ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-30000497-0000
DATE: 20140923

BETWEEN:

HER MAJESTY THE QUEEN

– and –

R.R.

Robert Fried, for Her Majesty The Queen

Patrick Metzler, for the Accused

HEARD: September 16, 2014

DUNNET J.: (Orally)

REASONS FOR SENTENCE

[1] R.R. has been found guilty following trial by jury of three counts of sexual assault and three counts of sexual interference. Count 2, sexual interference, and Count 6, sexual interference, are stayed on the basis of R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729.

CIRCUMSTANCES OF THE OFFENCES

[2] The offences involve two incidents of oral sex and two incidents of inappropriate touching.

[3] The first incident occurred when the victim was four or five years old. She was playing in the basement of her house. She recalled being on her back on the bed in the guest bedroom. R.R. pulled down her pants and underwear, put his mouth on her vagina and engaged in oral sex. She said that she did not know what was going on. She thought it took fifteen minutes. It stopped when she heard footsteps on the floor upstairs.

[4] The second incident occurred when the victim was between six and ten years old. She was lying on her back on the bed in the guest bedroom and R.R. removed a vibrator from his backpack, turned it on and placed it on the victim’s vagina for about a minute before the vibrator stopped working.

[5] The third incident happened when the victim was between seven and eight years old. She was lying on her back on the bed in the guest bedroom and R.R. was kneeling in front of her. He pulled down her pants and underwear, put his mouth on her vagina and engaged in oral sex. She recalled that it ended when she heard her brother’s footsteps upstairs.

[6] The fourth incident happened when the victim was twelve or thirteen years old. She was sitting at a table using the computer when R.R. came into the room and offered her a massage. She said no. He poured baby oil on his hands and put them down the front of her shirt. She told him to stop, but he continued to rub her breasts. When he stopped, he laughed and walked away.

CIRCUMSTANCES OF THE OFFENDER

[7] R.R. is 51 years of age and has no prior criminal record. Seventeen character references from members of his family and friends have been filed. He is described as hardworking, kind, courteous, a good husband and a devoted father to his sons, aged seven and fourteen. He attends church regularly with his wife and has been employed as a warehouse custodian at the same company for the past fifteen years.

[8] The Pre-Sentence Report states that R.R. was born in Trinidad to a family of ten children. He grew up in a supportive and loving family and some of his siblings were present in the courtroom during the sentencing hearing. He has no history of physical, emotional, or sexual abuse, or any psychiatric illness.

[9] R.R. came to Canada in 1988 and became a Canadian citizen. In 1990, he married the victim’s mother. She described their two year marriage as one of convenience for immigration purposes. According to R.R., however, the marriage ended because she had an affair with her present husband. R.R. remained in contact with the victim’s mother and they carried on a lengthy affair until 2012. He has been married to his present wife for fifteen years.

[10] The Pre-Sentence Report states that R.R. suspects that the victim is his daughter. When he was charged with these offences, he thought about committing suicide, but he denied making any attempt to do so. He has continued to maintain his innocence, exhibits no remorse and is opposed to taking counselling to address his sexual behaviour.

IMPACT ON THE VICTIM

[11] Both the Victim Impact Statement and the victim’s testimony at trial demonstrate that these offences have had a severe impact on her. From the age of four or five until she reported the abuse to her mother at the age of eighteen, the victim tried to deal with what had happened to her alone. During her teenage years, she “cut” herself and had suicidal thoughts. She continues to suffer from nightmares, depression and relationship issues with men.

POSITION OF THE CROWN AND DEFENCE

[12] The Crown seeks a penitentiary sentence of three and one half to four and one half years. The defence seeks a reformatory sentence in the mid to upper range.

AGGRAVATING FACTORS

[13] R.R. was in a position of trust. Although the victim only recently learned that he was married to her mother, she has known him all of her life. He was a close family friend and appeared regularly at her home.

[14] These incidents happened inside the victim’s home where R.R. took advantage of situations where they were alone and the victim would have had a legitimate expectation that nothing would happen to her.

[15] The abuse began when she was very young and continued over a ten year period.

[16] The incidents of oral sex only stopped because there was creaking on the floor upstairs. When R.R. was massaging the victim with oil, she told him to stop, but before that incident, she was too young to understand what was happening. It is clear from her evidence that the tragic consequences of R.R.’s actions are ongoing.

[17] Further, because he does not suffer from any sexual disorder that could account for his behaviour, arguably, his degree of culpability rises. See R. v. D.D., (2002) 2002 44915 (ON CA), 58 O.R. (3d) 788 at para. 40 (C.A.) [D.D.].

MITIGATING FACTORS

[18] R.R. has no criminal record and a good work history. He has family and community support. Further, he was on a restrictive bail that prevented him from accompanying his sons to playgrounds, schools, or parks, although his bail was varied after seven months to permit him to attend their sporting events.

DISPOSITION

[19] In these types of cases, denunciation and deterrence take precedence over the other recognized principles of sentencing. In D.D., supra, at para. 44, our Court of Appeal has 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.

[20] In support of his position, Crown counsel relies upon a number of cases, including R. v. S.C., [2005] O.J. No. 2887 (S.C.); aff’d [2005] O.J. 3729 (C.A.); R. v. E.T., [2009] O.J. No. 4290 (S.C.); aff’d 2011 ONCA 86, O.J. No. 374; R. v. L.T., 2010 ONSC 4672, O.J. No. 3569; rev’d 2011 ONCA 280, O.J. No. 1650; R. v. D.M., 2012 ONCA 894, 295 C.C.C. (3d) 159; R. v. B.F., [2013] O.J. No. 2580 (S.C.); R. v. J.W. 2013 ONSC 1712, O.J. No. 2274; and R. v. P.J., 2013 ONSC 6613, O.J. No. 4771.

[21] In R. v. Manjra, 2009 ONCA 485, O.J. No. 2484, leave to appeal to S.C.C. denied, [2009] S.C.C.A. No. 393, the Court of Appeal upheld a sentence of 17 months in custody for one count of sexual interference of a seven year old girl by a neighbour. The complainant was visiting the house where she had been many times before when the neighbour pulled down her pants and underwear and while on his knees, he “licked her privates.” The Court found that the trial judge was entitled to conclude that the relationship was at the low-end of a trust relationship and to use that as an aggravating factor on sentence.

[22] Each of the cases referred to above is instructive, but at the same time, each case is fact-specific.

[23] In the case of R.R., the defence takes the position that a reformatory sentence would satisfy the principles of denunciation and deterrence. It is submitted that these were crimes of opportunity that were brief. The incidents were isolated and separated by years, and they were not accompanied by threats or violence. Further, despite his presence in the victim’s life after she was fourteen, there have been no similar incidents.

[24] In R. v. B.F., at para. 26, the court held:

Given all of the circumstances, I find that the appropriate global sentence to impose on B.F. is four years. This sentence is a significant penitentiary sentence for a first offender with a good background. It recognizes that with crimes of this nature offenders are often of good backgrounds and that the focus has to be on the harm caused to the victim and on the need to denounce and deter the conduct in question.

[25] In this case, given the breach of trust, the fact that these incidents began when the victim was a very young child, continued over a period of years, and had a significant impact on the victim, I am of the opinion that a penitentiary sentence is warranted.

[26] I impose a global sentence of three years. On Counts 1, 3 and 4, I sentence R.R. to three years imprisonment to be served concurrently. On Count 5, I sentence R.R. to a term of imprisonment of 6 months to be served concurrently with the term of three years imposed on the other counts.

[27] There will be an order to provide a sample of bodily substance for the purpose of DNA testing under s. 487.051 of the Criminal Code, R.S.C. 1985, c. C-46 [Criminal Code], a Sexual Offender Information Designation for life under ss. 490.012 and 490.013(2.1) of the Criminal Code and a weapons prohibition for life under s. 109 of the Criminal Code.

DUNNET J.

Released: September 23, 2014

COURT FILE NO.: CR-13-30000497-0000
DATE: 20140923

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

R.R.

REASONS FOR SENTENCE

DUNNET J.

Released: September 23, 2014