Court File and Parties
OSHAWA COURT FILE NO.: CR-17-14499
DATE: 20190125
CORRIGENDA: 20190212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROBERT CHUNG
Defendant
Michael Gillen, for the Crown
Owen Goddard, for the Defendant
HEARD: June 4-8 and December 7, 2018
REASONS FOR SENTENCE
(TEXT OF ORIGINAL RULING HAS BEEN AMENDED – CHANGE APPENDED)
MCKELVEY J.:
Overview
[1] The defendant, Robert Chung, at the relevant time was a teacher at St. Leo Catholic School in Brooklin. The complainant, C.D., was a student in Mr. Chung’s class in grades seven and eight. She graduated from St. Leo’s school in June, 2008, when she was 14 years old. She then attended All Saints High School. By March, 2011, the accused and Ms. C.D. were heavily engaged in a sexual relationship. She became pregnant and underwent an abortion in March, 2011, when she was 17 years old.
[2] At trial, the Crown was not able to prove beyond a reasonable doubt that the sexual relationship between Mr. Chung and Ms. C.D. started when the complainant was less than 16 years old. As a result, he was acquitted on charges of sexual assault under s. 271 of the Criminal Code, touching for a sexual purpose of a person under the age of 16 years contrary to s. 151 of the Criminal Code, and inviting a person under the age of 16 to directly touch a part of his body contrary to s. 152 of the Criminal Code. Mr. Chung was, however, convicted under s. 153 of the Criminal Code, which provides as follows:
153 (1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who
(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or
(b) for a sexual purpose, invites, counsels or incites a young person 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 young person.
[3] Under s. 153(2) a young person is defined as a person between the age of 16 and 18.
[4] At trial, I found that Mr. Chung and the complainant engaged in a sexual relationship. Initially this involved fondling. Later, the relationship progressed and included sexual intercourse. The relationship was a lengthy one and lasted for approximately two years.
Position of the Crown and the Defendant
[5] The Crown seeks a custodial sentence of five years. The Crown’s position is that this case falls squarely within the parameters of the Court of Appeal decision in R. v. D.(D.), 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061.
[6] The defence position is that the reasoning in the R. v. D.(D.) case does not apply to a conviction under s. 153 of the Criminal Code. It suggests that the appropriate sentencing range for this offence is 15 to 18 months. At the relevant time, the sentencing provision was found in s. 153(1.1), which provides that every person who commits an offence under subsection (1), “is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of 45 days”.
Ancillary Orders
[7] The Crown also has sought a number of ancillary orders as follows:
(a) Under s. 490.012(1), the defendant’s conviction is for a designated offence and the Crown seeks an order requiring the defendant to comply with the Sex Offender Information Registration Act. The duration of this proposed order is for 20 years under s. 490.013(2)(b).
(b) The Crown seeks an order under s. 743.21, prohibiting the defendant from communicating directly or indirectly with the victim, C.D., together with her immediate family (consisting of her parents and sisters), as well as with the other witness who gave evidence at trial, A.S., together with her immediate family.
(c) As the offence is designated as a primary designated offence under s. 487.04 of the Criminal Code, the Crown seeks an order under s. 487.051 for the defendant to provide a sample for DNA analysis.
(d) The Crown seeks an order under s. 109 of the Criminal Code, prohibiting the defendant from possessing any firearm or other weapons as provided for under that section for 10 years, and a lifetime prohibition for any restricted or prohibited firearms for life.
[8] The defendant does not object to any of the ancillary orders. These ancillary orders will therefore form part of the defendant’s sentence.
Circumstances of the Offender
[9] A pre-sentence report was not requested by either party. However, the defendant has produced a psychological assessment report dated September 9, 2018 from Dr. Mini Mamak who is a Psychologist. Mr. Chung also made a statement to the court during sentencing submissions. In his statement, Mr. Chung offered his sincere apologies to C.D. and her family. He stated that he takes full responsibility for his actions, which he acknowledges were immature and selfish. Mr. Chung stated that he should have made better choices and that if he could turn back time he would. He stated that he wanted the victim and her family to know how sorry he was and that he would be sorry for the rest of his life. He stated that he made the worst mistake of his life.
[10] The comments of Mr. Chung in court were echoed by Dr. Mamak in his report. He states that Mr. Chung accepted responsibility for the offence. He acknowledged that his relationship with Ms. C.D. became romantic during the summer of 2010 when she was 16 years old. He came to view Ms. C.D. as his “girlfriend” and although he was cognisant of the age gap, he chose to ignore it. According to Dr. Mamak, Mr. Chung rationalized that Ms. C.D., “was a mature 16 year old and he was an immature 29 year old” and he told himself, “hell with it, what is 12 years when she is 30 and he is 42”.
[11] Mr. Chung does not have a criminal record and according to the report of Dr. Mamak, Mr. Chung reported that he has never been investigated for an offence. He attended the University of Toronto on a scholarship and attended Teachers College at York University and graduated in 2004. According to the report of Dr. Mamak, Mr. Chung and Ms. C.D. continued their relationship for two years when it was terminated by the complainant in the fall of 2012. There is no evidence that Mr. Chung has been involved with any other students from a school where he was teaching.
[12] Dr. Mamak states that according to the defendant he has struggled with depression for many years, dating back to adolescence. Mr. Chung reported that in mid-2014 he attempted suicide by taking Tylenol and drinking a bottle of wine. Mr. Chung also reported that he was diagnosed with Bipolar II in 2015 which is typically demonstrated by periods of hypomania and depression. Mr. Chung reported that he attended counselling for six months at one point. Since his arrest, Mr. Chung reported that he has been struggling from low mood and hopelessness. He has told Dr. Mamak that he often has pessimistic thoughts about his future and has passive suicidal thoughts. Dr. Mamak administered a Beck Depression Inventory and Beck Anxiety Inventory. He suggests that Mr. Chung’s responses suggest his depression is in the severe range and he is experiencing mild anxiety.
[13] To assess the risk of recidivism, Mr. Chung was given a Static-99R test; this test is reported by Dr. Mamak to have “moderate accuracy” in ranking offenders according to their relative risk for sexual recidivism. Dr. Mamak expresses the opinion that Mr. Chung’s risk to re-offend in a sexual manner is considered very low to low. He states that Mr. Chung does not present with the key risk factors typically associated with sexual offending.
[14] As part of their submissions, the defence submitted supporting letters from colleagues and friends of Mr. Chung. One letter was received from Edmond Dixon, who is a former school principal, university researcher and business owner. He was also the owner of the drama club where Mr. Chung worked in the summers. Mr. Chung hired the complainant to work at the drama club and it was during this time that the initial act of sexual intercourse took place. Mr. Dixon describes Mr. Chung as a young man of strong character, honesty, ambition and hard work. As a teacher, Mr. Dixon described Mr. Chung as “one of those top 5% of classroom educators”. He comments as follows:
Rarely in all of my experience as a teacher, school principal, educational researcher, and public speaker in education have I met anyone who is so dedicated to his students, so able to inspire them to heights that they didn’t know that they could reach, and spend so much time working to improve this craft and to become a truly great educator. These are qualities that I witnessed time and time again when he was a teacher.
[15] Mr. Dixon goes on to comment that Mr. Chung has already suffered a great deal. He no longer has a career in teaching. He is going to have to sell his house. He has lost many friends, acquaintances and colleagues. Mr. Dixon comments further:
I must state however that he is still young man of tremendous possibilities with a good heart and with great potential to contribute to society, even if it will not be in the ways that he has done in the past. I have had many long talks with him and believe that he takes responsibility for his actions, understands how the good that he did has now has been besmirched by what followed.
Impact on the Victim and the Community
[16] Victim impact statements were received both from the complainant and her mother. In the statement of the complainant, she describes how she was required to lie and keep secrets to protect Mr. Chung. She comments that she was quickly alienated from all her friends, peers and family members. She goes on to state that, “I had no social life and was lying to all of the people that I loved”.
[17] Ms. C.D. became pregnant with the defendant’s child and underwent an abortion in March of 2011. One can only imagine the physical and emotional trauma this caused the complainant. In her victim impact statement she describes how this experience, “was the most physically and emotionally painful time of my life”. She continues to have ongoing thoughts and dreams filled with guilt and sadness over what she went through. She became lonely, disconnected from those around her and depressed. She ultimately quit her job as a result of her depression. She was unemployed for several months and sought out a therapist. She reports that a psychiatrist has diagnosed her with depression and PTSD. She is currently taking medication to deal with these issues.
[18] The statement from the victim’s mother goes into greater detail about the consequences of Mr. Chung’s actions. In her statement, the victim’s mother comments that her daughter always wanted to be a teacher, but in grade 11 she changed her mind. The family did not understand it and tried to talk to her to stay with her passion, but instead she went in a completely different direction.
[19] The toll that Mr. Chung’s actions had on the victim and her family were described by her mother as follows:
[C.D.] approached me after she started the college program she had chosen. She told me she thought she needed to start seeing a therapist. She said she felt like she was losing control. She told me not to worry. She did start seeing a therapist but she was still spiraling. She completed her program and started to work fulltime. In 2014 she quit her job. She told her manager it was due to mental health issues. [C.D.] has started to experience panic attacks. She was wound so tight. She was confusing emotions. Laughing when she was happy would lead to crying, and sobbing would lead to hysterical laughter. Her whole body would just shake. We all knew she was really struggling but we had no idea the real reason why. She started to take anti-depressants and she had to take a substantial amount of time off from life to try to re-group. In March 2016, I started to learn the truth of why my daughter’s mental health had suffered so badly. Christina, my oldest daughter, called me. To say she was very distraught would be an understatement. I was grocery shopping. As soon as I heard the emotion in her voice I stopped what I was doing and went out to my car. What she proceeded to tell me shattered my life.
[20] There can be no doubt about the fact that the actions of Mr. Chung have dramatically impacted not only the life of the complainant, but also the members of her immediate family. I have concluded that the consequences of this sexual abuse will last for a long time into the future. As noted by Justice Moldaver in the R. v. D.(D.) decision, even if there is no long-lasting physical trauma, 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.
Applicable Legal Principles
[21] The principles of sentencing are set out in s. 718 of the Criminal Code which provide as follows:
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.
[22] The case law makes it clear that in the context of cases involving adult sexual predators, denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing. See R. v. D.(D.), supra.
[23] This position is further reinforced by the provisions of s. 718.01 of the Criminal Code which provides that when a court imposes a sentence for an offence that involves the abuse of a person under the age of 18 years, it should give primary consideration to the objectives of denunciation and deterrence of such conduct.
[24] Further, s. 718.2 of the Criminal Code provides that where a court imposes a sentence, it shall take into consideration, certain principles which include:
(a) evidence that the offender, in committing the offence, abused a person under the age of 18 years; and
(b) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.
[25] The sad reality in this case is that Mr. Chung stood in a position of trust vis-à-vis the complainant. This trust was grossly violated when he abused her for his own sexual gratification.
Mitigating and Aggravating Factors
[26] In considering an appropriate sentence, I have considered a number of mitigating factors. I accept that Mr. Chung is remorseful about his conduct and accepts responsibility. The suggestion appeared to be that this was akin to a plea of guilty. I disagree. Mr. Chung is not entitled to the significant mitigation of sentence which would have flowed from a plea of guilty. Further, his acceptance of responsibility and apology to the family as well as the character references are entitled to only very limited weight given that the principles of denunciation, together with general and specific deterrence must generally take precedence over other recognized objectives of sentencing. Further, it is generally accepted that evidence of good character of an accused charged with a sexual offence is of only limited value. See for example the Ontario Court of Appeal decision in R. v. B.S.R., 2006 CanLII 29082 (ON CA), [2006] 81 O.R. (3r) 641, at para. 76.
[27] It is significant, however, that Mr. Chung has no record of any other criminal convictions. He appears to have been otherwise a responsible member of the community.
[28] It is also apparent that Mr. Chung has suffered a number of collateral consequences from his actions. It seems most unlikely that he will be able to continue in his chosen profession as a teacher. He is currently considering a new career as a mechanic. As noted by Dr. Mamak in his report, Mr. Chung also appears to have suffered some significant mental health issues as a result of the events surrounding the charges which were laid and his conviction.
[29] I also accept that Mr. Chung has a relatively low risk for recidivism. He has no criminal record and there are no reports of other problems. It therefore appears that the prospects for rehabilitation are favourable for the defendant. He is still young and is making plans for when he is released.
[30] There are, however, a number of serious aggravating factors in this case. The most serious aggravating factor is the nature of the conduct by Mr. Chung in taking advantage of the complainant. Mr. Chung is solely responsible for the serious sexual abuse of the complainant over a period of two years. The nature of the sexual abuse involved all forms of sexual activity, including sexual intercourse. It included both protected and unprotected sex. Further, Mr. Chung’s actions included controlling behaviour which was designed to hide the nature of the relationship. It is also very significant that as a result of Mr. Chung’s actions, the complainant became pregnant and underwent an abortion. All of this took place in the context of Mr. Chung being in a position of trust.
Analysis and Decision
[31] Mr. Chung is entitled for some credit for pre-trial custody. He was detained in custody for two days following his arrest. He is entitled to credit for three days based on the usual 1.5 credit for each day in custody.
[32] In addition, Mr. Chung was under house arrest between March 30, 2016 to August 3, 2016 for a period of 4 months and 4 days. Subsequent to this time, he was required to reside with his parents until June 6, 2017 and abide by a curfew between 11:00 p.m. and 6:00 a.m. After June 6, 2017, the main restriction was that he was required to reside at his residence. The Crown acknowledges that he should receive a further one month credit for the initial restrictive nature of his bail. The defence seeks a two month credit. I have concluded that a one month credit is adequate recognition, given that the truly onerous bail conditions involving house arrest were for a very limited time. See R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555.
[33] In support of their position that Mr. Chung should be sentenced to detention for a period of 5 years, the Crown relied heavily on the decision in R. v. D.(D.), supra. At para. 44 Justice Moldaver comments:
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.
[34] In addition, the Crown relies upon the Ontario Court of Appeal decision in R. v. Woodward, 2011 ONCA 610. In that case, Justice Moldaver comments on the sentence in another case, R. v. Lithgow, 2007 ONCJ 534, [2007] O.J. No. 4448. In the Lithgow case, the complainant was 14 and 15 during grades nine and ten when Mr. Lithgow, then in his early fifties, was her teacher. When the complainant was in grade 11, Mr. Lithgow was no longer her teacher but continued in a position of trust acting as her math tutor. They continued to have contact which ultimately lead to oral sex and then unprotected intercourse on 25 to 30 occasions. The trial judge concluded that a sentence of 15 months for the offence of sexual exploitation was appropriate. In commenting on the Lithgow decision, Justice Moldaver states,
I find Lithgow to be of limited assistance. First of all, there were many mitigating factors in that case that do not exist in the appellant’s case. Unlike in Lithgow, the appellant did not plead guilty. Moreover, based on the record, he has no sense of the gravity and seriousness of his crimes, there is no evidence that he suffers from any form of mental illness, he is utterly without remorse and he is not motivated in the slightest to change his ways.
[35] Later, Justice Moldaver comments,
In any event, even if there are similarities between this case and Lithgow and Robinson, in my view, the sentences imposed in those cases do not establish an appropriate range for the type of offences committed by the appellant based on the sentencing principles established by this court in D.(D.).
[36] At para. 74, Justice Moldaver goes on to state that he believes that the sentences in Robinson and Lithgow were “manifestly inadequate”. He suggests that had the principles in D.(D.) been applied, the appellants in those cases would have received substantially higher sentences. He states that adult predators who seduce and violate young children must face the prospect of a significant penitentiary term.
[37] The defence points to a series of cases dealing with sexual exploitation where substantially lower sentences were imposed. Some of these cases pre-dated the R. v. D.(D.) decision or are from other provinces. However, In R. v. Aird, 2013 ONCA 447, [2013] O.J. No. 3027 (ON CA), the defendant was convicted on two counts of sexual exploitation. The defendant and the complainant met when the defendant was 28 in his second year of teachers college. The complainant was nearly 17 and in grade 12. The appellant and the complainant started a sexual relationship which began with sexual touching and progressed to oral sex and then sexual intercourse. The trial judge imposed a sentence of one year plus one year probation. The Court of Appeal upheld the sentence of one year stating that the highly aggravating considerations justified a one year term of imprisonment and that the trial judge did not err in imposing it. This was a 2013 decision which was decided after the R. v. D.(D.) and R. v. Woodward decisions. Interestingly, however, there is no reference in that decision to the R. v. D.(D.) decision.
[38] Another Ontario Court of Appeal decision from 2013 is R. v. M.B., [2013] O.J. No. 3384. It also involved a conviction for sexual exploitation. The complainant in that case was a 16 year old concession stand worker in a movie theatre where the defendant was the senior manager. The trial judge sentenced the defendant to nine months imprisonment. This decision was appealed by the defendant. The Court of Appeal upheld the decision and commented,
As the trial judge noted, the case law indicates a broad range of sentences for this offence, largely because there are infinitely variable ways in which the offence can be committed and a wide range of offenders. I am satisfied that in this case the trial judge took all relevant considerations into account, committed no error in principle and that the sentence falls within the appropriate range.
[39] Having reviewed the authorities referred to by both the Crown and defence, I have concluded that there is a general tendency for courts to impose significantly lesser sentences in cases of sexual exploitation as opposed to cases of sexual assault. This may reflect the fact that cases of sexual exploitation deal with victims who are over the age of 16 years. There are also often no acts of threats or violence towards the victims. These factors in my view tend to lessen the degree of moral culpability of the offender. There is no evidence of threats or other incentives which were offered to the complainant for entering into a sexual relationship. In saying this, I do not mean to suggest that the complainant’s apparently willing participation in the sexual activity should be taken in mitigation of the offence. As noted by the Court of Appeal in the R. v. M.B. decision, supra., consent is irrelevant to the offence of sexual exploitation. What it does mean, however, is that there was no aspect of coercion or holding out of incentives by the defendant to encourage the complainant to participate in the sexual relationship. In my view this lessens Mr. Chung’s level of moral culpability.
[40] In summary, there has been a recent and recognized upward trend in sentencing ranges for sexual offences committed by a person in a position of trust. Having said that, I do not believe that the moral culpability of Mr. Chung in this case approaches the level where a five year sentence is appropriate. There are also a number of significant mitigating factors which must be taken into account. These include what I believe to be a genuine expression of remorse by Mr. Chung, and the fact that he is now accepting responsibility for his actions. I also accept that he is facing serious collateral consequences from his actions and he will likely not be able to resume his chosen career as a teacher. He is also a first offender and I accept Dr. Mamak’s opinion that he has a relatively low risk of recidivism. Further, there were no aggravating factors such as threats or coercion involved in this case. These issues must, of course, be balanced with the egregious nature of the offence and the very severe consequences which have flowed to the victim and her family. I am also mindful of Justice Moldaver’s admonition that adult predators who seduce and violate young children must face the prospect of a significant penitentiary term and that the focus for sentencing should be on the harm caused to the child by the offender’s conduct.
[41] Mr. Chung would you please stand. Further to the forgoing reasons I sentence you as follows:
For your conviction on count four for sexual exploitation, I sentence you to a sentence of 30 months incarceration subject to credit for the time already served, in accordance with these Reasons, together with the ancillary orders as outlined as well earlier in these Reasons.
Justice M. McKelvey
Released: January 25, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ROBERT CHUNG
Defendant
REASONS FOR SENTENCE
Justice M. McKelvey
Released: January 25, 2019
AMENDMENT
Paragraph [7] (d) has been corrected by replacing ‘s. 110’ to ‘s. 109’ as follows:
[7] (d) The Crown seeks an order under s. 109 of the Criminal Code, prohibiting the defendant from possessing any firearm or other weapons as provided for under that section for 10 years, and a lifetime prohibition for any restricted or prohibited firearms for life.