Court File and Parties
Court File No.: 16-RA19456 Date: 2019-05-07 Ontario Superior Court of Justice
Between: Her Majesty the Queen And: Jose Hernandez
Before: Charles T. Hackland, J.
Counsel: Sabrina Goldfarb, for the Crown Gary Chayko, for the accused
Heard: Delivered orally (Ottawa) May 7, 2019
Reasons for Sentence
Overview
[1] The accused was convicted of 3 counts of sexual assault under sec. 271 of the Criminal Code, against the three complainants. They were young female adults studying voice in a music studio where the accused worked. The accused was 69 years of age at the time of these offences. He is currently 73 years of age. The court’s Reasons for Judgment are reported at 2019 ONSC 936 and 2019 Carswell Ont1218.
[2] The three complainants were talented singers hoping to improve their skills so that they could pursue careers in opera or classical music. The evidence established that at a point in time they began to take “healing sessions” with the accused with the understanding that the accused would use his treatment techniques to enhance their well-being and particularly their singing. These sessions took place in a spare bedroom adjacent to the accused’s teaching area in the basement of the home in which the music studio was located.
[3] In the case of 2 of the complainants, A.L. and F.R. the treatments rendered by the accused involved some intimate physical contact which escalated to touching of their exposed breasts and of their vaginal areas and digital penetration of their vaginas and on at least one occasion of their anus. The accused also performed oral sex on A.L. on several occasions. With respect to the third complainant M.L. the accused touched her exposed breast on one occasion. This sexual touching was done under the pretence of healing therapy which the complainants tolerated believing that this was required to progress in their voice training.
Position of the parties
[4] The Crown seeks a global sentence of 5 years’ imprisonment along with certain ancillary orders. The submission is that a sentence of 4 years should be imposed for the sexual assault counts involving A.L., 4 years concurrent on the sexual assault of F.R., and 1 year consecutive on the sexual assault of M.L.
[5] The defence position is that a suitable sentence would involve a penitentiary term, but should be a period of two years (sec. 731.1 Criminal Code) plus a suitable period of probation or, alternatively a global sentence of 2 years.
Governing Principles
[6] Section 718.2(a)(iii) of the Code provides that it is an aggravating factor for sentencing purposes where there is evidence “that the offender, in committing the offence, abused a position of trust or authority in relation to the victim”.
[7] I have no doubt that the overriding sentencing considerations in a case such as this are denunciation and general deterrence. This arises from the significant breach of trust which occurred from the accused’s abuse of his position as a teacher and as a provider of quasi-therapy to these young women under his tutelage.
Aggravating Factors
[8] There are aggravating factors in this case. As noted in the previous paragraph, the accused breached an important trust owed to these 3 young women. On his own evidence he counselled the complainants that they needed to focus all of their energy and efforts on their voice training and he and the studio owner enforced that discipline. The healing sessions became associated with the voice training. The accused took the position in his testimony that his healing sessions were entirely separate from the voice training and it was merely coincidental that the complainants in the healing sessions were also his voice students. This thinking was typical of his tendency to blur or ignore boundaries for his own purposes. He used his philosophy of teaching music, particularly the need for rigorous commitment, as a grooming exercise to facilitate his abuse of his 3 students.
[9] The effect of the accused’s conduct has been devastating to the three complainants as well as their parents, as was evident from the victim impact statements. Apart from being suspicious and untrusting of persons in positions of authority, these three young women have lost their love of music and abandoned their goal of pursuing a career in music. It is also evident that the accused’s controlling behaviors with these women inflicted serious damage on their family relationships.
Mitigating Factors
[10] There are several mitigating factors which require recognition. One factor however is not remorse. The accused maintains his innocence. He refused to discuss the events surrounding these charges with the probation officer preparing the pre-sentence report. The complainants were subjected to rigorous cross-examinations on their credibility at trial. I acknowledge the accused was within his rights in this regard.
[11] I agree with the defence that the accused’s age is a significant mitigating factor. He is currently 73 years of age and has apparently led a pro-social life, devoted to his love of teaching music. He has no criminal record. He is active in his church and enjoys the full support of his wife and adult children. He has filed a considerable number of letters from his clients attesting to his skill as a music teacher and the efficacy of his efforts as a healer. He is held in high regard by many credible people.
[12] On the issue of the accused’s age, the Crown points out the accused is a vigorous physically fit man without apparent health problems. Nevertheless I agree with the defence that the case law recognizes that advanced age, (particularly when accompanied by declining health), can be a significant mitigating consideration in sentencing, see R. v. W. (A.G.) (2000), 130 O.A.C. 78.
[13] The defence referred to the case of R. v. L.W., 2018 ONCJ 399 in which Rose J. sentenced an 85 year old offender with serious medical problems including cognitive decline, to 90 days’ imprisonment for sexual interference with a 10 year old girl. He was found to have kissed her on her lips several times when he was providing violin lessons. Like the accused in the present case the accused in R. v. L.W. had a significant reputation in the music community and maintained his denial of the assaults.
[14] In R. v. L.W. Rose J. stated (p.9) “I find the mitigating effects of the advanced age of an offender must, in each case, be balanced against the aggravating factors including the nature of the conduct”. While I respectfully agree with this approach, the present case is clearly distinguishable. In the present case there are three victims, two of whom suffered serious sexual assaults including digital penetration on multiple occasions. Also the accused, while a senior gentleman, appears vigorous and in good health. I therefore accord the accused’s age some limited weight as a mitigating factor in this case.
[15] The Crown submits this is a unique case in that the accused’s relationship to the complainants was both as teacher and medical provider. The Court of Appeal has recognized that these relationships increase a victim’s vulnerability to sexual abuse and accordingly abuse of the relationship is a significant aggravating factor, see R. v. Lysack [1988] O.J. No. 287 and R. v. Plews, 2011 ONSC 695, at para 37.
[16] The crown refers to the recent case of R. v. Nadon, 2019 (unreported decision of Bourgeois J.) in which an Ottawa family doctor plead guilty to charges of assault or voyeurism in regard to 49 of his female patients. He was sentenced to 8 years imprisonment for what the trial judge aptly described as a “very significant breach of trust”. She pointed out that his abuse of his position as a medical doctor and the vulnerability of his patients in the circumstances were significant aggravating factors in his sentencing. The Nadon case shocked the community and is perhaps an example of the high water mark of sexual abuse by health practitioner.
[17] The Crown has said in their sentencing submission, in reference to the accused, “this was an extremely intelligent, charismatic, conceited man who abused his position of power and trust in the most heinous, all-encompassing ways for his own sexual gratification.” I would adopt that characterization of the accused’s actions. Unfortunately I am at a loss to assess whether he remains a continuing risk to the community. His refusal to discuss the events precludes any sexual behaviors assessment. His furnishing to the court a large number of uncritically flattering letters of reference about his efforts as a healer suggest he plans to resume these pursuits when possible. Neither the accused nor his supporters have voiced any recognition of the need for boundaries or respect for personal privacy in any of his interactions with his clients, particularly his female clients. The accused is urged to avail himself of the programming for sexual offenders while in custody and to develop an appreciation of boundaries and ethical behavior when interacting with female students as either a teacher or a therapist.
Sentence
[18] Mr. Hernandez would you please stand. I sentence you to a term of imprisonment for your assaults on A.L. of 4 years. You are further sentenced for your assaults on F.R. to a term of 4 years and for your assault on M.L., a term of 6 months. These sentences will be served concurrently so that the global sentence is a period of 4 years imprisonment.
[19] I also make the following ancillary orders:
- You will provide a sample of your DNA pursuant to sec. 487.051 of the Criminal Code;
- You will be entered onto the sexual offenders (SOIRA) registry for life (sec. 490.022(3)(d), Criminal Code);
- You will be subject to a weapons prohibition for 10 years (s. 109 Criminal Code);
- You are prohibited from having any contact with any of the complainants or members of their immediate families while incarcerated (sec. 743.21 Criminal Code).
