COURT FILE NO.: 417/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
D.G.
Jelena Vlacic, for the Crown
Edmond Brown, for the Respondent
SUBMISSIONS HEARD: December 7, 2018
REASONS FOR SENTENCE
TRIMBLE J.
1By Reasons for Judgment dated 5 November 2018, I convicted D.G. of four of the eight counts on the indictment; namely, Count 1: touching R.Y. for a sexual purpose while she was under 16 years of age contrary to section 151 of the Criminal Code, Count 2: committing a sexual assault on T.Y., contrary to section 271 of the Criminal Code, Count 3: touching T.Y. for sexual purpose while she was under 16 years of age, contrary to section 151 of the Criminal Code, and Count 4: that he, while being in a position of trust or authority towards T.Y., a young person, touched her for a sexual purpose contrary to section 153 (a) of the Criminal Code.
2On 8 January 2019, I received thoughtful and thorough submissions from counsel, and received a Pre-Sentence Report, and victim impact statements of the two victims.
FACTS:
3In these Reasons for Sentence, I will not repeat, but adopt the facts as I found in my reasons for judgment of November 5, 2018. The facts salient to sentence are as follows:
D. G. is a pastor in the Spiritual Baptist Movement, who leads his own congregation. In addition, he operates his own business as a contractor doing small residential and commercial renovations.
He is married to B.G., who is also a preacher in the Spiritual Baptist Movement, who preaches with D.G. at his Church.
They have a large family of several children and grandchildren whom they raised in their faith.
D.G. does renovations to homes and businesses, often employing his family and close friends.
The G.s also took in foster children.
The two victims, T.Y. and R.Y. were sisters, and foster children living in the household. D.G. stood in loco parentis to the victims.
T.Y. was 14 years old and R.Y., 11 years old, when they were placed into foster care with the G.s.
The two victims found in the G household a family that they craved. They were included in family activities. D.G. and his wife B.G. were friendly and inclusive foster parents.
D.G. groomed both victims by repeatedly asking them if they trusted him and if they loved him and if they would do anything for him. He repeatedly told them that they could not trust anyone else other than D.G.
As proof of their love and trust of him, D.G. asked them to perform sexually charged acts such as removing their pants and underwear to show him their nude bottom halves, removing their pants and underwear and sitting on his lap, stroking his penis over his clothing, D.G. touching their vaginal area both over and under their clothing. These actions always were accompanied by D.G. questioning the victims as to whether they loved him and trusted him.
D.G. used inclusion in the family’s religious practice as part of his grooming them. The family is devoutly religious. They had a locked, private, prayer room in the basement. They frequently had “banquets” in which many people participated. It was only when the children reached a certain level of trust that they were permitted to participate in the banquets. They could only enter the prayer room with the family’s permission. Some of the assaults occurred in the prayer room.
D.G. used alcohol to make the sisters more compliant before assaulting them.
The sisters found intercourse with him painful, often.
Most frequently, the assaults happened in the family home, in the privacy of the bedroom or the basement, when others were not around. Periodically assaults took place at the restaurant that the family owned for short time, again, when others were not present.
D.G. began assaulting T.Y. when she was 14 or 15. The assaults continued on a weekly basis until she left the home.
D.G. continued to assault T.Y. after she left the home to go to school, although less frequently.
D.G. began assaulting R.Y. three or four months after R.Y. entered the home.
D.G. never used a condom. He frequently ejaculated inside the victims. In several instances he obtained and required both victims to take post coital birth-control.
D.G. required oral sex from T.Y. during about half of the assaults. All of the assaults involved vaginal intercourse.
Twice, D.G. engaged in anal penetration with T.Y.
POSITION OF THE PARTIES:
The Crown
4The Crown submits that I should sentence D.G. to 12 years, in total, less credit for 9 days of pre-trial custody.
5D.G. was convicted of sexual assault of R.Y. under section 151 of the Code. The time she was under age 16. The Code, as it existed at the time, imposed the maximum penalty of 10 years in a minimum of 45 days for this charge.
6D.G. was convicted of a number of offenses with respect to T.Y., including sexual assault of T.Y. after she reached 18, contrary to section 271 of the Code, touching T.Y. for a sexual purpose when she was under 16 years contrary to section 151 of the Code, and of touching T.Y. for sexual purpose, while in a position of trust or authority contrary to section 153(a) of the Code.
7Section 151 and 153 carried minimum sentences a 45 days and maximum sentences of 10 years. Section 271 carried no minimum sentence but a maximum of 10 years.
8With respect to the convictions on the offenses involving T.Y., the Crown’s position is that the sexual assault conviction under section 271 should be stayed under the principle in R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729.
9With respect to the conviction under section 151 and 153, the Crown’s position is that D.G. should serve six years for each, to run concurrently.
10With respect to the assault on R.Y., the Crown says that D.G. should be sentenced to eight years.
11Finally, the Crown says that the sentences as between the assaults committed against R.Y. and the assaults committed against T.Y. should run consecutively. However, the total custodial sentence should be reduced from 14 to 12 years on the totality and restraint principles.
12The Crown also seeks ancillary orders with which D.G. takes no issue. These are:
DNA order under section 487.04 and 487.05(1);
A weapon possession prohibition for 10 years under section 109(1);
SOIRA order for life under section 490.123 that D.G. comply with the Sex Offender Information Registration Act’s requirements;
Order of Prohibition for life under section 161(1)(a) of the Code prohibiting D.G. from being near a public park or swimming pool where persons under the age of 16 years are or can reasonably be expected to be present, or a daycare centre, school ground playground or community centre;
An Order of Prohibition for life under section 161(1)(b) preventing D.G. from 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;
Non-communication order under section 743.21, with respect to T.Y. and R.Y., as well as trial witnesses S.H. and C.S.J.
13The Crown provided a brief of cases at the sentencing hearing on which both sides relied.
DG
14D.G. is aware that the convictions he faces carry the likelihood of a lengthy penitentiary sentence.
15D.G. agrees that the sentences for the convictions with respect to offenses committed against T.Y. should run concurrently and that the conviction for sexual assault against T.Y. should be stayed. He took no objection to the Crown’s submission that the sentence for the offences committed against R.Y. and the sentence for the offences committed against T.Y. should run consecutively. He has no issue with respect to the ancillary orders.
16D.G. says the sentence range for the offenses is between four and six years, and, applying the principles of restraint and totality, a total sentence of eight years is appropriate.
PRINCIPLES OF SENTENCING:
Generally:
17Section 718 of the Criminal Code states:
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 …
18Section 718.1 says that sentences “... must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
19Section 718 of the Criminal Code also sets out a number of objectives that a sentencing judge must consider when sentencing, including a) denouncing the accused’s unlawful conduct; b) deterring the offender and other persons from committing offences; c) separating an offender from society (where necessary); d) rehabilitating the offender; e) making reparation for harm done to victims or to the community; and f) promoting a sense of responsibility in the offender acknowledging the harm done to the community.
In Cases of Sexual Abuse of Children:
20Sexual abuse of children is of the most serious or grave offences. It is even more serious or grave where the abuse is by an adult of a child, in which case it attracts a more severe sentence (see R. v. Trowbridge, [1991] O.J. No. 2800 (C.A.)). It is even more serious when that adult stands in a position of trust over the young person.
21Why is this?
22The case law and common sense tell us that sexual abuse is a crime in which the perpetrator inflicts physical violence and violation on the victim, but also dominates and degrades her. The physical harm is often minimal, but the emotional and psychological harm is devastating (see R. v. Johnson, [1998] O.J. No. 92; R. v. Myers, [2000] O.J. No. 1787 (S.C.)). The psychological ramifications are pernicious and long lasting (see R. v. M.A., [1996] O.J. 2899). They rob the victim of her most intimate security - security of the person. The victim is often fearful, angry, hostile and distrustful ever after.
23The depth, breadth, and pervasiveness of the impact of sexual abuse require that the Court give appropriate emphasis to the principles of denunciation, protection of society, and general and specific deterrence.
24In R. v. D. (D.) (2002), 2002 44915 (ON CA), 58 OR (3d) 788; [2002] O.J. No. 1061, Moldaver, J.A. said that adult sexual predators who put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. Denunciation, general and specific deterrence, and the need to separate the offender from society are paramount over other objectives of sentencing. The physical, and more important, the psychological damage done to the victim of sexual abuse are well known. Chief among the psychological effects is that later in life the victim has difficulty in forming loving, caring relationships with other adults because she is ever fearful that his or her partner will use sexual acts to hurt and dominate the victim rather than accept the partner’s sexual acts as the expression of the partner's caring and affection. There is also the risk that the victim, in adulthood, will become a victimizer by treating children the way that the victim was treated.
25Moldaver J.A. expressed society's abhorrence of sexual offences when he said at paragraph 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 230 (SCC), [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), 1999 3791 (ON CA), 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.)
26Notwithstanding the gravity, depth, and breadth of the effects of sexual offences against children, the wide range of sentence imposed for such offences reflects the wide array of circumstances in which the offence can be committed and the variety of offenders who may commit it. Every case is decided on the particular circumstances of the offender and the offence (see R. v. Katsnelson, 2010 ONSC 2246 (S.C.)).
ANALYTICAL FRAMEWORK:
27In R. v. John Doe, [2005] O.J. No. 3261 (S.C.J.), Hill J. said that the appropriate framework to determine a fit sentence is to answer those of the following questions appropriate to the case:
What judicially created sentencing tariff or guideline range governs the offender’s offence?
Within the correct starting range, what is the appropriate balance of common mitigating and aggravating factors?
Do any exceptional or extenuating mitigating factors apply in the accused’s circumstances?
If the appropriate range of sentence includes a reformatory sentence, is a conditional sentence of imprisonment justified?
28Only items 1 and 2 above are germane to D.G.’s case.
1. Sentencing Range:
29Based on all of the facts, I find that the appropriate sentence range is 6 to 12 years for each of the charges. Why do I say this?
30D.D. is instructive in that it sets the range in the mid to high single digit penitentiary sentence “…when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time…” When the abuse involves full intercourse, anal or vaginal, and is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion such as telling the child not to tell anyone, the range is in the upper single digit to low double digit penitentiary sentence.
31The range for sexual abuse cases has increased in recent years, driven by an increased emphasis on the need to take sexual predators away from society for society’s well-being, and the need for protecting our children to take precedence (see: R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 (C.A.) para. 75 & 76; and Varpio J.’s helpful review in R. v. C.G., 2018 ONSC 1151 (S.C.), para. 16 to 20).
32There are important factual differences between D.G.’s case and D.D., which distinguishes D.D. In D.D., the offender was a pedophile charged with and convicted of 11 sexual offences against boys of 5 to 8 years of age, over a period of 2 to 7 years. He is described as having “deviant sexual cravings.” The acts included acts of masturbation, oral sex, group sex, attempted anal intercourse with some, and successful anal intercourse with others. It is clear that his activity with his victims was far greater than the 11 counts of which he was convicted. He groomed his victims. To keep them compliant, he bought gifts, took them on adventures, allowed them to use his videos and provided alcohol and cigarettes. He also used violence to ensure his victims’ silence.
33D.G. was convicted of assaulting only two children, and did not involve any outward, physical violence or threats of violence, or deviant behaviour (aside from assaulting a child).
34In the chart of cases the Crown provided, the Crown listed cases involving parents or those loco parentis, who abused several children over long periods of time. Where the abuse did not include successful intercourse, the range of sentence was 4 years. Where intercourse was a factor, the sentences was between 6 and 11 years.
2. What Are The Appropriate Mitigating And Aggravating Factors?
Aggravating Factors:
35I consider the following to be the relevant aggravating factors:
D.G. was the victims’ foster father. They looked upon him as their father.
He stood in a position of trust. His legal and moral obligation was to make sure that the sisters were safe.
He abused the sisters concurrently, without each knowing that the other was being abused. He continued to abuse T.Y. after she left the home. He continued to abuse R.Y. after T.Y. left the home.
The abuse was planned and prolonged, and the incidents frequent. It was not spur of the moment.
He carefully groomed the sisters to be his victims. He used tactics designed to ensure their loyalty and silence which amounted to psychological abuse. These included:
i. Plying them with alcohol;
ii. Repeatedly asking them if they trusted him and if they loved him and if they would do anything for him.
iii. Repeatedly telling them that they could not trust anyone else other than him.
iv. Demanding that the sisters perform compromising and demeaning acts as proof of their love for and trust of him. He demanded that they perform sexually charged acts such as removing their pants and underwear in front of him, demanding that they remove some or all of their clothes and sit on his lap, stroking his penis over his clothing, D.G. touching their vaginal area and breasts both over and under their clothing. These actions always were accompanied by D.G. questioning the victims as to whether they loved him and trusted him.
v. Telling them not to tell anyone about the abuse.
vi. Using inclusion in the family, or exclusion from the family as part of his grooming, when he knew that the victims, as foster children would do anything he asked to have the stability and safety that a family would provide.
vii. Using inclusion, or exclusion, from the family’s religious practice as part of grooming. The victims were slowly and carefully introduced to the family’s religious practices once D.G. they reached a certain level of trust.
The psychological impact on the sisters was significant, including loss of self-esteem, suicidal ideation, depression and anxiety.
The sisters suffered physical effects of the abuse, aside from the abuse itself, which were brought to D.G.’s attention, but which he ignored, or was callous about. These effects included pain on intercourse, vaginal bleeding, recurrent infections, and possible pregnancies such that he purchased post coital birth control for the sisters several times. He never sought medical attention for either of the sisters.
T.Y. was 14 or 15 when the abuse began and R.Y. 11 or 12. They were naive, and trusting. They looked to D.G. for security and stability, which they lacked until they arrived at the G.’s home. D.G. took advantage of their naivety and betrayed their trust.
His acts, by their nature, were predatory. They were not mere crimes of opportunity.
36I wish to address other factors which, although not aggravating factors, their absence either signifies a significant lack of mitigating factors, or is neutral in the analysis:
D.G. exercised his constitutional right to maintain his innocence through to trial and conviction.
Notwithstanding the conviction, D.G. showed no remorse. The PSR writer commented that D.G. did not show any empathy for the victim sisters, or acknowledge the impact his behavior had on them.
Between 19 May 2016 and November 15, 2018, D.G. was on bail. His release terms were quite modest. He was required to reside with his wife, have no contact with the complainants, and have no contact with person under 16 years of age accept in the company of his will wife.
Mitigating Factors:
37I consider the following to be the relevant mitigating factors for D.G.:
He has been gainfully employed throughout his life.
As a self-employed contractor, whose through initiative and hard work has provided for his large family.
He has the support of his wife and children.
He has a relatively positive Pre-Sentence Report.
He has no substance abuse problems, and no criminal record.
The G.s were foster parents to at least four other foster children than the victim sisters. With the exception of one other foster child, about whose complaints and the charges arose therefrom I had reasonable doubt, there is no evidence that he sexually assaulted her or abused any of his other foster children.
D.G. has four daughters and one son. With the exception of one daughter, about whose complaints and the charges that arose therefrom I had reasonable doubt, there is no evidence that he assaulted or abused any of his other children.
The Children’s Aid Society has only been involved with this family since the charges were laid in this case, and only because there was one child (the son) that still resided in the G.’s home. The CAS’ investigation showed no results.
He is a pastor of his own church called “The School of Wisdom, Outreach Temple, Inc.” He held services twice a week.
SENTENCE:
38D.G.’s actions giving rise to his convictions were particularly severe, and of the most distressing kind of sexual abuse. I say this for the following reasons:
D.G. was the victim sisters’ foster parent. They considered him as a father figure. They had the right to be safe in his care. He betrayed that trust.
D.G. used psychologically abusive tactics to prey on naive victims’ needs and vulnerabilities to force them into engaging in sexual acts and required her to keep the abuse a secret.
The sexual assaults, for the most part, took place in the family home, a place where the victim sisters ought to have felt safe, a place where D.G. was morally and legally required to keep safe for the foster children.
His abuse of the sisters was planned, premeditated and prolonged.
His acts had a devastating psychological impact on the sisters.
When the children complained of pain on intercourse, suffered vaginal bleeding as a result of intercourse, or might be pregnant by him, he reacted with callous indifference, doing nothing, except buying post coital birth control for them.
39Based on the foregoing reasons, I accept the Crown’s submissions on sentence. I find the fit, proper, proportional and appropriate sentence in this case, fit for the offence and D.G., to be as follows:
Applying the principles of restraint and totality in sentencing, I fix a total sentence for all charges of 12 years. D.G. shall be entitled to nine days credit, reflecting a total of six days pretrial custody at one half days credit per day in custody, for a net sentence of 11 years, 355 days;
The sentence is broken down as follows:
i. On Count one on the indictment, sexually touching R.Y. while she was under 16 years of age contrary to section 151 of the Criminal Code - 8 years;
ii. On Count two on the indictment, sexually assaulting T.Y. contrary to section 271 of the Criminal Code – the charge is stayed;
iii. On Count three on the indictment, sexually touching T.Y. , while under the age of 16 years, contrary to section 151 of the Criminal Code – 6 years;
iv. On Count four of the indictment, sexually touching T.Y. while she was under 16 years and while he was in a position of trust or authority towards T.Y. contrary to section 153 (a) of the Criminal Code - six years;
v. The sentences for counts three and four on the indictment shall be served concurrently;
vi. The sentences for count one on the indictment, shall be served consecutively to the concurrent sentence on counts three and four of the indictment.
40In addition, I make the following ancillary orders:
DNA order under section 487.05 (1);
A weapons possession prohibition for 10 years under section 109(1) and (2);
SOIRA order for life under section 490.012(3), (2) and (3) and 490.013;
Order of Prohibition for life under section 161(1)(a) of the Code prohibiting D.G. from being near a public park or swimming pool where persons under the age of 16 years are or can reasonably be expected to be present, or a daycare centre, school ground playground or community centre;
An Order of Prohibition for life under section 161(1)(b) preventing D.G. from 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 14;
Non-communication order under section 743.21, with respect to the victim sisters T.Y. and R.Y., and with respect to witnesses S.H. and C.S.J.
Trimble J.
Released: February 8, 2019
COURT FILE NO.: 417/17
DATE: 2019 02 08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJEST.Y. THE QUEEN
- and -
D.G.
REASONS FOR SENTENCE
TRIMBLE J.
Released: February 8, 2019