ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. V.S., 2013 ONSC 6026
COURT FILE NO.: 12-50000-450-0000
DATE: 20130926
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
V.S.
C. Rogozinski, for the Crown
Donald Powell, for the Defendant
HEARD: September 13, 2013
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.
KELLY J.
reasons for SENTENCE
[1] The defendant, V.S, has been found guilty of the following Criminal Code[1] offences involving his two adopted children R.S. and A.M.S.:
a. Sexual interference of R.S. when she was under the age of 14 years contrary to s. 151(a) of the Criminal Code;
b. Committing a sexual assault on A.M.S. when she was between the ages of 18 and 20 contrary to s. 271(a) of the Criminal Code; and
c. Sexual exploitation of A.M.S. while in a position of trust or authority knowing that she was a person with a mental disability and in a relationship of dependency contrary to s. 153.1(1)(a) of the Criminal Code.
[2] After a guilty plea and a trial on other offences, I found that V.S. had “French kissed” his daughter, R.S. when she was under the age of 14. I found that he had committed approximately six acts of misconduct on his daughter A.M.S. when she was 18 to 20 years of age which included: touching and kissing her breasts, touching her vagina, having her masturbate him to orgasm and two attempts at sexual intercourse. Both girls were developmentally delayed at the time.
[3] V.S. now comes before me for sentencing. Crown Counsel seeks a sentence of 5 years in custody. V.S. seeks a sentence as follows:
a. Sexual interference on R.S.: 45 days to be served intermittently;
b. Sexual assault on A.M.S.: 90 days to be served intermittently; and
c. Abuse of trust regarding A.M.S.: 2 years less one day, conditional sentence.
[4] I find that the sentence proposed by V.S. is entirely unfit in these circumstances and that the appropriate sentence is 4 years in custody. What follows are my reasons.
Analysis
[5] In determining the appropriate sentence for V.S., I am guided by s. 718 of the Criminal Code which sets out the objectives of sentencing. Section 718.01 of the Criminal Code is also applicable because there was an abuse of two children who were developmentally under the age of 18. This section provides that the Court shall give primary consideration to the objectives of denunciation and deterrence. Section 718.2 obliges the Court to consider that V.S. abused a position of trust in relation to his daughters and the impact upon them in committing these offences.
[6] In coming to the conclusion I have regarding the length of sentence, I take guidance from the Ontario Court of Appeal. The relevant considerations and principles to consider in a case such as this were outlined in R. v. D.D.[2] and reiterated a decade later in R. v. Woodward[3] 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.
[7] As Moldaver J.A. (as he then was) held in R. v. D.D.[4]: “… as a general rule, when adult offenders, in a position of trust, sexually abuse innocent children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms”.[5] Such a principle is applicable here.
[8] There is rarely any case that is exactly the same as that before the Court to provide an exact precedent. The facts of the case and the circumstances of the offender often differ.[6] However, an intermittent sentence combined with a conditional sentence is well below the range for offences such as these. Accordingly, I find a sentence of 4 years in the penitentiary to be appropriate.
The Facts
[9] The facts giving rise to the convictions are set out in my reasons for judgment but some are worth repeating here to give context to my reasons for sentence.
[10] As stated above, V.S. is the adoptive father of the complainants A.M.S. and R.S. A.M.S. was born on February 18, 1991 and R.S. was born on May 31, 1993. V.S. and his wife, Ms. L.S., adopted the two complainants (both girls) when A.M.S. was 6½ years-old and R.S. was 4 years-old. They were born in Jamaica and their mother died when the girls were very young. At the time of adoption, both girls were suffering from developmental delay and other considerable health problems. When they arrived in Canada, both were still in diapers. V.S. testified that adopting the two girls was extremely stressful for him and his wife.
[11] The girls initially attended at public elementary schools but for a variety of reasons, could not remain there. As a result, the girls were homeschooled by their mother for a number of years and have only recently started re-attending at a school outside of their home.
[12] It appears that, by everyone’s account, the girls had some interest in sexual activity at an early age. They were curious.
[13] V.S. recalled one incident when he was asleep. He awoke to the girls (who were approximately 8 and 10 at the time) looking at his penis. After this incident, he told his wife and they talked about it with the girls. They told them not to do this again. It also appears this conversation did not deter the girls or V.S. as the sexual misconduct giving rise to the charges before the Court occurred thereafter.
[14] The first act was the French kiss given by V.S. to his daughter, R.S. V.S. described it as follows: he was in bed but not asleep. R.S., between the ages of 11 and 13, came into the bedroom and said that she wanted to learn how to French kiss so that when she got a boyfriend she would know how to do it. V.S. initially said ‘no’, but then agreed when R.S. said that if he did not, she would find another boy to do it. After they kissed, he told her to “stop it” because “it is not supposed to happen”. She agreed and did not approach him for a sexual purpose again. V.S. testified that he did not have such success in deterring A.M.S.
[15] V.S. agreed that he engaged in various sex acts with A.M.S. over a period of years, commencing when she was 18 years old. These acts included the following:
a. V.S. touching the breasts of A.M.S. with his hands;
b. V.S. kissing the breasts of A.M.S. (which was observed by his wife) on one occasion;
c. V.S. touching the vagina of A.M.S. and penetrating her with his fingers;
d. A.M.S. masturbating V.S. to the point of ejaculation in the car while at a park; and
e. attempted intercourse with A.M.S. on at least two occasions.
[16] Despite the fact V.S. knew this conduct was wrong, he testified that A.M.S. continued to come to him for sexual acts and he could not resist despite the fact he wanted it to stop.
[17] When the girls disclosed his abuse to their mother, V.S. began seeking counsel from the wife’s father (his father-in-law) who was a pastor. It was after this time that the wife observed V.S. kissing the breast of A.M.S. Rather than reporting the incident, she sent V.S. for further counseling in a 12-step program at a local church.
[18] Ultimately, the wife disclosed the incidents of abuse to her sister. Her sister called the police and V.S. attended at the police station on October 19, 2011 where he was arrested. He gave a statement admitting to certain of the conduct giving rise to the findings of guilt.
The Circumstances of V.S.
[19] V.S. is currently 59 years of age. He was one of 13 children who grew up on a farm in Jamaica. He has a grade 8 education. He came to Canada in 1976. He had a brother living in Canada at the time. He has a good relationship with all of his siblings and currently resides with his sister. The siblings interviewed for the pre-sentence report described V.S. as gentle and caring with a tremendous work ethic.
[20] V.S. has worked steadily since his arrival in Canada. He earns $3,500 (net) per month in his present employment – driving a dump truck. He is concerned about being incarcerated because he would “lose his personal assets, employment stability including no one to support his spouse and daughters”.[7]
[21] V.S. was married for approximately 27 years. He and his spouse could not produce children of their own so they adopted the two girls (the victims of these offences) from Jamaica. Although V.S. found the adoption stressful, he says that he had a good relationship with both daughters.
[22] V.S. is currently involved in relationship with a 40 year-old woman whom he met over the Internet. She lives in the Philippines and V.S. went there in December, 2012 to meet her in person. He said that he would like to marry and have a family because: “I’ve never had children before”.
[23] V.S. attended for an assessment with Dr. Robert Dickey of the Centre for Addiction and Mental Health[8]. He engaged in phallometric testing. Dr. Dickey concluded as follows:
The phallometric evaluation of Mr. S. produced an uninterpretable result. Therefore the testing was not indicative of his suffering from Pedohebephilia [sic]. However, the pattern of his responses were suggestive of efforts on the part of Mr. S. at test manipulation; therefore, the test results should be interpreted with caution.
[24] Dr. Dickey concluded that he has no “sexological” diagnosis of V.S., but in his opinion, the criminal charges are the likely the result of personality and situational factors. He believes that V.S.’ passivity had some role in these offences. He assessed V.S. as a “very low” risk for future sexual offending. However, he did recommend that V.S. attend an assessment and treatment program for incest offenders which V.S. has agreed to do.
The Circumstances of the Complainants
[25] A.M.S. was born on February 18, 1991 and R.S. was born on May 31, 1993. Both complainants were assessed in 1999 and again in 2013. It was concluded that both girls suffer from moderate developmental/intellectual delay.
[26] R.S. is currently 20 years of age. Academically, R.S.’s skills are similar to an individual at the elementary school level of grades 4 and 6.[9] A.M.S. is currently 22 years of age. Academically, A.M.S. has the reading skills equivalent to the grade 3 to 5 level and math skills at the grade 2 to 3 level.[10]
[27] In her victim impact statement, R.S. stated that the incident involving her father has left her feeling “depressed”, “hurt”, “sad” and “frustrated”. She is engaged in counseling to help her deal with the incident. Although she is not afraid for her safety, she did indicate that she did not wish to see her father, V.S.
[28] In her victim impact statement, A.M.S. described herself as feeling “numb” as a result of the incidents. She, too, is in counseling. Unlike her sister, A.M.S. does wish to see her father.
[29] The mother also described the impact that the conduct of V.S. has had on her personally. Amongst other things, she is experiencing anxiety attacks, loss of sleep, etc. She fights persistent thoughts of suicide and it has been recommended that she see a psychiatrist.
[30] Both girls have said that they are frustrated that they had to move out of their home and into a rented apartment as a result of these incidents. The mother advises that she is a homemaker and receives $600 monthly from V.S. as support. She has advised that “loss of this financial support would be catastrophic for me and my household”.
The Aggravating Factors
[31] Bearing the above-mentioned factors in mind, I consider the following to be aggravating regarding V.S.’s involvement in the offences before the Court:
a. This is an obvious breach of trust as V.S. was the only father both girls have known.
b. There are two complainants who are cognitively slow learners and therefore are particularly vulnerable in light of their assessment. Further, they were socially isolated due to the fact they were home schooled.
c. Although there is only one incident involving R.S., there are multiple incidents involving A.M.S. that occurred over a prolonged period of time (2 years).
d. The incidents involving A.M.S. escalated in nature. The incidents commenced with fondling, progressed to digital penetration of her vagina, having her masturbate V.S. to ejaculation and ultimately attempting intercourse on two occasions.
e. There were multiple opportunities to stop this misconduct and rehabilitate. V.S. attended counseling with his father-in-law and was engaging in counseling that was more regimented to deal with these issues. Despite that, he was unable to stop abusing A.M.S. As V.S. stated at trial: he went to counseling two times but could not stop it.
f. There has been a detrimental effect on both girls and the family unit as a whole. Obviously, it is the conduct of V.S. that caused the break-up of a family that was already fragile.
g. Although V.S. has expressed remorse and says he knows his actions were wrong, he has also stated a number of things that cause some concern and demonstrate a minimization of the offences. They are summarized as follows:
i. In his statement to police V.S. said: “this all happened, ya [sic] know, because, um, the girls, they approaches [sic] me”.
ii. At trial V.S. said: He felt that he was sexually abused by both R.S. and A.M.S. and that he felt like a “victim”. He did not want the conduct to continue, but the girls kept coming to him. They would not leave him alone.
iii. As reported by the Probation Officer: V.S. felt that he was “coerced” by his daughters to “do what he did”.
iv. As reported by Dr. Dickey: “to his surprise, the victims began to show sexual interest and were sexually aggressive or exploring with himself, ‘they showed me pornography’”.
The Mitigating Factors
[32] I consider the mitigating factors to be as follows:
a. V.S. does not have a criminal record at age 59.
b. V.S. pleaded guilty to some of the offences before the Court. He pleaded not guilty to others and following the trial of these offences, he was found not guilty of some of them. His plea of guilt shows that he has taken some responsibility for his actions.
c. V.S. has a supportive family. His sister has described that this conduct is out of character.
d. V.S. is currently employed in the construction field as a dump truck driver and has been employed in that capacity for approximately two years. Prior to that, he was employed by another construction company for thirty years and only left that employment for a better income.
e. V.S. pays child support each month. There are some ramifications to a custodial sentence in that V.S. may lose his personal assets, employment stability and the ability to pay support to his family.
f. V.S. does not appear to have any addiction problems.
g. He has expressed remorse for his conduct.
h. V.S. participated in an evaluation with Dr. Dickey who, amongst other things, concluded that V.S. was “… prosocial or non-criminal in orientation. His level of intelligence was estimated to be in the low average range”. He opined that V.S. represents as “a very low risk for future sexual offending”.
i. V.S. did not use threats of violence in order to gain compliance or maintain secrecy.
j. While the conduct, especially involving A.M.S., is particularly egregious, V.S. did not engage in full intercourse with her. He did attempt on two occasions, but stopped short of penetration because he said: “I know it’s not right”.[11]
What is the Fit Sentence?
[33] In considering the abovementioned factors, I consider the fit sentence to be four years in custody. Although such a sentence will take V.S. out of the workforce for some time and may jeopardize his lifestyle and that of his family, I cannot ignore the seriousness of the offences and the circumstances of the offender.
[34] V.S. took advantage of two developmentally delayed girls who have started their lives 100 metres behind the starting line of a 100 metre race. What they required was his guidance on how to cope with life and not an education in sexual relations wherein he would be part of the demonstration. He abused their trust and victimized them further. He appears to have little insight into his behaviour and its impact on his daughters. The conduct of V.S. must be fully denounced and a message must be sent to like-minded individuals that such conduct will not be tolerated.
[35] Accordingly, the criminal record of V.S. will reflect a sentence of 4 years for sexually assaulting A.M.S.; four years concurrent for the breach of trust and 1 year concurrent for sexually interfering with R.S.
[36] In addition, there will be a mandatory weapons prohibition order pursuant to s. 109(1)(a) of the Criminal Code for 20 years, a DNA order pursuant to s. 487.05(1) authorizing the taking of a DNA sample and an order that his name be added to the Sex Offender Registry for life.
Kelly J.
Released: September 26, 2013
CITATION: R. v. V.S., 2013 ONSC 6026
COURT FILE NO.: 12-50000-450-0000
DATE: 20130926
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
V.S.
REASONS FOR SENTENCE
Kelly J.
Released: September 26, 2013
[2] 2002 44915 (ON CA), [2002] O.J. No. 1061
[3] 2011 ONCA 610 at para. 72
[4] R. v. D.D., supra, at para. 44
[5] See also: R. v. D.M., 2012 ONCA 520 and R. v. J.L., 2009 ONCA 788
[6] See for instance, R. v. P.M., 2012 ONCA 162 wherein the Court of Appeal upheld a sentence of 5 years for a father who committed 10 acts of anal and vaginal intercourse with his daughter over a period of 13 months when she was 13-14 years of age.
[7] Pre-Sentence Report dated September 13, 2013 at page 5
[8] MD, FRPC: Consultant Psychiatrist, Sexual Behaviours Clinic, Law and Mental Health Program, CAMH; Consultant Psychiatrist, Waypoint Centre for Mental Health Care, Forensic Division; Director, Northern Ontario Sexual Behaviours Program, Thunder Bay Regional Health Sciences Centre.
[9] R.S. was assessed by Dr. Josee Casati, Ph.D, C. Psych., who testified at this proceeding.
[10] A.M.S. was assessed by Dr. Valerie Temple, C. Psych., who also testified at this proceeding.
[11] This was stated by V.S. in his statement to police immediately following his arrest. (See: page 64.)