ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 5000022-11
DATE: 20120626
BETWEEN:
HER MAJESTY THE QUEEN
– and –
C.C.1
Accused
Elizabeth A. Moore, for the Crown
Wm. Parker Q.C. and Paul Mergler, for the Defendant, C.C.1
HEARD: June 8, 2012
REASONS FOR SENTENCE
A.J. O’MARRA J.: (delivered orally in Court)
[1] C.C.1 was found guilty after trial of sexually assaulting and interfering with P.O. between January 1, 2005 and July 18, 2009 when P.O. was between 7 and 11 years old. In addition, he was found guilty of having in his possession child pornography.
[2] He is here today to be sentenced for these offences.
Circumstances of the Offences
[3] P.O. is the daughter of S.T., the former wife of C.C.1. S.T. and C.C.1 married in 1987 in Chile and together they had two daughters, C.C.2 and M.. After they immigrated to Canada, in 1991 their marriage ended. S.T. in another relationship gave birth to P.O. and her younger sister K..
[4] S.T. had custody of her four daughters, and maintained contact with C.C.1 because of his continued access to his two daughters. Initially, his daughters, together with P.O. and K. would be taken by S.T. to visit him at his mother’s house in Toronto, where he lived with his mother and younger brother. It was there that the sexual abuse began with P.O..
[5] Later, C.C.1 moved to his own house and the girls would be taken there to visit him. Eventually his eldest daughter C.C.2 left her mother’s home and moved in with C.C.1 when she was 17. P.O. had spent a period of time in Mexico with her father’s family and on her return to her mother and Canada, she had adjustment problems. She looked forward to spending time with her older sister and at C.C.1’s house. Frequently, S.T. would ask either her older daughter or C.C.1 to babysit the younger girls, P.O. and K.. During the time that C.C.1 looked after P.O. he would fondle her and penetrate her vaginally. He would show her videos on his computer of child pornography that involved adult men and little girls.
[6] When P.O. began to ask him why he was doing what he was to her he told her not to tell anyone and threatened her by stating “do you want me to do your little sister”.
[7] P.O. first disclosed at age 11 to a girlfriend, Laura. Even though P.O. asked her not to tell anyone, Laura told her mother, who in turn told S.T.. P.O.’s confirmation that abuse had occurred led to her mother notifying the police. The police in executing a search warrant at C.C.1’s home seized two laptop computers that were found to contain downloaded images and videos of child pornography from the internet.
Victim Impact
[8] P.O. and her mother, S.T., both prepared and read victim impact statements to the court.
[9] P.O. has suffered greatly because of the abuse. Her older sisters, C.C.2 and M., who maintain a belief in their father’s innocence and that Pola was not telling the truth about their father have stopped talking to P.O. and their mother S.T.. They believe their mother “set up” their father. She felt like killing herself at times because her sisters stopped talking to her. P.O. has been made to feel that she was “the fault of everything”. She saw her mother get ill and feared she would die. She has trouble sleeping. She has nightmares of C.C.1 coming to their home and doing something to them. She has had trouble concentrating in school. She fears men and wonders “how to react when the day comes when I have my special someone in my life”. She wishes to have the normal life of a girl, which she fears she has lost.
[10] It is evident P.O.’s has suffered serious psychological and emotional trauma with the potential to scar her for life. Her family has been torn apart – she has lost her relationship with her older sisters. She was robbed of her childhood innocence. As an adolescent, she fears men and her future when and if she forms a relationship.
[11] S.T. has suffered as well because of the harm done to her daughter and her family. Her physical and mental health has deteriorated because of C.C.1’s betrayal of trust. In her victim impact statement she wrote:
I was not able to respond and be responsible at work. My mind was racing. I blamed myself because I trusted you. My body was feeling weak day by day. I was taking P.O. to a psychologist and I was going to see one for me as well. My other little daughter knew that something was happening to her sister P.O. and I would not tell her anything. She was seven at the time. Everything changed in our lives for this. We had to move to another country. I left a mess here (financially) in Canada. I felt I had to help P.O. in other ways to forget. But she will never forget, but learn to live with what happened to her.
[12] The wreckage caused by C.C.1’s deviant self-gratification has been profound.
The Offender
[13] C.C.1 was born in Chile, the eldest of four children. His father was active in a union and the country’s politics, which resulted in his arrest and exile from Chile in 1979. His father came to Toronto while his family continued to live in Chile until 1985 when the rest of the family immigrated to Canada.
[14] C.C.1 as a youth also became active in movements that opposed the existing Chilean government.
[15] After he and his wife married in Chile, they immigrated to Canada. Their marriage ended in 1991. Although S.T. retained custody of the children and for a period of time she lived with them in Mexico, he continued to visit as often as he could and co-parented his children utilizing access and by providing financial support. Both daughters have a close relationship with their father.
[16] From June 1991 to September 2000, he was enlisted full time with the Canadian Forces as a radio operator and administrative assistant. He was released from service because he failed to obtain Canadian citizenship within a specified three-year time period. He has maintained stable employment. Since May 2001 has driven a truck for Brock Aggregates Inc.
[17] For the past eight years he has been in a committed relationship with another woman. They have lived in a common-law relationship for the past three years.
[18] C.C.1 has continued to volunteering his time to community activities. He has contributed to the Spanish speaking community through a number of agencies. He has worked with the Chilean-Canadian Culture Centre. He was involved with the Free the Cuban Five Committee and the Cuban-Canadian Friendship Association. He has been a member of the Board of Directors for the Centre for Spanish Speaking People and for the past two years served its President.
[19] In the Pre-Sentence Report, Exhibit No. 1, the author notes that:
Collectively, collateral sources provided by the offender described him as a charismatic, ultraistic, dependable, successful person. He is considered a champion for human rights and a leader in his community. As a friend he is portrayed as someone who is always available to provide assistance. As a father, his family described as supportive and nurturing. As an employee he is regarded as dependable and trustworthy.
[20] It is stated in the report that he has made contact with the Centre for Mental Health and Addiction Sexual Behaviour Clinic. During the sentencing hearing when it was canvassed with defence counsel as to whether it was indicative of an entreaty for treatment of deviant sexual behavior involving children, there was no acknowledgement such was the case. Moreover, when C.C.1 was given an opportunity to address the court, even though he acknowledged he has to look for help with his own issues, “that has little to do with this case”.
[21] In my view, his claim that he wished things could have been different, but “it is what it is”, reflects a callous indifference to his victim, and a sop for those in his family who believe he did nothing wrong. He expressed absolutely no remorse or acknowledgement of the harmful effect of his actions on P.O..
Position of the Parties
[22] The Crown seeks 4 ½ years for the sexual offences and 6 months consecutive for the possession of child pornography, for a global sentence of 5 years incarceration. The defence acknowledged that for offences of this nature incarceration is required. Counsel submitted that the court should impose a sentence of 3 years imprisonment in this case because of C.C.1’s otherwise exemplary work and contributions in the community.
The Law
[23] In a case of this nature I am guided by the sentencing objectives and considerations set out in s.718.01 that states:
When a court imposes a sentence for an offence involving the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
[24] Further, as set out in s.718.2 the court shall also take into consideration as deemed aggravating circumstances:
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.
[25] Prior to the aforementioned additions to the Criminal Code, in R. v. D.D. (2002), 2002 44915 (ON CA), O.J. No. 1061 Moldaver J.A. speaking on behalf of the Ontario Court of Appeal stated at para. 34:
Adult sexual predators who put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s.718 (a), (b), and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over other recognized objectives in sentencing.
[26] In D.D. Moldaver J.A., further stated at para. 44:
…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.
[27] Recently, in R. v. Woodward (2011), 2011 ONCA 610, O.J. No. 4216, the Ontario Court of Appeal reaffirmed the relevant considerations and principles set out in D.D. as summarized at para. 72:
Our children are our most valued and our most vulnerable assets.
We as a society owe it to our children to protect them from the harm caused by sexual predators.
Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators.
Adult sexual predators recognize that children are particular vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow.
Three such consequences are now well recognized:
i) Children often suffer immediate physical and psychological harm;
ii) Children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult;
iii) Children who have been sexually abused are prone to become abusers themselves when they reach adulthood.
- Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.
[28] Further, the court in Woodward repeated what was described as “the fundamental message that D.D. sought to convey” at para. 45:
The harm occasioned [to children] by [adult sexual predators] is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear – prey upon innocent children and you will pay a heavy price!
[29] In addition to the statutorily recognized aggravating factors in s. 718.2, I take into consideration the following aggravating factors arising in this case:
C.C.1 committed multiple acts of sexual abuse, including intercourse over a lengthy period of time with a child, 7 to 11 years of age.
He exploited her childhood vulnerability at a time she was having difficulties with her mother and there was an absence of a father figure in her life. He assumed the role of a kindly uncle, the father of her step-sisters.
He used child pornography to suggest such deviant behavior was acceptable in order to “sexualize or groom her to be receptive to sexual encounters” (see R. v. Woodward, supra, at paras. 42-43 in reference to grooming techniques as an aggravating factor).
He robbed her for her childhood innocence.
He caused her significant immediate psychological and emotional trauma. She became self-blaming, and she has developed a fear of men and loss of trust. She fears an inability in the future to form a loving relationship.
His threat to violate her sister if she told anyone was both a threat of sexual abuse and a form of extortion.
[30] I recognize that C.C.1 has no criminal record and he has otherwise led a pro-social life by maintaining employment and being active with volunteer community work. Unfortunately, often those who commit such deplorable, deviant, self-gratifying sexual acts upon children present as trustworthy and respectable - so much more the horror of the betrayal and the need to denounce such abhorrent conduct.
[31] In my view, his good works do not make for an exceptional circumstance such as to derogate from the primary sentencing objectives of denunciation and deterrence or reduce the sentence within the appropriate range.
[32] A message must be sent to other perpetrators in positions of trust that the heavy price they must pay for violating our most valued and vulnerable assets, children, is a significant loss of liberty.
Sentence
[33] C.C.1’s regular and persistent sexual abuse of his former wife’s child over a substantial period of time warrants the imposition of a penalty in the mid to upper single digit penitentiary range as outlined by Moldaver J.A. in D.D.
[34] Possession of child pornography is a separate offence because it involves the further exploitation of other children and their victimization each time it is viewed. Such conduct must be denounced in the strongest terms. I intend to impose a consecutive sentence notwithstanding having considered its use as an aggravating factor with respect to the sexual abuse offences. However, in rendering the appropriate global sentence in this case, the length I would otherwise have imposed has been moderated in consideration of the totality principle.
[35] I hereby sentence C.C.1 to 5 years incarceration for the sexual assault and interference offences and a further 1-year period of incarceration for the possession of child pornography to be served consecutively. The total sentence imposed is 6 years imprisonment in the penitentiary.
A.J. O’Marra J.
Released: June 26, 2012
COURT FILE NO.: 5000022-11
DATE: 20120615
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
C.C.1
REASONS FOR SENTENCE
(delivered orally in Court)
A.J. O’Marra J.
Released: June 15, 2012