COURT FILE NO.: CR-16-30000296-0000

DATE: 20180207

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

S.A.

Defendant

Simon Heeney, for the Crown

Hillson Tse, for the Defendant

HEARD: December 1, 2017

PUBLICATION RESTRICTIONS NOTICE

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.

B.A. ALlen, j.

REASONS FOR DECISION ON SENTENCE

THE OFFENCES

[1] I convicted the offender, S.A., on May 24, 2017 of sexual assault, sexual interference, sexual exploitation, threatening bodily harm, common assault and assault with a weapon. He committed those offences against his stepdaughter, KS-K, for six years from about April 2006 to April 2014 when she was age eight to 14 years.

[2] There were many instances of abuse although KS-K could recall the details of only three incidents. The sexual assaults, sexual interference and sexual exploitation were committed at various residences where KS-K and her mother lived.

[3] At trial I found that the facts of the last incident at their home at E[…] Ave. supported the elements of the sexual offences. At the time of that incident the accused exploited KS-K’s vulnerability as a young girl; touched her body directly for a sexual purpose with his hands and body; and pushed her to the floor and forcefully tried to remove her clothes.

[4] Mr. S.A. threatened bodily harm by threatening on numerous occasions to hurt KS-K, her mother and friends if she told anyone about the abuse. This resulted in the abuse continuing for a prolonged period because KS-K feared telling anyone what her stepfather was doing.

[5] The common assaults occurred as KS-K got older when Mr. S.A. would hit her and push her forcefully. The assault with a weapon charge involved him using a TV cable wire to beat her. He struck her on her back, arms, legs and head.

SENTENCING OBJECTIVES

The Principles

[6] Section 718 of the Criminal Code sets out the following principles to govern determinations on sentencing: to denounce unlawful conduct; to deter the offender and other potential future offenders from committing offences; and to separate offenders from society.

[7] Proportionality is also a guiding principle for sentencing. A sentence must be proportionate to the gravity of the offence, determined on the particular facts of the case. The narrow focus of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: [Criminal Code, s. 718.1 and R. v. Hamilton (2004), 2004 5549 (ON CA), 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.)].

[8] Parity, another governing principle, requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. However, sentencing is an individualized process which necessarily means that a sentence imposed for similar offences may not be identical: [R. v. Cox, 2011 ONCA 58, 2011 ONCA 58 (Ont. C.A.) and R. v. L.M, [2008] 2 S.C.R. 163, 2008 SCC 31 (S.C.C.)].

Offences against Children

[9] The Criminal Code contains specific provisions to deal with sentencing of offenders that sexually abuse children. Under s. 718.01, offences against children under age 18 years are governed principally by the objectives of denunciation and deterrence and the need to separate the offender from society.

[10] The leading Ontario Court of Appeal case involving a sentence for an offender convicted of sexual abuse of children held that the operative principles are denunciation and deterrence and the need to separate offenders from society. R. v. D.D. gave the following direction:

… 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.

[R. v. D.D. (2002), 2002 44915, at para. 44, (ON CA)

[11] R. v. Woodward, in line with s. 718.1 which provides a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, commented on the penalties for more extreme forms of abuse. Adult offenders whose abuse involved full intercourse, violence, threats of violence and other forms of extortion should attract penitentiary sentences from upper single digits to lower double digits to reflect the increased gravity of the offence and the enhanced moral culpability of the offender: [R. v. Woodward, 2011 ONCA 610, at para. 75, (Ont. C.A.)].

Statutory Aggravating Factors

Abuse of a Person under 18 and Breach of Trust

[12] Two of the enumerated aggravating factors are relevant to the facts of this case: (a) s. 718.2(a)(ii.1) evidence that the offender, in committing the offence, abused a person under the age of 18 years and; (b) s. 718.2(a)(iii) evidence that the offender, in committing the offence, abused a position of trust or authority.

[13] A victim’s age is a factor to consider under s. 718.2(a)(ii.1) and the disparity between the ages of the victim and the offending adult is a relevant consideration. KS-K was under age 18 years when Mr. S.A. abused her, she being from age eight to about 14 years. He was many years older than her. The youthful age of the victim is recognized as an aggravating factor: [R. v. M. (D.) 2014 CarswellOnt 8579 Ont. C.J.)].

[14] A position of trust or authority involves a person in the victim’s life who plays a role of trust such as a parent, a stepparent, other adult relatives, teachers, sports coaches, pastors, someone who stands in loco parentis, etc. R. v. D.D. held the offender, a close family friend, who assumed a role akin to a stepfather, stood in a position of trust in relation to the four boys he sexually abused.

OTHER AGGRAVATING FACTORS AND MITIGATING FACTORS

[15] Section 718.2 provides for a sentence to be increased or reduced in consideration of any relevant aggravating or mitigating circumstances related to the offence or the offender.

Aggravating Factors

[16] The aggravating factors are more extensive than the mitigating ones.

[17] The sexual abuse extended over a lengthy period of some six years. The sexual assaults were numerous and included full intercourse and digital penetration from the time KS-K was very young.

[18] There was physical violence and threats of violence against KS-K and an assault with a cable wire.

[19] Mr. S.A. married K-SK’s mother when KS-K was young. KS-K did not know they were married until some years later. She thought her mother and Mr. S.A. were friends. The defence raised the question whether Mr. S.A. was in a position of trust in the regular sense of the term. The defence referred to the facts that Mr. S.A. did not take KS-K to school and he did not eat meals with his stepdaughter and her mother.

[20] Mr. S.A. testified that he always treated KS-K like he treated his own children, caring for her and buying her gifts. When determining his guilt I did not use the precise words “person in a position of trust” in relation to Mr. S.A.’s role with KS-K. However, as the Crown submitted, and I agree, a position of trust can be inferred from references in my decision. Her stepfather supported her and her mother financially, provided them shelter and provided the mother with employment. KS-K also called Mr. S.A. the Tamil equivalent of “Uncle” which she explained was a title of respect. As well, I found Mr. S.A. guilty of sexual exploitation of a child under 16 years which requires the crime to be committed by a person in a position of trust or authority over the child.

[21] I find Mr. S.A. was in a position of trust over KS-K when he committed the crimes against her.

[22] An offender is entitled to maintain his innocence. If he does so, this cannot be seen as an aggravating factor. Mr. S.A. testified and denied the charges. He showed absolutely no remorse or insight into his offences against his young stepdaughter. While I will not take that into account as an adverse factor in sentencing him, he will not receive as a mitigating factor the credit that a show of remorse would have garnered.

[23] Mr. S.A. refused to cooperate with the probation officer who prepared a Pre-Sentence Report. Again, he is entitled to refuse to be interviewed. However, PSR’s often contain valuable information from the offender that can assist with identifying factors in the offender’s life where rehabilitation might be appropriate.

[24] The main persons interviewed were KS-K and her mother. They presented information that was understandably adverse to Mr. S.A.. They expressed that he suffers from a problem with alcoholism and extreme anger. The sexual assaults, other assaults and threats against KS-K and her mother were expressions of anger and violence. His anger issues seemed to have been borne out at trial. As I pointed out in my decision on conviction, Mr. S.A. displayed overt anger when testifying and had to be asked to settle down.

[25] Also aggravating is the fact that Mr. S.A. would bribe KS-K with money. After he assaulted her he would give her money not to tell anyone about the assaults.

[26] KS-K and her mother prepared Victim Impact Statements. KS-K prepared a beautifully written poem, an expression of her heartfelt sentiments and experiences as a result of Mr. S.A.’s abuse. She speaks of the feelings of fear of her stepfather, and the loneliness, sadness and shame that have marked her life. This was made all the more painful because she trusted, relied on and loved her stepfather in spite of the abuse. She also expressed those sentiments at trial. KS-K also talks about her experience of being forced to grow up before her time and of not being able to experience the carefree life of a normal childhood.

[27] The mother speaks of her fear of Mr. S.A., of her sadness with finding out the pain and degradation he caused to her daughter. The mother expresses concern about Mr. S.A.’s anger and problems with alcohol.

Mitigating Factors

[28] The only significant mitigating factor is that Mr. S.A. has no prior criminal record. However, even that factor is tempered by what the Crown pointed out – the fact that he was able to commit his crimes against his stepdaughter over many years without being caught and charged. This is because he threatened KS-K and frightened her into keeping quiet through the many years of abuse.

[29] Defence counsel provided an oral account of Mr. S.A.’s life before he came to Canada. As a teenager he fled civil war-torn Sri Lanka, moving to several other countries before he came to Canada and made a refugee claim. He succeeded in obtaining refugee status and eventually permanent residence. He has worked at a variety of jobs. He operated his own take-out restaurant for a number of years where he employed others including KS-K’s mother. Since his business came to an end he has been employed at other restaurant jobs.

[30] Mr. S.A. has provided a residence for KS-K and her mother and other members of the Tamil community. Several letters from family members, friends and his fellow Hindu Temple congregants were filed in support of him. The letters spoke of him being kind, helpful and community-minded, providing financial assistance to those in need from his community. Members of his Temple state that he has been active in his Temple for the past 18 years and has remained devout in his religious observance while he has been detained.

[31] The persons who provided letters of support indicated they were surprised to find out about his criminal offences. The view of his supporters is that the crimes he has been convicted of do not reflect the kind, helpful person they know him to be. I find I just cannot give much weight to their words of support.

[32] I appreciate what friends, family and Temple members have said about Mr. S.A.. However, I heard hours of credible testimony from KS-K and witnessed Mr. S.A. on the witness stand. I accept KS-K’s conception of her stepfather. She lived with him for many years.

[33] The types of crimes charged are not typically committed in public or in front of others. KS-K’s mother who lived with her daughter did not even know about the abuse. The persons who wrote the letters simply do not know the worst of Mr. S.A.. Apparently, they do not know the anger KS-K, the mother and this Court witnessed. Perhaps, the supporters do not know the alcoholism the mother and his stepdaughter know.

PARTIES’ POSITIONS

[34] The Crown seeks a penitentiary sentence in the high single-digit range of from 7 to 8 years: [R. v. D.D.]. The Crown also seeks a number of ancillary orders under the Criminal Code: a 20-year SOIRA order under s. 490.013; a mandatory DNA order under s. 487.04; a s. 109 firearm prohibition for 10 years; a s. 743.21 no contact order in relation to KS-K and the mother; and an order under s. 161(a) not to attend a place where persons under the age of 16 years are present.

[35] The defence does not oppose the ancillary orders. The defence seeks a sentence within the range of 3 to 5 years. In the defence’s view a sentence of 4 years is a fit sentence. The defence relied on a 1990 case where the Ontario Court of Appeal held that a 3 to 5 year sentence is a fit sentence for an offender who stands in loco parentis and abuses a young child over a prolonged period of time: [R. v. B.J., 1990 O.J. No. 36 (Ont. C.A.)].

[36] The case the defence relies on is an early case. The sentences for offenders who commit that type of offence have increased over the years. R. v. D.D. and cases that followed have held that adult offenders in a position of trust who abuse young children over an extended period can expect mid to upper single-digit penitentiary sentences: [R. v. D.D. and R. v. Woodward 2011 ONCA 610 (Ont. C.A.)].

APPLICATION OF KIENAPPLE AND CONCURRENT SENTENCES

[37] Mr. S.A. is convicted of: count 1, sexual assault; count 2, sexual interference; count 3, sexual exploitation; count 4, threatening bodily harm; count 5, common assault; and count 6, assault with a weapon.

[38] I accept as the Crown has posited that the sentence for sexual assault should be principally based on the last sexual assault at E[…] Ave. The Kienapple principle should be applied to stay sexual interference on count 2 as count 2 and count 1 arise from the same factual transaction.

[39] The sentence for count 1 shall be 8 years.

[40] Sexual exploitation on count 3 requires an element of the offender being in a position of trust over the victim. Count 3 will not be stayed. The sentence for sexual exploitation shall be 1 year to run concurrently with the sentence for sexual assault.

[41] The common assault at count 5 will be regarded as an aggravating factor to the sexual assault.

[42] The threaten bodily harm at count 6 is a discrete charge arising from a separate fact situation where Mr. S.A. threatened KS-K, her mother and friends and for which I impose a sentence of 6 months to run concurrently to the sentence for sexual assault.

[43] The assault with a weapon is also a discrete charge arising from a separate factual circumstance when Mr. S.A. struck KS-K with a television cord for which I impose a sentence of 90-days to run concurrently to the sentence for sexual assault.

CONCLUSION

[44] I considered the severity and longevity of the crimes against the young stepdaughter as well as the case authorities. The aggravating factors clearly outweigh the mitigating factors.

[45] I find a global sentence of 8 years is a fit sentence in the circumstances. It achieves the sentencing objectives of denunciation, general and specific deterrence and separation of the offender from society.

SENTENCE

[46] I will now pronounce sentence. S.A., will you stand?

[47] You have been convicted on 6 charges under the Criminal Code, 4 of which you stand to be sentenced on.

[48] A penitentiary sentence is fit and will properly address the sentencing principles of denunciation and general and specific deterrence and the separation of the offender from society.

[49] I sentence you to a global penitentiary sentence of 8 years.

[50] In addition there will be the following ancillary orders under the Criminal Code:

(a) a SOIRA order for 20 years under s. 490.013 for the Offender to be placed on a sexual offender registry.

(b) an order under s. 487.04 for the Offender to provide a DNA sample;

(c) a s. 743.21 order not to contact the Complainant KS-K and her Mother during the term of his imprisonment;

(d) a s. 109 weapons prohibition for 10 years to commence after release from prison; and

(e) a section 161(1)(a) order that the Offender not attend a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre.

B.A. ALLEN J.

Released: February 7, 2018

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

S.A.

Defendant

REASONS For decision on sentence

B.A. ALLEN J.

Released: February 7, 2018