ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-5033
DATE: 2014/02/21
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MARCEL VINCENT
Accused
David Elhadad, for the Crown
Oliver N. Abergel, for the Accused
DECISION ON SENTENCING
RATUSHNY J.
[1] Mr. Vincent has pled guilty to committing three offences against A.D., a young victim then under the age of 16 years, namely sexual assaults spanning a period of approximately 5½ months contrary to s. 271(1) of the Criminal Code.; communicating with the victim over a period of 10 days by means of a computer system for the purpose of procuring the victim to perform sexual services contrary to s. 172.1(2) C.C., referred to as the offence of child luring over the internet; and sexual touching of the victim over a period of three days contrary to s. 151 C.C.
THE FACTS
[2] The offences occurred between September 1, 2011 and March 10, 2012 when the accused was 66 years of age and the victim was between the ages of 15 and 16.
[3] Their first meeting was sometime between September 1, 2011 and January 1, 2012 when the accused drove to the victim’s school and picked him up. In the car, the accused rubbed the victim’s arm and spoke in a sexually explicit manner. He drove the victim to his home and continued his sexual advances. The victim refused the accused’s request to take a shower together and at around 11 p.m. the accused drove the victim back to his school and dropped him off.
[4] The accused and the victim had spoken to each other on Skype and the accused was aware of the victim’s age. The victim was telling the accused he was a foster child in Toronto and had nowhere to live. This was not true as the victim was living at home with his parents at the time.
[5] Beginning March 1, 2012 the accused and the victim again communicated on Skype. They exchanged sexually explicit messages and discussed the victim coming to live with the accused. On March 2 the accused sent numerous sexually explicit text messages to the victim including telling the victim that he would have to look after the accused’s sexual needs, that no one must ever know they would be sleeping in the same bed and having sex and asking the victim to send him a photo of his penis. More sexually explicit text messages were sent on March 6 and they exchanged nude photos of their genitals.
[6] On March 7 the accused paid for a taxi to bring the victim to his residence. He was aware the victim had a legal guardian and was missing from his residence. Between March 7 and March 10 sexual touching and sexual assaults occurred, escalating in their frequency and including fellatio and nude massages. There was no sexual intercourse. On the third day in late evening when the accused had left his apartment for a while, the victim left and returned to his parents. His parents searched their son’s iPod for clues as to where he had been and found numerous Skype messages between the accused and their son that were sexually explicit in nature. The police were contacted.
THE VICTIM
[7] The victim met the accused at a time in his young life when he was having serious problems at home and was trying to find another place to live so he could leave his parents’ home. He took up the accused’s offer of a place to live. He told the accused his father was crazy and he was in foster care and was being mistreated. He was not in foster care but he told police he had been desperate for a place to live.
[8] The victim is presently almost 18 years of age. He used to be an A+ student but now he has stopped going to school and is depressed and not doing well. A victim impact statement from his mother says her son has gone from bad to worse. He is isolating himself and has no friends. He needs help with his pain and suffering. He is receiving treatment but his mother says it does not seem to be helping. He has made multiple suicide attempts and has required hospitalization on two occasions. His mother fears he will kill himself and she is constantly monitoring him.
THE ACCUSED
[9] A Presentence Report and a section 21 Mental Health Act Assessment Report were prepared and filed.
[10] The accused is 68 years of age. He is retired, has a family and grandchildren and no prior criminal record. His wife died of cancer approximately one year before he committed the offences. He has three grown daughters and one stepson with whom he is very close.
[11] One of his daughters describes him as having been a very good provider, very family oriented and, in her eyes, “manly”. His children have no concerns with his mental health, use of substances or anger management. The offences came as a complete shock to them. They have never witnessed any sexually inappropriate behaviour on his part. They sat in court to listen to the case and now their relationship with their father has, understandably, changed. They are unable to explain his actions and want him to obtain treatment. They describe him as outgoing, a people person and a hard worker all his life.
[12] Another daughter says her family is disgusted with his offences. She says she is there for her father for support but that his actions are inexcusable. She said her father was a good father, a good provider, but he lost his way. She does not know why he committed the offences.
[13] The accused has said that a few years prior to his wife’s death he was questioning his sexual orientation with a possible preference towards adult men. After his wife’s death he was lonely and went on the Internet to search for men in their mid to late twenties. He did not want to bother his family with his being lonely as he recognized they have their own lives. He went on a few dates with men but no relationships were created from them. He denied ever having seen child pornography and said he limited his viewing of pornography to adult gay men. He denied any sexual fantasies with persons under the age of 18 years with the exception of the charged offences where he acknowledges having planned the offences and groomed the victim for them. He acknowledges he took advantage of the victim’s vulnerable situation. He knew the victim’s real age. He does not know what prompted him to engage in his offending behaviour.
[14] The accused accepts responsibility for his crimes and is remorseful for them. He says he is really sorry for them and realizes what the victim and his family are going through. He said if something like this had happened to his child, he would be very upset and he’s sure it has affected the victim badly.
[15] The accused had open-heart surgery approximately 7 years ago and has Type II diabetes that is treated with medications.
[16] He is amenable to probation supervision and interested in receiving treatment and counselling for his sexually deviant behaviour. He wants to understand why he did what he did. He has never before obtained any type of professional counselling services.
[17] He told Dr. Paul Federoff, a psychiatrist with the University of Ottawa Faculty of Medicine and author of the Mental Health Act Assessment Report, that he had felt sorry for the victim and then that he didn’t know what happened, that he had been depressed and lonely after his wife had passed away but he had never done anything like this before. He admitted he has had lifelong sexual thoughts about men but had never acted on them, explaining that he was happy with his life when he was married. He said he had been very much in love with his wife and notwithstanding his life-long homosexual feelings, he did not wish to “replace” his wife.
[18] The Assessment Report confirms the information in the Presentence Report. The accused underwent a full Sexual Behaviours Clinic assessment. Dr. Federoff assessed him in the low risk category to sexually reoffend especially due to his age, with a score of -1 out of a possible 12 on the assessment tool called the Static-99R. He remarked that the accused’s history is notable for the absence of problems. Dr. Federoff is of the opinion that the accused has no paraphilic disorders and does not require any treatment but that he is welcome to attend treatment at the Clinic and expects his “prognosis to be good, especially if he can be assisted in learning to adjust to life without his wife who he clearly misses a great deal.”
ANALYSIS
[19] Crown and Defence counsel are very close in their sentencing recommendations to the Court. The Crown requests a custodial sentence in the range of 18-24 months followed by the maximum probationary period of 3 years. Defence counsel submits an 18-month custodial sentence is appropriate, less a Downes credit (R. v. Downes (2006), O.R. (3d) 321 (CA)) for compliance with bail conditions so that the sentence left to serve is in the range of 13 months.
[20] The circumstances serving to aggravate sentence stem largely from the very serious nature of the offences that amounted to preying on a vulnerable young person whom the accused knew had his own difficulties. The accused planned his offences and “groomed” the victim for them. He initially portrayed himself as a kindly older man who would not carry out his sexual advances if the victim refused. When the victim contacted him at a later time, the accused told the victim he would have to perform sexual services in exchange for lodging. The victim feared reprisals from the accused if he didn’t go along with the accused’s suggestions. In these circumstances, the accused’s actions became luring, predation and sexual assault of a 15 year old boy with whom he was in a position of trust.
[21] For offences such as these committed against a person under the age of 18 years and by a person in a position of trust, section 718.2(a) of the Criminal Code requires the circumstances of young age and trust be considered as aggravating circumstances and, of course, they clearly are that. The victim was a young man already suffering as a result of family problems. The accused took advantage of the victim’s vulnerability and added to it.
[22] The circumstances serving to mitigate sentence are the accused’s age with no prior criminal record, his otherwise pro-social life, the support he has from his children, his guilty plea and full acceptance of responsibility, his remorse that I accept as genuine, his willingness to be assessed and attend further treatment, some health concerns, his low risk to re-offend and his almost two years of compliance with bail conditions that did not allow him to leave his residence unless in the presence of one of his four sureties.
[23] If the sentencing process were only about the accused’s best interests, which of course it is not, and provided appropriate probation supervision and treatment conditions were in place, there would be little need, in my view, to incarcerate the accused in order to protect society. Sentencing, however, involves more balanced objectives and overall, must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[24] In considering the great degree of harm to the victim, the gravity of the offence is clear. The extent of that harm is almost incalculable in all of the victim’s circumstances. It is clear the offences have deeply affected and scarred the victim. It is also clear that the accused has a high degree of moral culpability for his planned acts of exploitation and sexual abuse.
[25] Section 718.01 of the Criminal Code and more recent jurisprudence, most notably R. v. D.D (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788, (CA); R. v. Woodward, 2011 ONCA 610; and R. v. D.M., 2012 ONCA 520, all re-affirm that the Court is to give primary consideration to the sentencing objectives of denunciation and deterrence for offences against children. As stated in Woodward, at para. 76:
[W]hen 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.
[26] In all of the circumstances of these offences and this offender and focusing on the objectives of denunciation and deterrence, I have determined that an 18-months sentence followed by 3 years of probation is appropriate. Upon analysis, I find I agree with counsel’s proposed ranges and I thank them for their modulated positions, as defence counsel has described the Crown’s position.
[27] This sentence amounts to 4½ years of supervision by the criminal justice system for a first offender aged 68 years who has pled guilty and is a low risk to reoffend. In my view this sentence adequately reflects the strong need for denunciation and deterrence and at the same time, as the Court has said in Woodward, takes into consideration the effects of conviction on the accused and his prospects for rehabilitation.
[28] The final issue is whether the accused ought to be granted a credit for compliance over the last almost 2 years with his bail conditions, pursuant to Downes considerations. I have determined that no credit is to be granted. The accused’s bail conditions were amended shortly after bail was granted, on consent, and included four sureties, presumably for flexibility purposes so as to enable him to leave his residence with one of them. His compliance with his bail conditions has already been factored into his sentencing as a mitigating circumstance. While that alone does not mean a Downes credit becomes automatically unavailable, I do not understand the accused’s bail conditions amounted to very much of a restriction on his liberty such that some portion of his time while out on bail ought to be regarded as a form of pre-sentence custody and that he ought to be entitled to a credit.
[29] Mr. Vincent, please stand at this time.
[30] It is for these reasons that I sentence you to a total sentence of 18 months’ incarceration followed by 3 years of probation. I allocate your sentence between the three offences somewhat arbitrarily as follows: for the sexual assaults offence, 18 months’ incarceration and 3 years’ probation; for each of the offences of internet child luring and sexual touching, 18 months’ incarceration concurrent on each and 3 years’ probation concurrent on each.
[31] The terms of your 3 years of probation include mandatory terms that I do not review at the time but direct they be reviewed with you. In addition, you are to report to a probation officer within 2 working days of your completion of your period of incarceration and then you are to report in the future whenever and wherever as directed. You are not to have any contact or communication either directly or indirectly and by any means with the victim of your offences or any members of his family. You are to attend, comply with and complete all assessments, treatment and counselling as directed by your probation officer in consultation with Dr. Federoff or his designate at the Royal Ottawa Mental Health Care Centre Sexual Behaviours Clinic. You are to sign such consents and/or releases to allow your probation officer to monitor your compliance with probation.
[32] There are additional Orders. The first is a DNA Order requiring you to submit to the taking of a bodily sample for the purposes of DNA analysis and data bank storage.
[33] The second is a firearms prohibition Order under s. 109 of the Criminal Code, prohibiting you, for a period of 10 years commencing upon your release from incarceration, from possessing any firearm, ammunition or any other item referred to in that section.
[34] The third is an Order under the federal Sex Offender Information Registration Act requiring you to register and comply with its terms for your lifetime.
[35] The fourth is an Order under s. 161 of the Criminal Code lasting for a period of 10 years commencing upon your release from incarceration and prohibiting you, in accordance with its subsections (a), (b), (c) and (d) from having contact with persons under the age of 16 years.
[36] The fifth and final Order is a Forfeiture Order of your two computers seized by police, except that if within 30 days from today’s date the Ottawa Police Service agrees it can return the computers to you with the offending data removed, the subject matter of the Forfeiture Order shall include only reference to the offending data on those two computers. If there is no such agreement from the Ottawa Police Service within 30 days from today’s date, the Forfeiture Order shall include the two computers seized.
Justice L. Ratushny
Released: February 21, 2014
COURT FILE NO.: CR-12-5033
DATE: 2014/02/21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
MARCEL VINCENT
Accused
DECISION ON SENTENCING
Ratushny J.
Released: Delivered orally February 21, 2014