Oral Reasons for Sentence
Date: 19980915
Docket: 6015
Registry: Nelson
IN THE SUPREME COURT OF BRITISH COLUMBIA
Oral Reasons for Sentence
Mr. Justice McEwan
15 September 1998
HER MAJESTY THE QUEEN
AGAINST
WILLIAM DENIS CLENDENNING
Counsel for the Crown: Kenyon McGee
Counsel for the Defence: Patricia D. Gartner
as agnt for Paul G. Danyliu
[1] THE COURT: On June 15th, 1998 I found William Denis
Clendenning guilty of one count of touching a person under
fourteen for a sexual purpose and one count of sexual assault
arising out of incidents that occurred in the late fall of 1995
and the first two weeks of January 1996.
[2] The circumstances recited in reasons given on that occasion
were that a child, born August 4th, 1989, who was seven at the
time of the incidents, was touched for a sexual purpose. In one
incident, Mr. Clendenning fondled the child on the buttocks while
she was probably sleeping. She was sexually assaulted in another
incident when Mr. Clendenning fondled her genitals. On both
occasions the activity was detected by the child's mother who was
at the time living in a relationship with Mr. Clendenning. Each
of the incidents occurred when the child was in bed with Mr.
Clendenning and her mother. By the time the offences occurred
the child's mother and Mr. Clendenning had established a
household together. Mr. Clendenning exercised authority over the
child as a stepparent. There is no question on the evidence that
he was the dominant member of that household.
[3] The mother of the child involved was, I found, so intent
upon pleasing Mr. Clendenning and preserving the relationship
that she allowed Mr. Clendenning to behave toward her daughter in
a number of respects she knew to be contrary to the child's best
interests, if not entirely inappropriate. The relationship
between Mr. Clendenning and the child's mother ended over
concerns about Mr. Clendenning's express desire to take sexual
matters further with her daughter.
[4] The Crown has taken the position that Mr. Clendenning has
committed a serious breach of trust in the circumstances and that
the penalty for these offences should reflect a proper measure of
denunciation for such conduct. The Crown has submitted that a
sentence of imprisonment of between one and two years less a day
followed by a lengthy period of probation would be appropriate.
[5] The Crown submitted Mr. Clendenning's criminal record. It
includes eight convictions between 1972 and 1993, including two
crimes of dishonesty; two involving drinking and driving; one
breach of probation; two assaults causing bodily harm; and one of
uttering threats. In 1974, on one of the assault charges, Mr.
Clendenning was sentenced to six weeks in jail. It should be
said that since 1977 there has been only an impaired driving
conviction in 1985, and the uttering threats conviction in 1993.
It appears from the record that Mr. Clendenning was still on
probation for the latter offence when the offences presently
before this court occurred.
[6] The Crown has submitted that the record and the evidence in
the trial indicate long-standing difficulties with alcohol and a
propensity for violence that ought to be factored into the terms
of any probation order.
[7] Counsel for Mr. Clendenning submitted that Mr. Clendenning,
a man from a farming background, has a grade eight education, and
has worked on and off, mostly in the trucking industry, during
his adult life. One marriage produced two children, one of whom,
a boy, has since 1993 lived with Mr. Clendenning. That boy is now
thirteen. Mr. Clendenning's present circumstances are that he has
re-located to Quesnel, established a new relationship, and found
some employment.
[8] The evidence at trial was that Mr. Clendenning had had very
little in the way of employment for quite some time leading up to
and after the offences were committed. Mr. Clendenning's counsel
has pointed to the fact that there is no related record in Mr.
Clendenning's past. He made a strong submission that these
offences were isolated incidents restricted to a particular set
of circumstances and quite unlikely to recur.
[9] He also submitted that while Mr. Clendenning was in a step-
parenting role to the young girl involved, he was not exactly in
a position of trust at the time the incidents occurred because
the young girl's mother was present. He submitted that this case
bears some circumstantial similarity to the case R. v. Broda,
where a man sexually assaulted the fourteen year old daughter of
his brother's wife, apparently impulsively, and while
intoxicated, at a wedding reception.
[10] Counsel for Mr. Clendenning relied extensively on the
decision of R. v. J.W., (1997) O.J. 138, C198832, a decision of
the Ontario Court of Appeal. In that case a twenty year old
adopted son in a family that took on a large number of foster
children, was convicted of touching an eight year old foster
child on the vagina a number of times over a fifteen month
period. The trial occurred four years after the events. The
accused in that case had no criminal record.
[11] The Court of Appeal of Ontario found that a twelve month
sentence of imprisonment imposed at trial was a fit sentence but
allowed it to be served as a conditional sentence. The court
observed that conditional sentences are not reserved to non-
violent crimes or to crimes where there is no risk of re-
offending, or to first offences. It pointed out that committal
to prison remains a threat throughout the term of a conditional
sentence and that it is not subject to reduction through parole,
like a normal sentence.
[12] The court outlined the purpose of the legislation setting
up the conditional sentence regime to be to reduce the reliance
on prisons as a response to crime. It reviewed the economic
rationales for reducing society's dependence on prisons and the
literature on the doubtful efficacy of prison sentences in
producing a meaningful effect of general deterrence. While the
court did not doubt that the effect of prison sentences might
deter some people, it did not consider general deterrence in
itself as sufficient rationale for refusing a conditional
sentence, particularly in view of the negative collateral effects
of the prison experience itself.
[13] The court adopted the observations of the Supreme Court of
Canada in R. v. M.(C.A.) to the effect that a prison term is not
the only or necessarily the best way to address society's
denunciation of offensive conduct. It reviewed the debatability
of specific deterrence in light of studies suggesting recidivism
increases rather than decreases following incarceration.
[14] The court suggested that undue emphasis ought not to be
placed on the statutory aggravating features such as breach of
trust as set out in Section 718 of the Criminal Code. Having
said all of this, the Court of Appeal suggested that the ultimate
duty of the court is to impose a fit sentence. Once a judge has
decided that the conditions are met which would make a
conditional sentence suitable, that is:
(1) that lesser sanctions are not appropriate,
(2) that the offence does not call for a prescribed minimum
term of imprisonment, and,
(3) that a sentence of less than two years is called for,
the principal factor at the point ought to be a consideration of
whether serving the sentence in the community would endanger the
safety of the community because of the risk the offender will re-
offend.
[15] Counsel for Mr. Clendenning also referred to the analysis
in R. v. Ursel, R. v. McNally, R. v. D.S., R. v. M.W.C., and R.
v. Virdi, (1997) 117 C.C.C. (3d) 289; a group of cases decided by
the British Columbia Court of Appeal. While counsel drew his
analogies to the present case from R. v. D.S. I think the more
apt comparison is R. v. McNally. There the accused was convicted
of a sexual assault on an eleven year old girl, which consisted
of rubbing that child's chest under her clothing. Alcohol was
involved. There had been one previous conviction of a somewhat
more serious sexual assault about nine years before. In those
circumstances, on the grounds that there was no evidence that Mr.
McNally was not a danger to the community, the court found that
a community sentence was clearly unfit. It imposed a one year
term of imprisonment with a two year term of probation.
[16] The purpose and principles of sentencing are found in
Section 718, 718.1, and 718.2 of the Criminal Code. They read as
follows:
"718. The fundamental purpose of sentencing is to
contribute along with crime prevention
initiatives to respect for the law and the
maintenance of a just, peaceful, and safe
society by imposing just sanctions that have
one or more of the following objectives.
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from
committing offences;
(c) to separate the offenders from society where
necessary;
(d) to assist rehabilitating offenders;
(e) to provide reparations for harm done to
victims or to the community; and
(f) to promote a sense of responsibility in
offenders, an acknowledgment of the
harm done to victims and to the
community."
[17] Section 718.1 says that a sentence must be proportionate to
the gravity of the offence and the degree of responsibility of
the offender.
[18] In Section 718.2 other sentencing principles are identified,
that section reads:
"A court that imposes a sentence shall also take
into consideration the following principles:
(a) a sentence should be increased or reduced to
account for any relevant or aggravating or
mitigating circumstances relating to the offence
or the offender and without limiting the
generality of the foregoing;
(i) evidence that the offence was motivated by
bias, prejudice or hate based on race,
national or ethnic origin, language, colour,
religion, sex, age, mental of physical
disability, sexual orientation or any other
similar factor;
(ii) evidence that the offender in committing the
offence abused the offender's spouse or
child;
(iii)evidence that the offender in committing the
offence abused a position of trust or
authority in relation to the victim, or
(iv) evidence that the offence was committed for
the benefit of, at the direction of, or in
association with a criminal organization
shall be deemed to be aggravating
circumstances.
(b) A sentence should be similar to sentences imposed
on similar offenders for similar offences
committed in similar circumstances.
(c) Where consecutive sentences are imposed the
combined sentence should not be unduly long or
harsh.
(d) An offender should not be deprived of liberty if
less restrictive sanctions may be appropriate in
the circumstances.
(e) All available sanctions other than imprisonment
that are reasonable in the circumstances should
be considered for all offenders with particular
attention to the circumstances of aboriginal
offenders."
[19] The sections governing conditional sentence are found at
Section 742 and thereafter.
[20] Applying these principles to the circumstances before me I
have come to the conclusion that a sentence of imprisonment is
called for in this case. The offences are of a serious kind
involving a young child in a vulnerable and dependent position.
Mr. Clendenning was the clear head of the household within which
the complainant had no choice but to live. Her mother was
infatuated with Mr. Clendenning to a degree that exposed the
young child to risk, and that Mr. Clendenning exploited.
[21] While the offences do not involve violence or penetration,
considered in context, it is clear that Mr. Clendenning was
preparing the child for, and attempting to persuade her mother to
allow, greater levels of intimacy at the time the mother called
an end to matters. The pattern of alcohol consumption and the
threats of violence when Mr. Clendenning was not getting his way
suggests that some of the features of Mr. Clendenning's past, as
exemplified by his record, continue to cause problems in the
present. While there is no past record for sexual offences I
find it impossible to regard Mr. Clendenning's behaviour as
comparable to the impulsive, aberrant behaviour exemplified in
the case of R. v. Broda.
[22] It would be to abandon common sense and experience not to
regard Mr. Clendenning as a danger to the community given his
evident attitude towards sexual activity with children, his lack
of any expression of or acknowledgment of responsibility, and his
apparent failure to take any steps personally since conviction to
address these issues.
[23] I have considered the letters submitted by friends of Mr.
Clendenning in the context of the facts as found at trial and the
record.
[24] Taking account of the factors in Section 718 and the
detailed commentary on them set out in R. v. J.W., as referred to
me by Mr. Clendenning's counsel, I am of the view that a fit
sentence denouncing Mr. Clendenning's conduct, offering a measure
of deterrence corresponding to the gravity of the offences
committed, and responding to the threat Mr. Clendenning poses in
the community, is a term of imprisonment. I am unable to find
that the conditions are met to permit the sentence to be served
conditionally because I have found that he is a danger to the
community.
[25] Mr. Clendenning, will you stand up, please.
William Denis Clendenning I sentence you to a term of
imprisonment of eighteen months on the sexual assault count, and
to nine months, concurrent, on the count involving touching for
a sexual purpose. In addition, I impose a term of probation for
two years on the condition that you:
(a) keep the peace and be of good behaviour;
(b) report to a probation officer in Quesnel within forty-
eight hours of your release from prison;
(c) notify your probation officer of any change of address
or employment;
(d) report once a week to your probation officer and more
often as directed;
(e) seek and obtain whatever alcohol or sex counselling the
probation officer directs;
(f) abstain from the consumption of alcohol or other
intoxicating substances;
(g) for the duration of the probation period that you not
be unaccompanied in the company of young women under
the age of eighteen.
[26] To the charge under Section 86(2) to which Mr. Clendenning
has pleaded guilty I impose a one hundred dollar fine.
Is there a firearms prohibition required?
[27] MR. McGEE: Yes, Your Honour -- My Lord. My Lord, I wonder
if you would consider a no contact order with the victim and the
mother?
[28] THE COURT: I am prepared to add to the probation terms that
there be no contact during the term of probation with the victim
or with her mother.
[29] And there will be the standard firearms prohibition under
Section 100.
[30] Anything further?
"T.M. McEwan"
________________________________
MR. JUSTICE McEWAN
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