ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-0816
DATE: 20120322

B E T W E E N:

HER MAJESTY THE QUEEN

Teresa James, for the Crown

• and -

MARTIN SAMUEL BRODOFSKIE

Darwin Yantha, for the Defendant

Defendant

HEARD: February 17 and March 22, 2012

REASONS FOR SENTENCE

T.D. RAY J.

1. Overview :

1Mr. Brodofskie pleaded guilty on February 17, 2012 to four counts of indecent assault and one count of gross indecency involving five different complainants. All of the complainants were between the ages of 6 and 10 between 1966 and 1978 when the offences occurred. Mr Brodofskie is now 73, in poor health and lives in supportive housing.

2. The Facts:

(a) Circumstances of the offences

2The complainants are all sisters. Mr. Brodofskie knew the complainants parents when he was in his twenties, was friends with their father, and was in the habit of getting together with him for drinking sessions on weekends at their family home. Mr. Brodofskie worked in the bush during the week and would drink on the weekends. There is no suggestion that the complainants’ father was aware of what was going with his daughters.

3Each of the complainants was assaulted in much the same way, and each one was assaulted several times over the course of several years between their ages of five or six and ten to twelve. The assaults all had similar characteristics. He would invite the young girl to a place where he would not be disturbed ie barn, room, or outdoors somewhere. Often he used money and or gifts as an enticement. The incidents were marked by threats that they would get in trouble if they told anyone. On one occasion, he locked one of the girls in an outhouse until she promised not to tell anyone. Each of the assaults was characterized by him displaying his penis, asking that it be touched or stroked and also touching the girls. Often he had the girls assist him in having an orgasm. The assaults stopped when the girls reached the ages of 10 or 12 and when they refused to participate. Although he did attempt penetration, it never occurred. The abuse was described by one of the complainants as “just part of life”.

(b) Circumstances of the offender

4Mr. Brodofskie is in failing health. He has no record other than an alcohol related offence several years ago. He is retired and lives in supportive housing. One of the complainants, as well as her mother live there as well. He has no communication with them but they see each other from time to time. He is very apologetic for the incidents and says it was very wrong of him. He denies any other history of sexual incidents. After his arrest, he admitted to the investigator that he had sexually assaulted the girls although he said that he did not have a good memory of the incidents because he was drinking a lot at the time. He told the investigator that “if the girls said it had happened then it may.” He said that he would apologize to them if given the chance. He filed a letter of apology addressed to each of the victims. His letters show him to be borderline illiterate. He is a simple man. I am satisfied that what some may have interpreted as a smile or smirk by the defendant is simply the facial expression of a simple person who while competent to understand the proceedings lacks the capacity for insight.

(c) I mpact on the Victim and/or Community

5Offences of this nature are by their nature very damaging to the victims. Invariably they have an effect on relationships later in life. Victim impact statements were read into the record, and filed from each of the complainants. Each of the women has had lifetime struggles of differing severity because of these assaults. These struggles include multiple marriages to abusive men, struggles with alcohol, and limited schooling. More importantly their struggles were amplified by low self esteem. I am not satisfied beyond a reasonable doubt that all of these struggles are attributable to the offences committed by the defendant. None of them knew that their siblings were also being abused by the defendant. The victims and the defendant currently live in a small rural town of approximately 200 people.

3. Legal Parameters:

6The penalty for a conviction of sexual assault of a female person is a maximum of 5 years. The maximum penalty for gross indecency is 5 years.

4. Positions of Crown and Defence :

7The Crown’s position is that while 30 to 36 months in a penitentiary is the proper range, in this case the appropriate sentence is two years less a day followed by three years probation, the terms of which would require essentially that the defendant move away from the small rural town where they all live. Ancillary orders to include sex offender registry, a DNA order, and a firearms prohibition.

8The defence position is that the proper sentence is 30 days jail followed by 60 days conditional sentence. He contends that the defendant’s lack of any history of being an offender since these offences occurred some 50 years ago, his advanced age and poor health plus his remorse make this a fit and proper sentence. He opposes the requirement that he leave his residence.

5. Mitigating and Aggravating Factors :

9A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances.

10Mitigating factors are to be found on a balance of probabilities, while aggravating factors are to be considered after a finding beyond a reasonable doubt (s. 718.2 CCC). Mitigating and aggravating factors are only those that are related to the gravity of the offence or the moral blameworthiness of the offender.

11Evidence that the offender, as here, abused someone under the age of 18 is deemed to be an aggravating circumstance, as is abuse of someone in a position of trust (s. 718.2 CCC). The defendant used his friendship with the victims’ father to gain access to them. He used his friendship with the victims’ parents – successfully - as a barrier or disincentive to having the victims complain to their parents.

12The offences included multiple victims, on multiple occasions over a lengthy period of time and included touching of his penis to their vagina; although there was no intercourse.

13Mitigating factors include the defendant’s plea of guilty, although as the Crown noted, the victims still had to go through a preliminary enquiry. The defendant, admitted his wrongdoing to the police during their investigation, and filed letters of apology addressed to each of the victims.

6 Principles of Sentencing :

14The fundamental purpose of sentencing and its objectives are denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, making reparations and promotion of a sense of responsibility in the offender (s. 718 CCC).

15When trial judges are sentencing adult sexual offenders who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender’s prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society’s well-being and the well-being of our children must take precedence.( R v Woodward, 2011 ONCA 610 @ paragraph 76)

16A sentence must be proportionate to the gravity of the offence and the moral blameworthiness of the offender (s. 718.1 CCC).

17Consideration must be given to similar sentences for similar offenders for similar offences in similar circumstances (s. 718.2 (b) CCC).

18The process of analysis requires that the offence first be placed in a category. Secondly, the range of sentences is identified for that category to referenced texts and judicial decisions. Lastly, the sentence is placed at the appropriate point according to all of the circumstances.

7. Reasons :

19The main principles that I must consider are general deterrence and denunciation. There is no history of sexual offences, and the defendant is at an advanced age. Specific deterrence and rehabilitation are not terribly relevant.

20However, these offences are very distressing. The consequences to these victims are equally troubling. Few offences cause as much concern to us as a society than multiple abuses over a period of years against young children. The permanent effects are palpable. It is notable that the current penalty for these offences is 10 years maximum but with minimum penalties – double the penalty for these offences, but indicative of society’s concern with this type of offence.

21The authorities recognize that these offences must carry a serious penalty. Generally a range of 30 to 36 months is the starting point.

22There are, however unusual circumstances in this case that I must consider. These include the advanced age of the defendant and his health issues. While the defendant did not produce any evidence concerning whether or how the correctional system can accommodate the defendants age and health issues, I am satisfied that I must take those circumstances into account. Dr. Dawes letter of January 20, 2012, describes the defendant’s health issues and medications. His letter is to be attached to the warrant for committal with instructions to the correctional authorities to arrange the necessary medical attention and to accommodate the defendant’s health issues.

23The other unusual circumstance is that the defendant and the victim live in the same small rural community. In fact the defendant and two of the victims along with their mother live in the same supportive housing facility. If I were to impose a sentence of 30 to 36 months, then the defendant would be free to return to his residence. Evidence concerning the aggravating effect of the defendant’s presence in their daily lives would then resume. I should note that there is no evidence that the defendant has done anything overt to communicate or contact the victims. A lengthy period of probation with a term that the defendant not be within 500 metres of the victims’ residence would essentially require him to leave the community and find somewhere else to live. He has spent his entire life in this same community. At his age, leaving his friends and familiar haunts; and having to move somewhere else would in and of itself constitute severe punishment. It smacks of the ancient sentence of banishment.

24I impose a global sentence of 12 months to include 3 months consecutive on counts 1 to 4 and one month concurrent on count 5, followed by 36 months probation with conditions that include that the defendant not be within 500 metres of the victims’ residence, and that he not contact or communicate with the victims. It is a non-reporting probation, although he must keep his supervisor advised of his residence from time to time.

8. Ancillary Orders :

25The ancillary orders are that he be registered on the sex offender registry, and that he give a DNA sample. I am not prepared as requested by the Crown to impose a firearms restriction. The defendant has no history with firearms. It is unnecessary.

9. F inal Decision

26The defendant is sentenced to three months consecutive on counts one to four and one month concurrent on count 5 for a global sentence of 12 months.

27His sentence is to be followed by 36 months probations with the conditions above.

28Ancillary orders include a DNA order and registration on the sex offender registry.

Honourable Justice Timothy Ray