Supreme Court

SUPREME COURT OF Nova Scotia

Citation: R. v. D.J.M., 2014 NSSC 370

Date: 2014/10/07

Docket: Antigonish, No. 423519, 425809

Registry: Antigonish

Between:

Her Majesty the Queen

Appellant

v.

D. J. M.

Defendant

486.4(1) Subject to subsection (2), the presiding Judge or Justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159,160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male), or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with stepdaughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or

167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).”

By the Court:

[1]            This is a joint sentence recommendation following an early guilty plea by Mr. M..

[2]            I have reviewed the decisions of R. vs. MacIvor and R. vs. Cromwell, that basically establish a joint recommendation is generally accepted by the courts,  where it falls within the acceptable range and is not contrary to the public interest or otherwise unreasonable.

[3]            Both the crown and the defence have recommended the global sentence of four and a half years imprisonment.  This relates to two separate Indictments, one containing ten counts involving four victims and one containing two counts with respect to one victim.  In order to consider the recommendation I must be mindful of the purposes and principles of sentencing as set out in Section 718 and 718.2 of the Criminal Code.

[4]            Our courts have consistently repeated the principle that general deterrence and denunciation are the objectives to be emphasized where dealing with sentences of sexual assaults against children.  The sentence must not be unduly lenient in order to provide the necessary deterrence and denunciation that is required.

[5]            With respect to offences of this nature, as indicated by Judge Tuft’s in the decision referred to by the crown, the court considers the degree of invasiveness, presence or the form of any physical violence beyond the abuse itself, threats of any kind, ages of the victims, relationship between the victims and the offender, the number of incidents and over what period of time is relevant, as well as the impact on the victims.

[6]            In this particular case there are aggravating factors.  The five victims were all under the ages of eighteen years when these offences were committed.  This is a historical sexual assault scenario.  The age of the victims at the time is an aggravating factor pursuant to Section 718.2 of the Code.  The offender was in a positon of trust with respect to these victims.  Three of the victims were his daughters, including a step daughter.  Regarding the daughters, there were a number of incidents over a fairly lengthy period of time.  The acts committed were not identical with respect to the victims.  There would have been premeditation in some instances, especially when alcohol was involved.

[7]            One of the victims, S.M. has provided a Victim Impact Statement, that profoundly describes the psychological and emotional effects that this crime has had on her life.

[8]            On the mitigating side of the matter the accused entered a plea of guilty, avoiding the necessity of preliminary hearings, trial and testimony by his family and other victims.  He has expressed remorse throughout.  There is a Pre-sentence Report.  The offender is now fifty nine years of age, he is unemployed.  A medical report indicates that he has a medical condition, specifically heart disease.

[9]            With respect to the victims B.T. and L.Y, these were isolated incidents and can fairly be described as the lower end of the scale.  The most serious forms of assault definitely related to his daughter S.M.

[10]       I have reviewed the authorities prior to today’s appearance which were provided by the crown.  Although the offences are serious they appear not to be at the extreme end of the scale, in that there were no acts of intercourse or oral sex, there was no touching or exposure of the penis and no direct physical violence beyond the abuse itself.  Courts have often stated that sexual abuse involving sexual intercourse by persons who are in a position of authority over a long period of time calls for a minimum sentence of five to six years.

[11]       Again I repeat that this is a negotiated joint sentence recommendation.  Although the sentence recommendation appears to be on the low end of the scale,  it is within the range having considered the cases.

[12]       So, Mr. M. have your client stand please.

[13]       For the offence of sexual assault on S.M. the sentence is twenty four months consecutive.  For the offence of sexual interference against S.M., one year concurrent.

[14]       For the offence of sexual assault on D.M., the sentence is twelve months consecutive.   One year concurrent for sexual interference of D.M.

[15]       For the offence of sexual assault against T.M., the sentence is sixteen months consecutive.  One year concurrent for the second count, sexual assault against T.M. One year concurrent for each count of sexual interference against T.M.  One year concurrent for the offence of indecent assault against T.M.

[16]       With respect to the offence of sexual assault against B.T. the sentence is one month consecutive.

[17]       With respect to the offence of sexual assault against L.Y. the sentence is one month consecutive.  For the offence of sexual interference against L.Y. the sentence is one month concurrent.

[18]       The total sentence therefore is four and one half years in prison.

[19]       The court will also order a Weapons Prohibition Order for a period 10 years pursuant to Section 109 (1) (a) of the Code.  In addition the court will issue a D.N.A. Order as well as a S.O.I.R.A. Order for life.  The court will also order a Prohibition Order pursuant to Section 161 (1) (a) of the Code regarding attendances at public places for 10 years.

Scaravelli, J.