COURT OF APPEAL FOR ONTARIO

DATE: 20020222

DOCKET: C36325

MOLDAVER, FELDMAN and MacPHERSON JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Grace Choi

For the appellant

Appellant

• and -

P.M.

Peter Abrahams

For the respondent

Respondent

HEARD: January 31, 2002

On appeal from the sentence imposed by Justice Arthur Whealy on April 18, 2001 and on appeal from the order of Justice Whealy refusing to make a DNA databank order.

FELDMAN J.A.:

OVERVIEW

[1] The Crown appeals the sentence that the respondent received after pleading guilty to two counts of sexual assault on two victims. One count occurred 18 years before the trial and involved repeated intercourse with a young girl, the daughter of a family friend, over a period of years. The second occurred three years before the trial, and involved touching the breasts of the 21 year-old sister of the first victim. The respondent is the uncle of the victims, having married their aunt in 1986 around the end of his relationship with the first victim. The respondent received a 15-month conditional sentence. The trial judge declined to order a weapons prohibition and did not address the issue of a DNA sample. On appeal, the Crown seeks a custodial sentence followed by probation, together with a weapons prohibition and DNA order.

FACTS

[2] The respondent was a good friend of the family of the victims in 1983 and baby-sat the victim C when she was 11 years old. The respondent was 26 years old at the time. He began the assaultive behaviour by kissing the child and putting his tongue in her mouth. Over the months and years that followed, he would fondle her and rub his genitals against hers. When C was still 13, the respondent began to have sexual intercourse with her. He would pick her up at school and take her to his apartment. He made her feel that he was her boyfriend. At the sentence hearing, the fact that the relationship was a consensual one was relied on by the respondent as a mitigating factor. The sexual relationship, including intercourse, continued until the victim was at least 16 years old. However, around the time when she was 15 or 16, the respondent began to date her aunt, who was also a young teenager, and married her in 1986. The sexual relationship with C ended around the time of the marriage.

[3] The second victim, S, is the younger sister of C. In January, 1998, S was visiting her aunt and uncle, the respondent, along with their two daughters who were 4 and 6 years old at the time. S was 21 years old and the respondent was 40. S was in the basement playing with her two cousins, when the respondent told her to “come here”. She backed up toward him while still speaking to the two little girls. The respondent then grabbed S by the back of her arms and pulled her onto his lap. She turned sideways on his lap, he began to caress her back, then put his hand under her shirt, up her back, then around the front of her body where he rubbed her stomach and the under part of her breast with his thumb. She was shocked. The incident lasted 30 seconds. Her mother then called her and she got up and left, cried in the car, and disclosed the event to her mother that evening. It was as a result of S’s disclosure that C eventually also disclosed what happened to her and the police became involved.

SUBMISSIONS AT TRIAL AND SENTENCE

[4] Following the guilty plea on the date set for trial, the matter was put over for sentencing and the preparation of a pre-sentence report. At the sentencing hearing, the trial judge had the pre-sentence report as well as victim impact statements from the two sisters who were sexually assaulted by the respondent.

[5] The pre-sentence report disclosed the following information: The respondent was 44 years old at the time of sentencing. His daughters were 8 and 10 years old. He had no criminal record and was employed in a full time job. His wife worked as a receptionist for the same employer. The respondent had a middle class upbringing in Jamaica and had completed teacher’s college and three years of teaching high school there before coming to Canada in 1981 where he studied computer programming. He had befriended the family of the two victims when he came to Canada and they liked and trusted him.

[6] Following the charges, the Children’s Aid Society had become involved to ensure the safety of the respondent’s daughters. The Society was satisfied with the situation and did not pursue a supervision order. The respondent’s wife reported that he was a great father. The children’s pediatrician reported that the children were healthy and well-adjusted. The respondent’s family doctor reported that his view was that the respondent was not a threat to anyone. The respondent and his wife attended one joint counselling session and he attended three individual sessions but stopped although he was willing to attend for court-ordered treatment or testing. Not surprisingly, the disclosure of the offences had led to “considerable tension, anger, resentment and conflict” among the members of the respondent’s family. The respondent’s wife remained supportive of him, although there was a strain on their relationship.

[7] C filed a lengthy victim impact statement describing how the events had affected her whole life including her poor relationship with female peers, her promiscuity with men, her lack of trust of men and the subsequent breakdown of her sexual relationship with her husband. She had also attempted suicide at one point. In her statement, S blamed the respondent for her poor relationship with her sister C growing up, her lack of trust of people’s motives, and her fear for the respondent’s children with whom she had once had a good relationship.

[8] At trial, the Crown sought a custodial sentence of two years less a day plus probation to address the rehabilitative aspects of sentencing. The respondent sought a one year conditional sentence.

[9] The trial judge imposed a conditional sentence of 15 months. Although he referred to strict conditions of house arrest except for employment, the trial judge allowed the appellant to accompany his wife for family shopping “and those things that a family requires to be done outside of the house.”

[10] The Crown’s position on the appeal is that the sentence imposed by the trial judge for these offences is demonstrably unfit both in its duration and because it is non-custodial. Counsel submits that a sentence of incarceration together with probation “was necessary in the circumstances of this case to reflect the gravity of the offences and to give proper effect to all of the relevant sentencing principles.”

[11] Of course, any approach to a review of a sentence imposed by a trial judge begins with the now well-established principle that a court of appeal must defer to the judgment of the trial judge unless the judge has made an error in principle, failed to consider a relevant factor or overemphasized appropriate factors, or has imposed a sentence that is demonstrably unfit: R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132 at para. 19; R. v. C.A.M., 1996 230 (SCC), [1996] 1 S.C.R. 500 at para. 90.

[12] In his reasons, the trial judge noted that the respondent’s earlier sexual conduct was far more criminally serious than the second offence, and said that as such, he would concentrate mainly on the nature of the first offence in determining sentencing. He observed that although the defence relied on the consensual nature of the conduct, the court could not be more lenient on that basis where the victim could not legally consent. He then referred to the decision of the Supreme Court of Canada in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; he noted that previously it was generally assumed that a severe penal sentence was required to address denunciation and deterrence for this type of conduct, but that since Proulx a conditional sentence may be imposed in appropriate circumstances where the safety of the public can be assured.

[13] The trial judge then turned to the circumstances of this case. He described the guilty plea as an important consideration, even though it was not entered until the date set for trial. He noted the respondent’s lack of a criminal record. He referred to the pre-sentence report and the fact that the family doctor had told the probation officer that in his opinion the respondent did not pose a threat to re-offend. The trial judge relied on that report to conclude that “by inference… the public would not normally be at any risk.” He noted that a counsellor who saw the couple had similarly reported to the probation officer his view that the respondent was not a risk to the public. Although the counsellor also expressed the view that a penal sentence would disrupt the family unnecessarily, the trial judge put no weight on that view as it was beyond the mandate of the counsellor.

[14] The trial judge then considered the principles of sentencing, the dominant ones in these circumstances being denunciation and specific and general deterrence. However, he also emphasized rehabilitation, especially for a first time offender, and relied on the following factors: (a) the respondent was well employed; (b) he had a responsible job; (c) he was well-educated; (d) he was described by many as a good family man; (e) he had the support of his wife and the love of his children; and (f) he was reported to be a good father.

[15] The trial judge concluded his analysis as follows:

In all these circumstances, these two acts 15 years apart would appear to be absolutely out of character, but unfortunately, they are the same class of behaviour and they indicate, if nothing less, a weakness in his ability to control himself. It is not enough for society to see the accused, as it were, excused [of] his previous terrible behaviour and sent home to continue his life. The court must recognize for the benefit of society the degree of severity of the conduct to which the accused admits.

[16] The trial judge then found that two years less a day was the maximum sentence to be imposed, and went on to conclude that a conditional sentence would serve all the interests that need to be considered by the court and addressed in a case of this nature. He imposed a 15-month conditional sentence as described above, including a no contact order for the two victims. He also directed the respondent to attend counselling as required by the supervisor. There was no community service component or probation order. The trial judge was of the view that s. 109 of the Criminal Code, which provides for a weapons prohibition, does not apply to a conditional sentence. He did not deal with the Crown’s request for a DNA order.

ANALYSIS

[17] In my view, this is a case where the sentence imposed is demonstrably unfit for the crimes and for the offender.

[18] The respondent was in a position of trust both with the family of the victims and with the victims themselves. He breached that trust in the most serious fashion. His conduct as a 26 year-old adult in molesting an 11 year-old girl leading up to intercourse with her at age 13 is both reprehensible and frightening. That this conduct is reprehensible is clear. It is frightening because the respondent clearly presents himself to the world as a good and trustworthy person – so much so that the trial judge was prepared to find that what he did was “out of character”. I will comment further on that finding later in these reasons.

[19] This conduct is also frightening because as a 26 year-old man, the respondent induced a vulnerable child into an ongoing sexual relationship by leading her to believe that they were boyfriend and girlfriend. This is exploitation of the worst order. Young women entering their teenage years face a myriad of confusing feelings regarding their bodies, their emotions, and their sexuality. It is difficult enough to deal with these issues with a judgmental and often cruel peer group. To exploit a young teenager as this man did reveals a level of amorality that is of great concern. The fact that the conduct was consensual on the part of C, who believed she was in a love relationship with a boyfriend, is far from being a mitigating factor as suggested by the defence and instead is an aggravating factor as part of the gross breach of trust involved in this offence.

[20] As to the second offence and its significance, as a 40 year-old family man with two young daughters, the respondent was prepared to “test the waters” with the 21 year-old sister of his first victim, to see how she would react to a sexual advance from him, a trusted uncle. He was apparently not concerned that his two daughters were present in the room.

[21] The trial judge’s conclusion that the respondent’s behaviour 15 years apart is out of character, is, with respect, not supported by the admitted facts. The trial judge was also, in the face of those admitted facts, prepared to rely on hearsay opinions presented in a pre-sentence report on the critical sentencing issue of whether the respondent represents a danger to the community. We do not know what information the doctor or the counsellor had about the offences or about the respondent in order to come to their conclusions. However, without a course of counselling, the outcome of which can be evaluated by a professional, there is nothing in these circumstances which can form the basis for a conclusion that anything has changed the respondent so that he will not repeat this behaviour. Those potentially at risk are those who are both vulnerable and trusting of the respondent.

[22] In my view, this was not a case for a conditional sentence to be served in the community. The fact that the most serious offence is historical does not make the case comparable to R. v. L.F.W., supra, where 25 years had passed without any related criminal activity since the sexual assaults, or R. v. Wood, [1999] O.J. No. 1520 (C.A.), where the accused had been free of any known problems for 29 years. Here, although 15 years passed, the respondent took the opportunity to sexually assault another niece, bringing history forward to the present. The fact that he was prepared to commit the offence in front of his two young daughters is a further aggravating factor in that regard.

[23] Furthermore, as L’Heureux Dubé J. speaking on behalf of four judges in dissent in L.F.W., supra, pointed out, even under the new sentencing principles enacted in 1995:

the principle of denunciation weighs particularly heavily in cases of offences perpetrated against children by adults in positions of trust and authority. See: R. v. Oliver (1997), 1997 14501 (ON CA), 99 O.A.C. 234; R. v. Alfred (1998), 1998 5634 (ON CA), 122 C.C.C. (3d) 213 (Ont. C.A.); R. v. D. (P.) (1999), 1999 3777 (ON CA), 139 C.C.C. (3d) 274 (Ont. C.A.); R. v. R.R.E., [1998] O.J. No. 2226 (Q.L.) (Prov. Div.); R. v. P.M., [1999] O.J. No. 421 (Q.L.) (Prov. Div.); R. v. I., [1998] O.J. No. 5713 (Q.L.) (Gen. Div.); R. v. Cuthbert (1998), 1998 14971 (BC CA), 101 B.C.A.C. 147. (para 29)

See as well the recent decision of this court in R. v. Cromien, 2002 4807 (ON CA), [2002] O.J. No. 354.

[24] In this case, I am of the view that the trial judge failed to give appropriate weight to the objective of denunciation by treating the conduct of the respondent as out of character and as a weakness in his ability to control himself, and by failing to recognize the significance of the second offence on a new victim 15 years later as well as the significance of the presence of his own two small daughters during the offence. The trial judge did not appear to consider these factors as issues that spoke against the ability of a conditional sentence to satisfy the sentencing imperatives set out in ss. 718 to 718.2 of the Code. As a result, he imposed a sentence which in all the circumstances did not sufficiently achieve the key sentencing objectives for this type of crime, namely denunciation and general and specific deterrence.

[25] I also agree with the Crown’s submission that the terms of the conditional sentence were not strict enough to make the sentence one that could serve the principle of denunciation. The house arrest conditions were not restrictive enough, nor was the respondent required to perform any community service. Despite the trial judge’s statement that it would not be enough to sentence the accused to continue his life, the terms that he imposed did not reflect the fact that a conditional sentence must include strict and restrictive house arrest conditions in order to ensure that the sentence achieves its goals of deterrence and denunciation.

[26] Having concluded that the sentence imposed was manifestly unfit, this court must impose the appropriate sentence on the respondent.

[27] The trial judge emphasized several mitigating factors in arriving at the sentence, including the guilty plea, the appellant’s stable work and family circumstances, and his clean prior record. These factors are of course important and relevant and justify a reduction in the length of sentence that might otherwise be imposed. In my view, these factors serve to reduce the sentence from a penitentiary term to a period of two years less a day. The appellant has already served 10 months of his conditional sentence. Therefore his sentence from the date of his surrender into custody is 14 months in reformatory.

[28] In argument, Crown counsel conceded that because of the timing of the offences, only the former s. 100 weapons prohibition may be applicable to the second offence. As no order was requested of the trial judge under that section, this issue was not pressed on the appeal.

[29] The issue of the DNA order was referred to at the sentencing hearing briefly by the Crown and defence. The trial judge made no mention of it. Although it is not entirely clear on the record, it appears that the matter was overlooked by the trial judge and the oversight was not noted at the end by Crown counsel at trial.

[30] In my view, this is a proper case for a DNA order under s. 487.052 of the Criminal Code. Sexual assault is one of the primary designated offences under s. 487.04 of the Criminal Code. The taking of a DNA sample for the data bank will serve the purposes identified by this court in R. v. Briggs (2001), 2001 24113 (ON CA), 157 C.C.C. (3d) 38 and is therefore in the best interests of the administration of justice, in accordance with s. 487.052. sentence of 14 months in the reformatory. The appellant is to surrender forthwith upon release of these reasons. There will also be an order that the respondent provide a blood sample for the DNA data bank in accordance with s. 487.052 of the Criminal Code.

CONCLUSION

[32] The Crown appeal of the sentence imposed by the trial judge is allowed. The 15-month conditional sentence is set aside. The appropriate sentence was 2 years less a day. As the respondent has served 10 months of his conditional sentence, I would impose a sentence of 14 months in the reformatory. The appellant is to surrender forthwith upon release of these reasons. There will also be an order that the respondent provide a blood sample for the DNA data bank in accordance with s. 487.052 of the Criminal Code.

SIGNED: “K. FELDMAN J.A.”

“I AGREE M. J. MOLDAVER J.A.”

“I AGREE J.C. MacPHERSON”

RELEASED: “MJM” FEBRUARY 22, 2002

[JE1] pos