CITATION: R. v. F.F., 2016 ONSC 5366
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
F.F.
Defendant
Kathy Nedelkopoulos, for the Crown
Tyler MacDonald, for the Defendant
HEARD: May 11, 2016
REASONS FOR SENTENCE
justice a.J. o’marra
1F.F. was found guilty after trial by jury of having sexually assaulted his two nieces M.A. and R.A.. M.A. was sexually assaulted between January 26, 1984 and January 25, 1987 when she was ages 11-13 years old. R.A. was sexually assaulted also when she was ages 11-13 years old between December 12, 1988 and December 31, 1990. During the time Mr. F.F. committed the sexual assaults he was approximately 22 to 28 years of age.
2He is here today to be sentenced.
Circumstances of the Offences
3The incidences involving both nieces were similar in nature. He would lie behind them on a couch in his family home and rub his erect penis against their behinds. He would also entice them to play a game he called the robot game in which he would ask them to fix parts of his body by rubbing them with their hands. In other incidences, he touched their breasts over their t-shirts.
4M.A. described three incidences. She testified that one time she and her uncle were watching television on the couch in her grandparent’s basement, where her uncle F.F. was living at the time. She was lying down sideways and he was behind her. He put his arm over her and his hand on her breast as he pulled her towards him. He began rubbing his erect penis against her butt. She became upset. She left and went upstairs, but said nothing.
5Other incidences involved a game he asked her to play he called the robot game. She was to pretend he was a robot and there were parts of his body that needed to be fixed. He would have her roll and rub her hands over his arms, legs and chest. She played the game two or three times and each time was the same except for the last. The last time he led her hand to his crotch area where she felt his penis. It was hard and erect. Again she left upset. As she was leaving he told her “this is our special game” and she was not to tell anybody about it.
6The last incident involved an occasion when he drove her in his car back to the house after taking her to a store to get ice cream and popsicles. She was wearing a t-shirt with some writing on the front. When he parked the car in her grandmother’s driveway he said he wanted to know what was written on the front of her shirt. He reached over with his hand he rubbed her nipple and pinched it. She was upset, but again she did not disclose what had happened.
7R.A., M.A.’a younger sister, said that on one occasion her uncle drove her to his apartment to pick up soft drinks for a family gathering at her parent’s home. When they arrived at his apartment he said he was going to lie down on the couch for a nap and asked her if she wanted to lie down as well. She lay in front of him with his arm over her side and he was up against her back side. She began to rub up against her behind and she felt his erect penis. She was upset and told him she wanted to go.
8He asked her if she wanted to play the robot game by rubbing parts of his body. He pointed to his arms and hand and penis area. She refused to play the game.
9The last incident occurred when she was approximately 13 years of age. Her uncle F.F. was married by then with a 3 year old daughter. His wife and child were living in his parents’ home. A birthday party was being held at the house for his three year old daughter. He drove R.A. to a store to pick up something up for a party. When they returned home he stopped in a grocery store parking lot. She was wearing a T-shirt with writing on the front. He said he wanted to know what it said and reached over with both his hands and grabbed her breasts. She became upset and cried. He told her not to tell anyone or they would get in trouble. However, on arriving back at her grandmother’s house she ran in and told her grandmother that her uncle F.F. had touched her. Her uncle said she was lying and denied anything happened. None of the adults in the family believed her including her mother.
10The incident created great discord within the family. R.A., who had some previous behavioural issues, was not believed. In the immediate aftermath R.A.’s mother packed her belongings and left her at the doorstep of the Children’s Aid Society. She was placed in foster care where she remained throughout her teen years. R.A.’s older sister, M.A. remained silent as to what happened to her having seen the family’s reaction to R.A.’s disclosure. The incidences were not reported to the police until November 2012 after the sisters spoke and felt compelled to report what happened to them.
Background of the Offender
11F.F., now 55 is married with two children, a daughter 30, and a son 15 years of age. He has worked steadily since he was a teenager and at present owns a small computer and IT sales business. Also, he works for a courier service as a pre-loader in its distribution centre. His income from his business and employment contributes approximately half of the household income. His wife contributes the other half.
12Counsel has submitted numerous letters of support for Mr. F.F. from family, friends and others, all of whom describe him as a kind, caring, hardworking father, husband and friend. He is involved in his children’s lives as well as the community. In terms of his family life, family members emphasize that without his continued financial support and guidance they will suffer. His wife, F.F.2 writes:
F.F. is our provider to pay for bills and help with mortgage payments…without his weekly pay, we are doomed. Without him we can’t go on living as well my mother suffers from osteoporosis and has trouble with mobility. I cannot afford to take time off to care for my mom and that’s why F.F. has early morning shift accommodated by UPS so he is home with her after 9:00 a.m. each morning. We (and she) cannot afford senior’s home assistance and that’s why we brought her into our home, as well as the fact that she is not capable of a self-sustaining lifestyle.
13His mother-in-law, E.D.S. writes:
Financially I cannot afford to live in an old age home. I suffer with osteoporosis, arthritis, asthma, heart problems, depression. I have difficulty walking; I depend very much on F.F. to take me to doctor’s appointment. Get around the home. He is building me a bedroom with a bathroom on the main level so I don’t need to do the stairs. Without F.F. at home for assistance, my daughter working, this family will not survive together. (See Exhibit No. 3).
Victim Impact Statements
14Both M.A. and R.A. presented victim impact statements citing the great emotional and psychological toll they have suffered over the years because of the sexual interference committed by the person they considered their favourite uncle and the family’s reaction of disbelief when R.A. initially disclosed and her being ostracized by the family as a result.
15M.A. in her victim impact statement stated the following:
The impact of sexual assault for me has been emotionally devastating, paralyzing and destructive to both myself and my family. It has impacted every area of my life and every part of myself.
Almost immediately after the sexual assault, I began feeling tremendous loss. Feeling like I lost so much as a child: childhood experiences, trust, perceived innocence, and a normal relationship with family members (especially with family members). Feeling like my personal boundaries were invaded as a child by someone I loved and trusted… Not having the protection of my father or mother, not having their trust and love as parents should provide their children. Those feelings continue to hold me back today as an adult, limiting me in my everyday life because of the impact of sexual assault… I lost the sense of feeling safe and secure as a child in my grandmother’s home, a place where we would often gather with the family…
It has been 33 years since I have spoken about the sexual assault on me at the hands of my uncle F.F.. These past 33 years have not been easy for me. My silence during these past 33 years has been emotionally disabling causing me nothing but emotional damage, self-destruction and dysfunctional relationships with my family members, my siblings, my parents, friends and past relationships.” (See Exhibit No. 1)
16R.A. in her victim impact statement stated that as a result of the sexual assaults she had a sense of betrayal, a loss of trust, the loss of a normal childhood and a relationship with her parents. She stated that it caused her a great emotional upheaval throughout her life. She wrote the following:
I have gone through a life time of therapy, hospital visits, self-destruction, self-hate, failed relationships, and mixed emotions with people who truly love me because of my trust issues. I live with depression, PTSD, and struggle daily to tell myself “it’s a good day”.” (See Exhibit No. 2)
Position of the Parties
17The Crown submits that Mr. F.F. should be sentenced to a period of incarceration in the upper reformatory range, 18 to 24 months. In addition, there should be ancillary orders requiring him to provide a sample for DNA analysis purposes, registration under Sexual Offender Information Registration Act (SOIRA) for 20 years, and a fiream/weapons prohibition under s. 110 (1) of the Criminal Code.
18The defence position is that Mr. F.F. should be sentenced to no more than 9 months incarceration to be served as a conditional sentence.
Sentencing Principles
19The principle sentencing objectives in imposing sentence for offences involving the sexual abuse of children are denunciation and deterrence of such conduct as cited in case law and now codified in s. 718.01 of the Criminal Code.
20Prior to the addition of s. 718.01 to the Criminal Code in R. v. D.D. (2002) 2002 CanLII 44915 (ON CA), O.J. No. 1061, Moldaver J.A. (as he then was) speaking on behalf of the Ontario Court of Appeal stated at para. 34:
Adult sexual predators who put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718 (a), (b), and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over other recognized objectives in sentencing.
21More recently, in R. v. Woodward (2011) 2011 ONCA 610, O.J. No. 4216, the Ontario Court of Appeal reaffirmed the relevant considerations and principles set out in D.D., and summarized at para. 72:
Our children are our most valued and most valuable assets.
We as a society owe it to our children to protect them from the harm caused by sexual predators.
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.
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 often and often do follow.
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) children who have been sexually abused are prone to become abusers themselves when they reach adulthood.
- 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.”
22Further, the Court in Woodward at para. 45 repeated “the fundamental message that D.D. sought to convey”, which is apt in this instance:
The harm occasioned to children by adult offenders 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!
23The message required, as a result of these grave concerns and the consequences for sexual interference of children is now recognized by Parliament in s. 271 of the Criminal Code wherein it states everyone who commits a sexual assault of a complainant under the age of 16 years is subject to a minimum punishment of a one year term of imprisonment. The provision was not extant at the time Mr. F.F. committed his offences and therefore not applicable. Although, it is instructive as to the seriousness with which such offences should be dealt.
Conditional Sentence
24At the time Mr. F.F. committed his offences the conditional sentence provision, s. 742.1 also was not available, as it is now. However, it is not precluded as a consideration in this instance as a result of the effect of s. 11(i) of the Charter of Rights and Freedoms which states:
s.11 (i) Any person charged with an offence has the right (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
25Under s. 742.1 of the Criminal Code a court may order a conditional sentence where (1) the offence does not call for a minimum term of imprisonment; (2) the court imposes sentence of imprisonment of less than two years; and (3) the court is satisfied that “serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 and 718.2.
26As there is no minimum term of imprisonment applicable at the time of the offences a conditional sentence could be imposed. The other criteria do not appear to be a bar in this instance. The position of counsel and the sentencing cases submitted by each indicate that such offences have been dealt with within the reformatory range - less than two years imprisonment. There is no evidence that Mr. F.F. would present as a danger in the community.
27The Supreme Court of Canada in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 directed that a conditional sentence is available for all offences in which the statutory prerequisites are satisfied. There is no presumption that a conditional sentence is inappropriate for any specific offence.
28While a conditional sentence may be statutorily available, the Supreme Court of Canada has also held that in cases of sexual assault of children committed over a lengthy period of time involving an abuse of trust, a conditional sentence will not constitute a fit sentence, absent exceptional circumstances.
29In R. v. R.N.S., 2000 SCC 7, [2000] 1 S.C.R. 149, the Supreme Court determined that a nine month conditional sentence imposed on appeal was inappropriate in the circumstances where the accused was convicted of sexual assault and invitation to sexual touching in relation to his step-granddaughter, which involved him fondling of the complainant’s vagina on a number of occasions without any vaginal penetration.
30Similarly, in R. v. G.L. (2003) 2003 CanLII 57437 (ON CA), O.J. No. 1719, the Ontario Court of Appeal stated at para. 7:
This Court has repeatedly stressed both the serious nature of sexual abuse against children and the importance of sentencing sexual offenders with the principles of denunciation and deterrence in mind. See R. v. Palmer (1985), 7 O.A.C. 348 (C.A.) and R. v. D.D. (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 at 797 (C.A.).
In R. v. D.R., 2003 CanLII 9127 (ON CA), [2003] O.J. No. 561 released February 24, 2003, this court said at para. 8:
This court has repeatedly indicated that a conditional sentence should rarely be imposed in cases involving the sexual touching of children by adults, particularly where, as here the sexual violation is of a vulnerable victim by a person in a position of trust. In addition, circumstances that involve multiple sexual acts over an extended period of time and escalating in intrusiveness generally warrant a severe sentence.
31In R. v. G.L. the offender was convicted of sexual assault and sexual touching of his thirteen year old sister-in-law over an eighteen month period. The acts involved kissing, touching her breasts and vagina over and under her clothing and digital penetration of her vagina. The Court of Appeal concluded that the sentence imposed, 10 months imprisonment and probation for 3 years was a fit sentence in the circumstances of an offender in a position of trust and a vulnerable complainant.
32Although a conditional sentence is statutorily available, I do not find this to have been one of those rare cases of exceptional circumstances in which a conditional sentence should be imposed.
33While the unlawful acts are not at the extreme end of sexual abuse, they have had a significant impact on the victim’s lives. Even the degree of sexual interference as in this case can have the effect of robbing the victims of their youth and innocence, tear families apart and leave lasting psychological damage.
Aggravating and Mitigating Factors
34In terms of aggravating factors I note the following:
In this instance there were two complainants, both between the ages of 11 to 13.
Mr. F.F., as an adult and uncle to the complainants, was in a position of trust. Even though he was not their caregiver they were left alone in his company by adults in their lives who trusted him as a family member with their children. The children trusted him. They have expressed a sense of betrayal of their trust as a result of his aberrant conduct.
There were at least five incidences of sexual assault, three involving M.A. and two involving R.A., committed over an extended period of time, 1984 to 1990.
His actions have caused significant psychological and emotional trauma to the two complainants and damaging reverberations for them and their family throughout their lives.
35In terms of mitigating factors, since Mr. F.F.’s dated criminal record for assault in1992, he has been an otherwise law abiding citizen. He has strong family and friend support, all of whom attest to his good character as a hardworking and supportive father, husband and friend. He has been gainfully employed throughout his adult life.
36In my view, while there are a number of mitigating factors, they are outweighed by the aggravating factors. As noted earlier, neither the circumstances the offences, nor the offender are rare or exceptional so as to justify a conditional sentence. The passage of time does not render inapplicable the principles of general deterrence and denunciation. A period of incarceration is required to give effect to the sentencing objectives of denunciation and general deterrence.
37It is unfortunate that as a result of the offender’s conduct as a young adult his present family will suffer. However, as aptly noted in Regina v. G.L., supra, at para. 9, even though imprisonment of the offender may have adverse financial consequences for him and his family, “the sentence of actual imprisonment was, and continues to be, the most appropriate disposition in this case, having regard to the principle of general deterrence and the need to express society’s condemnation of the appellant’s conduct”.
Sentence
38In this instance, in consideration of all of the factors discussed, I sentence Mr. F.F. to a period of six months imprisonment with respect to the offence against M.A. and a further period of six months imprisonment for the offence against R.A.. As the offences were committed during difference time periods with respect to each victim the sentences shall be served consecutively. In the result, Mr F.F. is sentenced to a total period of twelve months imprisonment.
39In addition, there will be an order pursuant to s. 487.051(1) of the Criminal Code that he provide such samples of his DNA as may be required for forensic analysis. Further, I order pursuant to ss. 490.012(1) and 490.013(2.1) of the Criminal Code that his name be added to the sex offender registry and that he comply with the Sex Offender Information Registration Act for a period of 20 years. Finally, there will be an order pursuant to s. 110(1) of the Criminal Code prohibiting him from possessing any firearm and related weapons and explosives cited therein for a period of 10 years.
A.J. O’Marra J.
Released: June 30, 2016
CITATION: R. v. F.F., 2016 ONSC 5366
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
F.F.
Defendant
REASONS FOR sentence
A.J. O’Marra J.
Released: June 30, 2016