CITATION: R. v. W.R., 2016 ONSC 2362
COURT FILE NO.: CR-15-258-0000
DATE: 20160407
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Michael Martin, for the Crown
- and -
W.R.
Stephen Arnold, for the Accused
Accused
HEARD: April 7, 2016
REASONS FOR SENTENCE
Conlan J.
I. Introduction
[1] This is another depressing case of sexual abuse of a child.
[2] W.R. was tried before me, without a jury, in mid-February 2016. He had been charged with two counts of sexual assault, two counts of sexual interference, one count of invitation to sexual touching and one count of exposing his genitals, all against his step-daughter, S.S., who was at the time of the offences 12-13 years old.
[3] In Reasons for Judgment dated February 19, 2016, reported at 2016 ONSC 1243, I found W.R. guilty of all six charges.
[4] A presentence report was ordered, and the sentencing was adjourned to today in Owen Sound, April 7, 2016.
II. The Basic Facts Underlying the Findings of Guilt
[5] The following summary is taken from paragraphs 37 through 47 of my Reasons for Judgment, under the heading "The Criminal Allegations", which allegations were found by the Court to have been proven.
The Criminal Allegations
[37] According to the complainant, there were several incidents of sexual abuse committed against her by the accused at the home of W.R. and S.S.'s mother in Owen Sound.
[38] During the summer of 2013, S.S.'s mother was working at her own cleaning business. W.R. was unemployed.
[39] First, while visiting that home in the latter part of the summer of 2013, S.S. and her mother were lying on a mattress on the floor in the living room. They were watching television, the mother on her stomach and the complainant on her back. The accused was sitting on the nearby love seat. With his arm draped over the arm rest, his fingers lightly brushed S.S.'s breast for five or ten minutes. The complainant did not say anything at the time. She thought that it may have been accidental.
[40] Second, during the same extended summer visit, about a week or so after the first incident described above, S.S. was lying on her side on the couch in the living room. The accused was lying on his back on the nearby mattress on the floor. W.R. reached above and behind himself and, with the palm of his hand, rubbed the inner thigh of the complainant, from the area of her kneecap to just above her vagina, for five or ten minutes. Nothing was said by anyone during the incident. S.S.'s mother was not home at the time. In fact, nobody was except S.S., W.R. and perhaps the toddler boy, S.S.'s much younger half-brother (the son of the complainant's mother and the accused).
[41] Third, during the same extended summer visit, S.S. was lying on her back on the mattress on the floor in the living room. The accused was sitting on the nearby love seat but moved on to the mattress. He pulled her shorts down and, for five or ten minutes, penetrated her vagina with his fingers. Nothing was said by anyone during the incident. S.S.'s mother was not home at the time. In fact, nobody was except S.S., W.R. and perhaps the toddler boy.
[42] Fourth, during the same extended summer visit, S.S. was sitting on the love seat in the living room. The accused was on the nearby mattress on the floor. W.R. pulled out his erect, circumcised penis and told the complainant to suck it. She did. He ejaculated inside her mouth. S.S.'s mother was not home at the time. In fact, nobody was except S.S., W.R. and perhaps the toddler boy.
[43] Fifth, during the same extended summer visit, while nobody else was home, W.R. started kissing S.S. on the mouth in the upstairs hallway. She was pressed against the wall. He then brought her in to S.S.'s mother's bedroom and undressed her completely. He pulled out his erect penis. As she was standing up and facing the accused, he put his penis in between her thighs and started "humping" her. His penis never entered her vagina. He did not ejaculate.
[44] Sixth and finally, while visiting the Owen Sound home for New Year's 2013/2014, after midnight on December 31, S.S. fell asleep in the bedroom that she was occupying during that visit. She awoke in bed from the accused rubbing her stomach. He slid down her shorts and gave her oral sex (his mouth on her vagina). After an interruption while she went to the bathroom, he exposed his erect penis to her. There were other persons inside the house at the time, however, this allegedly occurred in the middle of the night, sometime between 1:00 and 3:00 a.m.
[45] According to the complainant, there were other incidents of sexual touching as well, such as the accused putting his mouth on her breasts.
[46] On occasion, W.R. would say to S.S. that he loved her and "don't tell anyone".
[47] S.S. first disclosed the alleged sexual abuse to a friend, then to her father, and then ultimately (in May 2015) to the police.
[6] In addition, to fully understand the findings, one should have reference to paragraphs 100 through 104 of my Reasons for Judgment, under the heading "Conclusion".
Conclusion
[100] There is no argument by the Defence that, if the evidence of S.S. is accepted by the Court, one or more of the charges is not proven beyond a reasonable doubt. In other words, this is not a case where there is any argument that the incidents as described by S.S. do not, even if believed by the Court, prove one or more essential element of one or more charge on the Indictment, as amended.
[101] I accept the evidence of the complainant. That evidence is credible and reliable. I find as facts that the accused brushed her breast, rubbed her inner thigh, digitally penetrated her vagina, invited her to suck his penis and then ejaculated in her mouth, humped her between the thighs with his bare penis, gave her oral sex (his mouth on her vagina), exposed his bare, erect penis to her and put his mouth on her breasts.
[102] In doing so, the accused sexually assaulted S.S. in the summer of 2013 and on January 1, 2014 (counts 1 and 4, as amended). Further, in the summer of 2013 and on January 1, 2014, he sexually touched and interfered with her with his hands, penis and mouth (counts 2 and 5, as amended). In addition, in the summer of 2013, he invited her to touch his penis with her mouth (count 3, as amended). Finally, he exposed his genitals to her on January 1, 2014 (count 6).
[103] The Crown has proven, beyond a reasonable doubt, every essential element of every offence facing W.R.
[104] I find the accused guilty of counts 1, 2, 3, 4, 5 and 6, as amended.
III. The Offender
[7] W.R. is currently 42 years old, single, has five children and has two prior entries on his criminal record – assault causing bodily harm (June 1999) and assault (December 2006), neither of which resulted in a jail sentence.
[8] The presentence report describes the offender as having had a fairly unremarkable childhood, although he reports to having witnessed some domestic violence between his parents and alcohol abuse on the part of his father. In his teens, however, he became more rebellious. He left his parents' home at age 15. At 17 years of age, he started his first long-term relationship and had three children with that woman. His alcohol abuse and his assault on her ended the union in 1999. The three children, now all adults, have no contact with the offender.
[9] W.R.'s second relationship ended in 2006, when he was convicted of assaulting his partner. That union produced a child, with whom the offender has no contact.
[10] W.R. then formed a relationship with the mother of the victim, S.S. That lady alleges that the offender was verbally and physically abusive towards her. They had a son together, the offender's fifth child. Since the couple separated, the offender has had no contact with the boy.
[11] W.R. advised the author of the presentence report that he has been prescribed medication for anger, mood and anxiety problems. About 18 months ago, he applied for disability benefits due to his alleged mental health issues. Although he has completed his grade 12 education, his work history is rather checkered. He has received Ontario Works benefits since he was in his twenties.
[12] The offender admits to having had an alcohol problem in the past, however, he told the author of the presentence report that he quit drinking years ago and never had a problem with other drugs. The mother of S.S. provided contradictory information in that regard.
[13] Although W.R. was polite and fairly cooperative with the author of the presentence report, he did not accept responsibility for the offences that he has been found guilty of. He intends to appeal. He blames the victim and/or her mother. He has every right to take those positions as he pleaded not guilty at trial. Those observations do not amount to an aggravating factor on sentence.
[14] The offender provided no collateral contacts for purposes of the presentence report. Those that were contacted by the author of the report spoke negatively about W.R. It is obvious that the offender is a deeply troubled man and is estranged from his entire family, including his parents, his children and his former partners.
IV. The Positions of the Crown and the Defence
[15] Both sides agree that the offender has spent 308 real days in pre-sentence custody, and they agree further that the said 308 days be credited as the equivalent of 462 days.
[16] In addition, both sides agree that the Court enter a conditional stay pursuant to the Kienapple principle on count 4. Not in agreement is whether the Court should also conditionally stay the finding of guilt on either count 1 or 2.
[17] Also, it is agreed that all of the convictions attract Sex Offender Registry Orders for twenty (20) years, except the exposure count (ten years). And it is common ground that each conviction attracts a primary DNA Order, except the exposure count, and further that each conviction attracts a section 109 Criminal Code firearms and weapons prohibition Order, again except the exposure count. The Defence does not oppose any of those ancillary Orders.
[18] The Defence, further, does not oppose the Crown's request for an Order under paragraphs (a), (a.1) and (b) of subsection 161(1) of the Criminal Code, for twenty years.
[19] Finally, there is no opposition to the Crown's request for a non-communication Order while in custody between the offender and four persons – the victim, the victim's mother, the victim's biological father and the victim's half-brother.
[20] The Crown recommends the following global sentence: four (4) years imprisonment less 462 days presentence custody, for a sentence from today of 998 days in the penitentiary.
[21] The Defence submits that the appropriate sentence is two years less one day in custody from today (which would amount to an effective global sentence of about three years and two-three months imprisonment when one takes into account the presentence custody), to be followed by lengthy probation.
V. Analysis
[22] As agreed by both sides, a conditional stay is entered on count 4.
[23] I disagree with the Defence that the Court ought to also conditionally stay the finding of guilt on either count 1 or 2, as amended.
[24] In accordance with the guidance offered by the Supreme Court of Canada in its decision in R. v. Prince, 1986 40, I have asked myself whether there is a sufficient factual nexus between those two counts so as to attract the Kienapple principle. There is not.
[25] As outlined in the excerpts from my Reasons for Judgment reproduced above, there were multiple incidents of sexual abuse that occurred in the summertime. The fourth incident, summarized at paragraph 42 of my Reasons for Judgment, constitutes the invitation to sexual touching offence (count 3). The third and fifth incidents combined, summarized at paragraphs 41 and 43 of my Reasons for Judgment, constitute the sexual interference offence (count 2). Even ignoring the first incident, summarized at paragraph 39 of my Reasons for Judgment (because the victim thought that it may have been accidental), that leaves the second incident which is summarized at paragraph 40 of my Reasons for Judgment. That incident certainly satisfies count 1, as amended – sexual assault. That incident is completely distinct from the conduct that constitutes the sexual interference offence (count 2). They are totally different transactions, separated in time and (regarding the "humping" conduct) location.
[26] As such, convictions are registered on counts 1, 2, 3, 5 and 6, as amended.
[27] The following are all unopposed and will issue accordingly: (i) the victim fine surcharge, with 180 days to pay upon release from custody, on each of the five convictions; (ii) a primary DNA Order on each of the four convictions that attract such an Order (counts 1, 2, 3 and 5); (iii) a section 109 Criminal Code firearms and weapons prohibition Order for ten years and life, respectively, as per paragraphs (a) and (b) of subsection 109(2), on each of the four convictions that attract such an Order (counts 1, 2, 3 and 5); (iv) a Sex Offender Registry Order on each of the five convictions (for twenty years on each of counts 1, 2, 3 and 5, and for ten years on count 6); (v) a non-communication Order while in custody between W.R. and the four individuals named by the Crown (except through legal counsel vis a vis the victim's mother and except in accordance with a valid family court order made after April 7, 2016 vis a vis the victim's half-brother); and (vi) a section 161(1) Order for twenty years, limited to the three paragraphs noted above, on each of the five convictions.
[28] I now turn to a consideration of the contested matter – the issue of the length of imprisonment.
[29] Sentencing is a highly discretionary and individualized process. Any sentence imposed must be proportionate to the gravity of the offences and the degree of responsibility of the offender. I must take into consideration the purpose and principles of sentencing outlined in section 718 and the following sections of the Criminal Code.
[30] In my view, the principles of sentencing most applicable to these facts and this offender are denunciation, general and specific deterrence and rehabilitation.
[31] There is a need for this Court to denounce the unlawful conduct of W.R. He abused his position of trust and authority in repeatedly assaulting his 12-13 year old step-daughter, all for his own sexual gratification.
[32] "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". R. v. D.D., 2002 44915 (ON CA), [2002] O.J. No. 1061 (C.A.), at paragraph 34.
[33] In terms of specific deterrence, although W.R. has no prior record for sexual-related crimes, he does have a history and has shown a pattern of assaulting those close to him. He needs to receive a message to keep his hands to himself.
[34] On the other hand, balancing against those principles is the fact that this offender remains capable of rehabilitation. With the medication that he now takes, and with his newfound interest in turning his life around and seeking out a relationship with his youngest child, perhaps there is some cause for optimism, however guarded that may be.
[35] In any event, this offender has never been sentenced to jail before. Generally speaking, a degree of restraint must be shown in imposing a first sentence of imprisonment, although of course the more serious the offences (as here) the more difficult it becomes to honour that general principle.
[36] The chief aggravating factors are (i) the abuse of the offender's position of trust and authority, (ii) the repeated nature of the sexual touching, (iii) the degree of the sexual abuse which included digital penetration, ejaculation and oral sex, (iv) the young age of the victim, (v) the offender's prior criminal record for violence, (vi) the fact that the offender warned the victim not to tell anyone, and (vii) the fact that these crimes have deeply troubled the victim in terms of her grades, her lack of trust in other persons and her behavior (see page 9 of the Presentence Report).
[37] To be frank, there are no mitigating factors to speak of, except (as submitted by the Defence) the fact that W.R. appears to have some mental health issues.
[38] The Defence relies upon the decision of the Ontario Court of Justice in R. v. A.J., 2010 ONCJ 589. The Court in that case imposed a global sentence of two years in the penitentiary. The accused pleaded guilty to having committed sexual offences against his step-daughter and step-granddaughter. The accused, in addition to pleading guilty, was much older than W.R., was much more of a productive member of society than W.R. and had no criminal record of any kind. With respect to the Defence, I do not find much utility in that decision.
[39] The same conclusion applies to the decision of the Court of Appeal for Ontario in R. v. Cerda, 2008 ONCA 438, also relied upon by the Defence. The short Appeal Book Endorsement simply does not give me enough facts to compare that case to ours.
VI. Conclusion
[40] In my view, the appropriate range of sentence for this offender on these facts is between four and five years in the penitentiary. I will accept the submission of the Crown, at the lower end of that range.
[41] In addition to the unopposed matters outlined above, for all of these reasons, I sentence W.R. to a global period of imprisonment of four years, less credit for 462 days presentence custody, for a balance of 998 days in jail from today. That is apportioned as follows: on count 3, four years imprisonment less 462 days credit for presentence custody for a balance of 998 days in custody from today; 998 days imprisonment, concurrent, on each of counts 1, 2 and 5; and twelve months imprisonment, concurrent, on count 6 (because the maximum sentence on the exposure charge is significantly less than on the other offences).
[42] Consecutive sentences could have been imposed because these were all separate and distinct transactions of criminal conduct on the part of the offender. Having said that, I would have had to temper the length of the sentence on each conviction in order not to offend the totality principle, and hence, the end result would have been the same.
[43] The offender is sentenced to 998 days in custody from today.
Conlan J.
Released: April 7, 2016
CITATION: R. v. W.R., 2016 ONSC 2362
COURT FILE NO.: CR-15-258-0000
DATE: 20160407
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
W.R.
Accused
REASONS FOR SENTENCE
Conlan J.
Released: April 7, 2016