SUPERIOR COURT OF JUSTICE
ONTARIO
B E T W E E N:
HER MAJESTY THE QUEEN
M. Stevens, for the Crown
- and -
SAM S.
J. Osuji, for the Defence
HEARD: December 14, 2016, at Brampton
REASONS FOR SENTENCE
André J.
1I convicted Mr. Sam S. on September 29, 2016, following a bench trial, of the offence of sexual interference and invitation to sexual touching. The Crown seeks a sentence of five years imprisonment while Mr. Sam S.’s counsel seeks an intermittent sentence of forty-five days. I must now decide, pursuant to s. 718.1 of the Criminal Code, R.S.C. 1985, c. C-46, what is a proportionate sentence given the gravity of the offence and the degree of responsibility of the offender.
BACKGROUND FACTS
2Mr. Sam S. was a member of a small church community of which he was the treasurer. The church pastor was a very good friend of his to a point where the two men had keys to each other’s homes. The victim, who is the pastor’s daughter, babysat Mr. Sam S.’s two children for a number of years.
3I found Mr. Sam S. guilty of sexually assaulting the victim when she was between the ages of 8 and 16 years. His acts escalated from touching her inappropriately over her clothes to touching her under her clothing, digitally penetrating her, attempting to anally penetrate her, licking her vagina, inviting her to touch his penis and placing her hand on his penis. Mr. Sam S. ensured the victim’s silence by threatening to show a video which purported to show her stealing money from a cashbox in his house.
4The victim initially told her father about the incidents after she had consumed alcohol and after he promised not to tell anyone. The victim’s father advised his wife who then told the church authorities. Following a meeting in which the victim asked Mr. Sam S. to apologize for his actions, the victim gave the police a statement concerning Mr. Sam S.’s actions during the eight-year period.
VICTIM IMPACT STATEMENT
5The offences have had a significant impact on the victim. For some time she contemplated suicide. She fears having children of her own out of fear that they may be sexually abused by someone. She has also had to endure ostracism from her community because she reported the abuse. She wrote that “this experience will live with me for the rest of my life.”
PRESENTENCE REPORT
6The 50-year-old accused came from Laos. He has been in Canada for approximately 20 years and is a Canadian citizen. He has two children and is the major breadwinner for his family. The probation officer indicated that Mr. Sam S. has not shown any remorse and continues to deny any inappropriate conduct with the victim. However, in an oral statement to the court during the sentencing hearing, Mr. Sam S. apologized to the victim and her family for his actions.
ANALYSIS
7In determining an appropriate sentence, I must assess the gravity of the offence and the degree of responsibility of Mr. Sam S. Assessing the gravity of the offence necessarily involves a consideration of the aggravating factors in this case and the applicable sentencing jurisprudence regarding the offences for which Mr. Sam S. has been found guilty.
8In my view, the aggravating factors are as follows:
The incident involved a gross and egregious violation of the victim’s integrity;
The acts complained about took place over a period of eight years;
The acts involved digital penetration and an attempt to have intercourse with the victim;
The acts were perpetrated on the daughter of a close friend of Mr. Sam S. She was his children’s babysitter. The victim also referred to the accused as “uncle”. This constituted a breach of trust which, pursuant to s. 718.2 (a)(iii) of the Code, is statutorily aggravating;
In committing the offences, Mr. Sam S. abused a person under the age of eighteen years, a fact which is statutorily aggravating, pursuant to s. 718.2(a) (ii.1) of the Code.
Mr. Sam S. ensured the victim’s silence by threatening to make public a videotape which did not exist.
Mr. Sam S. has a conviction for sexual assault which involved a seven-year-old girl. However, this conviction is dated, having been registered in 1991.
The acts perpetrated by Mr. Sam S. have had a significant impact on the victim.
9Assessing the degree of responsibility of Mr. Sam S. involves a consideration of the following factors:
There was no violence during or following the incidents;
Mr. Sam S. has a good work history and is his family’s main breadwinner;
Mr. Sam S. has the support of his family and a few friends in his community;
Mr. Sam S. has expressed a limited degree of remorse to the victim and her family.
10What is a proportionate sentence in this case having regard to the aggravating and mitigating factors? The applicable sentencing jurisprudence provides some guidance about the sentence range for sexually inappropriate conduct against children, where the acts include digital penetration, attempted penile penetration and invitation to sexual touching.
11The Court of Appeal has indicated in many cases that offenders who sexually abuse children will face, if convicted, a lengthy period of incarceration. For example, in R. v. D.(D.), 2002 CanLII 44915 (ON CA), [2002] 50 O.R. (3d) 788, [2002] O.J. No. 1061, the Ontario Court of Appeal noted at paragraphs 44 that:
[A]s a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over a substantial period of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and is accompanied by other acts, physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate.
12In R. v. Medeiros, 2014 ONCA 602, [2014] O.J. No. 3859, the Court of Appeal upheld a sentence of five years imprisonment for an accused who had sexually assaulted the eleven-year-old daughter of his girlfriend for approximately two years. The acts did not involve actual penetration. The appellant submitted on appeal that where there was no penetration, the starting point for sentence for sexual offences against a child by an adult in a position of trust or authority is three years in jail.
13In response to this submission, the Court of Appeal stated at paragraph 7:
We reject this ground of appeal. It is immaterial in this case whether the appropriate starting point for the fashioning of a fit sentence for the appellant was three years in jail, as now urged by the appellant, or five years in jail, on the authority of D.(D.). Counsel for the appellant submitted at the sentencing hearing that the appropriate range of sentences on the facts here was between two to five years’ imprisonment. Thus, the sentence imposed by the sentencing judge was at the upper end of the range acknowledged by the appellant as appropriate in all the circumstances, and at the low end of the range contemplated in D.(D.).
14In R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216, at paragraph 75, the Ontario Court of Appeal noted that:
Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term.
15In R. v. D.M. 2012 ONCA 520, 111 O.R. (3d) 721, the Ontario Court of Appeal noted the following at paragraphs 65 to 69:
Over 20 years ago, in R. v. B.(J.) (1990), 36 O.A.C. 307, this court said that, except in unusual cases, where a person in a position of trust sexually abuses a child, and the abuse includes sexual intercourse, the range of sentence is three to five years in the penitentiary: para. 5…
However, several decisions of this court in the last decade demonstrate that the range outlined in R. v. B.(J.) is no longer appropriate. We have recognized that sexual abuse of children by a person in a position of trust or authority now warrants more severe sentences, and where the abuse includes sexual intercourse, in most cases, a three- to five-year range is too low. The trial judge referred to one of our decisions, R. v. D.(D.) (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788, and cited Moldaver J.A.’s oft-quoted statement “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”: para. 44. See also: R. v. D.M., 2012 ONCA 520, 111 O.R. (3d) 721.
… 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 secret
A previous criminal record for sexual abuse
69Examples of these cases in recent years include R. v. P.M., 2012 ONCA 162, 282 C.C.C. (3d) 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), 2006 CanLII 21035 (ON CA), 210 C.C.C. (3d) 398 (C.A.); R. v. R.B. (2005), 2005 CanLII 30693 (ON CA), 77 O.R. (3d) 171 (C.A.).
16These cases clearly suggest that the range of sentence in cases involving the sexual abuse of a child where intercourse, violence and a breach of trust form part of the factual matrix, the appropriate sentence range is 5 to 9 years imprisonment. A 45-day intermittent sentence, in the circumstances of this case, would therefore be manifestly unfit.
17Mr. Osuji also submits that the statutorily aggravating factor regarding a breach of trust does not apply in this case.
18There is no merit to this argument. Mr. Sam S. was a very close friend of the victim’s family. She called him “uncle”. She babysat his kids. These factors, individually and cumulatively, establish that Mr. Sam S. was in a breach of trust position vis-à-vis the victim.
19The aggravating factors bring this case within the sentence range established by the Court of Appeal in D.M. First, there was evidence that Mr. Sam S. attempted to have intercourse with the victim. Second, he had oral sex with her. Third, he has a previous criminal record for sexual abuse, albeit a very dated one. Fourth, he engaged in extortionate behaviour by convincing the victim that he had a video of her stealing from his home. Fifth, the sexually inappropriate acts occurred over a significant period. To these could be added the significant impact which the sexual acts had on the victim.
20In my view, the mitigating factors do not take this case outside of the sentence range established in D.M. In many cases involving sexual abuse of a minor, the offender exploits the special relationship between himself or herself and the victim not only to perpetrate the acts but to ensure the victim’s silence. It is not unusual that this is done without violence or the threatened use of violence. To that extent, the absence of violence or threats of violence does not take this case outside the sentence range set out in D.M.
CONCLUSION
21Mr. Sam S. is sentenced to 5 years imprisonment on the charge of sexual assault, concurrent on the second charge.
ANCILLARY ORDERS
DNA order (primary designated offence), pursuant to s. 487.051.
A weapons prohibition order, pursuant to section 109 order, for life.
SOIRA order for life.
Section 161(1)(b) order for life.
Section 743.21 order prohibiting Mr. Sam S. from communicating with the victim while he is in custody.
André J.
Released: January 16, 2017
CITATION: R. v. Sam S., 2017 ONSC 354
COURT FILE NO.: CRIMJ (P) 946/15
DATE: 20170116
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
SAM S.
REASONS FOR SENTENCE
André J.
Released: January 16, 2017