Sentencing an Abused Abuser - Nicholas Mark

R v SADF (“SADF”) is a disturbing case that involves the sexual assault of children aged six and eight. (1) While the facts of the case are grim, and reading the decision can be difficult, there is an important discussion regarding sentencing and how two courts came to different conclusions on the same facts. On appeal in SADF, the facts were not in dispute and the accused did not deny sexually assaulting the minors multiple times when no other adults were present. (2) The victims were struggling to cope with the effects of such horrific acts committed against them, even after undergoing treatment. (3) The trial judge in SADF had reduced the Crown’s recommended sentence of six years to four and one-half years as the recommended six would have had a crushing effect on the accused’s rehabilitation.

Trial Decision

The trial judge in SADF was aware that another previously decided case, R v Sidwell (“Sidwell”), established a base sentence for a major sexual assault of a child by a person in a position of trust at four to five years of imprisonment. (5) With this in mind, the trial judge determined that, given the information in the pre-sentence report (“the PSR”) and the fact that the accused had no criminal record, that the baseline of four to five years for each offence would be too great, and thus reduced it to six years in total. (6) The information contained in the PSR discussed the accused’s history of abuse by his parents, and his later sexual abuse while in foster care. The trial judge then went on to review the totality of the sentence and its impact on the accused, stating that it would have a crushing effect on their rehabilitation and thus reducing it to four and one-half years, “two years and three months on each count, to be served consecutively”. (7) Looking back to the baseline sentence as prescribed in Sidwell, such facts could warrant a prison stay of eight years; this reduction in SADF amounted to nearly half of this.

How the Trial Judge Erred

The majority of the judges at the Manitoba Court of Appeal (“the MBCA”) disagreed with the sentence given by the trial judge. Looking at first the principle of proportionality, this would mean that the sentence would reflect the seriousness of the offence and the moral blameworthiness of the offender. (8) The trial judge was stated to have erred in appropriately weighing these factors; they underestimated the gravity of the offences and were more lenient in finding for the accused’s moral culpability. (9)

In SADF, there was an egregious abuse of trust; the accused was a father of one victim and was trusted to care for the other. (10) He had committed the offences on multiple occasions over a significant period of time, and the harm he had inflicted could not be understated. (11) His motive for these offences was that he had not had sex in ten years, he was angry and desperate, and he had appreciated the powerless nature of his victims. (12) Considering the nature of these types of offences, they will always be very significant, especially when we consider the great amounts of psychological harm that remain with the victim. This is reflected in Parliament’s recognition of the seriousness of these offences against children, with the average punishment for sexual offences with persons under the age of 18 steadily increasing over the last decade. (13)

Turning to the role of denunciation and deterrence for these offences, these are paramount considerations and the fact that the victims of these offences were under 18 at the time of the offence is codified in section 718.2(a) of the Criminal Code (“the Code”) as being an aggravating factor. (14) These offences in themselves would carry a longer sentence by virtue of the victim’s age and subsequently their vulnerability. The sentencing judge noted denunciation and deterrence were objectives, but they were not acknowledged to be prioritised. (15) As stated in Friesen, it is not enough to state that sexual offences against children are serious; the sentences should reflect the significance of the harm inflicted. (16) The MBCA in SADF felt that the trial judge focused more on the personal circumstances of the accused rather than the offences committed. (17)

Looking to the moral blameworthiness of the offender then, sexual offences against children place a high level of moral blameworthy since it ought to be known that it can profoundly harm the vulnerable child. (18) Despite the mitigating factors in the accused’s history, the trial judge was held that they failed to appreciate the significance of the accused’s moral culpability. (19) He committed the actions intentionally on the children and did so knowing how vulnerable they were; a reasonable person ought to have understood the lasting harms that flow from such actions. Having a history of sexual abuse, the accused should have been acutely aware of how lasting of an impact of being sexually abused can be.

Looking back again to the trial judge’s decision, it was at this point, before the totality principle was applied, that they came to the conclusion that a six-year sentence would be apt. This totality principle is a “last look” to see if the cumulative sentence as a whole exceeds the overall culpability of the offender. (20) This is essentially a last overall look at the sentence to see if it is indeed fair considering the offender's culpability in the offence. To assess if it is fair, the judge must look again at

• the proportionality of the offence;

• the length of the sentence as a whole;

• the offender's criminal record; and

• the prospects for their rehabilitation.

(21) The sentencing judge wrongfully focused almost exclusively on the rehabilitation aspect of this test, leading them to reduce the sentence a further one and one-half years. (22) The MBCA felt that the seriousness of the repeated sexual abuse for the two trusting young children did not warrant a reduction of the six years; it would be disproportionate to give rehabilitation such a large consideration against this seriousness. (23)

Siding with the Dissent

This was a contentious case for the MBCA, as Monnin JA had argued that greater deference should be given to the sentencing judge and thus that the appeal should have been dismissed. (24) For the reasons they discuss in their opinion, this seems as a more appropriate decision from an appellate court. The trial judge did not err by basing their decision by focusing more on one factor than another because there is a presumption that the issues that were raised were in their consideration. (25) For reasons of time and from a practical standpoint, it would be difficult to deal with every issue considered in its totality in SADF. The Crown had submitted that four years for each victim would be appropriate, and, when looking at the totality of the sentence, it should have been reduced to six years in total. (26) With this in mind, it seems as though the trial judge’s decision was not as great of a departure as one may have thought at first.

The trial judge’s decision to focus on the impact of rehabilitation was also appropriate, and especially suitable in the case involving a crime of a sexual nature. Sexual offenders in prisons generally experience more stigmatization than any other population in the prison, often at the bottom of the prison hierarchy due to their crime (27). Their crime is their identity essentially, and for that reason they are labeled as “sick” or “evil. (28). As a result, they are subject to an increased risk of victimization in the prisons by other inmates, none of which is conducive to rehabilitation. By reducing the sentence and focusing on the impact of imprisonment, the trial court was correct in its decision. The crime the accused in this case committed was in fact heinous and morally reprehensible, but the broader discussion of rehabilitation is still one to be had. While I am for the punishment for offenders that commit these sorts of crimes, this should not come at a cost of their ability to rehabilitate, especially if they are willing like the accused was here. While we may want to seek some sort of retribution by giving a lengthy sentence, this should be balanced with the offender’s ability to successfully rehabilitate and re-enter society at a lower risk of reoffending.

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Endnotes

1 R v SADF, 2021 MBCA 22 [SADF].

2 Ibid at para 5.

3 Ibid at para 8.

4 Ibid at para 15.

5 Ibid at para 14.

6 Ibid.

7 Ibid at para 15.

8 Ibid at para 22.

9 Ibid at para 26.

10 Ibid at para 27

11 Ibid.

12 Ibid.

13 Ibid at para 29.

14 Ibid at para 32.

15 Ibid at para 33.

16 Ibid at para 34.

17 Ibid.

18 Ibid at para 36.

19 Ibid at para 37.

20 Ibid at para 39.

21 Ibid at para 41.

22 Ibid at para 44.

23 Ibid at para 49.

24 Ibid at para 54.

25 Ibid at para 57.

26 Ibid at para 60.

27 Rosemary Ricciardelli & Mackenzie Moir, “Stigmatized Among the Stigmatized: Sex Offenders in Canadian Penitentiaries” (2013) Can J Corr 55(3) 353 at 366

28 Ibid at 367.

29 Ibid at 372.