WEDNESDAY, JUNE 27, 2012

R E A S O N S F O R S E N T E N C E

QUINLAN, J. (Orally):

For four years, Mr. P. repeatedly sexually abused his step-daughter, A.H., when she was between nine and 12 years of age. The impact on her and on her family has been devastating.

On March 1, 2012, Mr. P. was found guilty of sexual assault and of touching for a sexual purpose. He is before me today for sentencing.

THE FACTS

CIRCUMSTANCES OF THE OFFENCE

Mr. P. was A.’s stepfather. He married A.’s mother when A. was six. For four years, from 1999 to 2003, Mr. P. digitally penetrated A. in different rooms in their house. Mr. P. masturbated in her presence. On one occasion he rubbed his penis directly against her vagina. The abuse happened in A.’s bedroom, in the bedroom Mr. P. shared with A.’s mother, in the bathroom and in the computer room. The incidents happened weekly and sometimes more. A. testified that the digital penetration was painful. The last incident of sexual abuse happened when A. was 12, before she got her period for the first time.

The relationship between Mr. P. and A.’s mother went downhill over the years, as conflicts about rules imposed by Mr. P. increased and A.’s mother worked long hours as the main breadwinner. They had repeated arguments about Mr. P.’s refusal to allow the girls privacy. In 2006, A.’s mother and stepfather separated.

A. first disclosed the sexual abuse by her stepfather to her best friend and then to her boyfriend, telling them not to tell anyone. In June 2010, A. acknowledged to her mother that she had been sexually assaulted. Police were contacted and charges were laid.

CIRCUMSTANCES OF THE OFFENDER

Mr. P. is 63 years old. He was born in India and moved to London, England when he was three or four years old. He came to Canada when he was 19 or 20.

According to information provided by A.’s mother to the author of the pre-sentence report, Mr. P. was previously married. In addition, Mr. P. testified, although did not advise the author of the PSR, that he had an adult son.

Mr. P. completed university in England and two years of a four year course in interior and architectural design in Canada.

Mr. P. met A.’s mother when he was 48 years old. At the time she was 26, divorced with two young children and his employee. They married soon after they met. Their marriage lasted ten years. They had a daughter, M., with whom Mr. P. has not had contact for the last year.

He is currently unemployed and is supported through friends. His employment history over the years has been spotty and caused significant strain in his relationship with A.’s mother.

Mr. P. does not have a criminal record. He was cooperative for the purpose of the preparation of the PSR. The author of the presentence report noted that Mr. P. takes no responsibility for his actions. Even with the extraction of certain matters that I am not considering, the presentence report was generally far from positive.

A number of reference letters were provided to the author of the PSR. They all spoke of the offender in positive terms. They had never seen any inappropriate behaviour by Mr. P. towards his daughter, stepdaughters or others. His mother described him as honest, reliable, and caring.

IMPACT ON THE VICTIM

A. is now 21 years old. She filed a victim impact statement that compellingly explained the devastating impact her stepfather’s sexual abuse has had on her. A. spoke of the mental and emotional effects that have damaged her entire life and changed the way she thinks about other people and herself. She explained how every time Mr. P. assaulted her, she was left feeling hurt, confused, scared, embarrassed and alone. A. told how Mr. P. took her innocence and made her hate herself and everyone else around her, corrupting her when she was just a girl.

A. has suffered from eating disorders, self-defacement, nightmares, health issues and suicidal thoughts. She has difficulty forming relationships. She is unable to trust anyone.

The sexual abuse has had a physical impact on her. The stress and anxiety that she suffered has given her chest pain, headaches and nausea. She worries that it has worsened her severe chronic ulcerative colitis. Now that A. has recently become a mother, she worries that her child will end up trusting someone who could be a predator like Mr. P..

A. thinks she is “dirty to other people”. She describes herself as “used”.

A. ended her powerful and eloquent victim impact statement with the following plea: “I want my life back”.

A.’s mother, E.S., also filed a victim impact statement. She spoke of the challenges that have affected her entire family. Ms. S. struggles with feelings of guilt for her inability to protect her daughter or even recognize what was happening. She feels sick that this happened at the hands of a man she had chosen to marry.

Not only has A. been affected, but M., Mr. P.’s biological daughter, continues to have difficulties. Ms. S. spoke of the counselling that both A. and M. have been receiving. Ms. S. summed up the impact on her family by stating; “My girls have been robbed of precious childhood years where they were forced to grow up quickly.”

POSITIONS OF CROWN AND DEFENCE

The Crown seeks a penitentiary sentence of four to five years. Ancillary orders sought are a DNA Order, Sexual Offence Registry for 20 years, a Weapons Prohibition for ten years, a s.161 Order for ten years, an order that Mr. P. not communicate with A. while in custody and a recommendation to corrections that he have sexual preference testing.

The defence takes the position that a reformatory sentence of 15 to 18 months, to be followed by a lengthy period of probation, adequately meets the principles of sentencing. No issue is taken with any of the ancillary orders sought by the Crown.

MITIGATING AND AGGRAVATING FACTORS

Mitigating is the fact that:

(1) Mr. P. is a first time offender, and

(2) He has some support from friends and from his mother.

Defence argued that the fact that Mr. P. terminated the sexual assaults of his step-daughter of his own volition should be considered a mitigating factor. In my view, it is best considered a neutral factor.

Mr. P. does not have the benefit of the mitigating factor of remorse.

Aggravating factors are:

This was a serious breach of trust by Mr. P. on his young stepdaughter.

A. was only nine years old when Mr. P. began abusing her.

The events took place repeatedly over a period of four years.

The acts involved digital penetration, which was painful to A., yet Mr. P. persisted in his actions for his own sexual gratification again and again.

The sexual abuse was perpetrated in the family home, including in A.’s bedroom, places where A. was entitled to feel safe.

The abuse has caused devastating emotional and psychological harm on A. and her family.

In R. v. D.D., 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061 our Court of Appeal noted:

The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price.

D.D. stands for the proposition 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.” (see paragraph 44)

In R. v. Woodward 2011 ONCA 610, the Court of Appeal summarized the relevant considerations and principles from D.D. as follows:

(1) Our children are our most valued and our most vulnerable assets.

(2) We as a society owe it to our children to protect them from the harm caused by sexual predators.

(3) 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.

(4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

(5) 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) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood.

(6) 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.

And later:

Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term....when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus on the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it. While the effect of a conviction on the offender and the offender’s prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society’s well-being and the well-being of our children must take precedence. (para. 76-76)

PRINCIPLES OF SENTENCING

The objectives of sentencing long recognized at common law have been codified in section 718 of the Criminal Code. They are the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgment of the harm done.

Section 718.1 provides that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. Aggravating factors include that the offender abused his or her child, and that the offender abused a position of trust in relation to the victim. That section also requires that the sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

CASE LAW

Both Crown and the defence filed a number of cases to support their respective positions on sentence. The cases filed by the defence supported a range of sentence, for the most part, of 15 months to two years less a day. One case, which involves significantly less serious facts, provided for a sentence of six months. In another case, the Court of Appeal found the trial judge’s sentence to be “manifestly inadequate”, and increased the sentence from 90 days intermittent to 12 months. (R. v. R.D. (2004), 2004 CanLII 32144 (ON CA), 186 C.C.C. (3d) 351). As noted in R. v. D.D., supra at para.30, there is no reason to believe that the Court departed from its customary practice, when increasing a sentence imposed at trial, of substituting at the lower end of the appropriate range.

Some of the cases filed by the defence were from the Ontario Court of Appeal. Some involved similar sexual acts for extended periods.

The Crown relied on a number of cases, both for general principles and to support a range of sentence of four to five years. Some of those cases involved sexual intercourse. The Crown argued that the extended intrusive acts of digital penetration in the case at hand were analogous to sexual intercourse and the range for sexual intercourse should apply.

In R. v. C.B. 2008 ONCA 486, the Court of Appeal upheld a three year sentence on a first offender who digitally penetrated his niece when she was between 12 and 16 years of age.

The case that I find of most assistance is R. v. W.C.C. [2009] O.J. No. 4705 (SCJ). In that case a first offender repeatedly touched his daughter when she was between seven and fourteen years of age. He tried to force her hand onto his penis, on at least one occasion touched his penis to the outside of her vagina, fondled her breasts, on one occasion forced her to masturbate him and on one occasion, when she was 13, digitally penetrated her, during which time the offender masturbated. In that case, a sentence of four years was imposed after a guilty plea.

Defence attempted to distinguish this case before me from R. v. W.C.C. in view of the fact that Mr. P. has not been diagnosed as a pedophile. I note the comments of our Court of Appeal in R. v. D.D. If an offender is not a pedophile and “does not suffer from another disorder that could account for his reprehensible behaviour, then arguably his degree of moral culpability rises significantly.” (para.40) The Court of Appeal indicated it cannot be considered to be a mitigating factor.

In W.C.C., the offender recognized the harm he had caused and was genuinely remorseful; he demonstrated his remorse by a plea of guilty. Mr. P. does not have the benefit of that mitigating factor.

APPROPRIATE SENTENCE

Mr. P. repeatedly digitally penetrated A. for four years. The incidents happened weekly and sometimes more. He masturbated in her presence. On one occasion, he rubbed his penis directly against her vagina. The abuse of his young step-daughter was frequent, long-standing and intrusive.

I agree with the comment of Fuerst J. in R. v. W.C.C. that “the Ontario Court of Appeal has repeatedly emphasized that family members who perpetrate intrusive acts of sexual abuse against children to whom they stand in a position of trust should receive penitentiary terms beyond the minimum” (para. 28).

In the circumstances, I agree with the Crown that in light of the aggravating factors, a penitentiary sentence beyond the minimum is required to meet the needs of denunciation, and general and specific deterrence.

CONCLUSION

Mr. P., please stand. On count one; I sentence you to four years in the penitentiary. Count 2 will be marked as stayed.

I order you to comply with the Sex Offender Information Registry Act for 20 years.

I order that you provide such samples of your bodily substances that are reasonably required for the purpose of forensic DNA analysis for the DNA Databank.

Under s.161 (a) and (b) of the Criminal Code, I prohibit you from attending the places and acting in the capacities specified for ten years.

Under s.109 of the Criminal Code you are prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance for ten years from your release from prison and from possessing any prohibited firearm, restricted firearm, prohibited device and prohibited ammunition for life.

Pursuant to s.743.21 of the Criminal Code you are prohibited from communicating, directly or indirectly, with A.H. during the custodial period of your sentence.

I recommend that you receive treatment for your sexual offending behaviour, including sexual preference testing, while you are in custody.

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Tracey Gamsby, certify that this document is a true and accurate transcript of the recording of R. v. K.P. in the Superior Court of Justice, held at 75 Mulcaster Street, Barrie, Ontario, taken from Recording No.(’s) 3811-003-20120628 which has been certified in Form 1.

July 9, 2012 Original signed by T. Gamsby

C.C.R.

Transcript Ordered..........................June 28, 2012

Transcript Completed........................July 29, 2012

Ordering Party Notified.....................July 30, 2012

Court File No.: 11-039

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

KEITH POWELL

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE JUSTICE E. QUINLAN,

on June 27, 2012, at BARRIE, Ontario

APPEARANCES:

C. Trivett Counsel for the Crown

P. Brissette Counsel for K.P.