SUPERIOR COURT OF JUSTICE

Neutral Citation R v SB, 2013 ONSC 5189

File No. CR-13-014 and CR-13-089

HER MAJESTY THE QUEEN

v.

S.B.

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

BEFORE THE HONOURABLE JUSTICE M. FUERST

on July 25, 2013, at BARRIE, Ontario

PURSUANT TO SECTION 486.4 ANY INFORMATION THAT
COULD IDENTIFY A COMPLAINANT OR A WITNESS
SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST
OR TRANSMITTED IN ANY WAY

APPEARANCES:

L. Shirreffs Counsel for the Crown

M. Schiffer Counsel for S.B.

R v SB

Fuerst, J. – Reasons for Sentence

PURSUANT TO SECTION 486.4 ANY INFORMATION THAT COULD IDENTIFY A COMPLAINANT OR A WITNESS SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY

THURSDAY, JULY 25, 2013

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

FUERST, J. (Orally):

Introduction

S.B. pleaded guilty to a disturbing constellation of offences: attempt to administer a stupefying or overpowering substance with intent to enable the commission of an indictable offence, attempted sexual assault, attempt to make child pornography, voyeurism, and possession of child pornography.

Crown and defence counsel jointly submit that he should receive a total sentence of three years in jail. They also agree on the applicable ancillary orders.

For the reasons that follow, I accept that the joint submission falls within the appropriate range of sentence, and is a fit sentence in the circumstances of this case.

The Circumstances of the Offences

S.B. is the uncle of the complainant, K.P.-

S., whom I shall refer to in these Reasons as K.

In the spring of 2012, K was 16 years old and lived with her father. She often spent weekends at S.B.’s home, because she enjoyed spending time with him, her aunt, and their children. S.B. was her favourite uncle, and she had a close relationship with him.

While K’s father was away on vacation in April, 2012, Mr. and Mrs. B. took turns staying with her. On April 4^th, 2012, around 9:00 p.m., S.B. arrived at K’s home to stay with her for a couple of nights. He brought with him his DJ equipment; a quantity of alcohol, mix, and ice; a laptop computer and a hard drive; and a video camera with a tripod. Unknown to K, he also brought a box of condoms; Cialis pills, similar to Viagara, that he purchased by prescription the day before; lubricant; and baby oil.

S.B. made some alcoholic drinks for K and himself, which she, initially, agreed to drink. She mentioned that she had just smoked some marijuana. He told her that she could have a party for her friends the next night, and that he would DJ the event. He moved furniture in the living room to create a dance floor, set up some party lighting, set up the video camera on the tripod, closed the curtains on the windows, hung a towel over one window to block the view, and

turned on music.

S.B. repeatedly gave K shots of vodka. When she said that she did not want to continue drinking, he insisted that she do so. At one point, he said that if she did not drink all night with him, she could not have the party. He sat next to her on the couch and asked her to dance. She did not want to dance with him.

S.B. specifically admits that he gave K alcohol with the intention of getting her intoxicated so that he could, without her consent, have sexual intercourse with her and video record her in such a manner that the images would constitute child pornography.

On at least one occasion, S.B. tried to pour vodka into K’s mouth against her will, but because she kept her mouth closed, the alcohol spilled on her face and shirt. S.B. specifically admits that this constituted the offence of attempting to administer a stupefying or overpowering substance to K with intent to enable the sexual assault of her.

K felt intoxicated and unwell. She threw up. She began to be concerned about why her uncle was so persistent in forcing her to drink. As she became increasingly uncomfortable with the situation, she went downstairs to her bedroom to get away from her uncle. At 11:50 p.m., she had a Skype conversation over the internet with a friend, and asked him for help. She text-messaged another friend, and said that she was really scared, and that her uncle would not let her stop drinking, even when she said no.

K pleaded with her uncle to leave her alone, telling him that she could not drink anymore and was feeling sick. At midnight, she called 9-1-1. She asked for help. She was heard saying, “Get off of me. No…that’s enough…I’ll call them back and tell them not to come if you give me my phone back.” Then she told the 9-1-1 operator that there was no problem. S.B. got on the phone and initially said that he was K’s parent. He said that he was having a party, that K did not want to go to bed and they were fighting, and that K had been drinking a little bit.

In the meantime, K used her computer to speak to the friend with whom she had the Skype conversation. She asked him to help her. Then she got back on the phone with the 9-1-1 operator and said that her uncle was making her drink. That call terminated, but K made a second 9-1-1 call, in which she said that she and her uncle were both very drunk, and she was locked in her room with her uncle outside the door listening to her phone conversation. She asked for the police to come. She said that her uncle was making her drink, and she did not know his intentions, that he was trying to get into her room and she did not feel safe.

On the 9-1-1 operator’s instructions, she barricaded her bedroom door while she waited for the police.

At 12:25 a.m., a police officer arrived at the house. He found S.B. in the living room, very intoxicated, and K crying in her bedroom. S.B. was so drunk that he was taken to hospital.

S.B. was arrested. He provided a statement to the police. When they told him that they would be executing a search warrant at his home, he told them that they would find a webcam camera set up in the master bathroom, and that it was hardwired to his office in the basement. He said that the camera had been set up for six years, and that he had recorded K, his 11 year old daughter’s friends, and some international students who had stayed at his house. The students were aged 11 to 17 years.

When the police executed the warrant, they found a camera in the bathroom. It was not connected to anything at the time, but wiring ran to the accused’s basement office, which no one else in the household was allowed to enter. In the office, the police found several computers, hard drives, thumb drives, and CDs. Forensic examination of the devices revealed that they held recordings of nine females using the toilet or entering or exiting the shower in the master bathroom. They included S.B.’s daughter, a teenaged friend of the family, K, and two international students. None of them were aware that they were being recorded, nor did they consent to being recorded. The police also found 18,000 images and 400 movies that constitute child pornography, predominantly of females, including pre-pubescent females. They found a still picture S.B. created by cutting and pasting K’s face into an image so that she appeared to be performing fellatio on him.

There is no evidence that S.B. shared any of his child pornography collection on-line or made it available for use by other persons.

S.B. spent 11 days in pre-trial custody before his release on bail.

The Victim Impact Statements

In her victim impact statement, K expresses that she is “broken on the inside”. She considered S.B. as like a dad to her, and his family as her second family. She feels hurt, angry, and confused by what he did to her. Her childhood memories have been ruined. She has lost friends, and distanced herself from family, and she has trust issues. She has had to have therapy.

S.B.’s daughter expresses in her Victim Impact Statement that he “friged up” her life. She has felt sad and angry. She wrote, “The judge can make me feel safe by never letting my father alone with me ever again…cause Im[sic] afraid of him.”

The Circumstances of S.B.

S.B. is 42 years old. He has no prior criminal record. He was born in Guyana and emigrated to Canada as a child with his family. He finished high school and obtained a community college certificate in Small Business Management. He worked at a variety of jobs, most recently for 17 years at a large hardware store, where he apparently did well as a sales associate and forklift operator, until his arrest. He told the pre-sentence reporter that as a hobby, he fixed computers and eventually learned to build computer systems. He worked on his computers daily, six out of seven days of the week, and created a schedule to allocate time between working on his computers and being with his family.

In addition to his daughter, S.B. has a

teenaged son with his wife. He told the pre-sentence reporter that his relationship with his children had been “solid”, and that he had been very close with his daughter. He has had no contact with his children since he was charged, because of bail conditions and a Family Court order. His marriage is over, but he hopes to reconcile with his children and resume contact with them soon.

Mrs. B. told the pre-sentence reporter that she feels deceived by her husband. She confirmed that their marriage is over. She is concerned about how her children and K are coping with what happened. Her children are attending counselling. However, she is prepared to contact Children’s Aid Society to possibly assist with arrangements for the children to have contact with their father after his sentencing.

S.B. lived with his father while on bail. His father confirmed that he did well. His father is supportive of him, as are his siblings.

The investigating officer stated that S.B. was cooperative with the police.

S.B. has never attended counselling or treatment, aside from marriage counselling and counselling following a motor vehicle accident. He has no history of substance abuse.

S.B. told the pre-sentence reporter that he

felt deeply remorseful about his offences, and held himself responsible for his actions. He also told her that he would not be interested in counselling or treatment, as he is not concerned about re-offending. He wishes to remarry in the future to someone who “loves, understands, and accepts” him, and to have more children.

At the sentencing hearing, S.B.’s lawyer advised that S.B. is interested in attending counselling while serving his sentence.

The 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 acknowledgement of the harm done.

Section 718.1 provides that a 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. It sets out various aggravating factors. It also requires that a 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.

Analysis

S.B. pleaded guilty to a worrisome constellation of serious offences, including possession of child pornography and attempt to make child pornography. The offence of possession of child pornography now carries a mandatory minimum sentence of six months in jail, and the full offence of making child pornography a mandatory minimum sentence of one year in jail, where the Crown proceeds by indictment. This reflects Parliament’s view of the seriousness of such offences.

The Ontario Court of Appeal described possession of child pornography as “an offence of enormous gravity, both for the affected victims and for society as a whole” in R. v. E.O., 2003 2017 (ON CA), [2003] O.J. No. 563 at para. 7. In an earlier decision, R. v. Jewell, 1995 1897 (ON CA), [1995] O.J. No. 2213, the same court observed that child pornography has become a very real problem, and spoke at paragraph 22 of the need for judges to be responsive to a form of criminality that “menaces our young people and threatens our values as a society”. Further, in R. v. Stroempl (1995), 1995 2283 (ON CA), 105 C.C.C.(3d) 187, the Ontario Court of Appeal observed that possessors of child pornography instigate its production and distribution, which, in turn, frequently involves direct child abuse.

In these decisions, the Court of Appeal emphasized that general deterrence and denunciation are the most important sentencing principles in cases involving child pornography, and that the sentence imposed must reflect the gravity of the offence. The same can be said of the other offences to which S.B. pleaded guilty. It is notable that the maximum sentence for the full offence of administering a stupefying or overpowering substance with intent to enable the commission of an indictable offence is life imprisonment.

Accordingly, deterrence, both general and specific, and denunciation must be the paramount objectives of sentencing in this case. While S.B.’s rehabilitation cannot be completely ignored, it is of subordinate importance.

The aggravating features of S.B.’s offences

are many. They include:

1. The victims of the offences were children and

adolescents under the age of 18 years. This

is a statutory aggravating factor under

Section 718.2(a)(ii.i) of the Code, and is

recognized in Section 718.01 as requiring

that denunciation and deterrence be the

primary considerations in sentencing.

2. S.B. was in a position of trust toward

his daughter, his niece, and the other young

persons who were guests in his home. Abuse

of a position of trust is a statutory

aggravating factor under Section

718.2(a)(iii).

3. S.B.’s offences in respect of his niece,

took place in her own home, a place where she

was entitled to feel safe and secure.

Instead, she was forced to seek refuge from

him behind a locked bedroom door. Even then,

he tried to get into the room, necessitating

that she barricade the door with furniture to

protect herself from him.

4. Similarly, S.B. videotaped his own

daughter in the most private of places in her

own home, a washroom.

5. His conduct in respect of his niece was

obviously planned, premeditated, and

deliberate, and driven by his admitted

intention to have sexual intercourse with her

without her consent. This is evidenced by

the supplies that he brought to her home,

and, also the “cut and paste” still image

found by the police.

6. The webcam camera set up in the washroom of

his home was in place for a period of years.

Again, this evidences the planned,

determined, and deliberate nature of S.B.’s conduct.

7. The size of S.B.’s pornography collection

was very large.

8. Forcing alcohol on a teenager, to the point

where an attempt was made to pour it down her

throat, was dangerous conduct that could

easily have resulted in alcohol poisoning and

serious physical harm to her.

9. K’s conversations with the 9-1-1 operator

reveal the terror that she felt that night.

She and S.B.’s own daughter have been

deeply affected, emotionally and

psychologically, by his conduct, to the point

that they have required therapy or

counselling.

10. S.B. has demonstrated a lack of insight

into his conduct, which can only be described

as deviant. It is conduct that any

reasonable person would find very troubling

and deserving of professional attention. I

attach little weight to S.B.’s assertion

through his lawyer that he is interested in

attending counselling at the penitentiary.

He was out of custody for about a year before

he pleaded guilty, but apparently did not

seek professional assistance. When

questioned by the pre-sentence reporter, he

said that he would not be interested in

counselling or treatment. His desire to

resume contact with his children, including

his daughter, and to have more children in

the future, suggests that he does not fully

appreciate the magnitude of the harm caused

by his behaviour.

There are, however, mitigating factors that I take into account. They include:

1. S.B. is a first offender.

2. He pleaded guilty, which is a sign of remorse

and willingness to take responsibility for

his offences. He told the pre-sentence

reporter that he is deeply remorseful, and

holds himself responsible for his actions.

3. By pleading guilty, S.B. spared at least

his niece from having to testify at either a

preliminary hearing or a trial, and save

court time in two different judicial centres.

4. His cooperation with the police resulted in

the discovery of the webcam camera.

5. He has the support of his father and

siblings, which will assist in his

rehabilitative efforts.

I agree with Crown and defence counsel that even though S.B. is a first offender, he must be sentenced to a substantial jail term because of the seriousness of his offences. I am satisfied that the joint submission put to me by experienced Crown and defence counsel reflects the primacy of denunciation and deterrence, and properly balances the various aggravating and mitigating factors in this case, while having regard to the principle of totality.

In light of the totality principle, I will impose concurrent sentences on each count to which S.B. pleaded guilty, even though the two indictments charge separate and diverse offences.

Conclusion

S.B., please stand. On indictment 12-03015,

I sentence you on count two to three years in the penitentiary; on count three to three years in the penitentiary, to be served concurrently; and on count four, to three years in the penitentiary, to be served concurrently to both other sentences.

On indictment 13-014, I sentence you on count one to three years in the penitentiary, to be served concurrently to all other sentences, and on count three to three years in the penitentiary, to be served concurrently to all other sentences.

To be clear, the total sentence is three years in the penitentiary, which is additional to 11 days of pre-sentence custody.

I make the following ancillary orders:

1. On count two in indictment 12-03015, a

Section 109(2)(a) weapons prohibition order

for 10 years, and a Section 109(2)(b) order

for life.

2. On count three in indictment 12-03015, a

Section 110 weapons prohibition order for 10

years.

3. A SOIRA order for life on each count to which

you pleaded guilty, except count two in

indictment 12-03015.

4. A DNA order on each count to which you

pleaded guilty.

You may be seated.

These Reasons shall be transcribed and forwarded

to the correctional authorities. It is my wish that they be provided to any person or body to which S.B. applies for any form of early release.

P R O C E E D I N G S C O N C L U D E D

FORM 2

Certificate of Transcript (Subsection 5(2))

Evidence Act

I, Susan Griffin, certify that this document is a true and accurate transcript of the recording of R v SB in the Superior Court of Justice held at 75 Mulcaster Street, Barrie, taken from Recording 3811-02-20130725-084745, which has been certified in Form 1.

Date Susan Griffin

Photostatic copies of this transcript are not certified and have not been paid for unless they bear the original signature of Susan Griffin, in blue ink, and accordingly are in direct violation of the Administration of Justice Act, Ontario Regulation 587/91, as amended to O. Reg. 135/94.

Transcript Ordered: _______________________________

Transcript Completed: _____________________________

Ordering Party Notified: __________________________