ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-SA-5012
DATE: 2013/07/09
BETWEEN:
HER MAJESTY THE QUEEN
– and –
A.F.B.
Accused
Paul Attia, for the Crown
Anne-Marie McElroy, for the Accused
HEARD: June 4, 2013
REASONS FOR Sentence
Toscano Roccamo J. (orally)
Overview
[1] A.F.B., you were charged with two counts of sexual assault on A.R. in relation to events that took place on November 27, 2010 at the home of your late uncle H.B. and his partner, D.T..
[2] After hearing three days of evidence, including testimony from A.R., D.T. and yourself, I found you guilty as charged on December 21, 2012.
Circumstances of the Offence
[3] You and your former girlfriend, known to everyone as Mama Angie, were guests at your uncle’s apartment on November 27, 2010. A.R., who lives in Cornwall and who is the girlfriend of your brotherD., was also visiting. A.R., who was also known to everyone as A.R., had spent other weekends as a guest at your uncle’s home and had become quite close to your family.
[4] You and your uncle were drinking. You drank 12 pints of beer between 2:30 p.m. and 12:30 a.m., and you had one meal around 5:00 p.m.
[5] I did not hear evidence that A.R., D.T. or Mama Angie drank that day.
[6] In the end, I found that you assaulted A.R. in the bathroom, and again in the kitchen of your uncle’s home. In the bathroom, you pinched her bottom over her clothing. You admitted to Lisa Marie Reitano, who wrote the Pre-Sentence Report entered as Exhibit #2 at the sentencing hearing, that you pinched A.R.’s bottom and that you were wrong in doing so, no matter if she touched you first, which she has always denied. No one witnessed this event. However, you maintain, even today, that you never grabbed A.R. by the crotch and breast area from behind as she was at the fridge in the kitchen. I found that D.T. was an eyewitness to this event, and that minor inconsistencies between their evidence, and more troublesome concerns in your evidence, left me in no reasonable doubt that a sexual assault occurred in the kitchen. Your perception and recall of these events may have been affected by your consumption of alcohol.
Circumstances of the Offender
[7] A.F.B., I have had regard to your personal circumstances. The Pre-Sentence Report tells me that you are a 41 year old repeat offender before the courts a second time convicted of sexual assault. You were 20 years old when convicted of the sexual assault of a 12 year old female. You served 10 months in custody for this offence in 1991. Prior to that, you had a youth record for break and enter with intent in 1987 and 1989, for which you were placed on probation, and another break and enter as an adult in 1990 for which you served nine months in custody. In 1993 and 1995, you were convicted of mischief under $1000 and failure to appear in court, for which you received suspended sentences and probation. You then had a conviction for assault in 1997 and attempted theft for which you served a 21 day conditional sentence. There was a further conviction in 2003 for assault which I am told involved a family member, for which you were fined only $200.
[8] There were no more entries on your record between 2003 and the convictions which I entered against you in this case.
[9] There was a Mental Health Assessment and other testing done between 1989 and 1995 suggesting that the break and enters on your record may have been sexual in nature, as on three separate occasions you were said to have entered young women’s homes, undressed and climbed into their beds while they were asleep. On one occasion, you were alleged to have threatened the young woman with a knife.
[10] In the course of assessment in 1991, you disclosed for the first time that you yourself were a child victim of sexual assault by a babysitter who touched you and performed oral sex on you.
[11] You have had two long term relationships and children by the first, although they were removed from your care and that of their mother by the Child Protection Authorities and eventually adopted. Your only other relationship of note was with Mama Angie, but that ended after the events for which I sentence you.
[12] You live in the same neighbourhood and enjoy a close relationship with your father to this day; you assist him by doing groceries and cleaning, as he suffers from Parkinson’s disease. Your father supports your need for assessment and treatment for cannabis and alcohol dependency, which was obviously a factor in the latest charges.
[13] You have limited education, having failed to complete High school after your parents separated. You have very little work experience, and have been unemployed for over ten years, due to a number of disabilities including tremors, arthritis and nerve damage of unknown origin.
[14] You were referred at my request to the Royal Ottawa Hospital (ROH) for a Sexual Behaviours Assessment under s. 21 of the Mental Health Act. Dr. Booth of the ROH provided me with his report dated February 15, 2013 which was entered as Exhibit #1 at the sentencing hearing. It appears from his report, that he received and reviewed your previous chart at the ROH, including Psycho-Sexual Assessment and Phallometric Testing. He also interviewed you for about two hours, and reviewed the Crown Synopsis as well as police records concerning the latest charges.
[15] Dr. Booth reported that you have struggled with mental and emotional issues in the past, and have attempted suicide on two or three occasions, the last time being in 1994. He indicated that you have suffered from bouts of depression over the years, the last time being in 1993 or 1994.
[16] Dr. Booth diagnosed you as having the following conditions:
• A recurrent major depression in remission at the time of his report;
• A heterosexual pedophilia in remission at the time of his assessment. He described the condition as a non-exclusive type, meaning a more positive form that allows individuals to turn their sexual interest to more appropriate adult-consenting relationships.
• In addition, Dr. Booth diagnosed a cannabis and alcohol dependence which you appear to underestimate. As I have said, alcohol abuse was evidently a factor in these latest charges.
• Dr. Booth also found that you have a mild social phobia and borderline intellect. These conditions will affect your ability to see, learn and apply new concepts and skills to your everyday life. This will pose a challenge.
[17] In the end, Dr. Booth concluded that you pose a low to moderate risk of re-offence. Overall, he sees the risk as fairly low as long as you are not intoxicated. Fortunately, you have not had a sexual offence for a number of years and have never re-offended against children.
Impact on the Victim and the Community
[18] The impact of your conduct on A.R. and the community is quite significant even though the sexual assaults in this case lie on the less intrusive end of the range insofar as such crimes go. The conduct is significant because A.R. is a mentally delayed adult and presents both behaviourally and physically as child like or adolescent.
[19] A.R. described the impact of these offences in a Victim Impact Statement entered as Exhibit #3 at the sentencing hearing. She has experienced recurring nightmares. She continues to feel insecure when she is out and about in the community, and fears being followed and attacked from behind. She no longer feels secure in her own apartment. She feels confused and has suffered a loss of faith and trust in people like you, A.F.B., whom she considered good people, like family to her. She has also had to re-evaluate her relationship with your brother D. She expects to get counselling to help her deal with the nightmares.
[20] The impact of sexual assault on the community at large is obvious: people cannot feel safe around someone who uses alcohol and drugs and whose sexual behaviours and urges cannot be controlled, particularly when intoxicated.
[21] The law acts firmly to prevent the offender and others who might be so inclined to cause harm, particularly to those who are vulnerable in society like children, the disabled and the elderly. If you think of those in your family who are old or infirm, including your own father, you can understand this, A.F.B.. You were also yourself, a victim of sexual assault at a young age.
Position of the Crown
[22] The Crown is seeking a term of prison of 8 to 12 months followed by a period of 2 years probation. In so doing, the Crown focuses on your history for past sexual offences. As I have already noted, you previously served a 10 month custodial sentence for sexual assault of a 12 year old child; however, this offence involved more intrusive sexual conduct under the clothing. While there has been a significant gap since the last sexual offence of about 20 years, the Crown correctly points out the fact that A.R. is cognitively delayed, and presents both in appearance and behaviour as quite adolescent. It is unclear to me whether this suggests a penchant for children or young adolescents, a matter Dr. Booth left unresolved at p. 13 of his report when questioning the need for supervised contact with individuals under the age of 18.
[23] The Crown also emphasizes the fact that there has been a breach of trust in the sense that A.R. was victimized by you, a person she considered to be like family. Now she questions her surroundings and relationships and suffers recurrent nightmares.
[24] In addition to a period of incarceration, and two years probation, the Crown asks for a mandatory prohibition under s. 109 of the Criminal Code and a 20 year registration under the Sexual Offender’s Registry pursuant to s. 490.012 of the Criminal Code. In addition to the conditions listed in the pre-sentence report as part of your term of probation, the Crown asks that there be a condition that you not be found in the presence of persons under the age of 16, unless you are with another adult.
Position of the Defence
[25] A.F.B., your counsel has quite properly recognized that applying the sentencing objectives of denunciation, and both general and specific deterrence, to the facts of this case will mean a jail sentence for you, but she suggests a range of 3 to 6 months followed by a lengthier period of probation of up to 3 years. Your counsel correctly points out that there is no pattern of sexual misconduct in your case, but a very significant break in your criminal record for such offences. While recognizing the aggravating factors at play, including your criminal record for similar offences and A.R.’s vulnerability, your counsel has distinguished this case from those involving the sexual assault of children, whose healthy development can be seriously affected by a sexual assault. A.R. is an adult, who has already had a child and who is in a romantic relationship. This is not to diminish the fact that she now suffers a loss of confidence in relationships and has even questioned her relationship with your brother, D..
[26] I am told that there has been no re-offence and that you have strictly complied with bail conditions for over two years and that you are open and willing to engage in substance abuse and addiction assessment and counselling, sexual behaviours follow-up with the ROH or other facilities, and psychological counselling. Your counsel makes a good point that your treatment and rehabilitation will in the end, after an appropriate jail term, serve to protect the public, along with appropriate conditions in place as part of an order for probation.
[27] In terms of ancillary orders, your counsel argues that a 20 year sexual offender registration is likely unnecessary if conditions are put in place prohibiting you from being in the presence of those under 16 years of age without another adult, particularly if one considers that we have very outdated phallometric testing going back to the early 1990’s, and Dr. Booth’s opinion that there is a fairly low risk of re-offence, if you are not intoxicated.
Case Law and Governing Principles
[28] The governing legal principles which apply in this case are as follows:
[29] Section 718 of the Criminal Code states:
S. 718:
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[30] The Crown also referred me to s. 718.01 which provides:
S. 718.01:
When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
[31] Clearly, the sexual assault in this case does not involve a person under the age of 18. However, as decided by McKinnon J. in R. v. Foubert, [2009] O. J. No. 5024 at paras. 28-33, I accept that there may be instances where it is found that there is little to distinguish individuals suffering from limited intellect or mental disability such as Alzheimer’s disease and severe dementia from children, where persons in a position of trust and authority are concerned. I note that in Foubert, a caregiver was found guilty for abuse of his powers at a senior citizen’s residence where he was employed. The offender in that case received a sentence of 8 months incarceration plus 2 years probation for the general assault of four elderly persons and three co-workers.
[32] While I agree with the sentiments expressed by McKinnon J. in Foubert, I have concluded that the circumstances before me are decidedly different. At the time of these offences, you and A.R. lived in different communities. A.R. would periodically see you at your H.B.’s, usually when she visited there with D.. She otherwise lived independently. Therefore, I do not find you to be a person in a position of trust vis-à-vis A.R. in circumstances such as invite reliance by analogy on s. 718.01. In my opinion, the necessary direction is already provided in s. 718.2(a) which provides as follows:
S. 718.2
A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,…
a court may consider the evidentiary circumstances described in sub paragraphs 1 to 5. In other words, the Court’s jurisdiction is not limited by the specific instances enumerated in sub paragraphs 1 to 5 as deemed aggravating circumstances.
[33] Suffice it to say, that in the circumstances before me, the primary objectives of sentencing will be denunciation and deterrence, and will have regard to the aggravating circumstance of sexual assault upon a vulnerable individual.
Mitigating and Aggravating Factors
[34] The aggravating factors in this case are not in dispute:
The criminal record for past sexual conduct;
A.R.’s special vulnerabilities as a cognitively delayed woman; and
Your intoxication.
[35] The mitigating factors are also not in dispute:
The circumstances relate to sexual conduct at the lower range of intrusiveness involving a pinch, and groping over the clothing.
Your acceptance of some responsibility insofar as the assault in the bathroom is concerned and the fact that you are open to assessment and treatment for addictions, sexual behaviours follow-up and psychological counselling.
A.F.B., you have had a difficult life having been sexually abused as a child and having never received treatment to address this. You also suffer from other disabilities which have affected your employability. You are of borderline intellect which has affected your ability to pursue an education. While sentencing is not about making amends for all of these circumstances, it must also give due regard to your potential for rehabilitation which will prepare you to return among members of the public after a period in custody.
The risk of re-offence is fairly low and may be addressed by conditions prohibiting the consumption of alcohol and drugs and your presence around children under the age of 16 without accompaniment.
Accused’s Statement
[36] Before I impose or pass sentence, A.F.B., do you wish to make a statement?
Sentence
[37] In my opinion, a just and fit sentence, having regard to the principles of sentencing that apply, and both aggravating and mitigating factors, is a global sentence of 6 months jail followed by 2 years of probation, with conditions as follows:
Report as directed to a Probation Officer;
Abstain from the purchase/possession/consumption of alcohol or other intoxicating substances;
Abstain from purchase/possession/consumption of drugs except in accordance with a medical prescription;
Not to associate or have any communication with A.R. without her written and revocable consent;
Not to be alone with persons under the age of sixteen without responsible adult supervision;
Reside at an address approved by your Probation Officer;
Attend for assessment/treatment/counselling as directed by the Probation Officer;
Attend the Royal Ottawa Hospital Sexual Behaviours Clinic for follow-up;
Sign any release forms in order for your Probation Officer to monitor and confirm compliance with this order; and
Ancillary Orders
[38] In addition to the term of incarceration and probation, I make the following orders:
A DNA sample order under s. 487 of the Criminal Code;
A lifetime firearms/weapons prohibition under s. 109 of the Criminal Code;
A 20 year Sex Offender Registration under s. 490.013 of the Criminal Code;
An order under s. 743.2(1) that A.F.B. shall not communicate directly or indirectly, by any means, with A.R. during the custodial part of this sentence.
I direct that a copy of my Reasons on conviction and on sentence be sent to the Children’s Aid Society and to your Probation Officer.
[39] In addition, I must warn you A.F.B., that should there be any breach of any term of the Probation Order that I have made, you may be brought back before a Court and sentenced for that breach and terms of your probation altered accordingly. I will expect your counsel to review the terms of probation with you but I am obliged to ask you whether you understand what I am telling you.
[40] Counsel, are there any other matters that require attention or any additional conditions or ancillary orders which I should make?
[41] If not, that will complete my reasons for sentence.
Madam Justice Toscano Roccamo
Released: July 9, 2013
COURT FILE NO.: 11-SA-5012
DATE: 2013/07/09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
A.F.B.
Accused
REASONS FOR sentence
Toscano Roccamo J.
Released: July 9, 2013