ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-835
DATE: 20131209
BETWEEN:
HER MAJESTY THE QUEEN
Brian Linley, for the Crown
- and -
J.E.T.
Grant MacKinnon, for the Defendant
Defendant
HEARD: October 15, 16, 17, 18, 2013
REASONS FOR SENTENCE
Conlan J.
Introduction
[1] J.T. was tried before this Court, without a jury, on a four-count Indictment which alleged sexual offences committed by J.T. against M.E., born on […], 1997, the friend of J.T.’s daughter.
[2] After reserving my decision at the end of the trial in Owen Sound in October 2013, in Reasons for Judgment dated 23 October 2013 and reported at 2013 ONSC 6549, I found J.T. guilty of all four counts under sections 151 (sexual interference – three counts) and 271 (sexual assault – one count) of the Criminal Code of Canada.
[3] A Pre-Sentence Report was ordered, and the sentencing was adjourned to December 9, 2013.
[4] On December 9, 2013, I heard submissions by counsel on sentence. The finding of guilt on count two of the Indictment (the section 271 CCC offence) was conditionally stayed pursuant to the Kienapple principle, as agreed by counsel. Convictions were registered on the three findings of guilt for sexual interference – counts 1, 3 and 4 on the Indictment.
The Facts
[5] My factual findings underlying the four findings of guilt against J.T. were summarized as follows at paragraphs 75, 76, 77 and 78 of my Reasons for Judgment.
I believe M.E.’s evidence that J.T., in the early morning hours of May 19, 2012, touched M.E. for a sexual purpose (count 1) by playing with her nipples with his hand, rubbing her clitoris with his hand and having vaginal intercourse with her. In doing so, J.T. sexually assaulted M.E. (count 2). He intentionally applied force to the girl in circumstances of a sexual nature.
I believe M.E.’s evidence that J.T., later in May 2012, touched M.E. for a sexual purpose (count 3) by rubbing her vagina with his hand over top of her underwear and having vaginal intercourse with her.
I believe M.E.’s evidence that J.T., in early June 2012, touched M.E. for a sexual purpose (count 4) by rubbing her clitoris with his hand underneath her underwear, putting two fingers inside her vagina and having vaginal intercourse with her. In doing so, J.T. sexually assaulted M.E. (count 2). He intentionally applied force to the girl in circumstances of a sexual nature. I accept the evidence of Mr. Peck regarding the DNA found in the semen stain on the crotch of the underwear worn by M.E. at the time of the third incident.
I, of course, may accept some, all or none of a witnesses’ evidence. Given the fact that M.E. did not mention at the Preliminary Inquiry that J.T. performed oral sex on her during the third incident, although I do not conclude that M.E. lied about that in her testimony at trial, out of caution I make no finding of fact that J.T. did so. I say that in the event it becomes relevant at the time of sentencing.
[6] It must be remembered that the victim, M.E., was 14 years old at the time of the crimes.
The Offender
[7] J.T. is currently 39 years old, born on July 30, 1974.
[8] J.T.’s criminal record includes fourteen prior convictions between 1992 and 1997 but no previous sexual-related entries and no assaults or convictions for violence or involving firearms or weapons. In addition, J.T. was convicted of breaching his Recognizance with regard to the charges that were the subject of the trial before me, by consuming alcohol. Just prior to Christmas of 2012, J.T. was sentenced to thirty days in jail for that criminal offence.
[9] The Pre-Sentence Report (“PSR”), Exhibit 1 on sentencing, indicates that J.T. presented as cooperative. He has the support of his family. He has not had employment in a few years and is supported by Ontario Works. He has several children with three women. He is in arrears of child support. “Collaterals noted that the subject is a very kind and giving person, who provides support and guidance to anyone who asks. He reports his friends are generally female and younger than himself”.
The Positions of the Crown and the Defence
The Crown
[10] The Crown requests a sentence as follows: four to five years’ imprisonment, a section 109 Criminal Code of Canada Order for 10 years, a Primary DNA Order, a section 161 Criminal Code of Canada Order for at least twenty years and a Sex Offender Registry Order for life.
[11] The Crown relies upon denunciation and deterrence as the paramount sentencing objectives.
[12] I have read the three Court decisions filed by the Crown: Regina v. P.P., 2009 ONCA 99, [2009] O.J. No. 371 (C.A.) – 12 years’ imprisonment reduced to nine years for two convictions of sexual interference against two young children of the offender’s female partner, without violence, threats of violence or intercourse; Regina v. D.M., 2012 ONCA 520, [2012] O.J. No. 3616 (C.A.) – 7 years’ imprisonment in a situation where the “minimum” as per the jurisprudence would have been five to six years in a case of prolonged sexual abuse of a child, including penetration, by an adult in a position of trust; and Regina v. Husain, [2012] O.J. No. 4848 (C.A.) – 62 months’ imprisonment for numerous sexual-related and procuring prostitution offences including periodic intercourse over three months with a young girl unable to legally consent.
The Defence
[13] The Defence does not oppose any of the ancillary Orders sought by the Crown except for the Order sought under section 161.
[14] The Defence requests a sentence of two years less one day in jail, to be followed by three years of probation.
The Ancillary Orders
[15] A Primary DNA Order shall issue on each of the three convictions.
[16] A Sex Offender Registry Order shall issue for a term of life on each of the three convictions.
[17] 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.
[18] I have considered but decline to issue a section 161 Criminal Code of Canada Order (prohibition on attending parks, playgrounds and other places that children frequent). I am not satisfied that such an Order is reasonably necessary in the particular circumstances of this case, taking in to account the relationship between the victim and the offender, the criminal history of the offender and the PSR. I do not see J.T. as posing a threat to the public generally.
The Length of Imprisonment
[19] The primary aggravating feature of this case is the seriousness of the facts themselves.
[20] J.T., more than once, violated and showed a callous disregard for the integrity of the girlfriend of his daughter.
[21] 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 J.T.’s criminal conduct was of the same regularity and persistency as in some cases, however, it was certainly not isolated either. And it involved full sexual intercourse.
[22] Although J.T. was not a parent or in loco parentis vis a vis the victim, he was in a position of trust. He was the father of the victim’s friend.
[23] 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.
[24] The paramount principles of sentencing in this case are denunciation and specific and general deterrence.
[25] The victim impact statement, Exhibit 2 on sentencing, indicates that these offences have had a lasting adverse effect on the victim and has caused her to, among other things, have feelings of fear and confusion.
[26] Frankly, there are no mitigating factors of any significance in this case. It is true, however, that this case does not involve certain aggravating factors that are present in some instances of an adult offender who commits sexual offences against a child, such as threats of violence.
[27] I am of the opinion that the suitable range in the case before me is 5 to 6 years in the penitentiary.
[28] As such, the Crown’s submission is at the low end of the range.
[29] 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 global sentence is five years’ imprisonment.
Conclusion
[30] On count 1, J.T. is sentenced to a period of imprisonment of 5 years. A Primary DNA Order is made. A Sex Offender Registry Order is made for life. A section 109 Criminal Code of Canada Order is made for ten years and life under subsections (2)(a) and (2)(b) respectively.
[31] On count 3, J.T. is sentenced to a period of imprisonment of 5 years, concurrent. A Primary DNA Order is made. A Sex Offender Registry Order is made for life. A section 109 Criminal Code of Canada Order is made for ten years and life under subsections (2)(a) and (2)(b) respectively.
[32] On count 4, J.T. is sentenced to a period of imprisonment of 5 years, concurrent. A Primary DNA Order is made. A Sex Offender Registry Order is made for life. A section 109 Criminal Code of Canada Order is made for ten years and life under subsections (2)(a) and (2)(b) respectively.
[33] The global custodial sentence is five years in the penitentiary. I will entertain any submissions by counsel on credit for time already served, if so applicable.
[34] I appreciate the assistance of both counsel.
Conlan J.
Released: December 9, 2013
COURT FILE NO.: CR-13-835
DATE: 20131209
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
J.E.T.
Defendant
REASONS FOR SENTENCE
Conlan J.
Released: December 9, 2013