ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-SA 5047
DATE: 2012/01/18

BETWEEN:

HER MAJESTY THE QUEEN – and – J.W.(B.)

Vivian-Lee K. Stewart, for the Crown
Rosalind E. Conway, for the Accused

SUBMISSIONS HEARD: December 15, 2011

REASONS FOR sentence

R. SMITH J.

Circumstances of the Offences

1The offender was found guilty of Counts Number 1, 2, 3, and 4. The conviction on Count Number 3 was stayed under the Kienapple principle.

2Under Counts Number 1 and 2, J.W.(B.) was found to have incited and touched in a sexual manner J.B., a 9 year old girl, by directing her to and having her perform fellatio on him in the basement, while he was acting as her caregiver contrary to sections 152 and 151 of the Criminal Code respectively. In addition, he was convicted of threatening to kill her if she did not perform fellatio on him.

Offender’s Circumstances

3The offender is now 35 years old and has resided with his mother as a term of his release on bail for two years, four months and eleven days. In addition, he has spent 79 days in pre‑trial custody.

4The offender has not been employed since the charges were laid and had worked for some periods as a line cook in restaurants.

5He was not the biological father of J.B. but he acted as her father since she was two and one half years of age until the separation. He was acting as her caregiver when this incident occurred. He also had two other children with J.B.’s mother.

6He has established a relationship with a new common law spouse and he filed several letters of reference by his mother‑in‑law and other family members of his new partner.

7J.W.(B.) has no previous criminal record.

Impact on the Victim

8J.B. filed a victim impact statement and said she has had nightmares, has been sick to her stomach, dizzy and had headaches. As a result of the physical symptoms, she has missed activities and has had academic difficulty. She has lost sleep and felt trapped at home and worried about her younger brother and sister.

9I accept the Crown’s submission that J.B. would have suffered a loss of self‑esteem by being forced to perform sexual acts as directed by the offender and threatened if she did not do as directed.

Positions

10The defence submits that a sentence of two years in prison plus three years probation is appropriate. The defence seeks credit for the 79 days spent in custody before submissions on sentence on a two for one basis which amounts to a credit of five and one quarter months. The defence is also seeking credit for the period in custody between submissions on sentence and the date of sentencing. The defence seeks additional credit for the two years and four months the accused was on bail while awaiting trial.

11The Crown submits that the range of sentence for this type of sexual assault on a young girl is between three to five years in prison and in these circumstances, the Crown is seeking a term of imprisonment of five years plus incidental orders.

Mitigating Factors

12The following are mitigating factors:

(a) the offender has no prior criminal record;

(b) he has followed his bail conditions for two years and four months, without any breaches. The bail condition required that he reside with his mother and comply with a 10:00 p.m. curfew;

(c) a number of letters of reference from his common law partner’s family state that he was helpful, hard working and loyal. However, it is unclear if they are aware of the details of this conviction. I gave little weight to the references as the offender was also helpful to his former partner by looking after the children while she was at work;

Aggravating Factors

13The following are aggravating factors:

(a) section 718.2(a)(ii) recognizes that the fact that the offender abused J.B. who was 10 years old at the time of the offence as an aggravating factor;

(b) the offender occupied a position of trust and authority as he acted as J.B.’s father. He was in loco parentis to her from two and one half years of age until the separation when she was ten years old. He was also acting as her caregiver when the offence occurred and the conduct occurred at the child’s home;

(c) the fact that the offender has not been employed since these charges, has not attended any counseling and has shown no remorse as indicated in the pre‑sentence report are not aggravating factors but rather the absence of potential mitigating factors;

(d) the sexual touching occurred along with threats. The offender used fear and guilt on J.B.;

(e) while the offender is only convicted of one offence, there was evidence of a pattern of abuse and of grooming of the child for further sexual acts;

(f) the offender abandoned his children and family and simply did not show up to care for them without giving any notice. While this conduct is not directly related to the convictions, it shows and attitude of not caring about the emotional needs of his young children as well as J.B.;

(g) there has been a substantial impact on a young girl who has had physical symptoms of nightmares, stomach aches, headaches and she has had to attend counselling. Her self‑esteem will be affected by the breach of trust committed by a person in loco parentis to her.

Principles of Sentencing

14The overall sentencing principles are that of denunciation and deterrence. The principle of rehabilitation is also applicable as the offender has no prior criminal record.

Case Law

Credit for time on bail

15The defence submits that I must take into account the time spent by the offender on bail conditions as a relevant mitigating factor following the Court of Appeal’s decision in R. v. Downes , 2006 3957 (ON CA) at paragraph 33.

16The Downes case dealt with a situation where the accused had been subject to house arrest for a period of time . House arrest is a stricter condition than being subject to a curfew. The Court of Appeal stated that there was no rigid formula to follow as there is a wide variation in bail and house arrest conditions. In this case, J.W.(B.) was not subject to house arrest. He was free to leave his mother’s home for whatever reason including work if he had wished to do so.

17The offender was required to live with his mother and was not permitted to continue living with his new common law partner. This condition does constitute additional hardship but the condition was imposed in his case because of the alleged sexual abuse of a young girl, and his new common law partner also had young children which the offender assisted in caring for from time to time. The reason for imposing this condition was not to punish or restrict the offender but rather to protect the young children of his common law partner who would have been in his care but for this condition.

18I find that the period of bail with both a curfew and the requirement that he reside with his mother have had a very minimal impact on the offender’s pre‑bail way of life. These conditions are very different from house arrest where some credit may be given. I will not give five months credit for time spent on bail but will consider the time spent on bail subject to the two conditions as a mitigating factor.

Range of Sentence

19The defence submits that the Crown’s suggested range of three to five years is only appropriate where there has been full intercourse with an underage child which has not occurred. The Crown argues that fellatio is also a serious violation of the child’s integrity and that being compelled to perform a sexual act which involves penetration of the mouth with his penis is the same as intercourse. I find the offender’s actions are not quite as aggravating as full intercourse but that they constitute a very serious violation of this young child’s integrity.

20The defence further submits that the offender should only be sentenced based on the charge that the fellatio occurred on only one occasion even though the child testified that it had occurred on many occasions. I agree with this submission.

21In R. v. F. (G.C.) , 2004 4771 (ON CA) , 188 C.C.C. (3d) 68 (ON CA) , the Court of Appeal held that a sentence of two years in prison was appropriate and gave credit on a one for one basis for the time served on a conditional sentence.

22The offender was 31 years of age and engaged in fellatio and intercourse with one 13 year old victim and sexual fondling and kissing with the other 13 years old girl. There was intercourse with one child and two victims were older than J.B. The Crown had sought a period of incarceration of 18‑24 months.

23In R. v. R. F. , 2010 ONCJ 394 , the offender undressed and digitally penetrated a nine year old. He was sentenced to 90 days in jail plus one 18 month conditional sentence. However, the conduct of the offender was not as serious as the conduct on the case before me.

24In R. v. J. (A) , 2010 ONCJ 589 , the accused pleaded guilty to digitally penetrating a ten year old girl’s vagina. She was his step‑granddaughter. The accused also performed oral sex on a stepdaughter. He was sentenced to two years in prison plus three years probation in total on both counts.

25In R. v. Sabbe , 2011 ONSC 3627 a sentence of one year in prison plus three years probation was imposed. The Crown and defence had made a joint submission seeking a conditional sentence plus two years probation. The offender had performed oral sex on his adopted daughter who was between seven and twelve years of age and had her masturbate him and he rubbed his penis between her legs. The offender was 35 years of age, pleaded guilty , was employed, had a supportive family and had a long history of alcohol abuse.

26In R. v. L.T. , 2011 ONCA 280 , the Ontario Court of Appeal imposed a sentence of three years in prison where the accused digitally penetrated and had sexual intercourse with an eight year old child who was sleeping over at his home. In this case, there was intercourse but the offender was not in a position of trust. There were also threats.

27The Crown has also set out a number of decisions where sentences in the range of five years were upheld or imposed by the Court of Appeal which were summarized in a chart and are outlined below:

(a) R. v. Costin , [1993] O.J. No. 3203 involved a sexual assault on a stepdaughter. A sentence of five years in jail was imposed;

(b) R. v. Blaedow , [1994] O.J. No. 3663 involved a conviction for indecent assault on his daughter and the daughter of his common law wife, also involved death threats and the offender was in loco parentis and there was a breach of trust;

(c) R. v. Peterson , (1996) 1996 874 (ON CA) , 27 O.R. (3d) 739 involved sexual assaults and touching of three victims at a home daycare operated by the offender’s wife; the offender forced a four and one half year old to perform fellatio on him. A sentence of five years was imposed;

(d) R. v. Carrignan , [1997] O.J. No. 2626 involved three counts of sexual interference on three young victims. A sentence of five years in jail was upheld;

(e) R. v. A.S. , (1998) 1998 14610 (ON CA) , 130 C.C.C. (3d) 320 involved mutual masturbation and anal intercourse with his stepson; there was protracted daily abuse; in loco parentis and position of trust. A sentence of four years in prison was imposed;

(f) R. v. L.F. , [1999] O.J. No. 1239 involved intercourse with a 13 year old victim where the offender was viewed as a stepfather and was in loco parentis . A sentence of four years in jail was imposed;

(g) R. v. G.A.G. , (2006) 206 O.A.C. 134 involved fondling, mutual masturbation and fellatio of an adopted son and a nephew; the abuse occurred over many years, he was in loco parentis and a position of trust. A sentence of four years and ten months was imposed;

(h) R. v. L.W. , 2009 ONCA 123 involved sexual touching forced masturbation and forced fellatio of his two step‑granddaughers; victims were between nine and ten years old and there was a breach of trust. A sentence of four and one half years in jail was imposed;

(i) R. v. I.F. , 2011 ONCA 203 involved sexual touching, oral sex, watching pornography and forced masturbation of three step‑granddaughters who were between 10 to 14 years of age. The abuse lasted eight years and the offender was in loco parentis . The sentence was increased to a total of four years in prison.

28None of the above cases are exactly on point as the facts in each case are slightly different. However, where there has been a sexual assault of a young girl with intercourse, by someone in loco parentis , and where there is a breach of trust, then the Court of Appeal decisions indicate a sentence of four to five years in prison. J.W.(B.) was in loco parentis to J.B. and committed a serious breach of trust when he forced the child to perform fellatio on him. While there was no intercourse or other vaginal touching or digital penetration, I find the forced fellatio accompanied by death threats by a person in loco parentis is a very serious sexual assault.

29The offender was only charged with one offence even though the complainant testified that the conduct had occurred on several occasions. In the circumstances, I will only sentence the offender based on the charge for which he was convicted.

Disposition

30Having considered all of the above factors including the mitigating and aggravating factors and the case law cited by counsel, in order to meet the sentencing principles of denunciation and deterrence, I impose a sentence of four years in prison on Counts 1 and 2.

31The offender will be given credit for five and one half months for time spent in pre‑trial custody and two months credit for the 34 days spent in custody between December 15, 2011 and January 18, 2012 leaving a balance of the sentence of three years and four and one half months. The accused is sentenced to one year in prison on Count Number 4 concurrent to the sentence on Counts Number 1 and 2.

32There will be incidental orders as requested by the Crown, including providing a DNA sample pursuant to section 487.04 of the Criminal Code , a weapons prohibition for ten years pursuant to section 109 of the Criminal Code , an order pursuant to section 161(1) (a)(b) and (c) of the Criminal Code for life, and an order pursuant to section 490 of the Criminal Code . There will be no victim surcharge.

R. Smith J.

Given Orally: January 18, 2012