R. v. Tomlinson, 2015 ONSC 3953

COURT FILE NO.: CR-14-89

DATE: 2015/06/29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Gordon Tomlinson

Defendant

Matthew Collins, counsel for the Crown

Terry Mazerolle, counsel for the Defendant

HEARD: May 21, 2015

reasons on sentencing

Leroy, J.

Charges and Facts

[1] Mr. Tomlinson, age 18, engaged four girls under the age of 16 in pursuit of sexual gratification. It began with BC, age 13 on the 18th of March, 2014. They carried on their relationship on Facebook and Skype. BC understood them to be in an exclusive relationship for three days from March 18 to 21, 2014. They did not meet in person. He asked her to agree to sexual intercourse with him multiple times. She terminated the exclusive aspect because of his persistence.

[2] KFV, age 12, met Mr. Tomlinson while he was Skyping with BC on June 30, 2014. Mr. Tomlinson told her he was 17 and she told him she was 12. He asked the girls if they were interested in a threesome. KFV invited Mr. Tomlinson to visit her in Lancaster through the week of July 1, 2014. The man who was dating KFV’s mother at the time was tasked to collect Mr. Tomlinson in Cornwall and provide transportation.

[3] The pursuit of sexual gratification began immediately after Mr. Tomlinson arrived at the V home on June 30, 2014. There was mutual attraction. KFV thwarted his efforts directed at kissing her breasts and touching her vagina.

[4] Mr. Tomlinson’s passions were indiscriminate. Later in the evening, he approached JB, age 13, a visitor to the V home while she was in the washroom removing makeup, slapped her buttocks and asked for a kiss. She declined.

[5] Mr. Tomlinson was purposeful on July 1. It began with another invitation to BC and KFV to engage in a threesome. BC declined. He and KFV spent the remainder of the day kissing, groping, groin pushing, attempts by Mr. Tomlinson to achieve digital penetration and two requests for partner masturbation. Mr. Tomlinson asked her to engage in sexual intercourse with him. She declined citing her age.

[6] On July 2nd, while swimming, Mr. Tomlinson asked KFV to engage in sexual intercourse in the water. Mr. Tomlinson achieved digital penetration until she instructed him to stop. He exposed his penis to her and masturbated.

[7] On July 3rd, while watching a movie, the offender succeeded in kissing KFV’s breasts. Later, while on a walk, Mr. Tomlinson pulled her to him roughly raising fear of his intentions and her safety. He attempted to touch her vagina, she told him to stop and he forcefully slapped her buttocks. Sexual intercourse was his thematic.

[8] On July 4th, Mr. Tomlinson revisited JB and again forcefully slapped her buttock. Later, after some alcoholic drinks, Mr. Tomlinson, KFV and RL, another age 15 female were on the L trampoline. KFV was on top of Mr. Tomlinson and they were masturbating one another over their clothing. Mr. Tomlinson attempted to grope RL’s breasts and vaginal area. KFV and Mr. Tomlinson proposed a threesome with RL who declined. After that, they moved inside to watch a movie. Again Mr. Tomlinson asked KFV to masturbate him and she did over his clothing. His proposal for fellatio was declined. Mr. Tomlinson’s frustration level was growing. He told her to have intercourse immediately or he would hurt her. When she said she would not have sex until age 16 or 17, he said he could not wait that long.

[9] Mr. Tomlinson placed his hand on KFV’s vaginal area on July 5th. They discussed the time lines again and KFV recalls ending the relationship when he again indicated his inability to wait the years it would take. Later that evening while the two were necking, Mr. Tomlinson masturbated to ejaculation.

[10] He pled to five offences on May 22, 2015, invitation contrary to s. 152 CCC in respect to BC, KFV and RL and sexual interference contrary to s. 151 CCC in respect to KFV and JB.

Sentence Provisions

[11] Conviction under each section attracts a minimum sentence of one year imprisonment and maximum of ten years imprisonment. There are ancillary consequences in the form of s. 109 firearms prohibition, lifetime SOIRA – 490.013(2.1), DNA sample, s. 161 and 743.21(1) constraints.

Positions of counsel

[12] The Crown submission is for a five-year global sentence less time served, enhanced at 1.5 or eighteen months, leaving forty-two months. The weapons prohibition ought to be for ten years and life in respect to the SOIRA and 161 orders. The convictions relative to KFV ought to run concurrently, but the others should count consecutively. The circumstances do not merit application of minimum sentence.

[13] Defence counsel submits that Mr. Tomlinson should be sentenced to time served plus 12 - 18 months and probation for three years. A lifetime s. 161 order is draconian and excludes Mr. Tomlinson from employment requiring use of a computer and Internet. By the time Mr. Tomlinson reaches middle age, that prohibition would exclude him from all employment.

Principles of Sentencing

[14] The sentencing judge has broad discretion in passing sentence.

[15] The objectives and principles of sentencing are codified in ss. 718 to 718.2 of the Criminal Code. Judges are directed in s. 718 to consider the fundamental purpose of sentencing as that of contributing, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society. This purpose is met by the imposition of just sanctions that reflect the array of sentencing objectives, as set out in the same provision: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation, the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community.

[16] The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Whatever weight a judge may wish to accord to the objectives listed above, the resulting sentence must respect the fundamental principle of proportionality. Section 718.2 provides a non-exhaustive list of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity and totality, and the instruction to consider all available sanctions other than imprisonment that are reasonable in the circumstances.

[17] The principle of proportionality has a constitutional dimension. Section 12 of the Charter protects against cruel and unusual punishment.

[18] Proportionality requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. The rights-based, protective angle of proportionality is counter-balanced by its alignment with the just desserts philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused. Sentencing is a form of judicial and social censure. The degree of censure required to express society’s condemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

[19] The determination of a fit sentence is an individualized process that requires the judge to weigh the objectives of sentencing in a manner that reflects the circumstances of the case. No one sentencing objective trumps the others. The relative importance of any mitigating or aggravating factors will push the sentence up or down the scale of appropriate sentences for similar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law.

[20] The totality principle is raised as an issue in this case, given the five convictions each carrying individual minimum sentences of one year. The issue was wisely addressed in R. v. C.G.J.L.[2013] A.J. No. 343 when the panel referred to its earlier decision in R v May, 2012 ABCA 213 at paras 7 to 10: citations omitted.

[7] There are basically two forms of totality recognized in law. The first form of totality is a subsidiary concept related to the fundamental principle of sentencing set out in s. 718.1 of the Code. It is a concept that serves the principle of proportionality that the offender should be subject to a sentence which reflects the gravity of his offence, and the degree of responsibility the offender has for that offence. The totality concept in this respect recognizes the fact that an offender may commit one or more offences in a single transaction, and that to accurately reflect gravity and responsibility may involve concurrence of the sentences. (The Crown often imposes such a form of totality by charging global counts reflecting what might otherwise be a great many individual instances of crime.) Applying this concept is not an “automatic”, as some additional crimes within an overall transaction are simply so gratuitous or so dangerous an escalation of the basic crime as to demand recognition by a consecutive sentence.

[9] An extension of this form of totality is the notion of the “spree” of crimes. That term was invented for, and has been largely applied in cases of younger offenders or petty offenders who engage in a series of property offences close in time and circumstances (crimes of violence are intrinsically distinct as noted, but sometimes this notion has been applied to those). While such multiple offence cases are not, strictly speaking, situations of single transactions, a court may well make fact findings that justify an analogous conclusion to a single transaction in such a situation by seeing linkage that works across the boundaries of the counts.

The Offender

[21] Mr. Tomlinson achieved the age of 19 years while in pre-trial custody on November 24, 2014. His mother and Kitchener CAS worker attended court for the plea and sentence hearing. He entered foster care early in life at age 3. He recalls sexual abuse by the 12 year old child of a foster parent in the first home. He lived in four homes until age 15 when he sexually abused a niece. He returned to live with his mother at age 17. He recalls attendance in about 20 different schools. School was not a place of security for Mr. Tomlinson. He was bullied and has ADHD. He has never been gainfully employed.

[22] He was convicted of two counts of sexual assault on March 10, 2011. The victim was his five-year-old niece and the assault involved kissing and touching her breasts and vagina. He spent two years in an in-custody treatment program.

[23] The sexual behaviours assessment completed by the Royal Ottawa Mental Health Centre suggests his actuarial risk of recidivism is in the moderate to moderate-high range. He has a number of treatable factors that could reduce the risk. Dr. Booth’s recommendations include counselling and medications directed at the comorbid psychiatric diagnoses of ADHD, social phobia and pedophilia.

Aggravating and Mitigating Factors

Aggravating Factors

[24] The Crown cited four categories of aggravating features. The victims’ ages and the disparity from that of Mr. Tomlinson, Mr. Tomlinson’s persistence and escalation in pursuit of sexual gratification, the fact of digitally penetrating KFV’s vagina and the sexual assault criminal record imposed when he was fifteen.

Mitigating Factors

[25] Mr. Tomlinson was 18 when he committed these offences. He is a youthful offender and rehabilitation needs to be a feature in sentence. The experiences of his youth poorly prepared him for normal adult relationships. He waived right to bail and stated his commitment to plead guilty as soon as he could. He saved the victims exposure to the rigours of discovery and trial.

Victim Impact

[26] RL writes she is less trusting of older men than before and exercises greater vigilance for her safety. KFV feels exploited. Her trust in men is diminished. Her suspicions about male motivation are elevated and is fearful of being alone with a male.

Jurisprudence

[27] While sentencing precedent will almost always contain features that make them distinguishable, taken as a whole, they can point to a range to be considered and to the factors that will assist in placing a particular case within the appropriate range.

[28] The following is a summary of the cases submitted by counsel.

[29] The facts in R. v. Doran 2014 ONCA 621 are distinguishable. Doran’s misconduct was more blameworthy. After trial by jury, Doran, age 38 at the time of offence was convicted for sexual assault with a weapon and sexual interference. The victim was 13 in 2002. Doran was convicted of several sexual offences in 2008 for incidents between 2003 and 2005 against victims between the ages of 12 and 17 years. Doran held a position of trust toward the victim, he utilized a knife to force the victim into compliance and he denigrated her dignity by forcing her to dance for him naked and by giving her cash after the event. The trial judge cited R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 at paragraph 76. – when 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. Doran was sentenced to 3 years for the sexual assault and 2 years on the invitation to sexual touching to be served concurrently in custody. DNA, SOIRA order and s. 109 weapons prohibition were issued.

[30] The same can be said for R. v. Hales 2013 ONCJ 343, [2013] O.J. No. 2915 where Hales, age 22 or 23, was in a relationship with TC when she was 13 that ran for 16 months. He had a prior conviction for assault with a weapon for which sentence was suspended and placed on probation for two years. They began to engage in sexual intercourse when she turned 14. The conviction for sexual interference on a plea drew a sentence of 8 months imprisonment, DNA order, 10 year firearms prohibition and a 20-year sex offender registration. Denunciation, deterrence and rehabilitation were the primary sentencing principles.

[31] The court underscored the aggravating factor that is interference with a person under the age of 16 years as articulated by Feldman J.A. in R. v. P.M.,2002 CanLII 15982 (ON CA), [2002] O.J. No. 644 when she wrote that young women entering their teenage years face a myriad of confusing feelings regarding their bodies, their emotions and their sexuality. It is difficult enough to deal with these issues with a judgmental and often cruel peer group. To exploit a young teenager, as this man did, reveals a level of amorality of great concern. The purpose of this legislation is to protect children. The child’s willing participation is not a mitigating factor.

[32] In R. v. Basit, [2011] O.J. No. 4246, Basit at age 19 began an intimate relationship with a girl age 11. After she turned 12, they engaged in weekly sexual intercourse including oral sex for one and one-half years. The sentence involved 23 months imprisonment, three years’ probation, DNA order, 10 year firearms prohibition, 20-year compliance with the SOIRA. Denunciation and deterrence were the primary sentencing principles, notwithstanding that Basit was a young offender without a prior record, expressed remorse and produced a report indicating lack of underlying pathology. Aggravating factors included the disparity in age, Basit was a church group leader and the girl was in his group, that the acts were carried out over a year, Basit was given fair warning to stop five months before the charges were laid and the acts included sexual intercourse and oral sex.

[33] In R. v. E.T. [2010] O.J. No. 3333, there was conviction by jury for the offence of sexual interference – The age disparity was significant, namely age 13/14 versus age 30. The Court made the point that while consent is not a defence to sexual interference or of sexual assault, it is a factor in relation to sentence. The Court made the observation that after D.D. there was a shift in sentencing of sexual assault cases from rehabilitation of the offender to emphasis on periods of incarceration that more adequately express society’s denunciation of such crimes and the severe impact of child sexual abuse. E.T. was sentenced to 40 months and ancillary orders. The Court declined the 161 order because this was a first offence, not a case of multiple victims and there was no evidence to suggest pedophiliac tendencies in the sense he would pose a continuing risk other young persons.

Analysis and Conclusions

[34] Mr. Tomlinson should be credited with one and one-half to one or eighteen months sentence credit for pre-sentence prison time. He was held at the detention centre for just short of one year. He committed to a guilty plea in a timely fashion and did not pursue interim release. That is recognition of his sense of the need for reparation, his responsibility for his actions and acknowledgement of the harm done to the victims, their families and the community.

[35] There is an element of inevitability to this that tends to diminish his moral blameworthiness. While the chronological age disparity between Mr. Tomlinson and the victims is not a small one, the maturity level disparity was smaller. Mr. Tomlinson is damaged goods. He lacks sensibility and is ill-prepared for adult life and mature relations. That he finds himself in this situation was predictable.

[36] Although the first sexual invitation was communicated in March over Skype, Mr. Tomlinson lacked the means to act on his aspirations. BC continued platonic Skype communication through to the end of June, notwithstanding the assertion she terminated the romantic context for their relationship in March after three days.

[37] The adults in the V household enabled an eighteen-year old unfettered access to their twelve-year-old daughter in the form of invitation, transportation and dearth of supervision.

[38] From the moment of arrival, through the next five days, Mr. Tomlinson embarked on a spree of indiscriminate pursuit of sexual relations with these girls. He objectified them.

[39] There is linkage across the counts involving RL and JB. In my view, notwithstanding the minimum sentence in place for each conviction, the purposes of sentencing do not require consecutive sentences in his case. The offences in relation to these girls pale by comparison and are collateral to the main crime and merit concurrent treatment. Their victimization was almost random, caught up as they were in Mr. Tomlinson’s five-day spree.

[40] The primary offences relate to KFV. He was eighteen and she was twelve. He was persistent; he escalated over the five days, achieved momentary digital penetration one time and generally exploited this young person who was facing the myriad of confusing and intimidating issues entering her early adolescence evoked by Justice Feldman.

[41] The count involving BC is not linked to the spree, nor is it part of the single transaction. The sexual invitation cannot be perceived as episodic. He was trolling the Internet for sexual gratification and that behaviour demands public denunciation and there has to be a message to the community it will not be tolerated.

[42] A global sentence in the range of thirty-six months is in the range that honours the Criminal Code principles of sentencing and is in parity with the jurisprudence cited to me. The informed community would appreciate the measure in the penal context. Vulnerable females should be able to engage with males safely and without fear. The gravity of these offences is reflected in the imposition of minimum sentences. These acts were unmitigated and reprehensible and the crown rightly seeks condemnation for them and the harm caused.

[43] The community would also recognize that Mr. Tomlinson’s experiences in life are mitigating factors that impact on his moral blameworthiness and factor into proportionality in sentence. For what it is worth, he did stop, with reluctance when denied. The community has a strong interest in a sentence that offers opportunity for rehabilitation.

[44] Mr. Tomlinson shall receive credit for the twelve months of pre-sentence detention equivalent to eighteen months to be applied as follows :

i. sexual interference KFV: term that would have been imposed before any credit granted – 24 months; pre-sentence custody – 8 months; time credited 12 months; sentence 12 months.

ii. sexual invitation KFV - 12 months concurrent;

iii. sexual invitation BC – term that would have been imposed before any credit granted - 12 months; pre-sentence custody – 4 months; time credited 6 months; sentence 6 months consecutive.

iv. sexual invitation RL – 12 months concurrent

v. sexual interference JB – 12 months concurrent

[45] The following corollary terms issue:

(a) I recommend that he serve his sentence at the St. Lawrence Valley Correctional and Treatment Center – secure treatment unit. I recommend that the treatment regimen follow Dr. Booth’s treatment recommendations flowing from the report dated February 16, 2015.

(b) Mr. Tomlinson is prohibited from communication in any form with KFV, BC,RL and JB through the term of his imprisonment pursuant to s. 743.21 of the Criminal code.

(c) Immediately following his release, he will be placed on probation for a period of three years on statutory terms. He will immediately, on release, report to a probation officer and thereafter when and as required. He will take such counselling as recommended by the probation officer with regard to any psychological issues related to potential recidivism.

(d) Mr. Tomlinson will execute a release of medical, psychiatric or other confidential information to his doctor or counsellor, in favour of the probation officer, so they can discuss his progress. He will not cease the counselling without the permission of his probation officer, and he will, at all times, live at an address approved by the probation officer.

(e) He will have no association or contact directly or indirectly, nor be within 100 metres of any known residence, place of work or education of the victims BC, KFV, RL and JB.

(f) He will make reasonable efforts to seek and maintain employment or attend school. He will not possess any weapons as defined by the Criminal Code. In addition, he will not be alone in a private place in the presence of any female person or communicate by any means with any female person unrelated to him, who is under the age of 16 years.

(g) I have considered the provisions under the Criminal Code for the providing of DNA evidence. Notwithstanding, the intrusion into your privacy interest, these are primary offences and I make an order that you provide a sample of your DNA.

(h) I have considered the provisions under section 109 of the Code dealing with firearms. There will be a prohibition for a period of 10 years.

(i) Section 490.012 of the Criminal Code, which is known as the Sex Offender Registry applies. An order will be made in accordance with Form 52, requiring this defendant to comply with the terms of the Sex Offender Information Registration Act for a period set-out in section 490.013(2)(b)(2.1) which is lifetime compliance.

(j) I have considered whether to make an order under section 161. I do not do so because of the specific facts of this case, particularly Mr. Tomlinson’s age and prospects, and because I inserted a restriction in the probation order, with regard to being in the company of or communicating with unrelated females under the age of 16.

Justice Rick Leroy

Released: June 29, 2015

CITATION: R. v. Tomlinson, 2015 ONSC 3953

COURT FILE NO.: CR-14-89

DATE: 2015/06/29

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Gordon Tomlinson

Defendant

REASONS on sentencing

Justice Rick Leroy

Released: June 29, 2015