R. v. P.C., 2016 ONSC 840

R. v. P.C., 2016 ONSC 840

COURT FILE NO.: 13595/14

DATE: 20160324

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

P.C.

Brenda Green, for the Crown

Ingrid Grant, amicus curiae for the Court

HEARD: July 20, 21, 22, 23, 24, 27 and August 4, 5, 6 and 7, 2015

PUBLICATION RESTRICTION NOTICE

Pursuant to subsection 486.4 of the Criminal Code, there is a ban

on disclosing the name of any person involved in the proceedings

as a party or a witness or any information likely to identify any

such person. This judgment complies with this restriction so that it

can be published

REASONS ON SENTENCE

GILMORE j.

Overview

1P.C. was convicted of one count of sexual assault and one count of sexual interference with respect to his granddaughter, K.L. The sexual assault took place in 2006 when K.L. was 10 years old. The accused advanced two defences at trial. First, he defended the count of sexual assault on the basis that he mistook his granddaughter for his girlfriend. With respect to the offence of sexual interference, he claims that he was too intoxicated to understand what he was doing.

2In the course of my Reasons for Judgment I rejected the accused’s evidence and accepted that of K.L., which was that on the evening in question she was alone with her grandfather at his trailer. She woke up at some point during that evening on the couch naked, next to her grandfather, but does not remember how the couch was pulled out into a sofa bed. She was then transported to the accused’s bedroom and awoke the next morning to find that she and the accused were naked, and the accused was attempting to penetrate her vagina with his penis. It was unclear from the evidence; however, I found that there was some penetration, even a nominal amount given that K.L. experienced some pain. The defence of mistake of fact was rejected on the grounds that the accused’s evidence was unreliable, and that the differences between P.C.’s girlfriend and K.L. at the time with respect to weight, height and general appearance were too different for there to have realistically been any mistaken identity. The court also had concerns about the manner in which the defence of mistake of fact arose, in that P.C. always denied that there had been any sexual contact whatsoever until trial, at which point he advanced the defence that there was contact but he had mistaken his girlfriend for K.L.

3The defence of intoxication was rejected on the grounds that the accused gave certain evidence which made it clear that he was not so intoxicated that he lacked the required intent to commit the offence of sexual touching.

The Background Facts

Pre-Sentence Report

4P.C. was interviewed by a probation officer with respect to a Pre-Sentence Report (PSR) dated October 19, 2015. That report set out that P.C. was born and raised in the Peterborough area and was adopted when he was a year old. His adoptive parents are now deceased. He has one younger sister who was also adopted, but P.C. and his sister have never had a good relationship. P.C. spoke negatively of his sister and his entire extended family. At one point he described them as “a bunch of jackasses” and added “I gave them everything. I’m done giving, they slit my throat and didn’t give me a chance to explain, just ran to the police after all I’ve done for them”. The PSR indicated that P.C. does not have relationships with any of his family, aside from his current wife to whom he has been married for approximately two years.

5While P.C. described his relationship with his wife Ruth as a healthy one, Ruth told the probation officer that her role as surety to P.C. had left her isolated from her family, and she was under significant stress not only as P.C.’s surety but because of his health she is responsible for the majority of household chores and property maintenance. She was overwhelmed at the thought of continuing these responsibilities and found the court process frightening. The probation officer noted that P.C. made no mention of the emotional and physical toll all of this appeared to be having on his wife.

6P.C. worked for a local automotive factory for approximately 32 years and has been retired since 2005 and living on a pension. The evidence at trial was that P.C. had many injuries during his work life and spent significant periods of time on disability.

7P.C. was candid that he has had addiction issues, including alcohol and drugs throughout his life. He stopped drinking shortly after he was charged with these offences, as he believed his alcohol use combined with prescription drugs was to blame for the offence. He has used marijuana in the past but has not done so since being on bail.

8P.C. described to the probation officer his significant health problems, which include a bad back and diminished lung capacity due to chronic obstructive pulmonary disease (COPD). He was suicidal in 2013 and has been under the care of a psychiatrist. He has had issues with anxiety and depression throughout most of his life and takes medication for it. He was recently tested for dementia, which showed some abnormality, but there has never been a formal diagnosis of dementia.

9During the interview with the probation officer, P.C. stated that:

This was a complete accident why this happened. I mistook my granddaughter for being my girlfriend because she was supposed to be there that night. I have no use for hurting children. This was due to mind altering drugs I was on and all the booze. I mistook her for my girlfriend they have the same hair and same build and everything.

10P.C. felt that his doctor should be held accountable for his behaviour because of all the medication he was on at the time of the offence. Further, he denied there was intercourse or penetration, and stated that he laid on top of the victim naked believing it was his partner. He felt that after all he has done for his family they should not have gone to the police, and stated that if he ever gets a chance to get back at them he will, although he was clear that he was not referring to any physical retaliation.

11The probation officer noted that P.C. repeatedly minimized his actions by referring to them as an innocent mistake, and shifted blame onto others. He did not express any regret or remorse for the victim and frequently referred to his family by derogatory names. The probation officer was concerned that P.C. has difficulty managing anger in his day to day life.

Medical Records

12In support of his position that he is medically unfit for any lengthy period of incarceration, P.C. provided medical records from his family physician as well as notes from a psychiatrist who treated him when he was having suicidal ideations. Doctor Ann Muscat, P.C.’s family physician, noted that as of October 22, 2015, P.C.’s active health issues include:

a. severe Chronic Obstructive Pulmonary Disease (COPD), followed by a respirologist;

b. depression and anxiety, on treatment and awaiting follow-up with psychiatrist Doctor Adel;

c. memory issues currently under investigation with geriatrician, Doctor Veselsky;

d. hypertension, controlled by medication; and

e. diabetes controlled by medication.

13Given his complaints about onset of dementia, Doctor Muscat arranged for P.C. to have a CT scan of his head in August 2015. The CT scan did not reveal any significant abnormality.

14P.C. consulted Doctor Muscat as a result of this court proceeding. Doctor Muscat noted that “I reflected honestly that I am unable to do his assessment as I see a different behaviour today than prior visits”. Doctor Muscat did, however, administer a mini-cognitive examination, which showed some abnormality with respect to P.C. being able to draw the hours on a clock and show the time as ten forty-five. A note taken by Doctor Muscat on July 30, 2015 sets out as follows: “Feeling he is unable to follow a train of thought, feels he is ‘sunk without the test’ as he is unable to obtain a lawyer for financial reasons”. Of some note, is Doctor Muscat’s comment that part of her reason for not wishing to conduct a full assessment of P.C. was that she felt his different behaviour was a possible sign of malingering.

The Victim Impact Statement

15Victim Impact Statements in this case were provided by both the victim, K.L., and her mother, C.L. Both asked to have their victim impact statements read into court. K.L. provided a victim impact statement which detailed the effects of this crime on her emotionally. K.L. documented that she had nightmares, sleep issues and problems interacting socially. She continues to have trust issues and hesitates opening up to family, friends, classmates or boyfriends. She felt betrayed by the fact that she was hurt by her own grandfather and now no longer wants to be touched, hugged or complimented. She feels that she cannot trust the kindness of others and has been robbed of her confidence and self-esteem.

16K.L.’s mother, C.L.’s victim impact statement, sets out that the stress from these court events have put increased strain on her marriage and resulted in her separation from her husband in July 2015. C.L. has lived with guilt and anger over what her father has done to her daughter. She has great concerns about the lasting effect of this on her daughter’s life, and has her own trust and emotional issues resulting from this incident, for which she has sought therapy. Finally, and most importantly, she feels inadequate and guilt-ridden because she has not, as a mother, been able to protect her daughter from her own father.

The Relevant Principles of Sentencing

17Section 718 of the Criminal Code sets out the fundamental purpose of sentencing, the objectives of which are:

a. to denounce unlawful conduct;

b. to deter the offender and other persons from committing offences;

c. to separate offenders from society where necessary;

d. to assist in rehabilitating offenders;

e. to provide reparations for harm done to victims or to the community; and

f. to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.

18In addition, s. 718.01 identifies that the primary consideration in sentencing for offences against children are the objectives of denunciation and deterrence.

19In s. 718.2 of the Criminal Code, a court sentencing an offender shall take into consideration the following aggravating circumstances:

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years;

iii. evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.

General Comments Regarding Sentencing in Sexual Abuse Against Children

20There is a considerable body of case law and commentary in this area because it is important to protect this defenceless group in our society. In R. v. A.N.C., [2006] O.J. No. 3144 (Ont. S.C.J.), Nordheimer J. stated:

When a parent fails in his or her duty to provide that protection it represents conduct that is especially reprehensible because it exposes completely innocent and extremely vulnerable members of our society to harm at the hands of the very people whom they ought to be able to trust the most.

21In the case at bar, there was evidence at trial that K.L. loved her grandfather P.C. and trusted him. The trust placed in P.C. as a parental figure in K.L.’s life is undeniable. His abuse of that trust is what attracts a penitentiary sentence and is the focus of both deterrence and denunciation.

22In R. v. Stuckless, 1998 7143 (ON CA), [1998] O.J. No. 3177 (C.A.), Justice Abella stated:

Sexual abuse is an act of violence. When committed against children, the violence is both physical and profoundly psychological.

23And finally, R. v. C.M.R., 2004 35055 (ON CA), [2004] O.J. No. 4490 (Ont. C.A.), set out:

Few, if any, other relationships in society will attract more rigorous scrutiny by the courts in their application of the law in order to protect against the abuse and exploitation of vulnerable persons by those to whom their care and protection have been entrusted.

Mitigating Factors

24The Crown submits that in this case there are no mitigating factors. The reasons for this, according to the Crown, are as follows:

1. P.C. told his probation officer that he had worked for 32 years. The Crown submits that this should not be a mitigating factor in the usual manner. That is, P.C. should not be considered as having been a meaningful or contributing member of society. The fact is, the evidence at trial was clear that P.C. spent most of his working life on disability.

2. P.C. complained that he had significant health issues, including dementia. The comments of Doctor Muscat cannot be ignored. Doctor Muscat refused to do a comprehensive assessment of P.C., because his behaviour on the day he consulted her the dementia was significantly different from before. Doctor Muscat had concerns that he was malingering. As well, a CT scan of his head did not identify any significant abnormality.

3. the PSR is significantly unhelpful to P.C. According to the PSR, he feels entitled to walk away from this crime and that his family owes him, that they are “jackasses”, and that he will get even with them.

The Crown submits that the tenor of the PSR is that P.C. pities himself and accepts no responsibility for the incident.

25Ms. Grant, as amicus for P.C., submitted that there are some mitigating factors for the court to consider. They are as follows:

a. there is some evidence of a positive employment history; unfortunately, marked by mental health and physical issues. The fact that from time to time P.C. was unable to work because he was on disability should not take away from a positive employment history;

b. P.C. has a very dated and unrelated criminal record. This differentiates him from many of the offenders in the cases presented by the Crown who had lengthy and related criminal records;

c. P.C. has made some positive changes in his life by giving up alcohol and drugs;

d. P.C. has spent a significant time on bail without incident;

e. the fact that there is bad blood between P.C. and his family is not relevant or significant for the purposes of sentencing, as it does not go to the nature of the crime;

f. although P.C. may have come across as unpleasant or self-absorbed in his PSR, he is to be sentenced on the nature of the offence and not on his general personality and relationship to others;

g. notwithstanding the comments of Doctor Muscat, his COPD leaves him in a wheelchair. He is hard of hearing and has irritable bowel syndrome. He has a documented history of anxiety and depression, and although there is no evidence of dementia, the results of his mini-mental competence test showed some concerning results. He has been referred by Doctor Muscat to a geriatrician for treatment.

26There is no doubt that prison will be a hardship to this particular offender given that he is in a wheelchair, that he can only walk short distances before becoming seriously out of breath, and may be vulnerable to abuse by other inmates.

27Ms. Grant does not agree that P.C. cannot be rehabilitated because he denies the offence. It is clear that he participated in group therapy while in a mental health facility, and he will be participating in sex offender programming when incarcerated. The issue here is P.C. currently has no insight into his crime. Therapy is what clearly is needed to gain that insight.

28The Court of Appeal has dealt with health issues and how they should be treated by sentencing judges. In R. v. H.S., 2014 ONCA 323, [2014] O.J. No. 1974 at para. 34 to 40 (Ont. C.A.), the court stated as follows:

…the sentencing judge erred by treating various of the respondent’s health problems (diabetes, pituitary gland issues and sleep apnea) as a mitigating factor on sentencing. However,…there was no evidence at the sentencing hearing that the respondent’s medical conditions could not be properly treated while he was incarcerated. In these circumstances, no reduction in an otherwise fit sentence was warranted due to the respondent’s health problems.

29I agree with the Crown on this point. P.C. requires medications for his anxiety and depression, and it is clear from Doctor Muscat’s notes that his hypertension and diabetes can also be controlled by way of medication. The fact that P.C. has minimal lung capacity and requires occasional appointments with a respirologist is not a reason, based on the facts before this court, to reduce any sentence that is otherwise merited based on the principles set out in the Criminal Code and the case law.

Aggravating Factors

A. Relationship to the Victim

30P.C. is K.L.’s grandfather. As a young child she trusted him and spent time with him. P.C. was in a position of authority and trust as a parental figure in K.L.’s life and abused that trust. A strong message of denunciation is required where such a breach of trust occurs.

B. Persistence of the Abuse

31P.C. was candid in his evidence during trial that he was both intoxicated and under the influence of medication on the evening in question. It is also not contradicted that K.L. was feeling ill, and it was found as a fact by the court that P.C. gave her some low dose aspirin to assist with her complaints. On that evening, P.C. took off K.L.’s clothes and carried her to his bed. When K.L. woke up she was lying naked next to her grandfather in his bed. Therefore, the actions of P.C. began the evening prior and continued to the following morning when the penetration occurred.

C. The Nature of the Acts

32K.L. was an 80 pound 10 year-old girl at the time of the offence. P.C. was a large man who could easily overpower her. He laid on top of her and attempted to penetrate her vagina with his penis. The court accepted that K.L. experienced pain. P.C.’s evidence at trial was that K.L. was screaming for him to get off of her, and this is how he became aware that she was not his girlfriend. K.L. was no doubt terrified at having her large, heavy grandfather, on top of her naked while trying to penetrate her vagina with his penis. She experienced pain and screamed out. The effect of this event on K.L. cannot be underestimated.

D. Persistent Emotional Abuse

33After committing this crime, P.C. told K.L. that he loved her and if she told anyone about the event it would ruin their family. For many years she was too afraid to do anything. Instead she avoided her grandfather, covered up when he was near her and refused to visit with him. P.C. was well aware of why K.L. was acting the way she did and freely admitted this at trial. However, notwithstanding what he knew to be her fear of him, he persisted in telling her she was beautiful and that she should become a model. P.C. continued to exert emotional abuse on K.L. by deliberately making her uncomfortable in the face of their past history.

E. Victim Impact

34It is clear from the victim impact statements of K.L. and C.L. that this crime has had a significant effect on their family and emotional state. Both feel guilt and are left with trust issues. The effect of this crime on K.L. and her family should not be minimized.

F. Threats to Family

35Unfortunately, P.C.’s PSR contains some somewhat disturbing content. Specifically, his threat that “if he ever gets a chance to get back at them [his family] he will”. While P.C. was careful to ensure the probation officer knew that he did not mean physical retaliation, the fact that P.C.’s focus was revenge is alarming and concerning with respect to any possible rehabilitation of P.C.

Sentencing Ranges for the Sexual Abuse of Children

36It should be mentioned here that P.C. requested a conditional sentence. The Court of Appeal has provided some specific guidance with respect to sentence ranges for the sexual abuse of children. In R. v. D.D., 2002 44915 (ON CA), [2002] O.J. No. 1061, the court held that when the sexual abuse involves full intercourse, anal or vaginal, “and is accompanied by other acts of physical violence, threats of physical violence or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate”.

37Following that case, there was a shift to longer sentences for offences involving the sexual abuse of children. Following D.D., supra, in R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216, the court clarified that mid to upper level single digit penitentiary sentences will be appropriate when adults in a position of trust sexually assault young children, even if the abuse is isolated and accompanied by other acts of violence. In that case, a five year sentence was upheld in relation to a single act of sexual assault on a 12 year old complainant. The focus is not on whether the crimes were comitted a hundred times or one time, but rather the focus should be on the principles which are equally applicable to single or multiple acts of sexual violence.

The Crown’s Position on Sentence

38The Crown submits that a sentence of six years imprisonment is appropriate in this case. It is reflective of the aggravating factors, including the violation of trust and general and specific deterrence. A sentence of this range reflects the principles set out in both D.D., supra, and Woodward, supra.

39In support of their position, the Crown relies on R. v. P.M., 2012 ONCA 162, [2012] O.J. No. 1148 (Ont. C.A.) leave to appeal to SCC refused [2012] S.C.C.A. No. 242, in which the Court of Appeal set the starting point of sentencing at five years and up for cases involving prolonged child abuse regardless of when the offences happened. In that case, involving repeated acts of incest with the offender’s daughter over many months, and even in light of some many significant mitigating circumstances, the court felt that it would be unusual to impose a penitentiary sentence of less than five to six years in accordance with D.(D), supra.

40In R. v. D.M., 2012 ONCA 520, [2012] O.J. No. 3616 (Ont. C.A.), the Court of Appeal rejected earlier inconsistent decisions on which the trial court relied and increased a sentence of three years to seven years where the victim’s uncle engaged in progressively sexually invasive acts, including full intercourse, and threatened her with deportation if she did not comply.

41The Crown submits that even a single act of violence by a person in a position of trust or authority against a child demands a significant period of incarceration. As such, older sentencing precedents should be approached with caution as they are based on outdated sentencing ranges.

42The Crown then set out a number of cases with comparable facts, understanding that the facts in such cases can never be exactly on all fours. However, in cases related to isolated acts of child sexual abuse the Crown relies on R. v. L.T., [2011] O.J. No. 1650 (Ont. C.A.). In that case, the accused was found guilty of two historical acts of sexual violence with respect to an eight year old child whom he digitally penetrated, performed oral sex and had sexual intercourse with her one night when she slept over. He had no criminal record. The trial judge imposed one year imprisonment and one year conditional sentence consecutive. In that case, the accused was a family friend and not in the position of a parent. The court overturned the trial judge’s sentence and varied it to three year’s imprisonment on count one and six months on count two, for a total sentence of three years and six months.

43In R. v. Mullings, 2012 ONCA 911, [2012] O.J. No. 6087 (Ont. C.A.), an accused in a position of trust committed a single act of sexual intercourse with a 13 year old girl which resulted in a pregnancy. He was sentenced to seven and a half years of imprisonment. The Court of Appeal held that the sentence was high but not manifestly unreasonable.

44In R. v. B.J.W., [2012] O.J. No. 1196 upheld by Court of Appeal [2012] O.J. No. 5420, the accused had no prior record. He was convicted after forcing his girlfriend’s nine year old daughter to perform fellatio on him on one occasion, and threatening to kill her if she did not comply. The four year sentence in that case was upheld, but the Crown notes that that case did not involve any vaginal penetration and there were mitigating factors. The Crown submits that based on the aggravating factors in this case, which includes the breach of trust, K.L.’s vulnerability as she was feeling ill on the night in question, the commencement of the abuse on the evening before and continuing to the following morning, this continuing emotional abuse of K.L. after the events and the impact of the crimes on K.L. and C.L., that a sentence of six years would be appropriate.

The Position of the Defence on Sentencing

45Ms. Grant, as amicus, most helpfully provided the court with a number of cases to support her position that a penitentiary sentence of less than six years should be imposed.

46In R. v. D.M., 2012 ONCA 894, [2012] O.J. No. 6059, the molestation of the offender’s stepdaughter took place over an eight year period. The molestation included sexual touching and digital penetration but not intercourse. The offender was sentenced to five years imprisonment, which on appeal was reduced to four years.

47The court reduced the sentence notwithstanding the fact that there was a breach of parental trust, that the sexual molestation was frequent and unrelenting, that it took place over a long period of time (eight years), and the fact that the offences had a devastating impact on the victim, including attempted suicides. While the offender had no previous criminal record, he had shown some degree of remorse. Interestingly, the court added that sentences of five years or more have been upheld where the following aggravating circumstances have been present:

1. sexual intercourse (vaginal or anal);

2. oral sex;

3. incest;

4. more than one victim;

5. grooming of the victim;

6. other acts of physical violence and threatened violence to obtain compliance and keep the abuse secret; and

7. a previous criminal record for sexual abuse.

48In R. v. G.M., 2014 ONCA 602, 2014 O.J. No. 3859, the offender was convicted of five counts of sexual assault and four counts of sexual exploitation involving his girlfriend’s daughter. He was sentenced to five years imprisonment, which was upheld on appeal. In that case, the victim was sexually abused on multiple occasions while she was between eleven and a half and twelve years old by the victim’s mother’s boyfriend, who was in a position of trust and authority. As well, the offender supplied the victim with drugs and alcohol and exploited her vulnerable state after her consumption of the drugs and alcohol. The pattern of grooming was found to be an aggravating circumstance. The court acknowledged that in some cases the court has upheld or imposed sentences of less than five years for conduct that might be regarded as more egregious than that of the appellant, however, the court declined to interfere with the trial judge’s sentence.

49In R. v. R.P., 2013 ONCA 53, that case involved the serial sexual abuse of four family members from the age of three to five years, over several years, to ages nine to twelve. The conduct was found to be invasive and caused significant psychological harm to each of the complainants. The offender was in a position of trust. The trial judge described the circumstances as a “marathon of sexual abuse by a person in a position of trust”, and imposed a sentence of five years. The appeal court declined to interfere with this sentence.

50In R. v. L.K., [2015] O.J. No. 2224 (Ont. S.C.J.), the court imposed a seven year sentence involving three complainants who were between the ages of six and nine. The offences involved various touching, oral sex and digital penetration. The offender was in a position of trust, the offences took place in his home and the complainants suffered psychological harm. The court imposed a global sentence of seven years; being two and a half years for the assault on the first complainant, five years for the second complainant and two years for the third complainant.

51Ms. Grant submits that the cases she has provided to the court outline that the sentence sought by the Crown is excessive, given that it tends to reflect sentences imposed for much more serious factual circumstances including multiple complainants, lengthy periods of sexual abuse and various types of sexual abuse. While Ms. Grant acknowledges that the five years of incarceration may well be the starting point based on D.D., supra, the court must consider the fact that this was a single act of nominal penetration and that the offender has no related criminal record.

Conclusion and Sentence

52P.C. has not endeared himself to the court and continues to blame others for his behaviour. As noted in my trial decision, P.C. initially denied any sexual contact between himself and K.L. Only at trial did he raise the defence that in fact there had been some form of contact, but he denied penetration, and it was a mistake. In the PSR he attempted to blame his doctors for prescribing medication that made him unable to clearly recall the events of that evening and mistaking his granddaughter for his girlfriend.

53He also blamed his family for reporting this matter to the police, and made it clear that he intended to wreak some form of non-physical vengeance on them when he was in a position to do so.

54As well, P.C. attempted to rely on his physical incapacities as a reason to either reduce his sentence or have the court impose a conditional sentence. While it is clear that he suffers from anxiety, depression, diabetes and hypertension, there is some concern about his alleged dementia. His own family physician had some concerns about malingering, and whether or not P.C.’s behaviour had changed from previous visits in order to bolster his claim that he suffers from dementia.

55Notwithstanding that P.C.’s position was that he had made a mistake, he seemed to have trouble with the concept of remorse or saying sorry for having done so. The author of the PSR noted that P.C. reacted angrily and appeared to have difficulty controlling his anger. All of the above does not bode well with respect the possibility of rehabilitation. There is no doubt that P.C. needs therapy to gain some insight into his own behaviour.

56There is also no doubt that P.C. committed a despicable crime against his granddaughter while in a position of authority. He shattered the loving relationship that the two of them had by trying to have sexual intercourse with her and almost succeeding. He then asked her to keep the matter a secret, but essentially flaunted that secret in front of her whenever they met on family occasions. When the matter came to light, P.C. blamed the family for apparently not understanding that it was a mistake and calling all of them “jackasses”.

57The effects of this crime on K.L. and on her mother cannot be underestimated. The tenor of K.L.’s victim impact statement was that she has had, and will continue to have, problems with trust amongst friends and boyfriends. This may affect her ability to have meaningful relationships in the future. K.L.’s mother, C.L., is guilt-ridden about her inability to protect her daughter from her own father. The impact of this on C.L. has been dramatic and devastating.

58I accept the proposition in D.D., supra, that the starting point for the sexual abuse of young children by a person in authority is five years. This is the starting point without regard to how many times the abuse has occurred and the type of abuse. The mitigating factors in this case are nominal, and the Crown’s description of P.C.’s PSR as terrible is not far from the mark. The principles of deterrence and denunciation must, however, be balanced with the nature of the offence and the actual crime committed. In having referred to R. v. D.M., supra, the facts of this case did NOT include oral sex, incest, more than one victim, grooming the victim or a previous criminal record for sexual abuse. While there was a request that K.L. keep the incident secret, there was no threatened physical violence in order to obtain compliance. With respect to actual sexual abuse, there was no anal intercourse and the sexual intercourse, as found in my trial Decision, involved nominal penetration.

59The cases appear to differentiate significantly with respect to where there is and is not penetration. Based on the facts, as found in this case, the penetration was nominal and not repeated. However, even in cases where there was a repeated abuse over a lengthy period of time, such as D.M., supra, the sentence was reduced from five years to four years and the court noted that there was no intercourse, only digital penetration and sexual touching. It is also notable that in R. v. G.M., supra, the court upheld a sentence of five years where the adult offender was in a position of trust and abused a young child, on a regular and persistent basis, over a period of two years. However, again there was actual penetration in G.M., notwithstanding the aggravating factors of grooming and providing the victim with drugs and alcohol.

60In all of the circumstances, and given that there was vaginal penetration, even nominally, and given the serious aggravating factors in this case I am not persuaded that any sentence less than five years (the starting point for D.D.) would be reasonable.

61I do not agree with the Crown that six years is a proper sentence given that none of the other factors listed by Laskin J. in R. v. D.M., supra, are present, and given that the five year sentence takes into account that vaginal penetration occurred. Therefore, P.C. is sentenced to five years of imprisonment in a penitentiary with pre-trial credit of eight days. He is prohibited from having contact with persons to be listed, as requested by the Crown, pursuant to s. 743.21 of the Criminal Code. As well, there shall be an order pursuant to s. 161 for 10 years, a SOIRA order for 20 years, a DNA order and a weapons prohibition pursuant to s. 109(1)(a) for life.