



COURT OF APPEAL FOR
BRITISH COLUMBIA




Citation:



R.
                v. D.A.D.,









2004 BCCA
            11




Date: 20040107





Docket: CA030058

Between:

Regina

Respondent



And

D.A.D.

Appellant














Before:



The Honourable
            Madam Justice
Southin





The Honourable
            Madam Justice Rowles





The Honourable
            Madam Justice Prowse




Oral Reasons for Judgment








Appellant appearing in person





W.J.S. Bell



Counsel for the (Crown) Respondent





Place and
            Date:



Vancouver, British Columbia





January 7, 2004







[1]

ROWLES,
          J.A.
: Mr. D. D.
          has brought an application for leave to appeal a total sentence of five
          years imprisonment for sexual offences against two complainants who were
        his step-children.

[2]

Mr.
        D. was represented at trial by Mr. George Wool. While he appears on his
        own behalf on the sentence appeal, we have been provided with a comprehensive
      written submission prepared by Mr. Wool for Mr.
D.s
assistance.


[3]

Mr.
        D. was convicted of two counts of sexual assault in relation to the first
        complainant.

He
began to live with the complainants
        mother in 1980 when the complainant was about eight years of age.

The
        sexual misconduct commenced when the complainant was about ten years of
        age.

It began with fondling, followed by partial
        penetration for a period of time and then full and frequent intercourse
        for some six or seven years.

The
        conduct continued until the complainant was about 18. There was some violence
        involved, including manipulation of the complainants head by pulling her
        hair, and anal intercourse when she showed an interest in a boy or dated
        a boy or otherwise displeased Mr. D. by seemingly challenging his control
        over her.

The sexual assaults occurred in numerous locations
      but, as she grew older, they mainly occurred in her home.

[4]

Mr. D. and the complainants mother separated in 1988 after which the
        complainant lived with the offender for a period of time.

The trial judges reasons make plain that the
      relationship that existed at that time was not a consensual one.

[5]

Mr.
        D. began to live with the second complainants mother in 1996 when that
        complainant was twelve years old.

The
        circumstances of that offence were described by the sentencing judge as
      follows:

[8] The conduct giving rise to his conviction pertaining to this young
        complainant involved putting his hand under her blanket, under her clothing,
        and under her panties and touching her vagina on two occasions while he
        pretended to be asleep.

The assaults
        occurred in her bedroom while he was lying on her bed and she was lying
        on a mattress beside the bed.

As
        she put it, they were having a sleep over.

The
        assaults ended obviously because this young complainant confronted the
        offender shortly after each assault and then went to her grandparents,
      who she knew she could trust, and the police were then brought in.


[6]

At
        the time of sentencing, Mr. D. was 47 years old.

He
        has no criminal record.

He has worked
        as a janitor for a number of years in a hotel and mall complex in the interior
        of the province.

He was apparently
        well-regarded by his fellow employees and others in the community who provided
        letters of support for him at the sentencing hearing.

Mr. D. is said to have a stable relationship
        in that he has continued to live with the mother of the second complainant
        and they expected to be married.

His
        doctor also provided a brief note to the effect that Mr. D. has an anxiety
      disorder and will have a problem if incarcerated.


[7]

At
        the sentencing hearing the Crown submitted that a total sentence of between
        four and six years was appropriate and the defence sought a two year conditional
      sentence. Both counsel put forward cases to support their respective submissions.

[8]

The
        trial judge imposed a sentence of four years for each of the offences against
        the first complainant, with the sentences to be served concurrently, and
        a one year consecutive sentence with respect to the offence against the
      second complainant.

[9]

It
        is apparent from his reasons that the trial judge considered general deterrence
        and denunciation, aimed at the protection of young children, to be the
        most important considerations in sentencing.

There
        were a number of aggravating factors in relation to the offences against
        the first complainant: (1) the sexual misconduct began and continued while
        the offender stood as a parent to the complainant and the misconduct was
        obviously a violation of the childs trust; (2) the young age of the complainant
        when the misconduct constituting the offence began; (3) the serious nature
        of the misconduct, which included both vaginal and anal intercourse; and
      (4) the lengthy period of time over which the sexual assaults continued.

[10]

There
        can be no suggestion that the trial judge erred in principle in emphasizing
        general deterrence and denunciation in this case.

In my view, the trial judge was right in concluding
        that is was not a case in which a two-year conditional sentence would have
        been appropriate, given the provisions of the
Criminal Code
with
        regard to conditional sentences and the general principles that must be
      taken into account in sentencing.

[11]

The
        sexual assaults against the second complainant were not as serious in their
        nature or duration as those committed against the first complainant. Nevertheless
        the sexual assaults involved the violation of the parental role Mr. D.
        had assumed in relation to that young complainant.

I see no error in principle in the trial judge
        having imposed a one-year consecutive sentence for the offence involving
      the second complainant.

[12]

Absent
        an error in principle, this court has a limited scope for review of sentencing
        decisions by trial judges.

The Crown
        has provided
us
with a number of cases which demonstrate
        that the five-year total sentence would be within the range of sentences
      imposed in circumstances such as those presented here.


[13]

I
        see no error in principle that would allow this court to interfere in the
      sentences imposed and the total sentence cannot be said to be plainly unreasonable.


[14]

I
      would grant leave but would dismiss the appeal.


[15]

SOUTHIN,
          J.A.
: I agree with
          my colleagues disposition of this appeal.

I
          would say simply that this was a lawful sentence and no error in principle
          having been
shown,
there is no foundation for
        us to interfere.

[16]

PROWSE,
          J.A.
: I agree with
        the reasons of both Madam Justice Rowles and Madam Justice
Southin
.

[17]

SOUTHIN,
          J.A.
: Leave is granted.
        The appeal is dismissed.

The Honourable Madam Justice Rowles




