R. v. Wickenden, 2013 ONCJ 659

WARNING The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

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

i) to (iii).

(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.: Central East - Newmarket 12-02770 DATE: 2013-11-12 Citation: R. v. Wickenden , 2013 ONCJ 659 O N T A R I O C O U R T O F J U S T I C E BETWEEN: HER MAJESTY THE QUEEN — AND — JAMES WICKENDEN

Before Justice P.N. Bourque REASONS FOR SENTENCE Released on November 12, 2013 P. Colaveccia............................................................................................................ for the Crown D. Gosbee................................................................................. for the accused James Wickenden BOURQUE J.: Overview [ 1 ] The defendant has pled guilty to two counts of sexual interference upon K.G. and C.G., and a single count of breach of probation. The facts of these assaults are contained in Exhibit Number 1 (Agreed Statement of Facts) and can be summarized as follows: (

a) defendant was on probation from an order made on Sept 24, 2008; (

b) he was not to be in company of child under 16; (

c) he was repeatedly alone with two girls ages 8 and 9 and their younger brother; (

d) he was in the course of babysitting the children and in the course of a game with the two girls, he would hold them upside down, hold their legs and touch their vaginal area under their clothing, the touching would last for up to 7 seconds; (

e) no digital or other penetration; (

f) happened repeatedly and frequently. Criminal Record [ 2 ] The defendant has a record of similar offences. He has two previous convictions for similar offences. The particulars are as follows: Date Offence Sentence September 24, 2008 Sexual interference (x 2) 4 months in custody and probation September 24, 2008 Sexual Assault 12 months custody Total custody on 3 charges (two individuals) 12 months custody Personal Circumstances of Offender [ 3 ] The defendant is 30 years of age. At the time of the offences, he was 28 years old. He is unmarried and lives with his parents. He has a grade 12 education.

He has been employed in the past as a carpenter. He has not worked for some time. [ 4 ] He has been under house arrest for the majority of time. He has spent pre-trial custody for almost 2 months. While I take these periods of custody into account, it does not disturb the joint submission of counsel in this matter. Psychological report Dr. Gojer dated July 3, 2013 [ 5 ] Dr. Gojer assessed this individual and I quote the following from his report: The defendant does not suffer from any mental illness, personality disorder or substance use disorder.

His offending is indicative of heterosexual pedophilia that in non-exclusive. He has in a moderately high risk category to reoffend. "He has used cognitive distortions to justify his actions, minimize the seriousness of his paedophilic interests and placed himself in a high risk situation again while on probation. He takes responsibility for what he did, and seems to have better insight into his offending at this time. [ 6 ] It is the joint position of the Crown and defence that an appropriate custodial sentence for the defendant is that of 4 years. The Law

[ 7 ] The offences of sexual interference have a minimum sentence of imprisonment. The Crown has proceeded by indictment and the minimum sentence is 45 days on each count of sexual interference. [ 8 ] The purpose and principles of sentencing are set out in s. 718 of the Criminal Code . (

a) denouncing unlawful conduct (s. 718(a)); (

b) deterring this offender and others from committing offences (s. 718(b)); (

c) imprisoning offenders where necessary to separate them from law abiding members of society (s. 718(c)); (

d) assisting in rehabilitating offenders and in appropriate circumstances encouraging their treatment (s. 718(d)); (

e) providing reparation for harm done to victims of the community (s. 718(e)); and (

f) promoting in offenders a sense of responsibility for and acknowledgement of the harm they have done to victims and to the community (s. 718(f)). [ 9 ]

Section 718.1 of the Criminal Code provides that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and to the degree of responsibility of the offender.

Section 718.2 of the Criminal Code also requires the court to take into account other principles, including the following: (

a) that a sentence may be increased or decreased depending upon the presence of any relevant aggravating or mitigating circumstances relating to the offence or to the offender including the fact that the offender abused a person under 18 years of age; or in committing the offence, abused a position of trust or authority in relation to the victim. [s. 718.2(a)]; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh [s. 718.2(c)]; (

d) that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances [s. 718.2(d)]; and (

e) that all available sanctions other than imprisonment that is reasonable in the circumstances should be considered for all offenders. [ 10 ] In R. v. Nasogaluak [1] , the Court held at para. 43: The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case. No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case.

The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge's discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law. [ 11 ] In R. v.

D.M. [2] , The Ontario Court of Appeal re-stated the factors to be considered when sentencing for a person who has sexually assaulted a child. [ 12 ] The relevant considerations and principles from R. v. D.D . [3] , at paragraphs 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. [ 13 ] Both counsel in their submissions agree that this is a case for which a custodial disposition is appropriate. I agree. The overwhelming statutory and appellate authority demands that a sexual assault upon a child will almost always result in a period of custody. [ 14 ] In this case, I believe that the following factors are of most significance: (

a) This is a case of sexual assault on two young girls. He was in a position of trust and they were in his care;

(

b) Without in any way lessening the impact of these offences I note that it does not involve intercourse although it involved continuing abuse over a period of time; (

c) The defendant has a record of this type of behaviour and has received a custodial sentence in the past for this type of behaviour. (

d) The defendant is a young man, and I accept the guilty plea as a sign of remorse; (

e) The report of the psychologist contains several features including: (i) “He now recognizes the seriousness of his problem and the need to remain in ongoing therapy.” (ii) While he did some counselling after the first convictions, he stopped the counselling just before the commission of these offences; (iii) He has reoffended and has justified his actions and minimizes the seriousness of his paedophilic interests and placed himself in high risk situations; (iv) he has an underlying attraction to children although he minimizes this in the psychological tests; (

v) he requires long term treatment and he should never have any unsupervised access to children and not attend any place where children congregate; (vi) he has plead guilty and avoided the necessity of the complainants having to testify and putting themselves and their families through more public grief; (

f) This is a joint submission of Crown and defence, but in any event I believe that it is an appropriate disposition in all of the circumstance. Conclusion [ 15 ] The defendant will be sentenced concurrently on both counts of sexual interference to a sentence of imprisonment of 4 years. [ 16 ] On the offence of breach of probation, he will be sentenced to a period of custody of 2 years less one day, concurrently to the counts of sexual interference. [ 17 ] In addition, there will be an order that he provide a sample of his DNA (Primary Offence). There will be a SORIA order. There will be an order under

section 161 with no exceptions, and there will be an order under

section 109, for life. Signed: “Justice P.N. Bourque” Released: November 12, 2013