ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11091
DATE: 2013-03-07
BETWEEN:
HER MAJESTY THE QUEEN
– and –
K.J.M.
Offender
J. Swart, for Her Majesty the Queen
J. Getliffe, for the Offender
The
HEARD: March 7, 2013.
These Reasons for Sentence are subject to an order made pursuant to section 486 (3) of the Criminal Code of Canada prohibiting the publication, broadcast, or disclosure of the identity of the complainant and of any information that could disclose the identity of the complainant.
REASONS FOR SENTENCE
McDERMID, J.:
THE TRIAL:
[1] After trial by jury, the accused was found guilty of sexually assaulting C.L. between March 31, 2003 and June 1, 2003 contrary to s. 271 (1) of the Criminal Code and of sexually interfering with her contrary to s. 151 and is before me for sentencing.
[2] The defence advanced at trial was that the acts described by the complainant, upon whose testimony the Crown relied, never happened. The jury found otherwise. The complainant, who was 17 years old at the time of trial, was quite emotionally upset as she testified. It was obviously a painful experience for her to remember and to recount these events. The jury was satisfied beyond a reasonable doubt that the offender committed the offences against her with which he was charged.
THE POSITION OF THE CROWN AND OF THE DEFENCE
[3] The position of the Crown is that the offender should be sentenced to three years in the penitentiary. The defence position is that either an upper reformatory or a lower penitentiary term of incarceration would be appropriate in all the circumstances and that the offender should be given credit for 143 days of pre-trial custody.
THE CIRCUMSTANCES OF THE OFFENDER
[4] In this matter, I have had the benefit of a presentence report. The circumstances of the offender are as follows. He was born on […], 1973 and is therefore 40 years old.
[5] He has the following criminal record:
March 25, 1994 – convicted of assault contrary to s. 266 – $300 fine plus 12 months probation; 30 days in detention before sentencing.
April 26, 2004 – convicted of theft under $5000 contrary to s. 334 (b) – $500 fine plus restitution of $227.88.
February 9, 2007 – convicted of theft under $5000 contrary to s. 334 (b) - $300 fine plus a $45 victim fine surcharge.
[6] The offender left home at the age of 18 and began a relationship with a young woman, which resulted in the birth of a child who died of Sudden Infant Death Syndrome at the age of two months. For the next two years he descended into alcoholism. At the age of 19 he met his present common-law partner with whom he has had a relationship for the past 21 years. They have four children ranging in age from 17 to 8 years old. The Children's Aid Society has been involved with the family and the offender has not been permitted to live in the family home due to the nature of the charges he was facing. A caseworker with the Children's Aid Society has worked with the family for five years as a result initially of drug abuse within the home. The offender has supervised access to his children through the Society. The caseworker advised the probation officer who authored the presentence report that she told the offender that if he acknowledges his offending behaviour and completes a clinical program through the Society dealing with sex offending that they may allow him to reside in the family home with the children.
[7] The offender described himself as a "slow learner" and attended a high school that focused less on academics and more on trades and vocational skills. He applied his efforts mainly to automotive mechanics and cooking.
[8] He has had a variety of jobs the last of which was as a supervisor for a London area construction company between the years 2000 and 2008. Since 2008, his source of income has been Ontario Works.
[9] He acknowledged an addiction to OxyContin between 2008 and 2011, which he says arose from a shoulder injury. His drug abuse caused the loss of his job as a construction supervisor because "all (he) wanted to do was get high". During the same time, his common-law partner also became addicted to OxyContin, allegedly as a result of a spinal injury. The Children's Aid Society intervened and removed their four children from the home. The day after their children were apprehended, they entered the methadone program. The offender reports that he remains on the program and has not had any relapses. He has never received any counselling for substance abuse, but is willing to undertake it if ordered to do so.
[10] The Children's Aid Society caseworker stated she once referred the offender to addiction counselling, "... but he quit the program prior to completion as he noted it ‘wasn't a good fit for him’."
[11] Apparently, he suffers from high blood pressure for which he has taken medication for several years. He reported no mental health concerns. He has no history of volunteer work and enjoys spending his free time "working on cars". He lacks a group of friends with whom he routinely socializes and described himself as a "home body".
[12] He was previously placed on probation for 12 months between March 1994 and 1995. The presentence report states:
Probation records indicate the subject did well overall while on probation and his reporting habits were consistent. He was initially unmotivated in regard to securing employment or upgrading education; however, ultimately he was able to follow through with the direction of his probation officer. At the time of the expiration of his community supervision he was noted as a good candidate for community supervision in the future.
[13] The report goes on to state:
The subject has shown little achievement in the way of employment and has not worked in some five years. He will need to address his motivation to work when he returns to the community if he is to have success. His success will also depend on his willingness to remain an honest participant in the methadone maintenance program without relapsing into the use of street drugs.
[14] The report also notes that he has a positive relationship with his caseworker at the Children's Aid Society who advised that he has shown compliance with her requests and recommendations in the past.
[15] As is his right, he denies that he committed any of the acts that resulted in the convictions against him.
THE CIRCUMSTANCES OF THE OFFENCES
[16] With regard to the circumstances of the offences, the complainant testified that when she was eight or nine years old she was visiting one day at her grandmother's home where the offender was also living. She went upstairs in the home to the offender's bedroom to play with her cousins. The offender told the other children to leave and her to stay. He began by rubbing her leg and then they lay on a couch facing each other. He put his hand down her pants and started rubbing around her vagina and placed his fingers inside her vagina. He also put his hand under her shirt and touched her breasts. She testified that these things happened "maybe four times a week" over a period of 10 to 14 weeks - "every time I was over there".
[17] In my opinion, this is a matter in which the principles enunciated in R. v. Kienapple [^1] apply. Accordingly, I register a conviction on count 5, which charged the offender with sexual interference. Proceedings will be stayed conditionally on count 6, which charged the offender with sexual assault, pending the final disposition of Count 5.
[18] The complainant also testified that the offender forced her to put her hand down his pants and made her touch his penis. This act also occurred repeatedly. Although it did not constitute either of the offences for which the offender was found guilty, I believe this happened and view it as an aggravating factor.
AGGRAVATING AND MITIGATING FACTORS
[19] I turn now to review the aggravating and mitigating factors. I begin with the aggravating factors, which are as follows:
The offender was the complainant's uncle and was in a position of trust towards her, a trust which he violated in a most egregious manner.
At the time the offences were committed, the complainant was eight or nine years old.
The sexual acts described above occurred about four times a week over a period of roughly 10 to 14 weeks. In other words, these were not isolated incidents but part of a pattern of perverse behaviour.
Although the offender did not have sexual intercourse with the complainant, he penetrated her vagina repeatedly with his fingers.
He also had her touch his penis repeatedly.
At the end of each of the incidents, the offender told the complainant that if she mentioned to anyone what they were doing "something very bad would happen" to him or her.
The offender has a prior criminal record, albeit for unrelated offences.
As might be expected, his actions have had a devastating psychological effect upon the complainant and her stepmother as evidenced by the victim impact statements that were filed as exhibits.
The presentence report indicates that he is without much motivation, has been unemployed for the past five years, has previously been addicted to OxyContin and is presently supported by Ontario Works. There is no apparent physical condition that prevents him from seeking employment.
He abandoned previous attempts to counsel him for drug abuse.
[20] I turn to the following mitigating factors:
The offender's criminal record is for unrelated offences.
He did not engage in sexual intercourse with the complainant, nor did he cause her bodily harm.
He voluntarily surrendered himself into custody so that his common-law wife and children could remain in the family home.
He completed a previous period of probation successfully.
The presentence report indicates that he is a good candidate for community supervision but that he probably will receive little benefit from counselling for sexual deviancy because he has not taken responsibility for committing the offences. As noted above, he is entitled to take that position, which, of course, will not result in an increased penalty.
PRINCIPLES OF SENTENCING
[21] I have taken into account the relevant principles of sentencing as set forth in ss. 718 to 718.2 of the Criminal Code. I also take guidance from the principles enunciated in R. v. D.D.[^2] While not ignoring the principle of rehabilitation, the principles I emphasize in this case are denunciation, general and specific deterrence and the need to separate the offender from society.
[22] Having reviewed the statutory principles of sentencing, the principles enunciated in R. v. D.D., the circumstances surrounding the commission of the offence, the circumstances of the offender, the aggravating and mitigating factors, the presentence report, the victim impact statements and the submissions of counsel, I find that an appropriate sentence in this case is three years in the penitentiary.
[23] As noted, the offender spent 143 days in pretrial custody. Mr. Getliffe advises that the offender was knocked down and kicked while in custody, which resulted in a broken nose and blackened eyes. This occurred for reasons unrelated to the type of offence the offender committed. Accordingly, I accept Mr. Getliffe’s submission and credit the offender with seven months of pretrial custody giving credit at the rate of 1.5 days for each day actually spent in pretrial custody. Accordingly, the offender is sentenced to two years and five months in the penitentiary.
[24] In addition, I make the following corollary orders:
A weapons prohibition order pursuant to s.109 of the Criminal Code for 10 years.
To provide forthwith a sample of your blood for forensic DNA analysis, the results of which shall be entered in the DNA database.
To comply with the Sex Offender Information Registry Act for a period of 20 years.
An order pursuant to s. 161 (1), subsections (a) and (b) for 20 years.
Justice D.R. McDermid
Mr. Justice D. R. McDermid
Released: March 7, 2013.
COURT FILE NO.: 11091
DATE: 2013-03-07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
and
K.J.M.
REASONS FOR SENTENCE
Mr. Justice D. R. McDermid
Released: March 7, 2013