ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 17/13

DATE: 2013-12-11

BETWEEN:

HER MAJESTY THE QUEEN

– and –

L.W.

Defendant

Emily Roda, for the Crown

James Miglin, for the Defendant

HEARD: December 11, 2013

REASONS FOR DECISION ON SENTENCE

CONLAN J.

Introduction

[1] L.W. was tried before a jury on a multi-count Indictment which alleged sexual offences committed by L.W. against two young girls. The trial took place in Milton in September and early October 2013.

[2] The jury returned verdicts of guilty on count 1 (sexual assault against L.W.’s step-daughter, P.E.), count 2 (sexual interference against P.E.), count 3 (invitation to sexual touching involving P.E.) and count 5 (invitation to sexual touching involving L.W.’s niece, S.W.). The jury returned a verdict of not guilty on count 4 (making child pornography).

[3] The sentencing was adjourned to 18 November 2013 and then again to today’s date. I am grateful to counsel for their helpful submissions on sentence.

[4] At Court today, L.W. entered a guilty plea to a separate charge of mischief over $5000.00, contrary to subsection 430(3) of the Criminal Code of Canada, stemming from August 2012. He caused very extensive damage all throughout the home and to the property of his former partner, A.W., as evidenced from the colour photographs filed by the Crown and marked Exhibit 1 on the guilty plea. The damage estimate is imprecise but well in excess of $5000.00.

[5] Convictions are registered on all four findings of guilt made by the jury (counts 1, 2, 3 and 5 on the Indictment) and on the mischief offence.

[6] I do not accept the argument by the Defence that either count 1 or 2 on the multi-count Indictment (sexual assault and sexual interference regarding P.E.) ought to be conditionally stayed pursuant to the Kienapple principle. Those counts do not necessarily involve the same delict. Count 2 is confined to L.W. touching P.E. with his penis, while count 1 encompasses other sexual misconduct such as L.W. squeezing P.E.’s nipples.

The Facts

[7] The victim, P.E., was born on […] 2003. She was between 5 and 8 years old during the offence period.

[8] The victim, S.W., was born on […] 2000. She was 11 years old at the time of the offence.

[9] A brief summary of the sexual acts committed by L.W. against his step-daughter, P.E., is as follows: he made her touch or rub his penis at least a few times; he made her suck his penis at least a few times, and he ejaculated on at least one occasion; he made her suck his nipples on multiple occasions; he touched her chest and vaginal areas, under her clothes, with his hands at least a few times; he squeezed her nipples; he sucked her nipples and vagina on multiple occasions; and he rubbed her bum with his hands.

[10] I say “at least a few times” and “multiple occasions” because I am satisfied beyond a reasonable doubt on the evidence adduced at trial that each of these instances of sexual misconduct occurred more than twice. Beyond that, how many times I do not know.

[11] A brief summary of the offence committed by L.W. against his niece, S.W., is that he asked her to pull her pants down, and she did so including her underwear. L.W. was looking at S.W.’s vagina. At the same time, he asked her to pull up her shirt, and she did so. On at least two further occasions, L.W. asked S.W. to pull her pants down, however, she did not.

The Offender

[12] L.W. is currently 42 years old, born on […], 1971. He was born in Jamaica and came to Canada in 1984. He graduated from high school in Canada.

[13] L.W. has a lengthy and assorted criminal record which was marked Exhibit 2 on the sentencing. There are 38 prior convictions commencing as a youth in 1988 and ending most recently in 2011. The record includes 10 assault-related convictions but no sexual crimes. The record includes three prior convictions for mischief – the last conviction resulted in a sentence of probation on top of 60 days’ time served.

[14] In 2008, L.W. moved in with A.W., the mother of P.E. L.W. and A.W. were married in 2009 in Africa. In the Spring of 2012, they had another wedding ceremony in Canada. They have three children together – the younger siblings of P.E

[15] P.E. is the daughter of A.W. but not the natural child of the offender. L.W. is P.E.’s step-father.

[16] S.W. is the niece of the offender. P.E. and S.W. are cousins and close friends.

[17] L.W. and A.W. separated when A.W. and the children moved out of the Milton home shortly before L.W. was arrested for the crimes that he is now being sentenced for.

[18] L.W. has been in custody since his arrest on 13 August 2012. The records from the correctional facility, marked Exhibit 1 on sentencing, indicate that L.W. has spent long periods of time in protective custody, has not been the subject of any disciplinary action or misconduct while in custody and has experienced some 90 full lock-down and 27 partial lock-down occasions.

[19] Exhibits 3 through 9 on the sentencing are copies of certificates for courses completed by L.W. while in custody on these offences, primarily related to bible studies.

[20] During at least part of the relationship between the offender and A.W., L.W. was working full-time as a weather-stripper.

[21] Exhibits 10 and 12 on sentencing are letters from L.W.’s mother and from the offender himself, respectively. Those letters outline that L.W. has 13 children and step-children from various relationships. He also has two grandchildren. L.W. had a very difficult and unfortunate childhood and young adulthood which included abandonment, abuse and a life riddled with drug and alcohol problems and criminal activity.

[22] Exhibit 11 on sentencing is a letter from L.W.’s psychotherapist. That letter confirms that L.W. is making some efforts to defeat whatever demons he has and pave the way for a more productive future in society.

The Positions of the Crown and the Defence

The Crown

[23] The Crown requests a sentence as follows: four to five years’ imprisonment regarding the offences against P.E., less time served on a one for one basis; six months’ imprisonment, consecutive, for the sexual offence against S.W.; five to six months’ imprisonment, consecutive, for the mischief; a section 109 Criminal Code of Canada Order for life; a Primary DNA Order; a partial section 161 Criminal Code of Canada Order for at least ten years; and a Sex Offender Registry Order for life

[24] The Crown relies upon denunciation and deterrence as the paramount sentencing objectives.

The Defence

[25] The Defence does not oppose any of the ancillary Orders sought by the Crown except for the partial section 161 matter.

[26] The Defence requests a sentence of 2.5 to three years’ imprisonment for the sexual offences plus thirty to sixty days in custody, consecutive, for the mischief.

[27] The Defence asks that I give the offender enhanced credit (1.5 days for each day served) for presentence custody of 727.5 days – about 24 months.

The Ancillary Sentencing Issues

[28] A Primary DNA Order shall issue on each of the four sexual offence convictions.

[29] A Sex Offender Registry Order shall issue for a term of life on each of the four sexual offence convictions.

[30] A section 109 Criminal Code of Canada Order (firearms and weapons prohibition) shall issue for a term of life on each of the four sexual offence convictions.

[31] 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 three years on each of the four sexual offence convictions. Those Orders are confined to subsections (a), (b) and (c) as requested by the Crown. Those Orders commence upon L.W.’s release from custody. I am not satisfied on balance that a longer term for those Orders is necessary for the protection of the victims and/or the public at large. While those Orders are in force, there will be no exceptions.

The Length of Imprisonment

[32] I thank both counsel for the jurisprudence filed. I have reviewed all of those decisions.

[33] The primary aggravating feature of this case is the seriousness of the facts themselves.

[34] L.W. violated his position of trust and repeatedly sexually assaulted his very young step-daughter and, to a much lesser extent, committed a sexual offence which victimized his 11-year old niece. He showed a callous disregard for the integrity of these young girls.

[35] L.W. has a lengthy, varied and at times violent criminal history.

[36] 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 L.W.’s criminal conduct was of the same regularity and persistency as in some extreme cases, however, it was certainly not isolated either.

[37] 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.

[38] In mitigation, L.W. has been relatively productive while in custody. He has completed many courses. He is seeing a psychotherapist. He is working towards rehabilitation. After a miserable upbringing, L.W. has no family support behind him currently.

[39] L.W. addressed the Court today and made some eloquent remarks. I hope that he can rid himself of the anger that he stated has consumed much of his life.

[40] The paramount principles of sentencing in this case are denunciation and specific and general deterrence.

[41] 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 L.W. There was no excessive violence causing, for example, physical harm to the young girls.

[42] There is no magic formula for determining the appropriate length of imprisonment.

[43] I am of the opinion that the suitable range in the case before me is, as essentially agreed by counsel, 3 to 5 years in the penitentiary.

[44] I do not place this case at either end of that spectrum. Mr. Miglin is correct that sentencing is a highly individualized process.

[45] I have concluded that a fit global sentence for the sexual crimes against both young girls is four years in the penitentiary. The apportionment of that sentence of imprisonment is dealt with below.

[46] As for the mischief, I have decided that 90 days or three months in jail, consecutive, is appropriate.

[47] Regarding credit for time served, there is no cogent reason for me not to give enhanced credit. And there are reasons for me to do so including the evidence marked Exhibits 1 and 3 through 9 on sentencing.

[48] I accept the submission of the Defence and give L.W. credit equal to 24 months of presentence custody.

Conclusion

[49] On count 1 of the multi-count Indictment (sexual assault of P.E.), L.W. is sentenced to a period of imprisonment of 44 months less credit for 24 months, resulting in a sentence from today of 20 months in custody. 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 life. A partial section 161 Order is made for three years.

[50] On count 2 of the multi-count Indictment (sexual interference regarding P.E.), L.W. is sentenced to the same period of imprisonment, 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 life. A partial section 161 Order is made for three years.

[51] On count 3 of the multi-count Indictment (invitation to sexual touching regarding P.E.), L.W. is sentenced to the same period of imprisonment, 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 life. A partial section 161 Order is made for three years.

[52] On count 5 of the multi-count Indictment (invitation to sexual touching regarding S.W.), L.W. is sentenced to a period of imprisonment of 4 months in jail, consecutive to the sentences imposed above. 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 life. A partial section 161 Order is made for three years.

[53] Thus, the global sentence on the sexual offence convictions is 48 months or four years’ imprisonment, less time served equivalent to 24 months, resulting in a custodial sentence from today of 24 months or two years in the penitentiary.

[54] On the mischief conviction, the sentence is 90 days or three months in jail, consecutive to the sentences imposed above.

[55] Thus, the global sentence on all five convictions including the mischief is 51 months’ imprisonment, less time served equivalent to 24 months, resulting in a total custodial sentence from today of 27 months in the penitentiary.

[56] L.W. requested that I recommend that he serve his sentence at the Ontario Correctional Institute so as to enable him to get counselling and treatment for substance abuse. My understanding is that the said facility is a provincial jail and, therefore, not available to the offender in these circumstances. In any event, that is up to the correctional authorities. I make that recommendation, or alternatively, another correctional facility which offers comprehensive drug and alcohol treatment.

[57] I appreciate the assistance of both counsel. I listened carefully to the words spoken today by L.W., and I hope that he leads a productive life upon his release from prison.

Conlan J.

Released: December 11, 2013

COURT FILE NO.: 17/13

DATE: 2013-12-11

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

L.W.

Defendant

REASONS FOR JUDGMENT

Conlan J.

Released: December 11, 2013