ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-17-70000254-0000
DATE: 20180607
BETWEEN:
HER MAJESTY THE QUEEN
– and –
C.W.Z.
M. Mungovan, for the Crown
J. Fernandes, for the Defence
HEARD: May 8, 2018
S.A.Q. akhtar j.
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[1] The offender was convicted, after trial by jury, of numerous sexual offences against his wife and daughter: three counts of sexual assault against his wife, C.Q.; one count of sexual assault and one count of sexual interference against his daughter, C.L.
[2] The offender now stands to be sentenced for these offences.
Background Facts
The Assaults on C.Q.
[3] The offender’s family immigrated to Canada in 2009 when he and his daughters, C.L. and L.L., joined their mother, C.Q., who had been working in this country, as a nanny since 2006.
[4] The marriage, however, was not a happy one. During their time together in China, the offender regularly forced his wife to engage in sexual intercourse against her will. The bulk of these incidents would occur when C.Q. was on her period and had no desire for sex. However, the offender had also forced sex on C.Q. shortly after she had given birth and was unable to cope with the physical demands of sex.
[5] After the family was reunited in Canada, the sexual assaults continued.
[6] The offender cared little about C.Q.’s wishes to avoid sex during her menstrual cycle. When she refused his advances, he would force her to comply. These assaults occurred once a month and formed the basis for one of the counts of sexual assault which the offender was convicted of.
[7] There were two discrete incidents that formed the remaining counts in the indictment.
[8] On one occasion, C.Q. was two months pregnant and lay asleep in bed. After entering the bedroom the offender dragged her to the edge of the bed by her feet. C.Q. asked the offender what he was doing but received no reply. Pulling off her underwear, the offender placed C.Q.’s feet on his shoulders and began to have sex with her. C.Q. asked him to stop, because she was in pain but the offender said nothing. C.Q. began to yell but became worried that she might scare the children who slept in the next room. When the offender finished, he fell asleep. The next morning C.Q. felt pain in her abdomen and realised she was bleeding. After being taken to hospital, doctors told her that she had suffered a miscarriage.
[9] The second event occurred in early 2014. C.Q. was in bed wearing pajamas and the offender lay on top of her initiating sex. She told him that she was in pain and she wanted him to stop because she was on her period. The offender ignored her pleas and continued putting his penis in her vagina. As C.Q. continued to resist, he pushed her hands above her head. After the offender had finished, he used some tissue to wipe himself and slept. When C.Q. went to the bathroom the next morning, she discovered blood in her urine and felt abdominal pain which lasted for approximately one month.
[10] C.Q. did not report these assaults to the police.
[11] When visiting her daughter at the Centre of Addiction and Mental Health, C.Q. saw a leaflet about sexual assaults and realised that it was wrong to force women to have sex without their consent. This convinced her to report the allegations.
The Assaults on C.L.
[12] Whilst C.Q. was working in Canada, and prior to the family’s arrival in Canada, the offender began to sexually assault C.L., who was approximately 10 years old.
[13] At bedtime, the offender would position himself between C.L. and her sister, L.L., conversing about school matters. During their conversation he would move on top of C.L., and turn his head to look at the clock on the wall. She would feel an object that she described as similar to a popsicle between her thighs. The offender would then move off her. When this happened C.L. would be wearing underwear and the offender only boxer briefs. When C.L. asked the offender about the object between her legs he told her not to worry about it.
[14] On another occasion, the offender began touching C.L. and kissing her. When she glanced down, C.L. saw the offender’s penis and realised that he was not wearing any underwear. She jumped out of bed and told him that she was going to report the incident to her teacher but the offender replied that if she did tell anyone, she would not be believed.
[15] C.L. spoke of other incidents involving her father. In one instance, he began kissing her in the kitchen and she found her underwear coming down. On another occasion, the offender walked into the washroom when she was naked and started hugging her. Again, she saw his penis coming out of his boxer briefs.
[16] C.L. testified that she did not disclose these occurrences in China because she had no one to go to and felt that she had no power to prevent the assaults. She also believed that if she told anyone she would be treated like a freak.
[17] The assaults on C.L. continued on a weekly basis after the family arrived in Toronto. At bedtime, in the room shared by his two daughters, the offender would read to L.L. and, after she fell asleep, would move to C.L.’s bed and lie on top of her. Sometimes he would wear boxer briefs, and on other occasions, jeans with the zipper left open. The offender would kiss C.L. and move his body up and down on her. C.L. would yell out loudly calling for her mother but the offender would remove himself before C.Q. entered the bedroom, telling her that he was checking to make sure their daughters were asleep.
[18] C.L. testified that when the offender lay on her, his body would be atop of the blanket whilst she remained underneath. She described the offender’s kisses as being vigorous, as if he was going to eat her mouth. This would cause her to freak out. The offender’s penis would rest between her thighs but remain above the blanket whilst he moved himself in an up and down motion. Throughout these incidents, L.L. would remain asleep.
[19] The assaults finally ended when C.L. asked the offender what any future husband of hers might feel when he learned about the offender’s actions. In response, the offender told C.L. that if she ever revealed what he had done, she would suffer devastating consequences. However, he did not assault her again.
[20] Both C.Q. and C.L. testified to the atmosphere and intimidation that existed in the domestic household. One incident that stood out for both victims was when the offender accidentally bumped into a dining table and, after doing so, took out a saw and removed the corner of table in front of them, in anger.
Position of the Parties on Sentencing
[21] Ms. Mungovan, for the Crown, suggests consecutive sentences of imprisonment in the 10 year range as being appropriate in this case. Acknowledging the need for totality, she submits a deduction of 1-2 years from that range would be justified, reducing the sentence to approximately 8-9 years.
[22] Mr. Fernandes, on behalf of the offender, submits that the appropriate sentence is 3-5 years based on the sentencing range contained in the precedents. He also submits that the sexual assault and sexual interference convictions are based on the same factual matrix and that one of these counts must be stayed pursuant to R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729.
Does the Kienapple Principle Apply?
[23] The rule in Kienapple precludes conviction for multiple offences arising out of the same criminal transaction where the essential elements of the offence are substantially the same: R. v. Prince, 1986 40 (SCC), [1986] 2 S.C.R. 480.
[24] The application of the rule demands a factual and legal nexus between the offences. The factual nexus is determined by examining whether the same act committed by an accused is the basis for the offence charged. The legal nexus required for the application of Kienapple is satisfied if the essential elements required for conviction are the same in both offences.
[25] Here, there is a distinguishing feature between the two offences. Sexual interference requires that the victim be under the age of sixteen when the assault is committed. A sexual assault conviction, on the other hand, stipulates no limit on the victim’s age. The age requirement, an essential element of sexual interference, therefore distinguishes the two offences.
[26] Ms. Mungovan submits that the sexual interference count covers the period up until the date on which C.L. turned sixteen. The sexual assault count therefore operates beyond that date. I agree. It is not disputed that the sexual assaults on C.L. commenced before she turned sixteen but extended beyond that date. For that reason, the two counts are premised on different times and dates. The legal and factual nexus does not exist and the rule against multiple convictions does not apply.
Personal Circumstances of the Offender
[27] The offender is now 46 years of age and was born in Shanxi, China. His father worked as a labourer on the railroad and his mother made and sold garments. He was the oldest child of three and has not remained in contact with his family since his arrival in Canada.
[28] The offender completed a high school education at a boarding school in China and assisted his mother in her business before attending a culinary school. He worked as a master chef at two hotels for a combined total of seven years.
[29] After settling in Canada, he worked as a chef in a number of Chinese restaurants, maintaining employment and advancing to positions that he believed were better.
[30] Now separated from his wife, but not officially divorced, the offender is presently single and has no other familial ties to Canada. He is currently unemployed and living off past savings. According to the pre-sentence report (PSR) prepared in this case, he resigned from his last position because of the court proceedings. The offender is, however, obliged to make child support payments with respect to L.L. until she attains the age of 18 years.
[31] The offender told the author of the PSR that once the offences before the court are dealt with, he plans to start his own business - something that was always his ambition but blocked by his ex-wife who controlled the family finances.
LEGAL PRINCIPLES
The Criminal Code
[32] As in the case whenever sentence is imposed, the court must be guided by the principles found in s. 718.1 of the Criminal Code which require the court to balance denunciation and deterrence with the prospects of rehabilitation and the promotion of responsibility.
Sexual Assault in a Domestic Context
[33] The seriousness of committing sexual assault against a spouse is reflected in s. 718.2(a)(ii) of the Criminal Code which obliges a sentencing court to treat assaults committed in a domestic context as an aggravating factor.
[34] The sentencing range for cases involving forced sexual intercourse with a spouse falls between 21 months and 4 years: R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34, at para. 87; R. v. H.E., 2015 ONCA 531, 336 O.A.C. 363, at para. 44.
[35] In R. v. D.J., 2010 ONSC 3910, the offender pleaded guilty to committing sexual assault on his domestic partner over a period of two years. The sentencing judge imposed a three year sentence after a joint submission. However, he commented that this was at “the low end of an acceptable range”. There, the offender had repeatedly assaulted his partner in conduct described by the judge as “serial rape”.
[36] In R. v. M.Q., 2012 ONCA 224, 110 O.R. (3d) 276, the offender was convicted of sexually assaulting his wife over a lengthy period of several months, in addition to assaulting her by choking her into unconsciousness. He received three and a half years for the assaults with a further consecutive sentence of 18 months for the two assaults, thereby resulting in a global sentence of five years.
[37] In H.E., the offender was convicted of forced sexual intercourse of his wife with whom he had emigrated to Canada from Iran. The offender had repeatedly raped his wife in Iran and this pattern continued after their arrival in this country. The evidence disclosed not only sexual assaults but violence and intimidation to both the victim and their children. In addition to the conviction for sexual assault, the offender was also found guilty of four counts of assault against his wife and children. The sentencing judge imposed a global sentence of 18 months imprisonment with probation. The Court of Appeal found this sentence to be unfit and increased the total sentence to four years.
[38] Four year sentences were also found to be appropriate in R. v. N.T., 2011 ONCA 114; and R. v. N.H., 2017 ONSC 2493. Both cases involved repeated sexual assault in a domestic context where the offender was abusive and controlling.
Sexual Assault on Children
[39] In R. v. D.D., (2002), 2002 44915 (ON CA), 163 C.C.C. (3d) 471, 58 O.R. (3d) 788, at para. 34, the Court of Appeal for Ontario remarked that adults who commit sexual offences against children “must know they will pay a heavy price”. At para. 44, the court encapsulated the sentencing principles where child victims were concerned in the following way:
To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. (See, for example, R. v. M.(C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500 in which the Supreme Court restored the 25-year sentence imposed at trial and R. v. W.(L.K.) (1999), 1999 3791 (ON CA), 138 C.C.C. (3d) 449 (Ont. C.A.) in which this court upheld a sentence of 18 and a half years imposed at trial.)
[40] D.D. was cited in R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, where Moldaver J.A. (as he then was) distilled the principles emanating from that case. At para. 72, he wrote:
(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.
[41] In R. v. G.A.G. (2006), 206 O.A.C. 134 (C.A.), the court upheld a sentence of four and a half years for an offender convicted of sexual assault and invitation to sexual touching against his son. These assaults took place over many years and progressed from fondling to mutual masturbation and fellatio. At para. 13, the court observed;
A sentence of four years and six months was not manifestly unfit. The assaults against the appellant's son continued over many years. These assaults progressed in gravity from fondling to mutual masturbation and fellatio, involved a serious abuse of parental authority and had a serious impact upon the victim. We agree with the respondent that they fell within the 3 to 5 year range identified in R. v. B.(J.) (1990), 36 O.A.C. 307 (C.A.).
[42] R. v. A.H.K., 2012 ONSC 1354 was a case where the offender was convicted of sexual assaults against his daughter aged between 10 and 13 years. The assaults included the touching of genitals; digital insertion and licking of her vagina; rubbing of breasts and buttocks; and attempts to kiss her even though she resisted and told him to stop. The assaults occurred two or three times a week and, on one occasion, the offender placed a pellet gun behind the victim’s pillow and threatened to kill her if she did not comply with his demands. The offender paid the victim large sums of money for her silence. The court imposed a sentence of 6 years imprisonment.
Aggravating and Mitigating Circumstances
[43] I start with the aggravating features in this case.
The Offences Against C.Q.
• The sexual assaults took place in a domestic context where, as noted in the case law above, there was a flagrant breach of trust
• The assaults took place over a lengthy period of at least three years
• At least two of the assaults resulted in physical injury which resulted in C.Q. needing to go to hospital for treatment
The Offences Against C.L.
• The offender’s assaults on his daughter were, again, a flagrant breach of trust
• There was evidence of planning in the manner in which the offender conducted the assaults by waiting for L.L. to fall asleep and using that as a pretext for being in his daughter’s bedroom, after which he began his sexual assaults on C.L.
• The sexual assaults were committed over a lengthy period of time and on a weekly basis
• The offender also used emotional manipulation to ensure that C.L. would not reveal his criminal activity by telling her that she would be considered a “freak” if she ever told anyone about what he was doing
[44] In mitigation, this is the offender’s first encounter with the criminal law in Canada. Since coming to this country, he has sought to contribute to society by seeking and obtaining employment.
[45] Whilst the offender’s continued denial of the offences and lack of remorse is not an aggravating factor, it disentitles him to the significant discount in sentence afforded to a remorseful offender. Moreover, many of his comments in the PSR, which direct blame in a vindictive manner towards C.L., speak to the lack of rehabilitative prospects.
Impact on the Victims
[46] The effects of the offender’s actions will clearly reverberate through the lifetime of both victims.
[47] C.Q., in her Victim Impact Statement (VIS) explained that she still “[gets] shaken up when [she] recalls the past. I would become fearful, withdrawn and depressed for a few days. Sleep was difficult”. C.Q. also indicated the she suffered long lasting physical injuries caused by the assaults which continue to cause her pain. She is continually fearful that she may encounter the offender in the future and that he may inflict harm on C.L.
[48] C.L. is still attempting to cope with the emotional trauma sustained as a result of the offences. She finds it difficult to trust people and has a reduced sense of self-worth. As she says in her VIS, the offender’s “manipulation made me feel dirty, broke my confidence, and stepped over my dignity”.
The Appropriate Sentence
[49] I start with the observation that the sentences imposed for each victim must be consecutive to each other. The acts constituting the offences were distinct and not a series of linked occasions.
[50] As previously noted, offences against children and domestic partners are treated extremely seriously with sentences imposed to reflect the gravity and impact of these crimes.
[51] Mr. Fernandes, however, drew this court’s attention to cases which appear to impose sentences at the low end of the range.
[52] For example, R. v. Nolan, 2009 ONCA 727, involved a domestic sexual assault where the offender tied down the victim, covered her mouth with duct tape, punched her in the face, threatened to cut her vagina and unsuccessfully attempted to have sex with her. The sentencing judge imposed a conditional sentence which was reversed on appeal with the substitution of a sentence of 21 months imprisonment. However, unlike the case at bar, this was an instance of a single count of sexual assault, and the conviction resulted from a guilty plea which, as a reflection of the offender’s remorse, would result in a significant discount in sentence.
[53] Similarly, in R. v. R. (B.S.) (2006), 2006 29082 (ON CA), 81 O.R. (3d) 641 (C.A.), the court upheld a 30 month sentence after the offender had been convicted of assault, assault with a weapon and sexual assault. However, in that case, there were only three specific instances of assaults unlike the case at bar where C.Q. was subjected to sexual intercourse without consent on a monthly basis.
[54] With respect to the assault on C.L., Mr. Fernandes relies upon R. v. O.B., 2016 ONSC 6861, where the offender received two years less one day. However, the assaults in that case, mainly touching over and under the clothing, although serious, were not as significant as the assaults perpetrated on C.L. I take the same view with respect to R. v. F.F., 2016 ONSC 5366, where the offender was given a 12 month sentence in respect of sexual assaults on his two nieces.
[55] However, whilst Ms. Mungovan’s calculation of the appropriate sentence as 8-9 years is logical, I find that it ignores the totality principle and the need to avoid imposing a crushing sentence on a first time offender.
[56] Using the approach set out in cases such as R. v. Jewell (1995), 1995 1897 (ON CA), 100 C.C.C. (3d) 270 (Ont. C.A.); R. v. R.B., 2013 ONCA 36, 114 O.R. (3d) 465, at para. 30; and R. v. Ahmed, 2017 ONCA 76, 346 C.C.C. (3d) 504, at para. 85, I first identify the gravamen of the offence, identify the total sentence and then apportion it amongst the offences.
[57] In this case, I find that a global sentence of six years to be appropriate using the principles set out in the Criminal Code and the jurisprudence identified above.
CONCLUSION
[58] Accordingly the sentence is as follows:
• Count 1: 3 years imprisonment
• Count 2: 3 years imprisonment concurrent with count 1
• Count 3: 3 years imprisonment consecutive to Count 1
• Count 4: 3 years imprisonment concurrent with Count 3
• Count 5: 3 years imprisonment concurrent with Count 3
• The offender is to have no contact with C.Q. or C.L. during the custodial period of his sentence pursuant to s. 743.21 of the Criminal Code
• The offender must provide a sample of his DNA order pursuant to s. 487.051(1) of the Criminal Code
• The offender cannot possess any weapons for a period of 10 years pursuant to s. 110 of the Code
• The offender must comply with the provisions of the Sexual Offences Information Registration Act for a period of 20 years pursuant to s. 490.012(1) of the Code.
S.A.Q. Akhtar J.
Released: 7 June 2018
COURT FILE NO.: CR-17-70000254-0000
DATE: 20180607
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
C.W.Z.
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.