R. v. Roy

R. v. Roy Collection Decisions of the Court of Appeal Date 1999-12-13 Docket numbers C32320 Judges Carthy, James Joseph; Moldaver, Michael James; MacPherson, James C. Subject Criminal Decision Content DATE: 19991213 DOCKET: C32320 COURT OF APPEAL FOR ONTARIO CARTHY, MOLDAVER AND MacPHERSON JJ.A. BETWEEN: ) ) Dana L. Venner HER MAJESTY THE QUEEN ) for the appellant ) Applicant ) (Appellant) ) ) and ) Cindy R. Wasser ) for the respondent MARLIN ROY ) ) Respondent ) ) Heard: December 8, 1999 On appeal against a conditional sentence imposed by Stong J. on May 25, 1999. BY THE COURT: [1] The Crown appeals against a conditional sentence imposed upon the respondent after a conviction for sexual assault and possession of pornography. The victim was a young boy who was sexually violated over a period extending between the age of 7 and 12 years. The respondent, in his late thirties, admitted guilt immediately upon arrest and has been co-operative in treatment since that time. The sentencing procedure extended over a ten-month period with considerable attention to the situation of the respondent and his potential for rehabilitation. Dr. Bloom was of the view that he is not a pedophile and can be successfully treated outside of a prison without a real threat of further offences. He recommended as part of the therapy that the respondent write letters to newspapers speaking to the events, his remorse, and indicating how victims can reach out. [2] The sentencing judge issued long and thoughtful reasons in support of his decision to impose a conditional sentence of two years less a day with terms including a requirement of writing the proposed letters to the newspapers and performing 240 hours of community service. [3] The sentencing judge, Dr. Bloom and counsel are to be commended for the time, effort and concern expended to the end of creating a packaged sentence which would best serve the rehabilitation of the appellant. As has been said before, all of society benefits from rehabilitation of an offender. [4] It is clear from the careful reasons of the sentencing judge that he was very cautious in approaching a conditional sentence, having regard to the seriousness of the crime, but in the end he found it to be justified. [5] As much as we must and do respect the discretion exercised by the trial judge and as much as we do not wish to diminish the opportunity for full rehabilitation following Dr. Bloom’s direction, we must conclude that the circumstances surrounding this crime make it one for which a conditional sentence is not available. [6] There has been much debate in the jurisprudence as to conditional sentencing for serious offences which attract a sentence of two years less a day. That debate continues. There can be no debate that a crime calling for a penitentiary sentence does not come within the conditional sentencing regime. This is, in our view, such a case. [7] We are dealing with an adult sexually abusing a young boy over an extended period of time. That boy was particularly vulnerable because he was previously being abused by a friend of the appellant. The crime involved all of the grossest forms of sexual abuse including some that are grotesquely novel, such as urinating in the face. No one can know what impact this abuse will have upon the life of the victim, but experience tells us it will be significant. Repetitious abuse of this sort over a lengthy period of time that is accepted consensually must become ingrained as a form of moral value in the child. Who can doubt that this will leave scars and have an impact upon him in other ways for the rest of his life. [8] It is our conclusion that the sentencing judge fell into error by failing to give adequate weight to the principles of general deterrence and denunciation and by not assessing the sentence in the penitentiary range and thus beyond the reach of a conditional sentence. [9] In our view the proper sentence in this case is between three and four years. He has served six and half months, has written the letters to the newspapers which were a condition of his sentence and has completed most of his community service, as ordered. Also, he will not obtain parole recognition for time served to this date. [10] He should therefore be given more than even credit for time served on the conditional sentence and we would replace that sentence with one of imprisonment for two years less a day from this date forward and two years’ probation thereafter on the same terms imposed by the sentencing judge. This will keep him in the provincial institution and we recommend that every effort be made to continue the current counselling and treatment that appears to be meeting with some success. [11] The appeal is allowed, the sentence is set aside and in its place a sentence imposed on the terms set out in these reasons. Released: December 13, 1999 “JJC” “J.J. Carthy J.A.” “M. Moldaver J.A.” “J.C. MacPherson J.A.”