ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR12-007-000
DATE: 20131023
BETWEEN:
HER MAJESTY THE QUEEN
M. Martin, for the Crown
- and -
P.J.
G. Deakin, for the Defendant
Defendant
HEARD: October 23, 2013
REASONS FOR DECISION ON SENTENCE
Conlan J.
Introduction
[1] P.J. was tried before this Court, without a jury, on a three-count Indictment which alleged sexual offences committed by P.J. against N.S., the daughter of his former partner.
[2] After reserving my decision at the end of the three-day trial in Owen Sound in December 2012, in Reasons for Judgment dated 17 December 2012 and reported at 2012 ONSC 7011, I found P.J. guilty of all three counts under sections 271, 151 and 152 of the Criminal Code of Canada.
[3] A Pre-Sentence/Gladue Report was ordered, with particular emphasis on issues regarding P.J.’s aboriginal status, and the sentencing was adjourned to March 7, 2013. P.J. remained out of custody pending the sentencing.
[4] On March 7, 2013, the sentencing was adjourned, on consent, at the request of the Defence, to accommodate an Application by counsel for P.J. to be removed from the record. That Application was heard and granted later in March 2013. P.J. had already retained new counsel, or so we thought.
[5] The sentencing was adjourned once again, on consent, to June 3, 2013. Neither party requested any further information or report regarding the aboriginal issues when that was raised explicitly by me at court in late March 2013.
[6] On June 3, 2013, this time not on consent of the Crown, the sentencing was adjourned again to September 30, 2013. It turns out that new counsel was not actually retained by P.J. because of issues between P.J. and Legal Aid Ontario. Because of the potential of a lengthy penitentiary sentence of imprisonment for P.J. and the inability of anyone to make meaningful sentencing submissions on his behalf at court on June 3, 2013, I reluctantly granted the adjournment although I was concerned about the inordinate delays in having P.J. sentenced for his crimes and the resulting adverse impact that may have on the public interest in promoting the administration of justice. Of course, P.J. remained bound by his judicial interim release conditions.
[7] On September 30, 2013, unfortunately, I could not attend court in Owen Sound because of a criminal jury trial that I was presiding over in Milton, Ontario. The sentencing was ultimately rescheduled for October 23, 2013.
[8] On October 23, 2013, I heard submissions by counsel on sentence.
The Facts
[9] The factual findings underlying the three counts against P.J. were summarized as follows at paragraphs 61, 62 and 63 of my Reasons for Judgment.
I believe N.S. that P.J., during the offence period and at the place specified in the Indictment, licked her vagina in her sister T.’s bedroom as she described, after she left the loft bedroom where she was watching a movie with T. to play a video game downstairs in the living room. That satisfies beyond a reasonable doubt the essential elements of counts 1 and 2 – sexual assault and sexual interference. Mr. J. intentionally applied force to N.S. in circumstances of a sexual nature. Mr. J. touched N.S. for a sexual purpose. N.S. was well under 16 years old at the time. I believe N.S. that she made a deal with Mr. J. at his suggestion, and that deal was that he would lick her vagina if she sucked his penis, or put another way, she would have to suck his penis for him to lick her vagina. That satisfies beyond a reasonable doubt the essential elements of count 3 – invitation to sexual touching. Mr. J. invited N.S. to touch him, and the invitation was for a sexual purpose. Again, N.S. was well under 16 years old at the time.
Further, I believe N.S. that there were two further incidents that occurred at Meaford. The episode that took place in her mother’s bedroom, when Mr. J. kissed her and took off her clothing and licked her vagina, satisfies beyond a reasonable doubt the essential elements of counts 1 and 2 – sexual assault and sexual interference. The incident that occurred late one evening in N.S.’s bedroom, when P.J. licked her vagina but she did not suck his penis because she was too tired, satisfies beyond a reasonable doubt the essential elements of counts 1 and 2 – sexual assault and sexual interference.
As the alleged incidents in Milton are not strictly necessary to resolve in order to render verdicts on the three counts facing Mr. J., I reserve any comment on whether I find that the Crown has proven those Milton incidents to the requisite standard of proof until if and when the Crown requests such an adjudication as part of the sentencing process.
[10] For purposes of sentencing, I find that the Crown has proven the Milton incidents beyond a reasonable doubt.
[11] To fully understand the details of the sexual abuse perpetrated by P.J. against this young girl, one should have reference to my summary of the victim’s evidence as outlined at paragraphs 20, 21 and 22 of my Reasons for Judgment. Paragraph 20 includes the information regarding the sexual incidents in Milton. For convenience, those paragraphs are repeated here.
N.S. is now 12 years old, born on August 8, 2000. She described in direct examination seven alleged incidents that occurred while she and her family, including Mr. J. who was in a live-in relationship with the mother of N.S., resided in Milton. The following is a summary only of what N.S. alleged in her testimony. The first incident was Mr. J. playing with N.S. and her sister T. N.S. testified that she saw Mr. J.’s penis outside his clothes. The second incident occurred a day or two later when Mr. J. said to N.S. “do you want to try it out?” or words to that effect. Mr. J. then licked her vagina. The third episode involved Mr. J. playing for N.S. a pornographic movie and rubbing his penis outside his clothes until ejaculation. The fourth incident was when N.S. saw Mr. J.’s exposed penis while he was laying or sleeping on his bed and N.S. and her friends were playing nearby. The fifth episode involved Mr. J. sitting at a table with a computer and exposing his penis and rubbing it under the table while N.S. was underneath hiding from her friend during a game of hide and seek. The sixth incident was when Mr. J. put cream on the hands of N.S. and had her rub his penis until ejaculation. The final episode involved Mr. J. putting his own finger in to his rectum and saying to N.S. “this is how you do it” or similar words.
N.S. described in examination-in-chief three alleged incidents that occurred while the family lived in Meaford, after moving from Milton. The following is a summary only of what N.S. alleged in her testimony. The first incident began with N.S. and her sister T. watching a movie on the television in the top floor bedroom of N.S. Mr. J. came to the bedroom and then left shortly thereafter. N.S. later went downstairs to play a video game in the living room. At the suggestion of Mr. J., he and N.S. went in to T.’s bedroom. Mr. J. licked the vagina of N.S., and she sucked his penis. He ejaculated. At the suggestion of Mr. J., N.S. tasted the ejaculate but did not like it. They made a deal: N.S. would have to suck his penis if Mr. J. licked her vagina.
The second episode was in the bedroom of Mr. J. and the mother of N.S. N.S. was jumping on the bed. Mr. J. kissed N.S. He took off her clothing and licked her vagina. The incident ended abruptly when N.S.’s mother arrived home. The final incident happened late one evening in the bedroom of N.S. Mr. J. licked her vagina. She was too tired to suck his penis.
[12] It must be remembered that N.S. was born on August 8, 2000, making her less than ten years old at the time of the crimes.
[13] There is no question that P.J. was in a position of trust and authority vis a vis the victim at the time of the offences. He was the live-in partner/boyfriend of the victim’s mother.
The Offender
[14] P.J. is currently 35 years old, born on October 1, 1978.
[15] P.J.’s criminal record includes six prior convictions but no previous sexual-related entries:
2004 – assault – 1 year probation
2007 – theft under $5000, fail to appear and breach of probation – a fine and probation for 1 year on the theft and fail to appear; 30 days in jail, intermittent, on the breach of probation
2011 – unlawfully at large and breach of probation – 15 days in jail on each count, consecutive.
[16] The Pre-Sentence Report (“PSR”) indicates that P.J. presented as cooperative and talkative. He “was very concerned about what would happen to him at sentencing and his safety should he be incarcerated” (page 7).
[17] During the course of the interview with the probation officer, P.J. referred to his own incident of sexual abuse as a child, however, no further details were provided to the author of the PSR or to the Court.
[18] The offender has expressed a desire to learn more about his grandmother’s aboriginal heritage.
[19] P.J. has a spotty employment history and has struggled with alcohol and marihuana. In the opinion of the author of the PSR, the offender “appears to have little insight into his behaviour” (page 8).
The Positions of the Crown and the Defence
The Crown
[20] The Crown requests a sentence as follows: four years’ imprisonment, a section 109 Criminal Code of Canada Order for ten years, a Primary DNA Order, a section 161 Criminal Code of Canada Order for twenty years and a Sex Offender Registry Order for twenty years.
[21] The Crown relies upon denunciation and deterrence as the paramount sentencing objectives.
The Defence
[22] The Defence does not oppose any of the ancillary Orders sought by the Crown.
[23] The Defence requests a sentence of two years less one day in custody to be followed by three years’ probation.
The Mandatory and/or Unopposed Sentencing Issues
[24] A Primary DNA Order shall issue on each of the three convictions.
[25] A Sex Offender Registry Order shall issue for a term of twenty years on each of the three convictions.
[26] A section 109 Criminal Code of Canada Order (firearms and weapons prohibition) shall issue for a term of ten years under subsection (2)(a) and for life under subsection (2)(b) on each of the three convictions.
[27] A section 161 Criminal Code of Canada Order (prohibition on attending parks, playgrounds and other places that children frequent) shall issue for a term of twenty years on each of the three convictions.
The Length of Imprisonment
[28] The primary aggravating feature of this case is the seriousness of the facts themselves.
[29] P.J. violated his position of trust and repeatedly sexually assaulted a young girl in both Milton and Meaford. On several occasions, he showed a callous disregard for the integrity of the daughter of the woman with whom P.J. lived. I agree with the Crown that P.J. engaged in an escalation of sexual abuse towards the victim that started in Milton and continued in Meaford.
[30] The Court of Appeal for Ontario has declared that adult offenders in positions of trust who sexually abuse children regularly and persistently over substantial periods of time can expect to receive mid to upper single digit penitentiary terms of imprisonment. I am not suggesting that P.J.’s criminal conduct was of the same regularity and persistency as in some cases, however, it was certainly not isolated either.
[31] It is my view that any adult offender in a position of trust who commits a sexual offence against a child should expect to receive a custodial sentence. There will always be exceptions, but that expectation will generally prevail. “The message to such offenders must be clear – prey upon innocent children and you will pay a heavy price!”: Her Majesty the Queen v. D.(D.), 2002 44915 (ON CA), [2002] O.J. No. 1061 (C.A.) at paragraph 45.
[32] The paramount principles of sentencing in this case are denunciation and specific and general deterrence.
[33] In Ontario, the law requires that a Gladue analysis be performed in all cases involving an Aboriginal offender: R. v. Kakekagamick (2006), 2006 28549 (ON CA), 81 O.R. (3d) 664 (C.A.) at paragraph 38.
[34] In this case, as in R. v. J.N., 2013 ONCA 251, [2013] O.J. No. 1834 (C.A.), the offender provided very little if any information about his Aboriginal ancestry. The Defence did not pursue the matter.
[35] Further, there is nil evidence before me that P.J.’s Aboriginal heritage may have played any part whatsoever in his criminality.
[36] Besides, as the Court of Appeal for Ontario stated in J.N., supra at paragraph 51, “this is simply one of those cases where the crimes were so heinous, and the aggravating factors were so compelling, that the [offender’s] Aboriginal status should not affect the length of the sentence imposed”.
[37] Frankly, there are no mitigating factors of any significance in this case, although I agree with the Defence that aggravating features in some cases of repeated sexual abuse are not present here. Specifically, there was no intercourse. There were no overt threats by P.J. There was no excessive violence causing, for example, physical harm to the young girl.
[38] I agree with Mr. Deakin that there are cases where perpetrators of sexual misconduct against children have received custodial sentences in the reformatory range: R. v. Leigh, [2010] O.J. No. 1754 (O.C.J.), which involved a guilty plea to one count and the Crown supporting a reformatory sentence for the offender, and R. v. D.V., [2013] O.J. No. 1679 (S.C.J.), which includes a chart describing six Court decisions where the sentences ranged from 6 to 17 months’ incarceration.
[39] As the Defence noted in its submissions on sentence, there is no magic formula for determining the appropriate length of imprisonment.
[40] Unfortunately for the Defence, despite the commendable advocacy of Mr. Deakin, the circumstances of these particular crimes require a penitentiary sentence.
[41] Frankly, I am of the opinion that the suitable range in the case before me is 4 to 5 years in the penitentiary.
[42] As such, the Crown’s submission is within the range and eminently reasonable.
[43] To account for the few days of pre-bail custody and the fact that P.J. has been the subject of judicial interim release conditions for a lengthy period of time without incident, I will credit the offender with one month time served.
[44] Having considered the circumstances of the offences, the circumstances of the offender including those outlined in the PSR, the aggravating and mitigating factors, the principles of sentencing and the submissions of counsel including the case law, for which I am grateful, I have concluded that a fit sentence is four years’ imprisonment, less one month for time served.
Conclusion
[45] On count 1, P.J. is sentenced to a period of imprisonment of 47 months. A Primary DNA Order is made. A Sex Offender Registry Order is made for twenty years. A section 109 Criminal Code of Canada Order is made for ten years and life under subsections (2)(a) and (2)(b) respectively. A section 161 Order is made for twenty years.
[46] On count 2, P.J. is sentenced to a period of imprisonment of 47 months, concurrent. A Primary DNA Order is made. A Sex Offender Registry Order is made for twenty years. A section 109 Criminal Code of Canada Order is made for ten years and life under subsections (2)(a) and (2)(b) respectively. A section 161 Order is made for twenty years.
[47] On count 3, P.J. is sentenced to a period of imprisonment of 47 months, concurrent. A Primary DNA Order is made. A Sex Offender Registry Order is made for twenty years. A section 109 Criminal Code of Canada Order is made for ten years and life under subsections (2)(a) and (2)(b) respectively. A section 161 Order is made for twenty years.
[48] I appreciate the assistance of both counsel. I listened carefully to the words spoken today by P.J., and I hope that he leads a productive life upon his release from prison.
Conlan J.
Released: October 23, 2013
COURT FILE NO.: CR12-007-000
DATE: 20131023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
P.J.
Defendant
REASONS FOR DECISION ON SENTENCE
Conlan J.
Released: October 23, 2013