ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 36-2010
Date: 20120427

BETWEEN:

HER MAJESTY THE QUEEN – and – C.R. Defendant

Teresa Donnelly, for the Crown
Scott Cowan, for the Defendant

HEARD: November 23, 24, 25, 28, 2011

KENNEDY, J

[ 1 ] The offender was found guilty following trial of all four counts brought against him by the Crown involving illicit sexual contact, which stems from events which occurred at the offender’s apartment in Clinton, Ontario on August 12 th to 13 th , 2010 late at night. These offences included sexual intercourse with penetration. The offender is the complainant’s uncle. The offender is a horse groomsman and his work is manual labour in nature. The complainant was only 14 years of age at the time she was violated by the offender. The did not use a condom.

[ 2 ] The offender was convicted by a jury of his chosen peers. The trial consisted of several days of evidence, DNA evidence and the Crown’s case was vigorously contested. In my view the offender received a fair trial and the verdict was in accordance with the evidence.

The Event

[ 3 ] V.R. was staying at her grandparents’ home for the weekend. Her grandfather drove her to the offender’s home in Clinton and left her there to stay overnight as she had done in the past. It was her idea. The offender was 38 years old at the time and divorced. His two children of his former union live with his wife.

[ 4 ] After the complainant entered the apartment she watched TV in the living-room. The offender decided to display pornography on the television for them to watch. He had a Bell satellite dish with pornography channels.

[ 5 ] The pornography which he displayed and allowed the complainant to watch included sexual intercourse both between a man and a woman and between two girls. The offender sat beside his niece on the couch and watched TV beside her.

[ 6 ] Periodically the offender would get up, walk around and come back and sit down. When he sat down he would brush the complainant’s hip and upper thigh area with the open palm of his hand. This occurred on a number of times when they were watching TV.

[ 7 ] The last time he sat down Ms. V.R. reports she looked over and saw that his genitals were exposed and his pants down. She looked the other way and wrapped herself up in a blanket on the couch so as to protect herself.

[ 8 ] The offender got on top of her, lifted her leg up and put his hand in under the blanket and inside her clothing. He kept massaging her pubic area.

[ 9 ] He asked her to touch his genitals and she said “no”. He then asked her to give him oral sex which she did.

[ 10 ] She suddenly pulled her head away from the offender ending this process because she felt disgusted and also that it wasn’t right. She left the couch, went into the bathroom which adjoins the living-room and washed out her mouth.

[ 11 ] When she came out of the bathroom she reports that the offender was still sitting on the couch with his genitals exposed. He then asked her to give him a “hand job” to which she replied “no, you are my uncle and this is awkward”. Once again she sat down on the couch. The offender put his hand under her shorts and put two fingers in her vagina. He next proceeded to take her shorts off and got on top of her and had intercourse with penetration with her on the couch. Then he pulled his penis out of her vagina and ejaculated on her shirt. The ejaculate ended up on her shirt, in her hair, on her neck area and on her skirt.

[ 12 ] She went into the bathroom, locked the door and had a shower.

[ 13 ] The defence of the offender is complete denial of any illicit behaviour involving Ms. V.R. on that evening. He did ejaculate but that event took place in his own bedroom as a result of masturbation after the complainant had gone to sleep on the couch in the living-room.

[ 14 ] It is obvious, that the jury did not believe the offender and rejected his evidence on all counts.

Positions on Sentencing

[ 15 ] The offender’s position on sentencing is that the court should impose a sentence of “around three to four years”. The sentence should be what is described by counsel as “somewhat unique”.

[ 16 ] There should be a sentence of some custody plus probation of two to three years.

[ 17 ] Such a sentence according to the defence would punish the offender satisfy the concerns of the community and provide for the protection of the public.

[ 18 ] The defence submits that there are factors particular to this case that should be considered carefully in a realistic manner:

1. The offender was in a position of trust “to some degree” although he was the victim’s uncle he was not responsible for the victim’s care and his position of trust falls at the low end of the spectrum.

2. The offender is developmentally challenged. He works with animals and he is completely illiterate.

3. Although the offender did not use a condom during the sex there were no consequences of this fact.

4. Although the act involved penetration, there were no consequences which fall from this conduct, i.e. pregnancy.

[ 19 ] There was some limited grooming behaviour by the offender which consisted of the showing of pornography before the event.

[ 20 ] The offender has a criminal record but it is unrelated and does not involve a young person.

Mitigating Factors

[ 21 ] The offender is described as friendly, cooperative and a hard working person.

[ 22 ] The offender has been on bail with strict conditions for a two year period without event and has shown himself to be “ governable”. I agree that the offender has shown that he can comply with terms and conditions from authority.

[ 23 ] The offender has a supportive family. I agree with this submission.

[ 24 ] His not guilty plea should not be considered in sentencing as an aggravating factor. I agree with this principle and the offender’s submission in this respect.

[ 25 ] The offence was a singular event and did not involve collateral violence or threats. I agree with this submission.

[ 26 ] Also, the defence submits that the pre-sentence report, Exhibit 1, establishes that the offender does have prospects for rehabilitation. I agree that with respect to rehabilitation there are positive prospects even at his current age, which is 40 years plus. Some education and training can help with his state of illiteracy.

[ 27 ] I would hasten to add however that there are some signs, that rehabilitation could well be a problem and more difficult because of other factors which are mentioned in the pre-sentence report.

[ 28 ] It is not good that the offender fails to understand that he has a problem with substance abuse or alcohol. He has yet to take any useful steps toward the correction of these issues, and he has expressed his view that he has no desire for counselling.

[ 29 ] Also despite the fact that it is reported that he has a long history or alcohol and marijuana use, he has limited insight into the impact of substance abuse on his choices.

[ 30 ] The offender continues to deny that the illicit activity involving the complainant occurred. This position continues to contribute to the fact that V.R. is estranged from her formerly close connections with much of her extended family.

[ 31 ] The offender is illiterate and the fact is that he will have available in custody some of the tools necessary to assist in his education and training.

[ 32 ] Defence counsel emphasized in his submissions that the victim’s virginity was not destroyed by these events, and that further since august of 2010 the victim has given birth to a child which had nothing to do with this relationship.

[ 33 ] In the court’s view neither one of these facts is relevant to the sentencing hearing before the court.

The Crown’s Position on Sentence

[ 34 ] The Crown’s position is that there should be a custodial sentence of between three to five years, a penitentiary sentence pursuant to the clear direction of the Court of Appeal in cases where the evidence involves sexual intercourse with penetration and breach of trust.

[ 35 ] The Crown’s position is that there is an absence of mitigating factors in this case.

[ 36 ] It is clear that this is a case of breach of trust. The complainant was entrusted by her grandparents to the offender’s care. She was allowed to stay overnight in the offender’s apartment which she had done before. She was 14 at the time of the event.

[ 37 ] The provisions of s. 718.2 of the Criminal Code of Canada specifically provide that breach of trust and the fact that the victim was under 18 are aggravating factors on sentence.

[ 38 ] The sexual acts before the court involve oral sex and intercourse.

[ 39 ] The offender was influenced by the effects of substance abuse which he was in the habit of consuming. He had consumed, on his own evidence, 12 bottles of beer and participated in marijuana drug use, which was a pattern of behaviour that he enjoyed. Had his mother known of his alcoholic condition on the night in question, her evidence is that she would not have let the complainant stay with him.

[ 40 ] The Crown’s position is that it is an aggravating factor for the defendant to continue to attribute blame to the complainant for the event to others when he knows it will upset the family and cause alienation of relationships. It should be obvious to him that his actions will unfortunately cause stress and further emotional harm to the complainant.

[ 41 ] The victim impact statement, Exhibit 2, is moving and the evidence of the complainants contained therein is sincere and should be accepted. As a result of the events before the court there has been long term emotional damage caused to the victim.

Reasons

[ 42 ] The actions of this offender were motivated by lust and self gratification and were carried out in a planned manner with purpose. When the victim attended his apartment he deliberately turned on his television and connected his related satellite equipment to a channel which depicted pornography and sexual acts. His intent was to set the background and to encourage his young victim into setting her mind to sex and foreplay in a cooperative manner.

[ 43 ] When the offender got up and left his victim, he came back and touched his victim inappropriately on her thigh and leg with the hope that the victim might encourage him to participate in some type of foreplay or sexual act.

[ 44 ] She resisted his sexual acts in a manner by resisting his efforts with a blanket and attempting to get away from him. She verbally expressed her lack of consent. It should have been obvious to him that she could not consent because of her age and also that she did not and would not consent by her actions.

[ 45 ] The offender was the victim’s uncle and had been entrusted with her care. He accepted this responsibility but then took advantage of his position. He preyed upon his niece with the hope and expectation that she would willingly engage in his sexual advances. She did not. She was helpless in the circumstances and could not defend herself.

[ 46 ] The offender was much superior physically to his victim in age as well as in stature. She was five feet five inches tall and weighed 135 pounds.

[ 47 ] The offender was over six feet tall and 270 to 300 pounds in weight.

[ 48 ] The victim should have been able to trust the offender and look to him for guidance and example. Instead he took advantage of her trust and juvenile age to satisfy his own desires. He then denied the encounter and unfortunately has alienated her familial relationships against her.

[ 49 ] I accept the evidence of the complainant as set out in the victim impact statement as being true and accurate.

[ 50 ] The actions of the offender have decimated her self-esteem; she suffers from depression and continues to take counselling and require psychiatric treatment. The effects of her emotional situation have affected her ability to succeed with her education. I respect the fact that the complainant’s determination to succeed is genuine.

[ 51 ] However, in the circumstances I am prepared to accept the fact that the victim has suffered grievous emotional damages as a result of the actions of the offender before the court and that there will be a measure of permanency to her emotional upset and complaint and she will continue to suffer in the years ahead.

[ 52 ] The actions of the offender were despicable and cowardly. In particular I refer to the deliberate way in which he has attempted to destroy her familial relationships.

[ 53 ] The pre-sentence report is thoughtful, analytical and well written. I am impressed by the opinions expressed in it and find them to be reliable.

[ 54 ] With respect to rehabilitation I am concerned by the comment in Exhibit 1 on page 8 as follows:

Recommendation

The subject presents as a relatively low risk for general recidivism. In consideration of the subject’s lack of insight into his offending, lack of responsibility for the current offence, and lack of desire to engage in sexual offence specific counselling, he presents an elevated risk to re-offend sexually especially if he interacts with vulnerable individuals.

[ 55 ] Also I express concern about the following reported history on the same page in the same exhibit.

The subject had been using alcohol and marijuana prior to the offences before the court. The subject has a long history of regular consumption of marijuana and related that this helps him to deal with anxiety. The subject expressed no desire for counselling regarding substance abuse.

[ 56 ] As well, the author of the pre-sentence report at page 7 relates the following:

The subject expressed a desire to move past the matters before the court, accepting the outcome and with a desire to forget what had happened. The subject has shown minimal insight into the offences and invested in blaming the victim of the offence. He has not been challenged on his views by his family or his peers. The subject avoided close consideration of his behaviour relating to the offences stating “I don’t like talking about it. It upsets me and makes me angry”. The subject noted that he did not think he would benefit from counselling related to sexual offending.

[ 57 ] In light of the expressed views above, rehabilitation in my view is likely to be unsuccessful without dramatic change in his attitude.

[ 58 ] Society must know that offences which involve illicit sexual conduct will be dealt with by the courts in a severe and significant way. It is obvious that the offender has not come to grips with the severity of his actions himself and there remains a need for individual deterrence.

[ 59 ] Having regard to all relevant circumstances and sentencing principles I sentence the offender to four years in penitentiary and further the following conditions:

1. Incarceration in penitentiary for a period of four years,
2. Order to comply with the provisions of the Sex Offender Information Registration Act for a period of 20 years,
3. A DNA Order pursuant to s.487.05(1) of the Criminal Code of Canada , report ? To?
4. Order for weapons prohibition pursuant to s. 109 of the Criminal Code of Canada for a period of 10 years,
5. Order under s. 161(1) (a) of the Criminal Code of Canada prohibiting the defendant from attending public parks or public swimming area for a period of 20 years,
6. All of those conditions contained in the last paragraph of page 8 in the pre-sentence report, upon release.

[ 60 ] Lastly, I am convinced in this case that the offender does not appreciate the gravity of the situation that he finds himself in and the seriousness of the offence before the court. That issue may be because of intellectual changes. It is my hope that this sentence will help correct this situation and drive the message home.

Per: Justice John C. Kennedy

Kennedy,

Judge

Released: April 27, 2012

ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – C.R.
REASONS FOR JUDGMENT

Kennedy, Judge

Released: April 27, 2012