R. v. Hughes, 2023 ONCJ 444
ONTARIO COURT OF JUSTICE
Central West Region
BETWEEN:
HIS MAJESTY THE KING
— AND —
thomas hughes
Heard Before Mr. Justice Richard H.K. Schwarzl at Orangeville on August 28, 2023
Reasons released on October 13, 2023
Mr. Robert Levan for the Crown
Ms. Mary Cremer for the Offender
SCHWARZL, J.:
REASONS FOR SENTENCE1
1.0: INTRODUCTION
[1.] The offender, Thomas Hughes, entered pleas of guilty to all six counts on Information 22-6110266 in June, 2022.
[2.] In the spring of 2023, a hearing was held regarding facts in dispute pursuant to section 724(3) of the Criminal Code. Both the victim and the offender testified at that procedure, known as a Gardiner hearing. On August 11, 2023 I issued a ruling setting out my findings with respect to the disputed facts. After giving my reasons on the facts, I revoked the offender’s bail pursuant to section 523(1)(b) of the Criminal Code and he has been in detention since that time.
[3.] On August 28, 2023 a sentencing hearing took place. The prosecution seeks a global sentence of 17 years plus ancillary orders. The offender submits that a global sentence of 8 to 9 years is appropriate. He does not oppose the ancillary orders proposed by the Crown.
[4.] What follows are my reasons for sentence.
2.0: CIRCUMSTANCES OF THE OFFENCES
[5.] The victim, CW, was born on […], 2000. The offender was born on March 17, 1954.
[6.] When the victim was 11 or so years old, she became best friends with CH, who is the offender’s daughter. The offender was in his late fifties at that time.
[7.] The offender treated the victim like a daughter: he was generous to her, allowed her to spend special occasions with his family, visited her in the hospital when she tried to kill herself when she was a teen, and made her feel loved at a time when the victim’s relationship with her own family was strained.
[8.] Over time, the offender introduced the victim to the horse racing world and eventually gave her a horse in the autumn of 2014. Shortly thereafter, the offender began a sexual relationship with the victim that lasted for some three years. She was 14 and he was 60 when the sexual abuse began. During this time the offender continued his generosity towards the victim and, in addition to other things, gave her money and drugs.
[9.] The offender claimed that he was seduced by the victim and that the sexual relationship was her fault. I rejected this claim and found as a fact that he carefully groomed the victim, who I found to be an especially vulnerable person, not merely because of her age, but due to her difficult and unhealthy personal circumstances. I found as a fact that the offender exploited her situation which was well known to him. I found as a further fact that the offender dominated the victim by being a manipulative predator posing as a benevolent parental figure.
[10.] Although the victim might have consented or acquiesced to the predations of the offender, any apparent cooperation she exhibited was solely the product of the offender’s egregious grooming and profound breach of trust, a duty which he owed to her as a child and as his daughter’s best friend.
[11.] Over innumerable occasions, the offender touched the victim’s body, including her vagina and breasts, with her hands and mouth. He also engaged in sexual intercourse with her on dozens of occasions in a variety of locations that he controlled. I found as a fact that during most of the acts of intercourse, the offender did not use birth control.
[12.] The offender sometimes videorecorded his crimes. He would take the victim to a motel and film his abuse of the victim who was always naked. They wore ski masks to hide their identities. When the victim asked the offender about the videos during a conversation that she clandestinely recorded when she became an adult, the offender admitted that he filmed the offences on “six or so” occasions and that during “three of four” of those times, he filmed them having intercourse. In his evidence at the Gardiner hearing, the offender blamed the victim for making the tapes, insisting that it was her idea and that he just went along with it to placate her.
[13.] In addition to making child pornography, the offender then sold the tapes to an unknown person in Toronto for over a thousand dollars on each occasion. The offender shared the proceeds of his sale of child pornography with the victim. The recordings have never been recovered.
[14.] Although the offender pled guilty, he demonstrated little insight or remorse for his crimes.
3.0: CIRCUMSTANCES OF THE OFFENDER
3.1: General
[15.] At the time of the offences, the offender was in his early sixties. At the time of sentencing, he is 69 years of age. He is the parent to seven children, three of whom have predeceased him. Several of his children have been wracked by drug addictions.
[16.] The offender has owned and operated a roofing business for nearly fifty years. He has also been in the horse racing business for decades. These crimes have destroyed his business and eliminated him from the equestrian trade. The offender plans to “start over” after his sentence and says he will work on his release. His counsel noted that the reality of the situation, particularly his age, may overshadow this optimism.
3.2: Family and Community Support
[17.] At the sentencing hearing, the offender submitted twelve letters of support from friends and family. The summary of these letters is that these people find the offender to be a loving, caring, hard working, and devoted family man.
[18.] It is apparent that the support he enjoys is sincere. It is also steadfast in that everybody seems willing to continue that support when he is released from prison.
3.3: Bail and Pre-Sentence Detention
[19.] The offender was arrested for these crimes on February 13, 2020 and released on bail 64 days later on April 16, 2020. The terms of bail included residing with a surety and being bound by house arrest unless in the presence of a surety or legal counsel. He was prohibited from using a cell phone, computer, etc. unless in the presence of a surety with certain exceptions including to communicate with his lawyer, his sureties, or for work.
[20.] On August 29, 2021 the offender was arrested for an alleged breach of his bail. He was released on a new, global bail order 6 days later on September 3, 2021. The terms of bail were similar to the first release, but there was an additional requirement that the offender wear an electronic monitoring anklet. The monitoring condition was deleted a year later on August 31, 2022 with the consent of the Crown.
[21.] I revoked the offender’s bail on August 11, 2023 and up to October 13, 2023 he has been in detention for 64 days.
[22.] The total time for pre-sentence detention in this case is 134 days.
[23.] In her submissions, counsel for the offender stated that the bail conditions were very strict and had a deleterious impact on the offender. She stated that prior to his arrest, the offender often worked 12-hour days but because of the bail conditions, he was limited to working 4 or 5 hours per day creating a serious impact on his ability to support his family. She also submitted that because he had to live with a surety, the offender was relegated to a small room in his surety’s basement.
4.0: VICTIM IMPACT
[24.] At the sentencing hearing, victim impact statements were read and filed by the victim’s mother and grandmother. The victim was not present at the hearing and did not file a statement.
[25.] The statements describe a terrible transformation of the victim after the offender took control of her life. The victim changed from a happy child to a self-harming teenager who tried to kill herself several times and became alienated from her family. The statement of the victim’s grandmother summarized the personal cost to the victim and her family as well as the social toll of this kind of crime as follows, “[She] was robbed of her innocence, robbed of much of her childhood and robbed of all her adolescence. She has been denied any happy moments of her youth…. [The offender] robbed her all these important passages in life and left her with heartbreaking fear, humiliation, shame, mistrust, anguish, and devastation which will always remind her of him.”
[26.] The victim impact statements disclosed heart wrenching details of how these crimes have devastated not only the victim but her whole family and how the offender caused emotional havoc which will haunt them forever. The victim and her family have suffered a permanent change for the worse because of the actions of the offender.
5.0: ANALYSIS
5.1: Mitigating Factors
[27.] Several mitigating factors are present that require no special assessment. The offender has no prior criminal record. He has substantial community and family support. The impact of this sentence will destroy the business he worked a lifetime to build and sustain. He has also been excluded from the horse race industry which was his passion.
[28.] The offender is not a young man who is nearly 70 years old. That said, he appears to be a vigorous and vital individual with no apparent serious health problems who says he wants to work and support himself on his release. Therefore, his age is a modest mitigating factor.
[29.] I agree with counsel for the offender that his conditions of bail were stringent and that they significantly degraded his ability to work and support his family for several years while these charges were outstanding. I find that the negative impact of bail is a mitigating factor on sentence. Although he was subject to house arrest, he was able to be out and about with one of his several sureties. While having to be in the company of a surety was certainly inconvenient, there is no suggestion that his personal relationships or other activities were materially hampered. The same is true about his restricted use of the internet and computing devices. The degree of mitigation to be given for strict bail is, therefore, modest.
[30.] Normally, pleas of guilty are a significant mitigating factor. However, in this case, the mitigation of sentence for pleading guilty is substantially weakened for several reasons. First, while the offender accepted partial legal responsibility for his crimes, he demonstrated little if any moral responsibility. He blamed the victim of everything that happened. He denied making videos of the crimes resulting in a trial of that issue. I find that he has little genuine remorse for what he did. Second, his pleas were hardly timely. They came on the morning of his Preliminary Inquiry, but he dragged this case out for well over a year before being sentenced. He cannot be penalized for challenging certain evidence, most of which focussed on whether he was guilty or not of the child pornography as well as the breadth and width of his crimes. But having chosen this route as of right, he cannot avail himself at this stage of leaning on his pleas as mitigating, other than in a perfunctory fashion particularly since the victim was forced to testify and relive the horrors of what happened to her. Finally, pleas of guilty are frequently done in the face of genuine legal issues or the desire to spare the victims. In this case, there was overwhelmingly evidence of his guilt that included a detailed confession he gave to the victim which she recorded. I find that the pleas of guilt in this case were not much more than a recognition of what would have inevitably been convictions after trial. For these reasons, I place little weight on his guilty pleas when assessing mitigation of sentence.
5.2: Aggravating Factors
[31.] There were some undisputed aggravating factors in this case. These include the following. There was a huge disparity in age and power between the offender and the victim. The victim was always a child when he committed these crimes. He was an authority figure to her as a stand-in parent and was in a position of trust, which he breached in the vilest of ways. The offences lasted three years. It is obvious that the offender groomed the victim and lured her into his confidence before committing these offences. In committing these offences, he violated her sexual integrity in the most intimate of ways including sexual intercourse. It is clear that when the victim succumbed to the offender, she was discomforted and repulsed by his conduct. There were many, many occasions that he abused her including instructing her to masturbate, performing oral sex on her, and raping her. Finally, there is powerful evidence of the tragic and life-altering impact these crimes had, and continue to have, on the victim and her family.
[32.] There are also aggravating facts that were disputed that I was required to adjudicate. I found the following additional aggravating facts. He video recorded his crimes, having told the victim that he made, “Maybe six or so” tapes. He sold these tapes and did so for financial gain. These tapes have not been recovered so they continue to victimize her, possibly of the rest of her life. When he had intercourse with this child, he did not use birth control most of the time substantially increasing the risk to her health including pregnancy. His exploitation of her was egregious. As I stated in my reasons earlier in this proceeding, the offender dominated and controlled her by pretending to be a guardian and benefactor when in fact he was a manipulative and wicked predator. His breach of trust was particularly heinous because he knew she was a troubled and damaged young person who he exploited not only for his pleasure, but for his profit, too.
[33.] With respect to the making and selling of child pornography, counsel for the offender agreed that these tapes create far reaching negative consequences not only to the victim but to society. However, she emphasized that the gravity of these particular crimes are muted for several reasons including that the number of tapes is small; that he disguised her face while making them; that he was not professional pornographer but an amateur who, as counsel described, was a “low end” participant in the child pornography trade; and that there is no evidence he uploaded them to the internet like many others who commit such crimes. Crown counsel submitted that while other offenders have made, sold, and uploaded more child pornography than this offender he was nevertheless a happy and willing participant in trafficking the misery of children for profit. He also emphasized that because the location and status of these tapes remain unknown, these facts deepen and extend the harm this victim and her family must endure. Unfortunately, the production and distribution of child pornography is on the rise and is a cancer on society that worsens each year. Significant sentences for these crimes are needed to reflect society’s condemnation of such offences, regardless of the number of tapes or the person’s level of involvement in such things. Sentences relating to child pornography should be consecutive to convictions for other sex crimes.
[34.] Upon considering the submissions of counsel and on reviewing the authorities they each provided, I agree with the Crown that whether he was an amateur or not, this offender was a manufacturer and peddler of movies from which he sought to make a profit and for which he willingly spread unfathomable harm to not only this victim, but to society as a whole. The fact that he was almost proud of what he did when he confessed to the victim also reveals how little insight he had into the wrongfulness and harm of his crimes.
[35.] The gravity of all these offences cannot be overstated. Our society, and our courts, recognize that sex crimes against children are amongst the most serious that can be committed.
[36.] The degree of responsibility of this offender is of the highest sort. This situation was not a “one off” or a moment of weakness but a years-long campaign of exploitation of a child who looked to him as a parental figure. This offender does not seem to understand that what he did was reprehensible, evil, and wrong. His blaming of her and his statement to her that he was infatuated with her reveal that he does not truly accept responsibility for the harm he has caused.
[37.] I was provided a great number of cases from both counsel on the subject of the appropriate range of sentence for all these crimes. That range is so broad as to be of limited value because, in this country, sentencing is a highly specific exercise that is unique in each case and for each offender. However, these cases do provide some guidance which I have taken into account.
[38.] The chief guiding light for judges on sentencing in cases of child abuse crimes is provided by the Supreme Court in Friesen, 2020 SCC 9, [2020] 1 SCR 424. In that case, the court set out a non-exhaustive list of factors to consider in such cases and that where such factors exist, significant penitentiary sentences ought to be meted out.
[39.] Many factors identified in Friesen are present here. There was a breach of trust which I have found was profound. The number of incidents of sexual abuse in this case may never be known with certainty, but I have found that this offender abused this victim dozens and dozens of times. These offences took place over a period measured in years. The victim was an adolescent when it happened, an age during which even the safest of children struggle as they enter adulthood. In this case, the offender destroyed her adolescence. There was a huge age difference: this victim was the same age as his youngest daughter. The degree of physical interference was substantial as it included many instances of sexual intercourse. The victim’s participation or cooperation, even if they were consensual, plays no role in determining this sentence.
[40.] One of the factors cited in Friesen is the risk of re-offending. Here, the defence submits there are no prior offences and no expert evidence on his level of risk. They submit that because he was focussed on one victim and that he claimed to be in love with her that there is no basis upon which to assess his threat, if any, of recidivism. I am not able to agree with these submissions. Here, the offender said he was seduced and controlled by this victim, a girl who was a fraction of his age. He did not appear to believe he did anything morally wrong. He took little responsibility for his conduct. Given the offender’s lack of insight into his criminality, his minimization of his role, and his blaming the victim I find that there is a concerning risk of reoffending. However, without other information including any expert risk assessment, I am not able to quantify the degree of that risk other than to say with confidence that it is a real and material risk.
5.3: Other Relevant Factors on Sentence
[41.] The offender was subject to presentence detention totalling 134 days. Considering the principles set out in R. v. Summers, 2013 ONCA 147 the offender will be given enhanced credit of 6½ months, which will be deducted from the final sentence.
6.0: THE SENTENCE
[42.] Upon assessing the totality of the circumstances of these offences, the circumstances of this offender, the relevant legal principles on sentencing, and the submissions of counsel, I find that the appropriate global sentence is 15 years. From this, 6½ months will be deducted as Summers credit for a net global sentence of 14 years and 5½ months.
[43.] My sentencing orders are therefore as follows.
Count #
Offence
Sentence
3
271
11 years
2
163.1(2)
3 years and 5½ months (after giving 6½ months credit for presentence detention), consecutive to Count 3
4
163.1(2)
3 years and 5½ months concurrent to Count 2
6
286.1(2)
3 years concurrent to Count 2
1
152
6 years concurrent to Count 3
5
153
6 years concurrent to Count 3
[44.] In addition, I make the following ancillary orders:
(a) S.743.21 non-communication order regarding the victim and any member of her family;
(b) DNA Orders;
(c) SOIRA Order for life;
(d) S. 161 Order for life; and
(e) S. 109 Order for 10 years.
[45.] Counsel will assist me in determining the particulars, if necessary, for each ancillary order.
Richard H.K. Schwarzl,
Justice of the Ontario Court of Justice
Footnotes
- These reasons are subject to a publication ban made by me on June 23, 2022 pursuant to section 486.4(1)(a) of the Criminal Code.