - He was independent - Wife was infirm - He was sole caregiver - The Manitoba Court of Queen's Bench imposed a jail sentence of three years for each offence to be served concurrently - See paragraphs 24 to 38.

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 3].

R. v. Tavares, 2013 ONCJ 381, refd to. [para. 15].

R. v. Fones (D.R.) (2012), 288 Man.R.(2d) 86; 564 W.A.C. 86; 2012 MBCA 110, refd to. [para. 16].

R. v. G.W.R. (2011), 268 Man.R.(2d) 204; 520 W.A.C. 204; 2011 MBCA 62, dist. [para. 16].

R. v. Wozny (C.P.) (2010), 262 Man.R.(2d) 75; 507 W.A.C. 75; 2010 MBCA 115, refd to. [para. 17].

R. v. K.N., [1999] O.T.C. 196 (Sup. Ct.), refd to. [para. 21].

R. v. P.D.U. (2000), 150 Man.R.(2d) 309; 230 W.A.C. 309; 2000 MBCA 142, refd to. [para. 21].

R. v. Andrews (J.W.L.) (2004), 184 Man.R.(2d) 168; 318 W.A.C. 168; 2004 MBCA 60, refd to. [para. 21].

R. v. J.A.G. (2008), 228 Man.R.(2d) 99; 427 W.A.C. 99; 2008 MBCA 55, refd to. [para. 22].

R. v. Borkowsky (H.) (2008), 225 Man.R.(2d) 127; 419 W.A.C. 127; 2008 MBCA 2, refd to. [para. 22].

R. v. A.R., [1994] 4 W.W.R. 620; 92 Man.R.(2d) 183; 61 W.A.C. 183; 88 C.C.C.(3d) 184 (C.A.), refd to. [para. 23].

R. v. Sandercock (1985), 62 A.R. 382; 1985 ABCA 218, refd to. [para. 25].

R. v. M.F.D. (1991), 75 Man.R.(2d) 21; 6 W.A.C. 21; 1991 CarswellMan 363 (C.A.), refd to. [para. 26].

R. v. G.S.F. (2009), 236 Man.R.(2d) 51; 448 W.A.C. 51; 2009 MBCA 5, refd to. [para. 26].

R. v. J.R.A. (2012), 280 Man.R.(2d) 123; 548 W.A.C. 123; 2012 MBCA 48, refd to. [para. 26].

R. v. James (G.M.) (2013), 288 Man.R.(2d) 269; 564 W.A.C. 269; 2013 MBCA 14, refd to. [para. 28].

R. v. J.R., [2002] O.J. No. 3577; 55 W.C.B.(2d) 238 (C.J.), refd to. [para. 30].

R. v. W.W.M. (2006), 206 O.A.C. 342; 205 C.C.C.(3d) 410 (C.A.), refd to. [para. 30].

R. v. Sylvester, [2006] O.J. No. 5382; 71 W.C.B. (2d) 767 (C.J.), refd to. [para. 30].

R. v. T.C., [2007] O.T.C. 225 (Sup. Ct.), refd to. [para. 30].

R. v. Goldsmith, 2008 ONCJ 277, refd to. [para. 30].

R. v. Leroux (P.M.) (2013), 432 Sask.R. 106; 2013 SKQB 438, refd to. [para. 30].

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. 31].

R. v. L.J.S. (1997), 101 O.A.C. 34; 116 C.C.C.(3d) 477 (C.A.), refd to. [para. 31].

Counsel:

Richard H. Smith, for the Crown;

Martin S. Minuk, for the accused.

This sentencing matter was heard before Simonsen, J., of the Manitoba Court of Queen's Bench, Thompson Centre, who delivered the following judgment on April 25, 2014.