ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-025-0000
DATE: 20131126
B E T W E E N:
HER MAJESTY THE QUEEN
Andrew Scott, for the Crown
- and -
G.J.L.
John Wonnacott, for the Defendant
Defendant
HEARD: September 26,2013
REASONS FOR SENTENCE
T.D. RAY J.
1. Overview:
[1] The defendant, 58 years of age, was found guilty by a jury at Napanee, April 23, 2013, on four counts of historical sexual assault (3x – s. 246.1(1), 2x s.246.1(1) and s. 271 CCC), and indecent assault (s 149, CCC) against female family members when they were under the age of 14 or if over 16 without the victim’s consent. The defendant is not in custody.
2. The Facts:
[2] At the time of the offences, the family was quite close; and they visited one another quite frequently by reason of the closeness of the defendant’s then wife and her sisters. The defendant was therefore in frequent contact with his various nieces.
(a) Circumstances of the offences
[3] At the Crown’s request two of the counts were withdrawn. The defendant was found guilty by a jury on four counts involving three victims, the events being historical and extending over a very lengthy period. I entered convictions on Counts 1, 2, 4, 6.
[4] I am obliged to consider the evidence before the jury and make findings as are necessary to the sentencing issues.[^1]The defendant gave evidence and denied that each and every allegation had ever occurred. Following are my findings beyond a reasonable doubt concerning each count.
COUNT #1:Between the 1st day of January 1980 and the 3rd day of January 1983, both date inclusive, at the City of Sudbury and elsewhere in the Province of Ontario , did indecently assault TK, a female person, contrary to section 149 of the Criminal Code of Canada;
[5] TK is the defendant’s niece. When she was three, she and her mother were visiting the defendant and his wife. The ladies were out for the evening. While the defendant and TK were alone after he had bathed her, the defendant put her on her back on the bedroom floor, lay on top of her and rubbed his penis against her.
COUNT #2: between the 4th day of January 1983 and the 31 day of December 1987, both dates inclusive at the City of Belleville and elsewhere in the Province of Ontario, did sexually assault TK, contrary to section 246.1(1) of the Criminal Code of Canada;
[6] TK was sexually assaulted on multiple occasions by the defendant and at various locations wherever TK’s family happened to be visiting with the defendant and his wife, when TK was between the ages of 9 and 12. While they were alone, the defendant touched her vaginal area, rubbed his penis against her back, and placed her hand on his penis to masturbate him. This occurred multiple times over a period of several years.
COUNT # 4 :between the 1 day of January 1985 and the 31st day of December 1994, both dates inclusive, at the Town of Greater Napanee and elsewhere in the Province of Ontario, did sexually assault TR, contrary to sections 246.1(1) and 271 of the Criminal Code of Canada;
[7] TR and her mother had visited the defendant and his wife on numerous occasions at their residence. At the time the defendant and his family had lived in three different places during this period of time. They were all very close families.
[8] When TR was 12 or 13, and while she was sleeping over at their residence, the defendant came into her room, woke her up when he was putting his hands inside her pajamas and touched her vagina, including penetrating her with his finger. He then rubbed his penis against her. This occurred again when they were alone in the games room and he rubbed his penis against her. These assaults occurred multiple times almost on a continuous basis, and at each of the places where the defendant lived, from when she was 12 or 13 through to her early 20’s, with the exception of a 4 year period. There were two incidents of sexual intercourse in that time period when she was 15 or 16. Once in the games room, and once in his van. She told him it wasn’t right, and he said no one needs to know.
[9] When TR was 20 or 22, the defendant raped her at her mother’s house with her young daughter present. I accept her evidence and find beyond a reasonable doubt that while she did not say “no”, she did not want to have intercourse with him. That incident of sexual intercourse was without her consent.
COUNT #6: between the 4th day of January 1983 and the 31st day of December 1989, both dates inclusive in the EAST Region, did sexually assault KR contrary to section 246.1(1) and 271 of the Criminal Code of Canada.
[10] KR visited her aunt with her mother many times when she was growing up at the various places where they lived, and also at her grandparent’s where the defendant was staying for a period of time. KR was between 9 and 14 at the relevant times.
[11] During one of her visits, the defendant looked right at her, and consciously exposed himself. On another occasion, while alone with the defendant who was playing a video game, she left the room when the defendant began pushing his bare penis against her from underneath his robe.
[12] The same thing occurred at her grandmother’s on several occasions. While playing a video game, the defendant began pushing against her and then took her hand and held it on his erect penis under his robe. She pulled away and went downstairs.
[13] At another of the defendant’s residences, KR was sleeping over. While asleep at night, she awakened to feel his penis between her legs- pushing forward and back. When he left she felt wet on her legs. On another occasion, she was being woken up at night with his penis being pressed against her lips. Further on another occasion, the defendant was masturbating in front of KR. He looked right at her, and made no attempt to hide or leave the room.
(b) Circumstances of the offender
[14] The defendant is 58 years old and resides with his partner in the northern part of Lennox and Addington County, near one of the victims. It was that move which caused that victim to be sufficiently concerned about her young children that prompted her to go to the police.
[15] The defendant has a prior sexual assault conviction from 1985 for which he was sentenced to 6 months, and a driving over .08 conviction from 2006. The defendant is in receipt of a disability pension because of back pain. Testing at the time of his application for his pension showed him to be in the “Extremely low general category of intelligence in the Moderate Intellectual Disability Range”. He is illiterate with limited education. Throughout his working life until his back pain intervened he limited himself to manual employment. The pre-sentence report describes the defendant as maintaining his innocence.
[16] The defendant told the pre-sentence supervisor that he had been a heavy drinker prior to 2006-7 but had not consumed alcohol in 6 or 7 years. However the presentence report records police information that his current partner reported a domestic dispute 2 years ago during which he had been drinking. One of the victims interviewed for the presentence report reported that both the defendant and his partner continue to be heavy drinkers.
[17] The defendant and his partner have been together since the defendant’s marriage ended in 2003. His partner has six children, four of which are on their own and two are with their father as a result of CAS intervention. The defendant is estranged from his daughter, but enjoys a relationship with his son.
(c) Impact on the Victim and/or Community
[18] While there was no evidence the defendant threatened the victims if they reported these offences, it was certainly quite clear to each of the victims that if they spoke to their mother, that the family would go into crisis. At their age, they undoubtedly but wrongly’ felt responsible for these events, and that they would either be disbelieved or blamed. The fact that none of the victims knew of the abuse to the other victims for quite a long time, even though they were close, underscores both their then fear of discovery, and the defendant’s care to keep the occurrences secret.
[19] The victims read and filed their statements. KR spoke of her loss of self-esteem and self-worth because of the assaults. She feels ashamed, and has few friends. Later, she abused drugs and alcohol, and after a one night stand became pregnant. She did not finish high school. Her lack of self -worth led her to a series of dysfunctional relationships; and five children by four different fathers. She has from time to time felt suicidal.
[20] TK spoke of going from an innocent carefree little girl to a “paranoid, scared of all men” little girl. She lost all trust in men, and has had a hard time building or maintaining relationships. In addition she reports serious emotional difficulties for which she has required medical interventions. In addition she felt that she suffered financially because she was unable to successfully work with her emotional problems.
[21] TR spoke of feeling uncomfortable and tense around men she doesn’t know. She has difficulty with intimacy with her husband, and finds she is uncomfortable with herself and with her body. She has become obese because she has resorted to eating as a coping mechanism. She says she feels like she gave up on life when she was a teenager, and has even felt like a victim in her own family. She struggled in school, and has required ongoing counselling.
[22] The family at large, including the defendant’s own family, has suffered enormous upheaval as a result of his conduct. Many lives in addition to those of the victims have been seriously affected.
3. Legal Parameters:
[23] The applicable maximum penalties in force at the time of the offences were as follows: Count #1, 5 years; Count #2, 10 years; Count #4, 10 years; Count #6, 10 years.
4. Positions of Crown and Defence:
[24] The Crown’s position is that the defendant should be incarcerated for 7 to 8 years, with ancillary orders in addition to the mandatory orders, to include a life time prohibition against attending public parks, employment, and places where children under the age of 16 may be in attendance; and a life time prohibition against communication or contact with the victims or any members of their families.
[25] The defence position is that five years is an appropriate sentence, and that an order prohibiting the defendant from being in parks, employment, or contact with children under the age of 16 is unnecessary.
5. Case Law:
[26] The relevant authorities include : R. v Woodward [2], R v RB,[3] R. v R.T.M.[4], R. v D.D.[5] and R. v Hagen,[6] These authorities recognize the seriousness of sexual offences on very young children by persons in a position of trust through the imposition of penitentiary terms even for first offences.
6. Mitigating and Aggravating Factors:
[27] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances.
[28] Mitigating factors are to be found on a balance of probabilities, while aggravating factors are to be considered after a finding beyond a reasonable doubt. Mitigating and aggravating factors are only those that are related to the gravity of the offence or the moral blameworthiness of the offender.[^7]
[29] Evidence that the offender abused someone under the age of 18 is deemed to be an aggravating circumstance, as is abuse by someone in a position of trust.
[30] True remorse and acceptance of responsibility is a mitigating factor. While a lack of remorse is not an aggravating factor, an absence of remorse is not a ground for leniency.
7. Principles of Sentencing:
[31] The fundamental purpose of sentencing and its objectives are denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, making reparations and promotion of a sense of responsibility in the offender.[^8]
[32] When trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender’s prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society’s well-being and the well-being of our children must take precedence.[^9]
[33] A sentence must be proportionate to the gravity of the offence and the moral blameworthiness of the offender.[^10]
[34] Consideration must be given to similar sentences for similar offenders for similar offences in similar circumstances.[^11]
[35] The process of analysis requires that the offence first be placed in a category. Secondly, the range of sentences is identified for that category to referenced texts and judicial decisions. Lastly, the sentence is placed at the appropriate point according to all of the circumstances.
8. Reasons:
[36] Sexual offences against children and young people fall into a different category and are treated differently because of society’s heightened concern and disgust at the lifelong harm that is suffered by young victims as a consequence of a few seconds or minutes of self-serving pleasure by offenders. The statements from the victims in this case not only gave them an opportunity to try to put closure on these tragic events, but also to assist us in understanding the nature and extent of the harm. Their families have been fractured and turned upside down, trust of family members was betrayed, and lives have been altered by the defendant’s actions. It is an aggravating factor that these were young girls victimized on multiple occasions over long periods of time.
[37] Society and the courts take seriously these offences particularly when a breach of trust is involved. It too is an aggravating factor. The defendant purposefully groomed and encouraged all of the victims in one way or another to gain access, so he could victimize them. The video game playing loomed large in connection with most of the offences. He was trusted by the victims and by other family members. He was their uncle. That trust gave him unique access to them. He not only abused the trust that was placed in him, but he altered forever the way the victims will ever again view an adult male, particularly a family member, with their own children.
[38] The defendant has a prior conviction for sexual assault.
[39] There are no mitigating factors.
[40] Because of the abhorrence of these types of offences, deterrence and denunciation are the driving principles that I must consider in passing sentence.
[41] I have no difficulty in accepting the Crown’s submission that a high single digit penitentiary term is fit and proper.
[42] Troubling is the defendant’s failure to take responsibility for his actions and demonstrate some insight. He had every right to require the Crown to prove its case. In no way is that right to be infringed. However, I have been asked to make prohibition orders under s. 161 CCC to be in force when the defendant completes his sentence. Hopefully with the assistance of programs that will be made available during his incarceration, the sentence I am about to impose will give him an opportunity to reflect and to gain some insight. However, he may not. With that in mind, I do not accept the defence submissions that prohibition orders are unnecessary. They are necessary in this case.
[43] I impose a total sentence of 8 years, plus the following ancillary orders.
9. Ancillary Orders:
[44] DNA order.
[45] Weapons prohibition, s 109(1) (a) for 5 years.
[46] SOIRA for life
[47] Orders prohibiting the defendant from parks, employment, or contact with anyone under 14, for life, as per s. 161 (a) (b) and (c) CCC.
10. Final Decision
[48] Stand up please. G.J.L., I impose the following sentence:
Count #1: I year incarceration
Count #2: 1 year incarceration concurrent to count #1.
Count #4: 6 years’ incarceration consecutive to Counts #1.
Count #6: 1 year incarceration concurrent to Count #1, and consecutive to Count #4.
[49] In addition the ancillary orders are as noted above.
[50] Remove the prisoner.
Honourable Justice Timothy Ray
Released: November 26, 2013
COURT FILE NO.: 13-025-0000
DATE: 20131126
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
G.J.L.
Defendant
REASONS FOR SENTENCE
Honourable Justice Timothy Ray.
Released: November 26, 2013
[^1]: S. 724, C.C.C.; R v Ferguson, 2000 SCC 6 @ paragraph 18
[^2]: 2011 ONCA 610
[^3]: 2005 ONCA
[^4]: 2008 ONCA 47
[^5]: (2002), 157 O.A.C.323,
[^6]: 2011 ONCA 749.
[^7]: s. 718.2 CCC.
[^8]: s. 718 CCC.
[^9]: R v Woodward, 2011 ONCA 610 @ paragraph 76.
[^10]: s. 718.1 CCC.
[^11]: s. 718.2 (b) CCC.