ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR15-295-0000 DATE: 20170214

BETWEEN:

Her Majesty the Queen Michael Martin, for the Crown

• and -

K.O. Greg Deakin, for the Accused Accused

HEARD: February 14, 2017

REASONS FOR SENTENCE

Conlan J.

I. Introduction

[1] A 45 year-old husband and father, with no prior criminal record, must be sentenced for having sexually assaulted his step-daughter, then twenty years old, during a massage that he gave to her at the family home in October 2012.

[2] Mr. K.O. was tried before me, without a jury, in Owen Sound in October 2016.

[3] In written Reasons for Judgment reported at 2016 ONSC 6874, I found K.O. guilty of sexual assault contrary to section 271 of the Criminal Code.

[4] The sentencing hearing was held in Owen Sound on today’s date, February 14, 2017.

II. The Facts

[5] The following summary of the facts is taken from paragraphs 15, 16, 68, and 69 of the Reasons for Judgment.

[15] The complainant testified that she was at the family home for her brother’s birthday party. She had been attending university in Guelph at the time. In the evening, after everyone else had either left or gone to bed, she spent some time in the garage with the accused. They talked and smoked cigarettes. She developed a bad headache, nothing unusual as she suffered from migraines. The accused offered and she agreed for him to give her a massage to help relieve the tension – again, nothing unusual as he had done that in the past. They went in to her bedroom in the basement of the house. What started out as a consensual massage on her bed turned in to something that she did not consent to – he touched her bare buttocks and her bare breasts and nipples. He also touched her vagina over her lace, see-through underwear. At one point, she felt with her foot his crotch, over his clothes, and noticed that he had an erection.

[16] After making some comments to his step-daughter about her shaved vaginal area and asking to see her breasts, which she refused, the accused appeared very intoxicated and tired. He nearly fell asleep on her bed but made his way upstairs. She sat on her bed, rocked and cried until she slept. Crying in the Courtroom as she explained this part of what allegedly happened, the complainant stated “that’s when I knew my family was going to fall apart”. She never agreed again to a massage by the accused.

[68] I find that the accused, during the massage, intentionally touched the complainant in circumstances of a sexual nature.

[69] Specifically, he touched, once with his finger, her vagina over the top of her lace, see-through underwear. He, at least three times, touched and massaged her lower bare buttocks with his hands. He leaned forward and, once, caused her foot to rub his erect penis over the top of his clothing. And he, at least three times, touched and massaged her bare breasts, including her bare nipples.

III. The Offender

[6] As indicated above, K.O. is currently 45 years old and has no prior criminal record. He works full-time at a manufacturing facility in Brampton, Ontario. He has been with that company for some twenty years. He has a grade 10 education. He met his wife about 15 years ago, and they were married in 2006. He adopted her two children, including the victim of the sexual assault. They have one son together, 6 years old, who is the only child currently living with them in Badjeros, Ontario. He takes medication for anxiety and has also been diagnosed with sleep apnea.

[7] The Presentence Report (“Report”) confirms that the offender was cooperative with the police during the investigation and cooperative with the author of the Report.

[8] According to the Report, K.O. is an “amenable candidate” for community supervision.

[9] It is unclear from the Report whether the offender has an alcohol problem. He does not use illegal narcotics.

IV. The Positions of the Parties

[10] The Crown requests the following sentence: six (6) months in jail, to be followed by 18 months of probation, plus ancillary Orders by way of a firearms and weapons ban and DNA.

[11] The Defence takes no issue with the ancillary Orders requested but asks for consideration of a sentence of 60-90 days in custody, to be served intermittently on weekends, to be followed by 18-24 months of probation.

V. Analysis

The Legal Parameters

[12] There is no minimum penalty for this offence.

[13] The maximum penalty is imprisonment for ten years.

The Basic Legal Principles on Sentencing

[14] Sentencing is a highly discretionary and individualized process.

[15] I must have regard to the principles of sentencing outlined in section 718 of the Criminal Code of Canada – denunciation, specific and general deterrence, the need to separate certain offenders from society, rehabilitation, restorative justice and the promotion of responsibility in offenders.

[16] For this type of offence, denunciation and general deterrence are key. For a first offender like K.O., however, rehabilitation and specific deterrence are also important.

[17] Any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender – section 718.1 of the Criminal Code.

[18] This is a serious offence. Not only did K.O. commit a gross abuse of trust, he sexually assaulted his step-daughter by touching her vagina and her breasts, repeatedly, although all in the course of a single incident.

[19] K.O. should not be deprived of his liberty if less appropriate sanctions are appropriate in the circumstances – subsection 718.2(d) of the Criminal Code. I should consider all available sanctions other than imprisonment that are reasonable in the circumstances – subsection 718.2(e) of the Criminal Code.

[20] Any custodial sentence imposed on a first offender ought to be as short as reasonably possible in the circumstances. Further, it ought to be tailored to the accused rather than solely for the purpose of general deterrence.

The Aggravating and Mitigating Factors

[21] In my view, the chief aggravating factors here are (i) the abuse of trust, (ii) the fact that K.O. touched more than one private part of the victim’s body, with the touching of the breasts occurring multiple times, (iii) the devastating effect that the sexual assault has had on the victim, from the moment that she realized that her family would be no longer, and (iv) the seemingly complete inability on the part of the offender to understand why any reasonable observer would find this encounter in the bedroom with his adult step-daughter, even without the extent of the touching as described by the victim and found by the Court to have occurred, bizarre and inappropriate.

[22] The main mitigating factors are (i) the lack of any prior criminal history and (ii) a positive Report.

The Jurisprudence

[23] Every case is unique. Sentencing decisions can always be distinguished on their facts.

[24] In R. v. Pryzmant, [2000] O.J. No. 5334 (S.C.J.), Justice Speyer described the offender’s conduct as “contemptible”. The facts of that case were very different than the ones here, but that descriptor is a good one to sum-up this Court’s view of K.O.’s criminal misconduct committed against his step-daughter.

What is a fit Sentence for K.O.?

[25] Six months in custody would not be unreasonable for this offender, on these facts.

[26] But I have concluded that the upper end of Defence counsel’s submission would not be unreasonable either. The long-time and solid employment of K.O., his young son at home, and the mitigating factors identified above persuade me that a relatively short jail sentence on weekends, coupled with lengthy probation, will suffice.

VI. Conclusion

[27] The sentence of the Court is as follows.

[28] A conviction is registered.

[29] K.O. is sentenced to 90 days in custody. That sentence shall be served on weekends at the Maplehurst Correctional Complex in Milton, Ontario. It shall commence on Saturday, February 18, 2017 at 8:00 a.m. The offender shall report to the correctional facility at that time. If processing is required today, then K.O. shall be immediately remanded into custody for that purpose and then be released afterwards. The first weekend in custody shall end at 6:00 p.m. on Sunday, February 19, 2017. The same schedule shall continue on consecutive weekends until the sentence has been fully served.

[30] While serving the intermittent jail sentence, K.O. is bound by a probation Order, the terms of which are identical to those outlined below regarding the probation Order that will follow the custodial sentence. The only additional term is that the offender shall report to the correctional facility on time and in a sober condition.

[31] Following the custodial sentence, K.O. will be the subject of a probation Order for two (2) years. All of the statutory terms apply. Further, the offender shall report to probation as and when required, commencing within three (3) days of the expiration of the intermittent jail sentence; he shall reside where approved; he shall have no contact or communication by any means, directly or indirectly, with S.O., or be within 50 metres of her person; he shall not attend at or within 50 metres of any place known to him to be the residence, place of employment or place of education of S.O.; he shall attend for counselling or treatment as directed and not leave that program without the prior written permission of the supervisor; he shall sign any releases of information demanded of him to monitor his progress; he shall not purchase, possess or consume alcohol or attend at any place where the primary business is the sale of alcohol; and he shall not possess any firearm or weapon.

[32] A primary DNA Order is issued.

[33] A section 109 Criminal Code firearms and weapons prohibition Order is imposed for ten (10) years and life, respectively, as per the two paragraphs in subsection (2).

[34] Although not requested by the Crown, an Order under the Sex Offender Information Registration Act is mandatory and is imposed for a duration of twenty (20) years.

[35] The mandatory victim fine surcharge is imposed, with 30 days to pay from today.

Conlan J.

Released: February 14, 2017