CITATION: R. v. S.A.H. 2017 ONSC 51
COURT FILE NO.: CR-14-0062
DATE: 2017-01-10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen,
A. Sadler, for the Crown
- and -
S. A. H.
C. Watkins, for the Accused
Accused
HEARD: December 2, 2016, at Thunder Bay, Ontario
Mr. Justice W.D. Newton
WARNING
AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4(1)(a) OF THE CRIMINAL CODE OF CANADA
Reasons For Sentence
Overview
[1] S.H. was charged with two offences:
That he, S.A.H., between the 18^th^ day of April in the year 2006 and the 18^th^ day of April in the year 2012 at the City of Thunder Bay in the said Region, did for a sexual purpose touch J.W. a person under the age of sixteen years directly with a part of his body to wit: his penis, contrary to Section 151 of the Criminal Code.
And Further
That he, S.A.H., between the 18^th^ day of April in the year 2006 and the 18^th^ day of April in the year 2012 at the City of Thunder Bay in the said Region, did commit a sexual assault on J.W., contrary to Section 271(1) of the Criminal Code.
[2] Following trial, reasons reported at 2016 ONSC 4492, a conviction was entered with respect to Count 1 and the charge set out in Count 2 was stayed conditionally.
[3] A presentence report was ordered.
The Facts
A. Circumstances of the Offence
[4] J.W. is S.H.’s stepdaughter. At the time of the offences, S.H. was living with J.W.’s mother, J.W., J.W.’s older brother from another father, and two younger male siblings from S.H. and J.W.’s mother’s relationship. J.W. was born in 1999.
[5] At trial, I found that, on multiple occasions, S.H. rubbed his penis against J.W. when she was between eight and 12 years old. By age 12, she was able to resist S.H. Sometimes, S.H. used Vaseline. On two or three occasions, J.W. felt pain associated with penetration.
B. Circumstances of the Offender
[6] S.H. is 48. He was born and raised in Thunder Bay.
Presentence Report
[7] The probation officer interviewed S.H., his estranged wife (J.W.’s mother), S.H.’s mother, a friend, and his current employer.
[8] S.H. has a grade 10 education. He has worked, on and off, for over 25 years at a local “fast food” restaurant. He has also had other jobs, ranging from construction to security guard.
[9] His employer describes him as a “valued employee” who is very reliable, hard-working, professional, and courteous.
[10] As a result of the current charges, S.H. has no contact with his stepchildren but continued contact with his sons. Both S.H. and his former wife stressed the importance of the subject’s access to his minor children. S.H. is in a new relationship with another woman. This relationship was reported as healthy, stable, and supportive.
[11] S.H. reports using marijuana daily ever since his marriage to J.W.’s mother. S.H. says that this is to aid in pain management for back, shoulder, and knee problems. Both his long-time friend and current employer are not aware of any drug or alcohol issues.
[12] The probation officer concluded:
The subject, S.H., appears before the Court for the first time in over 20 years at the age of 48. By all accounts, the subject is highly prosocial. He benefited from a stable and supportive upbringing, is gainfully employed, and has a supportive social network. According to his employer, the subject is a valued asset to his business.
The subject has faced some adversities, notably the dissolution of his marriage, physical separation from his biological children, and chronic pain issues resulting from various injuries. He also recently endured the loss of a close friend. He adamantly denies having a sexual inclination towards female children and denies committing the offence. Comments from his mother regarding interaction between he and his stepdaughter is concerning, although sources indicate the nature of the offence is out of character. He does not have an identifiable mental, intellectual or cognitive impairment or disorder, aside from Attention Deficit disorder, alertness disability. He acknowledged a prior alcohol abuse problem and reportedly continues to be a regular user of marijuana. It is unknown if use of an illicit substance was a factor in offending.
The subject is an active father to two teenage sons. He expressed desire to resume a closer role in parenting these children. His estranged wife is very supportive of his involvement with the youngest children. As noted, the subject does not readily have access to other children under 16.
Presentence Report Recommendations
[13] Recommendations included treatment for sexual offending in provincial institutions and or community supervision and assessment by the Northwestern Ontario Sexual Behaviours Clinic. Unfortunately, no recommendations were made with respect to programming in federal institutions given the range of sentence set out in various appellate decisions.
C. Impact on the Victim and/or Community
[14] J.W., who has since moved away to live with other family, read her Victim Impact Statement which I reproduce below in its entirety. J. W. said:
The impacts of sexual abuse for me have been devastating, profound and far reaching. It has impacted every area of my life and every part of myself. Almost immediately after the very first time I was assaulted, I lost myself. And still to this day I continue to be held back and limited in life since this event.
First of all, I lost my childhood. My childhood consisted of living in fear. Being scared to be left alone with my dad because I knew what was going to happen. Betrayal. Being betrayed by both people that were supposed to protect me, being betrayed by the man that I called Dad. And of course there was a lot of confusion.
I became very withdrawn, I lost my social life, my confidence and my self-esteem, my dignity and my self-respect. I turned to isolation because it felt the safest. I fell deep into the hole and couldn’t get myself out.
I began to cut myself when I was 12 years old, I felt like that was my only way to escape. I got so deep into the habit that, that’s all I would want to do. Before I’d go to school I would do it, right after I would. I even did it while I was at school. I became so good at hiding it but it got worse. First it started on one wrist but that turned into my whole body. As my wounds got deeper I felt so worthless and ugly but I couldn’t stop. I fell back in school. I started to not go in grade 7. I felt like I couldn’t do it. I couldn’t grasp things like the other kids. I couldn’t concentrate and since I had a hard time with the work I felt as if I was stupid so I didn’t go.
High school came around and I had no idea what I was doing with a grade 6 level. I became severely depressed so I dropped out in grade 10. Things got worse. I became very suicidal. I didn’t care if I was alive anymore. I barely ate I just didn’t to live. October 2014 I was admitted into the child and adolescent mental ward for 2 weeks. I was going to hang myself. After the 2 weeks of being on suicide watch I was discharged and shortly after I was sent to treatment for 3 months. I seen a physiatrist and I was prescribed anti-depressants.
I was determined to leave Thunder Bay after I was done at treatment, Thunder Bay is too toxic for me to live in. On July 18 2015 I moved to southern Ontario with my family on my biological father’s side. I’ve been living there for a year and 4 months.
This year I’m going to be 18 years old and there is not a day that goes by that I don’t want to be alive anymore. I still struggle with everyday life whether it’s just getting out of bed in the morning. I struggle with major depression. I’ve been depressed for so long now I just feel numb. I struggle with social anxiety. My anxiety holds me back from so many things. I have a hard time developing friendships and relationships even just the simple things like talking to people. Over all what has been done to me has affected my whole life. I feel like I will never be the same person as I was before. I carry the guilt on my shoulders for my family. I was always scared of my family falling apart which is why I was scared of saying anything. Now my little brothers can’t grow up with their dad in the same house and all they think is I’m the reason why he isn’t there anymore. I just hurt in so many ways.
Legal Parameters
[15] The following Criminal Code provisions apply:
Purpose and Principles of Sentencing
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. R.S., 1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6; 2015, c. 13, s. 23.
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. R.S., 1985, c. 27 (1st Supp.), s. 156; 1995, c. 22, s. 6.
Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
… shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(d) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. 1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25; 2012, c. 29, s. 2; 2015, c. 13, s. 24, c. 23, s. 16.
[16] In R. v. Woodward, 2011 ONCA 610, the Court of Appeal reviewed sentencing parameters for sexual assault of children and again adopted the principles enunciated earlier in R. v. D.D., 58 O.R. 788 (C.A.). At paragraph 72, 73, and 76 the Court summarized the relevant considerations and principles 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 offenders 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.
73 The foregoing concerns inform the fundamental message that D.D. sought to convey at para. 45:
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 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!
76 In so concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender’s prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society’s well-being and the well-being of our children must take precedence. [Emphasis added.]
Positions of the Crown and Defence
[17] The Crown relies upon Woodward, D.D., and other cases including R. v. D.M., 2012 ONCA 520, in seeking a penitentiary sentence in the range of six to eight years. The Crown stressed the aggravating factors already set out above in s. 718.2 and submits that the duration and frequency of the assaults are further aggravating factors as is the fact that the majority of these assaults took place in the home where everyone, especially children, should be safe from harm. In addition to the mandatory ancillary orders, the Crown also seeks discretionary orders under s. 161(1) prohibiting S.H. from attending locations where young people are or can reasonably be expected to be present and prohibiting S.H. from being in any position of trust or authority towards young persons. The Crown also seeks an order under s. 743.21 that S.H. not communicate, directly or indirectly, with J.W.
[18] Counsel for S.H. acknowledged that denunciation and deterrence are the governing considerations in cases such as this. Given S.H.’s circumstances and, in particular, his lack of criminal background and good work history, counsel suggested that the appropriate penitentiary term would be in the range of three to four years. Counsel also submitted that a parks and playgrounds prohibition is not required given the circumstances of this conviction and fact that S.H. has two younger sons.
Reasons and Sentence
[19] S.H. has seven days of presentence custody. The Crown acknowledges that credit at 1.5 days is appropriate and that, therefore, S.H. is to be credited with 11 days of presentence custody.
[20] In imposing sentence I have considered, as instructed by the Court of Appeal decisions, that the objectives of denunciation and deterrence must take precedence.
[21] I am guided by the fundamental principle that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I recognize that, in committing this offence, S.H. abused a person under the age of 18 and that he, as stepfather, abused a position of trust and authority. I also recognize that this has had a significant impact on J.W. The impact upon her has been, as she said, “devastating, profound and far-reaching.” As stated in Woodward, “the focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life altering consequences that can and often do flow from it.”
[22] Not everyone will be as brave and as articulate as J.W. in describing the consequences of her victimization. J.W. lost her social life, her confidence, her self-esteem, her dignity, and her self-respect. J.W. self-harmed, has been suicidal, and has been hospitalized. J.W. struggles with major depression and social anxiety. And, despite the fact that she bears no responsibility, J.W. feels guilt.
[23] A custodial sentence is necessary to reflect the objectives of denunciation and deterrence, the gravity of the offence, and the aggravating factors including the harm caused to J.W. I note S.H.’s work history and lack of prior significant criminal conduct.
[24] Please stand Mr. H.
[25] Mr. H., after considering all the relevant factors and sentencing principles, I conclude that the appropriate sentence in this case is six years and that, therefore, with credit for presentence custody, the effective sentence shall be an additional five years and 354 days in a federal penitentiary. I recommend that you also be provided with appropriate counselling.
[26] As a further consequence of your conviction, ancillary orders are mandated by the Criminal Code. Pursuant to section 109(1)(a), you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, and explosive substances for a period of 10 years. Pursuant to section 487.051, you are required to provide samples of bodily substances reasonably required for DNA analysis to the national DNA databank. Pursuant to section 490.012, you are to comply with the Sex Offender Information Registration Act for 20 years. Pursuant to section 737, you must also pay a victim surcharge of $200 and that is payable within 90 days.
[27] Further, I make the following discretionary orders. Pursuant to section 743.21, I order that you do not communicate, directly or indirectly, with J.W. during the custodial period of your sentence. Pursuant to section 161, I order that you not come within two kilometres of any dwelling house where J.W. ordinarily resides. Further, I order you are not to become employed or become a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years. I do not, as requested by the Crown, prohibit you from attending public parks, school grounds, etc., given the fact that you have children.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: January 10, 2017
CITATION: R. v. S.A.H., 2017 ONSC 51
COURT FILE NO.: CR-14-0062
DATE: 2017-01-10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen,
- and -
S.A.H.
Accused
REASONS FOR SENTENCE
WARNING
A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING
UNDER S. 486.4(1)(a) OF THE CRIMINAL CODE OF CANADA
Newton J.
Released: January 10, 2017
/sab