COURT FILE NO.: 495/17 DATE: 2019 07 03
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN K. Holmes, for the Crown
- and -
B.G. A. Lobel, for the Defendant
Defendant
SENTENCING HEARD: April 26, 2019 and May 7, 17, 2019
REASONS FOR SENTENCE Ricchetti, J.
OVERVIEW
[1] The jury trial was held January 29 to February 20, 2019.
[2] On February 20, 2019, a jury found Mr. G. guilty of:
a) Sexual assault; b) Touching for a sexual purpose of a person under 14 years of age; c) Inviting a person under the age of 14 to touch him for a sexual purpose; and d) Uttering a threat to cause death.
THE FACTS
[3] The complainant for all the above charges is N.G. (“N.”), the daughter of Mr. G.
[4] Shortly after her birth, N. was sent to live in India with other family members. For some time, while in India, N. believed the persons she lived with were her parents. When she was about 6 years old, N. returned to Montreal, Canada to live with Mr. G., his wife and their two other children.
[5] I am satisfied beyond a reasonable doubt that, while in Montreal, Mr. G. committed sexual acts on N. What is significant, for sentencing purposes, is the young age of N. at the time of these sexual acts making it more difficult for N. to know such sexual acts were wrong and to report the sexual activity at that time or subsequently.
[6] When N. was about 10 years old in 2010, the family moved to Brampton. The charges only cover the period of time that the G. family lived in Brampton.
[7] From the time that the family moved to Brampton, until the time N. was 13 years old, sexual activity between Mr. G. and N. continued.
[8] The trial evidence establishes and, I am satisfied beyond a reasonable doubt, that the sexual activity in Brampton was:
a) Mr. G. putting his hand down N.’s shirt and caressing her; b) Mr. G. entering the bathroom while N. was taking a shower, putting his hands on her vagina and, at times, attempting to put his finger into her vagina. Mr. G. would, at times, masturbate while N. was in the shower; c) Mr. G. laying down on a mattress with N., pulling her pants down and shirt off, masturbating, attempting to put his penis in her vaginal or in the vaginal area, caressing her breast and, at times, putting his finger in her vagina. At times, Mr. G. would have an erection and rub up against N. while she lay on her stomach on the mattress; d) Mr. G. using N.’s hand to touch his penis, while in his pants and at times exposed, and, at times – using N.’s hand to “jerk him off”; and e) Mr. G. sexually assaulting N. in the family car.
[9] N. testified that the sexual activity occurred regularly, daily sometimes more often. I am not prepared to accept this evidence, as to the frequency was established beyond a reasonable doubt. While this sexual activity occurred regularly, and to a young child of N.’s age, it may have seemed to be daily, I am satisfied beyond a reasonable doubt that the above sexual activity occurred regularly over the three years.
[10] From the age of 10 years old until 13, Mr. G. would use physical actions when N. resisted his sexual advances. The physical actions included Mr. G. putting his hand over N.’s mouth, pushing her against a wall or hitting her frequently. In addition, Mr. G. would use threats to ensure N. did not disclose the sexual abuse. When N. resisted, Mr. G. would tell her that “this is the way it is” - “dads do it” or scare her into not telling anyone about the sexual abuse. On a few occasions Mr. G. told N. that no one would believe her, it would destroy her family, her mother would hate her and he would tell everyone that N. was the crazy one. On a couple of occasions when N. threatened to tell her mother, Mr. G. said he would “kill” her. When N. threatened to scream, Mr. G. would tell her he would kill her “right now”.
[11] N. became aware, through school classes, that the sexual touching was not normal or proper. She told a friend when she was about 12 years old (an agreed fact at trial). As a result, N. started to resist the sexual touching by Mr. G. but, Mr. G. would physically intimidate and force the continued sexual activity.
[12] This sexual activity occurred until N. was 13 years old. On one day, N. told her mother about Mr. G.'s sexual activity. Mr. G. denied the sexual activity. N.'s mother did not accept the veracity of the allegations and expressed concerns regarding the consequences to the family of making such allegations.
[13] The sexual activity stopped after N. told her mother.
[14] However, the physical abuse by Mr. G. continued.
[15] Around her 16th birthday, N. left home and ran away to Windsor with a boy. They both attempted suicide. N. remaining in the hospital for two months.
[16] N. subsequently saw a therapist and disclosed the sexual activity by Mr. G.
[17] N. did not take any steps to deal with the sexual activity until 2015, some 16 years later. A family meeting was convened with Mr. G., his wife, N. and her brother and sister. N. again raised the sexual activity by Mr. G. She hoped for an apology. None was forthcoming.
[18] Within a number of months, N. went to the police resulting in these charges.
[19] Let me deal with one further aspect of this trial, which does not directly impact on the sentencing, but to some extent explains the impact on N. and the troubling letters of support referred to herein. N. described disclosure of Mr. G.’s sexual activity to her mother when she was 13 years old and to her family in 2015. This evidence was admissible to rebut the allegation of recent fabrication. Whether such disclosure was or was not made did not directly go to sole issue at trial - did Mr. G. commit the sexual acts described by N.? There was evidence consistent with a number of family disclosures alleged, and evidence contrary to such disclosure having been made. What is clear is that the G. family, upon N. going to the police, withdrew their support for N., ostracized her from the G. family circle.
Circumstances of the offender
[20] Mr. G. is now 62 years old. The offences occurred when Mr. G. was between the ages of 40 and 44. He is married. He has two other children (besides N.) both of whom are married.
[21] Mr. G. has no criminal record.
[22] A Pre-Sentence Report was obtained in this case.
[23] Mr. G. has the support of his family but such support means little because the family and friends believe that Mr. G. did not commit the sexual assaults against N. and therefore their support is, to a large extent, based on their belief of a wrongful conviction. Friends and family attended during the trial and at sentencing.
[24] Letters of support were filed at sentencing. There are numerous reasons why such support means little in this sentencing.
[25] First, as stated by the Court of Appeal in R. v. B.S.R., April 10, 2006, Docket C42076:
The trial judge’s observation that sexual misconduct occurs in private and, hence that evidence of good character of an accused charged with a sexual offence may have limited value, was accurate.
[26] Secondly, a few examples from the letters of support will make the point: Mr. G.'s daughter's letter refers to racism, prejudice, a flawed judicial system and the impact on Mr. G.'s ability to carry on with his life; Mr. G.'s son-in-law states that N. lied and that the "narrative pushed by the crown attorney on Indians and culture to a majority white jury was disgusting." Such comments significantly detract from any value these letters of support have.
[27] The PSR repeats the denials by Mr. G. and the fact his family members do not accept the jury's verdict. Mr. G. continues to deny he committed the offences.
[28] Mr. G. has several medical issues but the Defence candidly admits that there is no evidence such that medical conditions cannot be properly addressed during a custodial sentence by correctional facilities.
Impact on the Victim and/or Community
[29] In R. v. D.(D)., 2002 ONCA 44915, 58 OR (3d) 788; 157 OAC 323, the Court of Appeal described the horrendous impact on children who are the victims of sexual abuse and the impact on and the responsibility of society to protect such children:
[34] The 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.
[35] We as a 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.
[36] In 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.
[37] Two such consequences were identified by the Alberta Court of Appeal almost ten years ago. In R. v. S. (W.B.) and R. v. P. (M.), 1992 ABCA 2761, 73 C.C.C. (3d) 530 at p. 535, 15 C.R. (4th) 324, the court, composed of Major J.A. (as he then was) and McDonald and Quigley JJ. made the following observations:
When the victim of a major sexual assault is a child, it is also no doubt true that such an assault frequently results in serious psychological harm to the victim.
When a man has assaulted a child for his sexual gratification, then, even if no long-lasting physical trauma is suffered by the child, it is reasonable to assume that the child may have suffered emotional trauma, the effects of which may survive longer than bruises or broken bones, and may even be permanent.
One consequence of being abused sexually may be that the child will never be able, as an adult, to form a loving, caring relationship with another adult of the opposite sex, being always fearful, even unconsciously, that such a partner will use sexual acts to hurt him or her rather than as an intimate expression of caring and affection. There is no empirical way of proving that a particular child victim's emotional trauma will or will not make it more difficult or impossible for him or her to love another, without fear of abuse. We have only the recorded experiences of men and women who attribute their difficulties as adults in forming mature and fulfilling relationships to their having been abused sexually when they were children.
Another consequence of being abused sexually may be that the child, when he or she becomes an adult, will treat a child or children as he or she had been treated as a child -- that is, he or she may abuse a child sexually. There is no empirical way of proving that a particular child victim, when he or she becomes an adult, will do to some child what has been done to him or her. We do know that sentencing judges are commonly told by defence counsel that the accused claims to have been sexually abused by a man (or by a woman, or both) who had stood in a parental relationship to him or her when he or she was a child.
[30] Let me now turn to the impact on N.
[31] N. is now 34 years old. The events regarding these charges occurred more than 20 years ago.
[32] N.'s entire family has now ostracized her for having brought forward the sexual activity, blame her for Mr. G.'s convictions and any custodial sentence he receives. N. has lost the benefits of the care, trust and strong support one regularly receives and expects to receive from their immediate family members. She is now isolated. So is her daughter.
[33] N. now has a 17 year old daughter. She has been fearful that Mr. G. could or would also sexually assault her. This concern has been a significant issue for her over the years.
[34] N. provided a lengthy Victim Impact Statement wherein she describes the continuing traumatic and life changing physical and emotional impact caused by Mr. G.'s sexual abuse. N.’s lack of self-worth, evident by her suicide attempt immediately after leaving the G. home, continues to date and was described by her as "thoughts of being inadequate, trash, no worth, and must cope with unfathomable loss."
[35] N. has needed therapy over the years and continues with therapy to deal with the sexual abuse.
[36] I have no doubt that these horrific and profound impacts will be with N. for the rest of her life.
LEGAL PARAMETERS
[37] The following Criminal Code provisions were in place at the time of the offences:
S. 151 Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of fourteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.
S. 152 Every person who, for a sexual purpose, invites, counsels or incites a person under the age of fourteen years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of fourteen years, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.
S. 264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat
(a) to cause death or bodily harm to any person;
(2) Everyone who commits an offence under paragraph (1)(a) is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding five years;
POSITIONS OF CROWN AND DEFENCE
[38] The Crown seeks a conditional stay of the sexual assault on the basis of Kienapple. So ordered.
[39] The Crown seeks a custodial sentence as follows:
a) 9 years concurrent on the sexual touching and sexual interference convictions; b) 1 year consecutive on the threatening death conviction; c) DNA order; d) Section 109 order for life; e) SOIRA order for life; f) Section 161 Order to issue prohibiting Mr. G. 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; ii. seeking, obtaining or continuing 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 persons under the age of 16 years; iii. having any contact - including communicating by any means - with N. or her daughter while serving her sentence; iv. being in the company or presence of persons under the age of 16 years old without an adult present.
[40] The Defence does not oppose the ancillary orders sought.
[41] The Defence submits that a custodial sentence of 5 years would be a fit sentence.
CASE LAW
[42] In D.(D)., 2002 ONCA 44915, the Court of Appeal stated:
[44] To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. (See, for example, R. v. M. (C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327 in which the Supreme Court restored the 25-year sentence imposed at trial and R. v. W. (L.K.), 1999 ONCA 3791, 138 C.C.C. (3d) 449 (Ont. C.A.) in which this court upheld a sentence of 18 and a half years imposed at trial.)
(emphasis added)
[43] This suggests a sentencing range starting at mid to upper single digit penitentiary term but, which range ought to be increased due to the physical violence and threats by Mr. G. during the sexual activity and to ensure that the sexual activity continued.
[44] In the more recent case of R. v. Woodward, 2011 ONCA 610, the Court of Appeal repeated this same range at para. 75.
[45] The Defence points to R. v. D.M., 2012 ONCA 520 where the offender had been convicted of sexual assault, sexual exploitation and invitation to sexual touching of his 15 year old niece over a period of almost 3 years:
[36] Second, and most importantly, while the court in D.(D). set specific ranges for categories of cases described by the court that were similar to the facts in D.(D)., Moldaver J.A. also made two things clear: (1) ranges of sentence are only guidelines; they leave trial judges with the flexibility "to do justice in individual cases" (para. 33); (2) for conduct where an adult in a position of trust sexually abuses children on a consistent basis and over an extended period of time, a higher range of sentence is called for. Depending on the specific facts, a penitentiary sentence, ranging from upper single-digit to low double-digit or beyond is appropriate. Although Moldaver J.A. referred to "children" in the plural, it is the conduct that is aimed at; while the number of victims will be a factor, the instruction from D.(D). does not become inapplicable where there is only one victim.
[37] The recent decision of this court in R. v. Woodward (2011), 107 O.R. (3d) 81, [2011] O.J. No. 4216, 2011 ONCA 610 clarifies any possible confusion on the intended scope of the D.(D). decision. In that case, a 30-year-old man lured a 12-year-old girl, first through the Internet and then by text messages, to have sex with him in exchange for the transfer of millions of dollars to a bank account to be set up for her. Her family was in financial difficulties at the time. She attended the location, where he had her perform fellatio on him twice and had intercourse with her.
[38] Although the case involved one child victim and one incident with no additional violence, this court made it clear that in sentencing, the principles enunciated in D.(D). applied. Moldaver J.A. repeated the principles of sentencing arising from D.(D). and I will repeat them here (at para. 72): [page730]
The relevant considerations and principles from D.(D)., at paras. 34-38, are summarized below:
(1) Our children are our most valued and our most vulnerable assets. (2) We as a society owe it to our children to protect them from the harm caused by sexual predators. (3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators. (4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow. (5) Three such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood. (6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing 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.
[39] For D.(D). himself, in upholding the sentence of six and one-half years, Moldaver J.A. again set out the governing, overriding principles applicable when children have been sexually victimized (at paras. 75-76):
Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. The five-year sentence imposed on the appellant for the sexual assault he committed on the 12-year old complainant is not excessive. In the light of the appellant's past criminal activity and the lack of any meaningful mitigating factors available to him, if anything, it was lenient. While acknowledging that trial judges retain the flexibility to fashion a fit and just sentence in the particular case, crimes like those committed by the appellant will typically warrant mid-to upper-level single digit penitentiary sentences. The additional 18 months the appellant received for the offence of luring was entirely appropriate and did not render the global sentence excessive.
In so concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well- being and the well-being of our children must take precedence. [page 731]
[40] Counsel has brought to the court's attention a number of decisions since D.(D). where the three- to five-year range identified by this court in B. (J.) was referred to. See, for example, R. v. G. (G.A.), 2006 ONCA 67, [2006] O.J. No. 67, 206 O.A.C. 134 (C.A.); R. v. M. (W.W.), 2006 ONCA 3262, [2006] O.J. No. 440, 206 O.A.C. 342 (C.A.); R. v. B. (C.), [2008] O.J. No. 2434, 2008 ONCA 486, 237 O.A.C. 387; R. v. C. (T.) (2004), 2004 ONCA 33007, 72 O.R. (3d) 623, [2004] O.J. No. 4077, 190 O.A.C. 380 (C.A.); R. v. H. (D.A.), 2003 ONCA 48216, [2003] O.J. No. 143, 168 O.A.C. 176 (C.A.). The first four of these cases were appeals against sentence by the accused, where the issue before the court was whether the sentence was too high because of error by the trial judge or because it was manifestly unfit. There was no issue of the sentence being increased. H. (D.A.) was a Crown appeal of sentence of an aboriginal offender where the issue before the court was the application of the Gladue, 1999 SCC 679, [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19] principle of sentencing. It does not appear that the D.(D). case was considered or referred to in any of these cases.
[41] D.(D). has certainly been treated as a guiding authority in cases of ongoing sexual abuse of children by an accused who stood in loco parentis. See, for example, R. v. L. (J.), [2009] O.J. No. 4683, 2009 ONCA 788.
[44] To conclude on the issue of the proper range of sentence, although sentencing is always an individualized process of decision making, where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary. Was the Three-Year Sentence Imposed by the Trial Judge Manifestly Unfit?
[45] The trial judge made an error of law in setting the range of sentence too low. She then imposed a sentence at the bottom end of the range on the basis that the circumstances were not "the worst". In my view, the sentence was so low as to be manifestly unfit, given the circumstances, all of which were recognized and set out by the trial judge.
(emphasis added)
[46] In the end, the Court of Appeal in D.M. increased the sentence to 7 years, the sentence requested by the Crown.
MITIGATING AND AGGRAVATING FACTORS
[47] The mitigating factors are:
a) Mr. G. has no prior criminal record; and b) Mr. G. has a history of employment.
[48] The aggravating factors are:
a) Mr. G. is N.'s father, hence, in a position of trust and authority as N. was in a position of dependency on Mr. G. for all aspects of her life; b) Mr. G. started to engage in sexual activity when N. was 6 to 7 years old, a form of grooming and designed to establish a norm and reduce the likelihood of reporting; c) The sexual abuse, as it relates to these charges, started around the time N. was 10 years old and was continuous for about 3 years; d) The sexual abuse took place in N.'s home, a place normally associated with safety; e) While not sexual intercourse, Mr. G. did digitally penetrate her vagina and attempted to insert his penis into her vagina and vaginal area; f) Mr. G. forced N. to physically masturbate him and touch his penis; g) Mr. G. threatened N.'s life if she told anyone, threatened the family unit, and threatened to put the entire situation on N. – all very serious threats to a young child; h) The sexual abuse was coupled with physical abuse, which became more forceful when N. resisted Mr. G.'s sexual approaches and even more so after N. had disclosed the sexual activity to her mother.
PRINCIPLES OF SENTENCING
[49] The following provisions of the Criminal Code are applicable:
S. 718 The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by unlawful conduct; (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 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 or to the community.
718.01 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.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
[50] In addition to what is set out in s. 718.01 of the Criminal Code, the Court of Appeal in R. v. Bauer, 2013 ONCA 691 underscored the importance in such cases:
[19] It is of paramount importance that children be protected from seducers and predators through sentences that emphasize the principles of denunciation and deterrence.
[51] In R. v. Woodward, 2011 ONCA 610
[76] In so concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.
REASONS
[52] Sentencing is a highly discretionary and individualized process. In many ways, this is one of the most difficult tasks facing trial judges.
[53] Authorities provide some guidance but circumstances of the offender and the offence are always unique. As a result, the range in cases such as this provide a useful starting point, but only a starting point.
[54] As stated in the Criminal Code, denunciation and deterrence (general and specific) are the primary sentencing objectives in cases such as this.
Concurrent or Consecutive?
[55] The Crown has requested that the threatening conviction be a consecutive sentence. The Defence submits that the sentence on all three convictions be concurrent.
[56] As a general rule, under s. 718.3(4)(b)(ii) of the Code, sentences should be served consecutively. Section 718.2(c) of the Code directs that “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.”
[57] In this case, the physical and threatened violence was so intertwined with the sexual activity, in my view, a concurrent sentence on all three convictions is the most appropriate and fair result. The acts constituting the offences are not entirely separate and distinct transactions of criminal conduct.
[58] Besides, because the range of a fit sentence on the sexual convictions is higher due to the physical and threatened violence, a consecutive sentence for the threatening death would be tantamount to an inappropriate double counting.
What is the appropriate range?
[59] The Crown submits that the range is somewhat higher than middle to upper single digits given the actual and threatened violence in the circumstances of this case.
[60] The Defence submits the range is 5 to 8 years. Essentially, the Defence submits that the sentence should be at the lowest end of the range.
[61] The facts in this case can be summarized as the sexual abuse by a parent, commencing at a very young age, which sexual abuse was persistent, longstanding, and physically intrusive on the child’s sexual integrity and emotionally debilitating to the child. In addition, the sexual abuse was coupled with acts of physical and threatened violence.
[62] One factor to be considered is that there was no full intercourse. This would suggest that a fit sentence be reduced to consider this factor. On the other hand, this is, to a large extent negated by the fact that Mr. G. digitally penetrated N. and attempted to insert his penis into or near her vagina (N. testified how she avoided this) on numerous occasions. I reject the Crown's submission that there was partial penile intercourse as the evidence does not establish this fact beyond a reasonable doubt. Nevertheless, G.’s actions, while not constituting full intercourse, were just short of such conduct.
[63] There was actual and threatened violence, including threats of death, so that Mr. G. could continue his self sexual gratification at his daughter's expense. This would suggest a higher sentencing for the reasons described in D.(D).
[64] In my view, in these circumstances, the appropriate range is 6 years to 10 years.
Where along this range is a fit sentence?
[65] The impact on N. has been devastating. This would suggest a sentence in the higher end of the range.
[66] There are no significant mitigating factors which would suggest the lower end of the range would be appropriate.
[67] Rehabilitation is unlikely on the circumstances of this case.
[68] I am satisfied that a fit sentence in this case is an 8 year custodial sentence to be broken down as follows: 8 years on each of the invitation to sexual touching, and touching for a sexual purpose to be served concurrently and 1 year on the threatening conviction to be served concurrently with the 8 years sentences.
[69] Counsel agree that Mr. G. is entitled to enhanced pre-sentence custody credit of 5 days (based on 3 days actual custody).
ANCILLARY ORDERS
[70] The ancillary orders requested by the Crown are so ordered.
FINAL DECISION
[71] Count #1 is conditionally stayed.
[72] The following sentence is imposed:
a) A custodial sentence of 7 years 360 days (after pre-sentence custody) on each of Counts #2 and #3 to be served concurrently; b) A custodial sentence of 1 year on Count #4 to be served concurrently with Counts #2 and #3; c) DNA order; d) Section 109 order for life; e) SOIRA order for life; and f) Section 161 Order to issue prohibiting Mr. G. 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; ii. seeking, obtaining or continuing 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 persons under the age of 16 years; iii. having any contact — including communicating by any means — with N. G. or her daughter while serving her sentence; iv. being in the company or presence of persons under the age of 16 years old without an adult present.
Ricchetti J
Released: July 3, 2019