R. v. G.C., 2012 MBPC 78

CITATION: R. v. G.C., 2012 MBPC 78 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Mr. P. Girdlestone ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. S. Zaman - and - ) for the Accused ) G.C., ) ) Sentence delivered Accused. ) August 13, 2012 PRESTON, P.J. (Orally) I am sentencing G.C., who has entered a guilty plea about 20 days ago to sexually interfering with his stepdaughter C. between the 1st day of July of 2009 and the 2nd day of November in 2010; now a 40-year-old man who was born and raised in Manila.

At a young age he was sent by his parents to live with an aunt in Winnipeg but he was not traumatized particularly by this. In fact, he seemed to acclimatize very quickly. In 1999, he commenced a common-law relationship. His common law wife had a daughter, C., who was 10 months of age, when G.C. moved in. The child was raised always believing that G.C. was her natural parent. Though legally speaking the victim is his stepdaughter, she has been raised as his daughter. Together the couple have three other children, all daughters, now aged 12, 10 and eight.

As an adult, G.C. had long-term employment up until his wife experienced a disabling illness in 2002, after which he was the primary caregiver for their four children. His wife unfortunately has permanent memory impairment and is described as being “somewhat childlike” in her actions, but he has continued to provide care for her, rather than having her placed in a long term health care facility. . . . . . As I have said, G.C.'s stepdaughter thought that he was her father since both parents led her to believe this to be the case.

In July of 2009, when she was only 11, G.C. started coming into her bedroom at night and sexually molesting her. He subjected her to cunnilingus. He fondled her breasts and digitally penetrated her vagina. This went on for about three weeks. In reaction to this and in a cry for help, during August of 2009, C. started cutting herself. G.C. assured his daughter that he would stop sexually abusing her if she stopped cutting herself. Unfortunately that assurance expired after only about a couple of weeks. The sexual abuse began again and continued unabated until the victim went to camp in October of 2009.

After her return from camp, G.C. discontinued the abuse, until November 2nd of 2010. C. was not feeling well that night. She was given some medication by G.C., who told her that it was Tylenol. She was, as I say, feeling sick and dozing on the bed. G.C. started touching her and kissing her and then he inserted his erect penis into her vagina to attempt sexual intercourse. He was not using a condom. His stepdaughter, startled, told him to stop, which thankfully he did. The next day the young girl told her friends at school and later the school authorities.

The police of course then investigated the matter and found G.C.'s DNA on the crotch of his stepdaughter's underwear.

The matter was set down for preliminary hearing. On the day of the preliminary hearing, after the victim was subpoenaed andattended court, G.C. entered a plea of guilty. The victim impact statement is heart-wrenching. The victim expresses confusion and turmoil. She would like to see her father again,but she is afraid that he might be mad at her. She has been separated from the rest of the family. She is afraid her mother got hurt. Shemisses her family home. She says she was not mad at her dad for what he did but she was really hurt by him. It is now hard for her tobelieve that her father actually loved her.

She hopes her dad forgives her because she was not really a good daughter to him. She is very,very hard on herself. All of these conflicting feelings are pitiable but understandable and often the result of this type of abuse, because itamounts to a complete betrayal of the child's trust in a parent. Fortunately, the young girl is in therapy and was in court with her therapist and was able to witness the sentencing submissions, whichincluded G.C.'s apology to her. The victim describes herself as “weak” and “sensitive”. On the contrary, I say she is brave andcourageous. I hope only the best for her.

Psychologist Dr. Kent Somers, prepared a report dated March 23rd, 2012. The report was prepared prior to a guilty plea. BasicallyDr. Somers was asked to do a risk assessment on G.C. He met with G.C. twice. According to the clinical testing completed, G.C.'s riskto reoffend sexually is “low”. Dr. Somers concluded that G.C. has no major mental illness which could be associated in rendering himimpulsive or compromising his judgment. G.C. is, however, somewhat less well-developed with respect to language functioning andlogical reasoning abilities than most adults of his age. His insight is limited.

The cognitive profile would suggest, according to thedoctor, a language disorder rather than a more global, intellectual disorder. Of concern to the court are the following observations of the doctor. G.C., according to Dr. Somers, is more vulnerable than are themajority of other adults his age to making indiscriminate choices, particularly at times of intense stress or emotional arousal or when heis compromised by intoxicants. He presents as likely to be influenced by short-term considerations and immediate gratification, focusedprimarily on his own needs and interests over those of others.

G.C. presents as being only modestly receptive in participating inintervention, the long-term impact of which is likely to be limited, given that he does not present as being readily able to apply the skillsand information when he is in new settings or circumstances. On the other hand, G.C. does not blame the complainant, nor does he trivialize his conduct. However, with respect to C., the doctorwas concerned about G.C.'s description of her being a depersonalizing one, that is, thinking of her as an object rather than a person.

G.C.acknowledged being aware that she engaged in cutting her arms, says she was “kind of a lonely person”, but suggested little real empathyfor her. And of greater concern to the doctor was his description of the four girls in the family, talking about missing his "real kids" fromwhose company he excluded C. These things were classified as cognitive distortions that may predispose G.C. to engage in sexualizedbehaviour. Treatment and maintenance intervention is going to be valuable and highly advisable, according to the doctor.

I was also provided with a letter by defence counsel from a sex addiction counsellor confirming that G.C. completed 13 sessionsbetween December 2nd, 2010 and March 10th, 2011 and he was described as feeling a deep sense of regret and remorse with a high levelof victim empathy, somewhat differently described than the comprehensive description and opinion rendered by Dr. Somers. Defence has filed a number of cases to attempt to assist the court to put this crime in context and the court very much appreciates that.

The precedents presents a range of jail sentences, some of them including what I am being asked to sentence this gentleman to which istwo years of jail plus three years of probation. The first case, R. v. G., 2008 MBCA 55 , 2008 Carswell Man 228, did not involve a major sexual assault. The next case, R. v. E., 2011 MBQB 6 , 2011, 267 Man.R. (2d) 131, involved a person in a position of trust but not a familymember: three year jail sentence. R. v. T., 2006 Carswell Man. 288 from our Manitoba Court of Appeal is a case of a stepdaughter's abuse by a stepfather.

However,unlike G.C., there was a joint recommendation at first instance for a two year jail sentence followed by three years of probation. TheCourt of Appeal confirmed that things like the cessation of conduct before discovery, (which of course did not happen in G.C.'s case),remorse, a guilty plea, a willingness to seek treatment, certainly merit some consideration but by themselves do not ordinarily merit achange of emphasis from denunciation and deterrence to rehabilitation. Such a change in emphasis ordinarily requires something more.

In this case, there was full commitment, ongoing treatment and the joint recommendation. There was community support on a fulsomelevel. Paragraph 14 of that same decision says that the principles of denunciation and deterrence still take precedence. Counsel filed a 1991 Manitoba Court of Appeal decision, obviously somewhat dated, R. v. D., 1991 Carswell Man. 363, upholding atwo year penitentiary term for some very serious sexual assaults by a stepfather, upon a stepdaughter.

In that case the Court of Appeal,back in 1991, said that the best the court can do is recognize that there will be exceptional cases in which the interests of society or thoseof the victim and her family will be better served by a sentence which gives more weight to rehabilitation. Now, as I say, that is quite adated case at this point. R. v. N., 2007 Carswell Man. 542 is a distinguishable decision from the Queen's Bench of Manitoba. The penetration wasmomentary and a “borderline” major sexual assault according to the sentencing judge. The R. v.

C. decision, 2010 Carswell Ontario 667, Ontario Superior Court of Justice, the accused was sentenced to two and a halfyears in jail for digitally penetrating his daughter and touching her with his penis. He had no prior record and had been under strict bailconditions. Again these precedents are helpful and mostly factually distinguishable and often not binding. R. v. T., for instance, 2009 Carswell B.C. 2184. Two years jail for a stepfather who sexually assaulted his stepdaughter when shemoved in with him at the age of 15.

In that case the range of sentence was articulated to be two to six years, and certainly I would like toadd that that is not the case from our Manitoba Court of Appeal in terms of the range of sentence.

R. v. B. , 2005 Carswell Ontario 4526 , the Ontario Superior Court of Justice: a 30 month sentence for touching and digital penetration. R. v. C. , 2006 Carswell Ontario 1594 , Court of Justice of Ontario: the Crown at first instance asked for a period of two years less one day, plus three years of probation and in this case the pre-sentence report considered him a suitable person for community supervision.

In short, these decisions, many of which are not binding on this court, recognize there is a range of sentencing that occasionally results in a period of jail in a provincial institution or a shorter period of jail in a federal institution. The Crown filed only one case, which was a decision of the Court of Appeal outlining the starting point for these types of offences and outlining the aggravating features which are statutorily mandated for a court to consider. In the very recent and ultimately binding Court of Appeal decision of R. v.

A. , 2012 Carswell Manitoba 254, the Court of Appeal upheld a five year sentence for sexual interference where an accused had his daughter fellate him at various times starting when she was four years old. The Court of Appeal confirmed that the focus of sentencing for a major sexual assault involving a child is denunciation and deterrence and the starting point is four to five years' imprisonment when the crime is committed within a family relationship or position of trust.

As with all starting points, the Court of Appeal confirmed that it is presumed that the accused is a mature person with no criminal record and prior good character. After that, any relevant aggravating or mitigating circumstances can increase or decrease the range of starting point. They also confirmed the statutory sentencing principles 718.01, 718.02(a)(3), (a)(2.1), and also confirmed that rehabilitation is secondary in such situations. Let me examine the mitigating circumstances as outlined by Mr. Zaman. There was a guilty plea.

Indeed G.C. has spared his stepdaughter the further agony and indignity of testifying in court. His plea did not come before the preliminary hearing, but it did come and the court gives him credit for that. G.C. has lost his children. The breakup of the family unit is the foreseeable consequence of his behaviour, not a hugely mitigating circumstance. He is a caregiver. He is extremely responsible to his wife, there is no doubt about that. He has also broken her trust, but I do acknowledge he has cared for his wife. G.C. received some counselling for "sex addiction" soon after his arrest and release from custody.

He has exhibited remorse. He is very sorry for what he has done. The sex addictions counsellor confirms the shame and remorse and deep victim empathy. As I say, Dr. Somers' comprehensive report outlines some valid concerns on this front, but in terms of his now being sorry for what he has done, there is no doubt he is. Mr. Zaman did say the victim was not too traumatized, it could have been worse in other words, and I say those kinds of things are -- I would prefer that the court deal with what exists. The victim is still very troubled and requires therapeutic intervention. Now Mr.

Zaman has made much of the fact that, in his words, G.C. has a diminished mental capacity. I have carefully read and distilled Dr. Somers' comprehensive report. I cannot and do not conclude that there is a diminished mental capacity. G.C. was well aware that he was sexually abusing his own stepdaughter for his own selfish needs. Now counsel was at pains to say no force was applied, it could have been worse, all of which is true, but I am not sentencing G.C. for what he did not do, I am sentencing him for what he did, which was a gross breach of parental trust.

The vulnerability to stress and emotional problems in terms of his not being at what Mr. Zaman referred to as “the intellectual top line”, they in fact elevate his risk, because of his lack of foresight or insight.

The Crown asks for jail for four years on the basis of the aggravating factors, including the statutory aggravating factors, the age of the victim, the vulnerability of the victim, the breach of trust, the fact that this was a parental relationship, the ongoing and indeed escalating nature of the abuse, there was no cessation until disclosure by the victim, and there was significant emotional harm to the victim. 718.02(a)(iii) makes an aggravating factor evidence that the offender abused the position of trust or authority.

Section 718.2(a)(ii.1) deems that evidence that the offender abused a child is also an aggravating factor. 718.01 of the Code mandates primary consideration to denunciation and deterrence where offences are against children. The aggravating factors in this case far outweigh the mitigating factors, but the sentence is going to be reduced from what would otherwise have been a lengthier jail sentence. This child was, to her knowledge, this man's daughter, a daughter in fact if not in law. His crime against her was wilful and opportunistic.

There was a protracted aspect and a callousness to the revival of his abuse after the victim had shown the pain and the wherewithal to try to draw attention to herself by cutting herself, to desperately try to stop the abuse. The sexual behaviour reignited, escalated to attempted sexual intercourse and only ceased ultimately because the complainant told the authorities. G.C. does not come to court without a prior criminal record. He has an unrelated and somewhat dated record from 1994 for false pretences, a suspended sentence he received, and in 2001 he had a theft and a fail to appear for which he was fined.

I have taken into account all of the mitigating circumstances in calculating the quantum. I deem that there are no exceptional circumstances here in existence that would counteract the primary sentencing principles of deterrence, specific and general. I acknowledge that the mitigating circumstances, which are not particularly special, certainly not exceptional, but are mitigating, serve to reduce what would otherwise be a lengthier jail sentence. An appropriate sentence and the sentence he would have received, were he not in custody already, would be four years, which is the low end of the appropriate range.

He has now been in custody for about 20 days. The sentence is 20 days of time in custody plus 47 months and 10 days going forward. I am making an order that he register with the sex offender registry for a period of 20 years. I am making an order that within the next 30 days he submit a sample of his DNA to the authorities in the correctional system. I am making an order that he be prohibited from owning firearms, explosives, ammunition for a period of 10 years prohibited

weapons for life. I am ordering that while he is in custody he have no contact with the complainant,

Section 743.21.

I am ordering that upon his release from prison for a period of 10 years that he be prohibited from 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 day care centre, school ground, playground, or a community centre; that he be prohibited 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; or that he be prohibited from using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 16.

I am waiving the costs and surcharge. So, G.C., I do not know if you understood because I was reading a lot, I am sorry about that. You are going to jail. You would have gotten four years but you have already served 20 days so you are going to go to jail. And all I can say about that is that you take advantage of any programs that are available for you for your rehabilitation, okay? You need to know that I have taken into account all the good things that your lawyer pointed out. I would have sentenced you to a longer jail sentence were it not for that, okay? Is there anything further? MR.

GIRDLESTONE: No, thank you, Your Honour. MR. ZAMAN: No, Your Honour. THE COURT: Thank you very much for your help, counsel. _____