superior COURT OF JUSTICE
File No. CR-14-220
HER MAJESTY THE QUEEN
v.
S.B.1
R E A S O N S F O R S E N T E N C I N G
and
S E N T E N C I N G
BEFORE THE HONOURABLE JUSTICE M. FUERST
on JULY 31, 2015 at BARRIE, Ontario
Appearances:
D. Chronopoulos Counsel for the Provincial Crown
L. Beechner Counsel for S.B.1
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
WITNESSES
IN-CH
CR-EX
RE-EX
No Witness Examinations
REASONS 3
SENTENCING 9
Transcript Ordered....................... AUGUST 5, 2015
Transcript Completed..................... OCTOBER 5, 2015
Ordering Party Notified.................. OCTOBER 5, 2015
FRIDAY, JULY 31, 2015
R E A S O N S F O R S E N T E N C I N G
FUERST, J.(Orally):
S.B.1 pleaded guilty to one count of sexual assault of his wife, and one count of sexual interference involving the touching of two of his daughters and his son for a sexual purpose.
Crown and defence counsel agree that these offences call for a significant jail sentence.
THE CIRCUMSTANCES OF THE OFFENCES
On one occasion in the late spring or early summer of 2008, Mr. S.B.1 touched his then ten year old daughter, J.B., in a sexual manner. He digitally penetrated her anus.
During a two week period in March of 2009, Mr. S.B.1 twice touched his then seven year old daughter, S.-A.B., in a sexual manner. The touching involved digitally penetrating her anus, and inserting his penis in her mouth.
On a date in March 2009, Mr. S.B.1 touched his then five year old son, B.B., in a sexual manner. He put his erect penis in his son's mouth.
On an occasion in early 2010, Mr. S.B.1 sexually assaulted his wife S.B.2. He pinned her on the bed and had vaginal and anal intercourse with her, over her protests.
Mr. and Mrs. S.B.2Mrs. S.B. separated in June 2010. They are now divorced.
The events came to the attention of the police in May 2013, when J.B. told her pastor what had happened to her. Mr. S.B.1Mr. B. turned himself into the police in August 2013.
Because Mr. S.B.1 had a preliminary inquiry, his children were required to testify about the abuse.
Victim Impact Statements were provided by all four victims, as well as by the B.' eldest daughter. They indicate that the children suffered difficulties including extreme anxiety on the part of J.B. that impacted her ability to attend school, fear on the part of S.-A.B., and anger on the part of B.B.. Their older sister reported feeling heartbroken for them. S.B.2 described being devastated by her childrens' disclosure of the abuse by their father.
THE CIRCUMSTANCES OF MR. (S.B.1)
Mr. S.B.1B.1 is now 51 years old. He has a prior criminal conviction for impaired driving. He is engaged to a woman with whom he has lived for five years. She remains supportive of him. He has a close relationship with his father, step-mother and siblings, who also provided letters attesting to their commitment to assist him.
Mr. S.B.1B.1 has a high school education. He worked at a variety of jobs in the past, including for an office furniture manufacturing company. In 2013 he was certified in the installation of solar panels, and worked in that field in 2014. He is currently unemployed, having left his job in anticipation of receiving a jail sentence.
Mr. S.B.1Mr. S.B.1 has an admitted history of alcohol and drug abuse. He reports that he stopped using drugs in 2009, and quit drinking in 2011. It does not appear that he has sought professional assistance for his substance abuse issues. He admitted to the author of the pre-sentence report that he has a preoccupation with sex, although he denies any sexual attraction to children. He contends that he committed the offences against his children while under the influence of drugs and alcohol. He told the author of the pre-sentence report that the use of drugs and alcohol incite sexual urges in him.
Mr. S.B.1Mr. S.B.1 has not completed any sex offender assessment, counselling, programming or treatment. He has, however, expressed the realization that therapy and counselling are in order for him.
In a letter filed on the sentencing hearing, Mr. S.B.1Mr. S.B.1 wrote that he is truly sorry for what he did to his children, that he loves them, and that he wants to make amends for his wrongdoing. He expressed this in open court today.
THE PRINCIPLES OF SENTENCING
The objectives of sentencing long recognized at common law have been codified in section 718 of the Criminal Code. They are: the denunciation of unlawful conduct; deterrence, both general and specific; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims or the community; and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.
Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.
General and specific deterrence and denunciation are the most important sentencing principles in sexual offence cases, particularly those involving sexual offences against children. The sentence imposed must reflect the gravity of the offences.
THE POSITIONS OF THE PARTIES
Crown and defence counsel jointly submit that Mr. S.B.1Mr. S.B.1 should be sentenced to four years in the penitentiary. They agree that there should be a DNA order, a SOIRA order for life, an order under section 161(a)(b), and (c) for a period of time, and a non-communication order under section 743.21 of the Criminal Code. They differ only as to the length of the section 161 order, with Mr. Chronopoulos seeking a three to five year term, and Mr. Beechner, one to two years.
ANALYSIS
The offences committed by Mr. S.B.1, particularly the abuse of his own children, are reprehensible. They reflect a number of significant aggravating factors. These include:
This is not a case of an isolated incident, but rather of multiple offences involving multiple victims.
Mr. S.B.1 was in a position of trust in respect of all of the victims. This is a statutory aggravating factor, as is the fact that one of the victims was his wife, and the fact that the other victims were children.
Mr. S.B.1 sought out his children for the purpose of assaulting them sexually while he was alone with them.
The sexually activity was intrusive in nature.
The children, in particular, have suffered emotionally from the abuse by their own father.
Mr. S.B.1 has not pursued any professional assessment or counselling for his very troubling behaviour, even though he has been out of custody for almost two years.
There are mitigating factors that must also be considered. They include:
Mr. S.B.1 pleaded guilty, which is a sign of remorse and willingness to accept responsibility for his wrongdoing. This is tempered somewhat by the fact that his children were required to testify at the preliminary hearing and describe in court what he did to them.
He expressed remorse in the letter provided on the sentencing hearing and again before me today.
He also expressed that he is willing to participate in programming, therapy and counselling.
He has strong support from his fiancée, parents and siblings, which will be of assistance in his reintegration into the community on his release from jail.
Mr. S.B.1, please stand.
SENTENCING
I have weighed the aggravating and mitigating factors, and considered the objectives of denunciation and deterrence. There can be no doubt that a substantial penitentiary sentence is necessary.
I accept the joint submission put to me by your lawyer and Crown counsel. On count two, I sentence you to four years in the penitentiary. I impose the same sentence concurrent on count one. I order you to provide samples of bodily fluids for DNA testing. There is a SOIRA order for life, and an order under section 161(a)(b) and (c) for three years. Under 743.21 of the Criminal Code, I order that while you are in custody you have no contact direct or indirect with S.B.2, B.L., J.B., S.-A.B., or B.B..
You can be seated.
Mr. Chronopoulos and Mr. Beechner, is there anything that needs to be clarified or....
MR. BEECHNER: Only pre-sentence custody Your Honour, pre-trial custody.
THE COURT: Yes. No one gave me a number.
MR. CHRONOPOULOS: Two days, Your Honour, that's what it is.
MR. BEECHNER: So the equivalent of three days Your Honour, if that can be noted on the indictment or on the warrant of committal.
THE COURT: So four years after three days of pre-sentence custody?
MR. CHRONOPOULOS: I have no issue if you give him credit.
THE COURT: So four years less three days?
MR. BEECHNER: Yes Your Honour.
THE COURT: All right.
MR. BEECHNER: Thank you.
MR. CHRONOPOULOS: Did Your Honour comment on the victim fine surcharge?
THE COURT: I did not. Are you asking for that?
MR. CHRONOPOULOS: I'm not sure if it's mandatory. I can't remember the offence date.
THE COURT: The offence dates, as on the indictment, are 2010, January to March 1st, 2010 and February 2008 to March 19, 2009.
MR. CHRONOPOULOS: You have discretion on all of them Your Honour.
MR. BEECHNER: I'm asking Your Honour to waive the victim fine surcharge, in the circumstances, Your Honour.
THE COURT: Given the lengthy penitentiary sentence, I am going to waive the surcharge.
MR. BEECHNER: Thank you Your Honour.
MR. CHRONOPOULOS: Thank you Your Honour.
MR. BEECHNER: I apologize to the staff. I think the reason why we're past the normal time is only my tardiness. Again, I offer my apologies.
THE COURT: They are very understanding and very professional and we all have days like this. If I hadn't left as early as I did, I probably would have been on the highway the same time as you.
MR. BEECHNER: Well that's a comfort Your Honour, thank you.
THE COURT: I have endorsed on the indictment, Mr. S.B.1 is sentenced on count two to four years in the penitentiary less three days for pretrial custody. The sentence is concurrent on count one. On both counts there is a DNA order, a SOIRA order for life, and a section 161 (a)(b) and (c) order for three years. There is also a section 743.21 order of non-communication with the persons named on the record. That takes care of it.
So, Madam Registrar will get the paperwork ready for signing in the next few minutes and then we're done. All right, so I'll give that back to you. I also have with me one of the exhibits on the sentencing hearing. I think that's everything then. All right, thank you all.
MR. BEECHNER: Thank you Your Honour.
THE COURT: Thank you to the staff for your help today. I wish everyone a pleasant long weekend.
C O U R T A D J O U R N S
FORM 2
Certificate of Transcript
Evidence Act, subsection 5(2)
I, Shannon Heryet, certify that this document is a true and
accurate transcript of the recording of R. v. S.B.1 in
the Ontario Superior Court of Justice, held at 75 Mulcaster Street,
Barrie, Ontario, taken from Recording
No.(’s)3811_02_20150731_140013_6_FUERSTM.dcr which has been
certified in Form 1.
OCTOBER 5, 2015 __________________________________
Shannon Heryet ACT #3389634078