Her Majesty the Queen v. L.L., 2019 ONSC 6345

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

COURT FILE NO.: CR-17-65

DATE: 2019/10/31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

L.L.

Michael Purcell, Counsel for the Crown

Michelle O’Doherty, Counsel for the Accused

HEARD: September 30, 2019

REASONS on sentencing

leroy, j.

Charges and Facts

1L.L. was found guilty of the criminal code offences of sexual interference – s. 151, invitation to sexual touching – s. 152, sexual exploitation by a person in position of trust or authority – s.153 and threatening – subpara. 264.1(1)(a) after eleven days of trial reasons released May 29, 2019.

2The abuse began in October 2006 when the victim was eleven ending in July 2014 days before her 19th birthday. The sexual acts included vaginal intercourse, fellatio, cunnilingus and fondling.

3Objectively, L.L. would be characterized as the victim’s step-father with all the appurtenances. L.L. began living common-law with the victim’s mother when the victim was five years. L.L. and the victim’s mother were married when the victim was seven years. The victim resided within the L. household for most of the ensuing years. Theirs was a traditional household where everyone contributed.

4I found as fact that the sexual abuse inflicted on the victim took place in L.L.’s work truck. There were two scenarios.

5The family livelihood derived from their driveway sealing operation. They owned two outfitted trucks and the adults worked independently of one another when they had the work. Their operation required a helper per truck. Although the victim served as helper with L.L. most often in the years between her eleventh and sixteenth birthdays, this practice sustained albeit with less frequency until July 2014.

6L.L. regularly transported the victim to and from access visits with the victim’s biological father. After her sixteenth birthday the victim drove herself.

7The victim associated sexual engagement with L.L. to any time she and he were alone in the truck, whether at the beginning or end of their work day and to and from access visits. The accrual of standalone incidents is conservatively estimated to be in the hundreds. The victim’s recall is that for all but ten or so occasions, sexual congress was unprotected.

8Following the inaugural incident of sexual intercourse when the victim was eleven years L.L. threatened that if the victim disclosed to her mother he would kill the victim.

Victim Impact

9Although sentencing is an individualized process, the Court of Appeal recognizes certain axioms in these circumstances. For example, Justice Moldaver noted in R. v. D.D., 2002 44915 (ON CA), 2002 CarswellOnt 881 at paragraphs 33-38 that the horrific consequences of child sexual abuse are only too well known. Those axioms have been repeated in the jurisprudence many times.

10As we reviewed the impact depicted by the victim in her statement, it was apparent that her story is unfortunately paradigmatic. Healing will have to come from within. I humbly recognize that the sentence imposed today cannot redress the harm done.

Sentence Provisions

11On conviction for any of the three offences involving sexual context to which LL was found guilty, there is a minimum sentence of imprisonment for one year and maximum of fourteen years. Ancillary orders include mandatory s. 109 firearms prohibition and DNA order; discretionary order under s. 161; mandatory sex offender registration order on application; and an order prohibiting contact with the victim or family in the course of imprisonment.

Positions of counsel

12Counsel agree to application of the Kineapple-stay principle. The Kineapple stay properly lies where multiple counts arise from the same factual situation and legal nexus. Convictions in relation to s. 152, 153 and 264.1(1)(a) are stayed.

13Ms. O’Doherty posits the range of imprisonment at five/six years as proportional. She does not take issue with the ancillary orders sought, save for the request for the lifetime s. 161 prohibition.

14Mr. Purcell posits a period of imprisonment of eight years as proportional. He seeks a lifetime s. 161 prohibition, excluding application to the use of computers and the internet.

Applicable principles of sentencing

15Sentencing purposes include denunciation – expressing society’s disapproval of the conduct through the sentence imposed; general deterrence – sending a message to others that this kind of behaviour is too costly to engage in; specific deterrence – sending a message to L.L. to intimidate him into not offending again; incapacitation – imprisoning L.L. to protect those of us who are not locked up; and rehabilitation and reintegration – trying to assist him in reforming so he does not offend again.

16The fundamental principle of sentencing is proportionality. A sentence must be proportionate and broadly commensurate with the gravity of the offence and the moral blameworthiness of the offender (s. 718.1 CCC). The two perspectives on proportionality should converge in a sentence that both speaks out against the offence and punishes the offender no more than necessary.

17This is achieved by an examination of relevant aggravating or mitigating circumstances relating to the offence or the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances. Mitigating and aggravating factors are only those that are related to gravity of the offence or moral blameworthiness of the offender. The absence of a factor is neutral. Mitigating factors are proven on the balance of probabilities. Aggravating factors need be proven beyond reasonable doubt.

18The abuse of a person under the age of eighteen is a statutorily aggravating factor, as is abuse of a position of trust or authority and significant impact on the victim – s. 718.2. When a Court imposes a sentence for an offender involving the abuse of a person under the age of eighteen, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct – s. 718.01.

19The jurisprudence is united in the view that in cases such as this with vaginal intercourse, absent exceptional circumstances, the objectives of sentencing of denunciation, general and specific deterrence, and the need to separate offenders from society take precedence over other recognized objectives of sentencing. The offence by an adult qua parent sexually abusing a young child in his/her care for a prolonged period is at the distal end of the moral blameworthiness spectrum.

20I am mindful of the principles of restraint in sentencing and a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

21In this context, the appropriate range of sentence is mid to upper single digit penitentiary term.

Aggravating and mitigating factors identified in the jurisprudence submitted

Mitigating

22In R. v. P.M., 2012 ONCA 162, the Court considered the effects of PTSD from war zone trauma, the heightened sexual drive effects of medication for the treatment of malaria, a guilty plea that saved the offender’s daughter from the rigour of testifying as sufficiently mitigating the offender’s moral blameworthiness involved in sexual intercourse with his thirteen year old daughter over thirteen months to merit a sentence of five years imprisonment.

23In R. v. A.A., 2016 ONSC 2720, the eighty-three-year-old offender who engaged in vaginal intercourse with his stepdaughter while she passed through the ages of 4 to 9, three times per week received a sentence of five years and 45 days. His age and low risk of re-offence were mitigating.

24In R. v. W.Y., 2015 ONCA 682, the Court accepted that a compact period of offending attenuated the breach of trust, a guilty plea, no violence or threat of violence, remorse and desire for counselling mitigated moral blameworthiness resulting in a sentence of imprisonment of five years.

Aggravating

25Aggravating factors at large include and are not limited to, age disparity, victim impact, more than one victim, grooming, frequency and prolonged period of offending, pregnancy and secret abortion, threatening violence and the use of violence and injury, psychological pressure, bribes, exposure to pornography.

The Offender

26L.L. is fifty-one, divorced from the victim’s mother and living alone in receipt of social assistance. He has 12 siblings. He was unable to maintain passing school grades. He left home at age 15 and, until the loss of the paving business in 2015, was consistently gainfully occupied. He attributes emotional distress to vocational inactivity since. He maintains a positive relationship with some of the siblings.

27L.L.’s criminal record is dated and unrelated to the crimes at bar. He has never served penitentiary time.

28The Crown argued that a fraud conviction in June 2001 evidences propensity to deceit and ought to be seen as related having regard to the deception inherent in sexual offences against children. I am not prepared to make that connection. The facts in R. v. Woodward did merit such a connection. It involved a method of operation transcending different crimes. Woodward, with a history of fraud, employed the same tactics to lure a young girl, whose family he knew was in need of financial assistance, into sexual relations with the false promise of significant financial remuneration. The grooming and exploitation of emotional vulnerability were aggravating.

29The pre-sentence report confirms L.L. maintains innocence for these offences, but he has accepted and cooperated with process. The author ventured the opinion in her assessment that L.L. is a risk of re-offending and has propensity to sexual delinquency. For those opinions to weigh in as aggravating sentencing factors requires proof to a standard of beyond reasonable doubt.

30I am not prepared to factor those opinions into the sentencing algorithm. The author met with L.L. twice for one-hour sessions. There is no evidence of the requisite expertise to advance those opinions or evidence of the specific psychological tests performed, if any.

31L.L. has been on bail since May 2017 without breach.

32L.L. served 29 days of pre-sentence custody. It is common ground that he ought to receive enhanced credit of 44 days

Conclusion and related orders

33In R. v. D.D., Justice Moldaver framed the analysis. When adult offenders, in a position of trust, sexually abuse children on a regular and persistent basis over a prolonged period of time, they can expect to receive mid to upper single digit penitentiary terms. There are aspects of the inherent breach of trust, difference in age, persistent misconduct over a prolonged period of time and the inherent harm done to the victim’s psyche that are factored into that range.

34He noted that the six-year sentence in R. v. Stuckless, 1998 7143 (ON CA), [1998] O.J. No. 3177 was at the low end of the range for the behaviour exhibited there. While the facts in Stuckless involved an adult offender, in a position of trust, multiple victims, grooming and sexual assault over a prolonged period of time, Mr. Stuckless waived the preliminary hearing, saved the victims from the rigour of testifying, pled guilty and demonstrated sincere remorse and motivation to seek treatment. But for those mitigating factors, the sentence would have been longer.

35When the abuse involves full intercourse 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 to reflect the enhanced gravity of offence and the increased level of moral culpability of the offender.

36In terms of quantitative mitigating factors, it can be said that L.L. does not have a related criminal record and it is dated. He was gainfully occupied through his time with the victim’s family and exhibited pro-social propensity, at least superficially. He accrued forty-four days of pre-sentence detention.

37Although L.L. is entitled to restraint in sentencing, qualitatively, he is not a first offender and L.L. exploited the opportunity offered by work and access travel; ostensibly honourable undertakings to persistently impose sexual hegemony over the victim.

38Mitigating factors cited in other cases such as early plea and acknowledgment of harm done saving the victim from the rigour of testimony, remorse, commitment to counseling, compressed period of assault and external mitigating factors as in PTSD or medication induced elevated sexual drive or a forgiving victim are neutrally absent.

39The issue is the extent to which factors identified aggravating in the case at bar elevate L.L.’s moral blameworthiness and the gravity of the offence. Aggravating factors such as pregnancy, abortion, other violence, anal intercourse, exposure to pornography and Woodward grooming and deceit are neutrally absent.

40This abuse was persistent for a prolonged period of time, included from the first incident a threat of harm, sexual intercourse, fellatio and cunnilingus bringing commensurate victim impact. Gravity of offence and L.L.’s moral blameworthiness are elevated and place the range into the seven or eight-year zone.

41The sentencing algorithm is not formulaic. I hope to express society’s denunciation for this misconduct. I am sensitive to the real and possibly immutable harm done to the victim. I am mindful that no sentence can replace what was taken. The purposes and principles of sentencing in the Criminal Code require application of restraint in sentencing.

42But for the mitigation of pre-sentence detention of forty-four days the fit and just sentence on the s. 151 conviction L.L. is seven years in the penitentiary. After accounting for pre-sentence detention L.L. is sentenced to imprisonment for six years and 321 days.

43Ancillary orders to include:

1. S. 109 weapons prohibition for ten years;
2. DNA sample;
3. SOIRA twenty years;
4. A non-communication order with the victim, CD pursuant to s. 743.21.

44Mr. Purcell asked for an order under s. 161 for all scenarios depicted there excepting sub (d) which makes reference to the internet and computer use. I agree with defence submission that a prohibition ought to be fact consonant. Accordingly,

5. L.L. shall be prohibited for life from being within two kilometers of any dwelling house where CD ordinarily resides and her place of employment; and
6. L.L. shall be prohibited for life from obtaining employment, remunerated or not and from volunteering in a capacity that involves being in a position of trust or authority towards persons under the age of sixteen years.

The Honourable Mr. Justice Rick Leroy