CITATION: R. v. C.C., 2017 ONSC 5604

COURT FILE NO.: CRIM J(P) 1580/16

DATE: 2017 09 21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

S. Stackhouse for the Crown

and -

C.C.

J. Parise for the Defendant

Defendant

HEARD: April 20, August 8 and August 29, 2017

REASONS FOR SENTENCE

Ricchetti, J.

BACKGROUND

[1] CC was charged with the sexual assault and sexual touching of H on or about the 31st day of March, 2015. H. was three years old and the half-sister of CC. CC was babysitting H at the time.

[2] The trial was scheduled for March 27, 2017. The Defence pre-trial application on the voluntariness of CC’s statements was heard on March 27, 28 and 29, 2017. On March 30, 2017, the Crown’s voluntariness application was denied.

[3] CC was re-arraigned. CC pled guilty to sexual interference (s. 151 of the Criminal Code). The Crown entered a conditional stay on the sexual assault count.

THE FACTS

[4] CC lived with his father until shortly before the events in question.

[5] CC then moved in with his mother and her family. CC’s half-sister lived in the same house as his mother.

[6] On or about March 31, 2015, CC was babysitting H for his mother. While babysitting H, CC went into her room. He performed oral sex on H. CC then masturbated over top of H but, at the last moment, H moved away.

[7] Within a day or two, CC told a fellow worker what he had done. The fellow worker recorded CC's description of the events with H.

Circumstances of the offender

[8] CC is 26 years old. He has no criminal record.

[9] CC does not dispute his is a pedophile with attraction to young girls between the ages of 3 to 10 years old.

[10] CC advised Ms. Harish, a psychotherapist, that he had previously taken a program or had treatment at CAMH after receiving a peace bond on another unrelated matter. The program or treatment “was unsuccessful”. More information about this program or treatment is not in the record before this court. As a result, it has no bearing on this sentence.

[11] Since CC pled guilty, he has attended a 15 hour program with Ms. Harish, a Registered Psychotherapist, who specializes in providing therapy for sexual related offenders.

[12] Ms. Harish testified at the sentencing hearing. Her evidence included:

a) Her factual information is entirely based on self-reporting by CC;

b) CC recognizes his inappropriate sexual behaviour towards H and his sexual interest in young girls between 3 and 10 years old. CC did not dispute the diagnosis of pedophilia;

c) No phallometric testing was performed on CC;

d) Ms. Harish could not provide her own diagnosis of CC's condition;

e) Ms. Harish conducted no formal risk assessment for CC. Ms. Harish could not provide an opinion as to whether CC posed or poses a risk or the degree of any such risk to other children in the future; and

f) CC advised Ms. Harish that he is remorseful for what he did to H.

Impact on the Victim and/or Community

[13] The impact on children in such cases was best described by the Court of Appeal in R. v. D. (D.), 2002 44915 (ON CA), 2002 58 OR (3d) 788:

[34] The overall message however, is meant to be clear. Adult sexual predators who would 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 the other recognized objectives of sentencing.

[35] We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and, as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

[36] In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known.

[43] I agree wholeheartedly with this observation and would only add that in the case of paedophiles, while their degree of moral culpability may be somewhat diminished by virtue of their psycho-sexual disorder, absent successful treatment, [See Note 4 at end of document] they remain dangerous and represent a very high risk to society. As such, in the case of paedophiles who have not been successfully treated, I believe that in addition to the sentencing objectives of denunciation and deterrence, serious regard must be had to the objective of separating such individuals from society to protect our children and spare them from the risk of irreparable harm.

[45] The appellant was prepared to risk the lives of innocent children to satisfy his sexual cravings. His conduct was reprehensible and it must be condemned in the strongest of terms. The harm occasioned by the appellant and others like him 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!

LEGAL PARAMETERS

Minimum Sentence?

[14] Section 151 of the Criminal Code provides for a sentence of not less than one year and not more than 14 years.

[15] There is considerable doubt as to whether the minimum sentence for sexual interference is unconstitutional. A number of courts have concluded it is not. See R. v. B.J.T. 2016 ONSC 6616, R. v. ML 2016 ONSC 7082 and R. v. Sarmales, 2017 ONSC 1869. This issue awaits a determination by the Ontario Court of Appeal.

[16] The Crown takes no position on this legal issue but states that a fit sentence in these circumstances would exceed a one year sentence of incarceration making it unnecessary to deal with this issue in this case.

[17] For the reasons that follow, I agree.

Importance of Denunciation and Deterrence

[18] In addition to what is set out in s. 718.01 of the Criminal Code, the Court of Appeal in R. v. Bauer, 2013 ONCA 691 underscored the importance in such cases:

[19] It is of paramount importance that children be protected from seducers and predators through sentences that emphasize the principles of denunciation and deterrence.

POSITIONS OF CROWN AND DEFENCE

The Crown

[19] The Crown seeks the following sentence:

a) 18 months custodial sentence;

b) 3 years’ probation;

c) SOIRA order for 20 years;

d) S. 109 order;

e) DNA order; and

f) S. 161(a), (b) and (c) of the Criminal Code for 10 years.

The Defence

[20] The Defence did not seriously challenge the 18 month sentence. The main thrust of the Defence submissions was that a conditional sentence was a fit sentence in the circumstances – essentially house arrest except for work.

[21] The Defence made no submissions opposing the ancillary orders sought by the Crown.

CASE LAW

[22] R. v. Manjra 2009 ONCA 485 where the facts before the court involved a neighbour “licking the privates” of a 7 year old child. The Court of Appeal upheld a 17 month custodial sentence.

[23] In R. v. Hutchinson [2006] O.J. No. 1790 (C.A.), the court upheld a 15 month sentence for a single act of fellatio involving a 9 year old. There was no suggestion of a breach of trust in Hutchinson.

[24] The sentencing case law involving sexual interference on children was canvassed in R v ML, 2016 ONSC 7082. In R. v. Hussein, 2017 ONSC 4202, the Court made the following statement regarding the range of fit sentences in cases involving sexual interference on children:

[35] The appropriate range of sentence in cases involving external sexual touching of children were reviewed extensively by Linhares de Sousa J. in R. v. M.L., supra¸and I will not repeat her summaries of these cases. In the most mitigated cases, sentences of 90 days imprisonment were imposed. In the more aggravated cases, especially those involving breaches of trust and some repetition, sentences between six months and fifteen months were imposed. To similar effect, see: R. v. Toten (1993), 1993 3427 (ON CA), 83 C.C.C. (3d) 5 at pp. 11-12 and 49-50 (Ont. C.A.); R. v. Levert (2001), 2001 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.); R. v. R.W.D. (2005), 2005 20711 (ON CA), 198 C.C.C. (3d) 541 (Ont. C.A.); R. v. L.J.D., [2008] O.J. No. 993 (S.C.J.). The case at bar, of course, involved some external sexual touching but it also involved a single act of intercourse. In cases involving acts of oral sex with children, somewhat longer sentences of 17 months or 18 months have been imposed, as these assaults are more invasive. In R. v. Cerda, 2008 ONCA 438, the Court held that 18 months was the appropriate sentence where the accused groomed two boys age 10 and 12 over a period of one to one and a half years and engaged in fellatio with them. In R. v. Manjra, 2009 ONCA 485, the Court held that 17 months was “within the range for this offence, even for a first offender,” where the accused committed an act of cunnilingus with a 7 year old girl. He was at “the low-end of a trust relationship” with the victim who was the child of a neighbour.

(emphasis added)

[25] Many of the Defence authorities primarily deal with the availability of a conditional sentence. However, such cases pre-date amendments to the Criminal Code which removed the availability of a conditional sentence in these circumstances.

MITIGATING AND AGGRAVATING FACTORS

[26] The mitigating factors are:

a) CC has no prior record;

b) CC was youthful at the time of the offence;

c) CC has support of his family, as demonstrated by the family/friends/employer support letters filed;

d) CC has demonstrated remorse for what he has done. He has voluntarily sought out the counselling of Ms. Harish; and

e) While this was a guilty plea, the plea was taken at commencement of the trial. In these circumstances, the degree to which this factor is mitigating is considerably lessened.

[27] Despite the Defence submission, this court is not prepared to find that, because H was 3 years old, the impact to her is less than an older child. There is no evidence on this point one way or the other.

[28] The aggravating factors are:

a) CC was in a position of trust and responsibility to H;

b) H, because of her age, was particularly vulnerable and not likely in a position to describe the actions of CC to her parents or authorities;

c) CC, knowing of his propensity for sexual attraction to young female children, made a choice to move in with his mother and other young children and assume parental responsibility at times by way of babysitting; and

d) CC “bragged” to a fellow employee about what he had done to H.

PRINCIPLES OF SENTENCING

[29] The following provisions of the Criminal Code are applicable:

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;

(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

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

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,

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;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if

(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;

(b) the offence is not an offence punishable by a minimum term of imprisonment;

(c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life;

REASONS

CONDITIONAL SENTENCE

[30] As stated above, the thrust of the Defence sentencing submissions was that the court should impose a conditional sentence in these circumstances.

[31] During submissions, the Defence did not deal with the prohibition in S. 742.1(c) of the Criminal Code. When it became apparent that s. 742.1(c) of the Criminal Code appeared to prohibit a conditional sentence in this case, counsel were given an opportunity to make further submissions on this issue.

[32] Initially, Defence counsel indicated they wished to make further submissions. Later Defence counsel wrote and stated:

After some consideration, we invite His Honour to rule on the appropriate sentence, having regard to the broad range of sentences earlier submitted. In spite of the fact that no conditional sentence is available, pursuant to s. 742.1(c), we simply urge His Honour to craft a sentence that is consistent with the defence position that a conditional sentence, or intermittent sentence followed by a period of probation is fair and just in all the circumstances.

[33] A conditional sentence is not available. Essentially, Defence counsel concedes this. It is not clear what type of sentence the Defence wishes this court to "craft", given that no submissions were made.

[34] In my view, given the importance of deterrence and denunciation in this offence involving a young child, a custodial sentence is appropriate.

What is a Fit Sentence?

[35] Having determined that a custodial sentence is necessary, the question is what is an appropriate and fit custodial sentence?

[36] What must be kept in mind is that this was a onetime touching of H. It was not sexual intercourse which is the subject of many sentencing authorities. This does not diminish the severity of the actions of CC on the night in question. But, it is one isolated event of sexual misconduct on a very young child.

[37] While not consisting of sexual intercourse, engaging in oral sex with a 3 year old, a child unlikely to understand what is going on and unlikely to report the offensive conduct, is opportunistic and particularly worthy of denunciation in strong terms.

[38] Further, deterrence is particularly needed to send a message that such sexual predation on very young vulnerable children will not be tolerated.

[39] A number of the authorities did not involve the abuse of a position of authority. It is a significant factor in this case.

[40] In my view, given the nature of the offence, the position of trust, the nature of the sexual act against a very young child and the circumstances of CC, an appropriate sentence is in the 12 -18 month range. As a result, the one year minimum sentence in the Criminal Code, has no bearing on the appropriate sentence.

[41] The 18 month custodial sentence is, in my view, somewhat high in keeping within the range set out in the authorities.

[42] Having regard to the authorities and the circumstances of this offence and offender, a 15 month custodial sentence is fit and reasonable.

Pre-Sentence Custody

[43] Credit for pre-sentence custody is not an issue in this case.

ANCILLARY ORDERS

[44] This court finds that the ancillary orders requested by the Crown, and not opposed by the Defence, are reasonable and, more importantly, necessary in the circumstances of this case and the offender. In some cases, they are mandatory. Such orders are necessary and reasonable to protect the public, in particular young children, in the future for a reasonable period of time.

FINAL DECISION

[45] The sentence imposed is as follows:

a) 15 months custodial sentence;

b) 3 years’ probation with the mandatory conditions in s. 732.1 (2) and (3) (a),(b) and (c) of the Criminal Code;

c) A SOIRA order for 20 years;

d) A section 109 of the Criminal Code order;

e) A DNA order; and

f) An order of prohibition under section 161(a), (b) and (c) of the Criminal Code for 10 years.

L. Ricchetti J.

Released: September 21, 2017