R. v. D.D., 2015 ONSC 400

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. D.D, 2015 ONSC 400

COURT FILE NO.: CR 12-829

DATE: 20150119

BETWEEN:

HER MAJESTY THE QUEEN

Mr. B. Linley, for the Crown

• and -

D.D.

Mr. H. Thompson, for the Defendant.

Defendant

HEARD: September 22, 23, 24, 25, 2014

REASONS FOR SENTENCE

Conlan J.

I. Introduction

1Adults who sexually assault or interfere with children are generally not deserving of leniency from the Courts.

2Should it be any different for this offender?

3In short, no, although the sentence that I will be imposing is lower than what the Crown has recommended.

4Mr. D.D. was tried before me, without a jury, in Walkerton in September 2014.

5The delay in sentencing the offender is not the fault of D.D. The first sentencing date had to be adjourned because a fresh and proper Presentence Report (“PSR”) was ordered to be completed by a different probation officer.

6The offender had been charged with two counts of sexual interference [section 151(a) CCC] regarding a young girl, K.T., and a young boy, I.T.

7In Reasons for Judgment reported at ONSC 5577 (), I found D.D. not guilty of the charge involving K.T. (count 1) and guilty of the offence against I.T. (count 4).

8Count 4 reads as follows: that between the 1st day of January, 2011 and the 26th day of May, 2011 at the Town of Hanover in the said region, Mr. D. did for a sexual purpose touch I.T., a person under the age of sixteen directly with a part of his body, to wit his hands, contrary to section 151(a) of the Criminal Code of Canada.

9The offender had also been charged with two counts of sexual assault (section 271 CCC) against the same two complainants.

10I found D.D. not guilty of the charge involving K.T. (count 2) and guilty of the offence against I.T. (count 5).

11Count 5 reads as follows: that between the 1st day of January, 2011 and the 26th day of May, 2011 at the Town of Hanover in the said region, D.D. did commit a sexual assault on I.T., contrary to section 271 of the Criminal Code of Canada.

12The offender had also been charged with one count of invitation to sexual touching (section 152 CCC) regarding K.T. I found D.D. not guilty of that offence.

13Thus, D.D. was found guilty of two criminal offences against the young boy, I.T. – sexual interference and sexual assault.

14On consent of the Crown, the finding of guilt on the sexual assault charge was conditionally stayed under the Kienapple principle. A conviction was entered on the sexual interference matter.

II. The Facts

15Briefly stated, I.T. is the son of a woman with whom the offender lived in Hanover, Ontario.

16D.D. was a caregiver for I.T.

17Between January 2011 and May 2011, when I.T. was 13 years old, D.D., on four occasions, touched with his hand the boy’s bare genital area. The touching, I have found, was for a sexual purpose and in circumstances of a sexual nature.

18For a more fulsome understanding of the facts, I quote from my Reasons for Judgment.

19Now 17 years old (born in August 1997), this young man [I.T.] described several incidents of sexual touching allegedly committed against him by D.D., the former partner of I.T.’s mother.

20According to I.T., the abuse started when he was about 13 years old.

21The abuse allegedly took place after the children and A.T. moved in to the residence occupied by D.D. and numerous other persons.

22According to I.T., in January 2011, on the bed in D.D.’s bedroom in the basement of the residence, during the evening hours, the accused, with his hand, tickled I.T. under the knee caps, under the arms and then on I.T.’s bare scrotum and penis. The program “Criminal Minds” was on the television. The accused had invited I.T. down to the basement while most of the others were not at home. D.D. had said that he was lonely. The incident ended when I.T. moved away to the foot of the bed.

23I.T.’s account of that incident was very detailed.

24Further, according to I.T., there was a similar incident that occurred on the same bed in April 2011. D.D. and the boy were going to watch the movie “Taxi”. The accused tickled I.T.’s bare genital area. D.D. gave a quick rub of I.T.’s bare penis. D.D. held his hand there for a few seconds. The accused leaned-in close to the boy and whispered “I love you”.

25Again, I.T.’s account of that incident was very detailed.

26Similar touching occurred on two more occasions after the incident in April 2011.

27In addition, I.T. testified that there were times when the accused physically examined the boy’s bare penis, looking for an alleged lump. For example, D.D. would hold I.T.’s exposed penis and examine it before the boy had a shower.

III. The Offender

28D.D. was born in November 1968. He is currently 46 years old.

29The PSR describes the offender as being single and with three dependants. He lives with his former wife, his mother, his two children (a 19-year old daughter and a 14-year old son), two adult male boarders and one of the boarder’s son.

30D.D. has an old and very limited criminal record – three convictions for robbery in 1991 which resulted in a fifteen-month custodial sentence.

31The offender is supported financially by Ontario Disability Support Program benefits.

32The offender is, according to the PSR, a homosexual. His boyfriend passed away tragically in 2010 as a result of a sudden accident.

33The PSR discloses that D.D. has had plenty of tragedy throughout his life. As just some examples, his parents engaged in plenty of domestic conflict; his father (now deceased) was an abusive alcoholic; he was sexually abused as a young child by his father and by three neighbour boys; his younger sister was sexually abused by their father and his male friend; he has, at intervals, been a transient during his lifetime; he has serious learning difficulties; he has been teased by others for his sexual orientation; he was assaulted in the past by his former wife; he was seriously injured in a car accident that occurred when he was 19 years old; and he has a host of medical problems including an epileptic seizure disorder.

34As he is entitled to do, D.D. maintains his innocence and denies any need for counselling, treatment or rehabilitative measures.

35D.D. has the support of his mother, his former wife and his daughter, all of whom describe the offender as kind, gentle and dependable.

IV. The Positions of the Parties

The Crown

36The Crown recommends a range of sentence of 12 to 15 months in jail, plus probation for two years, plus a primary DNA Order, plus a firearms and weapons prohibition Order for ten years and life under the two respective paragraphs of subsection 109(2) CCC, plus a Sex Offender Registry Order for 20 years, plus an Order under section 161 CCC for 10 years.

37The Crown emphasizes the sentencing principles of deterrence and denunciation.

The Defence

38The Defence takes no issue with the various Orders sought by the Crown except the length of the proposed term of imprisonment.

39The Defence recommends a sentence of 90 days in jail, to be served intermittently, taking in to account the offender’s health issues and his importance to the household unit, financially and emotionally.

40The Defence fairly concedes that the suggested 90 days in custody is below the appropriate range in this case, which the Defence suggests is between 6 and 12 months in jail.

41The Defence has filed several decisions. I have summarized them below.

42R. v. D.K., [2013] O.J. No. 1503 (S.C.J. – Conlan J.) – after a trial, the offender was sentenced to twelve months in custody plus probation for attempting to have anal intercourse with a young female child; the offender was in a position of trust; the offender had a prior criminal conviction for sexual assault against a child.

43R. v. E.R.F., [2009] O.J. No. 994 (S.C.J. – Stinson J.) – after a trial, the offender was sentenced to eight months in custody plus probation for three incidents of sexual touching of a young female child; the offender was in a position of trust; the offender had no prior criminal record.

44R. v. L.J.D., [2008] O.J. No. 993 (S.C.J. – Durno J.) – the Crown appealed from a conditional sentence of nine months imposed on the offender on a guilty plea regarding four incidents of sexual touching of a young female child; the offender was in a position of trust; the offender had himself been a victim of abuse; the offender had no prior criminal record; although the appeal was ultimately dismissed for reasons that are not relevant here, the appeal Judge found that the sentence was demonstrably unfit and that six months in custody would have been appropriate.

45R. v. R.F., 2010 ONCJ 394, [2010] O.J. No. 3790 (O.C.J. – Feldman J.) – after a trial, the offender was sentenced to ninety days in custody, intermittent, plus an 18-month conditional sentence order for two sexual assaults against a young female child; the offender was in a position of trust; the offender had a dated and unrelated criminal record.

46R. v. Sabbe, [2011] O.J. No. 2655 (S.C.J. – Pierce J.) – despite a joint submission on a guilty plea for less, the offender was sentenced to twelve months in custody plus probation for oral sex and other sexual impropriety committed against his adopted daughter; the offender had no prior criminal record.

47R. v. T.M.B., [2013] O.J. No. 3413 (S.C.J. – Code J.) – the offender appealed from a sentence of eight months in custody plus probation imposed after trial for sexual touching of the offender’s granddaughter; the offender had no prior criminal record; the offender had been the victim of sexual abuse and racism (because of his Aboriginal heritage); although the appeal was allowed and the sentence reduced for reasons that are not relevant here, the appeal Judge found that eight months in custody was appropriate.

V. Analysis

48It is common ground that D.D. faces a minimum sentence of 45 days in custody (that has since been amended to one year).

49The repeated nature of D.D.’s sexual touching of the victim is an aggravating factor on sentence.

50That the offender was an adult person living under the same roof as the victim and entrusted to care for I.T. is an aggravating factor on sentence. D.D. was in a position of trust and authority when he committed these sexual offences against the young boy.

51I do not consider D.D.’s criminal history to be an aggravating factor on sentence.

52D.D.’s insistence that he is innocent of the charges and not in need of any counselling or treatment is not an aggravating factor. It is merely neutral. He simply does not receive any credit for acceptance of responsibility and/or the showing of any remorse for his actions.

53The primary mitigating factor on sentence is the, at times, very unfortunate and tragic life that the offender has led thus far. He is a sex offender, however, he has been a victim too.

54There are, however, many victims in our society. They do not all become sex offenders.

55When adults prey on children, even adults with D.D.’s background, deterrence and denunciation are key sentencing principles. I find them to be paramount in this case. That is consistent with section 718.01 CCC.

56Sentencing matters are naturally very specific to the facts and circumstances of the offender.

57The jurisprudence filed by the Defence has been helpful to me in assessing what the appropriate range of sentence is in this case. But I think that the range suggested by Mr. Thompson is somewhat low at both ends of the spectrum.

58Rather than 6 to 12 months as suggested by the Defence, in my view, the range of sentence on these facts for this offender is 9 to 15 months in custody.

59I agree with the Defence that these facts are not at or near the most serious for sexual interference, however, the criminal actions of the offender were repeated and were a blatant disregard for the position of authority that D.D. had vis a vis the victim.

60In light of the fact that D.D. has a serious medical condition involving seizures, which can create an increased risk of sudden death (according to the medical letter filed on behalf of the offender), and because D.D. is an important source of support for his very ill mother (who has cancer), I will temper the sentence and confine the period of imprisonment to the low end of the said range.

61The circumstances are not such that I ought to reasonably go even lower than what I have indicated is the appropriate range.

VI. Conclusion

62The sentence of the Court is as follows.

63First, D.D. shall serve a period of incarceration of nine (9) months.

64Second, a Sex Offender Registry Order is made for a duration of twenty (20) years.

65Third, a primary DNA Order is issued.

66Fourth, a firearms and weapons prohibition Order is made for ten (10) years and life under the two respective paragraphs of subsection 109(2) CCC.

67Fifth, an Order is made under paragraphs (a), (b) and (c) of subsection 161(1) CCC for a term of ten (10) years. As requested by the Defence, regarding D.D.’s son, who is under 16 years old, any contact between the offender and his son may be supervised by the Children’s Aid Society or the probation officer.

68Finally, the sentence of imprisonment shall be followed by a period of probation for two (2) years. The statutory conditions shall apply. The optional terms are that D.D. report as required; that he reside where directed; that he have no contact, directly or indirectly, with I.T. or his sister or his mother; that he not attend at any place known to him to be the residence, place of education or place of employment of I.T. or his sister or his mother; that he attend counselling or therapy as directed and sign all necessary releases of information in that regard; that he not associate or be in the company of anyone under 16 years old, with the same exceptions that apply to the subsection 161(1) CCC Order.

Conlan J.