CITATION: R. v. W.T., 2016 ONSC 7776
Court File No. CR-13-522
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
W.T.
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE C.S. HILL
on August 17, 2016, at BRAMPTON, Ontario
PUBLICATION BAN
SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY OTHER INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INCLUDING THE NAMES OF OTHER CROWN WITNESSES, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY.
APPEARANCES:
L. Montague
Counsel for the Crown
M. Mattis
Counsel for W.T.
R E A S O N S F O R S E N T E N C E
INTRODUCTION
Following a trial, Mr. W.T. was found guilty of a sexual crime contrary to s. 151 of the Criminal Code. The victim, M.P., was the offender’s 13-year-old niece. It falls to be determined what a fit, just sentence is for this offence.
BACKGROUND FACTS
With the factual context of the sexual interference crime fully described in this court’s Reasons for Judgment, 2016 ONSC 3943, only summary reference is necessary. On the date of the offence, in a darkened bedroom on the second floor of her grandparents’ residence, M.P. was sexually assaulted by the offender, including digital penetration of the youngster’s vagina, followed by a brief act of sexual intercourse. The intercourse hurt the victim. The offender instructed M.P. not to tell anyone or he would be disgraced. At trial, the offender denied the allegations. There was a suggestion, rejected by the court, that M.P. had fabricated her account of sexual interference in an effort to have the offender and his family removed from her former bedroom and/or to free up the household to spend more time with her cousin Davi (ph).
VICTIM IMPACT EVIDENCE
What purported to be a Victim Impact Statement dated July 29, 2016 was submitted by the prosecution. This one-page document fails to comply with the mandatory directive of s. 722(4) of the Criminal Code, that a Victim Impact Statement “must be prepared in writing using form 34.2”. Further, the document suggests a particular sentencing disposition contrary to the direction in the form 34.2 form, “Your statement must not include, except with the court’s approval, an opinion or recommendation about the sentence.”
The courts have consistently instructed the prosecution to take responsibility for vetting improper victim impact evidence: R. v. Jackson (2002), 2002 CanLII 41524 (ON CA), 163 C.C.C (3d) 451 (Ont.C.A.), at para. 50; R. v. Berner (2013), 2013 BCCA 188, 297 C.C.C. (3d) 69 (B.C.C.A.), at para. 27; R. v. Perkins, [2013] EWCA Crim 323, at para. 64; Dimitrovska v. Western Australia (State), [2015] WASCA 162, at para. 70.
With the defence consenting, however, the court will receive as sentencing Exhibit 2 Tab 2, the document submitted by the Crown, and will disregard the final paragraph excised from Sentencing Exhibit number 4. The court does not expect to see this type of material filed again in noncompliance with the Code’s requirements.
The victim impact evidence discloses that M.P. has nightmares, trust issues, guilt feelings about the impact of her disclosure in dividing her family, and ongoing emotional distress resulting from the sexual assault.
THE OFFENDER’S BACKGROUND
Mr. W.T. is currently 49 years of age. He came to Canada from Grenada at age 19.
The offender completed high school and some postsecondary education. He has been steadily employed, principally in the construction field, and has operated his own company, T.J.’s Enterprise.
Mr. W.T. is married and has a four-year-old son. He is the economic supporter of the family.
The interview of collateral sources by the pre-sentence report author indicates that the offence was out of character for the offender. The pre-sentence report further includes this information:
“He believes someone else committed the offence, but the victim was certain that if she blamed him the family would believe her, given their history with the offender.”
“The subject does not accept responsibility for the offence and shifts blame onto the victim and her family.”
POSITIONS OF THE PARTIES
On behalf of the prosecution, Ms. Montague has submitted that a penitentiary term of four to five years should be imposed, together with identified collateral orders. Counsel emphasized the intrusive nature of the sexual misconduct, the breach of trust, the location of the interference taking place in the victim’s residence, and the harm occasioned to M.P. Crown counsel accepted that the cases referred to by counsel reflect a range of different and distinguishing facts.
On behalf of the offender, Mr. Mattis submitted that 15 to 24 months’ incarceration was the appropriate range in this case. Counsel referred to the offender’s lack of a prior criminal record, the circumstances of his family and employment, and the tenor of the PSR. Mr. Mattis noted that the s. 151 crime has attracted a wide range of sentence, and that harsher sentences often have been linked to aggravating factors such as repeated acts of abuse, planning and grooming, younger victims, and sexual episodes of longer duration.
THE APPROPRIATE SENTENCE
The fundamental principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code s. 718.1; R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089, at para. 12; R. v. Clouthier, 2016 ONCA 197, at para. 53.
Sexual interference with children, vulnerable members of the community, is a serious crime and an offence which is inherently violent. As mandated by s. 718.01 of the Criminal Code, primary consideration in sentencing must be given for this offence to denunciation and general deterrence. The aggravating facts of the offence are manifestly apparent, and include:
The offender was in a positon of trust in relation to his 13-year-old niece. He was a close uncle.
The victim was sexually assaulted in the home where she resided, a venue where she should have had safety and security.
A sexual crime involved the highly intrusive act of rape of a child by an adult.
The impact of the offence upon the victim personally, and the consequence of a family division.
In the balance, in mitigation, these factors must be considered:
Mr. W.T. is a first offender.
The offender has been steadily employed.
He has a stable relationship and a young son.
The PSR is positive.
In their submissions, counsel referred to a number of cases which, in the end, had very fact-specific circumstances tied to the sentences imposed.
“A plea of guilty is an important mitigating factor.”: R. v. Spencer (2004) 2004 CanLII 5550 (ON CA), 72 OR (3d) 47 (C.A.), at para. 38 (leave to appeal refused, [2005] SCCA 4). Where an offender maintains his or her innocence, he or she “cannot rely on remorse or an acknowledgement of harm to the victim” to reduce a sentence: R. v. Araya, 2015 ONCA 854, at para. 31 (conviction appeal allowed, 2015 SCC 11, [2015] 1 SCR 581). A sentencing court may take into account in the exercise of its sentencing discretion, not as an aggravating feature of sentencing, but as the absence of a factor entitling sentence reduction, and as relevant to whether restorative objectives can be satisfied in a particular case, an offender’s lack of remorse and acceptance of responsibility for his or her crime: R. v. Proulx, 2000 SCC 5, [2000] 1 SCR 61, at para. 113; R. v. Valle-Quintero 2002 CanLII 45123 (ON CA), [2002], 169 C.C.C. (3d) 140 (Ont.C.A.), at page 164; R. v. A., K. (1999), 1999 CanLII 3756 (ON CA), 137 C.C.C. (3d) 554 (Ont.C.A.), at page 570; and R. v. Valentini (1999), 1999 CanLII 1885 (ON CA), 132 C.C.C. (3d) 262 (Ont.C.A.), at paras. 81 to 83.
In the present case, Mr. W.T., as a mature offender, may not rely upon the mitigatory impact that a guilty plea, remorse, and acceptance of responsibility might otherwise have on the sentence to be imposed. That he wishes to appeal his conviction is irrelevant.
The s. 155 crime is punishable by a maximum of 10 years’ imprisonment. The offence covers a wide range of sexual misconduct against young persons. In this case, there was an unplanned and opportunistic advantage taken of a child for sexual gratification. The facts at trial establish that the sexual abuse was of short duration. That said, the offender used his superior size and the situation of a trust relationship to rape his 13-year-old niece in her home with the hope of non-detection, a very grave offence involving significantly blameworthy conduct.
Considering the totality of the circumstances, a penitentiary sentence is warranted. The offender is sentenced to two years’ imprisonment. There will be the following corollary orders:
Weapons prohibition orders pursuant to s. 109(2)(a) for ten years, and for life pursuant to s. 109(2)(b).
A DNA order is signed by the court on this date.
A Sex Offender Information Registration Act order pursuant to s. 490.013(2)(b) of the Code for a period of 20 years.
Given the background of the offender and the circumstances of the crime committed, the court declines to make the discretionary prohibition order provided for in s. 161 of the Criminal Code. Ms. Montague, any clarification required on your part?
MS. MONTAGUE: No, thank you.
THE COURT: On your part, Mr. Mattis?
MR. MATTIS: No, thank you, Your Honour.
THE COURT: Thank you very much to counsel for their helpful submissions.
MR. MATTIS: Your Honour, just one point before we....
THE COURT: I’m sorry?
MR. MATTIS: Just one point before you leave.
THE COURT: Yes.
MR. MATTIS: I’m just clarifying because, on my recall I have no pre-sentence custody because he went in the morning and was released the afternoon. I just wanted to confirm it before we close off.
THE COURT: I appreciate you doing that. Thank you very much.