SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
JOSE MUNOZ DE RUEDA
REASONS FOR SENTENCE
BEFORE THE HONOURABLE REGIONAL SENIOR JUSTICE M.K. FUERST
on February 7, 2018,
at NEWMARKET, Ontario
INFORMATION CONTAINED HEREIN THAT COULD IDENTIFY A VICTIM CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO s.486.4 OF THE CRIMINAL CODE OF CANADA
THIS RESTRICTION DOES NOT APPLY TO JANET HAMILTON,
BY ORDER OF JUSTICE M. FUERST
APPEARANCES:
I. Denisov Counsel for the Crown
A. Ross Counsel for Jose Munoz de Rueda
WEDNESDAY, FEBRUARY 7, 2018
REASONS FOR SENTENCE
Fuerst J.: (Orally)
Jose Munoz pleaded guilty to four counts of sexual assault. It is not disputed that he faces a substantial penitentiary sentence.
The Circumstances of the Offences
Mr. Munoz was employed as a Personal Support Worker at the C[…] in Schomberg between 2008 and 2011. The residents of that home were unable to function without the assistance of caregivers. Personal Support Workers provided 24-hour a day assistance in facilitating the residents’ needs, including their most basic needs.
Mr. Munoz, by his guilty pleas, admitted to sexually assaulting four residents of the group home. The details of those assaults are set out in the Agreed Statement of Facts that was made Exhibit 1 to the proceedings.
In summary, Mr. Munoz admitted to the following:
- He penetrated the vagina of a 32-year-old female resident, J.H., with his penis, and without wearing a condom. J.H. has the cognitive ability of a toddler and is non-verbal.
- He penetrated the anus of an adult male resident, B.G., with his penis, on three occasions, and ejaculated in B.G. B.G. is severely developmentally delayed, non-verbal, and has very low comprehension ability.
- He penetrated the anus of an adult male resident, G.G., with his penis on two or three occasions, and ejaculated. G.G. has autism and engages in self-harm.
- He twice performed oral sex on a 20-year-old male resident, M.L., who was sleeping. M.L. suffers from ADD, oppositional defiance disorder, and epilepsy.
M.L. told residence staff what happened to him, and management was contacted. The employer moved Mr. Munoz to a different C[…], and did not report the incident to the police.
On February 7, 2016, Mr. Munoz went to the Ontario Provincial Police and confessed his crimes. There had been no police investigation of him. He was charged with the sexual assaults based on his confession.
Mr. Munoz has had Hepatitis C since he was a child. Fortunately, none of the victims tested positive for it.
The Victim Impact Information
The father of J.H. provided a Victim Impact Statement on behalf of her family. He said, “[T]here is seldom a night that we have not gone to bed thinking of what has happened and what is happening in the life of our special daughter...there is seldom a morning that we don’t awake thinking, what do we do now to protect our daughter”. The actions of Mr. Munoz robbed the parents and family members of J.H. of the ability to enjoy everyday life, as they struggle with what happened to her, and their ability to find a new supportive environment for her.
The Circumstances of Mr. Munoz
Mr. Munoz is 46 years old. He was born in Mexico. His childhood there was unsettled and involved sexual abuse.
He came to Canada at the age of 32. He worked at various factories. He began working at C[…] in 2007.
He has no prior criminal record.
Mr. Munoz married in 2005. He and his wife have one daughter. Throughout the marriage, Mr. Munoz had sexual relationships with men. He identifies as homosexual, and his marriage was, in essence, a lie. It ended as a result of these offences.
Mr. Munoz was assessed by Dr. Philip Klassen, a forensic psychiatrist. Dr. Klassen concluded that Mr. Munoz’s offending behaviour flowed from a combination of personality deficits, opportunity, and underlying sexological issues. Based on his scores on risk assessment tools, Mr. Munoz’s risk of sexual recidivism is somewhere between low and moderate. He should in the future lead a lifestyle more consistent with his sexual orientation and more prosocial. He should not be in a position of trust with individuals who are physically or mentally challenged.
Mr. Munoz has been in custody since February 7, 2016, exactly two years. He wishes to obtain treatment while he serves his sentence.
The Positions of the Parties
Crown and defence counsel jointly submit that Mr. Munoz should be sentenced to seven years in jail, less his time in pre-sentencing custody credited at one and a half to one, leaving a sentence to be served of four years in jail. They agree that there should be a s. 109 order, a DNA order, and a SOIRA order for life. Additionally, Mr. Munoz should be prohibited from communicating with all the victims named in the indictment while he is in custody.
Analysis and Conclusion
These offences represent an egregious breach of trust. The victims were all vulnerable individuals, who were dependent for their most basic needs on those who worked at the group home. Mr. Munoz abused his employment position to take advantage of those who had been entrusted to his care.
Moreover, he chose as his victims, individuals who were either not capable of communicating to others about the abuse, or unlikely to be believed if they did so.
It is an aggravating factor that the sexual assaults spanned a period of time and were committed against multiple victims.
The Victim Impact Statement on behalf of the family of J.H. makes it very clear that Mr. Munoz has inflicted significant emotional trauma on her family. I infer that the families of the other victims have been similarly impacted.
In mitigation, Mr. Munoz pleaded guilty, which is a sign of his remorse and willingness to accept responsibility for his offences. It also spared several weeks of trial time. He expressed remorse in court. It is indisputable that had he not gone to the police and voluntarily confessed to his crimes, they would have gone undetected. Likewise, had he not pleaded guilty, the Crown would have faced obstacles obtaining convictions.
I also take into account that Mr. Munoz is a first offender, and that his risk of sexual re-offence has been assessed as low to moderate.
The objectives of sentencing that are paramount in this case are denunciation, deterrence, both general and specific, and the need to separate Mr. Munoz from society. Rehabilitation cannot be overlooked given that Mr. Munoz is a first offender, but given the seriousness of the offences, it plays a reduced role in the determination of the appropriate sentence.
I agree that a sentence of seven years in jail, less the time in pre-sentencing custody, is a fit sentence having regard to the aggravating and mitigating factors and the governing objectives of sentencing.
Mr. Munoz, please stand.
On Count 1, the sexual assault on J.H., I sentence you to seven years in jail, less credit for your time in pre-sentencing custody calculated on the basis of one and a half to one as three years, leaving a sentence to be served of four years in the penitentiary; on Count 3, the sexual assault on B.G., four years concurrent; on Count 4, the sexual assault on G.G., four years concurrent; and on Count 5, the sexual assault on M.L., four years concurrent.
On each count there is a DNA order; a s. 109(2)(a) weapons prohibition order for 10 years; a s. 109(2)(b) order for life; and a SOIRA order for life.
While you are in jail, under s. 743.21 of the Criminal Code you are ordered to have no communication with any of the individuals named in the Indictment.
I order you to pay the victim surcharge of a total of $800. You have six years to pay it.
I recommend that your sentence be served at Warkworth Institution, and that you receive sex offender programming while in custody.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Tracey Beatty, certify that this document is a true and accurate transcript of the recording of R. v. Jose Munoz de Rueda in the Superior Court of Justice held at 50 Eagle Street West, Newmarket, Ontario, on February 7, 2018 taken from Recording No. 4911_403_20180207_085132_30_FUERST.dcr which has been certified by D. Blum in Form 1.