Citation: R. v. Wells Date: PESCTD 102 Docket: GSC Registry: Charlottetown

Transcription

1 Citation: R. v. Wells Date: PESCTD 102 Docket: GSC Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION BETWEEN: HER MAJESTY THE QUEEN AND: WOODROW DOYLE WELLS BEFORE: The Honourable Chief Justice K. R. MacDonald Gerald K. Quinn - Solicitor for the Crown Brendan Hubley - Solicitor for the accused Place and date of hearing - Summerside, Prince Edward Island October 19, 2000 and December 7, 2000 Place and date of judgment Charlottetown, - Prince Edward Island

2 December 20, 2000

3 Citation: R. v. Wells 2000 PESCTD 102 GSC BETWEEN: HER MAJESTY THE QUEEN AND: WOODROW DOYLE WELLS Prince Edward Island Supreme Court - Trial Division Before: MacDonald, C.J. Heard: October 19 and December 7, 2000 Judgment: December 20, 2000 [5 pages] Sentencing - s. 151 of the Criminal Code of Canada. STATUTE CONSIDERED: Criminal Code of Canada, R.S.C. 1985, ss. 718, 732.1(2). CASE CONSIDERED: R. v. S. (R.N.), 140 C.C.C. (3d) 553 (S.C.C.). Gerald K. Quinn - Solicitor for the Crown

4 Brendan Hubley - Solicitor for the accused

5 MacDonald C.J.: [1] The accused has pled guilty to sexually touching a person under the age of fourteen years with his penis and hands, contrary to s. 151 of the Criminal Code of Canada. [2] The offence took place between June 1, 1997 and December 8, The victim, a girl, was between the age of ten and twelve when the offences were committed. [3] The accused is fifty-seven years of age. After an unsuccessful marriage of twelve years and a common law relationship of eleven years, the accused in 1988 began a common law relationship with the victim s mother. The victim is a child of a previous relationship of her mother. The accused s relationship with the victim s mother ended when this offence became known. [4] The victim did not wish to be interviewed and initially would not admit the offences occurred. Consequently, the facts are those disclosed by the accused. No victim impact statement was filed. The accused admits to having sexually touched, fondled and on one occasion rubbed his penis against the victim s vagina and ejaculating and on other occasions asking the victim to fondle him. He stated six to eight of these incidents had occurred. There is no evidence of what effect the incidents had on the victim who is now living with her father in Ontario. [5] The accused s record consists of an impaired driving offence in 1986 which has no significance to this proceeding. A more recent offence was in December of 1999 when the accused breached an undertaking relating to the current charge to stay away from children under the age of eighteen years. What had occurred was the accused s ten year old son had called him on Christmas day in a suicidal state wanting to see him, and a meeting took place. The accused was fined $100 indicating the relatively minor nature of the incident. [6] The accused has a grade 8 education and is fully employed, earning $11 per hour. He has a mortgage of $24,000 on his home and additional debts of $7,000. [7] The probation report indicates that the accused, who pled guilty, has accepted full responsibility for his actions. There is an indication that the accused thought the victim wanted his attention. The accused stated he told the victim s mother not to allow her to spend time with him or something will

6 Page: 2 happen. [8] The accused was referred for an assessment as to his deviant sexual behaviour. He has been provisionally diagnosed as a regressed pedophile and a low risk for sexual and violent recidivism. However, it is the recommendation of the specialist who examined the accused that he undergo a course of treatment for adults who have deviant sexual behaviour. [9] The offence the accused is charged with carries a maximum sentence of ten years imprisonment. The Crown asks for six to eighteen months incarceration, while the accused asks for a conditional sentence. [10] On imposing sentence, the Court is guided by certain rules and principles set forth in the Criminal Code. [11] Section 718 of the Criminal Code reads: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [12] Section states that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [13] Section sets forth other sentencing principles stating that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, such as evidence that the offender abused his child. While the victim was not

7 Page: 3 the birth child of the accused, I would find that due to the lengthy relationship the accused had with the victim s mother, he stood in a loco parentis relationship with the victim. [14] A second principle set forth in s is that it is an aggravating circumstance if the accused abuses a position of trust or authority in his relationship with the victim. In this particular situation, the accused stood in a position of trust to the victim. The latter principle in this case may not be any different, or may overlap the previously mentioned principle. [15] Section 718.2(d) and (e) are also relevant: (d) (e) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [16] There are mitigating circumstances in this case. The accused has only a minor criminal record. He has never been convicted of an offence of this nature. He has co-operated with the police. He has pled guilty. He is employed and is supporting a common law spouse who has a twelve year old daughter, which is troublesome. [17] However, there are aggravating factors to be considered. First, the accused was some forty-five years older than the victim. His assaults took place over an extended period of time on a victim who had the right to place a trust in him. [18] Counsel for the accused stated that his client would take treatment and counselling. He also stated that if he was not able to be employed, he would not be able to pay the mortgage on his house. [19] Because of the seriousness of the offence in relationship to a child of young years by a much older offender, I am unable to conclude that a conditional sentence would be appropriate in the circumstances of this case. [20] In the case of R. v. S. (R.N.), 140 C.C.C. (3d) 553 (S.C.C.), the Supreme Court of Canada restored a trial judge s sentence of nine months imprisonment

8 Page: 4 on a man who, between the ages of forty-six and fifty, sexually assaulted his step-granddaughter when she was between five and eight years of age. He had fondled the victim s vagina on a number of occasions and had given the victim money to touch his penis. The accused had no criminal record and was in poor health, which obviously was a factor to which weight was given. At p. 561, Lamer C.J.C. stated: [18] With respect, I do not think that a nine-month conditional sentence was a fit sentence, in light of the relevant sentencing considerations, including the gravity of the offences committed and the high moral blameworthiness of the respondent. The impugned acts occurred repeatedly over a period of approximately five years. The respondent abused the trust of a very young child, despite clear indications from the complainant that she did not like what he was doing. He remained unrepentant and continued to deny that the offences took place. The amount of denunciation provided by a nine-month conditional sentence was clearly insufficient in the circumstances to signify society s abhorrence for the acts the respondent committed, despite the fact that his liberty was restricted by the conditions imposed. It must be remembered that, even though the respondent experienced some marital difficulties, he still benefited from the support of his family, while the victim and her mother were ostracized by the rest of the family. [21] While the length of the time over which the offence was committed was longer in R. v. S.(R.N.), and the accused in that case was unrepentant, the case is an indication of the attitude of the Supreme Court to sexual offences committed against children and that the principles of denunciation is of prime consideration. CONCLUSION [22] Having reviewed the submissions made by counsel, the pre-sentence report, the assessment report from the sexual deviance specialist and the particular facts of this case, I impose a sentence of nine months incarceration. In addition, the accused will be placed on probation for a period of two years upon his release with the following conditions: 1. Comply with the general conditions listed in s (2) of the Criminal Code, namely: (a) (b) Keep the peace and be of good behaviour; appear before the Court when required to do so by the Court; and

9 Page: 5 (c) notify the Court or the probation officer in advance of any change of name or address, and promptly notify the Court or the probation officer of any change of employment or occupation. 2. In addition, the accused shall: (a) (b) Report to a probation officer within two working days after making this order and thereafter when required by the probation officer and in the manner directed by the probation officer; take sex offender treatment as directed by the probation officer;

10 Page: 6 (c) (d) (e) take mental health and/or anger management treatment and counselling as directed by the Probation Officer; take alcohol and drug treatment and counselling as directed by the Probation Officer; have no contact with any female under the age of sixteen years except in the presence of another person over twentyfive years of age. December 20, 2000 C.J.