WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: August 21, 2015

Court File No.: Lindsay 14-1036

Between:

HER MAJESTY THE QUEEN

— and —

KEITH HIRSTWOOD

Before: Justice S. W. Konyer

Heard on: July 3 and August 21, 2015

Reasons for Judgment released on: August 21, 2015

Counsel:

• Ms. F. Hawthorn — counsel for the Crown
• Mr. F. Davoudi — counsel for the accused Keith Hirstwood

KONYER J.:

Facts and Guilty Pleas

[1] Keith Hirstwood pled guilty on July 3, 2015 to three counts relating to sexual offences against the victim in this matter, H.P. These offences occurred in September, 2014, when Mr. Hirstwood was 33 years old and H.P. was 13 years old. Mr. Hirstwood pled guilty to sexual interference and invitation to sexual touching, contrary to sections 151 and 152 of the Criminal Code from September 1, 2014, and to a further count of sexual interference on September 8, 2014. He entered his guilty pleas on the date scheduled for the commencement of his preliminary inquiry. After his pleas were entered, the sentencing hearing was adjourned to allow for the preparation of a pre-sentence report and victim impact statement.

[2] As the Crown has proceeded by indictment on these matters, each offence carries a maximum sentence of 10 years imprisonment and a mandatory minimum sentence of 1 year imprisonment. The Crown seeks a global sentence of 5 years, while the defence argues that a global term of two years less a day is a fit and proper sentence. Both counsel agree that Mr. Hirstwood should receive credit for pre-sentence custody of 345 days he has served since his arrest on September 11, 2014.

Sentencing Principles

[3] As sentencing is a fact-specific exercise that is designed to achieve a sentence which is proportionate to the gravity of the offence and the offender's degree of moral culpability, a review of the circumstances of the offence, the background of the offender and the impact of these offences on the victim and her family is necessary.

Background of the Offender

[4] H.P. is the child of a couple who are close friends with Mr. Hirstwood and his spouse. Mr. Hirstwood has been in his current relationship for a decade, and is step-father to two daughters of his current spouse, who are now 11 and 12 years old. According to information conveyed by his partner to the author of the pre-sentence report, "both of her girls consider him a father to them as he has been in their life since they were one and two years old respectively."

Circumstances of the Offences

[5] In August, 2014, Mr. Hirstwood began exchanging text messages with H.P. In these messages he began complimenting her body. During a party attended by both families on September 1, 2014, Mr. Hirstwood and H.P. found themselves alone and began discussing having a boyfriend / girlfriend relationship. After driving his own family home, Mr. Hirstwood returned to the vicinity of the party and sent text messages to H.P. inviting her to come to his truck for a sexual encounter. Once she arrived, he complimented her further and they began kissing. Eventually he had unprotected vaginal intercourse with her while she leaned over the hood of his truck. After he ejaculated on the ground, he enticed her to perform fellatio on him.

[6] Over the course of the following days, they continued to exchange text messages. On September 8, 2014, H.P. met with Mr. Hirstwood on her school lunch period. He took her to the home of a client whose house he was doing work on and had unprotected vaginal intercourse with H.P. a second time. He also performed cunnilingus on H.P.

[7] The following day, September 9, H.P.'s mother discovered a text message from Mr. Hirstwood on H.P.'s cell phone. The message included a photograph of Mr. Hirstwood holding his penis. This was not the first photo that H.P. had received from Mr. Hirstwood, and she had also sent him some photos of herself. After her mother discovered the photo, police were notified.

[8] Mr. Hirstwood was arrested on September 10, charged, and released on a Promise to Appear. The following day, he contacted police and confessed to these incidents. In a lengthy statement to police, he admitted knowing what he did was wrong, but also insisted that it was H.P. who was curious about sexual acts and maintained that she had consented to the acts. Mr. Hirstwood was re-arrested and has remained in custody since that time.

Impact on the Victim

[9] The effects of Mr. Hirstwood's actions on H.P. and her family have been profound. H.P. has made a suicide attempt resulting in hospitalization. She has missed significant amounts of school, and she has ongoing issues trusting people. The long-term effects of the abuse that she suffered are still not fully known, but the potentially devastating long-term impacts of child sexual abuse are, sadly, well known to the courts. Though she was not physically scarred by the conduct of Mr. Hirstwood, it is reasonable to expect that the emotional scars left upon H.P. will not fully heal for some time, if ever.

Mitigating Factors

[10] There are two significant mitigating factors present in this case. The first is that Mr. Hirstwood has a previously unblemished record. Not only does he not have any prior criminal conviction, he appears by all accounts to be a person of otherwise good character. He is hardworking, has successfully operated his own business for several years, is a devoted and caring employer, son, spouse and parent. In short, these offences seem to be completely out of character for him. He has no substance abuse issues, was raised in an unexceptional family environment, and there is nothing in his character or background to explain his offending behaviour.

[11] The second relevant mitigating factor is the fact that Mr. Hirstwood entered guilty pleas, thereby sparing the victim the added trauma of having to relive the experience in the courtroom. In cases such as this where the victim is vulnerable, a plea of guilt and admission of responsibility is a significant mitigating factor, and Mr. Hirstwood is entitled to credit for his plea, despite the fact that he did not enter a plea at the earliest possible opportunity. I also accept that Mr. Hirstwood is remorseful for his actions. He did contact the police after his initial arrest and confess his wrongdoing, and he has expressed remorse publicly at his sentencing hearing today. Although his remorse did not materialize until after he was caught, I accept that he is genuinely sorry for his actions.

Aggravating Factors

[12] There are, however, a multitude of aggravating factors present in this case.

[13] First, Mr. Hirstwood abused a position of trust in relation to his young victim. Although I agree with defence counsel that he did not exercise authority over H.P., it seems apparent that he exploited his close relationship between their two families to entice his friend's child into performing sexual acts for his own gratification. His being a close and trusted family friend meant that he was in a position of trust in relation to H.P.: see the comments of the Court of Appeal in R. v. D.D., at para. 7.

[14] Second, the nature of the sexual acts performed is aggravating. Mr. Hirstwood engaged in acts of oral sex as well as unprotected vaginal intercourse with the 13 year old child on both occasions. The sexual touching that forms the basis of these offences was not mere fondling. I cannot accept the argument put forward by defence counsel that his actions are in any way mitigated by the fact that he withdrew his penis from her vagina before ejaculating. If anything, this act by Mr. Hirstwood is demonstrative of the fact that he was simply using H.P. for his own sexual gratification.

[15] Third, the acts were repeated. Mr. Hirstwood engaged in subterfuge on both occasions to get H.P. alone in order to perform sexual acts with her. These events stopped only after H.P.'s mother found naked photos of Mr. Hirstwood on H.P.'s phone and confronted her daughter. The only logical inference available from these facts is that Mr. Hirstwood had every intention of continuing his criminal behaviour towards H.P. had he not been caught.

[16] Fourth, the gross disparity in the ages of Mr. Hirstwood and H.P. is aggravating. She was not close to the age where she could legally consent to sexual acts, and he was 20 years her senior. He was close friend's with H.P.'s stepfather. He himself was a father to two daughters of a similar age. As Mr. Hirstwood admitted to the police in his voluntary interview, he knew that his actions were wrong.

[17] Fifth, there is nothing in Mr. Hirstwood's background that would explain his behaviour. He has not been diagnosed with any sexual dysfunction, and he denies having any deviant sexual interests. He was not himself the victim of any form of sexual abuse, so his behaviour is not a part of a cycle of abuse. Nor is his behaviour the product of an addiction to any substance that would have been responsible for lowering his inhibitions or impairing his judgement. The only logical inference available is that he chose to place his own needs for sexual gratification above the potential for doing harm to the child who had become the object of his desire.

[18] Finally, the harm done to the victim in this case is readily apparent and real. Nor is that fact that significant harm resulted from Mr. Hirstwood's sexual abuse of H.P. surprising. As the Court of Appeal held in D.D., supra, "while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known" [para. 36]. The Court made those comments in 2002, and we as a society well recognize today that child sexual abuse can be devastating for victims, their families, and the community at large.

Sentencing Principles and Precedent

[19] The harm done by this type of criminal behaviour is why significant jail sentences are warranted even for first offenders. As the Court of Appeal held in R. v. Woodward, 2011 ONCA 610, at para. 76: "when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate predators from society for society's well-being and the well-being of our children must take precedence."

[20] As with any case, there are competing sentencing principles at play. Mr. Hirstwood is a first offender. The principle of restraint therefore applies and requires that I impose the shortest possible sentence of imprisonment that is capable of satisfying the goals of denunciation, deterrence and the need to separate Mr. Hirstwood from society. The rehabilitation of Mr. Hirstwood in the circumstances of this case is not the primary objective of the court's sentence. Rather, the primary objective is to denounce this unlawful conduct, the repeated and serious sexual abuse of a vulnerable child to whom Mr. Hirstwood stood in a position of trust. This can only be achieved, in my view, through a substantial period of incarceration.

[21] In R. v. Woodward, 2011 ONCA 610, the Court of Appeal upheld a 5 year sentence for the sexual assault of a 12 year old victim, noting that "adult predators who seduce and violate young children must face the prospect of a significant penitentiary term" and holding that such offences "will typically warrant mid to upper level single digit penitentiary terms" [para 75]. No two cases are identical. While it is true that Woodward only assaulted his young victim once while Mr. Hirstwood repeated the sexual abuse of his victim, it is also true that Mr. Hirstwood entered a plea and unlike Woodward, did not have a criminal record. In my view, a sentence of 5 years jail for Mr. Hirstwood is appropriate and I am unable to justify a shorter sentence on any principled basis, despite the lack of a prior criminal record.

Calculation of Sentence

[22] I will credit Mr. Hirstwood at the rate of 1.5 days for each day of pre-sentence custody he has spent since his arrest. This works out to just over 17 months, which I will deduct from the overall sentence of 5 years, or 60 months jail.

[23] Accordingly, on the first count pled to, Mr. Hirstwood is credited for 345 days of actual pre-sentence custody. He is credited for 510 days for that period. In addition to the pre-sentence custody, the sentence on that count is one month jail.

[24] On the second count pled to, the sentence is 18 months jail consecutive.

[25] On the third count pled to, the sentence is 24 months jail consecutive.

Ancillary Orders

[26] I will make the DNA order sought by the Crown. I will make an order pursuant to s.743.21(1) of the Criminal Code prohibiting communication between Mr. Hirstwood and the victim, H.P. I will make an order pursuant to s.490.012 of the Criminal Code requiring Mr. Hirstwood to comply with the Sex Offender Information Registry Act for life. I am required to make this order for life – see s.490.013(3).

[27] I will make the order sought pursuant to s.161(a.1) of the Criminal Code prohibiting Mr. Hirstwood from being within two kilometers of the dwelling house of H.P. for life. I will make an order pursuant to s.161(b) prohibiting Mr. Hirstwood from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards a person under the age of 16 years for a period of 10 years. I decline to make the orders sought pursuant to paragraphs 161 (a) or 161(c) of the Criminal Code. In my view, they would unduly interfere with Mr. Hirstwood's prospects for rehabilitation after he has served his jail sentence.

Victim Surcharge

[28] Finally, I am required by law to impose victim surcharges in the amount of $200 for each offence, for a total of $600, with 60 days to pay.

Released: August 21, 2015

Signed: Justice S. W. Konyer