COURT FILE NO.: 10-5003
DATE: 2012-06-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Lia Bramwell, for the Crown
- and -
C. H.
Cedric Nahum, for the Defence
SENTENCING SUBMISSIONS HEARD: March 30, 2012, at Ottawa, Ontario
Madam Justice B. R. Warkentin
Reasons on Sentence
[1] On December 13, 2011, after nine days of trial, a jury convicted C.H. of one count of sexual touching (s.153(1)(a)), one count of sexual assault (s.271), and one count of invitation to sexual touching (s.153(1)(b)).
[2] I heard sentencing submissions from counsel on March 30, 2012, received a pre-sentence report, a section 21 sexual behaviours assessment and victim impact statements from the complainant and the former common law spouse of C.H. I reserved my decision until today.
[3] Both the complainant and C.H. bear the same initials therefore I will refer to the accused as C.H. and the complainant as C.
Facts
[4] One night in January 2007 when C was 12 years old her father, C.H. asked her to have a drink with him. This occurred when her mother was at work. C.H. presented C with alcohol in the form of a drinking game using shot glasses with x's and o's on them. When C began to feel the effects of the alcohol, C.H. began to make sexual advances towards her. He initially used a set of dice that had foreplay activities written on each of the dice.
[5] For example, the dice said things like: fondle breasts, touch vagina, lick thigh, etc. C rolled the dice and C.H. then performed the associated activity from the roll of the dice on C.
[6] After engaging in this activity for a period of time, C.H. and C went to C.H.'s bedroom and there further sexual activity took place, which included the removal of C's clothing, more fondling of her breasts and vagina and C.H. performing oral sex on C. C.H. then asked C if she wanted to see what her mother liked. C also claimed that C.H. forced her to perform oral sex on him.
[7] C recalled leaving C.H.'s bedroom and heading back to her own bed, but before getting there she threw up. She did not recall what happened after that, but when she awoke the next morning, she was in her own bed with her clothes having been changed.
[8] Two years later in late December 2009 and early 2010, when C was 14, she and one of her friends asked C.H. if they could have a party in C’s bedroom. For the party, they asked C.H. to purchase alcohol and marijuana for them.
[9] When approached, C.H. told C he would think about it and a few days later, he passed her a note which said he would agree to the party provided C gave him a BJ and C and her friend agreed to let him take nude photos of them. C testified that the initials "BJ" stood for a blow job.
[10] C wrote a note back to her father, C.H., asking if she had to do this.
[11] A few days later C sought advice from friends. She told them what had happened and showed the note from C.H. to the mother of one of her friends.
[12] That parent then took steps to notify C’s mother and shortly thereafter police and CAS became involved and C.H. was charged with the offences for which he was convicted.
[13] The Crown is seeking a sentence of 4 years' incarceration. Counsel for the defence submitted that a sentence of 18 months to 2 years would be the appropriate sentence.
[14] C.H. has a prior criminal record of a conviction for fraud over $5,000 from 1997, five convictions for failure to comply with a probation order during the period of 2001 through 2004 which were related to the fraud conviction, a conviction on January 19, 2011 for possession of a prohibited firearm (a sawed off shotgun) with ammunition and failure to comply with a bail condition, for which he received a prison term of 34 months and 30 days concurrent for each of the convictions.
[15] The possession of a firearm offence and conviction occurred after C.H. was charged with the sexual offences against C.
Circumstances of C.H.
[16] C.H. is presently 45 years old. At the time of his arrest, he was living with his common law spouse of approximately 18 years and their 3 daughters, one of whom was C. C.H. has a grade 9 or 10 education and after entering the work force obtained certificates in flooring, welding, car mechanics, bicycle mechanics, auto body and woodworking.
[17] During the 3 years prior to his arrest, C.H. was employed by a tire company in Ottawa.
Pre-Sentence Report and Sexual Behaviours Assessment
[18] No viva voce evidence was called during the sentencing hearing however, a pre-sentence report and a Section 21, sexual behaviours assessment were prepared in advance of the sentencing submissions. Both reports confirm that C.H. is the second youngest child of 6 children. C.H. has little contact with any of his siblings except one older brother, with whom he worked at the tire shop prior to his arrest and with whom he lived after his release on bail.
[19] C.H. has no alcohol or drug problems but did admit to having smoked marijuana in minimal amounts to alleviate migraine headache symptoms. C.H. has no history of psychological illness and had never been treated for mental health issues. After his arrest for these offences, C.H. had a major depressive episode and he has been treated first with Effexor and then another medication which he currently takes for depression.
[20] C.H. is currently incarcerated on the firearms charge. The final warrant expiry date is October 24, 2013. He claimed to have obtained the sawed off shotgun for the purpose of committing suicide and that on 3 occasions, he wanted to attempt suicide, but did not follow through with the attempt.
[21] C.H. does not accept responsibility for the crimes for which he was convicted and in fact continues to deny he committed the offences against C.
[22] The pre-sentence report noted that C.H. has no long term goals. He claimed to be feeling mentally and physically sick. C.H. indicated that he has no place to go when he is released from prison.
[23] The sexual behaviours assessment noted that C.H.'s overall profile on the Derogatis Sexual Functioning Inventory, a standardized assessment of general attitudes and experiences on the subject of sex, showed C.H.'s overall profile showed sexual dysfunction which is typical of sexual offenders. Most of the other tests administered during the sexual behaviours assessment did not demonstrate scores that were outside the average ranges; however, his responses on the Paulhus Deception Scale, designed to give a description of the subject's reporting style on questionnaires, were in the very upper limit of normal on the "Impressions Management" subscale suggesting a possibility that he was trying to create an overly positive image of himself.
[24] The staff physiatrist, Dr. Jonathon Gray, who conducted the sexual behaviours assessment classified C.H. as at the lowest risk category (a 1 on a scale of 5) of convicted Canadian sexual offenders to reoffend. Dr. Gray explained that his opinion of C.H.'s lower risk of reoffending was in part based on C.H.'s relatively advanced age, the fact that his victim was female and biologically related ho him, the absence of prior sentencing for sexual offences and an absence of any sentencing in the past for non-contact sexual offences.
[25] Dr. Gray noted that in the literature, those with offences against victims biologically related to them have a lower tendency to be sexually aroused generally by children than do those offenders who offend against extra-familial victims. Nonetheless, Dr. Gray cautioned that despite the low actuarial score for sexual re-offence, there were areas of concern in C.H.'s case. He noted that the behavior towards C bore some similarity to the alleged conduct towards her teenaged friends. C.H. had asked several of C's friends to appear on the webcam or otherwise take pictures of themselves baring their breasts. C.H. was not charged with these offences, but for the purpose of the sexual behaviours assessment, that conduct suggested that C.H.'s inappropriate sexual behavior may extend beyond his immediate family which would constitute a stronger risk of re-offending.
[26] Dr. Gray recommended, if a further period of incarceration was warranted, to recommend placement at an institution where he should receive treatment as a sexual offender; that upon his release, C.H. should have continued follow-up treatment at the Sexual Behaviours Clinic as an outpatient; and that C.H. be prohibited from being in a position of trust or authority over teenaged or younger females and that he should have no unsupervised contact with teenaged or younger females.
Victim Impact Statements
[27] I have carefully reviewed C's victim impact statement. It reflects the profound effect C.H.'s conduct has had on her. Her relationships with boyfriends and family are strained; she is angry all the time and has started doing drugs and smoking and drinking more frequently. C described feeling both angry at, and betrayed by her father. She also feels sad because she was once very close to C.H. and loved him very much. She spoke about how her life has now been irrevocably changed and she can no long focus. Since the second incident, C began failing at school and getting into fights and at one point was expelled from her school.
[28] In her victim impact statement, K.S., C's mother and former spouse of C.H., talked about how these events have affected her and her family. She has been unable to work since the charges were laid resulting in the family relying on social assistance. The family was forced to relocate to a different part of Ottawa because they could not afford to stay in their home, which meant the children lost the friends and relationships they previously had. K.S. now suffers from stress and sleeps only about 2 hours each night after which she wakes from nightmares. As a result, she finds it difficult to concentrate and regularly forgets things. On two occasions K.S. fainted due to the stress and had to be briefly hospitalized. K.S. spoke of the emotional turmoil she struggles with which includes the difficulty she has with her daughters and her own depression and inability to trust others.
Defence Position on Sentence
[29] Counsel for C.H. noted that on his current sentence, C.H. was first eligible for parole in August 2011 but has been unable to obtain parole because he has been in custody pending trial on these current convictions. Defence counsel confirmed that this current custodial time does not count as pre sentence custody, but asked that the court take into consideration that C.H. has been in custody for approximately 8 months pending the resolution of this proceeding.
[30] Counsel for C.H. also claimed that that C.H. has suffered greatly from the effect of these charges on his life in that he has lost most of his contacts in the community and has suffered from stigmatization as a sexual offender in spite of the publication ban on these proceedings.
[31] In addition, C.H. has suffered from major depression and suicidal ideation. He claims the only reason for having the sawed off shot gun in his possession was for the purpose of committing suicide.
[32] Counsel for C.H. claimed that the social effect that C.H. has suffered as a result of this proceeding against him is something the court should take into consideration as a mitigating factor when imposing sentence, but agreed that general deterrence and denunciation are the significant considerations in this case.
[33] Notwithstanding the considerations of denunciation and general deterrence, counsel for C.H. asked the court not to impose a sentence that is out of proportion to the harm caused. He claimed that the longer sentences for sexual offenders relate to offences against more vulnerable individuals than C.
[34] Counsel for C.H. acknowledged that the facts in this case are serious but suggested a sentence within the range of 18 to 24 months would be appropriate, particularly in light of C.H.'s current incarceration; his inability to obtain psychiatric services while incarcerated and his inability to obtain parole.
General Principles of Sentencing
[35] Pursuant to section 271(1)(a) of the Criminal Code, everyone who commits a sexual assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. There was no minimum sentence in place at the time of these charges. Pursuant to sections 151(a) and 152(a) of the Criminal Code, the maximum sentence for the convictions of sexual interference and invitation to sexual touching is ten years for each, with a minimum sentence of 45 days.
[36] Section 718 of the Criminal Code sets out a list of principles and objectives that applies when a court must determine a fair and just sentence. That section states that any sentence must reflect one or more of the following objectives:
• To denounce unlawful conduct;
• To deter the offender and other persons from committing crimes;
• To separate offenders from society where necessary;
• To assist in rehabilitating offenders;
• To provide reparations for harm done to victims or to the community; and
• To promote a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community.
[37] The principle of denunciation is an expression of society’s attitude towards the offence committed. It focuses on the aspect of conduct, not on the personal characteristics of the offender. In R v. M. (C.A.), Justice Lamer of the Supreme Court of Canada wrote that, “In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.”[^1]
[38] The principle of deterrence is set out in s. 718(b) of the Criminal Code. Deterrence seeks to provide a threat or example to the offender (specific deterrence), or to others (general deterrence), in order to discourage crime by making it clear that criminal behaviour of this nature will result in the imposition of severe punishment.
[39] In any given case, there may be one or several sentencing principles at play. Sometimes they conflict with each other. The Court must attempt to balance all relevant sentencing principles with the aggravating and mitigating circumstances, personal background and history particular to each accused.
[40] It is the task of the sentencing judge to assign the relative weight to the particular aspects of the case before the Court so that the sentence is shaped in a way that is specific to the accused while following a uniform approach.
Case Law
[41] I have reviewed the case law that was provided by counsel for C.H. and for the Crown. I note that the law referred to by the defence consisted primarily of decisions from the Ontario Court of Justice or Summary Conviction Appeals from those decisions and case law that is no longer the law due to more recent Court of Appeal decisions. I therefore did not find the law supplied by counsel for C.H. to be compelling. The range of sentences imposed in those cases was between 8 months and two years less a day.
[42] Counsel for the Crown referred to several recent cases from the Court of Appeal including the case of R. v. D.(D.).[^2] in support of her position that the appropriate sentence in this case is four years,
[43] In R. v. D.(D.), the Court of Appeal considered appropriate ranges of sentences for cases involving sexual assault of children by adults. At issue was whether or not the six year sentence considered fit in an earlier decision of the court in R. v. Stuckless[^3], represented a high watermark. Moldaver J.A., as he then was, speaking for the Court, stated:
To summarize, 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. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. (para. 44) [emphasis added]
[44] Justice Moldaver emphasized that the ranges are not meant to be fixed and inflexible and are meant to be only guidelines to assist the trial judge.[^4]
[45] In 2006, in R. v. G.A.G.[^5], the Court of Appeal held that the range of three to five years applied in the case where a father was convicted of sexually abusing his son over many years with the abuse progressing from fondling to mutual masturbation and fellatio. The offender was also convicted of a single incident of inappropriate touching of a nephew. The court upheld a sentence of four and one half years as not being manifestly unfit.
[46] In an endorsement by the Court of Appeal in R. v. E.T.[^6] where the offender was convicted of sexual assault, gross indecency and sexual exploitation of a young girl who was the child of his spouse's cousin, the court upheld a sentence of three years. The court noted that the trial judge had referred "to the case law that puts the range for this type of sexual offence against a child by an adult in a position of trust where there was no penetration as a minimum of three years" and that he had considered various factors to give the offender a sentence "at the lower end of the range".
[47] Although there is no question that the sexual abuse in this case was very serious and had profound impact on C and her family, it did not include the aggravating conduct present in some cases where there was intercourse, attempted penetration or additional violence or threats of violence.
[48] In the Court of Appeal decision in 2006 of R. v. W.Q.[^7], MacFarland J.A. for the court referred to Stuckless where the court held that:
The absence of penetration does not automatically relegate the sexual abuse of children to the "lower range" of sexual offences. There is no question that 'additional force', 'collateral crimes', and penetration are aggravating factors. But their absence does not thereby transform them into mitigating circumstances, nor neutralize the other aggravating factors found in this case: the abuse of trust, the number of victims, the frequency of the assaults and their devastating impact on the lives of the victims. These offences were, individually and collectively, unconscionable. Any characterization which purports to diminish their magnitude, is unacceptable. (emphasis added)
[49] I recognize however, that the range of sentence suggested by the Court of Appeal is not meant to be fixed and inflexible, but rather a guideline to assist this court. As Justice Watt stated in R. v. Jacko[^8], Sentencing "ranges" ... are not immovable or immutable. They are and represent guidelines, of greater or lesser utility depending upon the breadth of the range. Individual cases may fall within or outside the range. To consider a range of sentence as creating a de facto minimum sentence misses the point, ignores the fundamental principle of proportionality ... Individual circumstances matter." I must therefore consider all of the circumstances of this case to determine a fit sentence.
Mitigating and Aggravating Factors
[50] To assist a trial judge in arriving at a “just and appropriate punishment,” Parliament has enacted s. 718.2 of the Criminal Code which sets out a number of aggravating or mitigating factors that a judge may consider to increase or decrease a sentence. These factors are to be applied by sentencing judges particularly when assessing whether the imposition of a conditional sentence is appropriate.
[51] Counsel for C.H. submitted that there were a number of mitigating factors in this case that included:
a) That C.H. has suffered greatly from these charges and has lost most of his contacts in the community in spite of publication ban on these proceedings;
b) That C.H. suffered from major depression and suicidal ideation that resulted in the weapons offence for which he is currently incarcerated;
c) That for his current sentence on the weapons offence it was recommended that he receive psychiatric services, however because C.H. has been in remand awaiting his trial on these charges, C.H. has been unable to receive psychiatric services; and
d) That the sexual behaviours assessment characterized C.H. as being at low risk to reoffend.
[52] Counsel for the Crown had a different view of what constituted the mitigating and aggravating factors in this case.
[53] The Crown submitted that there were no mitigating factors in this case. C.H. had a criminal record that has been described in paragraph 14 of these reasons.
[54] Counsel for the Crown noted that C.H. has a history of failing to abide by court orders and a history of blaming others for his circumstances. For example regarding the most recent breach of bail condition, C.H. told Dr. Gray during the sexual behaviours assessment that he had asked a friend to find out information about someone on the internet and did not know this would be a breach of his conditions. Similarly, when explaining the fraud conviction from 1997, C.H. blamed his spouse for filling out social assistance forms incorrectly and claiming that he was convicted for her error.
[55] Counsel for the Crown submitted that the aggravating factors the court should consider are as follows:
a) C.H. was C's father. This is the most egregious breach of trust that a parent can perpetrate on a child. She noted that s. 718 of the Criminal Code requires the court to take into consideration when sentencing, evidence that offender abused a person under age 18 and whether the offender was in a position of trust or authority in relation to the victim;
b) At the time of the offences against her, C.H. was the parent that C felt closest to. C.H. was aware of this and so the abuse of his position of trust is even more aggravating;
c) C.H.'s prior criminal record as set out above;
d) C's age at the time of the offences: 12 and 14 years. Counsel for the defence suggested that C's age differed from the age of the children in the case law presented by the Crown. Counsel for the Crown noted that the court must be careful not to make a finding that an offence of this nature is less bad because it happens to a 12 year old rather than to a 5 year old. She asked the court to find that all offences of this nature are equally egregious and that in some ways a 12 year old at the beginning of her teenage years will face a more difficult recovery, and certainly not a less difficult one;
e) C.H. plied C with alcohol to ensure that she submitted to him, and he made the alcohol more palatable so she would drink faster. C.H. also turned the abuse into a game by using both a drinking game and the dice game in an effort to make it seem fun or perhaps permissible to a 12 year old;
f) The abuse consisted of invasive sexual acts including forcing C to perform oral sex on C.H. and C.H. performing oral sex on C. Additionally, the abuse included C.H. teaching C to French kiss and C.H. violating C's body by touching her on her breasts and her vagina. Counsel for the Crown noted that apart from intercourse, C.H.'s actions were about as invasive as this type of sexual abuse of a child could be;
g) The conviction for invitation to sexual touching involved C.H. seeking to involve another child, a friend of C's, by inviting them to participate in his making of child pornography by letting him take nude photos of them;
h) C.H. told C in a note that she would owe him one and would have to perform a BJ or blow job. Counsel for the Crown suggested that this demonstrated that C.H. was treating C as an object in a transaction for his sexual gratification. He put his own needs over his role as a father, when he should have said "No I won't buy alcohol or marijuana for you".
i) It was the Crown's position that the prospects for rehabilitation for C.H. are slim. She noted that Dr. Gray commented on the fact that C.H. showed no insight and denied having sexually abused C. Dr. Gray found that C.H.'s denial might be a hindrance to rehabilitation.
Analysis
[56] Without doubt, a strong message of denunciation is required in this case to make it clear to everyone that society will not tolerate the sexual abuse of its children. The role of a parent is to nurture their children, not to violate them. Children's homes should represent the places where they feel safest, not where they have to be ever vigilant against unwanted sexual advances by a person they should be able to trust.
[57] I note that the facts in this case differ somewhat from the facts in the cases presented by the Crown. In this case C.H. was in a position of trust and authority, however no violence was threatened and the abuse consisted of two discrete incidents. While the absence of intercourse, any attempted penetration, additional force or collateral crimes are not mitigating factors, had they been present, they would have been aggravating factors.
[58] The conclusion that I draw from the case law and the facts of this case is that the appropriate range of sentence is two to five years on counts #1 and #2, and 1 to 2 years on count #3.
Sentence
[59] I delivered my sentence orally on May 15, 2012 with written reasons to follow. At that time I imposed a sentence of 3 years on each of counts #1 and #2 to be served concurrently. I realized thereafter that the convictions on counts #1 and #2 of the indictment arose from the same facts such that one of the counts should have been stayed. I notified counsel of this issue and they agreed and confirmed that counsel for the Crown had previously undertaken to seek a stay of count #2, sexual assault, if C.H. was convicted on both counts #1 and #2. This was inadvertently missed after the conviction so that count #2 had not been stayed.
[60] I therefore amend the sentence I imposed on May 15, 2012 so that the conviction of sexual assault on count #2 is stayed. An Amended Warrant of Committal shall be issued reflecting this change and the indictment shall be similarly endorsed.
[61] On the conviction for sexual touching, Count #1, I impose a sentence of 3 years.
[62] On the conviction for invitation to sexual touching, Count #3, I impose a sentence of one year to be served concurrently to C.H.'s sentence on Count #1.
[63] In addition to the statutory conditions I impose the following conditions:
[64] Pursuant to sections 490.012 (1) and 490.013 (2)(b) of the Criminal Code, I make an order in Form 52 that C.H.'s name be added to the Sex Offender Registry and that C.H. comply with the Sex Offender Information Registration Act for life.
[65] I also make an order pursuant to section 161 of the Criminal Code prohibiting C.H. for 20 years from:
a) attending a public park or public swimming area where persons under the age of 16 are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre; or
b) using a computer system for the purpose of communicating with any person under age 16; or
c) seeking or obtaining any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years.
[66] In addition, there will be a mandatory weapons prohibition order pursuant to section 109(1)(a) of the Criminal Code for life. I also make a mandatory DNA order pursuant to section 487.051(2), authorizing the taking of a DNA sample.
[67] Finally, I impose a no contact order on C.H. pursuant to s. 743.21 of the Criminal Code during C.H.'s time in custody with respect to C and his former spouse, K.S.
Madam Justice B. R. Warkentin
Reasons Released: June 6, 2012
COURT FILE NO.: 10-5003
DATE: 2012-06-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
C.H.
REASONS ON SENTENCE
Warkentin J.
Released: June 6, 2012
[^1]: 1996 230 (SCC), [1996] 1 S.C.R. 500 at para. 81.
[^2]: (2002), 2002 44915 (ON CA), 163 C.C.C. (3d) 471 (Ont. C.A.)
[^3]: (1998), 1998 7143 (ON CA), 127 C.C.C. (3d) 225 (Ont. C.A.)
[^4]: D.(D.) supra at para. 33
[^5]: [2006] O.J. No. 67 (C.A.)
[^6]: 2011 ONCA 86, [2011] O.J. No. 374 at paras 6 and 7
[^7]: (2006), 2006 21035 (ON CA), 210 C.C.C. (3d) 398 (C.A.) at para 18
[^8]: 2010 ONCA 452, [2010] 4 C.N.L.R. 211 (Ont. C.A.), para 90