CITATION: R. v. R.D., 2017 ONSC 6375
COURT FILE NO. CR-15-40000654-0000
DATE: 20171027
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
R.D.
Defendant
Kasia Batorska, for the Crown
Hillson Tse, for the Defendant
HEARD: August 10, October 6, 12, 2017
REASONS FOR SENTENCE
B. P. O’Marra, J
THE OFFENCES
[1] The accused was tried by a jury on a four count indictment. The complainant on all counts was his younger sister. The jury found him guilty of the following three counts:
1 sexual interference, contrary to s. 151 of the Criminal Code with offence dates between August 4, 2001 and February 7, 2006.
3 sexual assault, contrary to s. 271 of the Criminal Code with offence dates between August 4, 2001 and February 7, 2009
4 threaten bodily harm, contrary to s. 264.1(1)(a) of the Criminal Code with offence dates between August 4, 2001 and February 7, 2009.
[2] He was found not guilty on count 2 which alleged incest contrary to s. 155 of the Criminal Code.
[3] The victim was born in […] of 1992. Thus the offences cover a range of when she was nine years old until she was seventeen. The accused was approximately eight and half years older than her.
[4] In criminal cases juries return general verdicts. They do not say why they find certain counts proven and others not proven. They do not specify any particular dates or time periods for which they were satisfied that offences were proven. The frequency of the proven allegations, their severity and the age of the victim when certain offences were committed will have a significant impact on the potential range of sentence.
[5] The accused testified at trial and denied the allegations.
[6] The jury was instructed in accord with the principles in R. v. W. (D.) [1991] 1 S.C.R. 742. The accused did not have to be believed for there to be not guilty verdicts. The jury was instructed that the threatening charge was directly related to the sexual allegations. By their verdicts on counts 1, 3 and 4, the jury must have rejected the evidence of the accused.
[7] The victim testified that she was subjected to sexual abuse by the accused that escalated from touching her private parts, forced fellatio, digital penetration and intercourse. The unproven allegation of incest does not detract from the credibility of the victim on counts 1, 3 and 4.
[8] Until 2014 the victim resided with her mother, the accused and her younger brother. Her father had not resided with the family for many years starting when the victim was quite young. She testified that the accused started touching her vagina when she was nine years old. Before then he had physically abused her by pulling her hair, hitting her and pouring hot water on her. He would pull her pants down and digitally penetrate her. He threatened to hurt her if she screamed or informed on him. She believed he would hurt her as he had already done so before the sexual touching occurred. He was significantly taller and heavier than her. The sexual incidents progressed to include forced fellatio. He would forcefully hold her mouth on his erect penis until he ejaculated. She testified that these incidents occurred two or three times a week.
[9] In July of 2014 the victim reported the sexual abuse to the police.
The Crown submits that there are several serious aggravating factors implicated in this sentencing process. They include the following:
The age of the victim when the offences occurred
The frequency of the offences
The time span over which the offences occurred
The specific types of sexual contact
[10] Counsel for the accused submitted that this sentencing should be based on the following:
One incident of sexual assault and sexual interference
The victim was between the ages of thirteen and fourteen years when the offences occurred
The incident involved sexual touching
[11] In essence the defence position is that findings of guilt on counts 1, 3 and 4 do no more than establish “some type of sexual touching or contact”. Furthermore the defence submits that “no further facts either express or implied” flow from the verdicts. In support of this position counsel referred to various inconsistencies and contradictions between the evidence of the victim and other crown witnesses and that of the accused.
DISPUTED FACTS ON SENTENCE AFTER JURY VERDICTS
[12] Aggravating facts on sentence that are not admitted must be proven beyond a reasonable doubt. Criminal Code s. 724(3)(e).
[13] The failure to prove an alleged aggravating fact beyond a reasonable doubt does not permit the trial judge to assume a version of facts most favourable to an accused. R. v. Smickle, 2013 ONCA 678 at para. 18.
[14] The Supreme Court of Canada addressed the issue of disputed facts on sentence after jury verdicts in R. v. Ferguson, 2008 SCC 6 at paras. 16 – 18 inclusive:
16 This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.
17 Two principles govern the sentencing judge in this endeavor. First, the sentencing judge “is bound by the express and implied factual implications of the jury’s verdict”: R. v. Brown, [1991] 2 S.C.R. 518, p. 523. The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict [page 107] rejected by the jury: Brown; R. v. Braun (1995), 95 C.C.C. (3d) 443 (Man. C.A.).
- Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven” (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 58 C.R. (3d) 71 (Ont. H.C.). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.
[15] At paragraph 20, the court added that it is appropriate for the trial judge to consider the legal instructions to the jury in this process.
[16] Where the basis of the jury’s verdict is unclear, the sentencing judge should make his or her own independent determination of the facts, consistent with the jury verdict. R. v. Roncaioli, 2011 ONCA 378 at para. 59. The sentencing judge is not obliged to assume that the jury took “the most lenient path to conviction”. R. v. Nelson, 2014 ONCA 853 at para. 56.
[17] An important express factual implication of the guilty verdicts in the case before me is that the denials by the accused were not believed and did not raise a reasonable doubt. Based on the victim’s evidence and in accord with the verdicts, I am satisfied of the following beyond a reasonable doubt:
The sexual abuse of the victim began when she was nine years old. It occurred on at least a weekly basis until she reached the age of fourteen or fifteen years.
The sexual abuse began with touching her private parts and escalated to include digital penetration and forced fellatio on a regular basis.
The accused threatened the victim with bodily harm if she reported the abuse.
POSITION OF THE PARTIES
[18] The Crown submits that the appropriate range of sentence is between four and eight years. The Crown seeks a sentence of six years. The defence seeks a sentence of two years less a day to be served in the community. The Crown opposes a conditional sentence but does not dispute that the option is available under the former provisions of s. 742.1 of the Criminal Code that were in effect when these offences occurred.
BACKGROUND OF THE OFFENDER BASED ON THE PRE-SENTENCE REPORT AND OTHER MATERIAL
[19] The accused is thirty four years of age. He has a younger sister (the victim) and a younger brother. His parents divorced when he was age thirteen. He had a close relationship with his father at that time but lived thereafter with his mother and two siblings. Through his teenage years, he was diagnosed with depression and anxiety. He met with counsellors and psychiatrists off and on to address his issues. During his childhood he was diagnosed with an intellectual learning disability. He was “easily stressed” and “quick to lose his temper”.
[20] The accused currently resides on his own. He continues to have a close relationship with both parents, his younger brother and step-siblings. He is not in a relationship and has no dependents.
[21] He completed elementary school while attending a school for special needs. He enrolled in high school but dropped out at age fourteen years. This was based on his learning disability and in part because he was bullied by other students. He gained employment with his father building circuit boards and also worked in home renovations. He returned to school and obtained his General Learning Diploma for computers. Between 2012–2014 he worked on home improvement projects. Since 2014 he has not been employed and has been supported by the Ontario Disability Support Program (ODSP) due to a number of physical and mental health issues.
[22] Counsel for the accused filed reports from the family physician and his treating psychiatrist. The most current report from Dr. Amin Dhalla, M.D. dated April 14, 2017 includes the following information:
Mr. D’s medical conditions include hypertension, asthma and chronic back pain. He is intellectually impaired and suffers from depression. His medical and psychiatric conditions would be significantly exacerbated by the stress of incarceration.
[23] In a report dated April 6, 2017, Dr. Ghulam Khan, General Practioner, practicing in Psychiatry provided the following information:
Mr. D. is under care for the following chronic disabling mental health issues: generalized anxiety disorder, major depressive disorder without psychotic features, panic disorder with agoraphobia, developmental intellectual disabilities (ie: learning, reading, writing disabilities). He is on multiple psychotropic medications and dealing with their side effects. He suffers from serious mental health conditions.
[24] The pre-sentence report also refers to a claim by the accused that in 2014 he was diagnosed with acute lymphocytic leukemia. That diagnosis does not appear in any of the medical reports filed on this sentence hearing.
CRIMINAL RECORD
[25] The accused has the following entries on his record
December 2, 2003 - Possession under $5,000
Conditional Discharge and 12 months probation
October 18, 2004 - Assault
Conditional Discharge and 1 year probation
May 3, 2012 - Public Mischief
Conditional Discharge and 18 months probation
The victim on the assault charge was his sister who is the victim on the current charges.
VICTIM IMPACT
[26] On this issue I have considered her testimony at trial as well as a statement filed on sentence. These crimes have had a devastating impact on the victim. Over the years she has felt sadness, fear, anger and suicidal ideation. She is estranged from most members of her family. She has been prescribed medicine for depression. Her testimony at trial referred to the hurt and shame she felt both from the sexual abuse by her brother and that her mother failed to protect her.
AGGRAVATING FEATURES
[27] The Crown submits the following aggravating features should be considered:
The victim was a child when the offences began.
She was a vulnerable victim and the offences occurred in the family home where she should have been safe.
There was a pattern of protracted, escalating level of sexual abuse and physical intrusion.
The sexual abuse was accompanied by threats of bodily harm if she reported the abuse to a person in authority.
There was evidence of grooming by the accused when he forced her to watch pornography.
The impact of these crimes on the victim.
The conduct was a breach of trust or authority exercised by the accused over the victim.
[28] I agree with all of those submissions except for the breach of trust aspect. When the offences first occurred the accused was a young adult. Being the older brother presented him with the ongoing opportunity to commit these crimes. However, on the particular facts, I do not agree this amounted to being in a position of trust or authority. Most of the precedents referred to by Crown counsel where substantial penitentiary terms were imposed involved long term sexual abuse by an offender who was in a classic position of trust (ie: father, stepfather). Several of those cases also involved sexual intercourse which was not proven in this case.
MITIGATING FACTORS
[29] The accused was a youthful first offender when the first sexual offences occurred. I have referred earlier in these reasons to the physical and mental health issues he has faced from an early age.
[30] The oldest uncle of the accused, as well as a longtime friend, filed letters setting out their belief in the good character and positive prospects for the accused. Understandably, those persons would have no idea of what was going on in the family home over the years. I also received a current confirmation that the accused abided by all the terms of his bail order since his release on September 24, 2014.
STATUTORY PROVISIONS AND PRINCIPLES OF SENTENCE
[31] The offences of sexual assault and sexual interference each have a maximum sentence of ten years.
[32] Sections 718, 718.01, 718.1 and 718.2 of the Criminal Code provide as follows:
Purpose
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
Objectives – offences against children
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.
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
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.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,
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) 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.
[33] In R. v. D.D., [2002] O.J. No. 1061 (C.A.) at para. 34, the court indicated that, absent exceptional circumstances, denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over other recognized objectives of sentencing in cases involving the sexual abuse of children by adults. Also R. v. D.M., 2012 ONCA 520 at para. 38.
[34] A conditional sentence will rarely be imposed in cases involving the sexual abuse of children. Cases that involve sexual abuse involving multiple acts over an extended period of time and escalating obtrusiveness generally warrant a severe sentence. R. v. F. (G.C.), [2004] O.J. No. 3177 (C.A.) at paras. 13 and 14.
ANALYSIS
[35] The victim was sexually abused and threatened by her older brother in the family home for several years. The physical acts escalated from touching her private parts to digital penetration and forced fellatio. The victim suffered physical and mental pain and continues to deal with feelings of shame, anger and depression. She was not believed or protected by her mother. She is alienated from most of her family as a result of the criminal charges and convictions.
[36] The Crown’s request for a six year prison term is excessive. It is premised in part on an alleged breach of trust or authority. The accused as the older brother was in a position to exert physical and sexual domination of the victim in the home. However, despite the age difference, I do not find this amounts to a position of trust in the particular circumstances.
[37] The option of a conditional sentence is not appropriate for these offences and this offender for two reasons. These were sexual offences against a child over a protracted time period. I am also of the view that a sentence of two years less a day fails to reflect the gravity of these offences. The former s. 742.1 of the Criminal Code cannot be invoked where a penitentiary sentence is imposed.
[38] The count of threatening bodily harm is serious in that it was directly linked to the sexual abuse to prevent the victim from reporting the crimes.
[39] Convictions on both sexual interference and sexual assault in this case are not barred by the rule against multiple convictions for the same delicts as referred to in R. v. Kienapple, [1975] 1 SCR 729. There are different elements to those offences. I have considered the issue of totality in determining the appropriate sentence in any event.
ANCILLIARY ORDERS
Sexual assault and sexual interference are primary designated offences as defined in s. 487.04 of the Criminal Code. Pursuant to s. 487.051(1) of the Criminal Code, the accused is ordered to provide samples of bodily substances for the purpose of DNA analysis.
Pursuant to sections 490.012(1) and 490.013(2) of the Criminal Code, the accused is ordered to comply with the Sex Offender Information Registration Act for a period of twenty years.
Pursuant to sections 109(1) and (2) of the Criminal Code, the accused is prohibited from possessing:
(a) 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, and
(b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
- Pursuant to s. 743.21 of the Criminal Code, the accused is prohibited from communicating, directly or indirectly, with the victim S.D. during the custodial period of his sentence.
RESULT
[40] On count 1, sexual interference contrary to s. 151 of the Criminal Code, the accused is sentenced to thirty months in prison.
[41] On count 3, sexual assault, contrary to s. 271 of the Criminal Code, the accused is sentenced to thirty months, concurrent to thirty months on count 1.
[42] On count 4, threatening bodily harm, contrary to s. 264.1(1)(a) of the Criminal Code, the accused is sentenced to six months consecutive to the concurrent thirty month terms on counts 1 and 3.
[43] The total sentence is thirty-six months in prison.
[44] I am grateful to both counsel for their helpful submissions throughout.
B. P. O’Marra, J.
Released: October 27, 2017
CITATION: R. v. R.D., 2017 ONSC 6375
COURT FILE NO.: CR-15-40000654-0000
DATE: 20171027
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
R.D.
Defendant
REASONS FOR SENTENCE
B. P. O’Marra, J.
Released: October 27, 2017