Court File and Parties
COURT FILE NO.: 14-SA5033 DATE: 2016-09-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN J. Daller, for the Crown
- and -
N.F. B. McGarry, for the Defendant Defendant
HEARD: September 6, 2016
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in these Reasons for Sentence as the complainant may not be published, broadcasted or transmitted in any manner. These Reasons comply with this restriction so that I can be published.
REASONS FOR SENTENCE
RAY J.
1. Overview
[1] On February 25, 2016, I found the offender guilty of five counts of sexual offences relating to the offender’s granddaughter when she was a child (2016 ONSC 1280). I ordered a presentence report and a sexual behaviours assessment. It was to have come back before me June 30, 2016, but was adjourned to today because of medical problems facing the offender that prevented him from attending court. A medical report was filed.
2. The Facts:
(a) Circumstances of the offence
[2] The offender was N’s grandfather and had ready access to N. When she was 7 or 8, the offender took her up to her bedroom during his visit to her home, had her remove her clothes while he pulled his trousers down to expose his penis, and had her sit on him. There was no penetration.
[3] In December, 2011, N was 14. In the late evening during a family and friends evening to which the offender had been invited, the defendant was lying on the sofa behind N and fondled her breasts under her top, and her vagina. N’s father came into the room, and had the offender removed.
(b) Circumstances of the offender
[4] The offender is 74 years old, retired, and lives alone. A presentence report describes him as a first time offender who denied the offences and maintains his innocence. He emigrated from the Philippines fifteen years ago and most of his family remains there. The family that is here has ostracized him since the incidents involving his granddaughter. As a result there were no collaterals available for the probation supervisor to interview. He has difficulty with English.
[5] The offender underwent a sexual behaviours assessment that concluded he was at low risk to re-offend; and that his prognosis is good even though he did not admit to the offences during the assessment process. Although, the offender admitted during the assessment that he was drunk and “does not remember the circumstances in detail”. Dr. Federoff observed: “In my opinion, (the offender) should avoid any unsupervised contact with children of either sex. The dangers of disinhibited behaviours would be further reduced by avoidance of alcohol.”
(c) Impact on the Victim and/or Community
[6] A victim impact statement describes in touching detail the impact the assaults have had on her. She speaks of her self-esteem having been affected, along with her ability with relationships. She has had repeated nightmares concerning her grandfather; and is angry that he caused her to be estranged from him.
3. Positions of Crown and Defence:
[7] The Crown seeks a global sentence of 4 to 5 years plus a number of ancillary orders. The defence does not take issue with the ancillary orders, but seeks a sentence in the 8 to 12 month range on the basis of the offender’s age, health problems, and English language difficulties. Both Crown and defence are in agreement that a conditional stay should be imposed concerning Counts 6 and 8 under the Kienapple principle.
4. Case Law:
[8] I was referred by the Crown to the following authorities: R. v. D.D., , R. v. I.F., 2011 ONCA 203, R. v. Woodward, 2011 ONCA 610, R. v. DM, 2012 ONCA 894, R. v. CC, 2015 ONCA 59. The defence referenced a number of authorities but with the following as particularly relevant: R. v. E.R.F., [2009] O.J. No. 994 (Ont. S.C.J.), R. v. J.R.L., [2001] O.J. No. 5785 (Ont. S.C.J.), leave to appeal dismissed [2002] O.J. No. 2397 (ONCA).
[9] These authorities recognize the seriousness of sexual offences on very young children by persons in a position of trust through the imposition of penitentiary terms even for first offences. They also recognize that other factors may require a lower sentence.
5. Mitigating and Aggravating Factors:
[10] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances.
[11] Mitigating factors are to be found on a balance of probabilities, while aggravating factors are to be considered after a finding beyond a reasonable doubt. Mitigating and aggravating factors are only those that are related to the gravity of the offence or the moral blameworthiness of the offender. s. 718.2 of the Criminal Code.
[12] Evidence that the offender abused someone under the age of 18 is deemed to be an aggravating circumstance, as is abuse by someone in a position of trust.
[13] True remorse and acceptance of responsibility is a mitigating factor. While a lack of remorse is not an aggravating factor, an absence of remorse is not a ground for leniency.
6. Principles of Sentencing:
[14] The fundamental purpose of sentencing and its objectives are denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, making reparations and promotion of a sense of responsibility in the offender. s. 718 of the Criminal Code.
[15] When trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender’s prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society’s well-being and the well-being of our children must take precedence. R v Woodward, 2011 ONCA 610 at para. 76.
[16] A sentence must be proportionate to the gravity of the offence and the moral blameworthiness of the offender. s. 718.1 of the Criminal Code.
[17] Consideration must be given to similar sentences for similar offenders for similar offences in similar circumstances. s. 718.2(b) of the Criminal Code.
[18] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing justice sanctions that have one or more of the following objectives:
i. to denounce unlawful conduct; ii. to deter the offender and other persons from committing offenses: iii. separate offenders from society, where necessary; iv. to assist in rehabilitating offenders; v. to provide reparations for harm done to victims or community; and vi. to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.
[19] The process of analysis requires that the offence first be placed in a category. Secondly, the range of sentences is identified for that category to referenced texts and judicial decisions. Lastly, the sentence is placed at the appropriate point according to all of the circumstances.
7. Reasons:
[20] Sexual offences against children and young people fall into a different category and are treated differently because of society’s heightened concern and disgust at the lifelong harm that is suffered by young victims as a consequence of a few seconds or minutes of self-serving pleasure by offenders. The statements from the victim in this case not only gave her an opportunity to try to put closure on these tragic events, but also to assist us in understanding the nature and extent of the harm. Their families have been fractured and turned upside down, trust of family members was betrayed, and lives have been altered by the defendant’s actions. It is an aggravating factor that she was a young girl victimized on two occasions over a long period of time.
[21] Society and the courts take seriously these offences particularly when a breach of trust is involved. It too is an aggravating factor. He was trusted by the victim and by other family members because he was her grandfather. That trust gave him unique access to the victim, which would not otherwise have been the case. He not only abused the trust that was placed in him, but he altered forever the way the victim will ever again view an adult male, particularly a family member, with their own children. The family will never be the same.
[22] While the offender has been found to be at low risk to reoffend, it was recommended that he not be unsupervised in the presence of young people- both male and female. This is not a mitigating factor. His health issues and difficulty with English and French will undoubtedly make a jail sentence difficult. I do not consider them to be mitigating factors, but nonetheless relevant to fashioning an appropriate sentence. There are no other mitigating factors.
[23] Because of the abhorrence of these types of offences, deterrence and denunciation are the driving principles that I must consider in passing sentence. The offender has no insight into his criminal conduct, and therefore I do not consider, and it was not argued, that I should take rehabilitation into account. In addition, I consider that section 161 prohibition orders of the Criminal Code are important because of the offender’s failure to demonstrate insight.
[24] I accept that in this case a 3 year global sentence is appropriate in recognition of the seriousness of the offences; the harm to the victim and the family; and the offender’s health and language issues. A penitentiary term is necessary.
8. Ancillary Orders:
[25] The following ancillary orders are made: a DNA order, SOIRA order for life, section 109 weapons prohibition of the Criminal Code for 10 years, a section 743.1 non-contact order of the Criminal Code with the victim while he is in jail, and a section 161 order of the Criminal Code prohibiting him from attending public swimming pools, being within 250 metres of the victim, or seeking a position involving trust where he would be in contact with young children after his release.
9. Final Decision
[26] Count 4: 3 years,
[27] Count 5 and 7: 3 years each concurrent to Count 4.
[28] Counts 6 and 8: a conditional stay is entered.