R. v. K.M., 2017 ONSC 4769

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

K.M.

Brian Moreira, for the Crown

Jeff Mazin, for the accused

HEARD: June 22, 2017

Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.

K.L. Campbell J.

Reasons for SENTENCE

A. Introduction

1The accused has been found guilty of sexually touching two of his daughters. More specifically, he was found guilty of (1) sexually assaulting; and (2) touching, for a sexual purpose, while under 16 years of age – his daughters R.M. and A.M. Essentially, both complainants testified that the accused, their biological father, repeatedly sexually fondled them over significant periods of time. On occasion, each of the complainants witnessed the accused sexually touching the other complainant. The accused now appears for sentencing.

2The parties agree that the rule against multiple convictions requires that the finding of guilt for the two offences of sexual assault be conditionally stayed, but that convictions should be entered with respect to the two offences of sexual interference. I agree. Accordingly, a conditional stay of proceedings will be entered on counts one and three of the indictment, and convictions will be entered on counts two and four of the indictment.

3The Crown contends that the accused should be sentenced to a penitentiary term of three to four years imprisonment. Defence counsel argues that, after the accused is given the appropriate credit for his brief time in custody following his arrest and his time under “house arrest” while on judicial interim release, he should be given a reformatory term of imprisonment between 18 months and two years less a day, and a three-year term of probation. The parties agree, for the most part, on the ancillary sentencing orders that should also be made in this case.

4In my view, for the following reasons, the accused should receive an effective sentence of three years imprisonment. Accordingly, after giving him two months credit for his time in custody and on house arrest, the accused is sentenced to a penitentiary term of 34 months imprisonment, concurrent, on counts two and four of the indictment. He will also be subject to certain ancillary sentencing orders.

B. The Basic Facts of the Offences

5The detailed factual background of the offences committed by the accused are fully outlined in the reasons for judgment rendered at the conclusion of the trial. See R. v. K.M, 2017 ONSC 2373, [2017] O.J. No. 2039. The testimony of the complainants A.M. and R.M., which I accepted as true, is outlined at paragraphs 21-37 and 38-58 respectively. The following is, essentially, a summary of their testimony as to the basic facts of the offences.

6According to A.M., the sexual touching by her father took place, for the most part, when she was between six and eight years of age, when she was still regularly sleeping with her father in their family residence. A.M testified that the accused would touch her around her “waist and pelvic area and her crotch.” While this touching took place over her night clothing it felt more like “groping.” Usually, the touching happened when she had her back toward the accused. The “furthest” the sexual touching went was when the accused groped her crotch area. A.M. testified that the accused also grabbed her bum, and this touching would last a little bit longer, and would happen more frequently. She also mentioned that the accused would, every once in a while, touch her chest, but at that age she was “quite under developed.” As to the frequency of this sexual touching, A.M. provided a “ball park” estimate of about three times a week. Sometimes it happened during naps that her father would take in the afternoon. A.M. testified that, on two or three occasions, she saw the accused similarly “groping” her sister R.M. near her “crotch area.”

7According to R.M., the sexual touching by her father started when she was three or four years of age, when he would put his hands on her chest area, her vaginal area, and on her buttocks. This type of sexual touching continued, on and off, at night and during day-time naps, until she was 14 or 15 years old. It happened when they slept together in the master bedroom, and later in her own bedroom, of their family home. R.M. testified that sometimes the touching of her buttocks was over her clothing, and sometimes under her clothing. The touching of her chest, was under her clothes when she was younger and, sometimes, after she had begun to develop breasts, the accused unclasped her bra for this purpose. R.M. distinctly remembered this happening “many times” when they were in bed together. The fondling and rubbing of her vaginal area took place over her clothing, and took place less frequently. Sometimes the accused would slip his hand down the front of her pants onto her vaginal area, but it was always over her underwear. As to the frequency of the sexual touching by the accused, R.M. testified that it usually happened to her on a weekly basis. R.M. testified that she often witnessed the accused engage in similar sexual touching with respect to her younger sister A.M.

C. The Impact of the Offences on the Two Complainants

8Both complainants prepared victim impact statements. Clearly, the sexual offences committed against them by their father had a deep and lasting impact on their lives.

9In her statement, A.M. noted that she had become a victim of this sexual abuse by the time she was in kindergarten. A.M. complained that, from a very young age, the accused trained her to believe that her “only value” was “to be used sexually.” She suggested that her difficulties in connecting intimately with others was due to her devalued self-worth. She explained that she finds herself unable to avoid mistreatment by others as she never learned how to say “no.” She indicated that her current reliance on marihuana is caused by the “emptiness” she feels when she is “not high.” She expressed a lack of motivation towards her studies, and complained that she inherited her attendance and punctuality weaknesses to the accused. A.M. explained how she feels that she is unable to control her life, and feels “ashamed and dirty” and “damaged.” According to the complainant, the accused knowingly tormented her in her youth, when she completely trusted him and wanted his love and acceptance, but he only hurt her. Now she is afraid of men, and feels less than whole. A.M. expressed the desire to want to “be better” than how the accused made her, and for him to see her better self.

10In her statement, R.M. described the long-term effect of her “broken family” and “not having a true father.” She explained that she now suffers from anxiety, post-traumatic stress disorder, insomnia, nightmares, nausea, panic attacks, and paranoia, and continues to receive psychiatric care. Daily life is a struggle, and R.M. frequently relies on alcohol and marihuana to try to maintain a normal life. She has attempted suicide more than once, and continues to fight against thoughts of self-harm. She must take daily prescription medication for the permanent heartburn she experiences due to stress. R.M. noted that she dropped out of high school due to the “constant turmoil of [her] everyday life” and is unable to hold down any long-term position of employment due to these ongoing issues. According to R.M., she is unable to maintain close relationships with others as the actions of her father have made her “constantly mistrustful of others.” She is plagued with pessimism and sees her life as a “disaster.” She explained that she is “most hurt” that she cannot be with her family in her own home.

11Notwithstanding the devastating personal consequences of these sexual offences on the complainants, after seeing them give their testimony, I have concluded that both are impressive young women – smart and articulate – with great potential to still be contributing, well-educated and well-employed members of society, with personally rewarding lives.

D. The Personal Circumstances of the Accused

12The accused is 52 years of age. He has no prior criminal record.

13Like his two sisters, the accused was born and raised in Trinidad, where his parents lived a simple life. Their father worked for a government electrical company for many years. Their mother operated a family restaurant. The accused graduated from high school in 1981. Thereafter he worked in the family restaurant and helped his parents build their family home.

14The accused obtained employment in Trinidad in 1985 with a company that sold food wholesale to supermarkets. He first came to Canada in late 1988 while working for this sales company. He remained in Canada after the company disbanded, and began to work in computer sales and technical support. The accused became a Canadian citizen in 1992. He completed a one-year computer system information program at the DeVry Institute of Technology in 1994, and worked in computer sales until 1998. Subsequently, he obtained employment as a security guard, and worked in that capacity until 2004. After three years as a “stay-at-home dad,” the accused began work as a caretaker with the local school board. Upon his conviction for these offences, this employment was terminated.

15In 1991 the accused married the woman who later became the complainants mother. Their marital relationship was stressful from the very outset given that his wife’s parents did not accept him, said they would never accept him, and wanted her to end their relationship. When she would not, she was “disowned” by her family and “cut off completely.” The accused and his wife had five children together, including the two complainants. Their family was dysfunctional and “extremely volatile.” The accused complained that his wife drank alcohol excessively and was physically abusive to the children. His wife complained that the accused was a poor husband and provider, could not accept that she was the “breadwinner” in the family, and blamed her for “everything that was wrong.” His wife also complained about his abuse of alcohol, and how he subjected her and their children to emotional and physical abuse. The Catholic Children’s Aid Society was involved in their lives for a number of years, and the children were “apprehended” from the family home more than once. The accused is now divorced from his former spouse. The accused has been ordered to make monthly child support payments to his ex-wife, but is not permitted any access to his children.

16The accused’s father passed away in 1994, but the accused still has daily telephone contact with his mother, and regular contact with his eldest sister. As the author of the pre-sentence report noted, beyond these family contacts in Trinidad, the accused “does not appear to have any close supportive relationships.” His other sister committed suicide after suffering from depression.

17The accused has no ongoing health issues, but has a history of depression. He was first diagnosed as suffering from depression in 2007, and he began taking antidepressant medications. Subsequently, after learning that he was charged with these offences, he went into a “major depression.” However, since 2015, the accused had not needed any medication for depression.

18The accused has shown no remorse for his involvement in these offences. To the author of the pre-sentence report, the accused vehemently maintained that he is innocent of these offences and was “wrongfully convicted.” The accused asserted, more particularly, that “none of this happened” and that these charges were the “result of a high conflict divorce” with “one spouse alienating the kids against the other.” The allegations, according to the accused, included “borrowed events that occurred between [he] and [his] wife in private,” and that “this is their mother projecting herself” onto the complainants. The accused essentially reiterated this position orally when given the opportunity to speak on his own behalf at the conclusion of the sentencing hearing.¹

E. The Governing Sentencing Principles

19Pursuant to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” by imposing “just sanctions” that have one or more of the following objectives: (1) to denounce unlawful conduct; (2) to deter the offender and others from committing offences; (3) to separate offenders from society where necessary; (4) to assist in rehabilitating offenders; (5) to provide reparations for harm done to victims or the community; and (6) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and the community.

20Pursuant to s. 718.01 of the Code, when a court imposes a sentence for an offence that involved the abuse of a person under 18 years of age, it “shall give primary consideration to the objectives of denunciation and deterrence of such conduct.”

21According to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

22Section 718.2 of the Code requires a sentencing court to also consider a number of other principles: (1) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (2) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (3) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (4) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (5) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

23According to s. 718.2(a)(ii.1) of the Code, evidence that the offender, in committing the offence, “abused” a person under 18 years of age, is statutorily deemed to be an “aggravating circumstance” of the offence.

F. The Custodial Credits Due to the Accused

24Following his arrest, the accused spent approximately four days in custody before he was released on bail. The parties agree that he should be given the enhanced credit of 1.5 days for every day he spent in this pre-sentence custody. Accordingly, the accused should be given close to one week of credit for this time in custody. See R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at paras. 7, 32-35, 68-83.

25When the accused was released from custody on bail, he was initially subject to a term that required him to reside with one of his sureties and “remain in [his] residence at all times” except (1) when travelling to and from, and while attending work; or (2) when in the company of either surety or an adult designated by one of his sureties. This judicial interim release order remained in effect for a period of nearly seven months before it was varied and this “house arrest” condition was replaced with a curfew requiring the accused to be in his residence between midnight and 6:00 a.m. unless in the presence of his surety. I accept the submission of defence counsel that the accused should be given a credit of approximately one day in custody for every four days that he was subject to this “house arrest” condition (i.e. approximately 52 days in total). See R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321, [2006] O.J. No. 555 (C.A.), at para: 37; R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81, at paras. 36-37.

26In the result, fairly combining these custodial credits together results in a total credit of a full two months imprisonment. Accordingly, the custodial sentence that would otherwise have been imposed upon the accused will be reduced by two months.

G. The Sentence Imposed on the Accused

27In my view, in all of the circumstances of this case, the accused should effectively receive a three-year penitentiary term of imprisonment.

28Such a sentence is proportionate to the gravity of the sexual offences committed and the degree of responsibility of the accused. Instead of providing his two daughters with a safe and protective home environment, as was his obligation as their father, the accused flagrantly breached his important parental position of trust and sexually abused them both in their own home. Moreover, these offences were not a few isolated, spontaneous acts, but rather were part of a course of sexual misconduct undertaken by the accused, against his own young daughters, in which he regularly sexually exploited them over a significant period of time. The sexual abuse of R.M. spanned at least a decade – the vast majority of her childhood and her young teen years. The sexual abuse of A.M. also spanned a significant period of time. In robbing his daughters of their childhood innocence, the accused was driven purely by his own selfish interests, giving no thought to the negative repercussions to his daughters. These were serious sexual offences, for which the accused was entirely responsible, and they predictably caused serious, long-term emotional and psychological trauma to the complainants.

29A three-year penitentiary sentence also appropriately denounces the commission of sexual offences against children, and provides an effective deterrent to others against the commission of such sexual offences. Such a sentence should also serve to promote a much-needed sense of responsibility in the accused, and an acknowledgment of the great harm he has done to his daughters and to the community more generally.

30The governing sentencing jurisprudence supports the imposition of such a sentence, both in its articulation of the important sentencing principles to be applied in these circumstances and in the overall duration of the sentence that should be imposed. See R. v. D.D. (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788, 163 C.C.C. (3d) 471 (C.A.), at paras. 34-38, 44-45; R. v. I.F., 2011 ONCA 203, [2011] O.J. No. 1110, at paras. 2, 6-7; R. v. D.M., 2012 ONCA 894, 295 C.C.C. (3d) 159, at paras. 62-74; R. v. J.M., 2016 ONSC 4837, [2016] O.J. No. 4148, at paras. 38-39.

31At the same time, such a sentence also properly accounts for the mitigating circumstances of this case. Most significantly, the accused is a mature first offender with no prior criminal record. He is also a high school graduate with a significant history of gainful employment. Further, the sexual offences themselves were limited to countless acts of fondling and groping of the complainants by the accused, and never progressed to more egregious and invasive forms of sexual abuse. These mitigating circumstances, and the overall rehabilitative interests of the accused, prevent the sentence from being any longer.

32The reformatory sentence and probationary term advocated by defence counsel, in my view, would not properly reflect the gravity of these offences and their devastating impact on the complainants, nor would it serve to sufficiently denounce and deter the commission of such sexual offences against children. Such a sentence would greatly overemphasize the potential rehabilitation of the accused. Accordingly, I decline to impose such a sentence.

33In the result, after giving the accused his total of two months credit for his brief period of pre-sentence custody and his period of judicial interim release on house arrest, the accused is sentenced to a 34-month term of penitentiary imprisonment on counts two and four of the indictment, these sentences to run concurrently.

H. Ancillary Sentencing Orders

34In addition, in my view the following ancillary sentencing orders are appropriate in the circumstances of this case.

35First, pursuant to s. 487.051(1) of the Criminal Code, I make an order requiring that samples of bodily substances be taken from the accused for purposes of forensic DNA analysis. The sexual offences committed by the accused are “primary designated offences” as defined in s. 487.04(a) of the Criminal Code and, accordingly, such an order is statutorily mandated in the circumstances.

36Second, as the accused has been convicted of two “designated offences,” pursuant to the combination of ss. 490.012(1) and 490.013(2.1) of the Criminal Code I make an order requiring the accused to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for life.

37Third, pursuant to s. 161(1) and (2) of the Criminal Code, I make an order prohibiting the accused, for the rest of his life, from: (a) attending any public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre; (b) being within two kilometers of any dwelling house where either of the two complainants are known to ordinarily reside; and (c) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years.

38Fourth, pursuant to s. 743.21(1) of the Criminal Code, I make an order prohibiting the accused from communicating, directly or indirectly, with either of the two complainants during his custodial sentence.

39Fifth, pursuant to ss. 109(1)(a) and 109(2) of the Criminal Code, there shall be an order prohibiting the accused from the possession of any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of ten years after the accused is released from the period of imprisonment imposed today; and from the possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. While the offences committed by the accused clearly did not involve the use of any firearm or other weapon, the sexual offences committed against the complainants inherently involved a sufficient act of “violence” by the accused to trigger the obligation to impose this mandatory order. See R. v. Savard (1979), 1979 2936 (QC CA), 55 C.C.C. (2d) 286, 11 C.R. (3d) 309 (Que.C.A.); R. v. Broome (1981), 1981 3135 (ON CA), 63 C.C.C. (2d) 426, 24 C.R. (3d) 254 (Ont.C.A.); R. v. Currie, 1997 347 (SCC), [1997] 2 S.C.R. 260, 115 C.C.C. (3d) 205, at paras. 22-23; R. v. Killam (1999), 1999 2489 (ON CA), 29 C.R. (5th) 147, [1999] O.J. No. 4289, at paras. 1, 17-18; R. v. Bossé, 2005 NBCA 72, 288 N.B.R. (2d) 82, at paras. 7-16; R. v Aguas, 2015 ONSC 5732, [2015] O.J. No. 4739, at para. 56.

40Finally, I order that the accused pay a victim surcharge in the amount of $200 pursuant to s. 737(2)(b)(ii) of the Criminal Code. This was the amount of the surcharge at the time the accused committed these offences.

I. Conclusion

41In the result, the accused is sentenced to a 34-month term of penitentiary imprisonment, concurrent, on counts two and four of the indictment, and is also subject to the various ancillary sentencing orders that have been made as part of the sentencing process.

Kenneth L. Campbell J.

Footnotes

1. 1The fact that the accused has not accepted responsibility for his offences, or shown any sign of genuine remorse for his crimes, is not an aggravating circumstance on the issue of sentence. However, neither does remorse or regret provide the accused with any mitigation on the issue of sentence. See R. v. Kozy (1990), 1990 2625 (ON CA), 58 C.C.C. (3d) 500 (Ont.C.A.), at pp. 505-506; R. v. Anderson (1992), 1992 6002 (BC CA), 74 C.C.C. (3d) 523 (B.C.C.A.), at pp. 535-536; R. v. Brown, [1993] O.J. No. 624 (C.A.); R. v. Valentini (1999), 1999 1885 (ON CA), 132 C.C.C. (3d) 262 (Ont.C.A.), at para. 80-85; R. v. L.(C.), 2013 ONSC 277, [2013] O.J. No. 114, at paras. 80-81.