Court Information
Court File No.: NR16-1260
Date: December 6, 2016
Ontario Court of Justice (at St. Catharines, Ontario)
Parties
Between:
Her Majesty the Queen
- and -
A.V.
Counsel
Ms. P. Vadacchino for the Crown
Mr. J. Lefurgey for A.V.
Publication Ban
An order has been made under s. 486.4 directing that any information that could identify the victim, T.S., shall not be published in any document or broadcast or transmitted in any way.
Before
Nadel, J.
Reasons for Sentence
Introduction
[1] In January of 2016 T.S. was a four-year-old child. She was subjected to vile and disgusting acts at the hands of her mother, (who is under charge and in detention,) and, inter alia, at the hands of A.V., who was a boyfriend of the mother for a short period of time.
[2] On July 25, 2016, A.V. pleaded guilty, by indictment, to committing five offences which victimized T.S.; namely:
sexually interfering with her, contrary to s. 151, during the period of January 1 to January 18, 2016;
inviting her to touch him for a sexual purpose, contrary to s. 152, during the same period;
making child pornography in the form of text telecommunications that he exchanged with the child's mother concerning the child, contrary to s. 163.1, during the period of December 21, 2015 and January 10, 2016;
possessing child pornography in the form of text telecommunications about her and in the form of digital image files of her, contrary to s. 163.1, during the period of December 21, 2015 and January 10, 2016; and,
agreeing, by means of a telecommunication, with her mother to commit the offence of sexual interference against the child, contrary to s. 172.2(2), during the period between December 21, 2015 and January 10, 2016.
[3] Each of these offences attracts a one year minimum sentence when proceeded with by indictment.
The Facts Admitted on These Guilty Pleas
[4] Ms. Vadacchino filed a "prosecution summary" as Exhibit "1" on Mr. A.V.' guilty pleas. She then read much of the substance of that exhibit into the record in support of his guilty pleas. What follows is included in that summary.
[5] At the time of these offences Mr. A.V. was 27 years old and lived with his parents. A.S. is the biological mother of the victim, four-year-old T.S.. T.S.'s father is P.R.. Both of T.S.'s parents are charged with numerous offences alleging their sexual abuse of T.S..
[6] Between January 1, 2016 and January 18, 2016, A.S. was involved in a sexual relationship with A.V.. On January 18, 2016, Family and Children's Services (FACS) received information that A.S. and a sexual partner of hers were sexually assaulting T.S..
[7] That information came from the 16-year-old daughter of A.V.' pastor. A.V. had become friends with this young woman and had confided in her. He had disclosed to her that he and the child's mother had committed offences against T.S.. Fortunately, the pastor's daughter contacted FACS to alert them to these crimes. On January 22, 2016, she advised FACS that A.V. was the sexual partner referred to in her January 18th disclosure.
[8] FACS contacted A.V.. He told FACS that T.S.'s mother was sexually abusing her and that the abuse included her performing cunnilingus on T.S. and that she showed T.S. video pornography. During a subsequent telephone call from FACS A.V. told them that he did something to the child, too. In that conversation Mr. A.V. conceded that he was well aware of the consequences of his admissions and that he could be jailed for his behaviour.
[9] FACS then contacted the police. T.S. was interviewed by the police and FACS. In this interview T.S. said that the events she spoke of took place in her mother's bedroom. (She lived with her mother in an apartment in Thorold, Ontario.) A copy of that interview along with a transcript of it was filed as Exhibit "2" on these pleas of guilty.
[10] T.S. disclosed that her mother would lick her vagina and that this happened on more than one occasion. In addition, T.S. would do the same to her mother but not when her mother "was bleeding" (sic). Making allowances for her age and vocabulary, T.S.'s description of her mother's vulva was appropriate. T.S.'s acts of cunnilingus on her mother also occurred on more than one occasion.
[11] T.S. also described digitally penetrating her mother and after doing so both she and her mother would suck on the fingers that T.S. had inserted into her mother. T.S. said that some of these events happened when Mr. A.V. was present.
[12] During these events he would put his penis, which was "squishy and small" into her vagina. He also asked her to touch his penis. She demonstrated how she would use her hands and go up and down on A.V.' penis when he asked her to do that. She said that her mother would also help her to move her hands on A.V.' penis in that fashion.
[13] T.S. stated that she had never disclosed these events to anyone and that her mother had specifically told her never to tell her grandmother because if she disclosed she would be taken away.
[14] As a result of T.S.'s disclosure the Niagara Regional Police Service contacted Mr. A.V. on January 22, 2016. He came down to the station, with his parents, where he was arrested without incident. He has been detained since that date.
[15] A.V. provided a recorded statement to investigators in which he admitted to inserting his penis partway into T.S.'s vagina while he was naked and while he was sucking on A.S.'s breast as he attempted to penetrate the child. He said that T.S. would also be naked and she would also be sucking on her mother's breast at the same time.
[16] He stated that on an occasion during these events, T.S. inserted a purple dildo into her mother's vagina at her mother's instruction. Thereafter her mother inserted the dildo into T.S.'s vagina but her mother retracted the device when the child complained of pain.
[17] A.V. admitted to having T.S. touch his penis with her hands and to having the child put her mouth on his penis and try to fellate him while T.S.'s mother rubbed his shoulders.
[18] A.V. stated that he has always had an attraction to children and that he came forward because he wanted to get help. His DVD recorded interview and a transcript of that interview were filed collectively as Exhibit "3".
[19] Upon her subsequent arrest, A.S. also provided a DVD recorded confession in which she admitted to committing similarly described acts against her child.
[20] Various electronic and telecommunication devices belonging to A.S. and A.V. were seized and examined pursuant to judicial authorizations.
[21] The examination of those devices revealed that during the period between December 21, 2015 and January 10, 2016 A.S. and A.V. made, possessed and distributed between themselves a number of electronically generated communications that met the definition of child pornography as contained in ss. 163.1 (b) and (c) of the Criminal Code.
[22] The communications advocated and counselled the perpetration of sexual offences against T.S.. In those communications the two discussed and agreed to commit acts of sexual interference against T.S.. A binder of these telecommunications was filed and sealed as Exhibit "4" on the guilty plea.
[23] These communications also detail admissions made by Mr. A.V. that he had touched T.S. for a sexual purpose.
[24] In addition to the text messages, the police seized 24 digital image files in the possession of Mr. A.V., on his phone. That phone was seized from his residence after he was arrested and detained. These images depict T.S. and are child pornography. The images display the child's vaginal and anal regions. In addition the child is posed lifting her top to display her chest. In my view, and contrary to Exhibit "1" and the Crown's review of that exhibit, the photographs submitted, (and now sealed once again,) do not depict the child engaging in explicit sexual activity with her mother – unless the photograph of the child touching a person's chest over that person's clothing is what is being referred and, (and that person is the child's mother.)
[25] Upon the Crown's conclusion of this review of Exhibit "1", Mr. Lefurgey, on behalf of Mr. A.V., conceded that the foregoing facts were admitted to be "substantially" correct. Mr. Lefurgey did note, however, that in his submission, the text communications show that Mr. A.V. was not the dominant party to his relationship with A.S..
[26] Based upon Mr. A.V.' five pleas of guilty, together with the exhibits filed, the facts read into the record and Mr. Lefurgey's concession that the facts read into the record were substantially correct, I made findings of guilt and registered convictions on the five counts to which Mr. A.V. pled guilty.
[27] Mr. A.V. was remanded in custody for the preparation of a pre-sentence report and ultimately for the preparation of a psychiatric and risk-assessment report, conducted, on consent, under s. 22 of the Mental Health Act. The jointly agreed-upon assessor was Dr. Derek Pallandi, MD, FRCPC, who was, inter alia, a forensic psychiatrist. Dr. Pallandi's report included his review and commentary on phallometric testing conducted on Mr. A.V. by Mr. Kurt Freund at the Centre for Addiction and Mental Health, in Toronto, on September 21, 2016.
Mr. A.V.' Biography and Personal Circumstances
[28] A.V. was born on […], 1988. He is 28 years old. He was adopted by his parents at ten months of age. His birth mother is, according to Mr. A.V. who met her, low functioning intellectually. He was, he advised the pre-sentence reporter, the offspring of an incestuous incident in his birth-mother's family.
[29] Fortunately, Mr. A.V. was adopted into and raised in a large and religious Christian family environment. He did not excel in school and was subjected to bullying because of his large skull. He acknowledges that he was a "slow learner". While he hated school he managed to graduate from grade 12, despite having to repeat grade one.
[30] He reached puberty at 12 but has only had two adult relationships, the second one being with the mother of the child he abused. He has no prior convictions and no police record prior to being arrested for and pleading guilty to the crimes for which he is about to be sentenced.
[31] Despite his relatively limited education, Mr. A.V. was able to find work, first collecting garbage and then bouncing from job to job including doing roofing and snow removal.
[32] Unfortunately, after he matured and left home to live independently he developed epilepsy. Relatively shortly before these offences occurred, (the time frame was not well-developed in Mr. Lefurgey's submissions,) Mr. A.V. lost his driving privileges due to developing this seizure disorder. As a result, he was unable to work and moved home to live with his parents.
[33] He made the acquaintance of A.S. in September of 2015 at a Tim Hortons outlet in St. Catharines, by coincidence. He was there with his first girlfriend who was acquainted with A.S..
The Sentencing Hearing
[34] Mr. A.V. came before me for sentencing on October 31, 2016. At that hearing a Victim Impact Statement prepared by Ms. Julie Anderson, of FACS, was filed as Exhibit "6". Ms. Anderson is T.S.'s child care worker. In this exhibit Ms. Anderson described her function as being an advocate on behalf of T.S..
[35] In addition to this Victim Impact Statement, the Pre-Sentence Report, prepared by Probation Officer Lisa Smart, was filed as Exhibit "7". Finally, Dr. Pallandi's report, dated October 11, 2016, was filed as Exhibit "8". Upon the completion of these filings I heard the submissions of Ms. Vadacchino and Mr. Lefurgey.
The Sentencing Submissions of the Crown
[36] Ms. Vadacchino advocated for a total sentence range of eight to ten years in the penitentiary, less appropriate credit for pre-sentence custody together with a number of ancillary orders that are not in dispute; viz. (i) DNA; (ii) SOIRA; (iii) s. 109; (iv) s. 161, (v) a forfeiture of Mr. A.V.' phone which contained some child pornography and (vi) a s. 743.21 order, precluding contact with the child and her older sister while Mr. A.V. is incarcerated.
[37] Though Ms. Vadacchino submitted that an eight to ten year range was appropriate, her ultimate submission was that the appropriate sentence ought to total ten years, less pre-sentence custody credit. In support of that position, she, in substance, made the following submissions.
The Consequences of Child Sexual Abuse
[38] The well-known horrific short-term consequences of child sexual abuse are already evident in this child's life. Exhibit "6", the V.I.S., highlights trauma being experienced by T.S. despite having a positive bond with her foster mother. The child is resistant to bathing, is fearful of people, suffers from nightmares and has had soiling and incontinence issues. In addition, she has had to and continues to be subjected to medical examinations and blood tests to insure she has not been infected by any form of sexually transmitted disease.
[39] More significantly, the child has been taught that sexualized behaviours are normal. As a result, she hasn't learned to respect appropriate boundaries in her interactions with others, including other children. Consequently, her ability to socialize with other children has been severely compromised.
[40] In the Crown's submission, the present damage to T.S. is extreme. According to the V.I.S. she has become a source of risk to children her age and therefore her access to age appropriate playmates has been limited, as she had exhibited predatory behaviour. She will require extensive and ongoing counselling.
[41] The Crown submits that the observations of Moldaver J.A. at paragraph [75] of R. v. Woodward, [2011] O.J. No. 216 (C.A.) are apposite: "Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. … [C]rimes like those committed by [Woodward] will typically warrant mid- to upper-level single digit penitentiary sentences."
[42] In short, the sentencing hearing must focus on the trauma this child has suffered. The sentence to be imposed in this case ought to be increased, as required by s. 718.2 (iii.1), to account for the aggravating circumstance that, inter alia, the evidence establishes that these offences have had a significant impact on T.S., given her age and personal circumstances.
The Pre-Sentence Report
[43] The Crown submits that in his comments to the pre-sentence reporter Mr. A.V. failed to acknowledge and take responsibility for his acts; that he attempted to shift the blame for his crimes to the child's mother, whom he described as controlling and abusive.
[44] According to the pre-sentence reporter he "presented himself as the victim in this matter. He asserted the [mother] coerced him into engaging in the offences and he was desperate to keep the relationship going." Ms. Vadacchino urges that his attitude as exemplified by this blame-shifting, diminishes his prospects for rehabilitation, calls into question the honesty of any expressions of remorse and demonstrates a subsisting lack of insight.
[45] While the "facts" are completely opaque, the pre-sentence report relates past family concerns about inappropriate conduct with inappropriately aged partners during his teen years; conduct that resulted in a formal counselling programme. The Crown stresses that we know of this because he talked about it in his police interview. He recounted that his own family required an adult to be present when he visited with his young cousins so that he would not respond to his temptation to "go grab them."
[46] Despite the lack of precision in these recollections by Mr. A.V. or his mother, in the Crown's view Mr. A.V.' denials of being sexually attracted to children, denials that he made to both the pre-sentence reporter and to Dr. Pallandi are very concerning.
[47] The Crown submits one can infer that Mr. A.V. tailored his responses to questions about his attraction to children depending upon the questioner and the situation. The variation in his responses is, in the view of the Crown, a strong indicator that he lacks real insight or remorse and that his prospects for rehabilitation are therefore diminished.
[48] The Crown submits that his denials to the pre-sentence reporter and to Dr. Pallandi of being sexually attracted toward children are selective and should be contrasted with the texts he wrote to the child's mother, (some of which are excerpted later in these reasons,) and to his comments to the police. These contradictions demonstrate a lack of candour. His denials of being sexually attracted to children are untrustworthy. These denials, in the face of his contrary admissions of such an attraction, are evidence of an increased risk to re-offend and evidence of a lack of amenity toward rehabilitation. In the Crown's submission his prospects for rehabilitation are guarded, a characterization voiced by Dr. Pallandi.
[49] In addition to denying what he had elsewhere admitted, both the pre-sentence reporter and his pastor, (Pastor C.,) noted that Mr. A.V. never expressed any remorse for his acts or any comments showing any concern for the well-being of T.S.. This lack of expressed remorse is, in the view of the Crown, an indication of a lack of insight. One does not speak of which one does not think. This is a further indication of a guarded expectation for rehabilitation.
Devaluing the Guilty Pleas
[50] Ms. Vadacchino submitted that while a guilty plea is usually a mitigating feature, in this case Mr. A.V.' guilty pleas are merely neutral as the Crown's case was overwhelming; that these guilty pleas were merely an acknowledgment of the inevitable.
I rejected that submission as it was being made and I reject it as I recount the submission. I shall explain my reasons for doing so subsequently.
Dr. Pallandi's Report
[51] Mr. A.V.' phallometric testing disclosed that his highest response was to depictions of pubescent females but the magnitude of this response was not significantly different from his response to adult females, which was his second highest category of response. His response levels to pubescent but non-adult females did not warrant a formal diagnosis of pedohebephilia. In the result, the test was deemed to be non-indicative of pedophilia or hebephilia.
[52] Despite this result, the Crown submitted that these test results were concerning because Dr. Pallandi opined that while Mr. A.V.' test results, while not definitive enough to support a formal diagnosis of pedophilia, nevertheless demonstrated sexual attraction to those under-aged. The Crown did not note that Dr. Pallandi went on to credit Mr. A.V. with acknowledging that he had a problem and noting that he has been agreeable, thus far, to intervention, management and treatment.
[53] Despite that credit, however, Dr. Pallandi concluded that A.V.' actuarial risk, at a minimum is at least in the "moderate – high" category presently. Moreover, in Dr. Pallandi's opinion, this actuarial risk measure may under-predict his risk of recidivism.
[54] Ms. Vadacchino's submission was that because Mr. A.V. is equally aroused by pubescent girls and adult females he remains a danger even though he has not been formally diagnosed with a paraphilic disorder. Further, given his moderate to high risk of re-offending based upon actuarial projections, the court ought to err on the side of protection of the public in crafting a sentence.
[55] In the Crown's submission this court ought to heed the message and direction of the Court of Appeal in D.D. at paragraph [45]:
45 The appellant was prepared to risk the [life] of [an] innocent [child] 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!
The Two Landscapes
[56] In the Crown's submission, "what's horrible, offensive and depraved about this case" is that this is an instance of a new brand of sexual offending where there is offending on two landscapes – offending on the computer and offending in the real world." Ms. Vadacchino submits that this intersection of computer texts extolling and planning sexual interference that culminated in actual depravity is a form of offending behaviour that needs to be deterred and denounced. In the Crown's submission the facts and acts in this case were anticipated by Justice Molloy's fears in R. v. Kwok, [2007] O.J. No. 457 (S.C.J.).
49 As child pornography has become an increasingly pervasive evil in our modern society, our courts have become increasingly aware of the need to recognize the gravity of the offence and the enormous harm it causes. The impact of child pornography on the helpless children that are its subjects is obvious. In addition, it is now well recognized that pedophiles frequently use child pornography to desensitize the children they are preying upon; to "groom" them and persuade them that the reprehensible acts that are about to be perpetrated on them are "normal" or acceptable. Collectors of child pornography seek to distance themselves from the direct physical and emotional harm caused to children. However, the collectors of this filth are a vital part of the evil menace it represents and bear responsibility for its malignant growth right along with its creators. (See R. v. Sharpe (2001), 2001 SCC 2, 150 C.C.C. (3d) 321 (S.C.C.).)
[57] Ms. Vadacchino submits that the need to deter and denounce behaviour that moves from the virtual to the real world is paramount. She urges the application of the commentary and example found in R. v. D.G.F., 2010 ONCA 27, [2010] O.J. No. 127 (C.A.), a case, like Mr. A.V.', where the virtual world erupted into real time sexual assaults by a father on his daughter. As the Court there explained:
21 Over the last two decades, courts have been on a learning curve to understand both the extent and the effects of the creation and dissemination of child pornography over the internet and to address the problem appropriately: see, for example, R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Kwok. ...
22 Unfortunately, the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution. The victims are innocent children who become props in a perverted show, played out for an ever-wider audience not only of voyeurs but of perpetrators.
[58] In D.G.F. the Court of Appeal noted that this was the kind of case that called for "a very significant sentence in order to adequately meet the essential sentencing objectives of denunciation and deterrence for this category of crimes. Ms. Vadacchino contends Mr. A.V.' crimes call for a similar response.
Concurrent or Consecutive Sentences?
[59] The Crown submits that the directions from the Court of Appeal found at paragraph [27] of D.G.F. must animate Mr. A.V.' sentences; namely: that while "the principle of totality must always be considered when sentencing for multiple offences, the sentence imposed cannot thereby become inadequate to properly recognize the overall gravity of this conduct that victimizes children in the most horrendous way."
[60] The reminder has, to some extent, been rendered into a statutorily mandated requirement by virtue of s. 718.3 (7):
(7) When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct
(a) that a sentence of imprisonment it imposes for an offence under section 163.1 be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another section of this Act committed against a child; and
(b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under section 163.1, be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under section 163.1.
[61] In arriving at an appropriate sentence for Mr. A.V., Ms. Vadacchino urges that this is one of the worst cases of child sexual abuse; that this is a case that merits an exemplary sentence. Again, I anticipate my rejection of that submission here. These are stomach churning facts, true; but, man's capacity for starkly horrible acts is not epitomized by Mr. A.V.' crimes. This is horrible stuff but it could have been much worse.
The Child Pornography Counts
[62] Ms. Vadacchino submits that the child pornography photographs found on Mr. A.V.' cell phone located at his parents' home after he had been arrested amount to "trophies" of the victim being abused. These are photographs of the young child that Mr. A.V. violated. Given the increase in the range for the crime of possession of child pornography and given the nature of these photographs, a substantial sentence ought to be imposed for his possession of them.
[63] Moreover, Mr. A.V. is also guilty of creating and exchanging child pornography in the nature of text messages with the child's mother. These are vile messages that Mr. A.V. wrote to this child's mother counselling the commission of horrible acts against this child. Ms. Vadacchino concisely captured the depravity on display submitting, "That's what he wants to do. That's his fantasy world. That's what he likes."
[64] Noting that Mr. A.V. was alone when he composed these texts she observed that he was not being bullied or coerced as he whinged to the pre-sentence reporter and Dr. Pallandi. Rather, he wrote these things because he wanted to do these things and because he planned to do them. And, regrettably, he did. The Crown submits that these texts bring his denials of being sexually attracted to children into clear focus. By way of a footnote I have included some of the comments made by Mr. A.V. that Ms. Vadacchino excerpted from Exhibit "4" being his text correspondence with the child's mother.
[65] The Crown submits that this exhibit, (at tab 2, pages 6, 7, 9, and 10,) contains exchanges where A.V. and A.S. talk of indoctrinating this child into rough sex and that A.V. speaks of wishing to inflict violence upon her, to "fuck her again until she screams."
[66] The Crown acknowledges that the mother is equally depraved and that each encourages the other. She submits that there is no barrier against how low they are prepared to sink. Ms. Vadacchino makes the point that while Mr. A.V. portrays himself as a victim who is disinterested in sexually abusing children, these chats display his true nature and character. They do so because they occur at a time when no one is around. He is venting his real thoughts and inclinations. In one of their exchanges A.S. asked A.V. what he first thought of T.S. when he first met her in December. A.V. responded that he thought she was gorgeous and that he wanted her; that he admitted to having a sexual desire for this four-year-old.
Grooming
[67] Grooming is an aggravating feature in many of these cases. A.V. sent a photograph of his penis to the child's mother and asked her to show it to the child. In their text messages he asked A.S. if she had shown the picture to the child and he asked how the child reacted to it. The Crown submits that this was an act of grooming designed to prepare the child to be penetrated by A.V..
Dominance in the Relationship with A.S.
[68] The Crown accepts that A.S. was physically assaultive toward A.V. but points out that he continued to seek her out despite her assaults on him. In addition, he had the opportunity to rescue her child but chose instead to further victimize that child. The Crown submits that he would inconvenience himself by missing his bus to stay at A.S.'s home, which gave him the opportunity to be near the child. His desire for the child was more enticing to him than his physical integrity or his convenience.
Was This a Trust Relationship?
[69] This child was in a trust relationship with her mother and her mother's behaviour toward the child is likely one of the most egregious breaches of trust that a court will ever encounter. The Crown submits that Mr. A.V.' access to and acts toward T.S. were "anchored" in that child's trust relationship with her mother and that the court should find that A.V.' acts amounted to a breach of trust.
[70] Ms. Vadacchino concluded her submissions with a review of many of the cases that she provided to the court before recapitulating and aggregating the aggravating and mitigating factors identified in her submissions.
The Defence Submissions on Sentence
[71] Mr. Lefurgey began by observing that a number of other people molested this child, particularly her mother but also her father and others. He submitted that the fact that Mr. A.V. is being sentenced first places blame on him excessively and disproportionately.
[72] Mr. Lefurgey stresses that he is not attempting to downplay or minimize Mr. A.V.' crimes. Rather, he is noting that there are degrees of criminality and, (leaving aside A.V.' text messaging child pornography,) his abuse of this child is mitigated in comparison to the mother's and others.
[73] Most significantly, Mr. Lefurgey insists that the Crown is wrong in law in its attempt to conflate these facts with D.D. and with the sentence ranges suggested in that precedent. In this case the evidence is undisputed that A.V.' physical sexual abuse of the child lasted for only three days. His situation is patently distinguishable from D.D. and that this is self-evident upon any fair reading of D.D.:
44 …[A]s a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threat of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. …
[74] Mr. Lefurgey points out that Mr. A.V. was not in a position of trust towards T.S., that his abuse of her was not regular and persistent and that his abuse of the child did not take place over a substantial period of time. Moreover, to the extent that vaginal intercourse was attempted, it was not full and it was not accompanied by other acts of physical violence, threat of physical violence or other forms of extortion.
[75] Mr. Lefurgey submits that the Crown is wrong to ask the court to apply the sentence ranges identified in D.D. to Mr. A.V.. He submits that D.D. is directed to offences of prolonged abuse and that is simply not this case. A.V. was not the child's parent, not her grandparent and not a relative of any sort. He first met the child in December and only committed physical crimes against her over a three-day period in January. Nonetheless, counsel says that Mr. A.V. recognizes that a substantial sentence will be imposed upon him but urges that the sentence to be crafted must be fit and appropriate to the facts of his crimes and his particular circumstances.
A.V. Was Not in a Position of Trust
[76] The defence contends that A.V. was not in a position of trust with respect to his victim. He was an occasional sex partner of the child's mother. Counsel further denies that the Crown's imagery that he was "anchored" in a trust relationship results in A.V. being in a position of trust towards his victim. Such a finding would be an error and an inappropriate application of the principle that abusing a position of trust is an aggravating factor to be weighed in a sentencing. In his submission the Crown is taking the lack or absence of an aggravating factor and spinning it 180 degrees in an attempt to suggest that it is an aggravating factor.
Phallometric Testing
[77] Mr. Lefurgey submits that the Crown has done the same thing with the phallometric testing results. The fact that there is no positive result is characterized by the Crown as being worse somehow despite not demonstrating attraction to pre-pubescent children. Once again, the defence submits it would be an error to classify his lack of response as an aggravating factor. While Mr. A.V.' highest response to pubescent females may be concerning, one ought not turn it on its head and argue that it is an aggravating factor and submit, as the Crown did that because he did not positively respond to pre-pubescent females, his actual response is a worse result. Mr. Lefurgey contends that it is illogical and unreasonable to characterize that lack of response as worse than had he demonstrated a positive sexual response to pre-pubescent children.
Mr. A.V.' Risk of Recidivism
[78] Mr. Lefurgey notes that had Mr. A.V. taken the Static-99, the actuarial instrument administered by Dr. Pallandi, before A.V. pleaded guilty to the crime of possession of child pornography his risk of recidivism would have been rated as average and not "moderate – high". In this instrument scores of 1, 2, and 3 are equated to an average risk of recidivism while a score of 4 indicates an above average risk.
[79] Mr. A.V. scored 4 on the following basis:
- on item 1 he is between 18 and 34 which gives him a score of 1;
- on item 2 he had not lived with a lover for more than 2 years; that scores as another 1;
- on item 8, the victim is unrelated to him which gives him another point; and,
- by pleading guilty to possession of child pornography before taking the test he has a conviction of a "non-contact" sex offence which gives him his 4th point.
[80] Therefore he scores an above average risk. Mr. Lefurgey does not contest the documented recidivism rate over the period described by Dr. Pallandi, namely that this score is associated with five and ten year sexual recidivism rates of 12.3% and 18.2% respectively.
The Victim Impact Statement
[81] After Mr. A.V. was charged he received disclosure that demonstrated that T.S. had been extensively abused by her mother, her father and other men, too. Mr. Lefurgey urged me to be cognizant that Mr. A.V. is not jointly liable for their acts. He ought to be punished for his own liability solely.
The Defence's Response to Alleged Duplicity
[82] In response to the Crown's repeated submission that Mr. A.V. denies or admits to being sexually attracted to children depending upon who does the asking Mr. Lefurgey demurred and stressed the following. A.V. does not say in his police statement that he had a long-standing sexual attraction to children. Rather, A.V. said that when he was in his mid-teens there were a few instances of improprieties involving his cousins who were a few years younger than him and that he had some counselling for that behaviour.
[83] Moreover, beyond those limited admissions there is no evidence of "long-standing attraction" to children. There's nothing. The only photographic child pornography found on his phone was the set of photographs of the child sent to him by her mother. The police found no history of him accessing child pornography or possessing a cache of child pornography. His "collection" of child pornography consists solely of the photographs that the child's mother sent to him during their relatively short relationship period. The police seized his cell phone and other storage and internet accessing devices that he controlled and they disclose no other inappropriate materials or attempts to obtain any such material.
[84] In Mr. Lefurgey's submission there is no history of sexual attraction to children. As characterized by the defence, Mr. A.V. disclosed the two instances of sexual exploring albeit with younger cousins but the Crown raises it as if it's a major factor; but, in fact, A.V. had never acted upon whatever attraction there was. He has no history of acting out and no history of accessing child pornography.
Biographical Facts and Circumstances Bearing on Moral Culpability
[85] In assessing A.V.' moral culpability counsel asked the court to bear in mind his biography and abilities as outlined in the pre-sentence report; viz. limited involvement with birth mother who was a low functioning woman and who bore him as a result of an incestuous union. Further, the court was asked to bear in mind his being unsuccessful at school because of limited academic abilities and that school was a torment for him because he was bullied due to his physical appearance.
[86] Mr. Lefurgey submitted that it is not a hyperbolic submission to suggest that but for meeting A.S. he would not have ever been involved in the kind of conduct that he engaged in. As noted earlier, while counsel concedes these crimes merit a penitentiary term he is not the worst of the worst. He does not meet the criteria for the sentencing ranges identified in D.D.
Blame Shifting
[87] Mr. Lefurgey notes that it is not untrue or incorrect to say that A.V. was not the physically dominant person in his relationship with the mother. He was assaulted by her and bruised by her. That he felt victimized by the mother is not the same thing as saying he is more of a victim than the child. Does he feel sorry for himself that he got involved with the mother? Yes. Up until meeting A.S. he was leading an innocuous life. She led others down this same path and sucked others into her whirlpool of depravity. Counsel submits that it is understandable that he feels like a victim for having met her. He knows he is going to jail and but for having met her that would not be the case.
Remorse
[88] Mr. A.V. physically offended against T.S. for a three-day period in early January of 2016. Mr. Lefurgey submits that his client obviously felt remorse for having done so, which is why he raised what had happened to that child with Pastor C.' daughter. He also disclosed his acts to his parents. Both disclosures demonstrate remorse. Mr. A.V. was fully cooperative with the police. He came down to the station voluntarily. He confessed his crimes voluntarily. He became emotional when he discussed his actions with Dr. Pallandi.
[89] The defence submits that it is simply inaccurate to suggest that Mr. A.V. was not and is not remorseful.
[90] Further, after breaking up with A.S. he started some counselling before his arrest. While Mr. Lefurgey concedes that A.V. did not make full disclosure of his actions to his counsellor he had begun the process and only had the opportunity to attend two counselling sessions before he was arrested.
[91] Granted he did not comment on the child to the pre-sentence reporter but counsel submits that A.V. had difficulty expressing his feelings and he specifically avoided discussing the incidents with the probation officer. But, he had no difficulty making admissions to the police and he pleaded guilty as quickly as he could in the circumstances of this prosecution. While this sentencing hearing took place ten months down the line, that delay was a product of circumstances other than foot-dragging on the part of Mr. A.V..
Corrections and Clarifications
[92] Counsel took pains to correct a misapprehension in Dr. Pallandi's report, which suggested threats were used to enforce compliance by the child. If that was done, it was done by the child's mother and not by A.V.. Nor did A.V. use physical force to manipulate the child. I note here that while this submission may be superficially correct, Mr. A.V. was aware that his victim was being held down by her mother as he attempted to vaginally penetrate her.
[93] Similarly, Dr. Pallandi's mistaken impression that A.V. was aware of many other men abusing the child is incorrect. He received much of that information through police disclosure made to him after his arrest, (although he was aware of the child's father offending against her at about the same time that he was committing crimes against the child.)
A.V.' Physical and Mental Health
[94] Mr. A.V. was diagnosed with an epileptic seizure disorder when he was an adult. That diagnosis was reported to the Ministry of Transportation and Mr. A.V. lost his driver's licence. That illness also caused him to lose his job and his ability to earn an income. So, he had to move home and live with his parents. He continues to take a large dose of "Epival," twice daily, in an attempt to control his seizure disorder.
[95] Mr. Lefurgey directed me to page 8 of Dr. Pallandi's report where, under the heading of "Mental Status Examination and Conduct During Evaluation" Dr. Pallandi stated, inter alia, all of the following:
- he was generally forthcoming and non-defensive in the interview process;
- he maintained appropriate eye contact;
- his speech was normal and fluid;
- his thought form was coherent;
- there was no clear stigmata of personality disturbance or psychopathy;
- cognitively he appeared to be within the average range;
- his insight into his circumstances was questionable; and,
- overall, he was not engaging in impression management or if so only a little.
[96] In the face of the foregoing Mr. Lefurgey suggests that Dr. Pallandi is being somewhat roundabout by offering the opinion that "diagnostically, there is insufficient evidence to conclude that Mr. A.V. currently suffers from any as yet undiagnosed psychiatric illness."
Dr. Pallandi's Conclusion on Pedohebephilia
[97] Likewise, Mr. Lefurgey notes that the phallometric testing, which Mr. A.V. consented to undergoing, was "non-indicative of pedophilia or hebephilia" and that Dr. Pallandi concluded that this testing "was not indicative of pedohebephilia." Despite those conclusions counsel agreed that the facts admitted to were obviously disturbing.
[98] The point being stressed by the defence is that A.S. was the catalyst for A.V.' behaviour against a child.
Aggravating Circumstances and Factors
[99] The defence concedes that this was an invasive sexual assault against a young child and that those facts are properly to be considered as aggravating. However, Mr. A.V. does not concede or accept that he was in a position of trust towards his victim and further, he does not accept or concede that he groomed the child to be more receptive to his assaults.
Pre-Sentence Custody – Conditions and Extent
[100] Mr. A.V. has been detained since January 22, 2016. For the majority of that time he has been held in a segregation unit and has not been part of the general population at the Niagara Detention Centre. He is being held in a cell designed to hold two individuals. There are three in his cell and he has been forced to sleep on the floor for the last seven months. {That period will grow to almost be eight months by the time sentence is imposed upon him on December 6, 2016.}
[101] In addition, while in segregation, Mr. A.V. has only been granted the privilege of going out into the yard twice; once in the week prior to October 31st and once in the summer.
Other Mitigating Circumstances and Factors
[102] Mr. A.V. had no prior criminal record before pleading guilty. His remorse is demonstrated by his pleas of guilt, by his disclosure to his pastor's teen-aged daughter, by his admission to his own parents of his guilt and by his admissions to and cooperation with the police.
[103] Mr. Lefurgey submits that Mr. A.V. felt badly about his actions, which was why he talked about them. While his initial disclosure to the pastor's daughter was tentative – to the effect that he knew there were problems with this little girl and her mother – he eventually revealed the full extent of his complicity and behaviour.
[104] In addition, Mr. Lefurgey submits that while Mr. A.V. was an active participant in the sexual assaults against the child he was not the initiator of that behaviour. Further, he has some insight into the wrongfulness of his acts, he is prepared to take part in treatment for his acts and he actually began, in a limited way, to do so before he was arrested. He consented to phallometric testing and he participated in the testing without attempting to defeat it in any way.
The Sentence Sought by the Accused
[105] In his peroration counsel reiterated all of the following. Mr. A.V. was not the child's parent and ought not to be sentenced as if he was her parent. Further, Mr. A.V. was not playing what the Crown called the "blame game." It is neither incorrect nor improper to observe and stress that he had done nothing like this in his life before he met A.S., who had been sexually abusing her child before A.V. ever met her. Making this observation is not playing a blame game. Rather, it is an accurate narrative and explanation for how A.V. came to offend.
[106] So far as remorse is concerned, Mr. Lefurgey noted that neither Dr. Pallandi nor the pre-sentence reporter asked him if he ought to be punished for what he did. Had they done so, he would have agreed that he ought to be. He told FACS that he knew he was going to be punished.
[107] So far as the child pornography pictures are concerned they were taken by the child's mother and sent to him by her. He is not a collector and it would be wrong to characterize them as trophies. It is true that he did not delete them.
[108] Counsel submitted that the Crown is incorrect to submit that A.V. stayed with A.S. because he sought to be close to T.S. and that that child was the "prize" he was seeking. The facts are that he met A.S. in July and did not meet T.S. until December. A.V. had had only one prior adult relationship. He thought he was in love with A.S.. She was the person he wanted a relationship with.
[109] While A.V.' personal circumstances do not excuse his behaviour those circumstances do offer some explanation for why he was susceptible to acting out criminally at that time in his life.
[110] Finally, despite recognizing the horror of what he did, his family is still supportive of him.
[111] In the briefest of compass Mr. Lefurgey completed his submissions by urging that the Crown's reliance on D.D. is misplaced. While the child pornography count must be consecutive to other sentences, the totality of the sentences imposed must still be fit. His ultimate submission was that after taking all factors into account, including the age of the victim, the fact of some degree of penetration and the vileness of some of his text messages, a total sentence in the range of four to five years less appropriate pre-sentence credit would be fit.
Reasons for Sentence
[112] While both the defence and the Crown agree that these crimes merit a penitentiary sentence the parties are very far apart on what the total length of a fit sentence should be.
[113] Despite having no prior criminal record, the primary sentencing principles that must be expressed by this sentence are the principles of denunciation and deterrence. As noted in R. v. Brar, 2016 ONCA 724, [2016] O.J. No 5143 (C.A.), at paragraph [16], "the principles of denunciation, deterrence and public safety must take precedence over other recognized objectives of sentencing, including rehabilitation." At 28, Mr. A.V. is not old. However, he is no longer youthful, either. Given his age and despite not having any prior criminal record, I am of the view that R. v. Q.B., [2003] O.J. No. 354 (C.A.) has no application to the sentences that I must craft. That said the sentences imposed must nonetheless be fit.
[114] Ms. Vadacchino has submitted that the appropriate ranges of sentences for child sexual assault have been identified by Justice Moldaver in D.D. During her submissions she identified a number of instances where D.D. had been specifically referred to and applied. She submitted, correctly, that D.D. is still an authoritative and binding precedent. But it is not a decision to be applied slavishly and without consideration of the specific facts of the offences and without consideration of the specific circumstances of the offender.
[115] The development of sentence ranges for various offences has been the subject of discussion by the Ontario Court of Appeal. In R. v. Devaney, [2006] O.J. No. 3996 (C.A.) at paragraph [13] the Court stated that "it is appropriate for trial judges to consider a starting point or range of sentence for a particular offence committed in particular circumstances. This approach accords with the principle that like crimes will attract like sentences. In many if not most cases, after considering all the relevant factors that affect sentence, a trial judge will impose a sentence that is within the developed range."
[116] Despite the development of ranges of sentences for particular crimes, the ultimate imposition of a sentence must be driven by the particular facts of the crime and the particular circumstances of the offender at issue. Justice Moldaver specifically adverted to this in D.D. at paragraph [33] when he emphasized that the ranges which he identified were not fixed and inflexible. He went on to say, "[o]n the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in [the] difficult task of fashioning fit and just sentences in similar cases."
[117] This same sentiment was recently echoed even more authoritatively by Justice Wagner for the majority in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64, (with Justice Moldaver joining in that judgment.)
[118] There the Court stressed that proportionality is the cardinal principle in determining the fitness of a sentence. "The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender." (at paragraph [12])
[119] At paragraph [57] Justice Wagner noted that "[s]entencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case …"
[120] The important point to bear in mind is that sentencing is an individualized exercise. As Justice Wagner clearly stated at paragraph [57]; viz. "There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. ... [E]verything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case.
[121] On this basis then, I turn to the factors to be carefully examined and weighed in arriving at fit sentences for Mr. A.V., collecting those factors under three headings: mitigating factors, aggravating factors and perhaps, other circumstances to be considered.
Mitigating Factors
The Guilty Pleas
[122] I begin with the fact that Mr. A.V. has pleaded guilty. By doing so he has saved the community the substantial time, effort and expense that a prosecution would have entailed. He elected to proceed in the Ontario Court of Justice without having had a preliminary inquiry. His pleas of guilt have ensured a certain result.
[123] Everyone is entitled to be properly convicted and he was entitled to make the Crown prove his guilt. Insisting on this right would not be an aggravating factor. By doing so he could have remained in the local detention centre closer to his family enabling them to visit him more conveniently.
[124] While the Crown's case was a very strong one and while a finding of guilt was the preponderant likelihood after a trial, "there's many a slip twixt cup and lip." I do not accept the Crown's submission that Mr. A.V.' guilty pleas are a neutral factor. Unlike the recent major fraud sentencing appeal in R. v. Wilson, 2016 ONCA 888, for example, A.V. did not plead after a preliminary inquiry and after a voluntariness voir dire. In my view his guilty pleas are a significant mitigating factor.
The Lack of Any Prior Criminal Record
[125] The fact that Mr. A.V. has no prior criminal record is a further mitigating factor to be weighed. While the facts of his crimes are abhorrent, whatever the nature and extent of his psychological deficits they had not prompted or caused him to transgress the criminal law to this point in his life. It is true that his behaviour as a teenager was a concern for his family but it did not result in his prosecution as a young person. Some weight must be accorded to his ostensible good character prior to these crimes.
Remorse
[126] Mr. A.V. made a limited and incremental disclosure of the plight of T.S. to his teen-aged confidante. He ultimately admitted to offending against the child and she was rescued as detailed earlier. He made admissions to FACS and to the police. He was completely cooperative without the authorities. He consented to phallometric testing and participated with any attempted artifice. He took some counselling, albeit without making accurate disclosure to his counsellor, before he was arrested. In my view all of these actions evince remorse, despite his insight being far from complete or deep. Some weight must be ascribed to these mitigating factors. (In any event, a lack of voice remorse is a lack of a mitigating factor that may speak to prospects for reformation but its absence is not an aggravating factor.)
Aggravating Factors
The Gravity of the Crimes
[127] The sheer gravity of the crimes including the depravity of the text messages and the invasive extent of the sexual interference are aggravating facts.
Planning and Deliberation
[128] The text messages describe depraved acts desired. Some were carried out. This amounts to the offences being planned and deliberate. The texts are a rehearsal to action, to thoughts being given legs. In addition, the persistence in texting permitted A.V. to become desensitized to the perverse nature of the conduct he was relishing and anticipating. All of this can be subsumed as aspects of planned and deliberated upon criminality. This is a seriously aggravating factor to be weighed.
The Vulnerability of T.S. and s. 718.2 (a) (ii.1)
[129] Under s. 718.2 (a) (ii.1) I am obliged to consider whether the victim is a young person or a child. In this case A.V.' victim was a four-year-old child. She was unable to protect herself from the predations of her mother. She was unable to escape her vulnerabilities. A.V. took advantage of her vulnerability and used and abused her badly. He could have saved her. Instead, as noted in the preceding sections, he took callous advantage of her for his own selfish sexual satisfaction. This is a substantially aggravating factor. Like the victim described at paragraph [47] in R. v. D.M., 2012 ONCA 520, [2012] O.J. No. 3616 (C.A.), T.S. was totally dependent on her mother because of the disparity in her age as compared to her mother and Mr. A.V.. She was in her power in every way and A.V. took advantage of that.
Loss of Normal Childhood
[130] In D.D. Justice Moldaver stressed the terrible trauma and psychological damage that is inflicted by child sexual assaults, which can result in untold grief and misery for children subjected to this kind of abuse. This kind of predation can rob children of their youth and innocence, leaving a victim irretrievably damaged and scarred and potentially damaged forever. (See D.D. at paragraphs [10] and [45])
Other Circumstances
Family Support
[131] Despite the heinous nature of his transgressions his family remains supportive. He will need their continuing support during his period of detention and after he is released and attempts to reintegrate himself into society. Their support is a factor that will be of assistance in the course of his rehabilitation. While this social network may not be strictly a mitigating factor it is nonetheless a factor which may promote his ultimate rehabilitation.
The Lack of Overt Violence, Threats or Weapons
[132] The physical sexual offending was invasive but there was no use of coercive violence or threats of violence. It was the mother that used the dildo that caused the child pain.
Were His Phone Photos Trophies?
[133] In her submissions Ms. Vadacchino characterized the 24 photograph saved on Mr. A.V.' cell phone as trophies. The word rankled Mr. Lefurgey who felt the Crown was being hyperbolic and attempting to paint Mr. A.V. as a serial offender. Trophies in the sense used by the Crown denote items taken from a crime scene and used by a criminal to psychologically relive the crime. Here, however, there is no evidence of how often or whether they were accessed by A.V. at all. Further, he did not take the photographs. They were sent to him by the child's mother and the Crown has not pointed to any email or admission from A.V. that he requested her to do so. Finally, A.V. went to speak to the police with his parents. He had time to delete these photographs if he had wanted to do so. His failure to do so speaks more to his lack of foresight or sophistication, in my view, than it does to the value or importance he placed on these pictures.
A.V.' Part in the Condition of the Child
[134] T.S. is a badly damaged child. The psychological consequences of her abuse at the hands of her mother and her father and as a result of her mother shopping her out to others, like Mr. A.V., are frankly as incalculable as they are inevitable. That said, Mr. Lefurgey is correct in submitting that A.V. is not solely responsible for those consequences, although his actions are far from being insignificant. Indeed, as Ms. Vadacchino noted A.V., (who on the facts before me was the last man to abuse the child,) was named and spoken of specifically by T.S. during her interview. That is to say, the child – at least at this point in her life – remembers A.V. as her abuser. Further, I adopt Ms. Vadacchino's observation that Mr. A.V. had the opportunity to rescue this child from the horror of her life. Instead, he exacerbated it.
Pre-Sentence Custody
[135] Mr. A.V. has been detained since January 22, 2016. He is being sentenced on December 6, 2016. That is a total of 319 days, inclusive of both dates. He is entitled to a credit of 1.5 days for every day served meaning that he has served the equivalent of 478.5 days of incarceration to and including December 6, 2016. Using 30 day months this amounts to a pre-sentence custody credit of 15.95 months.
Inadmissible Opinion Evidence
[136] The parties disagreed about whether Mr. A.V. was remorseful for his actions. The Crown pointed to what she described as blame-shifting and inconsistencies in the offender's admissions respecting whether he was inappropriately attracted to children. The Crown also pointed to the opinions of the pre-sentence reporter and the offender's pastor, which were to the effect that these persons did not feel the offender was remorseful. The pre-sentence reporter stressed that A.V. made no mention of remorse to her and most importantly he did not mention the child or mention what she had been through or speak of what was happening to her.
[137] In my view the pastor's opinion was inadmissible and irrelevant opinion evidence and I disabuse myself of it or any reliance upon those statements. Likewise, I am of the view that the pre-sentence reporter strayed into inappropriate commentary on that issue and I likewise ignore those statements in the pre-sentence report.
[138] Pastor C. was ill disposed towards Mr. A.V.. The pastor told the pre-sentence reporter that he was frustrated with A.V. because A.V. did not express remorse to him. The pastor was quoted as saying that in his opinion A.V. did not have any insight into his behaviour and he feared A.V. would not control his behaviour in the future. I do not rely upon these opinions. They are inadmissible hearsay and inadmissible opinion evidence.
[139] So, I ignore these opinions and place reliance on the opinions of Dr. Pallandi. Regrettably, the doctor's opinion for Mr. A.V.' future is guarded.
The Range of Sentence
[140] D.D. at paragraph [44] sets some initial parameters which help to orient the ranges of sentence to be considered at first blush before finer calibrations are made.
There, Justice Moldaver directed that "as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. [all emphases added]
[141] Only some of the emphasized criteria apply to Mr. A.V.. He admittedly engaged in attempted vaginal intercourse with this young child. As I read his police interview, (Exhibit "3",) he said that on two successive days he penetrated the child's vagina with his penis to a limited extent. By his description he inserted the glans of his penis into the child's vagina, at a minimum. While one may quibble with whether that amounts to "full intercourse" his admissions are sufficiently clear as to amount to vaginal penile penetration.
[142] In my view what has been admitted to cannot fairly be characterized as sexually assaultive behaviour occurring on a regular and persistent basis over substantial periods of time and to that extent his crime is distinguishable from the category of behaviour identified by Justice Moldaver.
[143] Likewise, Mr. A.V. did not stand in a position of trust towards T.S. and that criterion identified by Moldaver J.A., (as he then was,) does not obtain. However, I do not completely accept the defence submission that the aggravating factor of an abuse of trust is absent in this case. At paragraph [42] of R. v. Derek Williamson, an apparently unreported decision by Mr. Justice R. J. Nightingale (SCO), released July 21, 2016 in Welland, Justice Nightingale spoke of that accused "leveraging the trust relationship between the child and her mother and using her mother to deliver the child." While I do not accept that what A.V. did comes within s. 718.2(iii), I am prepared to accept that his leveraging of the trust relationship between T.S. and her mother, (to adopt Justice Nightingale's formulation,) is an aggravating fact that ought to be weighed in the balance.
[144] At paragraphs [34] through [38] of R. v. D.M., 2012 ONCA 520, [2012] O.J. No. 3616 (C.A.), Justice Feldman reiterated the principles espoused in D.D. and in R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 (C.A.); namely:
(1) Our children are our most valued and our most vulnerable assets.
(2) We as a society owe it to our children to protect them from the harm caused by sexual predators.
(3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators.
(4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow.
(5) Three such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood.
(6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.
[145] While counsel in the Court of Appeal judgment in R. v. B.(J.), [1990] O.J. No. 36 (C.A.) suggested a sentence range of three to five years for acts more egregious than the conduct of Mr. A.V., Justice Rosenberg in R. v. P.M., 2012 ONCA 162, [2012] O.J. No. 1148 (C.A.) at paragraph [46] distinguished these earlier authorities noting that in D.D. the Court of Appeal signalled that the sexual abuse of a child will attract lengthy penitentiary sentences. He opined that where a father has committed repeated acts of incest with his daughter over many months it would be highly unusual for the court to impose a penitentiary sentence of less than five to six years. He went on to observe that amendments to the Criminal Code since B.(J.) decision regarding aggravating circumstances and objectives of sentencing where children are sexually abused are more consistent with D.D.
[146] Similarly, at paragraph [44] of D.M., Justice Feldman reiterated that "where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary". In that case the sentence of three years was found to be unfit and raised to seven.
[147] While every sentencing decision is an individualized application of the principles of sentencing to the specific facts and circumstances of the case at issue, a recent decision of our Court of Appeal in R. v. Dawson, 2016 ONCA 880 is instructive.
[148] Dawson was found guilty after a jury trial of two counts of sexual interference against two different young female children. He was sentenced to a two year sentence on each count, consecutive. He touched one child's vaginal area with his penis but this apparently happened when both were clothed. He had the opportunity to do this on two occasions. The second child testified, in effect, to them taking turns being naked and when he was naked he got milk on her from his penis. This child was also only alone with Dawson on two occasions.
[149] Dawson urged that these sentences were too high since this conduct was "at the lower end of the spectrum because there was no penetration or extraneous threats of violence"; that these crimes ought to have attracted the minimum mandatory one year sentence for each count, that the breach of trust was of a very low level as Dawson was just a neighbour and he was 51 with no prior record.
[150] The Court of Appeal declined to interfere with the sentences imposed as the trial judge did not consider these offences to be at the lowest end of the spectrum given the age of the victims, the limited position of trust of the appellant, and the nature of the sexual acts. (The Crown had sought two to three years for each count, consecutive.)
[151] In arriving at my decision I have taken the various circumstances of the offender, the victim and the crimes into account. Many of those circumstances are "aggravating". Without reiterating all of the facts and circumstances that I have noted, I specifically note the following:
that A.V. had contact with the child from December 24, 2015 to January 6, 2016 and his physically offending behaviour occurred over a three day period in January of 2016;
that this period is much more limited than that observed in many of the reported decisions;
that the child was abused by her mother and others before A.V. touched her;
that while A.V. is not a diagnosed paedophile his text messages disclose his aberrant sexual attraction to a very young female child;
that his risk of recidivism is "moderate – high";
that despite the short term period of abuse it was invasive and significant and included digital penetration of the child, being masturbated by the child, having the child perform fellatio on him and engaging in limited penetrative vaginal intercourse with the child;
that the photographic child pornography sent to him by the child's mother was limited to 24 images but they were of the child he had abused, though not of him abusing her;
that his moral culpability is high, especially given the age of this child and despite his modest intellect, unfortunate parentage and current seizure disorder;
that these acts were planned and premeditated;
that there was an act akin to grooming of the child; and,
that knowing of his attraction to children he failed to remove himself from the temptation that this child presented.
[152] Likewise, I have considered and weighed other circumstances that obtain including the following mitigating ones:
his pleas of guilt;
his lack of any prior criminal record;
his admission of wrongdoing and cooperation with the police;
his expressions of a desire to get help to overcome his desires;
his initial, albeit limited, efforts in counselling;
his cooperation with Dr. Pallandi and with phallometric testing;
his willingness to take treatment;
his acknowledgement that he deserves to be sanctioned for his actions;
his familial support and prospects for rehabilitation;
the lack of any formal breach of a position of trust; and,
his s. 726 statement in which, in a halting and emotionally laden manner, he expressed his perpetual regret and apology for the harm that he caused to T.S. and to his own family.
The Sentence Imposed
[153] In the result I impose the following sentences.
On count one, being the count of sexual interference contrary to s. 151 of the Code, I impose a sentence of incarceration of fifty-four months in the penitentiary. Against that sentence I give Mr. A.V. a time served credit of 319 days credited at one and a half to one. That is a further 159.5 days for a time served credit equivalent of 478.5 days. That is 15.95 30-day months, which I round up to 16 months. Giving Mr. A.V. that credit against this four and a half year sentence I impose a further sentence on count one of 38 months.
On count two, being the count of invitation to touch for a sexual purpose, contrary to s. 152 of the Code, I impose a sentence of 24 months to be served concurrently to count one;
On count three, being the count of making child pornography in the form of text telecommunications that he exchanged with the child's mother concerning the child, contrary to s. 163.1, I impose a sentence of 18 months, consecutive to count one;
On count four, being the count of possessing child pornography in the form of text telecommunications about the child and in the form of digital image files of child, contrary to s. 163.1, during the period of December 21, 2015 and January 10, 2016, I impose a sentence of one year concurrent to count three; and,
On count five, being the count of agreeing, by means of a telecommunication, with the mother to commit the offence of sexual interference against the child, contrary to s. 172.2(2), during the period between December 21, 2015 and January 10, 2016, I impose a sentence of two years concurrent to the sentence imposed on count one.
[154] To be clear, it is my view that a total sentence of six years, less appropriate pre-sentence custody credit, is a fit one given the facts and circumstances in this case.
Dated at St. Catharines this 6th day of December 2016
J.S. Nadel, (OCJ)