R. v. DaCosta, 2016 ONSC 7483

COURT FILE NO.: CR-14-8394

DATE: 2016/12/05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Dennis DaCosta

BEFORE: The Honourable Justice D.A. Broad

COUNSEL: Jennifer Caskie, for the Crown

Bruce Ritter, for the Defendant

HEARD: December 5, 2016

reasons for sentence

Orally:

Background

[1] The offender Dennis DaCosta was convicted on May 24, 2016, following six days of trial, of three offences relating to the sexual abuse of his common-law stepdaughter M.P. committed between the first day of April, 2010 and the 31st day of December, 2012. The offences include sexual assault contrary to s. 271 of the Criminal Code of Canada, touching for a sexual purpose a person under the age of 16 years contrary to s. 151 of the Criminal Code of Canada and inviting for a sexual purpose a person under the age of 16 years to touch the body of the offender contrary to s. 152 of the Criminal Code of Canada.

[2] The matter came before me for sentencing on September 14, 2016 at which time submissions on sentence were made by the Crown and the defence. On application of the defence, and consented to by the Crown, the passing of sentence was postponed until today’s date to permit Dennis DaCosta to attend to various family matters.

[3] At the request of the Crown, counts 1 and 3 in the indictment were conditionally stayed in accordance with the Kienapple principle and the sentencing submissions proceeded on the conviction on the second count, namely the charge under s. 151 of the Criminal Code.

[4] Before reaching these reasons for sentence I heard submissions on the request of the Crown, on behalf of the complainant, that the Order banning publication or broadcast under s. 486 of the Criminal Code of Canada be partially lifted to permit publication of the name of the offender. The Crown advised that the complainant had received independent legal advice with respect to her request. The complainant confirmed her consent orally in open court. For oral reasons, on the authority of the cases of R. v. Adams, (1995) 1995 56 (SCC), 44 C.R. (4th) 195 (S.C.C.), R. v. Klasges, 2010 ONSC 3419 and R. v. Radcliffe, 2010 ONSC 5179, I granted the request of the complainant, consented to by the Crown, and partially lifted the Order under s. 486 to permit publication of the offender’s name. The ban on publication of the victim’s name continues.

[5] The instances of sexual interference committed by Dennis DaCosta took place when M.P. was between the ages of 10 and 12. The sexual conduct escalated over time commencing with Dennis DaCosta inviting M.P. to touch his penis while driving in the family van, to sexualized conversations, to masturbation in the presence of each other, to mutual masturbation, to oral sex, first by him on her and then by her on him and to attempted intercourse. Aside from the initial incident in the family van, all of the incidents took place in the family room of the family home. The evidence at trial of the actual frequency of the sexual incidents was equivocal. However, for the purpose of sentencing, I accept that they were frequent and persistent over the charge period.

[6] The incidents of sexual abuse were discontinued by Dennis DaCosta when M.P. was 12 years of age and did not come to light until they were reported by M.P. to her mother in March, 2014, when she was 14 years of age. She then reported the sexual incidents to police.

[7] Dennis DaCosta first came into M.P.’s life when she was four years of age when she was living with her mother, who was separated from her father. Dennis DaCosta moved into the family home when M.P. was quite young. Two younger siblings were born of the relationship between M.P.’s mother and Dennis DaCosta. Following the birth of these children, M.P.’s mother and Dennis DaCosta began to drift apart from each other and her mother’s mental state declined, causing M.P. to spend a lot of time with Dennis DaCosta and to cling to him, often going to him for advice.

[8] When Dennis DaCosta entered the family home, contact with M.P.’s biological father ended. To that time, she had been seeing her biological father every second weekend. M.P. described her relationship with Dennis DaCosta as being very affectionate leading up to the first sexual contact between them. They would often lie on the couch together watching television and Dennis DaCosta would cuddle her, which she interpreted as fatherly affection. M.P. testified that the first sexual incident changed the relationship from that of a normal step-father who loved her to a feeling on her part of being used.

[9] Following the revelation of Dennis DaCosta sexual abuse on M.P., the family broke apart. Her mother and her two half siblings now reside out of the province.

Victim Impact Statement

[10] M.P. prepared and read aloud her compelling victim impact statement. It is impossible to do the statement justice in a brief summary. M.P. described how she has been impacted emotionally, physically and in relation to her education by the abuse that she suffered at the hands of Dennis DaCosta. She expressed her feeling of her childhood having been stripped away from her as he groomed her for his personal satisfaction and used her naïveté to take advantage of her body and mind. She described feeling “chained” in her relationships with friends, boyfriends and family members because of her inability to put herself first and to create healthy boundaries with those in her life. The biggest issue resulting from the abuse which she identified is her willingness to let others dominate her because she feels that she is not worthy of love, care and respect.

[11] M.P. stated that it breaks her heart to know that Dennis DaCosta put her in the situation of feeling that she took her step-siblings away from their father through his actions towards her. She said that although she would gladly like to forget Dennis DaCosta, she cannot because her body will not let her. Many nights a week she finds herself waking up in cold sweats and terror as she is subconsciously brought back to her abuser in her sleep. She related how Dennis DaCosta took from her what she will never be able to regain, namely her innocence, the ability to trust those around her and the untainted relationships she once had with members of her family.

Pre-Sentence Report

[12] Dennis DaCosta is currently 53 years of age and was born in the Azores, Portugal, immigrating to Canada with his family in 1964. His parents have been married for over 56 years and he has one sister. He stated that his parents and sister have remained constant supports for him throughout his involvement in the criminal justice system. Both Dennis DaCosta and his sister confirmed that their upbringing was positive and Dennis DaCosta denied any abuse in his formative years.

[13] Dennis DaCosta began his relationship with his ex-partner, M.P’s mother, in 2002 and began living together in 2004. His partner lost her job in 2012 which adversely affected their relationship. Two children were born of this union, presently ages 11 and 9 and he has a son aged 25 from a previous union. His relationship with his son became estranged and only recently they started to rebuild their relationship.

[14] When he was charged with the offences before the court in 2014, Dennis DaCosta’s relationship with M.P.’s mother ended and he has not had any contact with his younger children since November 2014. He struggles with the grief of being absent from his children’s lives coupled with financial ruin. He has been living with his parents since April 2016.

[15] Dennis DaCosta has a high school diploma and attended a year of college in business administration but left the course to work full-time. After approximately 15 years in the manufacturing industry, he has been employed in the insurance industry for 16 years. He is contemplating pursuing a bachelor of arts in business administration and applying for a director’s position at his current place of employment.

[16] Dennis DaCosta advised that alcohol is never been problematic for him, describing himself as a social drinker at most and, although he tried marijuana when he was younger, his use did not continue past his adolescence and he was never a regular user.

[17] Dennis DaCosta has had no prior involvement with the criminal justice system.

[18] The author of the presentence report related that Dennis DaCosta appeared very cautious in what he relayed and was mostly focused on presenting a perfect image. He did not accept responsibility for his actions and did not display any verbal or non-verbal indications of victim empathy and deflected blame on the victim. The author identified notable sexual offending risk factors as follows:

• hostility toward the victim;

• lack of victim empathy;

• lack of concern for others, namely the victim and her supports;

• collapse of family and peer supports;

• no acceptance of responsibility;

• mental health concerns;

• a vulnerable victim; and

• no sexual offending specific counselling undertaken.

[19] Dennis DaCosta advised the author of the report that he undertook one-to-one counselling to help deal with his family dissolution and to help him through his criminal justice involvement. He is taking medication to help with situational depression and anxiety symptoms. The author of the report noted that he did not accept responsibility for his offending behaviour, and should he do so in the future and be open to exploring the behaviours noted in the report through therapy and counselling, he would be deemed suitable for community supervision.

Other Evidence

[20] Dennis DaCosta filed a letter authored by his sister’s husband who has known him for over 35 years, describing him as a responsible caring son, uncle and father, who was always hard-working and devoted to his children. He described how Dennis DaCosta has, over the past few years, been very involved in the care of his parents who have health concerns.

Guiding Principles

[21] As set forth in s. 718 of the Criminal Code, the 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 just sanctions on the offender. The stated objectives of any sentencing decision includes denunciation, deterrence, rehabilitation, reparation for harm done, promotion of offender responsibility and acknowledgement of harm done.

[22] Section 718.01 specifically provides that when a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[23] Section 718.1 of the Code explicitly states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[24] The principle of parity requires a sentence to be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances, however, sentencing remains an individualized process such that sentences imposed for similar offences may not be identical (see R. v. Cox, 2011 ONCA 58 (Ont. C.A.) at para. 45).

[25] Under the introductory portion of s. 718.2(a), a sentence is to be reduced to take into account mitigating circumstances relating to the offence or the offender or increased to account for any aggravating circumstances.

[26] Evidence that the offender, in committing the offence, abused a person under the age of 18 years and evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim shall each be deemed to be aggravating circumstances, pursuant to paras. 718.2(a)(ii.1) and 718.2(a)(iii) respectively.

[27] As noted by Fuerst, J. in the case of R. v. C.(W.C.), [2009] O.J. No. 4705 (S.C.J.) at para. 28, the Ontario Court of Appeal has repeatedly emphasized that family members who perpetrate intrusive acts of sexual abuse against children to whom they stand in a position of trust should receive penitentiary terms beyond the minimum.

[28] More recently the Court of Appeal in R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 (C.A.) reaffirmed the following relevant considerations and principles applicable to these types of cases, derived from the earlier leading case of R. v. D.(D.,) (2002) 2002 44915 (ON CA), 157 O.A.C. 323 (C.A.) as follows, at para. 72:

(1) Our children are our most valued and our most vulnerable assets.

(2) We as a society owe it to our children to protect them from the harm caused by sexual predators.

(3) 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.

(4) 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 and often do follow.

(5) 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) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood.

(6) 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.

[29] At para. 73 the Court observed that these concerns inform the fundamental message that the case of D.(D.) sought to convey at para. 45:

The harm occasioned [to children] by [adult sexual predators] 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!

Position of the Crown

[30] The Crown seeks a sentence involving a penitentiary term of four to six years, together with the following ancillary orders:

(a) that Dennis DaCosta provide a DNA sample on the basis that the offence is a primary designated offence;

(b) a weapons prohibition under s. 109 of the Criminal Code for a period of ten years;

(c) that Dennis DaCosta be prohibited from being in a position of trust or authority towards persons under the age of 16 years pursuant to s. 109(1)(b) of the Criminal Code;

(d) that Dennis DaCosta comply with the Sex Offender Information Registration Act for a period of 20 years; and

(e) that Dennis DaCosta have no contact with the complainant M.P. directly or indirectly during the custodial period of his sentence pursuant to s. 743.21 of the Criminal Code.

[31] Ms. Caskie for the Crown argues that the principles in the case of R. v. D.(D.), (2002) 2002 44915 (ON CA), 157 O.A.C. 323 are applicable, and that denunciation, deterrence and the need to separate the offender from society are the predominant sentencing objectives in this case.

[32] Ms. Caskie points out that, although there are mitigating circumstances, namely that Dennis DaCosta has no previous record, there have been no allegations of any breach of bail conditions, and Dennis DaCosta has been a contributing member of society, it is not unusual to find these circumstances present in cases such as this involving sexual abuse of a child while in a position of trust.

[33] Ms. Caskie outlines a number of aggravating factors including the following:

(a) the age of the victim M.P. being 9 or 10 years of age when the abuse started;

(b) the vulnerability of the victim as the only child in the household was not a child of the relationship between her mother and Dennis DaCosta, her difficult relationship with her mother and her lack of a relationship with her biological father;

(c) that Dennis DaCosta was in loco parentis to M.P. in a position of trust, as he was her father for all intents and purposes;

(d) there was evidence of grooming and premeditation including sexualized conversations with M.P.;

(e) the length of time over which the abuse continued in that they were not isolated incidents but rather were frequent and routine over a two-year period;

(f) the nature of the sexual conduct including oral sex by both Dennis DaCosta and M.P. on the other, which is a significant aggravating factor; and

(g) the deeply serious and long-lasting effects on M.P. as related in her victim impact statement.

[34] Ms. Caskie argues, on the authority of the case of R. v. C.B. 2008 ONCA 486, [2008] O.J. No. 2434 (C.A.) at para. 57 that, while an offender’s protestations of innocence may not be treated as an aggravating factor, it is not improper for the court to consider, in determining a fit sentence, a pre-sentence report indicating that the offender showed a lack of insight into the effects of his behaviour on the complainant.

Position of the Defence

[35] Mr. Ritter for the defence does not disagree with the applicability of the principles referred to by the Crown. However he argues that, although the court must consider a penitentiary term, in the circumstances of this case a period of incarceration at the lower range of 3 to 4 years would be appropriate. The defence does not disagree with the ancillary orders sought by the Crown.

[36] Mr. Ritter points to a number of mitigating factors, namely that Dennis DaCosta has no prior criminal record, has been gainfully employed and a good provider to his family, was a well-respected member of society, maintained excellent responsible employment and had a positive upbringing. Mr. Ritter argues that Dennis DaCosta has already suffered greatly, having had his family ripped apart, and he has not been able to see his children for over two years which has been extraordinarily difficult for him.

[37] Mr. Ritter submits that the court is not in a position to make a finding that the incidents of sexual abuse were frequent or persistent, suggesting that the evidence indicated that they happened on a significantly less frequent basis than is ultimately testified to by M.P. at trial. He suggests that frequency of the incidents should not be used as an aggravating factor on sentencing.

[38] Mr. Ritter points to a number of cases, all of which post-date the case of R. v. D.(D.), in support of his submission that the appropriate sentence should be in the lower penitentiary range, namely:

R. v. R.L. [2013] O.J. No. 2488 (C.A.);

R. v. K.P. [2012] O.J. No. 3728 (S.C.J.);

R. v. D.M. 2012 ONCA 894, [2012] O.J. No. 6059 (C.A.);

R. v. C.B. 2008 ONCA 486, [2008] O.J. 2434 (C.A.); and

R. v. A.G. [2004] O.J. No. 4562 (C.A.).

Analysis

[39] As indicated, the Crown and the defence are not in disagreement on the guiding principles, and in particular that the objectives of denunciation, deterrence and separation from society are the primary sentencing objectives in a case of this nature.

[40] It is well recognized that determining a fit sentence is an individualized process.

[41] The two most recent cases cited by counsel, both of which are titled R. v. D.M. and both decided by the Court of Appeal in 2012, are instructive.

[42] The case of R. v. D.M. 2012 ONCA 520, [2012] O.J. No. 3616 (C.A.), decided August 1, 2012, involved prolonged sexual abuse and assault of a child between the age of 15 to 18, including penetration. The trial judge had imposed a sentence of three years, which was found on appeal to have been manifestly unfit and increased to seven years. Feldman, J.A., writing for the court, after conducting a review of the case-law, stated at para. 44:

To conclude on the issue of the proper range of sentence, although sentencing is always an individualized process of decision-making, where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary.”

[43] In the separate and subsequent case of R. v. D.M., 2012 ONCA 894, [2012] O.J. No. 6059 (C.A.), decided by a different panel on December 20, 2012, the Court of Appeal reduced a sentence from five years to four years where the accused molested his step-daughter over an eight-year period when the complainant was between 11 and 20 years old. The molestation consisted of sexual touching and digital penetration, but not intercourse.

[44] Laskin, J.A., writing for the court, observed that, in those cases where the Court of Appeal had either upheld or imposed penitentiary sentences of five years or more, one or more of the following aggravating circumstances has been present, namely: sexual intercourse (vaginal or anal), oral sex, incest, more than one victim, grooming of the victim, or other acts of physical violence or threatened physical violence to obtain compliance and keep the abuse secret.

[45] Justice Laskin also observed that the court has either upheld or imposed sentences of less than five years for seemingly more egregious conduct.

[46] Justice Laskin, at para. 73, noted that the frequency and duration of the appellant’s sexual abuse in that case demanded a severe sentence and reduced the sentence to four years in the penitentiary.

[47] In this case, I do not accept the defence submission that the evidence does not support the conclusion that the incidents of abuse were frequent and persistent. Although the evidence of frequency lacked precision and was somewhat equivocal, I find, for the purpose of sentencing, that it may nevertheless be characterized as frequent and persistent.

[48] I accept the existence of the remaining aggravating and mitigating factors outlined by counsel and referred to above.

[49] Although there was evidence of oral sex and grooming in this case, which are to be characterized as aggravating factors, I have also taken into account the ways in which Dennis DaCosta has already suffered significantly as a consequence of his actions, including the loss of his family and contact with his children, and the loss of his career, among others.

[50] I find a penitentiary term of four years to be a fit sentence in all of the circumstances of this case. As stated by Justice Laskin in R. v. D.M., 2012 ONCA 894, [2012] O.J. No. 6059 (C.A.), a term of this length may be characterized as a severe sentence, demanded by the frequency and persistence of the abuse, the egregious breach of trust and the devastating impact on the victim. A term of four years responds to the objectives of denunciation and deterrence and also falls within the ranges suggested by the Crown and the defence respectively.

Disposition

[51] Dennis DaCosta please stand.

(a) on count two, I sentence you to four years in the penitentiary. Counts one and three will be marked as conditionally stayed;

(b) I order you to provide such samples of your bodily substances that are reasonably required for the purpose of forensic DNA analysis for the DNA databank, on the basis that the offence under s. 151 of the Criminal Code is a primary designated offence;

(c) you are prohibited from possessing any firearm, and any cross-bow, restricted weapon, ammunition and explosive substance for ten years from your release from prison pursuant to s. 109 of the Criminal Code;

(d) you are prohibited from being in a position of trust or authority towards persons under the age of 16 years pursuant to s. 161(1)(b) of the Criminal Code for a period of ten years from the date of your release from prison;

(e) you are ordered to comply with the Sex Offender Information Registration Act for a period of 20 years; and

(f) you are ordered to have no contact with the complainant M.P. directly or indirectly during the custodial period of your sentence pursuant to s. 743.21 of the Criminal Code.

D.A. Broad, J.

Date: December 5, 2016