WARNING
The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
Court Information
Court File No.: Toronto Region
Date: 2016-01-14
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Valentine Ngoddy
Before: Justice Carol Brewer
Heard on: December 9, 2015
Reasons for Judgment released on: January 14, 2016
Counsel:
Iain Sunderland for the Crown
Daniel Etoh for the defendant, Valentine Ngoddy
Reasons for Judgment
Introduction
[1] On October 13, 2015, following a summary conviction trial, Valentine Ngoddy was found guilty of sexually assaulting MGW. I heard submission on sentence on December 9, 2015. These are my reasons for sentence.
[2] The offence occurred between January 14 and 15, 2014, when the defendant was working as a staff member at a group home run by the Reena Foundation. At the time of the offence, Mr. Ngoddy was working two nights a week at the residence. MGW was the sole female resident of the group home.
[3] The complainant is a very vulnerable person. She suffers from autism, severe anxiety disorder, bipolar affective disorder, obsessive-compulsive disorder and behavioural problems. Ms. MGW also has a developmental disability.
Facts Relating to the Offence
[4] MGW is 28 years old. She was diagnosed with both mental health and developmental disabilities when she was four years old. The complainant resides in a group home with four other adults, where she was placed in 2011. MGW has her own room, which is locked from the outside but can open from the inside. Each of the complainant's primary caregivers has a key to MGW's room. In addition, there is a key to the complainant's room placed in a specific location for the use of other staff members.
[5] The complainant has one on one care from a personal support worker from 7:30 a.m. to 11:00 p.m. on weekdays and 9:00 a.m. to 5:00 p.m. on weekends. She attends a day program, along with her support worker, on weekdays between 9:00 a.m. and 2:50 p.m.
[6] There is a single staff member on overnight duty from 11:00 p.m. to 9:00 a.m. That staff member checks on the residents to ensure they are sleeping, cleans the house, bathes clients or prompts them to bathe and prepares the residents to attend the day program.
[7] On January 15, 2014, MGW and her caregiver, Shree McIntosh, were at the day program. Just before lunch the two women went to the bathroom and entered separate stalls. No one else was present. In a statement, which I admitted for its truth, the complainant told Ms. McIntosh that the defendant had kissed her breasts, touched her vagina and placed his penis on her body.
Facts Relating to the Victim
The Complainant's Condition
[8] Cognitive testing shows that MGW has an IQ score in the extremely low range (2nd percentile). Her verbal intelligence is at the extremely low range and her performance IQ is in the low average range. She has "severe" impairment of the ability to use language and to reason using words. By contrast, her non-verbal ability, such as visual-spatial reasoning, is in the high average range. This gives her a strong "capability of visually analyzing the environment and drawing knowledge from it", even though she cannot express it verbally. She has poor working memory and processing speed.
[9] The complainant can function in the basic skills of living like an average adult, but cannot live on her own because of her emotional and behavioural problems. In language she functions like someone "four, five, six years old".
[10] When confronted with a traumatic or emotional significant event, an autistic person such as MGW can develop compulsive verbal behaviour and repetitively revisit the situation. Both of the complainant's personal care workers described how MGW frequently raised the allegations of sexual assault, in which she repeated the nature of the touching and asked, "Why did he do it?"
[11] Prior to the alleged offence the group home staff described MGW as "friendly", "happy" and enjoying community outings. Her mother commented that the complainant had made tremendous progress at her group home: she was calmer, her behaviour improved, she was able to go out in the community in the company of her support worker and to do volunteer work.
[12] Following this incident, the complainant's behaviour regressed significantly. In the group home setting her old behaviours re-emerged. She became distressed, anxious, agitated and hyper. The complainant would display her anxiety by tensing up, hyperventilating and jumping up and down. MGW is more violent, lashing out at people, including her family and caregivers. The complainant has returned to smearing things with saliva. Her obsession with women's clothing and hair has come back. MGW does not want to eat and has lost 10 pounds from her 110 pound body. The complainant has stopped making eye contact. She has more trouble sticking to one subject when she communicates. MGW is unable to enjoy previous activities, such as going shopping or eating in a restaurant. In the words of her support worker, the complainant can no longer "enjoy what is in front of her". She has missed appointments with her therapist because of hysteria. The complainant has been showing signs consistent with depression.
Victim Impact
[13] MGW is not able to express the effect that this offence has had on her life. However, I have had the benefit of receiving victim impact statements from her family and from her caregivers, Susanna Gordon and Shree McIntosh. Those statements detail the impact that this offence has had on MGW and, correspondingly, on them. I have also seen a short note from MGW herself.
[14] On behalf of the defendant, Mr. Etoh has expressed the concern that some aspects of these statements go beyond the proper parameters of a victim impact statement as described in R. v. McDonough and McClatchey, [2006] O.J. № 2199 (S.C.J.). To the extent that the statements have strayed beyond what is permissible, I have disregarded them.
[15] Since the verdict, MGW's condition has continued to decline. She has become more distressed and her behaviour has been even more problematic. MGW says that she is "angry". Her worker describes the complainant as an "emotional wreck" and as having lost interest in her health and happiness. MGW frequently mentions the defendant and asks where he is. She has talked about fleeing the city to avoid the defendant and has projected her fears for her own safety onto other women. More disturbingly, M. has been talking about killing herself and has asked her mother to hide the scissors, knives and even jewellery when she is visiting in order to prevent her from harming herself. When asked why she is thinking of this, MGW says that it is because of the defendant and how he hurt her. The complainant blames herself for the offence and says it occurred because she is pretty. She has told staff members that she does not want to be pretty anymore.
[16] The complainant's loved ones have been distressed, depressed and discouraged by how much she has regressed in her progress and how challenging her life has become as a consequence of the offence. They are worried about her mental state, her safety and her future. They feel anguished, guilty and helpless in the face of her suffering. MGW's mother says that she has "lost the fun, spunky daughter that M used to be." The complainant's sister has needed weekly counselling in order to help her to address this situation.
Facts Relating to the Offender
[17] Valentine Ngoddy is 54 years old. He was born in Nigeria. Mr. Ngoddy is one of five children, who were brought up in a stable and supportive family. The family experienced some financial hardship after his father died in 1976. His mother passed away in 2008. He enjoys a close relationship with his siblings, who live in Nigeria.
[18] The defendant has no criminal record.
[19] Mr. Ngoddy graduated from college with a degree in civil engineering. He worked in this profession for 14 years in Nigeria. After immigrating to Canada in 2001 the defendant was employed by a construction company responsible for building gas stations in the greater Toronto area. Because his engineering degree was not recognized in Canada, Mr. Ngoddy returned to school. Initially he took engineering courses. The defendant subsequently studied nursing at Trent University. However, while he completed the course work, Mr. Ngoddy failed his final placement. Since leaving the university, the defendant has found steady temporary work in the field of nursing. Mr. Ngoddy has also been a qualified real estate agent since 2009. He has worked in this capacity on a part-time basis since 2009.
[20] I have received letters of recommendation from Mr. Ngoddy's employer at RM2, where he is considered an "exceptional die technician", and from Home Life GTA Realty, where he has taken on a leadership role and is viewed as an "extraordinary asset" to the company.
[21] The defendant met his wife when he was 25 years old. The couple, who married in 1992, have one child together. After arriving in Canada their relationship was strained for a period of time, while both of them worked part-time as well as pursuing their studies. They separated briefly before reconciling. Their 23 year marriage, since this period of difficulty, is strong, loving and healthy.
The Position of the Parties
[22] On behalf of the Crown, Mr. Sunderland is seeking a jail sentence of 12 to 14 months, followed by 3 years probation. Mr. Etoh urges me to impose a conditional sentence of 6 to 8 months.
Analysis
The General Principles
[23] Section 718 of the Criminal Code provides, in part, that "the fundamental purpose of sentencing is to contribute … 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 [six] objectives". Those objectives include the denunciation of unlawful conduct, deterrence of the offender and others who might be tempted to commit similar offences, rehabilitation, and the promotion of a sense of responsibility in the offender. Whatever sanction is imposed "must be proportionate to the gravity of the offence and the degree of responsibility of the offender": section 718.1.
[24] How much emphasis is placed on each of the sentencing objectives will vary according to the nature of the crime and the circumstances of the accused. However, the principles of denunciation and deterrence take on particular significance in a case of this kind and, in addition to rehabilitation, are the predominate sentencing considerations.
Aggravating and Mitigating Circumstances
[25] There are a number of circumstances in this case that make the offence of sexual assault particularly troubling. In this connection, the following aggravating factors are significant:
This was a gross breach of trust on the part of the defendant, who was acting as a caregiver in a group home. A resident of such a facility is entitled to have confidence that the caregiver assigned to look after her will not molest her;
The defendant's conduct was invasive of MGW's privacy. It violated her emotional well-being, as well as her sexual autonomy and integrity;
The complainant is exceptionally vulnerable. Mr. Ngoddy knew this and took advantage of her condition;
MGW was sexually assaulted in her own locked room, where she was entitled to feel safe and secure;
The sexual assault occurred during the night-time hours when the defendant was the sole staff member on duty. He exploited a situation in which there was less likelihood of detection; and
The offence has had a tremendous negative impact on both the complainant and her family.
[26] At the same time there are a number of mitigating circumstances here, including the following matters:
Mr. Ngoddy is a mature first offender, with no criminal record;
Prior to this offence, the defendant lived a pro-social life. As set out in his positive pre-sentence report, he has been gainfully employed for many years, has updated his education and is a devoted family man;
The abuse was restricted to a single incident;
There are long-term professional consequences to the defendant, who will not be able to work in a nursing or caregiver capacity and who will likely lose his real estate licence; and
The defendant spent one day in pre-sentence custody and has been the subject of a recognizance for the past two years. While the conditions of the recognizance were relatively strict, they did not include a house arrest term, as was the case in R. v. Downes, [2006] O.J. № 555 (C.A.).
[27] In light of his position that he did not commit this offence, Mr. Ngoddy is precluded from relying on remorse or insight as mitigating circumstances. However, the fact that he continues to maintain his innocence cannot be converted into an aggravating factor: see, e.g. R. v. Valentini et al., (1999), 132 C.C.C.(3d) 262 (Ont. C.A.); R. v. Giroux (2006), 207 C.C.C.(3d) 512 (Ont. C.A.); R. v. C.B., 2008 ONCA 486.
The Case Law
[28] Every sentencing decision turns on the facts of each individual case. However, section 718.2(b) of the Criminal Code states that in sentencing an offender, the court shall take into consideration the principle that "a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances." Among the available sentencing jurisprudence, I have found the following cases to be of some assistance:
R. v. Ashley-Pryce, 2004 BCCA 531 -- a defence appeal from an 18 month custodial sentence was dismissed. A 35 year old care facility worker pleaded guilty to an offence of sexual exploitation arising from an incident where he was found masturbating while holding the hand of an Alzheimer's patient.
R. v. Alasti, 2011 BCSC 824 -- an unlicensed massage therapist employed in a spa received a total sentence of 18 months jail for two sexual assaults committed against two female patrons. The conduct did not involve sexually offending against the vulnerable. A summary conviction appeal was dismissed.
R. v. West, 2007 ABCA 67 -- in a Crown appeal, a 12 month custodial sentence was substituted for an 18 month conditional sentence. The offender, a male nurse with no criminal record, fondled the victim's breast and ejaculated in her hand after administering pain medication to her in a hospital setting. The offence was an isolated incident. The accused pleaded guilty. He lost his job as a result of the offence, creating a hardship for himself and his family. The Court of Appeal found that a custodial sentence was necessary to generally deter and denounce crimes of this kind involving the abuse of a position of trust.
R. v. Aguas, 2015 ONSC 5732 -- the accused was a registered nurse who was found guilty of voyeurism and sexual assault against two patients. One victim attended the hospital after being thrown from a vehicle by her ex-boyfriend. The accused took photos and videos of her naked body, with focus on her breasts and genitals, and touched her for a non-medical purpose. The victim believed that the accused was documenting her injuries for the police investigation. The voyeurism offence involved taking a photograph of the bare breast of a sleeping patient, who was in the hospital following a suicide attempt. The offences had a significant emotional impact on the victims. The 48 year old accused had no criminal record. The offences were shockingly out of character. The accused had a supportive family, was married with adult children, was now unemployed and facing the loss of his nursing licence. A sentence of 14 months incarceration, less credit for pre-sentence custody and house arrest, was imposed along with 3 years probation.
[29] In support of his request for a conditional sentence, Mr. Etoh relies upon the case of R. v. Thompson, 2010 ONCJ 399. The accused was convicted of two counts of sexual assault and one count of invitation to sexual touching against a 9 year old child. The offences involved fondling the victim's breast area and buttocks and inviting her to rub his stomach. At the time of the offences, the accused had assumed the role of an adopted grandparent and was in a caregiver position with respect to the victim. The entire family of the victim was deeply affected by the offences. The accused was 73 years old with serious health problems. The health of the offender's wife was also poor and she was dependent on him. As a result of phallometric testing, the accused was considered to be a low risk to reoffend. With respect to the charges of sexual assault, an 18 month conditional sentence was imposed. In imposing the conditional sentence, the trial judge recognized that, while available, such a sentence is rarely granted in the case of sexual assaults involving a breach of trust. However, she imposed such a disposition because the offender was "elderly, in poor health and posed little risk to children or society in general". Those evidentiary factors are not present in Mr. Ngoddy's case.
[30] I am also aware of the case of R. v. Buna, 2010 BCCA 53, where a chiropractor was sentenced to 3 concurrent 9 month conditional sentences for 3 sexual assaults. The conduct involved touching the breasts and buttocks of patients who attended for treatment. A defence appeal from sentence was dismissed, with the court finding that the sentence was at the low end of the applicable range. There was no evidence of devastating victim impact in that case, unlike the situation with MGW.
The Appropriate Quantum of Sentence
[31] In the circumstances of this case, I am not satisfied that a conditional sentence, served in the community, would be "consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2" of the Criminal Code. As was noted in R. v. Proulx, [2000] S.C.J. № 6 at ¶22, a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence." However, in this case, I am not satisfied that even a punitive and restrictive conditional sentence would proportionally reflect the gravity of the offence and provide the necessary elements of denunciation and deterrence. As the court also observed in R. v. Proulx, at ¶114, where the sentencing principles of "denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction," and this may be so "notwithstanding the fact that restorative goals might be achieved by a conditional sentence." See R. v. R.A.R., 2000 SCC 8, [2000] 1 S.C.R. 163 at ¶2, 24-33.
[32] Having taken into account the nature of this offence, the sentences meted out in similar cases, the aggravating and mitigating factors in this case and the principles of sentencing to be applied, I believe that an appropriate sentence is 13 months incarceration, to be followed by 3 years probation.
[33] The probation order is to contain the mandatory terms set out in section 732.1(2) of the Criminal Code and the following additional terms:
Mr. Ngoddy will report within two working days of his release from custody to a probation officer and thereafter as directed by his probation officer;
Live at an address approved of by his probation officer;
Possess no weapons as defined by the Criminal Code;
Not to have any contact, directly or indirectly, with the complainant or any member of her family;
Not to be within 250 metres of the complainant or any member of her family or any place they live, work, go to school, volunteer or anywhere the offender knows they happen to be;
Attend and actively participate in any assessment, counselling or rehabilitative programs directed by his probation officer for sexual behaviours;
Sign any release of information forms or provide proof to his probation officer that he has attended at and successfully completed the above programs; and
Not to engage in any employment or volunteer work involving the supervision of vulnerable people.
[34] A weapons prohibition order is made pursuant to section 110 of the Criminal Code for a period of 10 years.
[35] Sexual assault is a primary designated offence for the purpose of the DNA provisions of the Criminal Code: section 487.04 (a)(xi.3). Accordingly, an order will go authorizing the taking of a DNA sample.
[36] Sexual assault is also a designated offence for the purpose of the Sex Offender Information provisions of the Code: section 490.011. Accordingly, Mr. Ngoddy is to comply with the terms of the Sex Offender Registration Act for 10 years: section 490.013(2)(a).
[37] Pursuant to section 737 of the Code, there will be a victim surcharge of $100.
[38] I am grateful to counsel for their assistance in this case.
Released: January 14, 2016
Signed: Justice Carol Brewer
