Court File and Parties

COURT FILE NO.: CRIMJ(P)328/15 DATE: 2017 01 13

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN K. Holmes, for the Crown

- and -

D.W. K. Bailey, for the Defence Defendant

HEARD: December 15, 2016

REASONS FOR SENTENCE

Bielby J.

Overview

[1] On October 24, 2016, D.W. (the offender) was found guilty, by a jury, on the following counts:

(a) that he did unlawfully commit a sexual assault on C.R., (the victim) contrary to section 271 of the Criminal Code of Canada;

(b) that he unlawfully did, for a sexual purpose, touch the victim, a person under the age of 16 years, directly with a part of his body, contrary to section 151 of the Code;

(c) that he unlawfully did for a sexual purpose, invite the victim, a person under the age of 16 years, to touch directly with a part of her body, the body of the offender, contrary to section 152 of the Code.

[2] At the request of the Crown and in accordance with the Kienapple Principle, the conviction for sexual assault is stayed.

The Facts

[3] In 2012 the offender travelled to Ontario as a member of the Jamaican rugby team. The offender chose to stay in Canada and contacted his cousin, who was married to the victim’s mother, to come and collect him.

[4] For a few months in the fall of 2012, from the end of August to sometime after October 31st, the offender lived in his cousin’s home along with his cousin’s wife and her two children, one of which was the victim. The victim, at all material times, was seven years of age.

[5] On occasion the offender babysat the victim and her younger sister, N.B. The offender would bring the victim in to his room and ask her to remove all her clothes. The offender would do the same. The offender would lie on his back and put the victim on top of him and ask her to rub against his penis.

[6] The offender would touch the victim on her vagina and would perform oral sex on her. He asked the victim to perform oral sex on him but she refused.

[7] The victim in her police video statement said that the offender put his penis inside of her vagina. She testified that it hurt and felt heavy when he did so. On cross-examination the victim testified that she was not sure of this saying it may have been just on the outside.

[8] This type of behaviour occurred more than once, the victim testifying, “Maybe more than five times”. It occurred when there were no other adults in the house.

Circumstances of the Offender

[9] The offender was born on July 12, 1981. The offender was arrested on these charges on April 2, 2015, and was released on bail on April 23, 2015. On May 25, 2015, the offender was detained at the Maplehurst Correctional Complex, on an immigration hold because his visa had expired. Upon the completion of his sentence the offender is likely to be deported.

[10] As of January 13, 2017, the offender will have been in custody for 621 days, of which 21 days were as a result of pre-trial custody pending bail. During this time the offender was in lock down, through no fault of his own, for 139 days. Further he was triple bunked in a cell for 167 days.

[11] The offender described the lock downs as incredibly stressful stating in an affidavit, sworn December 13, 2016, that during those times all he could do is lie on his bunk in a cell which at times he shared with two other inmates. The offender got depressed and anxious.

[12] During lock downs the offender was not permitted to use the phone or see visitors, including his lawyer.

[13] In June, 2015, the offender asked to see a dentist because of tooth pain. He was allowed to see a dental assistant who told the offender that he should see a dentist when he got out of jail.

[14] A year later the offender had increased dental pain stating his tooth had cracked. Ultimately with the assistance of his lawyer, the offender finally saw a dentist on November 10, 2016.

Impact on the Victim and/or Community

[15] The impact of sexual predators on children is something that is all too often the subject of community concern. Such behaviour is reprehensible.

[16] From paragraph 45 of R. v. D.D., [2002] CarswellOnt 881, a decision of the Ontario Court of Appeal, I quote,

“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 damage 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!”

[17] On behalf of the victim the Crown filed her victim impact statement. The victim expressed that she can’t stop thinking about what happened even though she tries not to. She submits she will think about it forever. She wrote of how scared she would be if the offender was to pick her up at school.

[18] The victim is afraid of anyone coming close to her. She expressed a concern for other kids wondering if the offender will sexually abuse someone else.

Legal Parameters

[19] In regards to the count of sexual touching (section 151), there is a maximum penalty of 10 years imprisonment and a minimum sentence of one year.

[20] On the count of invitation to sexual touching (section 152), the same sentencing parameters apply.

Positions of Crown and Defence

[21] The Crown is seeking a sentence of nine years imprisonment. She also seeks a DNA order, an order placing the offender on the sexual offenders’ registry for life, an order prohibiting the offender from any contact with the victim and her family pursuant to section 743.21 of the Code, as well as an order under section 161.

[22] The Crown submits that the conviction on the count of invitation to touch, the essential elements are made out, at the very least, with respect to the offender’s request that the victim perform oral sex on him.

[23] While the Crown submits that I should find as a fact that there was penile penetration/intercourse, it is also submitted that the rubbing and the licking of the victim’s vagina, meets the required essential elements of sexual interference.

[24] The Crown noted that while the offender has no criminal record he was only in Canada for a short period of time before the offences occurred.

[25] The Crown submits there are a number of aggravating factors. The behaviour commenced shortly after the offender’s arrival in the victim’s home, after he was invited to stay in the home as a guest. The offender was in a position of trust over the victim as her babysitter and abused and breached that trust. The Crown also submits sexual intercourse would also be an aggravating factor.

[26] The Crown submits as another aggravating factor, that the offender took advantage of the fact that the accused’s natural father was shot and killed in late October, 2012, and the victim’s vulnerability as a result thereof.

[27] The Crown submits there is a lack of mitigating factors.

[28] The Crown submits that the primary sentencing principles, given the facts, are denunciation and general and specific deterrence.

[29] The Crown submits that the offender should not be given any credit for time in custody other than the period prior to bail being granted (21 days). It is submitted that the offender is in custody because of his lack of immigration status in Canada and not as a result of these charges.

[30] The defence acknowledges the principles of denunciation and deterrence and concedes the offences are serious and had and continue to have a profound impact on the victim.

[31] The defence submits that with respect to the death of the victim’s father, the offender moved out of the victim’s home shortly thereafter, the implication being the incidents occurred prior to the death of the victim’s father’s death.

[32] Counsel for the offender submits that while the victim spoke of multiple incidents she only provided facts for the first incident. She further submits there is reasonable doubt as to whether there was intercourse given the victim’s admission under cross-examination that she was unsure. The police video statement in which the victim said there was penetration was made 2 ½ years after the incidents occurred.

[33] Defence counsel submits that there are reliability issues relating to the testimony of the victim, who testified, the more she thinks about what happened the more she remembers. It is submitted memory does not work that way. It is submitted that with very young witnesses there are memory issues.

[34] Defence counsel concedes the aggravating factor of a breach of trust.

[35] Defence counsel submits the appropriate global sentence would be imprisonment for three years.

[36] The offender seeks a credit of 1.5 days for the days the offender was in custody as a result of his arrest on these charges and a one day credit for each day the offender has been in custody as a result of his immigration status. It is also submitted that the conditions of custody should also be taken into account.

[37] Counsel for the offender opposes an order under section 161 of the Code submitting these offences have nothing to do with the use of the internet and further submits that the offender will be deported upon the completion of his sentence so will not be in a position to come near the victim or her family.

Case Law

[38] Both the Crown and defence counsel provided the court with a number of authorities.

[39] R. v. D.D., [2002] O. J. No. 1061 is a decision of the Ontario Court of Appeal. The facts of the D.D. case are horrendous. The appellant (accused), over a seven year period, befriended four young boys and regularly and persistently engaged them in all manner of sexual activity. The appellant was convicted on 11 counts and sentenced to eight years and one month on each charge, to be served concurrently. The sentence was appealed.

[40] The appellant, at all material times stood in a position of trust towards the victims and carried out a well-planned grooming process. To say the least the impact on the victims and their families was devastating.

[41] The appeal court compared the case before it to their decision in R. v. Stuckless, 41 O.R. (3d) 103 (Ont. C.A.) in which the court considered a six year global sentence to be appropriate for offenders who groom and sexually abuse young children. Stuckless pleaded guilty to 24 counts of indecent assault and sexual assault.

[42] The appeal court found the facts in D.D. to be much more egregious than in the Stuckless matter.

[43] The Court of Appeal was of the opinion that the sentence imposed was at the low end of the appropriate range. The appeal court was also of the opinion that the six year sentence in Stuckless was at the lower end of the appropriate range of sentences for crimes of the magnitude committed by Stuckless.

[44] From paragraph 44, I quote,

“To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it 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. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties are warranted.”

[45] R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 is a decision of the Ontario Court of Appeal. The charge was one of internet luring and the accused was sentenced to 6 ½ years. The accused lured the victim to a hotel room on the promise of remuneration and engaged in sexual acts with the victim.

[46] From paragraph 34 of the Woodward case I quote, “In my view, having regard to the appellant’s background and character and the nature and the gravity of his crimes, a mid-to-upper-level single digit penitentiary term was called for and the sentence of the trial judge fell within that range.”

[47] From paragraph 39 I quote, “To the extent that the trial judge relied on D.D. (R. v. D.D., 163 C.C.C. (3d) 471), she simply extracted from it the principles of sentencing that this court said should apply to adult sexual predators who exploit innocent children. These principles include that the sentencing objectives of denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing (D.D. at para. 34). As I shall explain further when I discuss the appropriateness of the global sentence in this case, the trail judge was correct in concluding that these principles apply with equal force to the case at hand.”

[48] At paragraph 72 the appeal court discusses the D.D. case and extracted the relevant considerations and principles from D.D. which it listed as follows:

(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 predators 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.

[49] R. v. A.G., 2004 ONCA 700 is another decision of the Ontario Court of Appeal. The accused appealed the conviction of attempted rape and indecent assault and the sentence of 36 months. The complainant is the niece of the appellant and testified as to events which occurred 30 years before. The charges related to two specific incidents.

[50] The appeal court ruled that certain aggravating factors were in play including grooming and breach of trust. Commencing at paragraph 19 the court discussed the appropriate range. It was determined that the trial judge erred in basing his sentence on the range suggested in D.D. because of the significant differences in the facts. Nevertheless the court concluded that a penitentiary sentence was required.

[51] The appeal court determined that an appropriate sentence was two years imprisonment of the charge of attempted rape and one year concurrent on the charge of indecent assault. The court took into account the appellant had no criminal record, had taken rehabilitation steps, was 67 years old and was in frail health, and the fact that the offences occurred over 30 years ago (para. 29).

[52] In R. v. D.M., 2012 ONCA 894, the Court of Appeal had to consider a trial decision which convicted the appellant of eight counts of sexually molesting his step-daughter which consisted of, over an eight year period of sexual touching, digital penetration, but not intercourse. The trial judge imposed a sentence of five years.

[53] The Court of Appeal concluded that a sentence of five years exceeds the appropriate range stating that for a sentence of five years or more there must be one or more of the following circumstances present:

1. Sexual intercourse,
2. Oral sex,
3. Incest,
4. More than one victim,
5. Grooming,
6. Other acts of physical violence or threatened physical violence to obtain compliance and keep the abuse secret, and
7. A previous criminal record for sexual abuse (para. 68).

[54] It is noted that only one of these features, oral sex, is present in the matter before me.

[55] The appeal court concluded that a sentence of four years was appropriate and in doing so reviewed a number of its own decisions and the sentences imposed including, R. v. F. (I.), 2011 ONCA 700. In that case, the court imposed a four years sentence for a man who abused his three step-granddaughters over an eight year period. The abuse included fondling, masturbation, oral sex, and acts of grooming.

[56] In R. v. F.(B), 2013 ONSC 2790, Sachs J. of the Ontario Superior Court of Justice found the accused guilty of 11 counts (sexual interference and invitation to sexual touching) arising from his inappropriate sexual contact with his step-daughter when she was under the age of 14 years. The acts included the accused performing oral sex on the young victim.

[57] The trial judge imposed a global sentence of four years stating, at paragraph 23 that such a sentence was a significant penitentiary sentence for a first offender with a good background. I quote, “It recognizes that with crimes of this nature offenders are often of good backgrounds and that the focus has to be on the harm, caused to the victim and on the need to denounce and deter the conduct in question. It also recognizes that the sexual contact did not involve full sexual intercourse and that there were no acts of violence or threats used.”

[58] In R. v. R.R., 2014 ONSC 5491, Dunnet J. sentenced the accused in regards to three convictions of sexual assault and three convictions of sexual interference. The counts involved two incidents of oral sex and two incidents of inappropriate touching. The victim was four or five years old when the incidents occurred and lasted over a 10 years period.

[59] The accused was 51 years of age with no prior criminal record. He was in a position of trust over the victim.

[60] The accused was sentenced to a global sentence of three years.

[61] R. v. D.H., 2015 ONSC 4417, is a decision of E.M. Morgan J. in which he sentenced the accused following convictions on two counts of sexual interference and one count of sexual assault in relation to his son who was six years of age when the incidents occurred.

[62] From paragraph 10 I quote, “The Defendant’s offense is a particularly heinous one. He is convicted of oral sex and compelling oral sex to be performed on him, as well as forcing anal intercourse on a six year old.”

[63] The trial judge reviewed a number of decisions and from paragraph 22, I quote, “Under the circumstances, the Crown posits that 5 years is at the low end of the appropriate range, and the defence posits that 5 years is at the high end of the appropriate range. I consider 5 years to be the appropriate term of imprisonment, taking all of the aggravating and mitigating factors into account.”

[64] R. v. Gashaj, 2010 ONCA 10 is a decision of the Ontario Court of Appeal. At paragraph 7 therein the court considers whether an appellant should get credit for time spent in immigration hold after being released on bail for these offences as is the case in the matter before me.

[65] The court rejected the appellant’s submissions that credit should be granted stating that such credit is discretionary. I quote, “It was open to the trial judge in the circumstances to decline to give credit for the time spent in immigration detention particularly since it was the appellant’s own lack of immigration status in Canada, and not the circumstances relating to these charges, the underpinned the immigration detention.”

[66] R. v. Alzehrani, 2009 ONSC 6300 is a decision of A. M. Malloy J. of the Ontario Superior Court of Justice. The accused was detained on his charges for 24 days and was then released on a recognizance. After the verdict of guilty was pronounced bail was revoked and the accused spent 124 days in custody pending sentence. Between these two periods of custody, the accused was detained on an immigration hold for 16 ½ months. Credit was sought for the period of immigration detention.

[67] From paragraph 54 I quote, “In my view, the critical point is that Mr. Gashaj was first held on these charges, but then released. Although the existence of these charges was a factor in his subsequent detention, that detention was imposed under the IRPA, not under the Criminal Code, and flowed from the fact that he had entered Canada illegally and had no status to remain here. Accordingly, I agree with the Crown that he should not receive any credit for those 16 months.”

[68] R. v. White is a decision of Spies J. who had to deal with what credit, if any, to give to a period of detention on an immigration hold. The accused was arrested on July 31, 2006 and released on September 12, 2006 although he was granted bail on August 18, 2006. The reason he remained in custody until September 12th was because of an immigration hold.

[69] Counsel for the accused submitted that his client should get a two for one credit for the entire period he was in jail, including the time on an immigration hold.

[70] At paragraph 32 the judge noted that section 719(3) of the Criminal Code states that when determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence.

[71] From paragraph 34 I quote, “Although I do not know all of the circumstances, it is safe to assume that Mr. White’s arrest on these charges triggered the immigration hold. In other words, had he not been arrested he would otherwise not have been held on any issue related to him immigration status. Mr. White’s immigration hold, therefore had at least some connection to his arrest. I am, therefore, prepared to give him some credit for this further period of incarceration.”

[72] At paragraph 35 the trial judge noted a rule of thumb is to apply a one for one credit for time served following bail as a result of an immigration hold.

[73] R. v. Gardener, 2010 ONSC 3418 is a decision of Michael G. Quigley J. in which the accused was found guilty of importing cocaine and heroin in to Canada. At paragraph 48 the trial judge, in considering sentence discusses the issue of an immigration hold.

[74] The accused was in detention for 8.5 months of which only 20 days related to the charges. The judge was made aware of the decision of Spies J. in R. v. White and I quote, “In a case such as this, I accept that the immigration detention would not have arisen had the accused not been arrested on these charges. As such, I consider the immigration hold does arise out of the offences.”

[75] The trial judge granted a 1 for 1 credit for the time spent in detention on an immigration hold.

[76] R. v. Doyle, 2015 ONCJ 492 is a decision of Melvyn Green J. who in considering the appropriate sentence was asked to take into account the harsh conditions imposed on the accused during pre-trial detention. A two month credit reduction in sentence was allowed on account of a number of lock-downs and the rather poor management of the accused’s diabetes.

[77] I accept that I have discretion to consider some period of credit for such harsh conditions suffered by the offender during his pre-trial detention and have had regard to R. v. DeSousa, 2016 ONSC 5493.

[78] R. v. Critton is a decision of Hill J. in which part of his considerations included the issue of certain deportation and its relevance to the imposition of sentence.

[79] From paragraph 86 of Critton I quote, “I prefer the view that the accused’s deportation is a factor which can, in some circumstances, serve to mitigate the severity of the sanction imposed by the court. Leaving aside instances of accused who are illegally in the country, in cases such as that of Patrick Critton, deportation is relevant to the sentencing function in at least three respects:

(1) the risk of incomplete rehabilitation on release from custody is not a risk imposed upon the Canadian people. (2) frequently, the offender subject to deportation serves “harder time” in Canada because he or she is incarcerated a significant distance from family who are resident in a foreign country. (3) Canadians are spared the expense of continued incarceration of the accused where the offender is deported.

[80] Again, I note, in the matter before me, the offender, when placed in immigration detention, was illegally in Canada, circumstances specifically included in the comments of Hill J. in paragraph 86.

[81] R. v. Hamilton, 2004 CarswellOnt 3214, is a decision of the Ontario Court of Appeal. At trial the two accused pleaded guilty to one count of importing cocaine. The trial judge imposed conditional sentences which sentences were appealed by the Crown. Commencing at paragraph 154, the appeal court had to consider the issue of deportation as a consideration in sentencing. In the situation where imprisonment is the only appropriate sentence and that deportation will inevitably follow upon completion of sentence, the certainty of deportation may justify some reduction in the term of imprisonment for purely pragmatic reasons (para. 156).

Mitigating and Aggravating Factors

[82] I accept the submission of the Crown that the fact the offender’s position of trust is an aggravating factor.

[83] With respect to the issue of penile penetration/vaginal intercourse, ultimately the victim was uncertain. As a result I will not consider it to be an aggravating factor.

[84] Nor am I persuaded that the offender took advantage of the victim, knowing the victim’s father had died. There is insufficient evidence in that regard. Her father’s death occurred at the end of October and the best evidence is that the offender moved out of the victim’s home shortly thereafter. The incidents in issue likely occurred before the death of the victim’s father.

[85] In regards to mitigating factors, I will consider the conditions of incarceration.

Principles of Sentencing

[86] There is no issue in this regard. The paramount principles are denunciation and general and specific deterrence.

Reasons

[87] With respect to the issue of whether the offender should get credit for the days held in pre-trial custody, I have discretion in that regard and I am not prepared to grant any credit to the offender because of the time spent in custody as a result of the immigration hold. He was out of custody on these charges when he was detained for immigration purposes.

[88] I am of the same view as set out in the Gashaj and Alzehrani cases. It cannot be said that the offender was in custody as a result of the offences. The facts in the matter before me and the above noted authorities can be distinguished from the facts as set out in such cases as Lenworth and Gardener.

[89] In the matter before me, the offender’s charges did not lead to the immigration hold but rather arose from the offender’s illegal status in Canada.

[90] In Gardener, as noted at paragraph 48, the trial judge accepted that the immigration detention would not have arisen had the accused not been arrested on the charges.

[91] In regards to the conditions of pre-trial custody I am of the opinion that such conditions ought to be considered a mitigating factor, notwithstanding my decision to not grant any credit for the time the offender has been in custody on the immigration hold.

[92] To determine whether a set of facts can be considered mitigating, a direct connection to the crime is unnecessary. For example, a lengthy period of employment or service to the community can be considered mitigating factors dependent on the circumstances. The immigration hold can be justified and is a result of the decision of the offender to attempt to stay in Canada without status. However, the offender is not responsible for the conditions of his incarceration. There were multiple days of lockdown, triple bunking and a lack of proper dental care.

[93] I accept that an appropriate range of sentence in matters such as this is from the mid to upper single digits. The offender took advantage of being a guest in his cousin’s home and the obligation he took on behalf of his cousin and his spouse, the victim’s mother. The offender was in a position of trust, and I accept that the abuse occurred on more than one occasion over a period of at least two months (R. v. D.D.).

[94] There is a high level of moral culpability. The heinous crime perpetrated on the young victim by the offender will be something she will have to deal with the rest of her life. Such conduct must be denounced and a sentence imposed that will deter others and perhaps the offender from such actions.

[95] Further, oral sex was part of the abuse, and, as a result, pursuant to R. v. D.M., such a range is appropriate.

[96] I am also taking into account a pragmatic view in that the offender will not be allowed to remain in Canada after he has served his sentence. His continued incarceration is at a cost to the Canadian taxpayer.

[97] Given all the facts and taking into account the aggravating and mitigating factors and taking a pragmatic approach, I find that a global sentence of 4.5 years is appropriate.

[98] The offender will get a credit, on a 1.5 to 1 basis, of one month for his pre-trial custody between his arrest and release on bail.

Final Decision

[99] I sentence the offender, D.W. to a further four years and five months in jail.

Ancillary Orders

[100] The offender is ordered to provide a DNA sample pursuant to section 487.051 of the Code.

[101] The offender is to be place on the sexual offenders list for life.

[102] The offender is prohibited, for life, from possession weapons.

[103] The offender is prohibited from, in any way, contacting the victim or her family and is not to be within 150 meters of any of them.

Bielby J. Released: January 13, 2017