WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences.
(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application.
In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence.
(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Sean Hewson
Before: Justice D.A. Harris
Heard on: March 15, 2016
Reasons for Judgment released on: October 14, 2016
Counsel:
- Harutyun Apel — counsel for the Crown
- Joe Fiorucci & Kaley Hepburn — counsel for the defendant Sean Hewson
HARRIS D.A. J.
INTRODUCTION
1Sean Hewson pled guilty to sexual exploitation with respect to JH, sexual interference with respect to BM, and invitation to sexual touching with respect to MV.
2Crown counsel had elected to proceed by indictment.
3Mr. Hewson is before me today to be sentenced.
4Crown counsel suggested that I should sentence him to a global sentence of imprisonment for three years, allocated as 18 months for sexual exploitation, 12 months consecutive for sexual interference and six months consecutive for invitation to sexual touching.
5Counsel for Mr. Hewson suggested that I impose a global sentence of imprisonment for 12 to 15 months followed by probation. He asked me to recommend that this period of imprisonment be served at the Ontario Correctional Institute.
6Both counsel agreed that I should make the following ancillary orders:
- a DNA order;
- a firearms prohibition order pursuant to s. 109 of the Criminal Code;
- an order compelling Mr. Hewson to comply with the Sex Offender Information Registration Act for life;
- an order pursuant to s. 161 of the Criminal Code, limiting Mr. Hewson's access to children under the age of 16 years. Crown counsel asked that this be a lifetime order whereas counsel for Mr. Hewson suggested that it be for seven to ten years and also asked for certain exceptions.
7I find that a global sentence of imprisonment for 18 months followed by probation for three years is the appropriate sentence here.
8My reasons for this are set out under the following subject headings:
- The fundamental purpose and principles of sentencing;
- The offences;
- The impact on the victims;
- The background of Mr. Hewson; and
- Analysis
FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING
9The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
10The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.
11The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.
12Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:
The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.
13He went on to state that:
The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.
14He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:
The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.
15Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.
16Section 718.01 of the Criminal Code came into effect in 2005 and provides that:
When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
17Section 718.2(a)(ii.1) provide that evidence that an offender, in committing an offence, abused a person under the age of 18 years, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.
18Section 718.2(a)(iii) provide that evidence that an offender, in committing an offence, abused a position of trust or authority in relation to the victim, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.
19The offences have had a significant impact on the victims, considering their age and other personal circumstances, including their health and financial situation. Section 718.2(a)(iii.1) of the Criminal Code provides that this too is an aggravating circumstance, and that the sentence should reflect that.
20I must specifically consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".
21I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."
22The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.
23The Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community.
24The Ontario Court of Appeal has provided considerable direction with respect to sentencing adults who have sexually abused young victims.
25In R. v. D.D., the Ontario Court of Appeal "discussed the plight of children in general and the principles and objects of sentencing that must take precedence when adult predators choose to exploit innocent young children". The relevant considerations and principles are summarized below:
Our children are our most valued and our most vulnerable assets.
We as a society owe it to our children to protect them from the harm caused by sexual predators.
Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators.
Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow.
Three such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood.
Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.
26The fundamental message that the Court of Appeal has sought to convey is that:
The harm occasioned [to children] by [adult sexual predators] is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear - prey upon innocent children and you will pay a heavy price!
27As a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms.
28The Court of Appeal has also recognized that an accused "grooming" his victim is an aggravating factor in sentence.
29Finally, the Court of Appeal has made it clear in R. v. Stuckless that the absence of overt force and the absence of penetration "does not automatically relegate the sexual abuse of children to the lower range of sexual offences". Abella, J.A. went on to state:
There is no question that "additional force", collateral crimes and penetration are aggravating facts, but their absence does not transform them into mitigating circumstances nor neutralize the other aggravating factors found in this case, the abuse of trust, the number of victims, the frequency of the assaults and their devastating impact on the lives of the victims. These offences were individually and collectively unconscionable. Any characterization which purports to diminish their magnitude is unacceptable.
30At the time that Mr. Hewson committed these offences, the maximum sentence for each was imprisonment for ten years where the Crown proceeded by indictment. The minimum sentence was imprisonment for 45 days.
31I must, however, also consider the fact that Parliament has since amended the Criminal Code such that the mandatory minimum sentence of imprisonment for these offences has been increased to imprisonment for one year. This does not apply to Mr. Hewson but I am satisfied that I should view this amendment as a reflection of Parliament's intention that such offences should be treated more seriously than they were before.
32Andre J. certainly accepted that argument in R. v. Wasiluk, stating that:
In my view, a statutory increased penalty is a legislative signal that the sentencing paradigm has shifted towards a regime of tougher sentences than that which previously existed.
33Counsel for Mr. Hewson provided me with a casebook containing 13 decisions. I do not intend to summarize these cases. None of them are identical to the present case. Some (including the one case decided by me) are clearly distinguishable. What I did take from these cases is confirmation for my belief that a sentence of imprisonment for 18 months is within the range of reasonable sentences.
34Before I can apply the above principles however I must examine the offences here, the impact that they had on the victims and the background of Mr. Hewson.
THE OFFENCES
35The following is contained in an agreed statement of facts which was entered as an exhibit in these proceedings.
Sexual Exploitation - JH
36Mr. Hewson met JH in approximately June of 2006 at the Burlington Sailing and Boating Club. At that time, Mr. Hewson was head instructor of the sailing program for the 2006 sailing season, and his responsibilities included ensuring the safety of the sailors, including JH. When Mr. Hewson met JH, Mr. Hewson was approximately 23 or 24 years old and JH was 13 years old.
37Mr. Hewson developed a friendship with JH. Mr. Hewson would have JH sit on his lap and would put his arm around JH and place his hand on JH's lap. This type of touching occurred on numerous occasions.
38Starting in early 2007, after JH had turned 14, Mr. Hewson would take JH to the Burlington Sailing and Boating Club clubhouse alone where the two of them would watch movies together. On one such occasion, Mr. Hewson placed his hand down JH's pants and fondled JH's penis. He also took JH's hand and placed it on his penis. The incident progressed to Mr. Hewson performing oral sex on JH and having JH perform oral sex on him, and culminated with Mr. Hewson performing anal sex on JH, while wearing a condom.
39In light of the age of JH, the age difference between Mr. Hewson and JH and the evolution of the relationship while Mr. Hewson was employed as the head instructor of the Burlington Sailing and Boating Club, Mr. Hewson was in a position or trust or authority toward JH or was in a relationship that was exploitative of the young person.
40All of the sexual acts occurred between January 1, 2007 and December 31, 2007.
Sexual Interference - BM
41Mr. Hewson met BM through mutual friends. The two of them started messaging each other on MSN chat. Sometime between April and June of 2009, when BM was 13 years old, Mr. Hewson invited BM to come to his residence. BM accepted the invitation and Mr. Hewson picked up BM at an agreed upon meeting place. The two of them went back to Mr. Hewson's residence. While at the residence, Mr. Hewson told BM to pull down his pants, which BM did. At that point, Mr. Hewson had BM sit on his lap and he fondled BM's penis. After this incident, Mr. Hewson drove BM home. BM was 13 years old at the time of this incident.
42On a second occasion, a few weeks later, again between April and June of 2009, Mr. Hewson brought BM back to his residence. On this occasion, the two of them watched pornography and proceeded to Mr. Hewson's bedroom where Mr. Hewson performed fellatio on BM, while Mr. Hewson masturbated his own penis. BM was 13 years old at the time of this second incident.
Invitation to Sexual Touching - MV
43Mr. Hewson and MV were friends on Facebook. Sometime between June and August 2006, when MV was 13 years of age, during a Facebook chat, Mr. Hewson asked MV to come over to his house and jerk him off.
IMPACT ON THE VICTIMS
44Only JH provided a Victim Impact Statement. He elected to read it aloud in court. I have included most of that statement here:
It's ironic that the only person whom I have ever known to use the word heinous in casual conversation is Sean Hewson. The statement Sean made has been preserved in my memory for some 10 years as he spoke describing the "smell of an old person" in the instructors' office at the Burlington Sailing and Boating Club. I wonder what that word really means to Sean, knowing that most people reserve it for times when they must refer to a case such as this?
Before I met Sean Hewson, I was a happy person. I'm told that I was a funny, smart and outgoing child and young adult. My passions included nature, the outdoors, science and technology. I still possess many of these qualities, but when I think about myself now, there are some very important differences. In my early adolescent years, I had many guy and girl friends. I had an eccentric personality to be sure, but at that time, it worked in my favour. People were interested in the things that I had to say, people enjoyed my humour, and I enjoyed the company that I kept.
When I met Sean, I was around 12 years old. That is the time in life, when the opposite sexes start to attract. While my friends were having their first movie-date experiences with girlfriends and boyfriends, I was being groomed for a sexually abusive relationship that would span years of my life, and impact my perception of what a healthy emotional and physical relationship should be forever.
Over the period of abuse I recoiled, I became a quiet introvert and my outlook on life and the world was severely darkened. My attitude in high school caused me to alienate a number of my closest childhood friends. It has taken years of reflection and personal growth for me to begin to overcome the social anxiety that I developed as a result of my abuse. Something that I grapple with on a daily basis now, is that I am without a doubt, the most negative, pessimistic, and cynical of all of my friends.
I have been in a small number of relationships over my life so far. The first girlfriend that I had overlapped the tail end of the period when I was abused by Sean. She told me one day, years after we had broken up, that there were times when I was sending her messages that she felt scared and uncomfortable. What neither she nor I understood at the time was how closely those messages resembled the ones that I had received as a young boy being groomed by Sean. The difference in that situation, of course, was that my girlfriend and I were far closer in age, both of the same sexual orientation, and actually attracted to one another at the time.
My early relationships were stunted. I was paralyzed in my interactions with people my age and younger, by the fear that I would somehow accidentally repeat the abusive behavior of which I was a victim, toward somebody else. This fear continues to influence my daily life.
In 2014, a short while after being interviewed by the detectives for this case, I met with an old friend. I told her about my history of abuse, and about the pending charges against Sean. Her response, "that explains a lot. I always figured that there was something wrong," is a testament to the lasting and evident emotional damage that was done. She and I sat awake with the lights on for 8 hours in silence that night because there were no words that could make either of us feel any better.
My current girlfriend and I have been in a relationship for the years since Sean's initial arrest. She has seen the emotional toll that this process has had on me. She has witnessed my frustration at the countess delays, and the absurd liberties afforded to a man who is guilty, even by his own admission. She knows, but she will never understand the reason why I am devoid of emotion when I should be overwhelmed, and why I feel so strongly about things that others have no concern. [N] will never understand why I won't hold her close, or why she can't rest her face on me. Most people in my life will only ever pretend to understand what the words shame, fear, pain, or courage mean to me.
In life, there seems to be a causal connection between the things that we enjoy, and the things that we are good at. As a youth athlete, results showed that I was good at sailboat racing. I should have very much enjoyed my time at the top of the circuit, on the Ontario Sailing Team, and later, my job working with young sailors as a coach and instructor. I blame my experiences with Sean for the fact that I eke such little satisfaction, or sustained enjoyment from the sport that has made up such a big part of my life.
It behooves me to state before the court; my family; my friends; the public; and my abusers, that there is no word, sentence, paragraph or any body of text that can fully capture the facts, the feelings, and the impact of Sean's actions toward me and others. I do not feel any better for having written this statement. I don't believe that it will make Sean feel any worse.
This statement reflects a final and continuing impact of this offence, as well as the experience that I have gained in making the offense known. The impact is that I no longer have confidence in the institutions of our society or in their aptitude for dealing with maters like this. I invite the court to address my mistrust when it gives its decision in this matter.
BACKGROUND OF MR. HEWSON
45I have been provided with a Pre-Sentence Report, a psychological report and eight reference letters. These letters were from Mr. Hewson's parents, his brother and six friends. From these sources, I have learned the following.
46Mr. Hewson is now almost 34 years old.
47He was adopted when he was 11 days old. He has no information about his birth parents.
48He has one younger brother who is the biological son of Mr. Hewson's parents. Mr. Hewson does not believe that his parents ever favoured one brother over the other.
49His formative years were happy. The family travelled annually to Florida. Mr. Hewson played soccer from grades 1 to 3, learned to swim as a young child and swam competitively from ages 7 to 16, swimming up to 25 hours per week. He started attending sailing camp in grade 2 and developed an avid interest in this sport.
50He was never subjected to physical abuse by anyone. He was bullied at age 11 in grade 6, mostly by girls because he was 12 inches shorter than his male counterparts. He was called "fag" and "queer" because of his feminine characteristics.
51Mr. Hewson completed grade 12 and took his OAC subjects with a graduating average of 75%. After taking a year off, he enrolled in a 2-year Pre-health Science Program at Niagara College. Half way through the program, he left to enter a Bachelor of Science in nursing program at York University.
52Although Mr. Hewson envisioned a career in nursing since he was 16 years old, he reconsidered his career goals. In his third year, and in the second semester at York University, he was offered a job as a recreational programmer for the City of Burlington. He saw it as an opportunity "to transition into something more".
53Mr. Hewson had achieved multiple certifications as a lifeguard that started at age 13 with a bronze medallion. The following year, he achieved a bronze cross. He became an aqua leader and aqua emergency crew member. At age 16 he obtained the national lifeguard standard and first aid certification. The following year, he obtained certification for CPR and water safety instructors. At age 18, he obtained the advanced instructors and examiners standard certification to teach all of the aforementioned levels. At age 22, he obtained defibrillation training and training for oxygen management. At age 23, he became an instructor for defibrillation training and oxygen management.
54Mr. Hewson also has several certifications in sailing. At age 16, he became a sailing coach. At age 18, he obtained his pleasure craft operator's card and became a blue sailing coach. At age 23 or 24, he became a red sailing coach, an instructor for pleasure craft, and obtained a restricted operator certificate for maritime radio. In all, he obtained three of five sailing coach certificates.
55The granting organizations for these certificates include the Lifesaving Society, Canadian Red Cross and Sail Canada. All of these organizations immediately revoked his certificates when they learned of his charges.
56From 1999 to 2006, he worked on a seasonal part-time basis as a lifeguard for the City of Burlington. During the summer months in 1999 and 2000, he coached sailing for the Burlington Sailing and Boating Club. For the following five years, he coached intermediate sailing during the summer months for Oakville Yacht Squadron. Then he returned to Burlington Sailing and Boating Club and coached sailing for one year. His involvement in the sailing community continued as a volunteer thereafter.
57From 2000 until 2012, Mr. Hewson volunteered for the Burlington Sailing and Boating Club as a manager of the Learn to Sail program. From May to August, he volunteered 10 to 12 hours per week. During the winter months, he did registration and marketing. He was on the Board of Directors until a disagreement with another board member led him to resign. Thereafter, he went to Bronte Harbour Yacht Club where he volunteered in the same capacity from 2012 to 2014 until he incurred charges.
58After he left university, Mr. Hewson worked as a recreational programmer for the City of Burlington from 2006 to 2011. He managed numerous swimming pools.
59He then worked full-time for the Canadian Red Cross as a Manager of first aid and water safety from 2011 until he was charged. His overall annual salary was $55,000.00. He had responsibilities for 36 offices throughout Ontario south of Sudbury. He visited each office four times per year. He was travelling to the office in Sarnia when he received the call from a Halton police officer about these charges.
60With respect to his sexuality, he realized that he was homosexual when he was 10 or 11. Over the following years, there were sexual activities with male peers that included mutual masturbation, fellatio and "dry humping". He told his brother about his homosexuality when he was 18 or 19. He never told his parents who he believed were staunchly against homosexuality.
61He began meeting males at bars and on the Internet. He has had approximately 50 sexual partners, males between 20 and 40 with the mean age of 25. He has had three boyfriends, aged 18, 22 and 24. He has not had sexual relations with anyone since his arrest.
62He has lost about 30 to 40 friendships since his arrest. Others have remained supportive and have provided reference letters. It is noted that discussion about offence details has been largely absent with his friends as Mr. Hewson had taken legal advice on this issue.
63Prior to his arrest, Mr. Hewson had never seen a therapist, counsellor or any health professional for personal or emotional reasons. Yet within two weeks after his arrest, he succumbed to significant emotional distress, isolated himself from others and "spent a lot of time in bed".
64He has since met with his family physician on about 20 occasions, most recently four or five months ago. The sessions were described by Mr. Hewson as "somewhat helpful" as it provided him an opportunity to talk to someone who not only knows himself but his family. The sessions were an outlet for his stress. He has been prescribed Zoplicone for sleep.
65Mr. Hewson reported that he started to consume alcohol at age 14. He has never used illegal drugs and has always been a non-smoker. He denied a period of significant alcohol use, which rarely exceeded once per week during his college years.
66Mr. Hewson struggles with victim empathy issues. He was visibly taken aback when the psychologist informed him about the paucity of his victim empathy. He looked downward, and after some delay, indicated that he never saw himself as an unempathetic individual. He eventually affirmed that such would be the case as he could not appreciate the negative effects of his sexual activities on his victims. He had no knowledge about hebephilia, which is an adult sexual interest in pubescent males.
67When the effects of sexual victimization were briefly explained to him, he related that he was "sad to hear of the long-term effects on the boys''. He added "I thought I was helping them reach a climax...did not think I was hurting them sexually". In further discussion, he acknowledged that his leadership qualities made it easy to manipulate his victims. He justified his activities believing that "they also wanted it and were OK with it".
68Over the past several years, his interest in acting on his sexual attraction in that age group has diminished. He interpreted this change to the fact that his most recent sexual activity with one of the victims, in 2009, "didn't feel right- didn't feel good". Although he found the boys attractive and given their ability "that they can think sexually," he added "there's no level of skill there. They don't know what they're doing and don't know what they want ...not what I find enjoyable".
69With respect to risk assessment, his psychologist concluded that:
On static/historical factors, Mr. Hewson has a low risk to reoffend. He is a first time offender. Static factors that are predictive of sexual recidivism include early onset of sexual offending, prior conviction for sexual offences, unrelated or unfamiliar victims, and antisocial personality disorder or psychopathy.
At the present time, Mr. Hewson's risk to re-offend, on dynamic/changeable factors, falls in the moderate range. He requires a complete understanding of the seriousness of his charges and particularly needs to address issues such as the manner in which he exploited young boys, the effects of sexual victimization and victim empathy.
70She went on to point out that there are also positive findings on dynamic factors. Mr. Hewson accepts responsibility for his sexual offending. He has openly acknowledged sexual interest toward young boys and the age of the victims fall within the age range of his reported sexual interest. While he does not yet have full awareness of his psychological deficits and his vulnerabilities related to his relapse potential, it is believed that Mr. Hewson has the potential to satisfactorily engage in necessary treatment venues post-sentence.
71Specialized treatment program for sexual offenders are available in the provincial as well as federal correctional facilities. The Ontario Correctional Institute (OCI) is the only provincial correctional institute that has developed evidence-based treatment programs for sexual offenders and where other clinical needs and risk factors can be treated. Multidisciplinary treatment and assessment services have been developed and include assessment services such as phallometric examinations.
72Mr. Hewson has expressed a willingness to participate in the programs offered at OCI.
ANALYSIS
73Everyone agrees that Mr. Hewson is going to jail. The question is for how long.
74Whatever sentence I impose, at least one side and maybe both will be disappointed.
75The victims and their families and supporters may believe that the sentence is too lenient, while Mr. Hewson and his family and friends may think that the punishment goes too far.
76I must craft a sentence that is proportionate to the gravity of the offence committed and the degree of responsibility of Mr. Hewson and yet, at the same time, one that is responsive to his unique circumstances.
77I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here. Before I can do that, however, I must determine whether one particular aggravating factor is present here.
78Crown counsel argued that Mr. Hewson was guilty of grooming JH. Counsel for Mr. Hewson argued that he did not do this. They agreed that I was to determine this issue based on the facts that had been put before me.
79I am satisfied beyond a reasonable doubt that Mr. Hewson did groom JH.
80Mr. Hewson acknowledged to his psychologist that he took young boys (usually three or four at a time) to the movies on approximately 40 occasions. He did so to enhance "social activities with the team."
81When some of the boys became staff (e.g., sailing coaches), Mr. Hewson would have parties at his condo in Burlington where many frequented.
82He served alcohol to minors. He "mostly would buy it for them when they wanted it" for their own parties. He could not estimate how often he purchased alcohol for them.
83He participated in "cockpunching" games and indicated that the boys "played it all the time". He did not know how the game started and who named it yet it was not him. He did not think his participation in the game was inappropriate, yet in retrospect, fully acknowledged that it was inappropriate "just the age difference of where I was and where they were".
84Keeping in mind that Mr. Hewson was a man in his 20's who was sexually interested in boys aged 14 to 16, this was clearly grooming, even where it did not lead to sexual activity.
85In the case of JH, it did result in sexual acts.
86Mr. Hewson developed a friendship with JH and would have JH sit on his lap and would put his arm around JH and place his hand on JH's lap. This type of touching occurred on numerous occasions.
87Starting in early 2007, Mr. Hewson would take JH to the Burlington Sailing and Boating Club clubhouse alone where the two of them would watch movies together. On one such occasion, Mr. Hewson placed his hand down JH's pants and fondled JH's penis. He also took JH's hand and placed it on his penis. The incident progressed to Mr. Hewson performing oral sex on JH and having JH perform oral sex on him, and culminated with Mr. Hewson performing anal sex on JH, while wearing a condom.
88Mr. Hewson described this activity to his psychologist who summarized it as follows:
In 2007, Mr. Hewson was 24 years old and had sexual relations with a 14-year-old boy with whom he would watch movies in the winter in the sailing clubhouse. Mr. Hewson stated "we would sit on the couch. I would notice he had an erection. When I asked him if he wanted to pull it out and play with each other, we did. Masturbating each other progressed to giving each other blow jobs. And then he ended up getting on top of me and we ended up having anal sex [Mr. Hewson was penetrating his victim]. Then we both climaxed and we went back to the movie". Further inquiry revealed that Mr. Hewson's volunteer responsibilities included overseeing the recreational program that included movie nights on a monthly basis. The aforementioned sexual activity took place on one such occasion.
89Mr. Hewson may have seen this as a relationship between equals where consensual sex just happened, but that would be incorrect. Mr. Hewson was 24 years old, an adult male. He groomed an impressionable young boy who was supposed to be under his care. Then when the boy succumbed to his advances, Mr. Hewson took full advantage.
90This grooming is an aggravating factor in my deliberations. Other aggravating factors are as follows.
91He committed offences against three different victims.
92The victims were young. BM and MV were 13 years old. JH was 14.
93The offences regarding JH involved a breach of trust.
94All of the offences occurred over a three year period.
95The sexual acts included oral sex with two boys and anal penetration of JH.
96The impact on JH has been traumatic. It will be years before he gets over this, if he ever does.
97There are also a number of mitigating factors.
98Mr. Hewson pled guilty. I take this to be an acceptance of responsibility as well as an expression of remorse. Most importantly, it made it unnecessary for JH, BM and MV to testify. They were spared the ordeal of revisiting their victimization in a public courtroom.
99He did not take means to evade detection. He never told any of the victims not to disclose the information.
100He had no prior criminal record.
101He has strong support from his family and those friends who have stood by him.
102There is no suggestion of a problem with either drugs or alcohol.
103He spent eight days in pre-sentence custody.
104He has been bound by strict bail conditions for the past 28 months. This involved house arrest for 13 months.
105He has not offended since June 2009.
106He has suffered collateral consequences that include the loss of his employment, the cancellation of certification in his chosen fields, and the loss of reputation within the swimming and sailing communities. This case has drawn considerable attention in the news media.
107I have also considered factors which I find to be neither aggravating nor mitigating, but neutral.
108For example, this not a case where an adult offender, in a position of trust, sexually abused innocent young children "on a regular and persistent basis over substantial periods of time". Accordingly, statements by the Ontario Court of Appeal regarding the appropriate sentence range in such cases are not applicable here.
109Further, while Mr. Hewson has demonstrated little insight into the full ramifications of his offences, he has expressed a willingness to participate fully in the counselling and treatment programs available both at OCI and post-release. I do not understand why he did not begin this process long ago, but accept that he genuinely intends to follow through now.
110Finally, I note that imprisonment for 18 months, followed by probation for three years will provide for a significant denial of liberty initially and then supervision in the community which will cumulatively total 4 ½ years. It is my hope and expectation that throughout this time, Mr. Hewson will receive counselling and treatment which will provide the best protection to the public in the long run.
SENTENCE
111For the above reasons, I sentence Mr. Hewson as follows:
112With respect to the sexual exploitation offence involving JH, Mr. Hewson is sentenced to imprisonment for one year.
113With respect to the sexual interference offence involving BM, Mr. Hewson is sentenced to imprisonment for three months, consecutive.
114With respect to the invitation to sexual touching offence involving MV, Mr. Hewson is sentenced to imprisonment for three months, consecutive.
115I am recommending that this 18 month prison sentence be served at the Ontario Correctional Institute.
116That will be followed by probation for three years.
117The terms of the probation will require that Mr. Hewson:
keep the peace and be of good behaviour;
appear before the court when required to do so by the court;
notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;
report in person to a probation officer within two working days of his release and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision;
cooperate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;
not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with JH, BM or MV;
not be within 20 metres of any place where he knows them to live, work, go to school, frequent, or any place he knows them to be;
attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer, including the Sexual Offender Relapse Prevention (SORP) program or any other program recommended by his probation officer;
not seek, obtain or continue any employment, whether or not the employment is remunerated, or become or be a volunteer in a capacity, that involves being in a position of trust or authority towards male persons under the age of 16 years;
not possess or access child or adult pornography;
not possess or access any images of children who are, depicted to be or appear to be under the age of 18 years who are naked or who are portrayed in a sexual manner.
118I also make the following four ancillary orders.
119These are primary designated offences and I make an order pursuant to s. 487.051 of the Criminal Code, authorizing the taking from Mr. Hewson of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.
120These are also designated offences pursuant to section 490.011 of the Criminal Code. Accordingly, I make an order pursuant to s. 490.012 of the Criminal Code, that Mr. Hewson comply with the provisions of the Sex Offender Information Registration Act for life.
121I am satisfied that the following provisions of s. 161 of the Criminal Code are applicable here and I am making an order pursuant to that section prohibiting Mr. Hewson for the next 10 years from:
(a.1) being within 20 metres of any of any place where he knows JH, BM, or MV to live, work, go to school, frequent, or any place he knows them to be;
(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards male persons under the age of 16 years;
(c) having any contact - including communicating by any means - with a male person who is under the age of 16 years, except in the presence of a responsible adult who is aware of his offending, or incidental contact in the course of his employment; and
(d) using the Internet or other digital network for the purpose of communicating with a male person under the age of 16 years.
122Finally, pursuant to section 109 of the Criminal Code, for the next ten years Mr. Hewson is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.
123Mr. Hewson will have six months following his release to pay the victim fine surcharges.
Released: October 14, 2016
Signed: Justice D.A. Harris
