R. v. Aloysius Antle

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 R. v. Aloysius Antle

 Indexed As: R. v. Antle

93 Newfoundland & Prince Edward Island

Reports 148

(93 Nfld. & P.E.I.R. 148)

292 Atlantic Provinces Reports 148

 (292 A.P.R. 148)

Newfoundland Supreme Court

Trial Division

Schwartz, J.

October 4, 1991.

Summary:

  The accused Roman Catholic priest was convicted on two counts of indecently assaulting two altar boys many years previously.   The Newfoundland Supreme Court, Trial Division, sentenced the accused accordingly.

Criminal Law ‑ Topic 5802.1

    Sentencing ‑ General ‑ Concurrent sentences ‑ Reduced term

  ‑ A Roman Catholic priest, now 60, was convicted of   indecently assaulting two altar boys 15‑20 years previously   ‑ The conduct consisted of fondling each boy while he was in   bed with him at the accused’s cabin ‑ The advances were   rebuffed and the accused did not persist; although in one   instance he made another advance the next morning ‑ Some   force, but no violence ‑ No remorse ‑ The Newfoundland   Supreme Court, Trial Division, stressed the protection of the   public in sentencing the accused to concurrent terms of three   and five months’ imprisonment.

Criminal Law ‑ Topic 5831.1

    Sentencing ‑ Considerations ‑ Offences involving breach of   trust ‑ [See Criminal Law ‑ Topic 5802.1].

Criminal Law ‑ Topic 5835

    Sentencing ‑ Considerations ‑ Protection of the public

  ‑ [See Criminal Law ‑ Topic 5802.1].

Criminal Law ‑ Topic 5848.9

    Sentencing ‑ Considerations ‑ Sexual offences against   children ‑ [See Criminal Law ‑ Topic 5802.1].

Criminal Law ‑ Topic 5906

    Sentence ‑ Indecent assault ‑ [See Criminal Law ‑ Topic

  5802.1].

Cases Noticed:

  R. v. Morrissette (1970), 1 C.C.C.(2d) 307, appld. [para.11].

  R. v. Grady (1971), 5 N.S.R.(2d) 264, appld. [para. 12].

  R. v. Atkins (1988), 69 Nfld. & P.E.I.R. 99; 211 A.P.R. 99 (Nfld. C.A.), appld. [para. 14].

  R. v. Collins (1987), 62 Nfld. & P.E.I.R. 279; 190 A.P.R. 279, consd. [para. 16].

Counsel:

  Paul Malone, for the Crown;

  Gerald O’Brien, Q.C., for the accused.

This case was heard on September 9‑12, 16‑19 and 23‑26, 1991, before Schwartz, J., of the Newfoundland Supreme Court, Trial Division, who delivered the following judgment on October 4, 1991:

[para1]     Schwartz, J.: The accused has been found guilty by a jury of two counts of indecent assault, namely:

    1. That between the lst day of September 1971 and the 30th day of June 1974 at or near Pickett’s Brook, in the Province of Newfoundland, did unlawfully and indecently assault T.G.F., a male person, thereby committing an offence contrary to s. 156 of the Criminal Code.

    2. That between the lst day of January 1974 and the 31st day of December 1976, at or near Pickett’s Brook, in the Province of Newfoundland, did unlawfully and indecently assault A.G.M., a male person, thereby committing an offence contrary to s. 156 of the Criminal Code.

[para2]     Convictions are entered in both matters and there now remains only the sentencing of the accused.

[para3]     There is a publication ban on any evidence that will reveal the identity of the victims and this will remain in effect.

[para4]     The facts concerning T.G.F. are that sometime between 1971 and 1973 the complainant, who was an altar boy and in grade seven or eight at school in Norris Arm, went to the accused’s cabin at Pickett’s Brook, Newfoundland together with some other altar boys and the accused.

[para5]     The complainant slept in the same bed as the accused while at the cabin. During the night he was awakened to find the accused’s hands inside his shorts and on his penis. He removed the hands and rolled over. There was no further attempts by the accused to touch him subsequent to this.

[para6]     The other complainant, A.G.M., also served as an altar boy for the accused between the years 1974 and 1978. This commenced when he was 10 or 11 years of age. A.G.M. had gone to the accused’s cabin in 1976 and had slept in the same bed with the accused. During the night he awoke to find his shorts down to his knees and the accused “was playing with his privates”.

The facts indicate that the complainant started kicking and pushing and the action stopped. In the morning there was a similar occurrence between the two, but this was again stopped in the same manner.

[para7]     The penalty provision under s. 156 of the Criminal Code, as it then was, provided a maximum penalty of imprisonment for 10 years for the offence of indecent assault on a male person.

[para8]     The Crown’s position on this matter is that it is satisfied that the assaults were not in the range of the most serious, but nevertheless, the accused had breached a position of trust. The Crown also argues that there was no remorse on the part of Antle. It seeks a period of incarceration on each offence and further seeks to have the sentences run consecutively.

[para9]     The defence takes the position that society will not be better served if the accused is now given a period of incarceration. He is presently 60 years of age and has had an exemplary career as a Parish Priest. I am satisfied from the character evidence that was presented that he has done a tremendous amount of good in the communities he has served over the past 20 years.

[para10]     I am satisfied that at the time of the commission of the offences the accused was a person in a position of trust with the victims. He was their Parish Priest. Both victims were young boys serving on the altar. I have no doubt that for these reasons, and because of the accused’s position in society, the parents of the victims permitted them to go to the accused’s cabin with him.

[para11]     In determining an appropriate sentence I am also aware of the principles of sentencing that must guide me. These were enumerated in the case of R. v. Morrissette (1970), 1 C.C.C.(2d) 307 (Sask. C.A.). The factors to be considered include:

    1. Protection of the public;

    2. Punishment of the offender;

    3. Deterrence of the offender as well as others who might be tempted to commit such an offence; and 

   4. The reformation and rehabilitation of the offender.

[para12]     In R. v. Grady (1971), 5 N.S.R.(2d) 264, the late Chief Justice McKinnon of the Nova Scotia Court of Appeal stated at p. 264:

    “Of these factors the primary consideration is the  protection of the public.”

[para13]     He further said at p. 266:

    “It has been the practice of this court to give primary consideration to the protection of the public and then to consider whether the primary objective could best be obtained by (a) deterrence; or (b) reformation and rehabilitation of the offender; or (c) both deterrence and rehabilitation … It would be a grave mistake, it appears  to me, to follow rigid rules for determining the type and length of sentence in order to secure a measure of equalization, for almost invariably different circumstances  are present in the case of each offender. There is not only  the offence committed, but the method and manner of  committing; the presence or absence of remorse, the age and circumstances of the offender, and many other related  factors. For these reasons it may appear at times that  lesser of sentences are given for more serious offences and vice versa, but the court must consider each individual  case on its own merits…”

[para14]     In R. v. Atkins (1988), 69 Nfld. & P.E.I.R. 99; 211 A.P.R. 99 (Nfld. C.A.), Goodridge, C.J.N., considered the factors in sexual assault at p. 103:

    “There are many factors to be considered in imposing  sentence in any case. In cases of sexual assault these factors include the extent of the assault (for sexual assault encompasses a very wide range of human behaviour),  the degree of violence or force used, the impact of the crime upon the victim, the family of the victim and the offender, the degree of trust involved, public abhorrence to the type of crime involved, the attitude of the offender  to what he has done, his plea, the biological and  psychiatric factors that lead to the commission of the offence, the need for specific and general deterrence, the  prospect of successful rehabilitation, the antecedents and  age of the offender, the time spent in custody prior to  trial, and sentences imposed by other courts in Newfoundland and elsewhere in Canada.”

[para15]     The Chief Justice went further and stated that in passing sentence:

    “Vengeance is not a factor. A sentence is designed to protect the public, not to abate its anger at a particular crime. As has frequently been said, protection is attained  through a balance of deterrence and rehabilitation. Neither should overwhelm or negate the other. The proper balance will vary from case to case.”

[para16]     The crime of indecent assault is now encompassed in the Criminal Code as a crime of sexual assault. There has been a wide range of sentencing given by courts in this Province for this type of offence. This is best explained by our Court of Appeal in R. v. Collins (1987), 62 Nfld. & P.E.I.R. 279; 190 A.P.R. 279, at p. 283:

    “The apparent disparity in the sentences imposed in cases  of sexual assault may be explained by the fact that the crime of sexual assault is so broadly defined that it  encompasses all manner of assaults of a sexual nature, some  serious, some not so serious. Of paramount importance in  all such cases is protection of the public. The matter of  concern in a given case is how, in the sentencing process,  the public can best be protected. That question can only be  resolved on the factual situation of each case.”

[para17]     I have reviewed the circumstances of the two charges presently before the court and deem the following to be the mitigating factors in this case:

    1. Although there was some force used towards the victims,  there was no violence and on each occasion the accused  stopped when it became obvious the victims did not wish for     him to continue.

    2. There is no evidence of any serious impact upon the victims or their families. I say this realizing each victim  experiences some sort of emotional trauma after undergoing  such an experience.

    3. The accused has no previous record.

    4. A considerable period of time elapsed since the commission of the offences in the early or mid 1970’s.

    5. I have considered the age of the accused, presently being 60 years of age.

    6. Character witnesses have indicated the good that the accused has done for the communities he has served during  his period as a Parish Priest.

These are all factors that a sentencing court must consider in determining an appropriate sentence.

[para18]     There are also some aggravating factors in this matter. First, the accused was a Parish Priest, in a position of trust, not only to the victims in particular but to the community in general. Secondly, the crime of sexual assault, whether on the high or low end of the sentencing scale, is a reprehensible offence which is not too tolerated in our society. Third, there has been little or no remorse shown on the part of the accused.

[para19]     In determining an appropriate sentence it is always incumbent upon a court to find a balance between the interests of society, the interests of the accused and the interests of the victims of particular offences. The principles of protection of the public and deterrence must then be applied and in this case I feel that an appropriate sentence can only be achieved through some form of a custodial term.

[para20]     In the case of the indecent assault on T.G.F. I am sentencing you to a period of three months’ incarceration in Her Majesty’s Penitentiary.

[para21]     In the case of the indecent assault on A.G.M. I am sentencing you to a period of five months’ imprisonment in Her Majesty’s Penitentiary.

[para22]     I have also considered the time elapsed from the commission of the offences and I have given consideration to the totality principle. Accordingly, the sentences will be

served concurrently.

[para23]     In addition I am placing you on probation for a period of one year following discharge on the following terms:

to keep the peace and be of good behaviour and to appear before the court when required to do so by the court. I’m going to order as well that you report to a Probation Officer within seven days of your release and to accept any instructions regarding and to attend to any psychiatric counselling sessions which your Probation Officer shall arrange on your behalf. You are to report as well to that Probation Officer when and wherever required.

[para24]     Pursuant to sections 737(4), 738(4) and 740(4) of the Criminal Code you are advised that while bound by this Probation Order, should you be convicted of another offence, including one of failure or refusal to comply with this Order, when in addition to any punishment that may be imposed for that offence the court may vary the conditions in the present Probation Order. I would direct that this Probation Order be read over to you and you be provided with a copy of same.

                                             Accused sentenced.

Editor: David C.R. Olmstead

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End of document.

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