Court Information
Ontario Court of Justice
Date: August 31, 2018
Court File No.: Brampton 17-7265
Parties
Between:
Her Majesty the Queen
— and —
Richard Wolfe
Judicial Officer and Counsel
Before: Justice M.M. Rahman
Sentencing Hearing: August 3, 2018
Reasons for Sentence Released: August 31, 2018
Counsel:
- Don Pyper, for the Crown
- Paul Dhaliwal, for the offender Richard Wolfe
Notice
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. Any information that could identify the victim or a witness in this matter shall not be published in any document or broadcast or transmitted in any way. Failure to comply with this order is an offence under section 486.6 of the Criminal Code.
Reasons for Sentence
RAHMAN J.:
1. Overview
[1] On May 18, 2018, I found the offender, Richard Wolfe, guilty of sexual assault and sexual interference. The offender's common law spouse looked after children in her home, including the victim, H.C. During the summer of 2015, the offender touched the victim in her vaginal area on three occasions over her clothing, and made her touch his penis on one occasion, over his clothing.
[2] The Crown requested that the sexual assault charge be conditionally stayed and that the offender be sentenced for sexual interference. The Crown sought a sentence of nine months in jail followed by two years of probation. The Crown also requested the following mandatory ancillary orders: a SOIRA order for 10 years; a s. 110 order for 5 years; a DNA order; and a s. 161 order.
[3] The offender argued that a 90-day intermittent sentence is appropriate in this case. The offender argued that such a sentence is sufficient to meet the principles of sentence in his case because he is a first offender, and because similar sentences have been imposed on offenders in cases with equally or more aggravating circumstances. The offender also cited his age and health concerns as factors that weigh in favour of an intermittent sentence (and therefore a sentence no more than 90 days), since such a sentence would allow him to follow his strict diet and exercise regimen. The offender took no issue with the ancillary orders.
2. Circumstances of the Offence
[4] As mentioned above, the offender's spouse looked after the victim and other children in her home. The incidents happened in the offender's home and in his car. During the incident in his car, the offender took H.C. to refill some water containers and touched her vaginal area while the car was stopped. The offender also once made a sexually suggestive comment to H.C. about sitting in place of a toy that she had between her legs. While I found that the conduct did not meet the definition of invitation to sexual touching, I find that the comment was sexual in nature and is relevant in sentencing the offender for the incidents of sexual interference.
3. Circumstances of the Offender
[5] The offender is now 70 years old. He worked as a street car and bus driver for 35 years, and retired from that job eight years ago. He has never been in trouble with the law. He has been in a common-law relationship for about 25 years with his current spouse. He and his spouse have a 22-year-old daughter. They describe themselves as a close family.
[6] The offender's neighbours described him in positive terms, and as a kind and helpful person. One of his neighbours, Y.D., wrote a letter on the offender's behalf and described him to be a caring son, a loving husband, a supportive father, and a reliable, trustworthy friend.
[7] As mentioned above, the offender also has health issues. The offender suffered a stroke about two and a half years ago. The stroke has caused him some trouble with his memory because he sometimes has problems remembering the names of people and streets. The offender also suffers from Type 2 diabetes and high blood pressure. Because of his health issues, he adheres to a vegan diet and strict exercise regimen. At his sentencing hearing, the offender tendered a letter from his physician that says "any incarceration would be detrimental to his health due to physical and mental stress" and that jail would increase the risk of stroke and cause his diabetes to become worse. His physician expressed the belief that "incarceration on an intermittent basis would be safer for him."
4. Impact on the Victim
[8] The offences in this case have had a significant impact on the victim. H.C.'s mother, J.C., said in her victim impact statement that her daughter has not been the same for years. J.C. said that her daughter's eating habits changed, that she had nightmares, and wanted to kill herself. H.C. did not feel safe after the assaults and wanted to move away. J.C. also said that H.C. no longer trusts many people and does not even want her female paediatrician to touch her.
[9] In her own victim impact statement, H.C. said that she feels as though she has lost her childhood and can never get it back. She described herself as being paranoid and feeling like she is stuck in a tiny bubble. H.C. also feels she cannot trust anybody and that she has terrible anxiety and nightmares about the offender. She ended her victim impact statement with the words "I will never be the same."
5. Parties' Positions
5.1. Crown's Position
[10] As mentioned above, Crown counsel, Mr. Pyper, argued that nine months in jail is the appropriate sentence because of the aggravating features of this offence. He said that this offence involved a serious breach of trust because the offender was responsible for helping his spouse look after the children in her care. Moreover, the sexual touching did not take place only once but on four occasions.
[11] Mr. Pyper also cited the significant impact that this offence has had on H.C. including causing her to have thoughts of suicide, and harming herself. He argued that the paramount principles of deterrence and denunciation require a significant sentence.
5.2. Offender's Position
[12] Mr. Dhaliwal, on behalf of the offender, argued that a 90-day intermittent sentence is appropriate because it is still a significant jail sentence and is consistent with sentences for similar offenders in similar circumstances.
[13] Mr. Dhaliwal argued that his client is a first offender, and that the principle of restraint is important to bear in mind. He noted that his client has a stable and supportive family and good personal and professional history.
[14] Moreover, Mr. Dhaliwal argued that the touching in this case was not as invasive as other cases where courts have imposed 90-day sentences. He said that the offender's conduct here was at the lower end of the spectrum and was short in duration, and therefore a 90-day intermittent sentence is significant enough to reflect the gravity of the offence.
[15] Finally, Mr. Dhaliwal cited his client's age and health as important considerations in imposing an intermittent sentence. After his stroke, the offender controlled his associated health problems, including hypertension, by maintaining a vegan diet and strict exercise regimen. Mr. Dhaliwal said that the offender would not be able to maintain his healthcare regimen or diet while incarcerated. He referred to the offender's physician's opinion that an intermittent sentence would be safer for his health.
6. Sentencing Principles
[16] The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code:
- 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 offenders from society, where necessary;
(d) to assist in 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, and acknowledgment of the harm done to victims and to the community.
[17] According to s. 718.1 of the Criminal Code, the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principle of proportionality is central to the sentencing process. In R. v. Nasogaluak, the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders.
[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused…Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.
[18] Section 718.2 sets out a non-exhaustive list of secondary sentencing principles that a court must consider in determining the appropriate sentence. Subsection 718.2(a) states that "a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender." Seven factors are listed under subsection (a). The Crown relied on the following three statutory aggravating factors:
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim
(iii.1) evidence that the offence had a significant impact on the victim, considering their age, and other personal circumstances, including their health and financial situation
[19] Also applicable here is s. 718.01, which codifies the pronouncements of many appellate courts about the paramountcy of deterrence and denunciation where victims are under 18.
718.01 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.
[20] Finally, ss. 718.2(b)-(e) set out the following four sentencing principles:
(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; and
(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.
[21] I must also consider the offender's advanced age in this case. As the Court of Appeal recognized in R. v. McNamara (No. 2), "the age of an offender, particularly once he is passed 60, is a serious factor to be considered in mitigation, especially where it is combined with evidence of previous good character." The advanced age of an offender is considered mitigating because the older the offender, the more difficult it is to serve a sentence, and the less is the offender's life expectancy in prison. Similarly, the ill health of an offender is a factor that a sentencing court may consider, but whether it results in leniency will depend on the circumstances of a particular case. Health concerns do not amount to an exceptional circumstance in the absence of evidence that those health concerns cannot be addressed in a correctional environment.
7. Sentencing Range
[22] Not surprisingly, the parties were each able to find cases that support the quantum of sentence that they suggest is appropriate here. Sentencing is an individualized exercise and no two cases or offenders are the same. Moreover, sentencing judges are afforded a wide discretion to tailor sentences to the specific circumstances before them, within the appropriate range. The sentencing range for sexual interference with similar circumstances to this case varies from non-custodial sentences (pre-dating the mandatory minimum sentence of imprisonment) to those in the lower to mid-reformatory range.
7.1. Defence Authorities
[23] A number of the cases relied on by Mr. Dhaliwal involve different circumstances than those here. In some, the offender had the mitigating effect of a guilty plea (R. v. M.G.; R. v. D.T.; R. v. S.C.). In others, the nature of the touching was not as invasive (R. v. M.G.; R. v. C.L.). And finally some of the cases pre-date the mandatory minimum sentence of 90-days, applicable here (R. v. Welsh, R. v. D.T.; R. v. S.C.). None of this is to say that the cases are not relevant in determining the range of sentence for this offence. Rather, I point out the distinguishing features to explain whether these are similar offenders and similar offences for the purpose of the general parity principle set out in s. 718.2(b) of the Criminal Code. I accept, as a general proposition, that sentences in the range set out in those cases may be available for offenders convicted of sexual interference.
[24] Three of the cases relied on by the defence come close to matching the serious circumstances in this case, even though they are not factually identical. All involved a serious breach of trust, as occurred in this case.
[25] In R. v. D.T. the offender fondled his 15-year-old biological daughter's breast and buttocks on one occasion while she was in her bed. The Crown sought a 60 to 90-day sentence, while the offender asked the court to impose the mandatory minimum 14-day sentence. The sentencing judge accepted the defence recommendation and imposed a 14-day intermittent sentence. In imposing that sentence, Brown J. noted among the mitigating factors that the offender had shown "genuine, profound, and absolute remorse" and that the offender immediately started counselling and was willing to continue counselling.
[26] In R. v. L.W. an 85-year-old offender was sentence to 90 days intermittent for sexual interference. The offender was the victim's violin teacher and kissed her on the lips on at least 10 occasions. In imposing sentence, Rose J. observed that the offender showed signs of cognitive decline and found that, because of his advanced age and health, a longer sentence would be crushing and unnecessary to achieve the required sentencing goals.
[27] In R. v. S.C. the offender's wife, as in this case, operated a childcare business. The offender pleaded guilty to touching the victim's genitals and exposing himself to the victim. Ormston J. rejected the defence request for a conditional sentence and sentenced the offender to 90 days intermittent. Ormston J. found that the breach of trust involved made a conditional sentence inappropriate.
7.2. Crown's Authorities
[28] Like the defence's authorities, the Crown's authorities also differ in some ways from the circumstances in this case. It is unclear in most of the authorities when the offences took place and whether they were subject to the 90-day mandatory minimum sentence. I will refer to those cases that come close to matching the circumstances here.
[29] In R. v. Langevin, the Court of Appeal upheld a 12-month sentence, with two years' probation, where the 44-year-old offender hugged and kissed an 11-year-old victim. The kissing was described by witnesses as similar to that which would occur "between spouses or lovers." The victim was the daughter of the offender's former partner. The Court of Appeal noted that the sentence appeal "was not vigorously pressed" and simply noted there was no error in principle. The court made no other comment about the appropriateness of the sentence or the sentencing range for the offence.
[30] In R. v. C. C., the offender was sentenced to 14 months for two incidents of vaginal touching. The offender was the husband of the victim's grandmother. The victim was only three to five years old when the incidents of touching happened. The touching was more invasive than the case at bar, because the offender had removed the victim's clothes before touching her. In sentencing the offender to 14 months imprisonment, Leach J. cited the breach of trust (because the victim had been left in the offender's care) and the age of the victim when the offences occurred, as aggravating factors.
[31] Finally, in R. v. Graziano, the offender was sentenced to 6 months imprisonment for one incident of sexual touching. The offender was the victim's teacher. The offender touched the 14-year-old victim's genital area over his clothing. The touching occurred after the offender had made sexual comments to the victim several days earlier. Because the sentence appeal was dismissed as abandoned, the Court of Appeal did not comment on the appropriateness of the sentence. However, it is apparent that this offence involved a serious breach of trust.
8. The Appropriate Sentence
[32] Determining the appropriate sentence for an offender is one of the most difficult tasks required of judges. The offender here has never been in trouble with the law, has strong family support, and is of advanced age with health problems. On the other hand, this offence involved more than one incident of relatively invasive sexual touching, a serious breach of trust, and it has had a significant impact on the young victim.
[33] I agree with Mr. Dhaliwal that his client has a number of mitigating factors working in his favour. However, the sentence suggested by Mr. Dhaliwal is simply not fit for this offence. A 90-day intermittent sentence does not give proper effect to the principles of deterrence and denunciation that are paramount here.
[34] A 90-day sentence is the lowest sentence allowed by law for this crime. The so-called inflationary floor created by that mandatory minimum sentence suggests that such a sentence is only available for an offender at the lowest end of the spectrum (the so-called "best offender"). That low end of the spectrum would involve an offender whose conduct is relatively minor in circumstances where there are no significant aggravating features, and where there are significant mitigating features such as a guilty plea or a significant expression of remorse. By any measure, the offence committed here is not at that low level. H.C. was victimized more than once by a man who stood in a position of trust. The touching was invasive, even if it was over her clothing. And the impact on her has been devastating.
[35] I should not be taken to suggest that the 90-day inflationary floor makes the mandatory minimum sentence available only to offenders who plead guilty and show remorse. It would be incorrect to say, as a matter of law, that the so-called best offender can only be one who pleads guilty and accepts responsibility. But the fundamental principle involved in every sentence is proportionality. A 90-day sentence here, even considering the offender's age and health issues, would be disproportionate. The circumstances here require a sentence above the mandatory minimum because of the repeated conduct, the breach of trust, the invasiveness of the assaults and the significant impact on H.C. These were relatively invasive sexual assaults on a vulnerable young girl who was in the offender's care. To put it bluntly, 90 days, especially on weekends, cannot fulfill the paramount sentencing principles of deterrence and denunciation here.
[36] In my view, the 9-month sentence suggested by the Crown is the appropriate length of sentence for this offence. Considering the 90-day mandatory minimum sentence as the inflationary floor, and the sentencing authorities in similar cases, it seems that a sentence in range 9-12 months would be appropriate for an offence and an offender in similar circumstances.
[37] A 9-month sentence takes due regard of the offender's health as a mitigating factor and reflects the lower end of the range for this offence and its aggravating features. While the law requires a court to consider an offender's age at sentencing, his advanced age cannot lead to an unfit sentence or a sentence outside the appropriate sentencing range. Moreover, in the absence of any evidence that his health concerns cannot be addressed in a correctional setting, any further reduction in his sentence cannot be justified. I realize that any length of sentence will have an impact on the offender because of his age and health concerns. However, the circumstances of the offence do not justify such a significant departure from what is otherwise a fit sentence in this case.
9. Conclusion
[38] The sexual assault count is conditionally stayed.
[39] The offender is sentenced to nine months' imprisonment for sexual interference.
[40] After he serves his jail sentence the offender will be on probation for two years. In addition to the statutory terms, I add the following terms:
(1) The offender will report in person to a probation officer within two (2) working days of his release from custody 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.
(2) He must not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means with H.C.
(3) He must attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer.
(4) He shall sign any release of information forms that will enable his probation officer to monitor his attendance at any assessment, counselling or rehabilitative programs; and he shall provide proof of his attendance at any such program upon request of his probation officer.
(5) He shall not possess any weapons defined by the Criminal Code.
[41] I am also making the following ancillary orders:
(1) An order under s. 487.051 requiring him to provide a bodily sample today for inclusion of his DNA profile in the DNA databank.
(2) An order under ss. 490.013 requiring him to comply with the Sex Offender Information Registration Act for 10 years.
(3) An order under s. 110 for 5 years.
(4) An order under s. 161 of the Criminal Code for 5 years with the following terms:
(a) He is not attend at a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground, or community centre unless he is in the immediate and continuous presence of another person over the age of 21.
(b) Further, that he must not seek, obtain or continue any employment, whether or not the employment is remunerated, or become or be a volunteer in any capacity, that involves being in a position of trust or authority towards persons under the age of 16 years.
(c) Then, finally, that he not have any contact, including communicating by any means with a person who is under the age of 16 years except if he is in the immediate and continuous presence of another adult person over the age of 21.
[42] I am also making an order s. 743.21 of the Criminal Code, prohibiting the offender from having contact with H.C. while he serves his jail sentence.
Released: August 31, 2018
Justice M.M. Rahman