R. v. H.P.

Court Information

Court File No.: Toronto

Date: 2013-04-09

Ontario Court of Justice

Before: Justice Fergus O'Donnell

Counsel:

• Ms. T. Brun, for the Crown
• Mr. D. Goodman, for the defendant, H.P.

Heard: 17 December 2012 and 26 February & 18 March 2013

Reasons for sentence delivered: 9 April 2013

Judgment

O'Donnell, J.:

Overview

[1] H.P. has pleaded guilty to seven charges of long-term sexual abuse of four boys. Three of the boys were H.P.'s nephews, who had been left fatherless when H.P.'s brother died of cancer in 1996. When their father died, the twin brothers (whom I shall call "D" and "J") were twelve years old and the "younger brother" or "younger nephew" was nine. H.P. stepped in as a father figure and the abuse began soon after. The abuse of the twins took place over about a four-year period; the abuse of the younger nephew continued for eight years. The other boy, whom I shall call "S", was the son of a close friend of H.P.'s and the abuse took place over roughly a one-year period, between 1997 and 1998. H.P. was employed as a delivery driver and some of the abuse occurred when his nephews would accompany him on his route.

[2] H.P. has no previous criminal record. The Crown asks for a sentence of five years in the penitentiary, less credit for H.P.'s pre-sentence custody. His real time in pre-sentence custody is just under ten months. Mr. Goodman, for H.P., says that a sentence of between two and three years would be appropriate, less credit for the pre-sentence custody, which he says should be enhanced by a factor of 1 ½ : 1.

[3] The facts are set out in detail in an eleven-page agreed statement of facts, so I will summarize them here. I note that the sexual abuse of both twins began when they were twelve years old, the age they were when their father died, so there cannot have been a long gap between their father's death and the onset of the abuse.

[4] I also received victim impact statements from the three nephews, from their mother, from S and from S's father. The three nephews and their mother read their statements to the court. I have incorporated parts of the victim impact statements under the descriptions of the abuse, but it would be both misleading and presumptuous for me to suggest that my words could come even remotely close to conveying the impact of the abuse as well as the victims' own words. For anyone seeking an unforgettable insight into the widespread and enduring impacts of child sexual abuse, the victim-impact statements are unpleasant but essential reading.

Details of the Sexual Abuse of J

i. The sexual abuse of J ran from when he was twelve to when he was sixteen years old.

ii. J described H.P. as the boys' favourite uncle, who took great interest in them. J spent a lot of time at H.P.'s house, playing with his dogs, watching satellite TV and enjoying the pop machines and basketball court.

iii. J would accompany his uncle on Saturday deliveries. After spending time in a strip-club, his uncle would return to the truck, say he was excited, masturbate and ejaculate in J's presence, inviting J to do likewise. This masturbation in the vehicle happened three or four times.

iv. H.P. would walk around his pornography-filled home naked and masturbated countless times in J's presence, encouraging J to do likewise.

v. J would try not to pay attention to his uncle. H.P. never touched J but J felt that his uncle "planted seeds to try to get it going" and felt that his uncle was close to touching him at times.

vi. The twins were heavily involved in hockey and would travel to tournaments with their team. Their uncle would bring their younger brother and share a room with him. When they were at one particular tournament the twins went to their uncle's room and asked if their younger brother wanted to go out with them. H.P. came to the door in his underwear, visibly angry for the interruption, said that the younger brother would not be going out and would not let J speak with him. J later learned from his younger brother that he was being sexually abused during that trip and J is unable to forgive himself for not realizing what was happening to his younger brother.

vii. In his victim-impact statement, J spoke of the impact of the abuse on all of his relationships, his inability to trust and rely on others and the insecurity he feels when left alone in the company of the neighbours' children, constantly feeling that he must tell the kids to let their parents know where they are. Even normal interactions worry him.

Details of the Sexual Abuse of D

i. The sexual abuse of D began at the same age as his twin brother, J, and continued until D was seventeen years old.

ii. D spoke of how his uncle was always very generous to the boys and that the presents just got bigger and bigger.

iii. H.P.'s home was full of pornography, including magazines of young boys engaged in sex acts. The sexual abuse of D began soon after D found a Hustler magazine in one of the bedrooms in his uncle's house. As he became aroused D began to touch himself and looked up and saw his uncle looking through a hole in the door. D confronted his uncle over watching him. The next weekend his uncle told him that masturbation was natural and began asking questions about his genitals and progressed to repeated discussions of homosexuality, penises and the virtues of men over women.

iv. D described virtually the same experience on Saturday deliveries to the strip club that his twin brother described. On one such occasion, his uncle told D to pull out his own penis and D reluctantly began to masturbate. His uncle then reached over and began to masturbate D.

v. The sexual abuse extended to H.P. encouraging D to masturbate his uncle; D estimated he was coaxed into doing this ten to fifteen times. H.P. masturbated D forty to fifty times either in H.P.'s house or truck. H.P. encouraged D to keep these incidents secret and on occasion would start, but not finish a sentence with, "If you ever tell anyone about this…"

vi. D said that his friends would also visit his uncle's house and his uncle would masturbate in front of them. H.P. often told D that one of D's friends was "hung like a horse". D's friends told him that H.P. would often attend their high school and take students shopping or out to lunch.

vii. Roughly thirteen years from the end of the abuse, D's victim-impact statement tells of the measurable effects of his uncle's abuse: the fact that every relationship he tried to engage in was doomed from the outset, his desire that nobody ever touch him and his multiple attempts at suicide. However, the detailed description of the omnipresent inner turmoil and feelings of worthlessness caused by the abuse and by his uncle's use of him and then discarding him "when I didn't meet his criteria any more" is in a way even more chilling. D described his uncle's arrest as having "lifted a piano" off his shoulders.

Details of the Sexual Abuse of the Younger Brother

i. H.P. abused his younger nephew for about eight years, from the age of eleven years to nineteen years old. This abuse would, then, have begun about two years after H.P. started abusing the twins and would have continued for about four years after the abuse of the twins ended.

ii. The younger nephew echoed his brothers' descriptions of H.P. as the cool uncle with the awesome presents.

iii. The first abuse of the younger brother occurred while he and his uncle were alone in his uncle's car en route to one of the twins' tournaments since the twins travelled on the team bus. H.P. asked about the boy's penis, then asked to see it and touched it, complimented the boy on the size of his penis and then masturbated in front of his nephew as if it was no big deal.

iv. From this point on, some sort of sexual activity occurred every time he was with his uncle. For the first two years or so, H.P. sexually abused the younger brother every few weeks, typically by masturbating himself after asking to see his nephew's penis. The abuse increased dramatically between ages fourteen and fifteen, when H.P. would invite the boy over to his home on a pretext, put on a pornographic video and then masturbate and fellate the boy. H.P. had the younger nephew touch H.P. and hold his penis and took pictures of the boy masturbating. Every sexual assault ended with H.P. saying it would never happen again and throwing away the pictures, only to repeat it all the next time.

v. The sexual assaults also occurred, with a frequency beyond the boy's ability to recall, when they went to his brothers' out-of-town games.

vi. The younger brother confirmed that his uncle's home was full of pornography. One time he was shown a home-made film of the victim S masturbating.

vii. The younger nephew never disclosed the relationship out of shame but eventually came to consider it normal. The abuse stopped around the age of eighteen to nineteen after the boy's family and friends started to question how much time the boy spent with H.P., leading him to avoid his uncle as much as possible. He only disclosed the abuse to family members during his recovery from a drug dependency.

viii. The younger nephew's victim-impact statement speaks of years of living a lie, unable to let anyone know what was really going on in his life and having to conceal his inner pain and suffering. Like his brothers, his personal relationships all suffered because his ability to trust had been shattered; as soon as a person gets too close, he pushes them away for fear of being hurt. He struggled with his sexual identity because of his uncle's acts and conditioning and to the present day he cannot enjoy particular sexual activities because of the flashbacks they bring. He turned to drugs and alcohol to put himself into a state of oblivion, becoming an addict and wanting to kill himself.

Details of the Sexual Abuse of S, the Son of H.P.'s Friend

i. H.P. was the best man at the wedding of S's parents and was involved in S's life all along. S would go to movies and meals with H.P. and had a key to H.P.'s house and was allowed to take his friends there for lunch.

ii. H.P. began to abuse S in the summer after grade 8 and continued for about a year. H.P. would take S to H.P.'s home to help with chores and in the evening would play pornographic movies via satellite and masturbate in front of S, encouraging S to do likewise, which S ultimately did.

iii. H.P. provided S with heterosexual pornography to take home and generally played heterosexual porn films, but once played a "gay porn with younger boys", which S manifested his displeasure with.

iv. S said that there were about ten incidents over about a year leading up to H.P. asking S if he wanted H.P. to fellate him, which S declined. S then distanced himself from H.P. and came forward when he learned of H.P.'s 2012 arrest for abusing his nephews.

v. S described H.P. as a close family friend for his entire life, his own lack of understanding at the time that what H.P. was doing was wrong and the devastating impact of guilt on his parents when he told them what had happened. The emotional strain for S in disclosing the abuse to his own wife was also great and S, a father-to-be, wonders how he will ever trust anyone with his child. Despite counselling surrounding these issues, S expects that these events and the ensuing fears "will forever impact how I act around other adults, including friends and family, who are involved in the upbringing of my child".

The Nephews' Mother's Victim-Impact Statement

i. H.P.'s sister-in-law, the mother of three of his victims, spoke of her enduring appreciation to H.P. for his help during her husband's long battle with cancer, but now questions his motives and what underlay the many times he spotted her off for an evening or weekend by taking the boys away. She wrestles with tremendous guilt for failing her sons. When her sons "were processing the fact that there was no longer a father in our home" and she, their sole caregiver, was "running on empty", H.P. betrayed them all. Her life and the family's already fragile foundation was devastated by her sons' inexplicable anger, defiance, frustration, lack of self worth, withdrawal, suicidal ideation and drug dependence. She described the ordeal as a "very long and devastating journey."

S's Father's Victim-Impact Statement

i. S's father has known H.P. for forty-three years and H.P. was best man at the father's wedding thirty-three years ago. He described how he and his wife have been wracked by guilt over what happened to their son and how their daughters, S's sisters, who do not even know that their brother was one of H.P.'s victims, had their belief in human goodness undermined by news of H.P.'s crimes.

Background Information on the Defendant

[5] H.P. was in his mid-forties when he started to abuse his three nephews and S. He is now fifty-nine years old. He is one of six children, brought up in a normal family environment, although his family was never well off. He is not close to his siblings. He told the probation officer that he was himself sexually abused by two close relatives when he was twelve or thirteen years old, but stressed that that could in no way justify what he had done. He lived at home until he was twenty-five years old and has generally been employed, describing himself as a workaholic.

[6] The author of the pre-sentence report described H.P. as cooperative, forthcoming and apparently possessed of insight into the impact of his offences and the need for treatment both in and out of custody.

[7] H.P. was assessed by Dr. Robert Dickey of the Centre for Addiction and Mental Health. H.P. told Dr. Dickey that he has had about eight adult male sexual partners in his life, but he found those relationships less than satisfying. Throughout his life his maximum sexual arousal has been toward immature males, ideally around the age of fourteen, which is around the mid-point of the boys' ages when he abused them. Phallometric evaluation, which Dr. Dickey described as 96% reliable, confirmed that H.P. suffers from pedohebephilia, as he had himself described. H.P. said that he was not intoxicated when he committed any of the offences.

[8] Dr. Dickey described H.P. as "friendly, cooperative and appropriate" during the interview and said that he expressed a wish to engage in treatment for his pedohebephilia. He described H.P. as coming across as pro-social. He also noted that there is no known treatment to change a person's sexual preference, but concluded that H.P. would be a good candidate for relapse prevention treatment in light of his insight. Dr. Dickey noted that such treatment is available through both the federal and provincial correctional systems.

Credit For Pre-Sentence Custody

[9] H.P.'s counsel submitted that H.P. should get a year of credit for eight months of pre-sentence custody, citing the recent decision of the Court of Appeal for Ontario in R. v. Summers in support of that position. There were a few appearances on this plea and sentencing so the applicable numbers have changed, but Mr. Goodman's basic position was that I should grant the maximum 1.5: 1 credit allowed under the "Truth in Sentencing" Act's amendments to the Criminal Code for H.P.'s entire time in pre-sentence custody. Ms. Brun for the Crown, took the position that while some enhanced credit should be given since H.P.'s desire to resolve the charges may have been delayed by the ongoing investigation into his offences against S, enhanced credit should not be given for the entire period H.P. spent in custody before today.

[10] After the enactment of the "Truth in Sentencing" Act, courts diverged on the issue of whether "exceptional circumstances" were now required in order for a person to qualify for the new maximum 1.5:1 credit for pre-sentence custody. R. v. Summers was the first occasion for the Court of Appeal for Ontario to address that issue. The court clearly rejects the idea that only "exceptional" circumstances could justify enhanced credit under the new scheme. Thus, the availability of enhanced credit for, among other things, the fact that a remand prisoner does not earn remission of sentence and has reduced access to programmes is a relatively routine consideration that a sentencing judge can consider when deciding what credit to give. The Court of Appeal also states that the demonstration of circumstances justifying enhanced credit need not be an overly onerous challenge. That said, the determination of how much credit to give, like the sentencing process itself, is a blending of rationally-based decision making and judicial discretion to suit all the circumstances of the case.

[11] As of the date of sentencing, H.P. has 9 ¾ months of pre-sentence custody. Given his plea of guilty and his professed remorse, he is a prisoner who would likely benefit from remission after I impose sentence. He was not held in the general population at the institution, but there is little on the record before me to assess the impact of that factor on H.P. I also note that a 59 year old first-offender might benefit from being incarcerated out of the general population and that the fact of his separation from the general body of prisoners was a foregone conclusion based on the nature of the long series of offences he committed. Finally, in the new structure that Parliament has dictated, the maximum credit a court can give is 1.5:1. If courts routinely grant the full 1.5:1 credit, there is then effectively no room to recognize those prisoners whose pre-sentence custody conditions have been particularly egregious, such as long-term double-bunking, high-frequency lockdowns and the like.

[12] When I consider all of the circumstances, I am of the view that H.P. is entitled to some enhanced credit for his time in pre-sentence detention and I credit him with the equivalent of 12 months, which is just shy of a ratio of 1 ¼: 1.

What Is A Fit Sentence?

[13] The determination of a fit sentence is probably the most challenging task a trial judge faces. Valid, but often competing or even conflicting, principles of sentencing must be blended into a composition that also takes into account the precise facts and impacts of the case and the virtues and failings of the defendant.

[14] There are certain positive factors in relation to H.P. First, I note that, at the age of 59 he has no previous criminal record. He has also pleaded guilty, a factor of considerable significance insofar as it expresses remorse and spares his four victims from having to testify and re-live their experiences at trial and/or a preliminary hearing. The credit to be given for a plea in cases of this nature should not be understated. He has expressed a willingness to undergo treatment. He agreed to phallometric testing as part of the assessment process he has undergone, which many defendants resist. He appears to have some insight into the impact of his offences and is described as having a low to moderate likelihood of re-offending.

[15] I have commented that H.P. has no previous criminal record. As with many factors considered in selecting an appropriate sentence, the amount of weight to be given to this factor may vary with the context. Thus, it may have its greatest weight for a mature defendant who has committed an isolated act that is out of character, but have less weight for an offender such as H.P. whose "first offence" is actually a long series of offences for which he avoided detection for a long time. In R. v. R.T.M. [2008] ONCA 47, the Court of Appeal for Ontario observed:

[4] The respondent was a first offender because his historical criminal conduct had not been discovered and punished before he was charged with the first set of offences. He is not a person who committed an isolated criminal act that is entitled to greater leniency.

[16] There are obviously significant aggravating factors in the present case, including the following:

a. I do not think that anything hinges on whether or not H.P. was in loco parentis to his three nephews. H.P. was clearly in a position of trust in relation to those three boys.

b. Whether or not H.P. was in a similar relation of trust to S, the relationship between H.P. and S's parents was such that it came very close to the same thing.

c. Quite apart from the aggravating factor of the family relationship, H.P.'s predation focused on his nephews at a time when they and their mother were at their most vulnerable, having lost their father and husband to a long battle with cancer. The chronology makes it clear that H.P. did not wait long after the father's death before moving in on his prey. It is hard to imagine a breach of trust more odious than this, having regard to its context, its timing and its scope.

d. On at least one occasion, H.P. used the fruits of his abuse of one boy, the film of S masturbating, in the course of his abuse of one of the nephews. The agreed statement of facts is ripe with other examples of grooming on H.P.'s part, through gifts, compliments, the denigration of women compared to men and the use of pornography.

e. The abuse occurred over a very long period of time. If one were to calculate it in total person-years, by my arithmetic it comes to a total of eighteen years.

f. Those eighteen years are obviously not calendar years because there was significant overlap in H.P.'s abuse of the boys. He abused the twins over roughly the same period as each other. It was during that time that his shorter interference with S took place. By the time he gave up on his abuse of the twins, H.P. was already well into his very long abuse of the younger nephew.

g. Although the precise nature of H.P.'s involvement varied from boy to boy, there were multiple instances of abuse, in some instances seemingly too many to enumerate.

[17] In her submissions, Ms. Brun asked me to consider not only the caustic impact of H.P.'s crimes on the four boys, but also the ripple effect on their parents, siblings, spouses and children. This impact is eloquently spoken to in the victim-impact statements of the nephews' mother and of S's father. Even now, S and his parents are keeping H.P.'s abuse of S a secret from S's sisters. Nobody is entitled to second-guess that choice, but the fact that S and his parents have had to make that choice and live with it is itself one of the lingering consequences of H.P.'s acts.

[18] Neither the direct and long-term impacts of H.P.'s offences on the boys nor the broader "ripple" effects was even remotely unforeseeable. For three of the victims, H.P. was a member of the family and the boys' universal manifestations of dysfunction cannot have been a secret to him, even as this unholy trinity of woes that H.P. had wrought perplexed the boys' own mother. H.P.'s awareness of the impact of his shorter-term abuse on S may have been somewhat more attenuated, but I note that Dr. Dickey described H.P. as cognitively aware and said that his manner of expression exceeded his formal education. It is inconceivable that any intelligent adult in the past two decades could have been unaware of the complex litany of long-term consequences that routinely beset victims of childhood sexual abuse.

[19] As I have said, I accept Ms. Brun's "ripple" characterization as apt. It describes the progression of consequences from the initial acts through the various forms of suffering and various layers of victims. Suitable as the "ripple" analogy is for some purposes, however, there is something much too placid about the term to convey the brutality and wantonness of H.P.'s acts. The emotional scars and bruises, the feelings of worthlessness, the addiction and suicidal ideation, the parental guilt, are no less scars and bruises for the fact that they left no direct physical marks. Indeed, physical injury might have been much less harmful in the long-term. Given, especially, the vulnerability of his late brother's family, H.P.'s actions were the emotional equivalent of a fighter pilot strafing a refugee camp.

[20] The Crown and defence stand far apart in their views of the appropriate sentence for H.P. Each has referred me to numerous authorities supporting their respective positions and has pointed out the similar and distinguishing features of those cases as compared to the case before me. I have reviewed all of those decisions, but do not propose to address each of them here. Some of the decisions deal with markedly different facts; in others of the trial decisions, I find the outcomes somewhat perplexing. Ultimately, however, the determination of an appropriate sentence is both largely subjective and case-specific. The general principles, however, are to be found in the guidance of the Court of Appeal and to a lesser extent in those other trial decisions.

[21] To some extent, the determination of a fit sentence does involve a certain amount of ticking off of boxes, but it is not an arithmetical process and it cannot be said in the abstract that one type of misconduct is definitively more deserving of punishment than another. For example, some of the cases cited involved sexual intercourse, while the present case does not. Some of those cases, however, involved fewer victims or fewer acts or a shorter period of time or a less vulnerable victim or a conviction after trial. At the end of the day, the challenge lies in measuring all of the features of a case, mitigating and aggravating, and assigning that case a particular position on the sentencing range.

[22] I have found the greatest guidance in two decisions of the Court of Appeal for Ontario a decade apart, namely R. v. D.D. and R. v. D.M., both of which dealt with convictions after trial, which is an obvious distinction from this case. D.D. dealt with a defence appeal from a sentence of nine years. D.M. was noteworthy insofar as it was a Crown appeal in which the Court of Appeal intervened to more than double the sentence, from three years to seven years. The fact that the Court of Appeal intervened so significantly in D.M., a degree of intervention that is rare indeed, is a forceful sign to trial courts dealing with cases such as this. The fact that the panel in D.M. endorsed the sentencing principles enunciated in D.D. and outlined the staying power of those principles through a decade of Court of Appeal authority, is a matter of no small significance.

[23] One could engage in prolonged volleying back and forth about which facts in those two cases are less or more aggravating than the present case and which factors are less or more mitigating. Thus, D.M. involved over a hundred acts of intercourse, and there is no intercourse here, but on the other hand this case involves four victims rather than one, over a longer period of time and typically at a younger age. Am I to draw a material discrepancy between the vulnerability of the victim in D.M. as an immigrant dependent on her abusive uncle and the vulnerability of the three fatherless nephews in the present case? D.D. has significant similarities to this case insofar as it involved four victims and periods of abuse from two to seven years. It also involved a position of trust, but arguably not the particular vulnerability of the three nephews. It is fair to say that D.D. involved more physically intrusive sexual acts and younger victims, but the counterpoint to that comparison might lie in the Court of Appeal's comment that D.D.'s nine-year-and-one-month sentence (after trial) was "at the lower end of the range for crimes as grave as those committed by the appellant."

[24] Parliament has spoken in s. 718.2 of the Criminal Code to define aggravating factors on sentence. The facts of the present case trigger three of those criteria, namely abuse of a position of trust, abuse of four people under the age of eighteen and the fact, "that the offence had a significant impact on the victim(s), considering their age and other personal circumstances, including their health". Health includes emotional health.

[25] The Court of Appeal has consistently spoken of the need to place denunciation, separation of offenders from society and specific and general deterrence at the forefront of the calculation of sentence for offences of this nature, notwithstanding the existence of competing sentencing considerations. In D.D., Moldaver, J.A. (as he then was), made the following observation, in words that ring no less true a decade later and in words that are eerily reminiscent of what I have heard in the course of this sentencing hearing:

[45] The appellant was prepared to risk the lives of innocent children to satisfy his sexual cravings. His conduct was reprehensible and it must be condemned in the strongest of terms. The harm occasioned by the appellant and others like him 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!

[26] It is a fundamental principle of sentencing that a person who has pleaded guilty, should receive a significant mitigation of sentence from what would be the appropriate sentence if he had gone to trial. This idea is rooted in considerations both principled and pragmatic — the plea may demonstrate remorse and insight, it will certainly save victims inconvenience and stress and it will relieve pressures on the court system. While the degree of mitigation may vary with the circumstances of the case, some of the authorities suggest that a one-third reduction of sentence may be appropriate for a guilty plea. When I am conducting judicial pre-trials and am faced with a sentencing position that strikes me as unrealistic, I often challenge counsel to do the math and ask themselves, "if you say this deserves X years on a plea, are you saying that after a trial you could realistically expect 1 ½ X for sentence?" The question usually answers itself. When I apply that same check-measure to the present case, I ask myself whether or not H.P.'s offences, after trial would justify a sentence in the range of seven to seven-and-a-half years. When I compare the facts of this case overall to the Court of Appeal outcomes in D.D. and D.M., the question answers itself.

Conclusion

[27] Taking into account the facts, the aggravating and mitigating circumstances and the particular emphasis dictated by the Court of Appeal for offences of this nature, I am satisfied that the position advanced by the Crown is a fundamentally fair position and that it gives full credit to all that can be said in H.P.'s favour including significant value for his plea of guilty. I am satisfied that the appropriate sentence is a sentence of five years in the penitentiary, less credit for the equivalent of one year of pre-sentence custody, leaving a sentence of four years to be served.

[28] The issue of ancillary orders was not fully addressed at sentencing, so I shall hear from both counsel on those issues momentarily.

[29] Pursuant to s. 486.4 of the Criminal Code, I order that no information that could directly or indirectly identify any of the complainants shall be published in any document or broadcast or transmitted in any way. It is a criminal offence to violate this order.

Released: 9 April 2013