minicounsel

COURT FILE NO.: 904-17

DATE: 20190515

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Damir Bulic

Accused

Bailey Rudnick, for the Crown

Owen Goddard, for the accused

HEARD: May 14, 15, 16, 17 and 18, 2018

SENTENCE SUBMISSIONS: December 14, 2018

REASONS FOR SENTENCE

cornell j.

Introduction

1Damir Bulic was charged with four counts of committing an indecent act in the presence of a person under the age of 16 years together with one count of sexual invitation to a person under the age of 16 years. On July 16th, 2018, I found Mr. Bulic guilty on all five counts.

2On December 14th, 2018, I received sentence submissions. I am now called upon to render my decision.

Background

Sex Offences

3Damir Bulic was B.P.’s French teacher at S[…] Public School in Garson, Ontario. Sometime around the middle of grade seven, the accused engaged in conduct designed to befriend B.P. B.P. was 12 years of age at that time. The accused would “hang out” with B.P., both during and after school. The accused would take B.P. for lunch to A&W approximately once a week.

4In the spring of 2011, B.P. began to babysit for the accused and his wife, who had four or five children at that time.

5The accused and his wife became friends with B.P.’s parents. They saw each other socially on a few occasions.

6During this period of time, B.P. was also spending a considerable amount of time at the accused’s home in order to help the accused with home renovations.

7It was during this period of time that the accused began to provide B.P. with cigarettes and beer.

8At the end of grade seven and into the following summer, B.P. testified that there were a number of occasions when the accused engaged in indecent acts in his presence as well as an invitation from the accused to engage in a sex act with B.P.

9When B.P. was 16 years of age, he disclosed the abuse to his girlfriend. His girlfriend then encouraged him to disclose to his mother what had happened, and he proceeded to do so. It was at that point in time that the matter was reported to the police.

Personal Circumstances

10Mr. Bulic is now 46 years of age. He has been married for more than 20 years. He and his wife have seven children.

11Mr. Bulic has been a teacher since 1999.

12He does not have a criminal record.

Position of the Parties

The Crown

13The Crown asks that a penitentiary sentence of three years be imposed together with various ancillary orders that will be later detailed.

The Defence

14Counsel for Mr. Bulic suggests that the upper term of incarceration is nine months.

Sentencing Provisions

15The fundamental purpose and principles of sentencing are set out in s. 718 of the Criminal Code, R.S.C. 1985, c. C-46, as follows:

The fundamental purpose of sentencing is 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 sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

16In considering these principles, the court must give primary consideration to the objective of denunciation and deterrence in cases involving the abuse of persons under the age of eighteen: Criminal Code, s. 718.01.

17 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.”

18I am also to be guided by the sentencing principles contained in s. 718.2 of the Criminal Code. It requires me, among other things, to take into account any aggravating or mitigating circumstances relating to the offence or the offender. According to s. 718.2, I must also impose a sentence that is similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Aggravating Factors

19There are a number of aggravating factors present in this case.

Breach of Trust

20At the time that these offences occurred, Damir Bulic was employed as a teacher. He had previously been B.P.’s teacher, although B.P. had been removed from Mr. Bulic’s class at the request of B.P.’s parents at some point in time.

21At the time that these offences occurred, B.P. was 12 and 13 years of age.

Multiple Incidents

22There were four occasions when Mr. Bulic masturbated in the presence of B.P. There was one occasion when Mr. Bulic invited B.P. to permit Mr. Bulic to give B.P. a blow job.

Grooming Behaviour

23As set out in some detail in my reasons for judgment, there was extensive grooming behaviour. This included introducing B.P. to cigarettes and alcohol, taking B.P. off school premises from time to time, providing gifts including a laptop computer, high-end clothing, sportswear and cash.

24Mr. Bulic took B.P. to an adult store where he purchased a pocket vagina for each of them.

25Apparently after winning money at a casino, the accused planned a family trip to his home country of Croatia. He approached B.P.’s parents to ask permission for B.P. to join them on this trip. B.P.’s parents unequivocally refused.

26Despite this, the accused engaged in what can only be characterized as bizarre behaviour. He proceeded to purchase a ticket from Sears Travel to permit B.P. to fly from Toronto Pearson Airport via connections in London-Heathrow and Vienna to arrive in Split, Croatia on July 27, 2011. The return flight was to take place on August 6, 2011.

27A further ticket was provided to permit B.P. to fly alone from Sudbury to Toronto via Porter Airlines and then to make his way from Toronto City Centre Airport to Toronto Pearson Airport for the various flights to Croatia.

28The itinerary and the various tickets were delivered to B.P. in an envelope that he proceeded to place in his dresser. A covering letter was attached to the envelope with the following opening paragraph:

Hello P. family, just thought I would drop off a little package before leaving. I’m not expecting to see B. in Croatia but thought it would be fun to buy him a ticket anyways. I will be waiting anyways at the Split Airport on July 26th just in case.

29The letter is then addressed to B.P. and details in ten paragraphs how he can make his way alone from Sudbury to join the accused and his family in Croatia.

30The accused did not tell B.P.’s parents that he had purchased these tickets or had provided this information and instructions to B.P. When the envelope was discovered, it caused a great deal of conflict. B.P.’s parents were angry that their wishes to not contact B.P. had not been respected and that the tickets had been given to B.P. in such a surreptitious manner. B.P. was angry with his parents for refusing to let him go on the trip.

Mitigating Factors

31As previously mentioned, Mr. Bulic has no prior criminal record. He has abided by the terms of his bail conditions.

32His wife remains supportive as set out in the letter that was filed by her at the time that sentence submissions were received.

33In addition, 15 other letters were filed from friends and family members. The information contained in these letters sets out that Mr. Bulic is a loving husband, devoted father and has a well-established network of friends. The letters from friends set out that Mr. Bulic is helpful and generous with his time when the need arises.

34Mr. Bulic has been employed as a teacher since 1999. Undoubtedly his career as a teacher is over as a result of these convictions.

Victim Impact Statements

Emotional Impact

35A victim impact statement was filed by B.P.’s mother, L.P. In addition, L.P. filed a hand-written addendum to provide additional information.

36In her statement, L.P. addresses the emotional impact as follows:

Our family witnessed our happy go lucky, fun loving son disappear. We had to watch him self-destruct. He turned to drugs and alcohol to numb his pain and shame. He became a sad, angry, depressed, secretive boy who viewed his family suddenly as the enemy.

B. pushed everyone away. He lived inside his head for 8 years. He is still struggling with many issues because of these incidents and has only begun his journey to healing.

37At the time that sentence submissions were received, B.P. was in a private treatment facility. B.P. was either unable or unwilling to provide a victim impact statement. In the addendum filed by L.P., she quotes B.P. as recently saying to her,

Mom, always believe in a higher power, that is what will get us thru, don’t worry about me, I look forward to the future, my higher power pushes me thru each day.

Physical Impact

38L.P. sets out the physical impact as follows:

At young age, B. started smoking pot and drinking and smoking cigarettes.

After disclosing the incidents to me in 2016, B. was put on medication.

On October 29, 2018 B. made the decision to enter a private in-treatment facility in order to deal with the emotional trauma he has endured.

Economic Impact

39L.P.’s statement indicates that insurance does not cover the expense associated with the private facility where B.P. is receiving treatment. The cost of this treatment has caused a great financial strain for B.P.’s parents, but they felt they had no choice but to incur this expense as they feared for B.P.’s mental and physical health.

40The economic impact is not an issue that I am to address, but it may be that this cost can be recovered by way of civil proceedings or the Criminal Injuries Compensation Board.

41In order to enter the treatment facility, B.P. was required to leave his job.

Analysis

42The decision that is most often referred to when considering cases of this nature is R. v. D.D.(2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), a decision of the Ontario Court of Appeal. In that case, the accused befriended four young boys and engaged in all manner of sexual activity with them over a seven-year period. At trial, a sentence of eight years and one month was imposed after credit for time served. Like this case, the accused stood in a position of trust towards the victims.

43Although this sentence was upheld on appeal, the court made the following comments and observations at paras. 34-36, 44-45:

34The overall message however is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718(a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.

35We as society owe it to our children to protect them from the harm caused by offenders like the appellant. 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 like the appellant and as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

36In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known.

45The appellant was prepared to risk the lives of innocent children to satisfy his sexual cravings. His conduct was reprehensible and it must be condemned in the strongest of terms. The harm occasioned by the appellant and others like him is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear – prey upon innocent children and you will pay a heavy price!

44As in the case of D.D., Damir Bulic’s conduct can only be characterized as reprehensible. He was a teacher. He had been B.P.’s teacher. As a result of Mr. Bulic’s deviant behaviour, harm has been done to B.P. as has already been detailed. Given the role that teachers play, a breach of trust, such as the one in this case, is of particular concern.

45In R. v. Forde, [1992] O.J. No. 1698 (Ont. Gen. Div.), Cosgrove J. had this to say about the role of teachers in our society at p. 1:

Insofar as persons in the profession of the accused, teachers, it’s quite apparent that they hold a special role in the life of young people. In our society the role of the teacher is second in importance only to the parent. I dare say that the parent views the teacher as being in his or her place while the child is away from the control of the parent. The parent entrusts the teacher with the parent’s responsibilities, preparing the youths to compete and to contribute and to develop their individual talents in this very difficult world, both in our own community, in our national community and in the international community, an extremely difficult time for young people and their parents.

46The relationship between a teacher and a student has been characterized as “one of the most sacred in our society”: see R. v. R.F.G., 2006 NBCA 104, 308 N.B.R. (2d) 133, para. 32. In that case, the New Brunswick Court of Appeal delivers a message to teachers in the following fashion, at para. 38:

This is the message that must be sent. When any New Brunswick teacher for his or her own sexual gratification sets his or her eyes on a student, nurtures a relationship with the student, grooms the student, maintains contact outside of the school by calling frequently, deceives the parents, engages in a course of conduct that puts that detailed plan into place, plies the student with alcohol, discusses his or her relationship problems, and in a careful manner proceeds to seduce that student by setting a date to meet with him or her… that teacher can expect to go to jail. In summary, teachers ought to know that if they decide to have sexual relations with their students, jail awaits them. Society’s revulsion and intolerance for this sort of behaviour, the betrayal of trust by a teacher, require it.

47Counsel for Mr. Bulic referred to a number of cases where the sentences ranged from six months to two years less a day. Some of those cases can be distinguished on the basis that guilty pleas were entered.

48It was also pointed out that all of those cases involved some physical contact up to and including oral sex and sexual intercourse. It was pointed out that no physical contact occurred between the offender and B.P. I have taken this fact into consideration when determining an appropriate sentence.

49The Criminal Code and case law makes it clear that denunciation and deterrence are the primary factors to be taken into consideration in cases of this nature. As previously pointed out, this case involves the abuse of a person under the age of 18 years committed by a person who was in a position of trust.

50As previously discussed, these offences have had a serious detrimental effect on B.P. physically and emotionally and on his parents emotionally and financially.

51In addition to denunciation and deterrence, I take into account the significant impact these events have had on B.P. and his family.

52To properly assess these concerns, one need look no further than the victim impact statement provided by B.P.’s mother. As previously referenced, B.P.’s mother tell us “our happy go lucky, fun loving son” disappeared. She describes that he self-destructed by turning to drugs and alcohol to numb his pain and shame. She goes on to say that B.P. “became a sad, angry, depressed, secretive boy who viewed his family suddenly as the enemy”. The evidence provided at trial confirms this version of events. B.P. testified that Mr. Bulic introduced him to cigarettes, a habit that he has been unable to break. Mr. Bulic introduced B.P. to beer and moonshine when B.P. was 12 or 13 years of age. Mr. Bulic introduced B.P. to pornography. It was not until B.P. was 16 years of age that he told his girlfriend about the offender’s conduct. There was evidence at the trial that shortly after these events occurred, B.P. began using marijuana. Now, some eight years later, B.P. is in a private treatment facility in an effort to address the challenges that he faces. There is no doubt in my mind that his challenges arise largely, if not exclusively, as a result of Mr. Bulic’s conduct.

53It was also argued on behalf of Mr. Bulic that he is facing some significant mental health issues as detailed in various medical reports that were filed at the time that sentence submissions were received. These conditions appear to be as a result of the criminal conduct that Mr. Bulic engaged in and not as a result of any pre-existing condition.

54Although not an aggravating factor, I am mindful of the fact that at no point in time has Mr. Bulic expressed any remorse for his actions. In this regard, I note that in the clinical notes and records, there is nothing to suggest that he has sought any help for his underlying problems that caused him to be sexually attracted to a 12-year-old boy who was his student.

Disposition

55Mr. Bulic, please stand up. Is there anything you wish to say before I impose sentence?

Imprisonment

56On counts one, two, three and four, I sentence you to a period of incarceration of two years less a day. On count five, I sentence you to six months incarceration. These sentences are to be served concurrently.

Probation

57I order that you be subject to a period of probation for a period of three years on the terms and conditions set out in Schedule A. These conditions are:

Schedule A – Probation Conditions

a. Report to a probation officer within two working days of your release from custody and, after that, at all times and places as directed by a probation officer or any person authorized by a probation officer to assist in your supervision.

b. Do not contact or communicate directly or indirectly by any physical or electronic means with B.P. (B.P.), L.P. (L.P.) or R.P. (R.P.). (Names are for record purposes only and are not to be disclosed under any circumstances).

c. Do not be within 100 meters of any place you know the above named people to live, work, go to school, frequent or any place you know the persons to be.

d. Take counseling and treatment as directed by your probation officer, including signing any release of information that will permit your probation officer to share and obtain information from your assessors and/or treatment providers and to obtain any and all assessments in their possession and control.

e. You will not be employed or seek a volunteer position which will place you in a position of trust or authority towards a person under the age of 16.

f. You will not be unsupervised with any person under the age of 16, except for your own children. Supervision is being accompanied and directly supervised at all times when in the presence of someone under 16 by an individual over 18 years old.

g. No direct or indirect communication with someone under the age of 16 unless under the direct supervision of an individual over 18 years old, except for your own children.

h. Reside as approved by the probation officer and not in a residence where children under 18 reside, except for your own children.

Ancillary Orders

58I make the following ancillary Orders:

Weapons Prohibition Order

a. Pursuant to s. 109(2) of the Criminal Code, there shall be a weapons prohibition order for a period of ten years.

DNA

b. As these are all primary compulsory designated offences, I order that you provide a bodily sample suitable for DNA analysis in accordance with s. 487.051 of the Criminal Code. The order shall remain valid and in force until such time as a suitable sample has been analyzed.

Sex Offender Information Registration Act

c. In accordance with s. 490.012 of the Criminal Code, I order that you be registered under SOIRA for life.

Non-Communication

d. Pursuant to s. 743.21(1) of the Criminal Code, I order that you have no communication with B.P. (B.P.), L.P. (L.P.) or R.P. (R.P.) during the custodial period of your sentence. (Names are for record purposes only and are not to be disclosed under any circumstances).

Order of Prohibition

e. Pursuant to s. 161(1) of the Criminal Code, I make the following order prohibiting you for a period of ten years from:

i. Attending 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, except in the presence of your own children and under the supervision of an individual over 18 years of age;

ii. Being within 100 meters of any dwelling-house where B.P. ordinarily resides;

iii. Seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or being a volunteer in any capacity, that involves being in a position of trust or authority towards persons under the age of 16 years.

The Honourable Mr. Justice R. Dan Cornell

Released: May 15, 2019

CITATION: R. v. Bulic, 2019 ONSC 220