Her Majesty the Queen v. D.M.

Court File and Parties

Court File No.: 62/15 Date: 2016-09-23 Superior Court of Justice – Ontario

Between: Her Majesty the Queen Counsel: C. Kerr, for the Crown

- and -

D.M. Counsel: A. Schultz, for the Defendant

Heard: September 23, 2016

Reasons for Sentence

Publication of Any Information Tending to reveal the identity of the Complainant Herein is Prohibited under s.486.4 of the Criminal Code of Canada

Miller J.

Overview

D.M. was found guilty on May 20, 2016 by a jury of, between September 1, 2012 and October 28, 2014, Sexually Assaulting J.B.; Being a party to the Sexually Assault of J.B. together with M.M.; Sexually Interfering with J.B. and Inciting J.B. to Sexually Touch M.M.. He was found not guilty of a charge of Inviting J.B. to Sexually Touch him.

The Facts

(a) Circumstances of the Offence

[1] J.B., born […], 1998, is the son of M.M.. M.M. married D.M. July 3, 2010 when J.B. was 12 years of age. They lived together with M.M.’s two other children in Burlington. At some point when M.M. was pregnant with a fourth child, later born in […] of 2013, D.M. brought J.B. into a bedroom where M.M. was blindfolded and naked on the bed.

[2] J.B. testified that D.M. started to undress him, then to masturbate his penis until he got an erection. He then instructed J.B to have sexual intercourse with his mother. Partway through the act M.M.’s blindfold came off and she realized it was her son she was having sex with.

[3] After this incident, D.M. told M.M. that he had a video of the first incident. Sometime after that, he had J.B. again come into their bedroom and to have sex with M.M.. On this occasion M.M. knew she was having sex with J.B. from the beginning.

[4] These matters were reported to police after D.M. and M.M. had separated and while they were involved in a family law dispute. M.M. spoke of the two incidents involving J.B. to J.B.’s father, who contacted CAS. J.B. was subsequently interviewed by police.

[5] The two counts of Sexual Assault encompassed these incidents, as did the counts of Sexual Interference and Sexual Incitation. The count of Sexual Assault simpliciter and the count of Sexual Interference could also have encompassed acts of sexual touching by D.M. of J.B. on four other occasions J.B. described in his testimony. The count of Sexual Invitation on which Mr. D.M. was found not guilty was specific to two acts of fellatio, among the four other occasions of sexual touching described by J.B. in his testimony.

[6] From their verdict, I conclude that the jury had a reasonable doubt that the two acts of fellatio described by J.B. in his testimony occurred. There was no other legal basis on which they could have found Mr. D.M. not guilty of the charge of Sexual Invitation. I conclude, therefore, that the jury had a reasonable doubt that the sexual acts described by J.B. in his testimony that were not corroborated by M.M. occurred. I cannot find, beyond a reasonable doubt, that those incidents occurred.

[7] D.M. is therefore sentenced for the two incidents wherein he sexually touched J.B. together with instructing him to have sexual intercourse with his mother.

[8] The Crown’s position is that the Kienapple principle would apply in these circumstances and therefore asks that conviction and sentencing occur in respect of Count # 2, the s.272 charge, and that Counts # 1, 3 and 4 be conditionally stayed. Counsel for Mr. D.M. agrees.

(b) Circumstances of the Offender

[9] D.M. was born […], 1985. He has family support from his mother and sister. He has a youth record for assault for which he served 12 months’ probation and one adult conviction for Theft in 2004 for which he served two days of custody and was fined.

[10] Mr. D.M. completed grade nine but left school in grade 10. He indicates that Dyslexia and Attention Deficit Disorder hindered his school progress as did frequent bouts of disruptive behaviour. Mr. D.M. attributes his inability to hold any job for more than a few months to his Attention Deficit Disorder. A psychological report completed in 2011 would appear to confirm this although Mr. D.M. has taken no other steps toward applying for a disability pension.

[11] The psychological report, authored by Dr. Dalton, also indicates that Mr. D.M.’s overall cognitive functioning falls within the Borderline range of intellectual functioning. His academic functioning was found to be in the mid elementary school range. Further, the psychological testing continues to support a diagnosis of Attention-Deficit-Hyperactivity Disorder – Combined Type. Dr Dalton notes a marked potential for problems with acting out and anger control. He opines that Mr. D.M. is very likely to be impulsive, sensation-seeking, and reckless and to have a disregard for convention and authority. Further, the doctor describes Mr. D.M. as chronically angry with a high potential to express anger and hostility through verbal means, physical means, or both.

[12] This is consistent with Mr. D.M.’s behaviour as described by the witnesses at trial, including the offences. It is striking that these likely behaviours were identified before the offences were committed and that Mr. D.M. took absolutely no steps to address these behaviours despite strong recommendations having been made in May 2011 when the report was produced.

[13] Despite admitted use of marijuana on a daily basis and imbibing alcohol on a binge basis Mr. D.M. is not amenable to counselling because he feels he does not have issues that need addressing.

[14] Mr. D.M. indicates that his Attention Deficit Disorder has improved since he has been in custody and it is his intent to pursue employment as a general labourer, with the assistance of his step-father, once released from custody.

[15] A pre-sentence report was completed in which D.M.’s lack of insight and any concern for J.B. was noted. The author of the pre-sentence reported indicated that Mr. D.M. “would require and benefit from a clinical evaluation, counselling or treatment as warranted. The success of such intervention rests largely on the subject’s acknowledgement of responsibility and commitment to a course of intervention.”

Impact on Victim and/or Community

[16] A written victim impact statement was provided by J.B. it is to be noted that it is a victim impact statement in respect of the offences committed against him by both his mother and Mr. D.M.. In it, J.B. describes the loss of his ability to trust people; the separation, which is ongoing, from his siblings; his fear of reprisal from Mr. D.M. and the impact of the stress on his health.

[17] J.B. has been and is attending counselling and hopes to move forward in a positive way with his life. He is hopeful of resuming a relationship with his mother if she gets appropriate counselling but has no desire for any contact with Mr. D.M..

Legal Parameters

[18] Section 272 (1) (d) of the Criminal Code provides that every person who, in committing a sexual assault, is a party to the offence with any other person, is liable, if the complainant is under the age of 16 years, to imprisonment for life and to a minimum punishment of imprisonment for a term of five years.

Position of Crown

[19] The Crown takes the position that a sentence of imprisonment, less credit for any pre-sentence custody, of eight years is appropriate in all of the circumstances. The Crown also seeks a DNA order, a S.O.I.R.A order, a firearms prohibition and an order pursuant to s. 161 of the Criminal Code.

[20] The Crown’s position is that there are virtually no mitigating circumstances in this case and that the facts found by the jury would make Mr. D.M. a party to the offence of incest which is aggravating.

Position of Defence

[21] Counsel for Mr. D.M. takes the position that an appropriate sentence would be in the five to seven year range, less pre-sentence custody. He takes no position with respect to any of the ancillary orders sought.

[22] Counsel are agreed that Mr. D.M. has served 689 days of pre-sentence custody, for which he should receive, on a 1.5:1 basis, credit for 1034 days. This approximates two years, 10 months and one week of pre-sentence credit.

[23] Counsel for Mr. D.M. acknowledges that the facts found by the jury in support of Count # 2 would make Mr. D.M. party to incest, but submits the fact that Mr. D.M. was not biologically related to J.B. is a mitigating factor.

[24] Counsel for Mr. D.M. acknowledges that there is little else mitigating in this case but submits that Mr. D.M.’s lack of insight is attributable to his intellectual limitations and that a sentence in the five to seven year range will adequately address the principles of denunciation and deterrence while of sufficient length to provide an opportunity for Mr. D.M. to take advantage of programming available in the penitentiary system to work toward his rehabilitation.

Case Law

[25] Counsel for Mr. D.M. relies on the cases of R. v. K. (P.N.), 2004 ONCJ 240 and R. v. Cerda, 2008 ONCA 420 in support of his position. He acknowledges that these cases are somewhat dated.

[26] In P.N.K. the Court imposed a sentence of imprisonment for five years. The accused had sexually abused his stepdaughter over a period of five years. He pleaded guilty and expert evidence indicated he was attempting to reform and was capable of rehabilitation.

[27] In Cerda the Court of Appeal found that a conditional sentence was inappropriate for an accused who had been found guilty after trial of sexually abusing three young boys. The Court substituted a sentence of 14 months taking into consideration that the accused, at the time of the appeal, had served four months of his conditional sentence.

[28] The Crown relies on the cases of R. v. P.M., 2012 ONCA 162; R. v. Woodward, 2011 ONCA 610; R. v. K.R.J., 2014 BCCA 382; R. v. B. (O.), 2008 ONSC 5400 and R. v. M.M., 2016 ONSC 5477 – the Reasons for Sentence for M.M. for her participation in the offences before this Court. The Crown acknowledges that none of the cases can be said to be on all fours with the one before the Court.

[29] In P.M. a sentence of six years imprisonment was upheld in a case where the accused, who had pleaded guilty to multiple acts of incest with his 13 year old daughter and had videotaped the events, also suffered from PTSD as a result of his service in the military. There the accused had no criminal record, was remorseful and was evaluated as a low to moderate risk to reoffend. The Court of Appeal noted at paragraph 47 that five years was at the low end of the range.

[30] In Woodward a six and a half year sentence was upheld in case involving a single incident with a 12 year old girl involving internet luring. The accused was not in a position of trust and had a lengthy record for fraud. At paragraph 75 the Court of Appeal indicated that adults who seduce and violate young children must face the prospect of a significant penitentiary term and that crimes like the ones committed by that accused will typically warrant mid to upper level single digit penitentiary terms.

[31] In K.R.J. the British Columbia Court of Appeal upheld a six year sentence for incest with a three year old. The accused pleaded guilty.

[32] In O.B. a sentence of nine years was imposed for the sexual abuse of two stepdaughters over a protracted period of time. One of the victims became pregnant. The accused was found guilty after a jury trial. The Court noted that the accused was not amenable to treatment therefore engaging a concern with respect to protection of the public.

[33] M.M. was sentenced to five and a half years less credit for pre-sentence custody. A number of mitigating factors in that case are not present here. Mrs. M.M. pleaded guilty. She had no knowledge at the commencement of the first incident that J.B. was involved. The sentencing judge found that there had been significant progression in Mrs. M.M.’s insight into her responsibility for the offences and there had been a genuine expression of remorse. Further, Mrs. M.M. had sought and continues with counselling and other programs to assist her in her rehabilitation. I note that counsel for Mr. D.M. indicated that no such programming was available to Mr. D.M. on remand.

[34] The Crown also provided the very recent case of R. v. J. (M.), 2016 ONSC 3970 which found the mandatory minimum sentence in s. 272 to be unconstitutional. I am not bound by that decision and there is no such application before this Court, but I have taken it into consideration. I agree with the Crown’s submission that this is a case, given the applicable case law, which would warrant a sentence of at least five years even if there was not a mandatory minimum.

[35] The Ontario Court of Appeal in R. v. D.D., at paragraphs 33-36 indicated as follows:

… sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.

34 The overall message however, is meant to be clear. 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. 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 the other recognized objectives of sentencing.

35 We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

36 In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known.

[36] In R. v. D.M., 2012 ONCA 520, at paragraph 25 the Court of Appeal recognized the evolution of sentencing in this area because of the prevalence of such offences.

Mitigating Factors

[37] There is very little that can be said to be mitigating in D.M.’s case. I do not agree with the submission of his counsel that the fact that he was party to the incest committed by M.M. but was not biologically related to J.B. is mitigating. It is a distinguishing factor, but the social mores attaching to the crime of incest, in my view, are applicable here. Mr. D.M. knew that he was forcing J.B. to have sex with his biological mother.

[38] I do take into account Mr. D.M.’s intellectual limitations and the role that may have played with respect to his lack of insight.

Aggravating Factors

[39] Mr. D.M.’s criminal record is dated and unrelated and I do not consider it an aggravating factor here.

[40] The fact that there were two incidents is aggravating.

[41] The fact that Mr. D.M. forced J.B. to engage in sexual acts with his biological mother is aggravating.

[42] Mr. D.M. was in a position of trust in relation to J.B. and egregiously violated that trust.

[43] I note the comments of Feldman, J.A. in R. v. P.M., at paragraph 92:

Young women entering their teenage years face a myriad of confusing feelings regarding their bodies, their emotions, and their sexuality. It is difficult enough to deal with these issues with a judgmental and often cruel peer group. To exploit a young teenager as this man did reveals a level of amorality that is of great concern.

[44] I find these comments equally applicable to this case and to the young man forced to have sexual intercourse with his mother. Mr. D.M.’s role as instigator is clearly aggravating.

Principles of Sentencing

[45] I have considered the principles of sentencing set out at s. 718, s. 718.1 and s. 718.2 of the Criminal Code, including s.718.2 (b) which provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[46] I also pay particular attention to s. 718.01 which mandates that when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

Reasons

[47] There will be a conviction on Count # 2 the charge pursuant to s. 272 of the Criminal Code for being a party to a Sexual Assault of J.B. with M.M.. Counts # 1, # 3 and # 4 are conditionally stayed pursuant to the Kienapple principle.

[48] I find, in all of the circumstances, that an appropriate sentence is one of eight years’ imprisonment less credit for time served of 1034 days. This leaves a remaining sentence of 1,886 days.

[49] The offences here were egregious, involving a gross breach of trust for D.M.’s sexual gratification and the impact on the victim is likely irreparable. Mr. D.M. has expressed no insight and no empathy for the victim, who, even on Mr. D.M.’s version of events, was the victim of incest. Mr. D.M. is not amenable to any sort of treatment, and given the psychological traits identified in the report of Dr. Dalton, will, in my view, continue to pose a significant risk to the public absent restrictions on his freedom. If there is be any hope of rehabilitation it is only likely to occur while Mr. D.M. is incarcerated.

Ancillary Orders

[50] As s. 272 is a primary designated offence there will be an order authorizing the taking of the number of samples of bodily substances from D.M. that are reasonably required for the purpose of forensic DNA analysis, pursuant to s.487.051(1) of the Criminal Code.

[51] There will be an order prohibiting D.M. from communicating, directly or indirectly with J.B. during the custodial period of his sentence pursuant to s. 743.21 of the Criminal Code.

[52] There will be an order pursuant to s.490.022 requiring D.M. to comply with the Sex Offender Information Registration Act for life.

[53] There will be a mandatory order pursuant to s.109 (2) of the Criminal Code, prohibiting D.M. from possessing any firearm, other than a prohibited firearm or restricted firearm, any cross-bow, restricted weapon, ammunition and explosive substance for a period of 10 years and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

[54] D.M. will be prohibited for a period of ten years pursuant to section 161(1) of the Criminal Code from:

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;

(a.1) being within two kilometres, of any dwelling-house where he knows J.B. ordinarily resides or attending any place of employment or education known to him to be attended by J.B.;

(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

(c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless he does so under the supervision of a person whom the court considers appropriate; unless the children are his biological children and the contact is specifically permitted pursuant to a family court order.

[55] The Victim Surcharge is waived.

MILLER J. Released: September 23, 2016