COURT FILE NO.: CRIM (P) 630/13
DATE: August 14, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
C. Valarezo for the Crown
- and -
C.G.
G. Gross-Stein for the Defendant
Defendant
HEARD: August 4, 2015
REASONS FOR SENTENCE
Ricchetti J.
Overview
[1] C.G. was charged with:
a) Sexually assaulting his daughter, A.G.; and
b) Incest with his daughter, AG.
[2] On April 23, 2015, a jury convicted C.G. of both offences.
The Facts
[3] A.G. lived in Jamaica with her grandmother and extended family. A.G. was about 16 years old. A.G.’s mother had moved to England some time earlier. C.G. had moved to Canada earlier in the year A.G. was born. A.G. had only seen her father during visits to Jamaica from time to time, usually yearly.
[4] C.G. decided he would bring A.G. to live with him. A.G. didn’t want to leave Jamaica. But, C.G. had other plans.
[5] In March 2009 C.G. brought A.G. to Canada from Jamaica against her will. C.G. used the Jamaican courts and police to compel A.G. to return to Canada with him. A.G. left her family, friends and school behind when she was brought to Canada. She was unhappy.
[6] When she arrived in Canada, A.G. lived with C.G. and his partner, F.D.
[7] C.G. was not and had not been employed for some time due to a back injury. F.D. went to work each morning. C.G. remained at home alone with A.G.
[8] A.G. did not immediately attend school. She remained at home during the day with C.G. Initially, during F.D.’s absence, C.G. had A.G. put cream over his body. However, this progressed until about eight to nine months after her arrival to Canada. C.G. then started to sexually assault A.G.
[9] C.G. repeatedly had sexual intercourse with A.G. A.G. resisted. She understood and knew it was wrong. But C.G. was not to be deterred. A.G. described how C.G. would hold down her arms, spread her legs and then proceed to have sexual intercourse with her.
[10] The sexual assaults continued for approximately 2 ½ years. The sexual assaults happened frequently either weekly or more often.
[11] Within a year, A.G. became pregnant. In November 2010, A.G. had a child, N.G. N.G. is C.G.’s child. Two sets of the DNA testing confirm this.
[12] After N.G.’s birth, A.G. returned to C.G.'s home. The sexual assaults by C.G. resumed. C.G. did not tell the family that N.G. was his child but instead told them that A.G. was “loose” or a “bad girl”.
[13] At one point, A.G. told her aunt about the sexual assaults. After C.G. found out, he told A.G. that if he was arrested, she would be left alone with no one to take care of her. A.G. then told the aunt that what she had said about the sexual assaults was not true.
[14] C.G.’s sexual assaults continued. A.G. again became pregnant. In November 2011, A.G. had a second child, R.G. R.G. is C.G.’s child. Two sets of DNA testing confirm this.
[15] A.G. was in grade 10 when she was pregnant with R.G. The school assigned a social worker to A.G. Before R.G. was born, A.G. reported the sexual abuse to the social worker. This led to police involvement. The sexual assaults were exposed. In late 2011 A.G. was removed from C.G.'s home to a shelter.
[16] N.G. and R.G. were subsequently taken by the Children’s Aid Society and placed in an adoption home through a closed adoption.
[17] Despite two DNA tests (bucal swab and blood) both of which confirmed that C.G. is the father of N.G. and R.G., C.G. continues to deny that they are his children.
[18] C.G. does not admit that he did anything wrong with his daughter. C.G.’s position at trial was confusing: he “dreamed” about his daughter and would wake to find her in bed with him. Or, it was A.G. who took advantage of him while he was in bed or asleep or he never had sexual intercourse with A.G.
Circumstances of the Offender
[19] C.G. is 50 years old. He was born in Jamaica. He came to Canada in 1992. He has a high school education. He completed his certification in Canada as a Personal Support Worker.
[20] He suffers from diabetes and takes insulin. He suffered a back injury in 2004 and has not been employed since. He is financially dependent on WSIB and CPP.
[21] He has no criminal record.
[22] He has one brother and four sisters. While there are support letters, it is difficult to give any weight to these letters. These letters suggest that he is a “caring and kind hearted person” or a good “role model” or a “man of integrity and honesty”. The type of offences at issue in this case are ones which other members of the family or public rarely see as they are committed in private with threats or intimidation to keep them from becoming public or known to the offenders family and friends.
Pre-Sentence Report
[23] A Pre-Sentence Report (PSR) was obtained. While cooperative with the writer, C.G. continued to deny the sexual assault occurred or exhibit any remorse for what occurred to his daughter. To the contrary, C.G. continues to suggest that it is A.G., his daughter, the victim, who has made “trouble for him” since coming to Canada.
[24] Many of C.G.’s family members continue to believe that C.G. is innocent or at least question the convictions.
[25] The writer of the PSR concluded:
Due to the nature of the charges and the relation to the victim, it is this writer’s belief that the subject could benefit from attending a psychological assessment to rule out any mental health concerns. In addition to, undergoing structured treatment or counselling for sexually deviant behaviour and to address issues of sexually inappropriate behaviour.
Consequently, the subject appears to be a manageable risk to the community but, this writer is apprehensive with his total denial of the incident and the potential pool of future victims that he may be exposed to, within his family.
[26] There was one statement in the PSR of the Officer in Charge’s view of C.G. This statement was not admissible and was not considered in arriving at a fit and appropriate sentence in this case.
Impact on the Victim
[27] A Victim Impact Statement (VIS) was submitted by A.G.
[28] There is no doubt that the repeated sexual assaults by C.G. over 2 ½ years and the resulting birth of two children from these sexual assaults have had a profound effect on A.G. both psychologically and physically.
[29] A.G. is now isolated from her family and has little or no family support. The family had been led to believe, by C.G. that she had sexual encounters with other males which led to the first pregnancy and by C.G.’s continual denials that he engaged in sexual intercourse with A.G. Many of these family members continue to question the jury’s verdict and the incontrovertible evidence.
[30] A.G. is morose, having nightmares, having difficulty with relationships, has trust issues with other persons and suffers from depression and anxiety. She feels that she has lost her identity as a result of the sexual assaults by her father. She continues to feel unsafe, particularly when alone. She has gained weight due to the stress she has been under.
[31] Since the pregnancies, A.G. has lost both the children to a closed adoption. She has also had difficulty attempting to resume her life because she was never able to retrieve her passport or other documentation from C.G. As a result, she continues to have outstanding debt arising from the medical attention she had for the pregnancies and the subsequent health care. She had no bank account until recently. She is not able to return to school to supplement her grade 10 education.
[32] To summarize, C.G.’s actions have had a devastating effect on A.G. and her life. Her life will forever be impacted by C.G’s actions.
[33] She has had to testify twice about the sexual assaults by her father. Clearly, this was traumatic for A.G.
[34] There are two more victims arising from C.G.’s actions – N.G. and R.G. The extent of the impact on the children, if and when they find out about their parentage, will likely have a serious and profound impact on them. See SCJ ante, at para. 17.
Impact on the Community
[35] A sexual assault is the disregard of the sexual integrity of a person for the selfish purpose of sexual gratification by another.
[36] Incest is a particularly heinous crime. It is the abuse of a sacred trust and parental relationship by a parent for the parent’s own sexual gratification at the expense and disregard of the devastating effect on the parent’s own child. Further, the potential medical and negative impact on children born of incest, make this a very serious offence in our society. As has been said: This type of offence strikes at the very moral fibre of our society.
[37] As described in R. v. Woodward, 2011 ONCA 610 at para 72:
(1) Our children are our most valued and our most vulnerable assets.
(2) We as a society owe it to our children to protect them from the harm caused by sexual predators. [page103]
(3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators.
(4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow.
(5) Three such consequences are now well-recognized:
(i) children often suffer immediate physical and psychological harm;
(ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult;
(iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood.
(6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.
[38] In this case, unlike Woodward, the sexual abuse was by an adult against his own child, adds a further and significant layer of negative impact on the community.
Legal Parameters
[39] The penalty for sexual assault has no minimum and is liable to a term of imprisonment for up to 10 years.
[40] The penalty for incest has no minimum and is liable to a term of imprisonment up to 14 years.
Position of The Crown
[41] The Crown seeks a period of incarceration of 12 to 14 years.
Position of the Defence
[42] The Defence seeks a period of incarceration of 6 ½ to 8 years.
Case Law
[43] The Ontario Court of Appeal in R. v. D.D., 2002 44915 (ON CA), [2002] O.J. No. 1061, 58 O.R. (3d) 788 upheld a 9 year sentence where the accused had engaged in sexual activity with four young boys (unrelated to the offender) over a number of years. The Court of Appeal made the following statement regarding what constitutes a fit and appropriate sentence where an offender has sexually abused innocent young children:
[44] To summarize, I am of the view 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. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. (See, for example, R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327 in which the Supreme Court restored the 25-year sentence imposed at trial and R. v. W. (L.K.) (1999), 1999 3791 (ON CA), 138 C.C.C. (3d) 449 (Ont. C.A.) in which this court upheld a sentence of 18 and a half years imposed at trial.)
[45] The appellant was prepared to risk the lives of innocent children to satisfy his sexual cravings. His conduct was reprehensible and it must be condemned in the strongest of terms. The harm occasioned by the appellant and others like him is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear -- prey upon innocent children and you will pay a heavy price!
[46] The price in this case was a global sentence of nine years and one month, reduced to eight years and one month by reason of time served in pre-sentence custody. The sentence selected by the trial judge was within the appropriate range. Far from being too high, in my view, it fell at the lower end of the range of sentences for crimes as grave as those committed by the appellant.
[44] In R. v. C.M. 2008 ONCA 430 the Court of Appeal considered the sentence of an accused convicted of sexual interference, incest, sexual assault, sexual exploitation and assault causing bodily harm. The accused had sexually assaulted his daughter, beginning when she was 13 years old, for a three year period. The daughter became pregnant (and had an abortion), contracted a sexually transmitted disease and injury to an ear. The accused was sentenced to 10 years’ incarceration. The sentence appeal was dismissed.
[45] In R. v. M. (D.) 2012 ONCA 520 the Court of Appeal referred to the effect of D. D. as a “real sea change” and a “new range of sentences”. See paragraphs 26 and 28.
[46] In R. v. P.M. 2012 ONCA 162, the Court of Appeal once again dealt with the sentence of an accused who had pled guilty to incest. The accused had vaginal and anal intercourse approximately 10 times with his daughter, who was 13 or 14 years old. The accused was remorseful and had other medical issues. The daughter also wished for the father to have a lenient sentence (see para 134). The trial judge had sentenced the accused to five years. The Court of Appeal upheld that sentence:
[47] In this case, the trial judge imposed concurrent sentences of five years imprisonment for the sexual offences of incest, sexual interference and sexual assault committed against the respondent’s daughter. Standing on its own, the sentence of five years imprisonment was a lenient one, and at the bottom end of the range. That said, I have not been persuaded that the sentence was unfit having regard to the several mitigating circumstances including the lack of prior criminal record, the guilty pleas, the remorse, the commitment to treatment and the respondent’s mental illness. Since the respondent was separately charged with making child pornography and to avoid “double-counting”, in considering the sentence for the sexual offences I have not taken into account what would otherwise be the serious aggravating circumstance that the respondent filmed the abuse of his daughter.
(emphasis added)
[47] In R. v. D.M. 2012 ONCA 520 the Court of Appeal reviewed the authorities since D.D. and stated:
[43] Since the argument in this case, Rosenberg J.A. has addressed the issue of any perceived discordance between B.(J.) and D.D. in R. v. P.M., 2012 ONCA 162, 289 O.A.C. 352 (at paras. 43 to 47). He concluded that the B.(J.) decision must now be read with D.D. and that (at para. 46) “the court signalled in D.D. that the sexual abuse of a child will attract lengthy penitentiary sentences. In my view, where a father has committed repeated acts of incest with his daughter over many months…it will be highly unusual for the court to impose a penitentiary sentence of less than five to six years”. He also noted that amendments to the Criminal Code since the B.(J.) decision regarding aggravating circumstances and objectives of sentencing where children are sexually abused, are more consistent with D.D.: see ss. 718.01, 718.2(ii.i) and (iii).
[44] To conclude on the issue of the proper range of sentence, although sentencing is always an individualized process of decision-making, where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary.
[48] The British Columbia Court of Appeal in R. v. F.E.H. [1995] B.C.J. No. 2283 upheld a ten year sentence for incest, which had occurred over a long period of time and resulted in children being born, despite the mitigation of a guilty plea.
[49] In R. v. J.L.D. [2013] O.J. No. 1521 (O.C.J.), the court imposed an 8 year sentence for incest over 15 years, where a child was born of the sexual assault. The 8 year sentence was imposed despite the fact that the accused pled guilty and was 81 years old at the time of sentencing.
[50] In Woodward the Court of Appeal had the following to say as to the objectives of sentencing in circumstances where an adult has taken advantage of a young child:
[72] ……
- Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.
[73] The foregoing concerns inform the fundamental message that D. (D.) sought to convey, at para. 45:
The harm occasioned [to children] by [adult sexual predators] is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear -- prey upon innocent children and you will pay a heavy price!
[74] With respect, I do not believe that the price paid in Robinson or Lithgow was a heavy one. Indeed, I believe that the sentences in those cases were manifestly inadequate. Robinson predated D. (D.) and is not determinative for that reason; Lithgow did not refer to the principles in D. (D.). Had the principles in D. (D.) been applied, I believe that the appellants in those cases would have received substantially higher sentences.
[75] Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. The five-year sentence imposed on the appellant for the sexual assault he committed on the 12-year-old complainant is not excessive. In the light of the appellant's past criminal activity and the lack of any meaningful mitigating factors available to him, if anything, it was lenient. While acknowledging that trial judges retain the flexibility to fashion a fit and just sentence in [page104] the particular case, crimes like those committed by the appellant will typically warrant mid- to upper-level single-digit penitentiary sentences. The additional 18 months the appellant received for the offence of luring was entirely appropriate and did not render the global sentence excessive.
[76] In so concluding, I wish to emphasize that 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. 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.
Aggravating Factors
[51] The following are the aggravating factors in this case:
a) C.G. forcibly, with the assistance of police, brought A.G. to Canada and away from her supportive extended family, only to sexually abuse A.G. within a short time of her arrival. This left A.G. vulnerable and without family support which made C.G.’s actions much easier to keep secret and permit him to continue to sexually assault A.G.;
b) A.G. was between 16-17 years old when the sexual assaults started;
c) C.G. used physical force to restrain A.G. while he engaged in sexual intercourse. A.G. described C.G.’s use of holding her hands down and forcing her legs apart so that he could have sexual intercourse with her;
d) C.G. is A.G.’s father and as a result the sexual abuse of A.G. was a breach of one of the most sacred positions of trust and a flagrant breach of his parental duties and responsibilities;
e) A.G. did tell her aunt on one occasion about the sexual assaults by her father. However, C.G. used psychological manipulation of a young person to avoid his sexual assaults becoming public. C.G. exploited the vulnerability that he created by isolating A.G. in a new country and her isolation from the family, to keep his actions secret and continue his sexual assaults;
f) The sexual assaults on A.G. were regular and took place over approximately 2 ½ years;
g) A child was born of the sexual assaults in November 2010. Despite knowing the terrible consequences of his actions, C.G. proceeded to poison his family against A.G. despite knowing, or at least suspecting, that he was the father of the child. This left A.G. even more vulnerable and isolated. A more tragic situation for a young girl in high school pregnant with her father’s child is not imaginable; and
h) Despite the birth of a child in […] 2010, C.G. continued with his repeated sexual assaults on A.G. culminating with a second child born of his sexual abuse of his own daughter. A.G. had to deal with these two pregnancies by herself at such a young age. Now, A.G. has lost her two children to a closed adoption.
Mitigating Factors
[52] There is only one mitigating factor. C.G. has no criminal record.
[53] There has been no acceptance by C.G. that what he did to A.G. was wrong. C.G. is not remorseful.
Principles of Sentencing:
[54] The following are the relevant provisions of the Criminal Code with respect to sentencing:
- 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.
718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
Reasons:
[55] The aggravating factors are significant and numerous. On a spectrum of incest cases, it is hard to imagine a more heinous and disturbing set of facts relating to the offence of incest.
[56] The only mitigating factor is the lack of a criminal record. I am not persuaded that C.G.’s health issues cannot be adequately dealt with during incarceration or are such that warrant a reduction in what constitutes an otherwise fit and appropriate sentence.
[57] Rehabilitation is not a serious prospect given the lack of recognition and acceptance by C.G. that his conduct is wrongful and has been very damaging to a child and young person, his own daughter.
[58] Denunciation and deterrence are the primary factors given that the sexual assaults and incest was committed on a child under the age of 18.
[59] I do not accept the sentencing range for incest suggested by the Defence. The sentencing range for incest is, in my view, from approximately 6 years at the low end to low double digits incarceration at the high end (see D.D. at para 44, F.E.H. and C.M.). The authorities where lower sentences were imposed pre-date D.D.; do not involve incest; involve sexual assault with the accused’s child for short periods (see R.J.); or involve circumstances where there were significant mitigating factors such as a guilty plea (see P.M.), a joint submission, health issues (see R. J.) or a plea by the victim for a light sentence (see P.M.).
[60] The following circumstances warrant a sentence at the higher end of the scale:
a. The incest began when A.G. was 16 or 17 years of age, a vulnerable age and in vulnerable circumstances being separated from the rest of her family and friends back in Jamaica;
b. The incest was frequent and continued for approximately 2 ½ years;
c. Two children were born of the incest over a one year period;
d. Even when A.G. tried to tell someone, C.G. exploited A.G.’s vulnerability to isolate A.G. through threats of being left alone with no one to care for her. C.G. was not above using A.G.’s isolation and dependency to further his sexual appetite;
e. Violence was used to force his sexual desires; and
f. The devastating impact on A.G., psychologically and emotionally, and the potential impact on N.G. and R.G. in the future.
[61] In my view, a fit and appropriate sentence in this case is 10 years’ incarceration for the incest conviction.
[62] As for the sexual assault conviction, for the same reasons, a 6 year incarceration at the higher end of the range for this offence is a fit and appropriate sentence, concurrent with the sentence on the incest conviction.
[63] It is conceded that C.G. has spent 114 days in pre-sentence custody. As such, C.G. is entitled to 171 days of credit. I round this out to 6 months credit.
Ancillary Orders:
[64] The Crown seeks the following ancillary orders:
a) A DNA order under s. 487.055(3) of the Criminal Code;
b) A s. 109 of the Criminal Code weapons prohibition order for life;
c) A Sexual Offenders Information Registry Act order for life; and
d) A s. 743.21 of the Criminal Code non-communication order with A.G., while C.G. is in custody.
[65] The Defence takes no issue that these ancillary orders should be made. So ordered.
Final Decision:
[66] In conclusion, C.G. is sentenced as follows:
a) After credit for pre-sentence custody, 5 ½ years’ incarceration on the sexual assault conviction;
b) After credit for pre-sentence custody, 9 ½ years’ incarceration on the incest conviction, concurrent with the sexual assault sentence;
c) A DNA order under s. 487.055(3) of the Criminal Code;
d) A s. 109 of the Criminal Code weapons prohibition order for life;
e) A Sexual Offenders Information Registry Act order for life; and
f) A s. 743.21 of the Criminal Code non-communication order with A.G., while C.G. is in custody.
Ricchetti, J.
Released: August 14, 2015
COURT FILE NO.: CRIM (P) 630/13
DATE: August 14, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
C.G.
Defendant
REASONS FOR SENTENCE
RICCHETTI J.
Released: August 14, 2015