ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-10000739-0000
DATE: 201204 25

WARNING

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code .

BETWEEN:

HER MAJESTY THE QUEEN – and – M. C.

N. Golwalla, for the Her Majesty the Queen
M. Czuma, for M.C.

HEARD: April 25, 2012

Thorburn j.

reasons for SENTENCE

1. The Offences Committed

[ 1 ] M.C. was convicted of sexual assault, unlawful confinement, sexual touching of a child under the age of fourteen and one count of threatening to kill a Complainant and his family. The facts of this case are set out in detail in my Reasons for Judgment dated March 1, 2012.

2. The Facts Surrounding these Offences

[ 2 ] M.C. is the Complainant’s paternal uncle. At the time this incident took place, the Complainant was seven years old. He is now twelve years old.

[ 3 ] During the summer of 2007, the Complainant was visiting his grandparents’ home for a family gathering with his father. His father left to do an errand and the Complainant went into the second floor washroom at his grandparents’ home.

[ 4 ] He was wiping himself after defecating when he heard a knock at the door. He called out that someone was in the washroom but M.C. entered anyway. M.C. did not speak to him but locked the door. The Complainant said he became very afraid as he thought his uncle would hurt him.

[ 5 ] He started to scream but M.C. took a towel from the cupboard above the toilet tank and stuffed it on his mouth. M.C. put the Complainant’s hands down. The Complainant got up from the toilet and M.C. stood behind him, put his hands around his waist, fondled his genitalia and then “grabbed his balls” and squeezed them. M.C. then pushed the Complainant to the wall opposite the toilet and inserted his penis into the Complainant’s anus. The Complainant said his “bum” hurt as he felt M.C. thrust his penis inside of him.

[ 6 ] The Complainant said that when they heard a creaking sound on the stairs, M.C. pulled his penis out of the Complainant’s anus, did up his trousers, washed his hands and left the washroom. As M.C. left, he told the Complainant that if he told on him and he got in trouble he would kill the Complainant and his family.

[ 7 ] The Complainant had rectal bleeding for approximately two weeks after the incident.

[ 8 ] On April 25, 2009, the Complainant suffered a seizure. According to a police officer who witnessed the seizure, the Complainant was on the floor crying with his eyes closed. He was hunched on the floor with tears running down his face and laboured breathing. The Complainant rolled around in a foetal position crying and moaning. At one point it looked like he had fainted and his breathing became very fast. According to her notes he said, “He’s going to kill me...it hurts”. He then grabbed his penis. His mother said “You’re safe”. The Complainant replied, “It hurts mum.” The Complainant seemed to be experiencing physical pain. At some point the Complainant held his penis and sometimes his behind outside his clothes.

[ 9 ] Moments later the telephone rang. All of a sudden the Complainant moved away toward the wall in complete panic, went back to a foetal position and said, “It’s uncle. It’s uncle.” His face was in a protective position up against the wall so no one could hurt him. He looked very afraid.

3. The Circumstances of this Offender

[ 10 ] M.C. is a 40 year old man who was born in Ecuador. He came to Canada when he was six years old and has lived here most of his life. His ability to speak English is limited.

[ 11 ] He is one of seven children. He is close to his six siblings and his parents all of whom are living in the greater Toronto area. They see each other often at family gatherings.

[ 12 ] M.C. has a dated Canadian criminal record for assault. Domestic dispute allegations were made against him twenty years ago in Ecuador and he is awaiting trial on an over 80 driving charge.

[ 13 ] He is separated from his wife but she maintains a good relationship with him. He has three children ages 19, 16 and 12. The two younger children live with their mother.

[ 14 ] No Pre-Sentence Report or psychological report was obtained and thus no further information was available.

4. The Circumstances of the Complainant and his Family

[ 15 ] The Complainant has suffered psychological harm resulting from this assault. For several years after the incident, he had behavioural problems including fits of anger whereby he punched holes in the walls and doors of his home.

[ 16 ] In his victim impact statement, the Complainant says that as a result of this incident he did not want to go to school, missed a great deal of school and was depressed. He continues to have nightmares about his uncle coming to hurt him. Moreover, after the Complainant came forward, he was alienated from all of the members of M.C.’s family including his own father. None of them believed that he was sexually assaulted. He said, “After this happened I never felt safe and didn’t feel safe around other men or in the washroom by myself.” The Complainant says he wishes to have no contact with his father or any of his father’s family.

[ 17 ] In her victim impact statement the Complainant’s mother states that,

At first when he had not admitted what had happened to him and was having severe outbursts of anger, that was a very difficult time..As a result his anger, anxiety and depression continued to manifest themselves in various ways. As a mother, it was completely heartbreaking and unbearable to see my child suffering so greatly every day of his life. He hurt himself. He hurt me.

…Being alone throughout this and having to raise a child suffering from the effects of trauma, eventually took its toll on me and I suffered a nervous breakdown at the end of 2010, from which I have still not fully recovered…

[My son] has gone from a straight A student to a C’s and D’s achieving student.

[My mother’s] health has declined rapidly these past few years, watching her grandson suffer so much caused her great pain and illness. And in turn that also affected [the Complainant] as he always worries about his grandmother’s health. We have all had to suffer watching each other struggle to cope with the effects of this trauma.

The fact that M.C. was found guilty helped him feel validated, but the effects of this trauma continue to cause him emotional pain, and in turn, cause me emotional pain as well….

I incurred expenses for therapy, travel to and from medical appointments and therapy appointments. I have had to occupy my son’s time with constant activities such as movies, shows, and buy him things like toys, books to try to help ease the emotional pain from which he suffers….I have had to sell my house now as I cannot manage anymore, and I truly believe that had all of this not happened I would not have had to make the financial decisions that I am now making.

5. The Positions of the Crown and Defence

The Crown Position

[ 18 ] The Crown seeks a total sentence of six to seven and one half years’ incarceration. The Crown submits that a sentence of this length is important to reflect the important principles of denunciation and deterrence. This was a vicious sexual attack on a vulnerable child committed in his grandparents’ home while the Complainant was in the washroom. The victim was only seven years old and M.C. was in a position of trust.

[ 19 ] The Crown suggests M.C. should receive a sentence of six to six and one half years for sexual assault and a consecutive sentence of eighteen months for the two death threats.

[ 20 ] The Crown suggests the sentence for forcible confinement should be served concurrently with the sentence for sexual assault of a minor.

[ 21 ] The sentence for sexual assault should be stayed pursuant to the Kienapple principle. The Kienapple principle provides that where the physical acts related to one count are identical to those that pertain to a second charge, the rule against multiple convictions is engaged and a stay of proceedings is entered. ( R. v. Kienapple , 1974 14 (SCC) , [1975] 1 S.C.R. 729.)

The Defence Position

[ 22 ] The Defence suggests that a sentence of eighteen months is appropriate in these circumstances. The Defence states that this was a twenty minute incident in an otherwise unblemished life. It was not a premeditated act involving grooming or repeated assaults. Moreover, there was no breach of trust as there was no trust relationship between the Complainant and M.C.

6. The Principles of Sentencing

[ 23 ] Sentences must meet one or more of the objectives set out in s. 718 of the Criminal Code :

(1) denounce unlawful conduct;

(2) deter the offender and others from committing offences;

(3) separate offenders from society where necessary;

(4) assist in the rehabilitation of offenders;

(5) provide reparation for harm done to victims or to the community; and

(6) promote a sense of responsibility in offenders, and acknowledge the harm done to victims and to the community.

[ 24 ] Those who prey on the most vulnerable, breach the fundamental rules of society and must receive society’s strong condemnation. Denunciation and deterrence are therefore particularly important considerations when dealing with sexual offences involving minors.

[ 25 ] When determining the appropriate sentence, the paramount question is, “What should this offender receive for this offence, committed in these circumstances?”

7. Analysis of the law

Is there a Trust Relationship between M.C. and the Complainant?

[ 26 ] The expression “position of trust” is not defined in the Criminal Code . The Oxford English Dictionary (2 nd Ed) Volume 18, (Oxford: Clarendon Press, 1989) defines position of trust as: “The obligation or responsibility imposed on one in whom confidence is placed or authority is vested or who has given an undertaking of fidelity.”

[ 27 ] In R. v. Audet (1996), 1996 198 (SCC) , 106 C.C.C. (3d) 481 at para. 38 (S.C.C.), Lamer J. for the majority of the Supreme Court of Canada held that, “It will be up to the trial judge to determine, on the basis of all the factual circumstances relevant to the characterization of the relationship between a young person and an accused, whether the offender was in a position of trust or authority towards the young person or whether the young person was in a relationship of dependency with the offender at the time of the alleged offence. … It would be inappropriate to try to set out an exhaustive list of the factors to be considered by the trier of fact. The age difference between the offender and the young person, the evolution of their relationship, and above all the status of the offender in relation to the young person will of course be relevant in many cases.”

[ 28 ] In R. v. P.S. , [1993] O.J. No. 704 (Gen. Div.) , Blair J. held that:

What is in question is a broader social or societal relationship between two people, an adult and a young person. "Trust", according to the Concise Oxford Dictionary (8th ed.), is simply a firm belief in the reliability or truth or strength of a person. Where the nature of the relationship between an adult and a young person is such that it creates an opportunity for all the persuasive and influencing factors which adults hold over children or young persons to come to play, and the child or young person is particularly vulnerable to the sway of these factors, the adult is in position where those concepts of reliability and truth and strength are put to the test. Taken together, all of these factors combine to create a "position of trust" towards the young person.

[ 29 ] A position of trust is founded on notions of safety and confidence and reliability that the special nature of the relationship will not be breached. R. v. Kyle , (1991), 1991 7203 (ON CA) , 68 C.C.C. (3d) 268 (Ont. C.A.).

[ 30 ] In this case, there is a significant age difference between the Complainant and M.C. The Complainant’s own father had left the home. The Complainant was only seven years old. The Complainant’s father left his young son in the care of his family in the grandparents’ home while he went to do an errand. M.C. was the Complainant’s uncle and was both an authority figure and family member. Moreover the Complainant was assaulted while in a vulnerable state using the toilet.

[ 31 ] For these reasons I accept that there was a trust relationship between the Complainant and M.C.

Sentences Imposed in Comparable Circumstances

[ 32 ] A wide range of sentences have been imposed in cases involving sexual assault on a minor. The circumstances of this case are atypical as the incident involved no grooming but was one sudden but very serious sexual assault on a young child.

[ 33 ] The Criminal Code provides the following sentences for these offences:

(i) for sexual interference with a minor, a maximum of 10 years imprisonment;

(ii) for forcible confinement a maximum of 5 years imprisonment; and,

(iii) for threatening death, a maximum of 5 years imprisonment.

[ 34 ] In the leading case of R. v. D.D. 2002 44915 (ON CA) , [2002] O.J. 1061 (O.C.A.), the offender was convicted of numerous sexual offences against four boys all of whom were under eight years of age. The offender was in a position of trust to all four boys. The wrongful acts included masturbation, group sex, oral sex, attempted and actual anal intercourse. The offender assaulted the boys and threatened them in an effort to maintain their silence. One boy was hung over a balcony. The offender also threatened to make public compromising photographs if the boys exposed his offences. In R. v. D.D ., Moldaver J.A. held that,

I am of the view 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.

[ 35 ] In R. v. P.M ., 2012 ONCA 162 at para. 46, Rosenberg J.A. for the majority held that “where a father has committed repeated acts of incest with his daughter over many months, as in this case, it will be highly unusual for the court to impose a penitentiary sentence of less than five to six years.”

[ 36 ] In R. v. B.(J.) , [1990] O.J. 36 (O.C.A.) , the offender was convicted of repeated acts of sexual assault and indecent assault on his stepdaughter. He began having sexual intercourse with his stepdaughter when she was six years old and continued to have frequent intercourse with her until she was 14. The trial judge’s global sentence of 8 years was upheld by the Court of Appeal.

[ 37 ] In R. v. M. (W.W.), (2006), 2006 3262 (ON CA) , 205 C.C.C. (3d) 410 (Ont. C.A.) the offender sexually abused two half-sisters when they were small children. The offender was between 16 and 21 at the time of the offences. The abuse consisted of repeated acts of vaginal intercourse. The victims were ages 8 and 9 when the abuse began. It continued for 2 years with one victim and 4 years with the other. The offender was convicted of two counts of incest. He was sentenced to four years in prison. The sentence was upheld on appeal.

[ 38 ] In R. v. Woodward , 2011 ONCA 610 () , [2011] O.J. No. 4216 (O.C.A.), the offender was found guilty of luring a child he knew was only twelve years old for the purpose of committing sexual interference. He engaged in sexually explicit discussion. When he met her he put her hand on his penis, had her perform fellatio on him, told her to bend over and had sexual intercourse with her. He lured her to the meeting by promising her millions of dollars if she engaged in sex acts with him. In these circumstances, the Court of Appeal held that a six and one half year sentence was not excessive.

[ 39 ] In R. v. A.G ., 2004 36065 (ON CA) , [2004] O. J. No. 4563 (C.A.), the offender was convicted of attempted rape and indecent assault against his niece. The offences took place approximately 30 years before charges were laid. They related to two specific incidents neither of which involved actual sexual intercourse although he attempted to penetrate her vaginally. He had already served a nine-month conditional sentence in relation to charges involving the same complainant and he had taken steps over the years to rehabilitate himself. The offender was convicted and sentenced to 36 months in prison.

[ 40 ] Finally, in R. v. J.S ., [2008] O.J. No. 4379 , an offender was sentenced to five years in prison for three counts of sexual intercourse with his step-daughter who was between six and eight years old.

[ 41 ] While these cases are useful to understand the principles behind the imposition of sentences in cases involving sexual assault of a minor, none of the above cases referred to me involve facts similar to this case. Sentences must be appropriate to the distinguishing features of each case.

8. Aggravating and Mitigating Factors

[ 42 ] The aggravating factors in this case are:

(a) the Complainant was only seven years old at the time the incident took place (pursuant to section 718 (a) 2.1 of the Criminal Code );

(b) M.C. was in a position of trust (pursuant to section 718 (2) (a) (3) of the Criminal Code );

(c) the abuse occurred in the Complainant’s grandparents’ home, a place that should have been a place of safety and security;

(d) the sexual assault was violent and involved grabbing the young Complainant, stuffing a towel on the Complainant’s mouth to prevent him from crying out and shoving his penis into the Complainant’s anus; and

(e) the Complainant and his mother continue to suffer psychological harm.

[ 43 ] The mitigating factors are:

(a) M.C. has only a minor dated criminal record for unrelated offences and he has been on bail without incident since April, 2009;

(b) M.C. has otherwise been a law-abiding citizen;

(c) his family is supportive of him; and

(d) he has been employed throughout and many positive references were provided by family, long-term friends and employers attesting to his excellent work ethic and otherwise good character.

9. Conclusion

[ 44 ] In sentencing those guilty of sexual assault, the court must look at the seriousness of the offending act, the number of offences committed, the duration of the offence, and the circumstances surrounding the commission of the offence. ( R. v. Stuckless (1998), 1998 7143 (ON CA) , O.J. No. 3177 at para. 55 (O.C.A.) .) Denunciation and deterrence are extremely important given that this case involves a serious sexual assault on a minor.

[ 45 ] The offence was a single vicious assault on a young Complainant that was accompanied by violence and death threats. The extent of abuse in this case is very serious. It involved full penetration by an adult male on a young boy who was his nephew. Force and violence were used to hold the boy, and stuff a towel on his mouth so that he would not cry out. M.C. attempted to ensure the Complainant’s silence with the threat of violence.

[ 46 ] The Complainant was in a trust relationship with his uncle while his father was away and the Complainant was in his grandparents’ home.

[ 47 ] Unlike almost all of the other cases brought to my attention, there was no grooming of the Complainant. Moreover, t here is no evidence that M.C. ever engaged in this type of behaviour before. However, he does not acknowledge having committed this offence and it is therefore difficult to predict his prospects for rehabilitation or his willingness to obtain treatment.

[ 48 ] The Complainant and his mother continue to have significant difficulty getting on with their lives and have suffered a great deal as a result of this incident.

[ 49 ] In determining the appropriate sentence, I have considered the principles of sentencing, the aggravating and mitigating circumstances, the fact that there was a trust relationship between M.C. and the Complainant, and that the Complainant and his mother have had serious difficulties coping as a result of this incident. I have also considered M.C.’s prospects for rehabilitation which are questionable given that he does not acknowledge the need for treatment. I have considered the case law regarding the appropriate range of sentences for these offences and am cognizant that the punishment must reflect the particular circumstances of this case and this offender.

[ 50 ] I have paid specific attention to the fact that there is no allegation of any previous or subsequent assaults on any children, while at the same time taking into account the vicious nature of this particular assault on this vulnerable little boy who was M.C.’s nephew.

[ 51 ] With this in mind, I believe an appropriate global sentence is five years and three months: four and one half years’ incarceration for this one unprecedented but very brutal incident of sexual interference on a minor, a concurrent sentence of one year for the offence of forcible confinement, and a consecutive nine month period of incarceration for uttering death threats against the Complainant and his mother. From this global five and three month sentence shall be deducted the 85 days M.C. has spent in pre-sentence custody.

[ 52 ] In addition to the statutory conditions set out in s. 742.3(1), M.C. shall comply with the following conditions:

(a) M.C. is prohibited from carrying weapons for life pursuant to section 109 of the Criminal Code ;

(b) M.C. must provide a sample of his DNA pursuant to s. 487.05(1) of the Criminal Code as sexual assault is a primary designated offence;

(c) M.C. must comply with the Sex Offender Information Registration Act , 2007, c. 5, s. 12 , pursuant to section 490.013(2.1) for life (as M.C. is guilty of more than one enumerated offence listed); and

(d) upon being discharged and for two years thereafter, M.C. shall not be permitted to attend a public park, swimming centre, daycare centre, or school ground unless accompanied by another adult nor shall he seek to obtain employment from such an establishment, pursuant to section 161 of the Criminal Code .

Thorburn J.

Released: April 25, 2012

COURT FILE NO.: 10-10000739-0000
DATE: 20120425

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – M.C.

REASONS FOR SENTENCE Thorburn J.

Released: April 25, 2012