CITATION: R. v. W., 2017 ONSC 3149
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
G. W.
Defendant
Alan Spiegel, for the Crown
Steven K. Stauffer, for the Defendant
HEARD: May 18, 2017
REASONS FOR SENTENCE
a.j. o’mARRA J.
1G.W. was found guilty after trial of eleven counts involving offences of sexual abuse of two step-daughters, M.B.1 and M. B.2, and his niece, S.P., between January 1998 and December 2006. The offences included two counts of invitation to sexual touching, sexual interference and sexual assault of M.B.1, sexual interference and sexual assault of M.B.2, and two counts of sexual interference, sexual assault and exposure for sexual purposes involving S.P.. The two counts of sexual assault were stayed as a result of the Kienapple principle.
2G.W. is here today to be sentenced. Although found guilty on November 18, 2016, the sentencing hearing was delayed due to medical issues involving G.W., which have since been resolved.
Circumstances of the Offences
3G.W. lived with Ms. A.B. and her two children, M.B.1 and M.B.2 from1999, through the early 2000’s. M.B.1 and M.B.2 were children of a previous marriage between Ms. A.B. and Mr. F.B.. G.W. and Ms. A.B. married in 2000, then divorced in 2003, however they continued in a relationship until 2005. During that time period when M.B.1 was between the ages of 4 and 11, G.W. committed repeated acts of sexual abuse, which included the touching and fondling of her vagina, fellatio, cunnilingus, masturbation and simulated intercourse in which he would make her lie on top of him with his erected penis between her legs and have her move about. M.B.1 described one occasion in her mother’s bedroom in which her younger brother was present and G.W. was playing pornographic videos during which he had her engage in fellatio with him.
4With respect to M.B.2, M.B.1’s older sister, Ms. A.B. testified that when she was approximately 11 years old, she observed G.W. crouched on the floor beside M.B.2’s bed with his head between her legs as M.B.2 lay back on her bed with her hands over her face. Ms. A.B. hit the accused in the head and as he moved his head from between M.B.2’s legs she saw that her underwear had been pulled aside exposing her vagina. Ms. A.B. confronted G.W. and told him never to do what he did again. Notwithstanding they continued in the relationship.
5With respect to S.P., the daughter of P.T., Ms. A.B.’s sister, she was sexually abused by G.W. while she was 7 to 9 years of age. The abuse occurred in the B. home. She testified that on more than 15 occasions he would require her to sit on his lap while he used the computer and he would massage her shoulders, breast area and move his hands to her inner thighs to caress her vagina both over her outer clothing and then over her underwear. She also testified as to an occasion in which he had her lie on top of him with M.B.1 and move about on him while he had an erect penis. She also described an incident where he exposed himself to her as she walked past his bedroom.
Circumstances of the Offender
6G.W. is 53 years of age. He came to Canada in 1998 and has permanent resident status. Since coming to Canada, he appears to have been steadily employed at a variety of jobs, including material handler, maintenance, and shipper-receiver. After leaving his marriage with Ms. A.B. he married G.A.W., with whom he acts as father to their two children, ages 3 and 8. He has been actively involved in his religious community, the Seventh Day Adventist Church. He has no criminal record.
7Counsel for G.W. submitted a number of letters of support from family members and friends, all of whom describe him as a hard-working, decent family man of exemplary character. Many of them express disbelief that he could have committed such crimes and believe in his innocence. Unfortunately, such is often the case in which otherwise persons who appear upstanding and decent commit such offences in private.
Position of the Parties
8The Crown submits that the appropriate range of sentence to give effect to the sentencing principles of denunciation and deterrence is a period of incarceration in the penitentiary between six to eight years. The Crown further requests a DNA order, that he register under the Sex Offender Registry Act, s. 490.013(2.1) for life, an order under s. 743(2.1) that he have no contact with the three victims, and Ms. A.B. for the period for which he is incarcerated, and orders under s. 161:
(a) to not attend a public park or a public swimming area where persons under the age of 16 are present or can reasonably be expected to be present, etc.,
(b) seek or obtain employment in a capacity that involves a position of trust or authority over persons under the age of 16; and
(c) not to have any communication or contact with a person under the age of 16 unless supervised, for life.
9The defence agrees that a mid-range penitentiary term should be imposed in this instance. Counsel suggests a period of five years’ incarceration less one year because of his expected deportation under the Immigration and Refugee Protection Act having been sentenced to more than two years’ incarceration for a serious criminal offence, less four months, as agreed with the Crown as appropriate credit for 80 days detention considered on an enhanced basis of 1.5 to 1, resulting in an aggregate sentence 3 years, 8 months.
10Counsel for G.W. submits that the order requested under s. 161 (a) and (c) should not be made in this instance given that G.W. has children under the age of 16, and there being no evidence of any transgressions since his last contact with the victims in 2005, as well as his wife’s declaration in her letter of support (Exhibit No. 1b), they intend to remain together. She wants him to continue to be the father to their children.
The Law: Sexual Abuse of Children and Breach of Trust
11In a case of this nature I am guided by the sentencing objectives set out in s. 718.01 of the Criminal Code that states:
When a court imposed sentence for an offence involving 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.
12Further, as set out in s. 718.2, the court shall also take into consideration as deemed aggravating circumstances:
(ii.1) Evidence that the offender, in committing the offence, abused a person under the age of 18 years;
(iii) Evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.
13Prior to the aforementioned additions to the Criminal Code, in Regina v. D.D. (2002), 2002 CanLII 44915 (ON CA), O.J. No. 1061, Moldaver J.A., as he then was, speaking on behalf of the Ontario Court of Appeal stated at para 34:
Adult sexual predators who put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718(a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over other recognized objectives in sentencing.
14In D.D., Moldaver J.A. further stated at para 44:
…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 would generally be appropriate. Finally in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. (Emphasis added)
15Counsel acknowledged that in the circumstances of this case in which there was a breach of trust involving the sexual abuse of young children on a regular and persistent basis over a substantial period of time, the appropriate penitentiary term to be imposed is in the mid to upper single digit range.
16In R. v. D.M., 2012 ONCA 894, [2012] O.J. No. 6059, the Ontario Court of Appeal in considering the application of Justice Moldaver’s oft quoted statement as to the appropriate sentence within the mid to upper single digit penitentiary term and the circumstances in which it would require either a five year or more term, stated the following at para 68:
First, in those cases where this court has either upheld or imposed penitentiary sentences of five years or more, one or more of the following aggravating circumstances has been present:
Sexual intercourse (vaginal or anal)
Oral sex
Incest
More than one victim
Grooming of the victim
Other acts of physical violence or threatened physical violence to obtain compliance and keep the abuse a secret
A previous criminal record for sexual abuse.
17Examples of these cases in recent years include R. v. P.M., 2012 ONCA 162, 282 CCC (3rd) 450; R. v. Cloutier, 2011 ONCA 484; R. v. J.L., 2009 ONCA 788; R. v. D.G.F., 2010 ONCA 27, 98 O.R. (3d) 241; R. v. W.Q. (2006), 2010 CCC (3d) 398 (C.A.); R. v. R.B. (2005), 2005 CanLII 30693 (ON CA), 77 O.R. (3d) 171 (C.A.).
18In D.M. the Court of Appeal in considering the sentence imposed on an offender who committed eight counts of sexually molesting his step-daughter over an eight year period which involved sexual touching, digital penetration, but not intercourse, five years imprisonment was reduced to four.
19The Court also referenced a number of decisions in which the Court either upheld or imposed sentences of less than five years such as R. v. F. (I.) 2011 ONCA 2003 in which a four year sentence was imposed for a man who abused his three step-granddaughters over an eight year period, the abuse of which included fondling, masturbation, oral sex and acts of grooming. In that case, it should be noted that a significant mitigating factor was the accused’s early guilty plea and his acceptance of responsibility.
Aggravating Factors
20In looking at the list provided by the Court of Appeal in D.M., three of the considerations listed are present in this case in addition to there being a breach of trust: the offences involved more than one victim, there was oral sex and grooming behaviour with respect to the victim through use of pornography, treats and cash. Further, there were repeated acts of masturbation, and simulated intercourse over an extended period of time with respect to M.B.1 and S.P.
21I note as well that G.W. continued his repeated interference with the children even after Ms. A.B. had warned him away from her children when she “caught him” with M.B.2.
22Although the victims declined to provide victim impact statements in this instance, it was clear that G.W.’s sexual abuse of them had a profound effect on them, as well as their families. It is observed in R. v. Woodward (2011), 2011 ONCA 610, O.J. No. 4216 at para 45 the effect of sexual predation of children:
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!
23In this instance, G.W.’s sexual predation of the children caused Ms. A.B. and her sister P.T. and their daughters to become estranged because as they saw it Ms. A.B. had brought him into their lives and the molestation of the children.
Mitigating Factors
24I take into account that G.W. has no criminal record and he is a first time offender. He appears to have substantial community support however, it is likely that he will be deported under the IRPA. Counsel for G.W. submits, the fact that he would be deported should be considered as a relevant factor to the imposition of sentence. It is noted in R. v. Critton 2002, CanLII 3240 (ONSC) by Justice Hill at para 86, an accused’s deportation may in some circumstances be considered a factor to mitigate the severity of the sentence imposed. It is relevant he suggests in at least three respects:
The risk of incomplete rehabilitation on the release from custody is not a risk imposed upon the Canadian people;
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; and
Canadians are spared the expense of continued incarceration of the accused where the offender is deported.
25In R. v. Hamilton, 2004 CanLII 5549 (ON CA), 2004 O.J. No. 3252, Doherty J.A. noted that “the risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and principles of sentencing identified in the Criminal Code. The sentencing process cannot be used to circumvent the provisions of the policies of the Immigration and Refugee Act.” He added however, that there are two types of cases where deportation can be considered; one, where deportation is inevitable and where for pragmatic reasons as set out in Critton, there may be “some reduction” in the term of imprisonment, and two, where deportation can be avoided by a modest adjustment of the sentence. The latter circumstance is not apposite in this instance.
26In G.W.’s situation, considering the Critton factors, his family, friends and supports are here and the real hardship will be on deportation to his homeland.
Sentence
27I recognize that G.W. has no criminal record and appears to have otherwise led a pro-social life by maintaining gainful employment and by being an active member of his church community with a reputation as being a good family man. Unfortunately, often those who commit such deplorable, deviant, self-gratifying sexual acts upon children as he has in private present as trustworthy and respectable publicly. So much more the horror of the betrayal of children by a person they trust in the place where they should have felt the safest, and the need to denounce such abhorrent conduct.
28G.W. committed repeated sexual acts of abuse involving three children over an extended period of time and as such warrants the imposition of a penalty in the mid to upper single digit range as outlined by Moldaver J.A. in D.D. In considering all of the aggravating factors and those in mitigation an overall sentence of five and a half years’ incarceration would be appropriate and within the range. However, with a slight reduction due to an inevitable deportation and credit of four months pre-sentence custody on a 1.5 to 1 basis a global sentence of 5 years in a penitentiary is appropriate.
29As to the ancillary orders, the offender is ordered to provide a DNA sample pursuant to s. 487.051 of the Criminal Code, the offender is to register under the Sex Offender Information Registration Act, pursuant to s. 490.012 of the Code for life. There will be an order under s. 743.21 that he shall have no communication directly or indirectly with the victims, M.B.2 and M.B.1, and S.P., or Ms. A.B. and P.T. during the custodial period of the sentence.
30I decline to make an order under s. 161 of the Criminal Code so as not to inhibit familial relationships with his children. Moreover, it appears unnecessary in this case as there is no history of G.W. preying on children in public places or any reason to believe he would do so in the future.
A.J. O’Marra J.
Released: July 4, 2017
CITATION: R. v. W., 2017 ONSC 3149
COURT FILE NO.: CR-15-70000402-0000
DATE: 20170704
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
G. W.
Defendant
REASONS FOR sentence
a.j. o’mARRA J.
Released: July 4, 2017
