COURT FILE NO.: 120/17
DATE: 2018/09/04
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, any information that could identify the person described in these reasons as the complainant shall not be published in any document, or broadcast or transmitted in any way.
Every person who contravenes the order is guilty of an offence punishable on summary conviction.
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
K. de Koning, for the Crown
- and -
T.W.
C. Uwagboe, for the Defendant
HEARD: July 18, 2018
Grace J. (Orally)
Reasons for Sentence
A. Introduction
[1] Following a trial, T.W. ("TW") was found guilty of sexually assaulting and sexually interfering with his then 12 year old niece AW contrary to ss. 271 and 151 respectively of the Criminal Code. Submissions on sentence were made on July 18, 2018. Decision was reserved until today.
[2] I start with a brief recap of the circumstances of the offences.
B. The Circumstances of the Offence
[3] The events that bring TW before the court took place on November 22, 2015 in a residence ordinarily occupied by his sister S, her children and fiancé. AW lived elsewhere with her maternal grandmother. However, she maintained a close relationship with her aunt and cousins and was a frequent overnight visitor, particularly on weekends.
[4] TW had been serving a sentence in a federal institution following a conviction for manslaughter in November, 2011. TW resided in a Community Residential Facility while on day parole. He moved into his sister's residence once eligible for full parole. TW was still residing in the basement of that home on the night in question.
[5] AW was asleep on a living room couch when TW approached her following an afternoon and evening of drinking. The evidence established that TW touched the buttocks of the victim before digitally penetrating her a short time later.
[6] Soon afterward a distraught young girl sought comfort from her aunt and when she did not awaken, her cousin. The full extent of the allegations was not known until AW returned to her grandmother's home.
C. The Circumstances of the Offender
[7] I turn to TW's personal situation.
[8] The defendant was born June 1, 1982. He is 36 years old. The first entry in his adult criminal record was made on July 6, 2000 when TW was convicted of failing to comply with a recognizance and possession of a substance listed in Schedule 1 of the Controlled Drugs and Substances Act. The following month the offender was convicted of break and enter and committing an indictable offence. He was then barely 18 years old.
[9] More than eleven years passed before the next entry. It was the November, 2011 manslaughter conviction I have already referred to.
[10] The offender committed the offence of assault causing bodily harm while in custody.
[11] A pre-sentence report was not ordered following TW's conviction in this court. However, a Stand Down/Pre-Sentence report had been prepared in anticipation of an October 3, 2016 appearance in the Ontario Court of Justice. It contained a little information concerning the offender. He was reported to have earned a high school diploma while serving his penitentiary sentence. He assisted family members in a renovation business while on parole. TW has a teenage daughter. I know nothing about her or their present relationship.
[12] Alcohol use was said to have been a long-standing and "major issue" for TW, even while he was living in his sister's residence. Consumption of alcohol was contrary to the terms imposed by the Parole Board. As already noted, it is clear from the evidence introduced at trial that TW had been drinking for hours – some of them in the company of his sister, many more while TW was with her fiancé.
[13] According to the author of the Stand Down report, TW was well-supported by his family until after his arrest on these charges. The extent of their current backing is unknown although counsel for TW told the court during his submissions that the defendant would be allowed to move into a sister's residence after serving the sentence I will soon impose.
[14] TW addressed the court when given an opportunity to do so. He said that while not an excuse, he has no recollection of touching his niece in an inappropriate manner. He accepts the court's decision and is sorry for what he has been found to have done and for the pain it has caused AW and his extended family.
D. Victim Impact
[15] Section 722(1) of the Criminal Code requires the sentencing court to consider a statement of a victim describing the physical or emotional harm, property damage or economic loss suffered as a result of the commission of the offence. AW provided a victim impact statement dated July 4, 2018. She asked that the document not be read aloud.
[16] While respecting her wishes, it is important that something be said about the impact of the offence on AW. Predictably, the experience has affected her profoundly and permanently. A happy, trusting and active young person has been replaced with one who is sad, cynical and isolated. She is plagued by low self-esteem and self-doubt. Even her most important and cherished relationships have become awkward and unsatisfying. Her comments to the court are a cry for understanding and help because she believes that she is hurting more than those around her know.
E. The Applicable Principles
[17] The two offences arise from the same incident. In those circumstances, the parties agree that the sexual assault conviction under s. 271 of the Criminal Code is to be conditionally stayed: R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. Consequently, TW is to be sentenced only in relation to the offence of sexual interference contrary to s. 151 of the Criminal Code. Parliament requires that a person convicted of such an offence receive a minimum term of imprisonment of one year. Another judge of this court has declared that provision to be unconstitutional: R. v. M. (L.), 2016 ONSC 7082 (S.C.J.). See too R. v. Sarmales, 2017 ONSC 1869 (S.C.J.). Given the age of the victim at the time of the offence, the maximum custodial term is fourteen years.
[18] Parliament has also articulated the purpose and principles of sentencing in sections 718 through 718.2 of the Criminal Code.
[19] Section 718 provides that the fundamental purpose of sentencing is to protect society and to contribute 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 listed objectives including:
a. To denounce unlawful conduct and the harm done to victims;
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 promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.
[20] Section 718.01 provides that 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.
[21] Section 718.1 requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[22] Section 718.2 directs the court to take into consideration relevant aggravating or mitigating circumstances. Abuse of a person under the age of eighteen years is an aggravating circumstance. So too is taking advantage of a position of trust.
[23] Several cases were provided to me by the parties.
[24] While sentencing is a highly individualized exercise, some general principles emerge. Those that are relevant today are the following.
[25] First, when imposing a sentence for sexual crimes involving children, the court must strive to send an unmistakable and clear message that such conduct will not be tolerated. As Moldaver J.A. (as he then was) wrote in R. v. D.D. (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), at paras. 35 and 36:
We as a society owe it to our children to protect them from the harm caused by offenders…Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators…and as such, they make easy prey… [W]hile there may have been a time, years ago, when…little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed…The horrific consequences of child sexual abuse are only too well known.
[26] Second, the Court of Appeal has said that a custodial sentence ranging from upper reformatory to low penitentiary is appropriate in cases involving sexual abuse committed by someone in a position of trust: R. v. C.B., 2008 ONCA 486, at para. 55. In R. v. Hussein, 2017 ONSC 4202 (S.C.J.), Code J. pointed out that the sentence to be imposed depended on a number of factors including the nature and frequency of the acts and the impact of the mitigating and aggravating circumstances. In part he wrote:
The appropriate range of sentence in cases involving external sexual touching of children were [sic] reviewed extensively…in R. v. M.L…In the most mitigated cases, sentences of 90 days imprisonment were imposed. In the more aggravated cases, especially those involving breaches of trust and some repetition, sentences between six months and fifteen months were imposed...In cases involving acts of oral sex with children, somewhat longer sentences of 17…or 18 months have been imposed, as these assaults are more invasive…[^1]
[27] Third, the articulation of a range of sentence is not meant to establish fixed boundaries. Sentencing is not an exact science. The facts of each case matter. As was also explained in R. v. D.D., supra at para. 33:
…suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.
[28] Fourth, while not to be mechanically applied, comparable cases are nonetheless helpful. The Criminal Code requires the imposition of similar sentences when faced with comparable offences, offenders and circumstances: s. 718.2(b). I turn to some decisions arising from situations which are, at least in part, analogous.
[29] In R. v. C. (F.), 2016 ONSC 6059 (S.C.J.), a then 82 year old was convicted of various sexual offences in relation to his four year old great-great granddaughter as a result of the events of a single evening.
[30] At the time of sentencing, the accused was 87 years old. He had been married for more than sixty years. He had no prior criminal record. Needless to say, the acts of the offender destroyed several relationships within the family. The victim and her mother were particularly affected.
[31] The Crown sought an upper reformatory sentence. Justice Ken Campbell agreed that would have been the appropriate disposition absent personal circumstances he found to be "compelling".
[32] A twelve month sentence imposed on a fifty year old defendant following a trial was upheld in R. v. Bachewich, [2007] A.J. No. 629 (C.A.). A nine year old friend of the appellant's daughter had fallen asleep on the couch in the defendant's living room. She was in the defendant's bed when she awoke. His hand was under her pajamas. Touching of a sexual nature occurred for a minute or two and stopped short of digital penetration.
[33] In R. v. R.P., [2006] O.J. No. 4250 (C.A.), an identical sentence was determined to be fit following two incidents involving brief fondling by an appellant with no criminal record.
[34] Hill J. imposed a two year penitentiary sentence in R. v. W.T., 2016 ONSC 7776 (S.C.J.). In that case a 13 year old girl was sexually assaulted in her grandparents' home by her uncle. The acts included digital penetration and an act of brief and painful intercourse. Several aggravating circumstances were identified: the abuse of a position of trust, the highly intrusive nature and location of the offence and its impact on the victim specifically and her family generally. Mitigating circumstances existed too. There was no criminal history. The offender was involved in a lengthy and stable relationship. He was steadily employed. The pre-sentence report was a positive one.
[35] That brings me to the positions of the parties in this case.
F. The Parties' Positions on Sentence
[36] A number of corollary orders are sought by the Crown which are uncontested. I will deal with those toward the end of these reasons.
[37] I turn to the areas of disagreement.
[38] The Crown relies on one authority I have not already mentioned. In R. v. Hajar, 2016 ABCA 222, the Alberta Court of Appeal set a three year starting point for what it described as "major sexual interference, including breach of trust". At para. 10 the majority of the court wrote in part:
Sexual interference constitutes a major sexual interference where the sexual conduct is a serious violation of the physical and sexual integrity of the child and is of a nature or character such that a reasonable person could foresee that it is likely to cause serious psychological or emotional harm, whether or not physical injury occurs. Conduct in his category includes, but is not limited to, vaginal intercourse, anal intercourse, fellatio and cunnilingus.
[39] The Crown then points to several aggravating circumstances: the age of the victim, the family relationship, the breach of trust, the fact AW was sexually assaulted while in a residence that should have been a place of safety and security, the invasiveness of the assault, the existence of a criminal record, the fact the offence occurred while the offender was on parole and subject to a term that prohibited the consumption of alcohol and the profound impact the events of one evening have had on the young complainant. The prosecution's search for a mitigating circumstance yielded nothing.
[40] Considering all of the circumstances and principles, the Crown submits that a four year penitentiary sentence is appropriate.
[41] The defence argues that the custodial term sought by the Crown is disproportionate and unfair. Alcohol has been an ongoing problem TW has been unable to overcome. However, aspects of the Stand Down report are positive. TW has used time in custody to further his education. He participated in an institutional work program for about a year. He was subjected to testing while under supervision in the community. The results of all five tests conducted between early January and mid-May, 2015 were negative. As mentioned, TW was involved in a renovation business when last free.
[42] Counsel for TW did not attempt to trivialize the actions of his client. However, he asked the court to remember this was an isolated incident that occurred while TW was under the heavy influence of alcohol and – according to the Stand Down report – new medication. There was no evidence of any other inappropriate conduct at any time. In all the circumstances, the court was urged to impose an upper reformatory sentence.
G. Analysis and Decision
i. The Appropriate Sentence
[43] I have considered all that I have written so far in determining the appropriate custodial term to impose. All cases of this kind are galling. The victim was a young child who was exploited in a residence she loved to visit. The sexual assault was invasive and committed by a mature family member who exploited the trust that had been placed in him by the owners of the home and, importantly, the victim. TW's conduct has had a significant impact on his family and has devastated his niece. Innocence was lost. A damaged person remains.
[44] While alcohol undoubtedly played a role, it had long been a vice. The offence occurred while the offender was on parole for a serious and violent offence and while expressly prohibited from imbibing.
[45] However, I am not satisfied the custodial term sought by the Crown is supported by case law decided in Ontario. In my view, a custodial sentence of two and half years is appropriate in all of the circumstances.
ii. Pre-Sentence Custody
[46] The appropriate credit to be given for pre-sentence custody was a significant point of contention. The opening portion of section 719(3) of the Criminal Code provides as follows:
In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence…
[47] The parties agree that credit should be given at the rate of 1.5:1. However, they do not agree on the number of days to which that factor is to be applied. The parties' positions require some context.
[48] As mentioned, TW was convicted of manslaughter on November 7, 2011 and received a custodial sentence of five years after receiving credit for 18 months of pre-sentence custody.
[49] Some of the subsequent events are described in a February 12, 2018 e-mail from Sherri Crisp of Correctional Service Canada. She advised the Crown that TW was granted day parole on January 6, 2015. The offender went to live with his sister and her fiancé after becoming eligible for statutory release on March 9, 2015.
[50] TW was arrested on these charges on November 22, 2015. He has been in custody since then. Ordinarily that date would be the operative one for the purpose of determining the appropriate credit to be given pursuant to s. 719(3). However, there are complicating features I will soon come to.
[51] The parties agree that TW is entitled to credit commencing November 6, 2016. It is also undisputed that the period from April 1 until November 30, 2017 is to be excluded. On the latter date the offender was convicted of assault causing bodily harm and given credit for eight months of pre-sentence custody at the rate of 1.5:1. Therefore, TW is to receive credit for the period from November 6, 2016 through March 31, 2017 and from December 1, 2017 to today.
[52] That takes me to the period from November 22, 2015 when TW was arrested through November 5, 2016.
[53] As mentioned, TW was on parole when he was arrested on the current charges. Parole was suspended the following day, November 23, 2015. He had admitted consuming alcohol in breach of the terms of his release. Parole was revoked by the Parole Board on February 22, 2016 and after recalculation, his statutory release date became July 13, 2016. However, TW was not released. I agree that TW is not entitled to credit for the period from his arrest to July 13, 2016. During that period he was in custody on account of the manslaughter conviction. What about the subsequent period?
[54] The Crown takes the position that the offender continued to be in custody in relation to the manslaughter charge until the five year sentence imposed in late 2011 expired on November 6, 2016. Ms. Crisp's e-mail suggests otherwise. After mentioning the new statutory release date she said that TW "remained in custody on outstanding charges as he did not receive bail." She did not say that the Parole Board had ordered the offender's detention until the end of his sentence. Based on the material filed with the court, the offences now before the court had a "meaningful causative connection to the accused's pre-sentence custody" for the period following July 13, 2016: R. v. Barnett, 2017 ONCA 897 at para. 31.
[55] Consequently, I am of the view that TW should also receive credit for the period from July 13 through November 6, 2016.
[56] The evidence does not support any further or other credit. The defence had relied on R. v. Kaliugavarathan, 2017 ONSC 2325 (S.C.J.). In that case an improper classification of the defendant was proven. It had resulted in the defendant's placement in the remand rather than sentenced area. At para. 83, Wein J. explained why the sentence she would otherwise have imposed was reduced by five months. In part, the sentencing judge wrote:
In this case, the factor is significant, because of the length of time over which it occurred, because it was state induced and because it may have delayed this particular offender's ability to enter into both rehabilitative programs…and career related work.
[57] Those same conclusions cannot be made on the record compiled in this case.
[58] For the reasons given TW is to receive credit for two periods: first, from July 13, 2016 through March 31, 2017 (261 days) and second, from December 1, 2017 until today (278 days). By my calculation, those periods total 539 days. Using the ratio of 1.5:1, TW is to receive a total credit of 809 days or 26.597 months.
H. Disposition
[59] Having considered the nature and circumstances of the offence, the personal circumstances of TW, the principles of sentencing as drawn from the Criminal Code and the decisions cited by counsel, I impose the following sentence:
a. TW shall serve a custodial sentence of two and a half years or thirty months. Pursuant to s. 743.21 of the Criminal Code, during the period of the custodial sentence TW shall not communicate, directly or indirectly, with AW;
b. Pursuant to s. 719(3) of the Criminal Code, the offender shall receive credit for 539 days of pre-sentence custody at the rate of 1.5:1 (809 days or 26.597 months), leaving a balance of 3.403 months to be served;
c. While continuing in custody, the court recommends that TW have made available to him an assessment for the purpose of determining the need for continued assistance from a psychologist or psychiatrist;
d. Pursuant to s. 161(1) of the Criminal Code and for a period of five years following his release from custody, TW is prohibited from:
i. Attending any public park or public swimming area where persons under the age of 16 are present or can reasonably be expected to be present or a daycare center, school ground, playground or community center;
ii. Being within two kilometres of any dwelling-house where AW ordinarily resides. Currently the address is (redacted) Pond Mills Road in London, Ontario. The same stipulation shall also apply to (redacted) Court Lane and (redacted) Lorne Avenue, London, Ontario since they are places the victim regularly visits;
iii. Seeking or obtaining any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards any persons under the age of 16 years; and
iv. Having any contact, including communicating by any means, with a person who is under the age of 16 years, including, without limitation, AW unless he does so under the supervision of a person approved by the court. This stipulation shall not apply to any present or future child of TW.
e. TW has been convicted of a primary designated offence within the meaning of s. 487.04 of the Criminal Code. Consequently, an order in Form 5.03 is hereby made authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis;
f. Pursuant to ss. 490.012(1) and 490.013(2.1) of the Criminal Code, TW's name is to be added to the Sex Offender Registry and he is ordered to comply with the Sex Offender Information Registration Act for a period of twenty years;
g. As required by s. 737 of the Criminal Code, the offender shall pay a victim surcharge in the amount of $200 within six months of his release from custody;
h. In respect of count two, namely, sexual assault, the rule against multiple convictions applies. As agreed by the parties and as stated earlier, this count is conditionally stayed: R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729.
"Justice A.D. Grace"
Grace J.
Delivered: September 4, 2018
COURT FILE NO.: 11627
DATE: 20180904
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown
- and –
T.W.
Defendant
REASONS FOR SENTENCE
Grace J.
Delivered: September 4, 2018
[^1]: At para. 35.