Court File and Parties

COURT FILE NO.: CR-16-93 DATE: 2018/12/05 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – T.B. Defendant

Counsel: Warren Milko, for the Crown Sandee Smordin, for the Defendant

HEARD: November 16, 2018

THE PUBLICATION OF ANY INFORMATION CONTAINED HEREIN WHICH MAY DISCLOSE THE IDENTITY OF THE COMPLAINANT IS PROHIBITED FROM PUBLICATION PURSUANT TO AN ORDER MADE BY THE COURT UNDER S. 486.4(1) of the Criminal Code of Canada AT THE OUTSET OF TRIAL ON JULY 9, 2018.

Reasons for Sentence

Turnbull, J.

[1] The defendant has been convicted of one count of sexual touching contrary to S. 152 of the Criminal Code after a trial without a jury. The reasons for judgment in this matter were earlier released at 2018 ONSC 4464. After hearing submissions on sentence from counsel, the matter was adjourned to today for the imposition of the sentence.

[2] Counsel have kindly provided me with the case authorities upon which they rely in advance of this date giving me the opportunity to read them carefully. Ms. Smordin has also provided letters of reference as to the character of the defendant which I have carefully read.

[3] The facts of the case were not terribly complex and are recounted in detail in the written reasons finding the defendant guilty [1]. The complainant is presently 21 years of age. When she was approximately four years of age, she and her sister would attend at their paternal grandparents’ home to be babysat. The defendant, who was the girls’ uncle, was residing in the residence. On one occasion, he invited the complainant to put his penis in her mouth and she attempted to do it. She was only able to insert the tip of it into her mouth and then after just a few seconds, left his basement bedroom and ran upstairs.

[4] The defendant pled not guilty and testified in his defence, denying the incident ever took place. In the pre-sentence report received by the court, he maintains his innocence.

Sentencing Principles

[5] Parliament has now codified many former common law principles. Section 718 describes the fundamental purpose of sentencing as being “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 sanction.” It further sets out six objectives: denunciation, deterrence, separation of offenders, rehabilitation, reparations, and promotion of responsibility and acknowledgment of harm.

[6] DENUNCIATION - An expression of disapproval of the offender’s conduct to reflect and communicate society’s disapproval and condemnation of particular criminal conduct, by punishing for encroachment on society’s basic code of values.

DETERRENCE - SPECIFIC and GENERAL

[7] Specific Deterrence - Imposing a punishment for the purpose of deterring the offender from repeating that or other criminal offences.

[8] General Deterrence - Imposing a punishment for the purpose of deterring others who may be inclined to commit similar offences.

[9] SEPARATION OF OFFENDERS - Section 718(c) lists as an objective, the separation of offenders from society, “where necessary.” This objective is relevant in the case of offenders who pose a danger to the community.

[10] REHABILITATION - This objective reflects the concept that reformation of an offender is in society’s best interests in the long term. This sentencing objective is designed with a view to formulating a sentence, which serves to address some of the problems underlying the offender’s criminal conduct, such as alcohol or drug dependence, mental disorder, or lack of education.

[11] REPARATION - This objective is designed to reflect society’s increasing awareness of the need to address the interests of the victim, and can be addressed by restitution orders, or community service orders.

[12] PROMOTION OF A SENSE OF RESPONSIBILITY - This objective reflects the concept that offenders must be made to accept responsibility for their criminal actions, and to acknowledge the harm done to victims and to the community, before they can be productively reintegrated into society.

[13] Proportionality - Section 718.1 of the Criminal Code requires that a sentence “be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Section 718.2 (b) provides that disparity is to be avoided and like cases are to be treated alike. In that sense, one should strive for parity in sentence as between offenders involved in the same offence and recognize as a principle of sentencing that similar cases should, generally speaking, result in a similar sentence.

[14] Position of Trust - An abuse of a position of trust or authority in relation to the victim is an aggravating circumstance. Section 718.2(a)(ii) specifically includes abuse of the offender’s spouse or child in committing the offence as an aggravating factor.

Aggravating Factors

[15] The complainant was a very young girl, who was supposed to be in a place of safety in the care of her grandparents and her uncle. In a given sense, the defendant was in a position of trust.

[16] The complainant was a very vulnerable four year old little girl when the offence occurred. She clearly was naïve, innocent and susceptible to his pressure and suggestions.

[17] The incident has had a serious emotional effect upon the complainant. She felt obliged as a teenager to change schools because of the fact that the step-children of the defendant were attending the same school. As a teenager, she developed anxiety and abused alcohol and drugs. She cut herself and attempted suicide. She began therapy and was on medication on and off to the age of 18. She was ultimately diagnosed with Post Traumatic Stress disorder. She has been unable to finish high school and has had difficulty obtaining employment due to her anxiety attacks.

[18] I have no medical evidence that all the emotional problems experienced by the complainant were attributable to this one totally unacceptable act by her uncle. However, I have no doubt that they have played some part in the cumulative factors which have contributed to her anxiety disorder.

[19] Prior criminal record: the defendant has a dated criminal record but the last recorded offence was at just about the time of the incident involving the complainant. All the offences, except one, related to theft under $5,000 convictions between the years 1993 and 2002. One offence related to uttering threats.

[20] The defendant did not plead guilty and has not accepted responsibility for the improper sexual invitation in this incident. While I have remarked on these facts, they are not to be taken into account in sentencing as an accused person has the right to plead guilty and to maintain his/her innocence. The absence of remorse by the defendant is not an aggravating factor for the purposes of sentencing. [2]

Mitigating Factors

[21] This incident occurred approximately 17 years ago and the defendant has had no criminal convictions recorded against him during the past 16 years. He is described by his father as a gentle giant who has no alcohol or drug problems.

[22] With respect to the nature of the sexual act, while it was clearly inappropriate and attracted criminal sanction, it was not repeatedly done, there is little evidence, if any, of grooming on the part of the defendant, and it consisted of one very brief incident. On the scale of seriousness of sexual offences against minors, it is clearly much closer to the lower end of the range than the upper range. In saying that, I do not in any way mean to trivialize the seriousness of the offence.

[23] The defendant never threatened or made promises to the complainant to not disclose the incident to anyone.

[24] The victim impact statements filed in his support as part of this sentencing hearing are very favourable to the defendant.

[25] Of much less import is the fact that the charges have carried with them public and familial stigma, legal fees, and the associated stress of the trial and sentencing process.

Victim Impact Statements

[26] The victim of this offence has filed a lengthy and evidently painful victim impact statement. She described the effects of his conduct starting to really affect her in middle school when the offender and his second wife moved into her family’s neighbourhood and she had to go to school with his step-daughter. She lived in fear of seeing him. She began to associate school with anxiety to the extent that she dropped out of high school before completing her grade 12. She attempted suicide in due course, was hospitalized and has undertaken years of counselling. She became dependant on cannabis to manage her feelings and left her family because she had difficulty in getting along with others. She describes herself as having significant difficulties maintaining friendships and relationships due to fear of abuse and trust. She has expressed that she has suffered from overlapping diagnosed and non-diagnosed mental health issues which have been difficult to treat. She stated that not being emotionally well has held her back in life and feels that now that this trial is over, she can finally start to deal with some of the issues she has to confront in life.

[27] She also expresses anger and anguish at having family members not believe her for so long and to be cut off from many in her family because of her allegations against the defendant. This has made her feel disgusted with herself which has manifested itself in an eating disorder. She has had difficulty finding a good job due to her limited education. She continues to live at home with her father and essentially relies on him to support her when she has periods of unemployment.

[28] She reports that her continuing anxiety not only affects her but also her family and her few friends who have to listen to her when she calls for help. She believes that counselling will have to continue for the foreseeable future to help her heal from the sexual abuse and denial of it by the offender.

Pre-Sentence Report

[29] The pre-sentence report is generally neutral. The defendant was fully co-operative in the preparation of the report.

[30] The defendant is 49 years of age and completed formal education to the end of secondary school. He does not acknowledge his culpability and hence has expressed no remorse. He resides with his father and is acting as a caregiver for his father who is awaiting a kidney transplant. At the time of preparation of the pre-sentence report, the offender was being tested to determine if he would be a suitable donor for his father.

[31] The offender has been married twice and has a very positive relationship with his father and his son T. Jr., age 25. T. Jr. testified in his father’s defence during the trial.

[32] The offender’s first wife, the mother of T. Jr., speaks well of the defendant and indicates that they remain good friends. After their marriage ended in divorce in 2002, he remarried in 2010. That marriage also ended in divorce in 2017 but I do note that his step-daughter from that relationship testified for him at the trial and spoke positively of her step-father and that she had a good relationship with him.

[33] The offender was formerly a body builder, a sport in which he commenced participating at the age of 14. He continued doing that and holding down a variety of jobs until he injured himself at the gym in 2010. As a result of that injury, he has not been able to work since that time and is symptomatic with degenerative disc disease, cramp-fasciculation syndrome and spinal muscular atrophy. Earlier, in 2007, he suffered a heart attack which required the insertion of three stents. He has also been diagnosed with anxiety and depression. Due to his chronic pain, he attended a methadone clinic from 2015 to 2017 but at that time, his drug dosage was reduced with a resultant increase in his pain. A letter [3] from Dr. Crispen Richards M.D. of the Minerva Comprehensive Pain Management Program confirms that he has been a patient of that clinic since 2014 where he attends bi-monthly to receive appropriate treatment and various pain reducing injections in an attempt to treat his various medical problems.

[34] The offender receives approximately $680 per month from Ontario Works and has applied for ODSP disability benefits.

[35] From the record before this court, it appears that his quality of life is significantly compromised due to his various medical conditions. I noticed during the trial of this action and at the appearance for sentencing submissions, he is in significant pain and limited in his movements.

Character Reference Letters

[36] The defendant, through counsel, has filed a number of character reference letters [4] which are very supportive of the defendant.

[37] His former sister-in-law, who has known him for over 30 years, described him as “a kind hearted person and loving father to T. Jr.” She indicated that she has always trusted the offender around her own daughter over the years and have left her in his care on several occasions. She stated that at one time she worked with him in a tanning salon he and his former wife owned and she never felt uncomfortable being around him.

[38] T. Jr. wrote a touching letter of support for his father. He described his dad as having a wonderful sense of humour who rarely gets upset or raises his voice. He describes him as a great father with whom he talks every day. He noted that his paternal grandfather (the offender’s father) is in declining health awaiting a kidney transplant, hopefully from the offender. Furthermore, the offender’s grandmother, who is in her nineties, is suffering from health issues and the offender is needed in the home to provide both these people living assistance. T. Jr. said that “without his father present, you would be taking a lifeline away from both of them.”

[39] The offender’s former wife, T. Jr.’s mother, wrote a letter of support. It echoed many of the other letters received, describing the offender as caring, fun-loving and someone who wants the best for others. She notes that the defendant has moved past the mistakes in his life and currently resides with his father who she also described as a wonderful man whose health is failing. She assured the court that in her view, the offender is “harmless and not capable of hurting anyone.” She noted that he is doing his best to be there with his father, especially since the loss of his wife (the offender’s mother).

[40] The offender’s niece described knowing the offender over 20 years and regularly visiting his home where she would play with her cousin T. Jr. in the family swimming pool and enjoy many sleepovers. She is presently a social service worker and notes that in that position, it is essential to be able to intuitively “read” people. She writes that “not once over the many years she went over to visit her uncle’s home has he ever made her feel uncomfortable. There never has been any inappropriate language or touching incidents while she has been in his presence.

[41] Other letters from family members and friends echo the same sentiments. His former youth hockey coach described him as a man whom he would trust, in any circumstance.

Position of the Crown

[42] The Crown seeks a custodial sentence of two years less one day or two years to be served in a penitentiary followed by a term of two years’ probation.

[43] In that respect, Mr. Milko relied heavily on the case of R. v. Woodward, 2011 ONCA 610. Moldaver J.A. (as he then was) noted that the dichotomy in sentencing in sexual abuse cases involving child victims is related to the effect of the offence on the victim as opposed to the circumstances of the victim. In the Woodward case, the court put the emphasis on the victim who was just 12 years of age at the time that she was sexually assaulted. The defendant lured her on the internet to participate in sexual activity with him, promising to deposit $57 million into her bank account. When she met him, he purported to call the Bank of Montreal and transfer the money into an account he had arranged for her at the bank. She then acceded to participate in various sexual acts including oral intercourse and sexual intercourse.

[44] In Woodward, the court issued clear directions to sentencing judges in cases involving sexual predators. At paragraph 76, Moldaver J.A. stated that the “focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and life altering consequences that can and often do flow from it.” At paragraph 72(6), the court stated that absent exceptional circumstances, the objectives of sentencing should be denunciation, general and specific deterrence, and the need to separate offenders from society.

[45] The Crown also relied on R. v. Barua, 2014 ONCA 34 in support of its submission that a custodial sentence is required in this case. Barua was convicted, after a jury trial, of sexually assaulting a 10 year old boy as he slept in his bedroom. The complainant testified that the defendant pulled down his pants, kissed him, touched and licked his penis, and “humped” him. The trial judge imposed a 10 month custodial sentence. At paragraph 34, the court noted that “the trial judge concluded that a sexual assault on a young victim in the circumstances of this case would normally attract a medium to high range reformatory sentence even for a first offender.” That sentence appeal was dismissed.

[46] More recently, the Ontario Court of Appeal has again dealt with a case somewhat similar to the one at bar. In R. v. A.G., the defendant was convicted of sexual interference with a 10 year old girl. He was found to have touched her vagina and performed cunnilingus on her while she was staying at a friend’s home. The accused was the friend’s step-father. He unsuccessfully appealed from a sentence of 22 months. At paragraph 6 of its brief reasons, the court noted “the sentence was justified in light of the young age of the victim, the appellant’s breach of trust toward the victim, the serious impact of the offence on the victim, and the appellant’s prior criminal record.”

[47] The Crown has emphasized the similarity of the facts in this case to those in R. v. A.G., supra. The defendant before this court, as noted above, also has a criminal record which reflects two short periods of pre-trial custody.

[48] The Crown urged the court to not dismiss the very significant emotional effects on the complainant caused by or contributed to by the actions of the defendant.

Position of the Defence

[49] Ms. Smordin has urged the court to impose a conditional sentence on the defendant.

[50] She submitted that the Crown’s case brief relates to much more serious offences and focused on predatory behaviour of the offender. In this case, she argues that the incident in question was one very brief incident which was never repeated by the defendant again. She further notes that the complainant’s twin sister never complained of similar conduct on the part of the defendant.

[51] She has referred the court to the case of R. v. B.S. to support her sentencing submission. In that case, the accused was treated as a member of the complainant’s family. The complainant treated him as if he were an uncle. Despite this relationship of friendship and trust, the appellant tried to touch the complainant on her breasts, offered to show her his penis, kissed her on the mouth and put his tongue in her mouth, had her sit on his lap when he had an erection while both were clothed and put his hand down her bathing suit and touched her buttocks. The offences were noted to have had a serious effect on the complainant.

[52] At paragraph 5 of the decision, the court commented that for the offence of sexual invitation, a sentence served in the community in accordance with the conditions of a conditional sentence may have been appropriate.

[53] Ms. Smordin also urged the court to consider the case of R. v. Bent, 2017 ONSC 3189 in which Hill J. determined that a conditional sentence was appropriate in an historical indecent assault of a young, male person. In doing so, Hill J. noted that the defendant had previously sought out therapy to deal with his inappropriate sexual behaviour, had been crime free for 35 years, and had participated in volunteer work in the community. It is quite distinguishable from the case before this court with respect to the rehabilitation efforts made by the accused.

Analysis

[54] In this case, the objectives of sentencing must be denunciation, general and specific deterrence, and the need to separate offenders from society. Central to all these considerations must also be the victim and the effects of the improper sexual behaviour upon her.

[55] I am acutely aware of the impact that the complainant says this incident has had on her emotional well-being. However, I am unable to conclude that all of her behavioural and emotional problems outlined in her victim impact statement were caused by the single incident which resulted in the defendant’s conviction in this case. For example, during the trial, the evidence indicated that her mother and father had separated at some stage and as occurs in many such situations that possibly contributed to her anxiety and emotional fragility. That being said, I do not want my comments to be taken in any way as trivializing the events before this court and their effects upon the victim. I have no doubt that this incident involving the defendant has had an impact on her for a long period. As she said in her victim impact statement, hopefully now she can begin to move on, having been heard and believed.

[56] This was an historical invitation to sexual touching. It only occurred one time, albeit in a position of trust. The incident lasted for only four or five seconds at most. The complainant’s twin sister never complained of any similar inappropriate behavior on the part of her uncle. There was no grooming of the victim, no promises or threats or violence or attempts to coerce secrecy with respect to what had occurred.

[57] The defendant has a somewhat dated, prior criminal record, albeit for unrelated offences. There is no sexual component to any of them. He has no registered convictions since 2002. He has tried to work and raise two step-children during the course of two failed marriages. His step-daughter testified on his behalf at trial and spoke well of him as a step-father. His son T. Jr. clearly adores his father and respects him.

[58] The incident in question occurred approximately 17 years ago. I am satisfied that the defendant poses little or no risk of reoffending. Hence, specific deterrence and rehabilitation are not relevant factors in imposing this sentence.

[59] The defendant is seen as a caring and kind man. This is exemplified in the care he is offering to his father and his grandmother as both those people struggle with their health. They clearly need him at this juncture of their lives. He has considerable support within his family itself, his extended family including his former wife and her spouse and friends in the community.

[60] The defendant clearly has significant health issues himself. He required several breaks during the trial to permit him to relieve some of the chronic pain he experiences. He has had to retain counsel and face a serious criminal charge. He had had the pressure and social stigma of being charged, and now convicted, of a sexual offence involving a minor. He has alluded to the fact that some friends have not spoken to him since he has been charged.

[61] The efficacy of a conditional sentence in certain circumstances has been recognized by the Supreme Court of Canada [5]:

The stigma of a conditional sentence with house arrest should not be underestimated. Living in the community under strict conditions where fellow residents are well aware of the offender’s criminal misconduct can provide ample denunciation in many cases. In certain circumstances, the shame of encountering members of the community may make it even more difficult for the offender to serve his or her sentence in the community than in prison.

The amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of the offender, the nature of the conditions imposed, and the community in which the sentence is to be served. As a general matter, the more serious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be. However, there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct.

[62] In my view, this is one of those exceptional cases where the goals of deterrence and denunciation can be achieved by imposing a period of incarceration of two years less one day to be served in the community under conditions of a conditional sentence. The imposition of house arrest will apply for the entire length of the sentence. A reformatory sentence of the same length would be, in all probability, reduced to approximately one third of it being served in custody. Hence, in a given sense, a conditional sentence is more onerous than a period of incarceration. This will affect the dual purpose of imposing a significant restriction on the defendant’s activities for two years less a day while permitting him to tend to the care of his father and grandmother at the same time. It will provide conditions which will prohibit contact with the complainant and her sister and to require the defendant to obtain and continue any counselling his probation officer should feel is necessary. Furthermore, it will then be followed by a three year period of probation, containing among various conditions that he have absolutely no contact with the complainant or her sister.

Conclusion

[63] The defendant is sentenced to a period of two years less one day, to be served in the community under the mandatory statutory terms in S. 742.3(1) of the Criminal Code as well as the following conditions:

1. You shall absolutely abstain from the consumption of alcohol or other intoxicating substances.
2. You shall absolutely abstain from the consumption of drugs except in accordance with a medical prescription.
3. You shall abstain from owning, possessing or carrying a weapon including any offensive weapon, ammunition, explosive substance or weapon as defined by the Criminal Code of Canada.
4. You shall not associate with or communicate with any persons known to have a criminal record, save and except by way of incidental communication at school, training and/or employment or during treatment programs authorized by your conditional sentence supervisor, and further not to associate with anyone objected to by your supervising probation officer.
5. You shall provide personal support or care of your father and grandmother.
6. You shall attend any treatment or counselling programs recommended by your conditional sentence supervisor.
7. If you obtain employment of any nature, you shall provide proof of your employment and your continued employment to your conditional sentence supervisor on a regular basis. In the event that you cease to be employed by any employer, you shall immediately notify your conditional sentence supervisor and grant leave to him/her to speak with the owners of the affected business to provide him/her details surrounding the cessation of your employment.
8. Before leaving your residence to seek employment, you shall notify your conditional sentence supervisor where you are going to apply, the length of time you will be attending to make that application and the name, contact information and other information which the conditional sentence supervisor may wish to verify your efforts and the fact that you did attend at a given location.
9. You shall reside at 245 Stadacona Avenue, Ancaster Ontario, unless you obtain the approval of your conditional sentence supervisor of any change of address at least 10 days before such change of address is affected.
10. You are to install and maintain a land line telephone number in your residence during the entire time of your conditional sentence and shall be available to answer that phone when you are required to be inside that residence within 5 minutes of receiving a phone call on that phone from your conditional sentence supervisor or any member of the police in the jurisdiction where you are residing during your conditional sentence. You further shall permit police officers or your supervisor or designate to knock at the door of your residence at any time between 6:00 am and 11:59 pm of any day throughout your sentence for the purpose of ensuring your compliance with the house arrest conditions of this order.
11. You shall have no communication or contact, directly or indirectly with the complainant or her sister.
12. You shall not venture within 500 yards of the residence, school, place of worship or place of employment of the complainant or her sister.
13. In addition to the aforesaid conditions listed herein, for the first 18 months of your sentence, you shall remain in your residence as follows: a. You shall not be absent from the premises from 8:00 pm to 6:00 am without the prior approval of your conditional sentence supervisor. b. You may leave your residence in the event of a family death or a family or personal emergency for a stipulated period and for a purpose approved by your conditional sentence supervisor. c. You may leave your residence on Saturday mornings from 9:00 am to 12:00 noon (or at another time agreed to by your conditional sentence supervisor) to attend to personal care and household related duties including shopping, haircuts, dental care, medical appointments, car repairs and servicing and other similar activities. d. You may also leave your residence at other times as follows: i. for the purposes approved specifically by your conditional sentence supervisor, or ii. for travelling directly to your place of employment and for travelling directly home from your place of employment or for the purpose of seeking employment, or iii. for travelling directly to a medical appointment for yourself or with your father and/or grandmother to assist them in attending a medical appointment or hospital and travelling directly home from such a meeting, or iv. for two hours one time each week for the purposes of travelling to and from church and such time shall be provided to your conditional sentence supervisor in advance of such weekly attendance, or v. for such other purposes as your supervisor considers reasonable and necessary in the circumstances.
14. Commencing on the 4th day of June, 2020, all the aforesaid conditions shall continue to apply for the last 6 months of your sentence except that you shall not be absent from your residence between the hours of 10:00 pm and 6:00 am without the prior approval of your conditional sentence supervisor.

[64] Upon completion of your conditional sentence of two years less one day, you shall then be placed on probation for three years with the following conditions:

1. You shall keep the peace and be of good behaviour.
2. You shall not consume any non-medically prescribed drugs.
3. You shall have no communication or contact, directly or indirectly with the complainant or her sister.
4. You shall not venture within 500 yards of the residence, school, place of worship or place of employment of the complainant or her sister.

[65] It is further ordered pursuant to S. 109 (2)(a) that you shall not own or possess a weapon as defined in S. 109 of the Criminal Code for a period of 10 years.

[66] It is further ordered pursuant to S. 109 (2) (b) of the Criminal Code that you shall not own or possess a weapon as defined in that section of the Criminal Code for life.

[67] It is ordered that the defendant shall be subject to a Sex Offender Information Act order for a period of 20 years and he shall be required forthwith to provide a DNA sample sufficient for forensic analysis pursuant to S. 487.051 of the Criminal Code.

[68] The Crown has also sought an order under S. 161(1) (a) of the Criminal Code. Due to the passage of time from this one incident and due to the fact there is no evidence that the defendant is of the disposition to repeat this type of conduct, I refuse to grant this order.

Turnbull, J. Released: December 5, 2018

Footnotes:

[1] 2018 ONSC 4464. [2] R. v A.G. , 2017 ONCA 474 at para. 6. [3] Sentencing Proceedings, exhibit 5. [4] Sentencing Proceedings, exhibit 4. [5] R. v. Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61, 140 C.C.C. (3d) 449 at paras. 105 and 106.