ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Tony Wilkinson, for the Crown
Appellant
- and -
D.V.
W. Scott Aird, for the Respondent
Respondent
HEARD: February 20, 2013
REASONS FOR JUDGMENT
[Appeal against the sentence imposed by His Honour Justice Cooper of the Ontario Court of Justice at Milton, Ontario, on April 26, 2012]
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4(1) OF THE CRIMINAL CODE OF CANADA
Fragomeni J.
1The Appellant, the Attorney General of Ontario, on behalf of Her Majesty the Queen appeals against the sentence imposed by His Honour Justice Cooper of the Ontario Court of Justice at Milton, Ontario on April 26, 2012 on the following grounds:
(1) The sentence imposed is manifestly unfit.
(2) The justice gave no or inadequate weight to general deterrence and denunciation.
(3) The justice overemphasized the offender’s family circumstances.
THE PLEA OF GUILT
2The Respondent, D.V., was charged with one count as follows:
That on or about the 2nd day of August 2011 he did for a sexual purpose touch K.P., a person under the age of sixteen years, directly with a part of his body, to wit: his finger contrary to section 151 of the Criminal Code.
3On February 27, 2012 the Respondent pled guilty to the charge. The following facts were read in by the Crown:
The 29-year-old accused before the court, D.V., and a 15-year-old complainant, K.P - who’ll I’ll refer to after this as K.P. - are related by marriage in that K.P.’s father’s daughter is the common-law spouse of the accused. The accused has two biological children with L.P., his already mentioned common-law wife. In the early morning hours of August 2nd, 2011, the birthday party for K.P.’s grandmother was winding down at the P. home at E[…] circle, Oakville, Ontario. K.P. had retired to the basement family room couch, having already given up her bed for the daughter of the accused to sleep in. After a heavy night of drinking, the accused made his way to the couch where K.P. was already sound asleep. He entered into some small talk with K.P. about a movie on the television, but soon began to fondle her vaginal area and breasts. She requested he stop, but he ignored her pleas. He left momentarily to smoke a cigarette outside, but then it continued - returned to continue the assault, where he removed her pyjama bottoms and underpants. While still on the couch, he then digitally penetrated her vagina and fondled her breasts. Having reached a state of arousal, the accused pulled his own track pants down and placed her hand on his penis. He used her hand to stimulate himself to ejaculation. Once satisfied, he retired to the floor in front of her. Soon thereafter, he was interrupted by his own daughter, who had awakened with an earache. He left to attend to his own child and did not return. K.P. told a friend several days later, and the friend notified school officials, they then notified her parents and the police became involved. On April 11th, 2011, he surrendered voluntarily to the Halton Police, was interviewed and made an inculpatory statement.
4After these facts were read in, the defence stated:
Well, Your Honour, as far as the facts go, he’s not in a position to contest them. He drank 16 or 17 beers. He has a very, very vague recollection of anything that went on so being in that inebriated state, he’s in no position to contest what the Crown’s alleging…
5The sentencing hearing was adjourned to April 26, 2012. A Pre-Sentence Report (“P.S.R.”), Victim Impact Statements, and character letters were all provided to the Court.
6At the sentencing hearing, the Respondent’s position was that a period of intermittent custody following by probation would be appropriate. The Respondent pointed to the following mitigating factors in support of his position:
(1) The P.S.R. was positive.
(2) The Respondent had some sex offence specific counselling.
(3) The Respondent is a geological technician and for the past seven years has worked for Golden & Associates.
(4) His character letters are all supportive.
(5) He entered a plea of guilt and is remorseful.
(6) He has taken counselling for alcohol abuse.
(7) He will be placed on the sex offence registry.
(8) He supports his family.
7The Crown’s position at the sentencing was that a sentence of incarceration for a period of 10 to 12 months was appropriate. The Crown set out the following aggravating factors:
(1) The level of intrusiveness was egregious - there was digital penetration of her vagina followed by using her hand to manually stimulate himself to ejaculate.
(2) The Respondent is 29 years old and the victim is 15 years old.
(3) The victim, K.P., indicated that this incident has ruined her family from her standpoint.
(4) The victim was a particularly vulnerable victim in terms of her physical health. She has congenital scoliosis and wore a full body brace for 5 years. She has had spinal surgeries, eye surgery, knee surgery, and her femur was broken and reset so she could walk straight. All of these health issues were known to the Respondent.
(5) The Respondent and the victim are related by marriage in that K.P.’s father’s daughter is the common-law spouse of the Respondent. As such there existed a relationship of trust.
REASONS FOR SENTENCE
8After reviewing the facts, the sentencing judge noted that “he’s caused - left a lot of victims in his wake, not just the girl that he assaulted.” The sentencing judge described the offence as an “extremely serious offence”.
9The sentencing judge balanced that assessment with the following mitigating factors as set out at page 24 of the April 26, 2012 transcript:
And on the other hand, he did confess to the police right away; he pled guilty, so nobody had to testify. He’s had no prior criminal record whatsoever. There was a favourable pre-sentence report, and he’s a low risk to offend, as long as he doesn’t drink, and that’s the big “if” here.
Taking into consideration what I consider to be an extremely serious offence, with the fact that we’ve got somebody that’s never committed any crimes before, and needs to support his family in the future. And I think that everything is met by 90 days in jail, which is the lowest sentence I can give to, at least, to keep him his job, and even then he may not keep his job. He’s also going to go in a prison system where sexual offenders are despised and he could be attacked and he’ll have to live with this for the rest of his life. And he’s on a sex offender registration, and he’s - the family’s destroyed, forever, these things can never be repaired. So he’s got to face that and live with that for the rest of his life.
THE STANDARD OF REIVEW ON SENTENCE
10A variation in the sentence should only be made if the Court of Appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable (R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227 at para. 46.
11In R. v. M. (C.A.), [1996] S.C.R. 500 the Court stated at para. 90 in part:
… absent an error in principle, failure to consider a relevant factor or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.
12Finally, in R. v. Hamilton, (2004) 2004 5549 (ON CA), 72 O.R. (3d) 1 Doherty J.A. stated the following at para. 85:
Sentencing is a delicate case-specific exercise. There is seldom only one fit sentence. Fitness usually describes a range of appropriate sentencing responses. The individualistic nature of the sentencing process, the myriad of factors to be balanced, and the absence of any single "correct" sentencing response in most cases dictates that appellate courts defer to sentencing decisions made by trial judges. That deference is reflected in the now well-established standard of appellate review applicable on sentence appeals. A court will vary a sentence only if it reflects an error in principle, demonstrates a failure to consider a relevant factor or to give appropriate weight to a relevant factor, or is demonstrably unfit.
POSITION OF THE APPELLANT
13The Crown on Appeal submits that the sentence was demonstrably unfit because the sentencing judge failed to accord appropriate weight to general deterrence and denunciation, and because too much weight was given to mitigating factors including the Respondent’s personal circumstances, and particularly his employment.
POSITION OF THE RESPONDENT
14The Respondent submits that the sentencing judge properly balanced all of the mitigating and aggravating factors and as such there was no error in principle.
ANALYSIS AND CONCLUSION
15In Hamilton, Justice Doherty set out the following at para. 2 and 87:
As difficult as the determination of a fit sentence can be, that process has a narrow focus. It aims at imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender. Sentencing is not based on group characteristics, but on the facts relating to the specific offence and specific offender as revealed by the evidence adduced in the proceedings.
Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint-by-numbers landscape is to the real thing. I begin by recognizing, as did the trial judge, that the fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender.
16The sentencing judge clearly recognized this principle when he stated:
The Court of Appeal has cited this, has given direction to the lower courts in these matters, but no two sentencing cases are the same.
17In his appeal factum, the Crown sets out a chart that reflects some of the jurisprudence relating to these cases:
| Case | Pertinent Facts | Sentence received |
|---|---|---|
| R. v. Manjra, [2009] O.J. No. 2484 (C.A.) | The complainant was seven years old and the appellant was a neighbour. While at his house on one occasion, the appellant pulled down her pants and underwear and while on his knees, he “licked her privates.” | 17 months custody |
| R. v. Hutchinson, [2006] O.J. No. 1790 (C.A.) | Convicted of sexual assault. Single act of fellatio on a nine-year old girl. | 15 months custody |
| R. v. Levert , [2001] O.J. No. 3907 (C.A.) | Offender convicted of sexual interference for two acts of inappropriate touching. The complainant was his friend’s foster child who was nine or 10 at the time. On one occasion he touched the boy’s penis underneath his clothing, and on the other occasion he touched his penis on top of his clothing. | 6 months custody |
| R. v. R.W.D., [2005] O.J. No. 2385 (C.A.) | Offender convicted of two counts of sexual touching against his 12-year-old stepdaughter. The complainant testified that the accused entered her bedroom when she was sleeping and attempted sexual intercourse with her. | 12 months custody |
| R. v. A.W., [2011] O.J. No. 1365 (Ont. Crt. Jus.) | Offender pleaded guilty to sexual interference and breach of recognizance. He was the 29-year-old schizophrenic and drug addict uncle of the five-year-old victim. It was his first offence. One incident of digital penetration. | 181 days custody |
| R. v D.G. 2011 ONCJ 116, [2011] O.J. No. 1188 (Ont. Crt. Jus.) | Offender pleaded guilty to one count of sexually assaulting his 17 year old daughter. One act of digital penetration. | 6 months custody |
18In R. v. D.D., (2002), O.R. (3d) 788, although the facts are quite different, Moldaver J.A. makes it clear how the protection of children is vitally important in these cases. At paras. 33 to 36 he states:
Before going further, I wish to emphasize that the ranges which I have identified are not meant to be fixed and inflexible. On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.
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. 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 the other recognized objectives of sentencing.
We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.
In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known.
19The Crown referred the Court to the decision in R. v. R.W.D., 2005 20711 (ON CA), [2005] O.J. No. 2385 at para. 12:
In our view, the first factor relied on by the trial judge was irrelevant. There was nothing to place the appellant's reaction to the proceedings or his concern about going to jail beyond what one would expect from a person facing the possibility of a significant jail term. The other three factors referred to by the trial judge were important considerations in determining the appropriate sentence and properly mitigated the sentence to be imposed. However, we cannot agree with the trial judge's assessment that they placed this case into the category of rare offences where a conditional sentence would be appropriate for this kind of crime. It is not unusual for individuals who commit this kind of offence to have jobs or to otherwise be individuals of apparent good character. In our view, the trial judge's determination that this case justified a conditional sentence demonstrates an error in principle.
20The Crown submits that having a job is not such an exceptional factor that would permit the sentencing judge to go below the acceptable range in this case.
21The decision in R. v. D.G., 2011 ONCJ 116, [2011] O.J. No. 1188 is the closest fact situation to the case at bar. In D.G. the facts are set out at paras.1, 2 and 3 as follows:
Following a Crown election to proceed by way of summary conviction, the offender entered a plea of guilty to a charge that, on April 10, 2009, he sexually assaulted his 17 year-old daughter D.G.
The admitted facts were that while the offender and his wife, the mother of the victim, had separated approximately one month before the incident, his daughter remained living with him. Around 3:30 p.m. she awoke and went to the bathroom in their residence. When she came out of the bathroom, the offender called her into his bedroom. He told her to lie down on his bed, rubbed her back, touched her breasts and digitally penetrated her vagina. He told her not to tell anyone what he had just done.
The victim immediately went to a friend's home, disclosed to her and her friend's mother what had happened. The police were called, and the victim was interviewed. Later that day the offender was arrested, and confessed (on videotape) to what he had done.
22In D.G. the accused had not engaged in any kind of treatment program. At para. 8:
Unfortunately, this lack of insight was carried into the court proceedings, When I asked the offender whether he wished to exercise his right to address the court (as he is entitled to do under s. 726 of the Code), he repeated many of the same vague generalities about "wanting to provide for his family" and "improving himself". While I must caution myself not to discriminate against someone who might have been uncomfortable speaking publicly, the combination of what he said - and did not say - to the writer of the PSR and what he said - and did not say - to me is troubling. I think Crown counsel had it right when she pointed to the offender's lack of engagement in any kind of treatment program as indicative of the fact that, despite his guilty plea, he has not fully accepted (or internalized) the need at least to have an assessment done as a possible precursor to treatment for his now admitted sexual deviance.
23At paras. 29 and 30 Justice Cole reviews the mitigating and aggravating factors:
I now turn to the question of what length of custodial term should be imposed. With respect, I think Crown counsel's argument in favour of a term of one year over-emphasizes the severity of the offence while underplaying numerous positive factors about the accused. As the Supreme Court has reminded the bench and bar for many years, Canadian sentencing is an individualized process, where the offender is not normally to be sacrificed on the altar of denunciation and deterrence. In this case, I consider that the following factors operate to mitigate the sentence proposed by Crown counsel:
the offender's lack of any previous record;
his plea of guilty;
the positive remarks about the offender's character made by the victim's mother, the offender's current romantic partner, and - to a lesser extent - by the victim herself;
the fact that this was a single and quite transitory incident, not accompanied by any threats or actual violence
Though I acknowledge and have carefully considered the points made by defence counsel, I have come to the conclusion that this is not one of those very rare cases where a conditional sentence should be imposed for an offence of this nature. The following factors have ultimately persuaded me that it would not "be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 [of the Code]" for me to impose such a sentence (regardless of the degree of restrictions on the offender's liberty that I might impose):
the offender's overall "moral blameworthiness";
his indifference to the core trust between parent and child;
his indifference to his daughter's vulnerability given the recent family breakup;
his indifference to the fact that his daughter had recently been the victim of another sexual assault;
his indifference to the long-term emotional impact his gross and illegal acts would inevitably have on his child;
the element of digital penetration;
Supreme Court of Canada and Ontario Court of Appeal case law;
Against the backdrop of recent appellate case law stressing the need to strongly denounce sexual exploitation of children by caregivers, I do not consider that the various mitigating factors I have outlined are capable of reducing the custodial portion to the intermittent range. I fully appreciate that this will no doubt make it more difficult for the offender and those he supports, but - frankly - he should have thought of this before he so grossly and callously abused his position of trust. Exercising the best amount of restraint I can in the circumstances of this case (and fully recognizing that, as in any individualized sentencing system there is an element of arbitrariness in the attribution of "a number"), I have come to the following disposition:
DISPOSITION
The offender is sentenced to 6 months in custody.
24I agree with the position of the Appellant that the sentencing judge gave inadequate weight to the principles of general deterrence and denunciation. The sentencing judge in his reasons characterizes this matter as extremely serious. However, he fails to deal with the particular aggravating aspects of why it is extremely serious. Those aggravating features were set out by the Crown, and I set those out earlier in these reasons.
25The sentencing judge placed too much emphasis on the fact that the Respondent was employed. The sentencing judge was also unduly concerned about the Respondent being in the prison system as a sexual offender. This concern is not a proper consideration in considering the appropriate sentence. In R. v. Campbell, [1978] N.S.J. No. 48 the Nova Scotia Court of Appeal stated the following at paras. 6 and 7:
The learned magistrate in sentencing emphasized the serious nature of the offence but expressed concern as to what might happen to the respondent if he were sent to a federal penitentiary. He was satisfied that such an institution holds out no help for an individual such as the respondent. He feared that he would come out in society worse. In particular, he feared that the respondent would suffer physical harm in penitentiary. These factors obviously induced him to impose a sentence of twenty-three months to be served in the King's County Correctional Centre.
With great respect, we are of the opinion that the learned magistrate should not have taken into account the possibility a sexual offender such as the respondent may be physically harmed in a federal penitentiary. That may well be the case, but that is not a matter for a court to take into account. The adequacy of the penal institutions and their ability to safeguard inmates is a matter for the officials of the penitentiary service and for Parliament.
26In R. v. Uppal, [2004] B.C.J. No. 586 the Court set out the following at paras. 23 and 24:
However, I must consider two other matters which have been raised in submissions. The first is the danger that Uppal will be subject to violence while incarcerated. This arises because Uppal has given information to the Police, as well as because he testified at the trial of Soomel and Mann contrary to their interests. The evidence disclosed that both the RCMP and the Delta police requested that the Crown make a deal with Uppal in exchange for information or further information. I am not satisfied, however, that the threat following upon these facts is a reason to reduce the sentence. The protection of inmates of prisons is the business of the penitentiary service not of the courts. I agree with the position on this taken by the Nova Scotia Court of Appeal in the case of R. v. Campbell, [1978] N.S.J. No. 48 in which the Chief Justice observed that the responsibility for safeguarding prisoners is a matter for officials of the penitentiary service and for parliament rather then for the courts.
I observe, however, that when the convicted murderer Mann was present in this courtroom, he uttered words directed at Uppal which anyone present would take, or at least which I took, as a threat. I would direct that the Crown or the Sheriff's Services, as appropriate, bring this threat to the attention of the penitentiary authorities at the time Uppal is turned over to them so that they will be aware and it will be incumbent upon them to take appropriate precautions. I am not, however, prepared to reduce the sentence for this reason.
27This indeed was an extremely serious offence. The victim in this case was a particularly vulnerable victim and the Respondent knew this. He was in a position of trust considering his relationship with the victim. He was 29 and she was 15. The physical intrusion was not a simple touching. The physical intrusion in this case was significant. He first fondled her vaginal area and breasts. She told him to stop but he ignored her pleas. He left, had a cigarette and then came back to continue the assault. He removed her pyjama bottoms and underpants and then digitally penetrated her vagina and fondled her breasts. This assault did not end there. He continued by pulling his track pants down and used her hand to stimulate himself to ejaculation. This physical intrusion was egregious.
28I am satisfied that a 90 day intermittent sentence does not properly reflect the seriousness of this case and it is, in all of the circumstances, demonstrably unfit. It falls below the appropriate range.
29However, I am not satisfied that re-incarceration at this time is necessary and in all of the circumstances would not advance the principles and purpose of sentencing as set out in the Criminal Code. The Respondent completed his intermittent sentence.
30The Respondent is employed full time and supports his family. He is employed as a geological technician and for the past seven years has worked at Golden & Associates. In light of these financial responsibilities I am not satisfied that sending the Respondent to jail at this time would be appropriate.
31In considering the totality of circumstances the appeal is dismissed.
___________________________
Fragomeni J.
Released: April 11, 2013
COURT FILE NO.: 95/12
DATE: 20130411
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
D.V.
REASONS FOR JUDGMENT
Fragomeni J.
Released: April 11, 2013