HMTQ v. T.P.C.

2000 BCSC 742 Citation: HMTQ v. T.P.C. Date: 20000511 2000 BCSC 742 Docket: X055165 Registry: NEW WESTMINSTER IN THE SUPREME COURT OF BRITISH COLUMBIA HER MAJESTY THE QUEEN v T.P.C. REASONS FOR SENTENCE OF THE HONOURABLE MR. JUSTICE ROMILLY Counsel for the Crown: Shelene Rail Counsel for the Accused: T. Hara Date and Place of Hearing: May 3, 2000 NEW WESTMINSTER, BC [1] The accused is charged with the following offences: Count 1: T.P.C., between the 1st day of January, 1973 and the 30th day of June 1980, at or near the City of Coquitlam, in the Province of British Columbia, did indecently assault a female person, S.M., contrary to Section 149(1) of the Criminal Code AND AGAINST THE PEACE OF OUR LADY THE QUEEN HER CROWN AND DIGNITY Count 2: T.P.C., between the 1st day of January, 1973 and the 30th day of June, 1980, at or near the City of Coquitlam, Province of British Columbia, did commit an act or acts of gross indecency with S.M., contrary to Section 157 of the Criminal Code of Canada. AND AGAINST THE PEACE OF OUR LADY THE QUEEN HER CROWN AND DIGNITY [2] The Accused was found guilty by a jury of the above two Counts but I entered a conditional stay on Count 1. I therefore have to sentence the accused on Count 2 of the indictment. Facts [3] The accused was at the time of the alleged offence, the step father of the complainant who was between the ages of 7 and 12 years during the time of the offence. The accused was between 34 and 40 years old at the time of the offence. The complainant suffered from very bad eczema and had a skin condition whereby no oil got to her skin naturally. Because of this, she had to be literally dipped into oil in order to keep her skin moist. Apart from that, she had to have her eczema treated on a regular basis. The accused was entrusted to place the cream on the complainant's body. While doing this he engaged in digital penetration of the complainant's vagina, he showed her how to masturbate herself, he committed cunnilinglus on her, she committed fellatio on him, he attempted sexual intercourse on her on at least one occasion, rubbed his penis against her vagina, and they mutually masturbated each other on a regular basis. The sexual abuse of the complainant continued on a regular basis for almost six years. It ceased when the complainant began to get pubic hair and she told the complainant that she did not wish to do these acts any more. At the time of the trial the complainant was in her 30's. I should point out at this stage that the complainant's biological mother, together with the accused, also engaged in at least one of these incidences of sexual abuse on the complainant but, for reasons that are not altogether clear, charges were not laid against her. Background of the Accused [4] The accused is presently 61 years old and has been described as being a very industrious and hard working individual. Numerous letters of support were filed on his behalf. He is remarried after having divorced the complainant's mother and he seems to be close to his new wife two of his sons and two of his grand daughters. Other aspects of his background have been canvassed in the pre-sentence report which was marked as an exhibit in these proceedings. He has no criminal record. [5] In a letter to the court from Gene Bonny, Clinical Psychologist, the accused was described as : Mr. C. (the accused) is a rather shy, serious, quiet person who, through concentration and thoroughness, has gained success s a heavy duty mechanic. He is a practical, orderly, matter-of-fact person who is logical, realistic and dependable. When Mr. C. makes up his mind as to what should be accomplished, he works towards it steadily. He does not always find it easy to express himself with words, and is, in fact, rather self-conscious about how he communicates. He is oriented toward doing rather than talking. He is conscientious, probably to a fault. I think Mr. C. puts others before himself, especially those whom he loves and cares for. His primary interests are his family and working to retirement in several years, when h can resume his hobby of model trains, play more golf and travel with his wife, Carol. [6] The psychologist also stated: While Mr. C. is not a psychologically sophisticated man, he is an honest person, he is an honest person. He believes himself to be innocent of the charges that have been laid against him. He accepts jury's verdict, yet maintains his innocence. He is angry that the charges were laid, yet he has compassion for his daughter, S.(the complainant). Her distress affects him. He cares about her health and well-being. I do not consider Mr. C. a risk to the community in any way. I do not think incarceration would benefit him. I would suggest, however, that Mr. C. continue in therapy to work through his feelings. I would also suggest that if S. and her therapist believe that a session with Mr. C. and me would further their healing, I would work towards that end. At the appropriate time, conjoint may well provide the necessary reparation and be a significant step toward healing. Mr. C. and I are prepared to participate in that process with his daughter S., and her therapist, if they so choose. Position of the Defence [7] Counsel for the accused stressed that although the accused considers himself to be innocent of the offence, he is concerned about the welfare of his daughter, the complainant. He is prepared to take counselling with her to help her healing. [8] Defence counsel submits that the accused should be granted a conditional sentence. He also points out that that the accused would lose his employer's portion of the contribution towards his pension unless he is able to work steadily until his retirement in the next few years. [9] In support of his position counsel drew my attention to the following authorities: R. v. Proulx (2000), 140 C.C.C. (3d) 505 (S.C.C.); R. v. W.(L.F.) (2000), 140 C.C.C. (3d) 539 (S.C.C.); R. v. R.L.H., [2000] B.C.J. No. 441 (B.C.C.A.); R. v. J.A.F., [1997] B.C.J. 2503 (B.C.Prov.Ct.); R. v. Ursel et al (1997), 177 C.C.C. (3d) 289 (B.C.C.A.); R. v. M.M.,[1997] B.C.J. No. 376 (B.C.S.C.); R. v. E.C.S., [1997] B.C.J. No. 1330 (B.C.Prov.Ct.); R. v. R.(R.A.),[1997] M.J. No. 539 (Man.C.A.); R. v. R.A.P.,[1998] B.C.J. No. 1452 (B.C.S.C.); R. v. Spoonmore, [1997]B.C.J. No. 3061 (B.C.Prov.Ct.); R. v. J.R.G.,[1997] B.C.J. No. 3086 (B.C.S.C.); R. v. Smith,[1989] B.C.J. No. 935 (B.C.C.A.); R. v. D.E.S.M. (1993), 80 C.C.C. (3d) 371 (B.C.C.A.); and R. v. P.(R.J.) [1987] Y.J. No.4 (Y.T.C.A.). [10] I am indebted to Crown counsel who pointed out that J.A.F., supra, was overruled [1998] B.C.J. No. 1196 (B.C.C.A.) and R.(R.A.), supra, was overruled (2000), 140 C.C.C. (3d) 523 (S.C.C.). Position of the Crown [11] Crown counsel submits that the accused was in a position of trust at the time he committed these despicable acts upon this innocent complainant. She submits that the accused is still in denial and prefers to blame the complainant and the complainant's mother for his predicament. She further submits that the age of the complainant, the nature of the acts, the length of the abuse and the accused's complete lack of remorse makes this a case where a conditional sentence should not be considered by the court. Crown counsel submits that a sentence of 3 to 4 years should be imposed on the accused for this offence. [12] In support of her position counsel drew my attention to many authorities. [13] With respect to gross indecency and sexual assault sentence range: R. v. Glendale (unreported)(February 11, 1983) Vancouver CA820884 (B.C.C.A.); R. v. Peeters (June 24, 1982) Vancouver CA820576 (B.C.C.A.); R. v. J.F.G., [1983] B.C.J. No. 1401 (B.C.C.A.);R. v. Turell, [1986] B.C.J. No. 1193 (B.C.C.A.); R. v. W.(D.), [1990] B.C.J. No. 1947 (B.C.C.A.); R. v. Price, [1995] B.C.J. No. 762 (B.C.C.A.); R. v. R.W.R.(1995), 65 B.C.A.C. 138 (B.C.C.A.); R. v. Chaput (R.F.)(1996), 84 B.C.A.C. 281 (B.C.C.A.) and R. v. T.A.D. (1995), 68 B.C.A.C. 236 (B.C.C.A.). [14] With respect to general principles, she referred me to the following cases: R. v. L.(C.) (unreported) (January 12, 1998) New Westiminster Registry No. X047682 (B.C.S.C.) and R. v. L.(J.J.) (1998), 126 C.C.C. (3d) 235 (Que. C.A.)(Appeal dismissed October 1, 1998). [15] With respect to the applicability of a conditional sentence for this offence for this accused, Crown counsel drew my attention to the following authorities: R. v. Proulx, supra; R. v. W.(L.F.), supra; R. v. S.(R.N.) (2000), 140 C.C.C. (3d) 553 (S.C.C.); R. v. R.(R.A.) (2000), 140 C.C.C. (3d) 523 (S.C.C.); R. v. P.A.M., [2000] B.C.J. No. 356 (B.C.C.A.); R. v. D.A.C.,[1998] B.C.J. No. 196 (B.C.C.A.); R. v. J.A.F., [1998] B.C.J. No. 1196 (B.C.C.A.); R. v. P.D.,[1999] O.J. No. 3375 (Ont. C.A.); R. v. S.(L.J.), (1997), 116 C.C.C. (3d) 477 (Ont. C.A.)(application for leave to appeal to S.C.C. dismissed November 6, 1997); R. v. Alfred, [1998] O.J. No. 70 (Ont. C.A.), and R. v. G.O., [1997] O.J. No. 1911 (Ont. C.A.). The Law (i) General Principles [16] In R. v. L.(J.J.), supra, the court reviewed the factors to be considered in sentencing for sexual offences, including gross indecency. Otis J.A., for the court stated at pp. 241-3: Among the factors which permit the determination of the extent of an offender's criminal liability for the purposes of sentencing for sexual offences, the following are worthy of mention: -The nature and intrinsic gravity of the offences which is affected by, in particular, the use of threats, violence, psychological threats and manipulation, etc... (R. v. L.(A.) (1991), R.L. 337 (Que.C.A.); R. v. Hamelin, J.E. 91-1285 (Que.C.A.); R. v. S.(A.F.) (1996), 71 B.C.A.C. 317 (B.C.C.A.); R. v. K.(D.) (1994), 155 A.R. 269 (Alta.C.A.); R. v. W.(A.) (1994), 94 C.C.C. (3d) 441 (Ont.C.A.); R. v. S.(W.B.) (1992), 73 C.C.C. (3d) 530 (Alta.C.A.); R. v. J.(J.) (1991), 117 A.R. 155 (Alta.C.A.)). -The frequency of the offences and the time period over which they were committed. (R. v. C.(P.), [1997] R.J.Q. 1263 (Que.C.A.); R. v. G.(P.), J.E. 91-1770 (Que.C.A.); R. v. Hamelin,, supra; Plourde v. R., J.E. 91-266 (Que.C.A.); R. v. Scott, J.E. 90-1425 (Que.C.A.); R. v. C.(G.), J.E. 90-266 (Que.C.A.). -The abuse of trust and the abuse of authority which are involved in the relationship between the offender and the victim. R. v. D.(D.), J.E. 97-806 (Que.C.A.); R. v. D.(G.), J.E. 93-303 (Que.C.A.); R. v. Potvin, [1992] R.J.Q. 1471 (Que.C.A.); R. v. Doré1, J.E. 91-1656 (Que.C.A.); R. v. Déraspe, J.E. 91-1693 (Que.C.A.); R. v. L.(A.), supra; Plourde v. R., supra; R. v. Scott, supra; R. v. T.(P.M.) (October 2, 1996) Can. Abr. (2nd) R11B SUPP. 5958 [reported 131 W.A.C. 179]; R. v. Creasser (1996), 187 A.R. 52 (Alta.C.A.); R. v. T.(M.S.) (1995), 131 Sask.R. 311 (Sask.C.A.); R. v. M.(G.W.) (1994), 75 O.A.C. 153 (Ont.C.A.): R. v. A.(R.A.) (1993), 39 B.C.A.C. 151 (B.C.C.A.); R. v. J.(J.), supra. -The disorders underlying the commission of the offences: the offender's psychological difficulties, disorders and deviancy, intoxication, etc. (R. v. N.(A.), J.E. 94-1185 (Que.C.A.); R. v. Doré, supra; R. v. L.(A.), supra; R. v. LaForest, J.E. 90-1522 (Que.C.A.) ; R. v. C.(R.) (1992), 125 N.B.R. (2d) 17 (N.B.C.A.); R.v. R. (W.G.) (1991), 8 B.C.A.C.) 91 (B.C.C.A.); R.v. S.(L.I.), B.C.C.A., Macdonald, Southin and Cumming JJ.A., August 15, 1989, CA010600). -The offender's previous convictions: proximity in time to the offence charged and the nature of the previous offences. (R. v. G.(P.), supra; R. v. LaForest, supra; R. v. J.(P.T.) (1993), 24 B.C.A.C. 142 (B.C.C.A.); R. v. B.(D.M.) (1993), 141 A.R. 307 (Alta.C.A.); R. v. S.(L.I.), supra.). -The offender's behaviour after the commission of the offences: confessions, collaboration in the investigation, immediate involvement in a treatment programme, potential for rehabilitation, financial assistance if necessary, compassion and empathy for the victims (remorse, regret, etc). (R. v. N.(A.), supra; R. v. Potvin, supra; R. v. Hamelin, supra; R. v. LaForest, supra; R. v. Bouchard, J.E. 90-1136 (Que.C.A.); R. v. C.(G.), supra; R. v. K.(J.E.), [1995] C.C.L. 572 (Alta.C.A.); R. v. D.(T.A.) (1995), 68 B.C.A.C. 230 (B.C.C.A.); R. v. B.(R.A.) (1995), 58 B.C.A.C. 303 (B.C.C.A.); R. v. S.(A.L.) (1995), 160 N.B.R.(2d) 198 (N.B.C.A.); R. v. R.(A.), [1994] 4 W.W.R. 620, 88 C.C.C. (3d) 184 (Man.C.A.); R. v. K.(B.D.) (1993), 20 W.C.B. (2d) 171 (B.C.C.A.); R. v. B.(D.M.), supra; R. v. M.(G.), 77 C.C.C. (3d) 310 (Ont.C.A.); R. v. P.(R.B.), Ont.C.A., Robins, McKinlay and Griffiths JJ.A., March 23, 1992, 646/91; R. v. G.(R.A.) (1991), 115 N.B.R. (2d) 221 (N.B.C.A.); R. v. A.B.C. (1991), 120 A.R. 106 (Alta.C.A.)). -The time between the commission of the offences and the guilty verdict as a mitigating factor depending upon the offender's behaviour (the offender's age, social integration and employment, commission of other offences etc.). (R. v. C.(P.), supra; R. v. Piette, J.E. 95-1168 (Que.C.A.); R. v. T.(L.M.), J.E. 94 -1032 (Que.C.A.); R. v. G.(P.), supra; R. v. Doré, supra; R. v. H.(G.O.) (1996), 148 N.S.R. (2d) 38418 (N.S.C.A.); R. v. C.(C.E.) (August 20, 1996), Can.Abr. (2d) R11B Supp. 6636 (Man.C.A.); R. v. Creasser, supra; R. v. D.(T.A.), supra; R. v. R.(A.), supra; R. v. R.(S.G.O.) (1991), 113 A.R. 36 (Alta.C.A.)). -The victim: gravity of the attack on his or her physical or psychological integrity reflected by, in particular, age, the nature and extent of the assault, the frequency and duration of the assault, the character of the victim, his or her vulnerability (mental or physical handicap), abuse of trust or authority, lingering effects etc. (R. v. Piette, supra; R. v. L.(A), supra; R. v. LaForest, supra; R. v. C.(G.), supra; R. v. S.(A.F.), supra; R. v. W.(J.M.A.), (1995) 55 B.C.A.C. 96 (B.C.C.A.); R. v. T.(M.S.), supra; R. v. S.(S.M.) (1995), 160 N.B.R. (2d) 182 (N.B.C.A.); R. v. W.(A.), supra; R. v. C.(R.), supra. (ii) Sexual Assault of Young Children [17] Except in "exceptional circumstances" sexual abuse of children will normally demand a sentence of imprisonment. Otherwise, there is a broad range in the sentences for sexual assault: R. v. Clayton (1982), 69 C.C.C. (2d) 81 (Ont. C.A.); R. v. Palmer (1985), 7 O.A.C. 348 (C.A.); R. v. Fraser (1987), 20 O.A.C. 78 (C.A.); R. v. Danchella (March 8, 1990), Vancouver CA009244 (B.C.C.A.); R. v. R.R.O. (March 22, 1990), Victoria V01054 (B.C.C.A.); R. v. B.S. (August 14, 1989), Vancouver CA010503 (B.C.C.A.); R. v. Smith (15 May 1989), Vancouver CA10423 (B.C.C.A.), digested at [1989] B.C.D. Crim. Sent. 7510-03 ; R. v. Lysack (1988), 26 O.A.C. 338 (Ont. C.A.); R. v. D.L. (1990), 53 C.C.C. (3d) 365 (B.C.C.A.); R. v. Gauley (9 April 1990), Vancouver CA010839 (B.C.C.A.), digested at [1990] B.C.D. Crim. Sent. 7517-10 ; R. v. Marshall (May 17, 1985), Victoria V00051, (B.C.C.A.); R. v. G.M. (1992), 77 C.C.C. (3d) 310 (Ont. C.A.); R. v. Hodgson (June 25, 1996) #C18122 (Ont.C.A.); R. v. Stevens (June 13, 1996) #C18840 (Ont.C.A.); R. v. Peterson (1996), 89 O.A.C. 60 (Ont.C.A.). [18] The range of sentencing for sexual assault of young children over a prolonged period of time would appear to be from five to nine years in British Columbia: R. v. T.A.D. (1995), 68 B.C.A.C. 236 (B.C.C.A.), R. v. Nikal (December 2, 1999) Victoria CA020203 (B.C.C.A.); R. v. Sajna (1991), 9 B.C.A.C. 233 at 239 (B.C.C.A.); R. v. Jackson (February 16, 1994) Vancouver CA016654 (B.C.C.A.); R. v. Chaput (1996), 84 B.C.A.C. 281 (C.A.). [19] The Alberta Court of Appeal has re-affirmed that general deterrence and denunciation are the principal sentencing concerns in cases of sexual assault upon children by persons in positions of trust or authority. In such cases, the starting point in Alberta will be four years' imprisonment: R. v. W.B.S.; R. v. M.P. (1992), 73 C.C.C. (3d) 530 (Alta. C.A.). In Manitoba the starting point was also 4 years: R. v. D.(C.) (1991), 75 Man. R. (2d) 14 (Man.C.A.). The starting point approach to sentencing was refined somewhat by the Supreme Court of Canada in R. v. McDonnell (1997), 114 C.C.C. (3d) 436 (S.C.C.). (iii) Historic Sexual Assaults [20] In R. v. L.(C.), supra, I reviewed most of the cases dealing with this issue, nevertheless I intend to refer again to some of those authorities. In R. v. R.(A.) (1994), 88 C.C.C. (3d) 184 (Man.C.A.) there was a historic sexual assault. The accused was 71 years old at the time of sentencing, was wheelchair bound with muscular dystrophy. The court, relying on R. v. Spence (1992), 78 C.C.C. (3d) 451 (Alta.C.A.), stated at p.189: Nonetheless, where the delay in the reporting of the offence has not resulted from threats made by the offender, or from other attempts to suppress a complaint, the offender may be entitled to a somewhat reduced sentence if he has led an exemplary life during the intervening years and demonstrates genuine remorse. Such circumstances would obviate the need for individual deterrence and time for rehabilitation. [21] In R. v. Spence, supra, the court was of the view that the lapse of time and the intervening years of "unblemished conduct" did not lessen the relevance of the principles of general deterrence and denunciation. Similarly, in R. v. M.(D.B.) (1991), 67 C.C.C. (3d) 95 (B.C.C.A.) the court refused to reduce the sentence imposed where offences involving young children had occurred many years previously, even though the accused had been a "good steady, reliable employee" and did not require rehabilitation. See also R. v. P.(H.P.) (1996), 112 C.C.C. (3d) 140 (Man.C.A.), and R. v. G.M. (1992), 77 C.C.C. (3d) 310 (Ont. C.A.), where it was held that previous good character is not a mitigating factor to be considered in sentencing for sexual assault upon children under one's care. (iv) Range of Sentences for Incestuous Relationship [22] Apart from the authorities that have been drawn to my attention by counsel, I note that in R. v. M.(D.) (1999), 136 C.C.C. (3d) 412 (Ont.C.A.), the accused was convicted of sexually assaulting his girlfriend's daughter while living in the same home, over a period of years. The court held that the range of sentence for incestuous relationship is between three and five years imprisonment and imposed a five year sentence. This case is to be contrasted with R. v. R.J.E. (April 15, 1999) Vancouver CA025724 (B.C.C.A.), where the court granted an 18 month conditional sentence to a perfectly healthy man who was in loco parentis to the 13 year old child who he sexually assaulted on a continuous basis. Since R. v. R.J.E., supra, was handed down by our Court of Appeal, however, the Supreme Court of Canada has had occasion to rule on the issue of when a conditional sentence should be imposed. It may be prudent for me to see how the Supreme Court of Canada mandated the manner in which offences of this type should be treated by the lower courts. (v) The Effect of Recent Jurisprudence on the Sentence that should be Imposed on the Accused [23] Before proceeding with the effect of recent jurisprudence on the sentence that I should I impose for the type of sentence similar to the case at bar, I wish to make it clear that I have recently canvassed the law on when a conditional sentence should be imposed in R. v. Teskey (April 14, 2000) Vancouver C36320-01-1D (B.C.S.C.). I merely adopt my analysis made in that case. [24] The cases of W.(L.F.),supra., and R. v. S.(R.N.), supra., indicate quite clearly that, even under the new sentencing principles adopted in Bill C-41 (now S.C. 1995, c. 22), the principle of denunciation weighs particularly heavily in cases of offences perpetrated against children by adults in positions of trust and authority. [25] In W.(L.F.), supra, the accused was convicted on one count of indecent assault and one count of gross indecency. The offences were committed between 1967 and 1973 and at the time the victim was between 6 and 12 and the accused was between 22 and 28 years old. The trial judge sentenced the accused to a conditional sentence of 21 months. In arriving at that sentence, the trial judge reviewed the aggravating factors and mitigating factors in the case. He found that aggravating factors were the victim's age, the fact that the crimes were repeated, the harmful impact on the victim, and the abuse of familial trust. Mitigating factors were the absence of further criminal conduct and the respondent's good reputation in the community. The trial judge was also of the view that there was no appreciable risk of criminal conduct by the offender if he served his sentence in the community. The trial judge noted that the accused had spent over a quarter century since the offences without any related criminal activity by him and that he had led a productive life. The trial judge was therefore of the view that incarceration was not needed for specific deterrence of the offender despite the absence of expressed remorse. The trial judge pointed out that the stigma of trial and conviction should not be minimized, and that a conditional sentence might, in the circumstances, serve the purposes of denunciation and general deterrence if meaningful conditions were imposed consequently, aside from the mandatory conditions imposed pursuant to s. 742.3 of the Criminal Code, the trial judge ordered that the offender (1) abstain from the consumption of alcohol or drugs, (2) attend sex-offender counselling if required by his supervisor, (3) not associate with the victim , or her immediate family except at their request, (4) perform up to 150 hours of community service if so directed by his supervisor, and (5) remain under house arrest subject to specified exceptions. The Court of Appeal dismissed the appeal. The Supreme Court of Canada divided evenly, which affirms the judgment of the Court of Appeal but rendered the judgment void of any precedential value. L'Heureux-Dubé, J. did however state how these type of offences are usually treated. She stated at paras 29-30: Courts have tended, even under the new sentencing principles adopted in Bill C-41 (now S.C. 1995, c. 22), to find that the principle of denunciation weighs particularly heavily in cases of offences perpetrated against children by adults in positions of trust and authority. See: R. v. Oliver (1997), 99 O.A.C. 234 (Ont.C.A.); R. v. Alfred (1998), 122 C.C.C. (3d) 213 (Ont.C.A.); R. v. P.D., [1999] O.J. No. 3375 (Q.L.) [reported 139 C.C.C. (3d) 274 (C.A.)]; R. v. R.R.E., [1998] O.J. No. 2226 (QL) (Prov.Div.); R. v. P.M., [1999] O.J. No. 421 (QL) (Prov.Div.); R. v. I., [1998] O.J. No. 5713 (QL) (Gen.Div.) [summarized 41 W.C.B. (2d) 78]; R. v. Cuthbert (1998), 101 B.C.A.C. 147 (B.C.C.A.). While the trial judge stated that he considered principles of deterrence and denunciation in determining the sentence, in my view, the decision to impose a conditional sentence in this case indicates a serious failure to give appropriate weight to the objective of denunciation. I also agree with Cameron J.A. that the trial judge did not give sufficient weight to the moral blameworthiness of the offender, who engaged in offensive and demeaning behaviour with a young person over whom he had significant power as an older relative and neighbour, and who indicated no remorse even upon conviction for the offences . This offends the proportionality set out in s. 718.1 of the Criminal Code, R.S.C., 1985, c.C-46, which establishes the fundamental principle that the court must impose a sentence proportionate to the gravity of the offence and the degree of responsibility of the offender. (Emphasis added) [26] In R. v. S.(R.N.), supra, which involved the sexual abuse of a child, all members of the court agreed that the original sentence of 9 months incarceration was appropriate and overturned the 9 month conditional sentence imposed by the British Columbia Court of Appeal. At paras 18-19 Lamer C.J.C. stated: With respect, I do not think that 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. In conducting its re-sentencing, the Court of Appeal should have recognized that the relatively lenient nine-month term imposed by MacArthur Prov.Ct.J. was the result of his taking into account the precarious health of the respondent at the time of sentencing, his marital difficulties and the social stigma he had already suffered, as the sentencing judge would have been inclined to agree with the Crown's submission that a term of incarceration in the range of 18 to 24 months was warranted. By imposing a conditional sentence of only nine months, the Court of Appeal transformed what was already a lenient sentence into an unfit sentence. I would add that the Court of Appeal was not obligated to impose a conditional sentence of equivalent duration to the term of incarceration imposed by the trial judge. (Emphasis added) [27] Lamer C.J.C then explained the reason why he apparently reached a different decision in R. v. W.(L.F.) (2000), 140 C.C.C. (3d) 539 (S.C.C.). He stated at para. 23: Although this conclusion seems to differ from the result I reached in L.F.W., supra, the present appeal can be distinguished from L.F.W., in three respects. First, in L.F.W., the conditional sentence imposed was considerably longer than the nine-month conditional sentence imposed by the Court of Appeal in this case. Had the Court of Appeal imposed a significantly longer conditional sentence, I would not have interfered, given the deference to which sentencing decisions by appellate courts are entitled. Second, in L.F.W., the offender was arguably rehabilitated, as demonstrated by the 25-year period that had elapsed without any further criminal activity. Finally, in L.F.W., the conditional sentence imposed by the trial judge (and confirmed by the majority of the Court of Appeal) was entitled to considerable deference, according to the standard enunciated in R. v. M.(C.A.), [1996] 1 S.C.R. 500, at para. 90, and Proulx, supra, at paras. 123-126. The Court of Appeal's sentence in this case, although entitled to some deference, is not entitled to the same level of deference accorded to sentences imposed by trial judges. I would add that in L.F.W., I might well have imposed a term of incarceration were it not for the deference I was bound to give to the sentence imposed by the trial judge (at para. 25). (Emphasis added) [28] In imposing the sentence that I intend to impose in this matter I take some comfort from the words of Finch J.A. in R. v. P.A.M., supra., a case that considered these recent supreme court of Canada decisions. Finch J.A. said at para. 9: I find myself in substantial agreement with the reasoning of the learned sentencing judge. The nature, frequency and duration of the assaults against the first complainant, and her young age at the time, are all factors which call for significant deterrence and denunciation. I do not think those principles would be adequately reflected by a conditional sentence in the circumstances. In saying that, I acknowledge that the Supreme Court of Canada has said that conditional sentences can and do provide elements of denunciation and deterrence. I am, however, unable to see anything in the reasoning of the learned sentencing judge, or in the sentence she imposed, that is inconsistent with what has been said in the recent Supreme Court of Canada judgments. The sentences of incarceration cannot, in my view, be said to be unfit. Conclusion [29] In the case at bar, I have reviewed all of the law cited above; I have reviewed the sentence submissions made by both counsel; I have reviewed the pre-sentence report; I have reviewed the letters of support for the accused; I have reviewed the psychological report of Dr. Gene Bonny; and I have reviewed the victim impact statement. I am satisfied that some of the conditions necessary for the imposition of a conditional sentence apply in the case at bar: there is no minimum sentence for the offence for which the accused was convicted; he is not a danger to the community and the period of incarceration that I intend to impose is less than two years. After considering the facts in the case at bar including, the nature of the assaults, the age of the complainant, the position of trust that the accused occupied, and the duration of these assaults of this impressionable young girl, I am not satisfied, however, that this is a case where a conditional sentence should be imposed. [30] On the count in the indictment on which the accused is being sentenced, he will be sentenced to a period of 18 months at the Fraser Regional Correctional Centre, in addition he is to pay a fine of $5,000.00 and a Federal Victim surcharge of $500.00. [31] I will be remiss if I did not take this opportunity to thank counsel for their able submissions in what I consider to be a difficult sentencing matter. "S.R. Romilly, J." The Honourble Mr. Justice S.R. Romilly