ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: SCJ 005/12
DATE: 2014/01/17
B E T W E E N:
HER MAJESTY THE QUEEN
Marney Mazurski, Crown Counsel
- and -
D.P.
Andrew Perrin, Counsel for the Accused
HEARD: January 16, 2014
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR SENTENCE
ellies j. (Orally):
[1] D.P. was convicted on October 7, 2013 of five offences relating to the sexual abuse of his common-law stepdaughter, C.B. The matter is before me today for sentencing.
[2] The Crown submits that D.P. should be incarcerated for a period of five to seven years.
[3] The Defence submits that a conditional sentence is appropriate. As I will explain, I am unable to accept that submission.
FACTS UNDERLYING THE CONVICTIONS
[4] For the reasons set out in my decision of October 7 (2013 ONSC 6232), I found D.P. guilty of one count of gross indecency, and four counts of sexual assault. The conviction for gross indecency involved forced masturbation while the victim was between the ages of 10 and 12. One count of sexual assault, count 5, involved masturbation and oral sex that D.P forced the victim to perform on him when she was 14. Count 6 also involved oral sex on D.P. Count 8 involved sexual intercourse when the victim was 15. Count 10 involved acts of masturbation and fellatio when the victim was between the ages of 17 and 18.
[5] With respect to those counts where consent was a defence, I found that C.B. did not validly consent because of the position of authority D.P. occupied over her and the coercive use he made of it.
[6] To summarize, I found D.P. had engaged in a pattern of sexually abusive conduct that started with simple touching and progressed to full sexual intercourse over the span of five to eight years, when the victim was between the ages of 10 and 18.
SENTENCING CONSIDERATIONS
[7] The relevant sentencing principles are set out in sections 718 to 718.2 of the Criminal Code. Section 718 provides as follows:
- The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[8] This section was considered in the context of the sexual abuse of children by the Ontario Court of Appeal in R. v. D.D. (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788. Both the court in that case and Parliament through the enactment of s. 718.1 have made it clear that denunciation and deterrence are the primary considerations in cases involving the abuse of persons under the age of 18 years. In my view, neither of these goals would be accomplished by a conditional sentence in the circumstances of this case, given the gravity of the offences.
[9] The acts perpetrated by D.P. upon C.B. all took place while he was in the position of a father to her. Instead of protecting her from harm because of her vulnerability as a child, D.P. took advantage of that vulnerability. Instead of doing his best to see that she enjoyed her childhood, he took it away. To borrow the words of Moldaver J.A. in D.D. (at para. 35):
Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the (accused) and as such, they make easy prey. People like the (accused) know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.
[10] The Crown concedes that a conditional sentence would not be illegal in this case, given the dates of the offences (: see R. v. Mehanmel, 2012 ONCJ 681). However, a conditional sentence may only be imposed under s. 742.1 where a sentence of less than two years would be appropriate. In D.D., the court held that “as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms” (at para. 44). For that reason alone, a conditional sentence would not be appropriate in this case.
[11] What, then, is the appropriate sentence? I have found many of the cases provided by the Crown to be instructive. R. v. Woodward, 2011 ONCA 610 was a case in which the accused convinced a 12 year old girl that he would transfer millions of dollars into her bank account in exchange for sex. The abuse took place on only one occasion and involved sexual touching, fellatio and sexual intercourse. The accused unsuccessfully appealed a global sentence of six and one-half years incarceration, including five years for the sexual assault involving intercourse. In the present case, there was more than one incident of abuse.
[12] In R. v. W.C.C., [2009] O.J. No. 4705 (Ont. S.C.), the accused was sentenced to four years in custody after he was found guilty of committing dozens of acts of abuse on his daughter, including digital penetration and masturbation. The accused in that case, like the one at bar, had no record. At 59 years of age, he was also older. However, he pleaded guilty to the offences. D.P. did not. While a plea of not guilty cannot increase a sentence, a plea of guilty can reduce one.
[13] The accused in R. v. C.C., [2012] ONSC 3509 was convicted of committing sex acts with his ex-wife’s daughter, when she was between the ages of seven and eleven years old. Like the accused in this case, C.C. had no criminal record and was otherwise a contributing member of society. He was sentenced to four years in custody for the sexual assault and sexual interference offences. The sex acts included vaginal penetration, but not sexual intercourse.
[14] In perhaps the closest fact situation to the one involved in this case, the accused in R. v. K.P., [2012] ONSC 4372 had sexually abused his stepdaughter over a four year period when she was between the ages of nine and 12 years old. Like this case, the accused had no record and was older, being 63 years of age. Unlike this case, however, no sexual intercourse had occurred. K.P. was sentenced to four years in custody.
[15] These cases must be viewed in the context of s. 718.1 of the Code, which requires that a sentence be proportionate to the gravity of the offence. Thus, all other things being equal, an accused who commits an act of sexual intercourse with his common-law stepdaughter as one of the acts of abuse ought to receive a longer sentence than one who does not.
[16] Section 718.2 of the Code is also important. It lists aggravating and mitigating circumstances that should be considered in determining the length of a sentence. Two of the factors listed there are relevant to this case, namely: that D.P. abused a person under the age of 18 years, and that, in committing the offence, he abused a position of trust or authority in relation to the victim. These are aggravating factors which should increase the length of the sentence within the appropriate range.
[17] The effect on the victims is also an aggravating factor in this case. The Victim Impact Statements of C.B. and her mother bear witness to the devastation that the abuse of children can have on an entire family. C.B.’s life has been ruined. She became a runaway, failed at school, turned to alcohol, failed in relationships, lost her self-esteem and thought of taking her own life. Her relationship with her mother suffered, and her mother suffered as well. The future S.B. worked hard and hoped for has been lost to a past she had no idea was happening.
[18] Mitigating against a sentence at the upper end of the range in this case are the absence of a criminal record and D.P.’s solid work history. I do not view as a mitigating factor, however, the length of time he has been on bail awaiting the disposition of this matter. While strict terms of pretrial release may mitigate against sentence, the terms of D.P.’s release do not fit that description.
[19] The largest mitigating factor, in my view, is D.P.’s advanced age. While I hope that he does not spend all of his remaining years in prison, he will certainly spend a good portion of the time he has left there.
CONCLUSION
[20] D.P., please stand up.
[21] Were it not for the fact that you are 70 years of age, I would find a period of five years imprisonment to be a fit and proper sentence. However, given your age, I am imposing a total sentence of imprisonment of four years, as follows:
(a) On count 4, a period of imprisonment of one year;
(b) On count 5, a period of imprisonment of two years, concurrent;
(c) On count 6, a period of imprisonment of three years, concurrent;
(d) On count 8, a period of imprisonment of four years, concurrent; and
(e) On count 10, a period of imprisonment of three years, concurrent.
[22] I am also recommending that you receive such treatment as is available for sexual offenders while you are incarcerated and during any period of supervised release.
[23] In addition, the following ancillary orders shall be made:
(a) Under s. 109(2) of the Criminal Code, you are prohibited from possessing any firearm, other than a prohibited or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance for ten years from your release from prison and from possessing any prohibited firearm, restricted firearm, prohibited device and prohibited ammunition for life;
(b) Under s. 487.051 of the Code, you shall provide such samples of your bodily substances as are reasonably required for the purpose of forensic DNA analysis for the DNA Databank;
(c) Under s. 490.012 of the Code, you shall comply with the Sex Offender Information Registration Act for a period of 20 years;
(d) Under s. 161(a) of the Code, you shall not attend a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;
(e) Under s. 161(b) of the Code, you are prohibited from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years; and
(f) Under s. 743.21 of the Code, you shall not communicate directly or indirectly with C.B. during the custodial period of your sentence.
Ellies J.
Released: 20140117
COURT FILE NO.: SCJ 005/12
DATE: 20140117
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
D. P.
REASONS FOR SENTENCE
Ellies J.
Released: 20140117