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.
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 facto