ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-17-122-00

DATE: 20180514

BETWEEN:

HER MAJESTY THE QUEEN

– and –

W.N.

Defendant

Gerard Laarhuis, for the Crown

David Isbester, for the defendant

HEARD at Kingston: 18 April 2018

THE PUBLICATION, BROADCAST OR TRANSMISSION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANT OR A WITNESS IN THIS PROCEEDING IS RESTRICTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.

mew j. (Orally)

Sentencing decision

[1] W.N., on 21 December 2017 you pleaded guilty to and were convicted of committing incest with your 22 year old, developmentally delayed, daughter.

Facts

[2] An agreed statement of facts formed the basis for my finding of guilt. Additional information provided to assist my sentencing decision is contained in a Sexual Behavioural Assessment report by Dr. Jan Looman, a clinical/forensic psychologist dated 5 March 2018 and a pre-sentence report dated 16 April 2018. There was also a victim impact statement.

Circumstances of the Offence

[3] You had a job delivering take-out food for various restaurants and your daughter, K.N., would often accompany him. The sexual conduct started one day in August 2016 when K.N. naively asked you who had bigger breasts, her mother or her. At the end of that day, you dropped K.N. off at her residence and came in to use the washroom. K.N. was in her room getting undressed when you came into the room and saw her naked. You apologized and left the room. K.N. came out after changing and you told her that the only way you could know who had the larger breasts was to see them. K.N. raised her shirt and you lifted her breasts in your palms and said they were heavy. She pulled her shirt back down.

[4] The next day, K.N. was again out with you during delivery runs when, while sitting in the car waiting for the next call, K.N. happened to glance down at your lap. This lead to you pulling out your penis and leaving it exposed. After you had seen that K.N. had seen it, you put it back in your pants.

[5] Later, on the way home, you and K.N. had a “birds & bees” talk and you told her that she needed to use protection. K.N. told you that she “don’t know sex, until I do sex”. You told her that you would teach her how to do sex. The two of you went back to K.N.’s residence. While she was changing into her pajamas, you came in and told her if “you want me to teach you sex, we have to do the sex”. K.N. then got onto her bed and you digitally penetrated her vagina before putting your penis into her vagina and having sexual intercourse with her.

[6] Thereafter, over a period of approximately four months, you engaged in a variety of sexual activities with your daughter for approximately fifteen times. These encounters included vaginal intercourse, oral sex, the use of a vibrator and, on two occasions, anal intercourse. On some occasions, you would kiss K.N. on the lips.

[7] On 10 November 2016, K.N. attended the Kingston Police station with two support workers to whom she had already made certain disclosures. Over the course of two video interviews and her subsequent preliminary inquiry testimony, K.N. incrementally disclosed what had occurred with you. Early in her interview, she asked the interviewing police officer: “Can I ask you a question? … Is a Dad supposed to have sex with the daughters? … cause I did it with my Dad”.

[8] Semen was located on a towel seized from K.N.’s residence. K.N. said that you had kissed her breasts. Her breasts were swabbed. Your DNA was obtained from the towel and the breast swabs.

Circumstances of the Offender

[9] W.N., you are presently 54 years of age. You were, yourself, sexually abused as a child and were a ward of the Children’s Aid Society from age 12 to 16 because your mother could not handle you. You lived in twelve different group homes, but frequently ran away. You left school at the age of 18, having achieved a grade 9 education although you subsequently obtained your grade 12 diploma while in custody. You have worked as a dishwasher, mechanic’s helper, taxi driver, car washer and at a tire recycling facility. You have subsidised your income with social assistance. At the time of your arrest, you were working delivering take-out food for various restaurants.

[10] You married the mother of your children in 1990. You separated about a year before the events giving rise to your conviction. K.N. is your youngest child.

[11] You began drinking at a young age and your drinking escalated rapidly. You started attending Alcoholics Anonymous when you were 24 years old and you were abstinent for two years. He are currently a social drinker.

[12] In 1983, you were convicted of indecent assault on a female. You indicated to Dr. Looman that it was “Some strange girl. I was at a party or something stupid I think. I don’t remember it at all”. There were allegations of sexual offending made in 1986 by your girlfriend’s daughter. Then in 1999, you were convicted of three counts of sexual assault which involved “fondling and touching” your two nieces, aged nine and ten.

[13] Dr. Looman’s report makes reference to two previous assessment reports concerning you. The first, completed in 1991 at the Kingston Sexual Behaviour Clinic, noted that you had been assessed twice previously regarding allegations of sexual offending against children – in January of 1985 and 1986. The purpose of the 1991 assessment was to determine your risk to sexually offend against children as you were attempting to gain custody of your son, then aged 7, who had been apprehended by the Children’s Aid Society. Their report noted that your IQ fell in the low average range and that you presented with somewhat sexist and traditional views regarding women. You denied sexual attraction to children, but referred to your two nieces as “little strippers” who liked to run around naked. You indicated that you had an extensive pornography collection. The report concluded that given the findings of the assessment and the fact that you had never received treatment, the authors were unwilling to say that he did not pose a threat to sexually offend against children.

[14] You were assessed again in November 1999 following your conviction for three counts of sexual assault, two counts of uttering threats and one count of failure to comply. It was noted that you continued to deny wrongdoing related to your nieces, who were the victims, and demonstrated no remorse. Psychometric testing indicated a high level of hostility towards women. The authors opined that you posed a moderate-high risk for sexual re-offence and that you were in “dire need” of sex offender treatment. However, as you was denying your offences, you were deemed unsuitable for treatment at that time.

[15] A 2001 note from one of the authors of the 1999 report indicated that rather than being admitted for treatment following that assessment, you were given an educational package, which you were required to complete and return to the clinic. You did not attend and did not call to rearrange. The probation office was contacted and the onus was put on you to contact the office. Despite being given several opportunities to complete the work and extending the deadline several times, you failed to complete the assignments and missed several appointments. Contact with you was, accordingly, discontinued.

[16] Dr. Looman’s 2018 report indicates that you present with a history of sexual offending and are lacking insight into your motivations. You are said to have no understanding of why you committed your offences and thus, have limited ability to intervene where and when required. After your release from your 1999 convictions, you did avoid young children in order to avoid re-offending. Overall, however, you are said to present as a well above average risk for sexual re-offence. Dr. Looman feels that you would benefit from participation in a comprehensive sexual offender treatment programme prior to release. Your failure to take accountability for your offences is of particular concern. Treatment should take into account your difficulties with reading comprehension and self-reported ADHD.

[17] Dr. Looman noted that you displayed a profound lack of insight regarding your sexual offending and significant denial. Although you admitted to sexual behaviour with your daughter for the offence now before the court, Dr. Looman says that you shifted blame to your daughter, indicating that there was “no force, no rape, it was all consensual”. When Dr. Looman pointed out her developmental delay, you indicated “I could challenge that”.

[18] You also told Dr. Looman that the police version of your offence, indicating multiple sexual encounters, was incorrect. You said that it had happened “just once” and that the only reason you got caught was that “they found my DNA on her”. I note that when I expressed concern about this during you sentencing hearing that you confirmed that the agreed statement of facts read into the record was substantially correct.

[19] The author of the pre-sentence report sees you as an opportunist taking advantage of your victims, both sexually and financially. You are said to have anger management issues and a strong tendency to deny and/or minimize your offending behaviour and, as a result, rehabilitative interventions are difficult.

[20] In addition to the sexual offences already mentioned, you had an assault conviction in 2003 and other convictions for property offences. In total, you have had fifteen convictions spread over nine sentencing dates. The longest sentence you have received to date is six months in prison.

Impact on the Victim

[21] K.N. functions at the intellectual equivalent of a ten year old. She was removed from her mother’s care at the age of four by the Children’s Aid Society because the environment was unstable and she was not being adequately cared for. She resided with her maternal aunt and then in a number of different foster and group homes. You had only recently become re-engaged in K.N.’s life prior to the sexual activities giving rise to the charge before the court.

[22] A 2014 psycho-educational assessment report refers to K.N. having severe impairments in cognition and language and concludes that “overall, it is clear … that [K.N.] experiences significant difficulty with learning verbal information, particularly when verbal information becomes more complex”.

[23] K.N. has been diagnosed with Attention Deficit/High Proactivity Disorder. She lives in a supported living arrangement through the Family Home Living Program. She receives support on a daily and an ongoing basis from Community Learning Kingston. A community support worker assists her in coping with the demands of daily living including keeping house, getting to various appointments, budgeting, developing social skills, maintaining communication with family members and routine daily living tasks.

[24] In her victim impact statement, which was prepared by a community support worker based on K.N.’s answers to questions that were put to her, K.N. says that she feels like you as her father should have been there to protect her, not hurt her. She also expresses disappointment in herself because she should have told someone earlier. She feels that her mood has changed and that she used to be a lot happier. She wishes that she could have her father in her life but knows that what you did was wrong. There have been times since the incidents when she has felt that giving up on life would be the easiest thing to do.

[25] K.N. says that when she was having sex with you, you would pay her. You would buy her food and things that she needed and she started to rely on that. She had got herself into money troubles and debt. She was also scared to say no to you. She feared that you would be really mad at her and remains scared about what will happen when you get out of prison.

Legal Parameters

[26] Incest is an offence under section 155(1) of the Criminal Code. It is punishable by up to fourteen years’ imprisonment.

Position of the Parties

[27] The Crown seeks a term of imprisonment of six years, less credit for pretrial custody (549 days with credit of 1.5 days given for each day of pretrial custody for a total of 823 days). The Crown’s position is predicated upon the vulnerability of the victim, your seeming inability to accept responsibility, and your extensive criminal record, including four prior sexual offences. The Crown describes you as an opportunistic sexual predator with no scruples, noting Dr. Looman’s assessment that you present an above average risk for re-offending. The Crown argues that emphasis should be placed upon the sentencing principles of separating you from society and rehabilitation.

[28] On your behalf it was submitted that you should receive a sentence of four years and three months which, after applying credit for presentence custody, would result in a net sentence of two years. In the event of such a disposition, the defence suggests that, in addition, you should be placed on three years’ probation following your release with terms that would require your continued involvement in treatment and supervision by the probation service. The defence reasons that this would be a better all-round outcome because it would enable you to get appropriate programming in a federal institution, which would not be available to you in a provincial facility, but upon release, you would continue to be subject to supervision for a further three years. This would place you under supervision for a longer time than the six year sentence proposed by the Crown which would net out at three years and nine months.

[29] You spoke briefly on his own behalf at your sentencing hearing, stating that you want to get help.

Sentencing Principles

[30] The general principles of sentencing are set out in section 718 of the Criminal Code. Judges passing sentence are required by law to impose a just sanction that has one or more of the following six objectives:

a. To denounce unlawful conduct;

b. To deter the offender and others from committing offences;

c. To separate offenders from society when necessary;

d. To assist in the rehabilitation of offenders;

e. To provide reparation for harm done to victims or to the community;

f. To promote a sense of responsibility in offenders and acknowledge harm done to victims and to the community.

[31] The sentence should be proportionate to the gravity to the offence and the degree of responsibility of the offender. An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. And the sentence should be similar to those imposed on similar offenders, for similar offences, committed in similar circumstances.

[32] While it is appropriate to take into account an individual’s lengthy criminal record as an aggravating factor, he should not be punished again for crimes that he has committed in the past. As the Supreme Court of Canada stated in R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728, at para. 24:

… The fundamental principle of proportionality requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender; a prior conviction cannot, therefore, justify a disproportionate sentence. …

[33] Nevertheless, the Supreme Court in Angelillo goes on to say, “[t]he sentence imposed on a repeat offender may well be more severe…” if the circumstances of the case so warrant.

Analysis

[34] While, legally, K.N. was an adult, as is clear from the pre-sentence report and the agreed statement of facts, she has the intellectual capacity of a child.

[35] Were K.N. a victim under the age of sixteen, there would be a mandatory minimum sentence of five years imprisonment: section 155(2) of the Criminal Code. While that provision has no application to the present case, it is nevertheless indicative of society’s attitude to crimes of incest involving vulnerable persons.

[36] In R. v. D.D. (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), the Court stated at para. 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.

[37] Although R. v. D.D. was a case involving a child, the vulnerability of K.N. is such that, in my view, similar considerations should apply.

[38] The Ontario Court of Appeal has established a general range of three to five years’ imprisonment for cases dealing with parental incest involving sexual intercourse: R. v. B(J) (1990), 36 O.A.C. 307 (C.A.); see, also, R. v. C.O.L. (2010), 2010 ONSC 3792, 257 C.C.C. (3d) 562 (Ont. S.C.J.) at paras. 20-21.

[39] However, in R. v. P.M. (2012), 2012 ONCA 162, 289 O.A.C. 352 (C.A.), Rosenberg J.A. expressed the view that (at para. 46): “…where a father has committed repeated acts of incest with his daughter over many months … it will be highly unusual for the court to impose a penitentiary sentence of less than five to six years”.

Aggravating Factors

[40] W.N.’s pre-existing criminal record, including four offences of a sexual nature (three charges of sexual assault and one charge of indecent assault on a female), offences against the person (two charges of assault and two charge of uttering threats), property offences, dishonesty offences and failure to comply with probation orders or recognizance, is a significant aggravating factor (albeit that some of the convictions were as long ago as 1980).

[41] Of particular concern are the recurrent events of sexual misconduct, as borne out by not only the criminal record but also the reports that have been referred to.

[42] The vulnerability of the victim in this case is a significant aggravating factor as is the fact that W.N. had sex with his daughter approximately fifteen times over a period of four months.

[43] While the victim may not have initially objected to having sexual relations with her father, it is likely, given her intellectual capabilities, that she did not even realise that doing so was morally wrong. But once it had started, she became afraid of how W.N. would react if it ended. In the meantime, he gave her money to buy her compliance.

Mitigating Factors

[44] The defence does not assert that your own history of having been sexually abused and assaulted as a young person is a mitigating factor. But I agree with the defence submission that it is a factor for consideration. So is your difficult childhood and your many challenges, including a reading comprehension ability said to be at a grade 3 level.

[45] Until the offence now before the court, you had remained out of trouble for eleven years. Your guilty plea, albeit entered sometime after the completion of the preliminary inquiry, as the trial date approached, is also a mitigating factor.

[46] You have also apparently taken 45 bible study courses while you have been on remand. Letters filed at the sentence hearing bear out that you have been a consistent and attentive student.

Discussion

[47] There is no doubt that you should become involved in programming to assist you with your deviance. It is unfortunate that you managed to slip through the net on previous occasions when you were pointed in the direction of obtaining treatment and assistance. Hopefully, being placed in a federal institution which has the appropriate programming available will assist you.

[48] But while rehabilitation and education is necessary and appropriate, denunciation and deterrence and separating you from society are factors which carry even greater weight in this case.

[49] The range of five to six years in R. v. P.M. is, of course, instructive. That was a case in which the respondent had been convicted by a jury of sexual assault, sexual exploitation and invitation to sexual touching involving his wife’s niece. The sexual assaults included approximately 124 times when the respondent had sexual intercourse with the victim, extending of a period of three years until the victim was nineteen years old. On appeal, the respondent was given a sentence of seven years.

[50] The aggravating factors in the present case are such that the appropriate sentence necessarily falls at or beyond the high end of the range.

[51] What you did, W.N., was more than a momentary aberration. More than a surrender by a morally weak person to human temptation.

[52] Rather, it was a cynical and serial violation of the trust relationship that should exist between a father and a daughter. It was exploitative. It was cruel. It was disgusting. It was depraved. It was unbelievably selfish.

[53] Time will no doubt tell the extent to which what you have done will have permanently harmed K.N.. Her victim impact statement suggests that what has happened has had a significant detrimental impact on her confidence and self-esteem. Like many victims, she blames herself for the criminal acts of the perpetrator.

Disposition

[54] W.N., I am sentencing you to six years imprisonment. You will be entitled to credit for presentence custody of 549 days credited at 1.5 days for each day served in pre-sentencing custody for at total credit of 823 days. As a result, when you leave this courtroom, you will have three years and approximately nine months left to serve.

[55] I hope that, while you are in the penitentiary, you will get the help that you need.

[56] In addition to that term of imprisonment, I make the following ancillary orders:

a. SOIRA order for a period of 20 years;

b. DNA order pursuant to section 487.051 of the Criminal Code of Canada; and

c. Weapons prohibition order for ten years under section 109 of the Criminal Code of Canada.

d. A non-communication order with respect to K.N. pursuant to section 743.21(1) of the Criminal Code of Canada.

[57] W.N., it has been said of you that you have not fully taken responsibility for what you have done. Should there, in fact, remain any doubt on your part about this, let me tell you, as plainly and as simply as I can, that you, and you alone, are responsible for what you have done and the harm that you have caused.

Graeme Mew J.

Handed down orally: 14 May 2018

COURT FILE NO.: CR-17-122-00

DATE: 20180514

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

W.N.

Defendant

SENTENCING DECISION

Mew J.

Date: 14 May 2018 (handed down orally)