ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-15-080-0000
DATE: 20151127
BETWEEN:
Her Majesty the Queen
Peter Leger, for the Crown
- and -
C.N.
Greg Deakin, for the Accused
HEARD: October 13, 14, 15, 16 and 19; and November 27, 2015
REASONS FOR SENTENCE
Conlan J.
I. Introduction
[1] C.N. is to be sentenced for sexually touching a very young boy.
[2] The accused was tried before me, without a jury, in Owen Sound on October 13, 14, 15, 16 and 19, 2015.
[3] C.N. was charged with one count of sexual assault. The formal charge read:
Her Majesty the Queen presents that C.N., on or about the 6th day of May, 2014 at the City of Owen Sound, Central West Region, did commit a sexual assault on C.K., contrary to section 271 of the Criminal Code of Canada.
[4] In addition to the sexual assault charge, C.N. was charged with one count of sexual interference. The formal charge read:
And further, that C.N., on or about the 6th day of May, 2014, at the City of Owen Sound, Central West Region, did for a sexual purpose, touch C.K., a person under the age of 16 years, directly with a part of his body, to wit; his fingers and penis, contrary to section 151 of the Criminal Code of Canada.
[5] The offences were alleged to have occurred while the accused was babysitting C.K., a boy who was just two years old at the time.
[6] In Reasons for Judgment reported at 2015 ONSC 6483, I found C.N. guilty of both charges.
[7] A presentence report was ordered. The sentencing hearing was today, November 27, 2015, in Owen Sound.
II. The Facts
[8] For the basic facts, paragraphs 80 to 82 of my Reasons for Judgment are reproduced below.
[80] There is no doubt in my mind that C.N., while babysitting the boy during the evening of May 6, 2014, touched the boy’s bum with his penis and ejaculated on the bed, leaving his DNA profile in the semen stain found on the boy’s fitted bed sheet. It is superfluous whether the accused also used his fingers to touch the boy’s bum.
[81] These were clearly circumstances of a sexual nature. The touching was done for a sexual purpose.
[82] I make no finding that there was penetration of the anus. I am unsure whether the boy’s diaper was on or off at the time of the sexual touching.
III. The Offender
[9] C.N. is currently 31 years old. He is single. He has a seven-year old son who currently lives with C.N.’s former partner (the boy’s mother).
[10] C.N. has one fairly dated and unrelated conviction on his record.
[11] As he is entitled to do, when being interviewed by the author of the presentence report, the offender did not accept responsibility for the offences. He showed no remorse. He essentially blamed his predicament on the victim boy’s mother.
[12] C.N. has a checkered employment history and limited education. He has some family support, although his father passed away in 2008, after battling cancer.
[13] The offender has been, in the past, a regular user of marihuana and, to a lesser extent, alcohol. He denies any substance abuse or mental health issues.
[14] C.N. has been in custody on these offences since his arrest on June 17, 2014 until his release on July 30, 2014 and then again from October 2, 2014 (when his surety revoked) until now. The parties agree that C.N. has spent a total of about 14.5 months in presentence custody.
IV. The Positions of the Parties
[15] Besides various ancillary Orders, the Crown requests the following sentence: three years’ imprisonment less the equivalent of 22 months presentence custody (14.5 actual months credited at the usual 1.5 days for every day spent in custody).
[16] The Crown emphasizes the sentencing principles of denunciation and general and specific deterrence.
[17] The Defence requests the following sentence: two years less one day in custody less the equivalent of 22 months presentence custody, to be followed by lengthy probation.
[18] The Defence focusses on the value of rehabilitation for C.N. and the fact that the sexual assault was an isolated incident and absent any planning or deliberation on the part of the offender.
V. Analysis
[19] On consent, the finding of guilt on the sexual interference charge is conditionally stayed pursuant to the Kienapple principle. A conviction is registered on the sexual assault offence.
[20] On consent, the following ancillary Orders shall issue: (i) a Sex Offender Registry Order for a duration of twenty years; (ii) a primary DNA Order; (iii) a section 109 Order regarding firearms and weapons for life; (iv) an Order that C.N. not communicate in any way with the victim boy or his mother while in custody; (v) an Order under subsection 161(1)(a.1), regarding the dwelling-house of the victim boy and his mother, for ten years; (vi) an Order under subsection 161(1)(a), regarding public areas, for ten years; (vii) an Order under subsection 161(1)(b), regarding employment, for ten years; and (viii) an Order under subsection 161(1)(c), regarding contact with children, for ten years.
[21] A babysitter sexually assaulting a child in his care is egregious criminal conduct.
[22] The impact on the young victim is largely unknown, however, the impact on his mother has been significant, as revealed in her Victim Impact Statement marked Exhibit 2 on the sentencing. She has lost trust in caregivers and has struggled to return to a normal and healthy life with her son.
[23] The seriousness of the offence committed against such a very young child and the breach of trust are the primary aggravating factors. Imagine leaving your child in the care of a neighbour and then discovering that the trusted caregiver, the babysitter, sexually assaulted your boy and ejaculated on his bed.
[24] Subsections 718.01 and 718.2(ii.1) and (iii) of the Criminal Code of Canada dictate that the abuse of a young child and a breach of trust are aggravating factors on sentencing.
[25] In mitigation, the offender has close to no criminal history. He was convicted in 2009 of one count of fail to attend Court.
[26] “Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price”. Denunciation and deterrence are the paramount sentencing objectives. R. v. D.D., 2002 44915 (ON CA), [2002] O.J. No. 1061 (C.A.), at paragraph 34.
[27] The Crown has filed a decision of the Court of Appeal where that Court increased the sentence from two years less one day in custody to five years in the penitentiary for an offender, a 25-year old babysitter with no prior criminal record, who pleaded guilty to some degree of sexual penetration of a five-year old child: R. v. Mino, [1985] O.J. No. 105.
[28] The Defence has filed a decision of the Court of Appeal for Ontario which upheld a sentence of 17 months’ imprisonment and 24 months’ probation for an offender who was found guilty after trial of licking the genitals of a young child whom he was effectively babysitting.
[29] Sentencing is a highly discretionary exercise. Nearly every court decision can be distinguished, more or less, on the facts.
[30] Having considered the circumstances of the offences and the circumstances of C.N., the principles of sentencing and the jurisprudence filed, I am of the view that the appropriate range of sentence in this case is thirty (30) to thirty-six (36) months in custody, less credit for time already served at the rate agreed to by counsel.
[31] I have decided that a sentence in the middle of that range, thirty-three (33) months, is fit in all of the circumstances.
VI. Conclusion
[32] The sentence of the Court is as follows. First, on consent, the ancillary Orders referred to above are made.
[33] Second, on the sexual assault conviction, C.N. is sentenced to a period of imprisonment of 33 months, less 22 months’ credit for presentence custody, for a further eleven (11) months in jail from today.
[34] Following the period of incarceration, C.N. shall be on probation for two years. All of the statutory conditions apply. The only optional terms that shall apply are that (i) the offender attend and actively participate in any counseling or treatment recommended by his supervisor, not terminate that counselling or treatment without prior written permission from the supervisor and sign all releases of information requested by the supervisor to monitor his progress in the counselling or treatment; (ii) C.N. shall report to the supervisor as required; and (iii) C.N. shall not have contact or communicate in any way with the victim boy or his mother.
[35] The usual victim fine surcharge will be imposed, with ninety (90) days to pay after C.N.’s release from custody.
Conlan J.
Released: November 27, 2015
COURT FILE NO.: CR-15-080-0000
DATE: 20151127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
C.N.
REASONS FOR SENTENCE
Conlan J.
Released: November 27, 2015