Court File and Parties
Ontario Court of Justice
Date: 2017-09-08
Court File No.: Newmarket 16-01193
Between:
Her Majesty the Queen
— and —
Pin Chen
Sentence
September 8th, 2017
Ms. Vanessa Szirmak ......................................................... counsel for the Crown
Mr. Martin Kerbel ............................................................. counsel for the defendant
KENKEL J.:
Introduction
[1] Mr. Chen was convicted at trial of three counts of sexual assault contrary to s. 271. On three occasions while providing services at his hair salon he touched the breasts of female customers. The touching, lifting and groping was generally over the clothing but was repeated and deliberate. In one case he touched a customer's breast under her bra. The Crown submits that a custodial sentence of 4 to 6 months is required, to be followed by probation conditions that among other restrictions prevent him from being in a position to commit further similar offences. The defence submits that a conditional sentence is sufficient but requests that it be for a term less than 6 months as Mr. Chen is a permanent resident and significant immigration consequences may flow from a term of 6 months or longer. In the alternative, if a conditional sentence is not sufficient the defence submits that a 90 day intermittent sentence would meet the purpose and principles of sentence.
Mitigating Factors
[2] A number of factors mitigate sentence:
- Mr. Chen has no criminal record
- He has a consistent work history
- He continues to enjoy the support of his wife and family
- He's complied with conditions of bail for 21 months without incident including a term that permitted him to return to the workplace under supervision
- Mr. Chen has expressed some remorse in relation to one of the three complainants
[3] There's no evidence of any alcohol, drug or mental health issue that would contribute to future risk. Mr. Chen is willing to take counselling as directed by probation.
Aggravating Factors
[4] The following factors aggravate sentence:
- Mr. Chen was in a position of trust in relation to his customers and took advantage of that trust for his own sexual gratification
- The impact of the offences on the three complainants as mentioned in the evidence at trial and as set out in the pre-sentence report
- The particular vulnerability of one complainant who was suffering from depression, took a sick day off work and went to the salon to lift her spirits only to be sexually assaulted by Mr. Chen
- The fact that the offences were not impulsive or spontaneous but involved repeated similar conduct with three women
- The short time period in which the three offences occurred showing that the conduct was not occasional or rare
- Two of the offences were brazen, committed despite the fact that others were present in the salon
[5] The accused's very limited regret in relation to one victim and his lack of remorse in relation to the other two victims in my view is not an aggravating factor on sentence as it's consistent with his trial position, but it is a circumstance which is relevant to future risk.
Applicable Sentencing Principles
[6] The principles of denunciation and deterrence are the most important factors in sentencing sexual assault cases. The sentence imposed must promote a sense of responsibility in the offender, and must acknowledge the harm done to the victims and to the community – s. 718.
[7] The fact that the accused abused his position of trust towards his customers is an aggravating factor – s. 718.2(ii.1). The court must determine the least restrictive sentence that would meet the purpose and principles of sentence including alternatives to incarceration – s. 718.2(d),(e). The sentence must also contribute to the accused's rehabilitation – s. 718(d).
[8] Section 742.1 sets out the criteria that must be met before a conditional sentence is imposed for summary offences. Section 742.1(a) requires that a conditional sentence be consistent with the fundamental purpose and principles of sentencing listed in sections 718 to 718.2 of the Criminal Code.
Analysis
[9] In cases of sexual assault, incarceration is typically the sanction that best meets the purpose and principles of sentence – R v Proulx 2000 SCC 5. There is no minimum term of imprisonment and the evidence shows that a restrictive conditional sentence would not endanger the community. In this case a conditional sentence fails on the last criteria – it's not an appropriate sentence. It would not meet the need for denunciation and deterrence given the multiple offences and breaches of trust. It would not sufficiently promote a sense of responsibility in the offender nor would it be sufficient to acknowledge the harm done to the victims and the community.
[10] Given the aggravating factors listed above, I find a sentence of incarceration is required even though Mr. Chen is a first offender. Unfortunately, the fact that he has no record and has stable employment and family support does not distinguish him from many others who have chosen to commit similar sexual offences.
[11] Women in this community who attend salons and other personal service businesses should not have to fear that they may be groped or sexually assaulted by the person they trusted to care for them. A significant sentence of incarceration must be imposed even for first offenders in these circumstances to send a message to this accused and any others like-minded that such conduct will not be tolerated.
[12] I agree with the Crown that a sentence of incarceration in the range of 4-6 months would be appropriate for multiple offences in these circumstances. In this case however I'm going to impose a somewhat shorter sentence of 90 days to be served intermittently. The reason for the reduction is that the accused is the owner of the salon business and the sole source of income for his family of four. Incarceration beyond 90 days may well result in the loss of the business which would have a devastating collateral effect on the family. There are cases where the gravity of the offence compels a sentence which may unfortunately have such an effect, but in this case I find a 90 day sentence of incarceration followed by a restrictive probation still sends a meaningful message, and would otherwise be sufficient to meet the purpose and principles of sentence discussed above. Sentences of 90 days have been imposed in cases similar to this one. See: R v Giovannelli 2017 ONCJ 408, R v Perry 2012 ONCJ 699, R v Long 2013 ONCJ No 5337.
Sentence
[13] Mr. Chen is sentenced to 90 days in custody to be served intermittently.
[14] He'll be subject to probation for two years on the following terms:
- Keep the peace and be of good behaviour
- Report to probation as required
- Have no contact with the three victims (named)
- Not be within 100m of any known place of residence, employment or education of any of the three victims
- Not possess any weapons as defined by the Criminal Code
- Take counselling related to this offence as directed by probation
- Sign any releases necessary for probation to monitor that counselling
- Not to be in a salon with any female customer unless another adult over the age of 21 years is present
- Not to provide any personal service at a salon including hair cutting, styling, colouring, treatments or consultation unless in the presence throughout of another adult over the age of 21 years who has been informed of the circumstances of these offences, of the terms of this order and who has been approved of in advance by your probation officer and unless you're licensed to perform that service by the Ontario College of Trades
[15] Sexual assault is a primary designated offence. Mr. Chen will provide a sample of his DNA for registration on the national databank. There will be an order under s. 110 of the Criminal Code prohibiting him from possessing any firearms or other items listed in that section for a period of 5 years. Both parties agree a lifetime SOIRA order is mandatory. A victim fine surcharge is also mandatory and the accused will have six months to pay.
Delivered: September 8th, 2017
Justice Joseph F. Kenkel
