SUPERIOR COURT OF JUSTICE
Court File No. CR-11-0193
R. v. Blake, 2013 ONSC 6310
HER MAJESTY THE QUEEN
v.
JOMO BLAKE
REASONS FOR SENTENCE
BEFORE THE HONOURABLE JUSTICE G.P. DITOMASO
on August 28, 2013, at BARRIE, Ontario
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED,
BROADCAST OR TRANSMITTED PURSUANT TO SECTIONS 486.4 AND 517(1) OF THE CRIMINAL CODE OF CANADA BY ORDER
OF JUSTICE G.P. DITOMASO, SUPERIOR COURT OF JUSTICE, DATED OCTOBER 15, 2012
APPEARANCES:
L. Shirreffs Counsel for the Crown
A. Flisfeder Counsel for Jomo Blake
WEDNESDAY, AUGUST 28, 2013
REASONS FOR SENTENCE
DiTomaso, J. (Orally):
OVERVIEW
Mr. Blake was charged with two counts of sexual interference with T.H., a person under the age of 16 years. The first count related to touching for a sexual purpose between the dates of May 19th, 2008, and March 31st, 2010. There were two occasions on which Mr. Blake was alleged to have kissed T.H. on the lips and rubbed her thigh with his hand.
The second count of sexual interference also related to T.H., a person under the age of 16 years. This count related to touching for a sexual purpose between the dates of December 23rd, 2009, and May 16th, 2010. The evidence at trial, relied upon by the Crown, was that there were four incidents in which Mr. Blake inserted his penis into the vagina of T.H. and had sexual intercourse with her.
After seven days of trial before a judge and jury, the jury, by verdict dated April 26th, 2013, acquitted Mr. Blake of the first count of sexual interference but convicted Mr. Blake regarding the second count, which involved sexual intercourse between Mr. Blake and T.H..
A pre-sentence report was obtained regarding Mr. Blake.
On August 19, 2013, I heard sentence submissions on behalf of the Crown and Mr. Blake.
THE FACTS
(a) Circumstances of the Offence
The evidence at trial was that between the dates of December 23rd, 2009, and May 16th, 2010, inclusive, Mr. Blake, on at least four separate occasions, touched T.H., a person under the age of 16 years, for a sexual purpose. The Blake and H. families were friends and would exchange visits in each other's homes. T.H. was a troubled young person who had difficulties with her own family. She enjoyed spending time at the Blake's home visiting with Angie Blake, Mr. Blake's wife, who was also a friend of T.H.'s mother. Not only did T.H. enjoy the companionship of Ms. Blake, but also she babysat the Blake children regularly.
The Crown evidence related to four incidents as described by T.H. when she spent the night at the Blake residence in a downstairs bedroom. It was during those overnight occasions that Mr. Blake went downstairs to where T.H. was sleeping, crawled on top of her, inserted his penis into her vagina, and had sexual intercourse with her. At the time, T.H. believed that she was 15 years old. On these occasions when T.H. slept overnight at the Blake residence, she had been visiting with Angie Blake and had been babysitting the Blake children.
(b) Circumstances of the Offender
Marked as Exhibit 1 on the sentence hearing was Mr. Blake's pre-sentence report. The report sets out Mr. Blake's personal and family information, together with his education and employment particulars. Mr. Blake was an excellent employee wherever he worked and was well respected by his co-workers. Substance use or addictions are not a factor in this case.
During the interview for his pre-sentence report Mr. Blake was cooperative and respectful. However, he maintained his innocence and stated that he had no sexual contact with the victim. He did not express any concern or empathy for the victim, as noted in the report.
The report also indicates that Mr. Blake and his wife are heavily involved in their local church.
As for the assessment of Mr. Blake, the report indicates that he is 32 years of age with no previous criminal record. He appears to have been raised in a stable and supportive background. He and his wife are responsible for providing for six children, two of which they have together. Mr. Blake has been at his current employment position for the last three years, and according to his supervisor he is regarded as an excellent employee. So much so, that his employer is presently willing to hold Mr. Blake's position of employment open for him.
(c) Impact on the Victim
(i) Victim Impact Statement
Although the Crown attempted to obtain a victim impact statement from T.H., the Crown was unsuccessful in locating T.H. for that purpose until yesterday. The victim impact statement of T.H. was filed with the court as Exhibit 2. We also have her evidence at trial. In her victim impact statement T.H. disclosed how sad and ashamed she feels because of the hurtful things done to her by Mr. Blake.
(ii) Mr. Blake's Interview by Pre-Sentence Reporter
I have referred to Mr. Blake's interview with the pre-sentence reporter above and have also made reference to Exhibit 1, the pre-sentence report itself.
LEGAL PARAMETERS
Position of the Crown and the Defence
The Crown
The Crown takes the position that on the facts of this case, the appropriate sentence would be in the range of four to five years in the penitentiary. The Crown also seeks the following ancillary orders:
(a) Section 109 order for 10 years;
(b) S.O.I.R.A. order for 20 years;
(c) DNA sample, and;
(d) Section 161
Criminal Code order.
The Crown submits that there is a breach of trust element to be taken into account where Mr. Blake, an older, married man, had sexual intercourse with T.H., who was under the age of 16 years, and also was a family friend and babysitter.
The Defence
The defence takes a much different view. The defence concedes that Mr. Blake's conduct attracts a sentence which includes incarceration of six months or less. Both the Crown and defence agree that the minimum sentence for Mr. Blake's conduct would be 45 days in jail. The defence does not oppose the Crown in respect of the ancillary orders sought. The authorities cited by the Crown are distinguishable as they relate to facts dissimilar to those before the court.
REVIEW OF THE RELEVANT CASELAW
The Crown submitted a sentencing book of authorities. The Crown relied upon the following cases:
(a) R. v. D.D., 2002 44915 (ON CA), [2002] O.J. No. 1061 (O.C.A.);
(b) R. v. C.B., 2008 ONCA 486, [2008] O.J. No. 2434 (O.C.A.);
(c) R. v. E.T., [2010] O.J. No. 3333 (S.C.J.);
(d) R. v. D.M., 2012 ONCA 520, [2012] 111 O.R. (3d) 721 (O.C.A.);
(e) R. v. Sayed, [2012] O.J. No. 798 (S.C.J.);
(f) R. v. S.B., [2011] O.J. No. 3963 (S.C.J.).
The Crown submits that the range of cases, although none exactly on point, support the Crown's position that a penitentiary term in the range of four to five years is required in this case as there is a need for denunciation, general deterrence, and specific deterrence.
The defence submitted and relied upon the following cases:
(a) R. v. Valentini, 1999 1885 (ON CA), [1999] O.J. No. 251 (O.C.A.) at paras. 80–84;
(b) R. v. Jamieson, [1997] O.J. No. 1111 (O.C.A.);
(c) R. v. Pham, [2013] S.C.J. No. 10 (S.C.C.);
(d) R. v. Sherman, [2001] O.J. No. 5008 (S.C.J.);
(e) R. v. D.V., [2011] ONSC 3183 (S.C.J.);
(f) R. v. Baubie, [2009] ONCA 616;
(g) R. v. C.L., [2010] ONSC 3792 (S.C.J.) Code, J.;
(h) R. v. D.H.D., [2004] 32109 (O.C.A.);
(i) R. v. G.C.F. (2004) 2004 4771 (ON CA), 188 C.C.C. (3d) 68 (O.C.A.).
A number of the defence cases stand for the proposition that the fact that Mr. Blake pled not guilty and had his trial is not to be considered as an aggravating factor. I agree.
However, the defence cases spoke to different fact situations that attracted various periods of incarceration. None of those fact situations were similar to the case at bar.
What is noteworthy from the cases presented by the Crown are the legal principles on sentencing in respect of a conviction of this sort. It is acknowledged by both Crown and defence that there are many cases that involve sexual interference with victims under the age of 16 years with differing factual scenarios. Both Crown and defence could not find an identical case on point that dealt with the sentencing of an offender in a case such as ours. Having been unable to do so only underscores the point that sentencing on a multitude of these cases is fact driven, and case specific.
Nevertheless, in R. v. D.D., 2002 44915 (ON CA), [2002] O.J. No. 1061, Moldaver, J.A. of the Ontario Court of Appeal, as he then was, stated the following at paragraphs 34 and 35:
"34. 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."
At paragraph 31 Moldaver, J. also commented upon an appropriate sentencing range of mid to upper single digit penitentiary terms, but in the appropriate case upper single digit to low double digit penitentiary terms are called for.
The Crown relies upon R. v. Sayed, [2012] O.J. No. 798(S.C.J.) where Mr. Sayed was convicted of two counts of sexual assault, two counts of sexual interference, and one count of sexual exploitation involving a nine year old girl who was in a position of trust at the time. He was sentenced to three and a half years in penitentiary, less credit for pre-sentence custody.
The case cited by the Crown referred to denunciation, general and specific deterrence as key considerations, followed by rehabilitation.
AGGRAVATING AND MITIGATING FACTORS
(i) Aggravating Factors
An aggravating factor in this case is the repeated sexual intercourse with T.H. by Mr. Blake. On those occasions, he took advantage of opportunities to have sexual intercourse with T.H. while she was sleeping in a spare bedroom in the basement of the Blake home. She was a friend of the family. She was a regular babysitter. On each occasion, T.H. was a vulnerable young person who was subjected to Mr. Blake's sexual advances for his own self- gratification. His sexual intercourse with T.H. took place on occasion when Mr. Blake's wife was upstairs in the Blake home, together with the Blake children.
The Crown submits that there is an element of breach of trust which is opposed by the defence. The defence asserts there were no circumstances to support that there was any trust relationship between T.H. and Mr. Blake. I do not agree. This is a case where Mr. Blake knew that T.H. was a young person who was a friend of the family, and a regular babysitter. She should not have been subjected to Mr. Blake's repeated sexual attacks. To the contrary, she had every right to expect a full measure of security and safety in the Blake home instead of sexual violation at the hands of Mr. Blake.
It is also noted that Mr. Blake paid money to T.H. after having sexual intercourse with her. He also threatened to tell T.H.'s mother that she was skipping school. This element of manipulation is also reprehensible, and counts as an aggravating factor.
(ii) Mitigating Factors
Mr. Blake is a first time offender. He has no criminal record. By all accounts, the pre-sentence report speaks strongly about his work ethic and the support of his family. He and Ms. Blake support six children. He is well respected by his fellow workers and his employer alike. So much so, that his employer is prepared to hold Mr. Blake's position open for him.
I have also considered that Mr. Blake, prior to trial, was released on bail for three years and never breached any bail conditions of any kind.
I have considered that Mr. Blake would be the subject of a deportation order depending on his sentence in this case. Such a consideration does not, in my view, affect in any way the ultimate sentence that he deserves.
I have also considered his not guilty plea and proceeding to trial, which are not aggravating factors. The fact that he does not express any remorse to his pre-sentence reporter for what he has done also is viewed as neutral by this court. This is especially noted where Mr. Blake continues to assert his innocence and hardship caused by this case. Not only is it a hardship for him but also for his family, as he indicated on his sentence hearing.
PRINCIPLES OF SENTENCING AND REASONS
Section 718 of the Criminal Code states the fundamental purposes of sentencing and lists its underlying objectives. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions. A number of objectives are specified in Section 718. They are to denounce unlawful conduct, to deter the offender and others from committing offences, and to separate offenders from society where necessary. The applicable authorities demonstrate that denunciation, general deterrence to others, together with specific deterrence to Mr. Blake, are paramount factors, with rehabilitation being secondary. These are fundamental factors in deciding what sentence would be appropriate to impose on Mr. Blake having regard to both aggravating and mitigating circumstances.
Section 718.1 mandates that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In our case, both the Crown and the defence agree that a custodial sentence is a fit and appropriate sentence. However, they disagree as to the term of sentence. In addition, Section 718.2 of the Criminal Code speaks to other sentencing principles that a court shall take into account, including aggravating circumstances, together with the principles of proportionality, and consistency of sentences for similar offences.
REASONS
The conduct of Mr. Blake in having repeated sexual intercourse with T.H., a person under the age of 16 years, in the circumstances described above clearly attracts a custodial sentence. I have taken into account the reported decisions presented by both the Crown and the defence. In our case, there is one conviction for sexual interference involving repeated acts of sexual intercourse. While defence counsel submits that the jury could have convicted only on one as opposed to four incidents of sexual intercourse, I do not agree. The evidence supports otherwise.
I have considered the repeated acts of sexual violence against T.H. by Mr. Blake for his own sexual gratification. She ought to have felt safe and secure in the home of family friends, including Mr. Blake. Instead, she was the subject of sexual predation on the part of Mr. Blake in circumstances tantamount to a breach of trust.
I have considered the relevant case law presented by the Crown and the defence. I have considered the sentencing principles set out in the Criminal Code, together with the aggravating and mitigating factors in this case. I have also considered T.H.'s victim impact statement. I have concluded that notwithstanding the fact that Mr. Blake is a first time offender, his criminal conduct against T.H. justifies a period of incarceration. A jail sentence for Mr. Blake is a fit and appropriate sentence in this case. Such a sentence would have the effect of emphasizing the principles of denunciation, general and specific deterrence.
Based on the cases presented by counsel, in my view, the appropriate range of sentence in this case is from two to five years: See R. v. D.D., supra at paragraph 44.
Mr. Blake submits that he should receive a credit against his sentence of 1.5:1 rather than a credit of 1:1.
There is no evidence before me to justify that his pre-sentence custody be increased above the 1:1 basis provided by Section 719(3) of the Criminal Code. There are no circumstances and no evidence to support the increase of credit for pre-sentence custody in this case.
To the date of sentence Mr. Blake has been in custody for 133 days, that is 4 months and 13 days up to today. He is entitled therefore to pre-sentence custody credit of 4 months and 13 days.
SENTENCE
Mr. Blake, please stand. You have been convicted sexual interference involving T.H., a young person under the age of 16 years. You repeatedly had sexual intercourse with her when she was staying overnight in your home. You took advantage of your relationship with her as a family friend to sexually violate T.H.. You have caused her harm and you have also damaged the relationship that you and your family once had with the H. family.
In this case a penitentiary sentence is fit and appropriate to address the sentencing principles of denunciation, general and specific deterrence. I had identified the appropriate range of two to five years.
I sentence you to 2 and a half years in jail, against which term you will receive a credit for pre-sentence custody of 4 months and 13 days, resulting in your having to serve an additional 2 years, 2 months and 13 days in jail.
Ancillary Orders
In addition, there will be the...
MR. FLISFEDER: Your Honour, when you did the pre-sentence time, did you count the time from before – before he got out on bail – did you include that in the number of days?
THE COURT: I counted all the time...
MR. FLISFEDER: All the time.
THE COURT: ...that you gave me and the Crown gave me, Mr. Flisfeder, when we were here on the sentencing, and I added the additional days from the time that we were here last to today.
Ancillary Orders
In addition, there will be the following ancillary orders:
(a) a Section 109 order for 10 years;
(b) a S.O.I.R.A. order for 20 years;
(c) an order providing for a DNA sample; and
(d) an order pursuant to Section 161 of the Criminal Code.
Please be seated. Anything else counsel?
MR. FLISFEDER: Yes, Your Honour, in relation to my client, if he is to be deported then, of course, he couldn't comply with SOIRA or probably the orders as well, other than the DNA. If - they should be suspended upon his deportation if that is the case.
THE COURT: All right. Madam Crown?
MS. SHIRREFFS: Well, I expect that that would naturally be the consequence, Your Honour. If he's not in the country he can hardly report.
THE COURT: Well, okay. Nevertheless, I've made these ancillary orders. The ancillary orders will stand. If it turns out that Mr. Blake is deported then the orders can be dealt with in the ordinary course.
MS. SHIRREFFS: Just one thing I was wondering further. Your Honour didn’t indicate it was requested, and I'm not – not certain of that, an order of no contact with the complainant while he's in custody.
THE COURT: It wasn't asked for.
MS. SHIRREFFS: Okay, thank you.
THE COURT: Do you want it?
MS. SHIRREFFS: I would ask for it, yes.
THE COURT: In addition, there shall be an ancillary order (e) no contact with - T.H.?
MS. SHIRREFFS: Yes.
THE COURT: While Mr. Blake is in custody.
MS. SHIRREFFS: I'm also wondering how long the 161 order will be in place, Your Honour?
THE COURT: These ancillary orders, I understand from when we were here last day that they may very well be academic. As we are here today I have made these orders, here is what they are, and they will stand until and unless they are varied. What is the length of time that is sought in respect of the Section 161 order?
MS. SHIRREFFS: Well, Your Honour, I note that the section says, "...for life or for any shorter duration that the court considers desirable...." The Crown's suggesting for life.
THE COURT: Mr. Flisfeder?
MR. FLISFEDER: Your Honour, none of the occasions that he was convicted on dealt with anything within the public domain, so I don't know why they need that. He didn’t go prowlin' a park or anything of that sort.
THE COURT: It will be for two years, anything else?
MS. SHIRREFFS: Thank you, no, Your Honour.
THE COURT: Mr. Flisfeder?
MR. FLISFEDER: No, Your Honour.
Transcript Order Received: September 3, 2013
Transcript Submitted for Review: September 4, 2013
Transcript Approved for Release: October 8, 2013
Ordering Party Notified: October 10, 2013