Court File and Parties

COURT FILE NO: CR-14-30000757-0000 DATE: 20160603 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Brian Moreira for the Crown

• and -

R.R. W. Alejandro Munoz for Mr. R.R.

HEARD: April 8, 2016

Reasons for Sentence

CORRICK J.

[1] Following a trial, I found Mr. R.R. guilty of one count of sexual assault and one count of sexual interference. He appears before me today for sentencing.

The Facts

[2] Between March 1, 2004 and December 31, 2004, Mr. R.R. sexually assaulted his girlfriend’s young daughter on multiple occasions. The complainant was between eight and nine years old at the time. The assaults occurred when Mr. R.R. spent the night with the complainant’s mother at the complainant’s home, and later when the complainant, her two sisters and her mother moved in to Mr. R.R.’s home.

[3] The facts giving rise to the convictions are as follows. The complainant would often lie with her mother in the bed that her mother shared with Mr. R.R.. When her mother got out of bed to have a shower or do something in another room, Mr. R.R. assaulted the complainant. On more than a handful of occasions, Mr. R.R. put his hand inside the complainant’s underwear and rubbed her vagina. Other times, he placed the complainant on top of him and moved her around so that her vagina was rubbing his penis. This happened more than five times. Sometimes, he removed her pyjama pants before doing that, so that her naked vagina was rubbing against him. He wore underwear. He also kissed her and put his tongue in her mouth.

Positions of the Parties

[4] Mr. Moreira, on behalf of the Crown, seeks a penitentiary sentence of between three and five years. Mr. Munoz, on behalf of Mr. R.R., submits that a custodial sentence of between nine and twelve months is the appropriate disposition.

Circumstances of the Offender

[5] The details of Mr. R.R.’s background are set out in a pre-sentence report. He is 64 years of age. He was born in El Salvador where he completed a university undergraduate degree in Business Administration. He immigrated to Canada in 1990 to escape the civil unrest in El Salvador.

[6] Mr. R.R. is currently single. He was married in El Salvador, and has three adult children from that marriage, who reside in the United States. He has limited contact with them. He also has two children, who live in the Toronto area, with whom he has a relationship.

[7] In Canada, he found work as a forklift operator and shipper/receiver in a warehouse. He worked for the same company for 17 years until the company closed in 2007. Since then he has worked at odd jobs for cash. He currently supports himself from his RRSP savings and the occasional work he gets. A letter from the Creative Director of Dance Floor Décor indicates that Mr. R.R. has done casual work for that company for the past ten years and is regarded as hard working, personable and professional.

[8] Letters from San Lorenzo Anglican Church and St. Thomas More Parish speak of Mr. R.R.’s involvement in parish life and his volunteer activities at his church and community centre.

[9] Mr. R.R. has a criminal record. In 2001, he was convicted of two counts of assault, and received a suspended sentence and 18 months probation. These offences involved his former common-law spouse and his son. He successfully completed his probation.

[10] In 2006, he was convicted of two counts of sexual assault, and received a nine-month conditional sentence and two years probation. The complainants in those offences were the two older sisters of the complainant in this trial. These convictions post-date the commission of the offences for which Mr. R.R. is being sentenced today.

The Impact on the Complainant

[11] The Crown filed two statements, which were marked as exhibits. Exhibit #2 was prepared by the complainant. Exhibit #3 was prepared by the complainant’s older sister, who was one of the complainants in Mr. R.R.’s 2006 sexual assault convictions. Although neither statement is in the form prescribed by the Criminal Code for a Victim Impact Statement, Mr. Munoz did not object to the court receiving them. However, he did object to some of the content of the statements. His objections are well placed.

[12] Victim impact statements are meant to address the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence, and the impact of the offence on the victim: s. 722(1) of the Criminal Code. Exhibits #2 and 3 stray beyond the permissible parameters of a victim impact statement, and include information that is not admissible.

[13] Exhibit #2 includes statements addressed to Mr. R.R., criticisms of Mr. R.R., and vengeful comments, none of which describe the harm the complainant has suffered as a result of the commission of these offences, and should not appear in a victim impact statement. I have disregarded the impermissible content of this statement, which is contained in paragraphs #5 and 6.

[14] Exhibit #3 does not address the harm suffered by the complainant’s sister as a result of these offences, but rather addresses the harm suffered by the complainant’s sister as a result of the assaults Mr. R.R. committed against her. Mr. R.R. is not being sentenced for those crimes today. It too contains inappropriate content and, to that extent, I have disregarded it.

[15] It is the Crown Attorney’s responsibility to ensure that victim impact statements that are filed with the court comply with s. 722. Although not required, it would be helpful if victim impact statements were prepared on the prescribed form so that the author of the statement is directed to address the relevant issues.

[16] The statement written by the complainant addresses the impact of these offences and the emotional harm she has suffered as a result of Mr. R.R.’s conduct. The complainant wrote of being stripped of her innocence by Mr. R.R., a man she viewed as a father figure. These offences have affected her ability to trust men and to develop relationships. Testifying at Mr. R.R.’s trial required her to relive the experiences, which caused her to disengage from her daily activities, negatively affecting her education, social life and outlook.

The Principles of Sentencing

[17] In determining the appropriate sentence for Mr. R.R., I am bound to consider the sentencing principles set out in the Criminal Code.

[18] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to "contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society" by imposing sentences that have one of the following six objectives:

1. denouncing unlawful conduct;
2. deterring the offender and others from committing crimes;
3. separating offenders from society where necessary;
4. assisting in the rehabilitation of the offender;
5. providing reparations for harm done to the victim or to the community and promoting a sense of responsibility in the offender; and
6. acknowledgement of the harm done to victims and the community.

[19] Any sentence I impose must be proportionate to the gravity of the offence and the responsibility of the offender: s. 718.1 of the Criminal Code.

[20] Keeping in mind the purposes of sentencing, I am also required by s. 718.2 to consider the following principles when imposing a sentence in this case:

• the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• offenders should not be deprived of liberty if less restrictive sanctions are appropriate; and
• all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[21] Section 718.01 requires the court to give primary consideration to deterrence and denunciation in imposing this sentence because the complainant was under the age of 18. Although this section was not in force at the time Mr. R.R. committed these offences, it was simply a codification of a well-recognized principle in our jurisprudence at the time, and is applicable to this case.

Aggravating and Mitigating Factors

[22] I turn now to the aggravating and mitigating factors of this case. The following are the aggravating features of this case.

1. Mr. R.R. was viewed as a father figure by the complainant. He was her mother’s partner, and she and her sisters were living with him and their mother as a family. Mr. R.R. violated this position of trust and authority over the complainant.
2. The complainant was very young at the time, and these offences have had a profound and lasting impact on her life.
3. Mr. R.R. assaulted the complainant on multiple occasions over a period of ten months. This was not an isolated incident.
4. Mr. R.R. was not a first offender at the time he committed these offences. He had previously been convicted of two counts of assault in 2001.

[23] I have also considered the following mitigating factors:

1. The pre-sentence report is generally positive. Mr. R.R. successfully completed two periods of community supervision.
2. Mr. R.R. has for most of his life in Canada been steadily employed. He is considered by those who know him to be hard working and dependable. He is involved in his community through his church.
3. He has the support of his son and daughter, who report that he is a good father.
4. He has been on judicial interim release for nearly three years without incident. These offences occurred twelve years ago and pre-date the convictions in 2006 for sexual assault. Mr. R.R. has not been convicted of any further offences.

Sentences Imposed in Other Cases

[24] I am also required to consider sentences imposed on similar offenders for similar offences committed in similar circumstances. I turn to that now.

[25] I have reviewed the decisions to which Mr. Moreira and Mr. Munoz have referred me in support of their positions. Although the cases assist me in determining the governing principles that must guide my decision, a careful review of them demonstrates that sentencing is not an exact science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. The circumstances of any case, including this one, can be readily distinguished from any other case.

[26] Mr. Moreira relies on a number of cases that suggest that the appropriate range of sentence for an adult who sexually preys on young children is between three and five years in the penitentiary. These cases involve assaults that occur over many years and include acts of grooming, oral and anal sex and masturbation. For example, in R. v. D. D. [1], the accused assaulted four boys over a seven-year period. The assaults included acts of masturbation, oral sex, group sexual encounters and anal sex. In R. v. E. T. [2], the accused sexually assaulted the victim over a period of seven years. The assaults included kissing, fondling and oral sex, both performed by and on the accused. In R. v. C. B. [3], the accused sexually assaulted the victim over a period of years. During the assaults, which included digital penetration, the accused put his hand over the victim’s mouth. In R. v. G.A.G. [4], the accused sexually assaulted his son over a period of years. The assaults included mutual masturbation and fellatio. In my view, the facts of these cases are significantly more serious than the facts of this case.

[27] The cases relied upon by Mr. Munoz to support his position are also distinguishable from this case. None of them involve an accused person who stood in locus parentis with the victim, which is an aggravating feature of this case.

What is the Fit Sentence?

[28] Mr. R.R.’s conduct and the impact it has had on the complainant require a period of incarceration to meet the objectives of denunciation and deterrence. After considering all of the circumstances of this case and the relevant sentencing principles, I conclude that a fit sentence on count #2, the sexual interference count, is 18 months in prison to be followed by a period of probation. This sentence meets the objectives of deterrence and denunciation, and protects the public by having Mr. R.R. supervised in the community for a period of time following his release from prison.

[29] The period of incarceration shall be followed by probation for two years with the following conditions in addition to the statutory terms:

• report to a probation officer as directed;
• have no contact, either direct or indirect, with the complainant, her sisters or her mother;
• attend and actively participate in any counselling and rehabilitation programs as directed by the probation officer, including programs to address inappropriate sexual behaviour and counselling in a sexual offender relapse prevention program;
• sign any release forms necessary for the probation officer to monitor your compliance with any counselling or rehabilitation programs; and
• have no contact or communication with any child under the age of 16 years unless in the direct presence of another adult over the age of 21.

[30] In addition, there will be a mandatory weapons prohibition order pursuant to s. 109(1)(a) of the Criminal Code for 20 years, a DNA order pursuant to s. 487.05(1) authorizing the taking of a DNA sample and an order that Mr. R.R.’s name be added to the Sex Offender Registry for 20 years.

[31] Count #1, the sexual assault charge, is conditionally stayed in accordance with the principle in R. v. Kienapple [5].

Corrick J. Released: June 3, 2016