R. v. J.W., 2013 ONSC 1712

CITATION : R. v. J.W., 2013 ONSC 1712 COURT FILE NO.: 711/10 DATE: 20130521 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) D. Allison, for the Crown ) ) ) - and - ) ) ) J. W. ) ) ) B. Crothers, for the Defence ) Defendant ) ) ) ) HEARD: March 14, 2013 REASONS FOR SENTENCE Bielby J. Overview [ 1 ] On November 29, 2012 I released my Reasons for Judgment in this matter. [ 2 ] J. W., the offender, had been charged with three counts relating to the period between May 5, 2001 and May 5, 2005. He was charged with: 1. Sexual assault on B. H., contrary to

section 271 of the Criminal Code of Canada , 2. Touching for a sexual purpose with a part of his body, to wit, his penis, contrary to

section 151 of the Code ; and

3. For a sexual purpose, invite a person under 14 years of age (the victim) to touch directly with a part of his body, to wit, his penis, contrary to

section 152 of the Code . [ 3 ] The offender was found guilty of all three counts. [ 4 ] Counsels have made submissions as to sentence and have provided me with sentencing authorities for my review. The Facts and Circumstances [ 5 ] For many years B.H. and the offender lived with their families on the same street. The offender was approximately 9 years older than B. H. The offender lived in his grandparents’ home where he had his own bedroom. [ 6 ] B. H. and the offender met one day when the offender was playing road hockey. B. H. asked if he could play. Over time the two became friends.

They also spent considerable time together along with other boys, two of whom were cousins of B. H. [ 7 ] Within a year of the offender and B. H. meeting, they and the other boys were, on occasion, sleeping overnight in the offender’s bedroom. They would watch television and play video games. While there was an issue as to the frequency of these sleepovers, I accept they happened regularly. [ 8 ] The B. H. testified that on those sleepovers he initially slept on the floor and at times would share the bed with the offender. The boys would sleep in a t-shirt and boxer shorts. [ 9 ] At some point in time, B.

H. began to sleep over alone with the offender in the offender’s room, an arrangement that continued regularly. Thereafter, the offender initiated sexual contact with the much younger B. H. [ 10 ] It started with the offender lying behind the B. H. and rubbing his penis between the legs of the B. H. while they were both clothed. This escalated in time to the clothes being removed and the offender ejaculating. [ 11 ] The sexual contact progressed to oral sex and B.

H. and the offender trying anal sex on two occasions. [ 12 ] There was evidence that, on occasion, the offender would show pornography on his television. [ 13 ] There was no violence or threat of violence and there was no intimidation. [ 14 ] None of these activities occurred when any of the other boys slept over and there was no evidence that any of the other boys knew what was happening or were ever involved separately in any such activities with the offender. [ 15 ] The activities commenced when the offender was 17 or 18 years of age and the victim was under the age of 10. [ 16 ] During the period of sexual activity B.

H. and the offender still hung out as part of a social group with the other boys and group sleepovers continued. [ 17 ] The sexual activities ceased when B. H. was approximately 13 years of age and began questioning the behaviour and his sexuality. B. H., for some period of time, withdrew from any contact with the offender. B.

H. testified that this period of non-contact lasted for approximately one year although on the evidence of other witnesses, this period of time may have been somewhat shorter. [ 18 ] The two then resumed hanging out together, along with others but there was no resumption of the sexual activity. The social relationship between B. H. and the offender continued right up until the weekend before B. H. disclosed the sexual activity to his parents. [ 19 ] The sexual activity ceased after the offender and victim attempted anal intercourse.

The victim testified that the activity started to take a toll on him and that he started feeling a lot of emotion. He testified that he figured, more likely hoped, that he would, over time, forget about the sexual encounters. [ 20 ] B. H. testified that he felt sad all the time and found himself crying often. In November, 2009, B. H. disclosed what had occurred to his parents for the first time and the offender was arrested. [ 21 ] In regards to the sexual activity, B.H. testified that he felt ashamed and blamed himself for the encounters. He questioned his sexuality.

He felt used and abused and observed that the offender did not seem to care. [ 22 ] B.H. started having trouble at school. His marks dropped dramatically and he was missed a lot of school by choice. He stopped taking any real interest in sports, something he had enjoyed. [ 23 ] B.H.’s relationship with his parents was also adversely affected while, at the same time, the offender and the victim’s father developed a friendship and for a time worked together for the same employer. Circumstances of the Offender [ 24 ] The offender, as I said, lived in the home of his grandparents who took on the role of his parents.

His grandfather is now

deceased but the offender continues to have a strong relationship with his grandmother who is very supportive of him. The offender also has a sister to whom he is very close and who is also very supportive of him. The offender, it would appear, financially supports his sister. [ 25 ] The offender is employed and apart from these convictions, without a criminal record. He continues to deny the sexual conduct ever occurred. He does not deny that B. H. was a victim of sexual abuse but states the perpetrator was someone else.

Impact on the Victim and/or Community [ 26 ] The impact of these types of sexual offences on the community has been and continues to be devastating. The Courts have repeatedly conveyed the message that when dealing with such offences and the sentencing of offenders, that the protection of society and its children is the paramount consideration. [ 27 ] A child has been described as our most valuable and vulnerable asset. [ 28 ] The harm to a child or young person who is a victim of such conduct cannot be measured.

It plagues them for life and adversely impacts on their ability to form relationships as adults. [ 29 ] Exhibit 1 to the sentencing hearing was the victim impact statement of B. H. In that statement he speaks of the problem he and his family have in communicating and B. H. believes this state of affairs to be a hopeless cause. He states that when he was younger he blamed himself for what happened. [ 30 ] In his statement B. H. speaks of the impact on his schooling and love of sports. He could not concentrate and did not socialize a lot.

He thinks of what had occurred, as he said, 24/7 and that it consumes him. [ 31 ] B. H. continues to struggle in making friendships, a matter of trust I expect, since he considered the offender to be his friend. [ 32 ] B. H. continues to hold a lot of anger towards the offender which is reflected in his attitudes to almost everything he does. He states that he had no self-esteem and suggests that there is no “spot in life” for him anymore. [ 33 ] B.

H. ended his statement by saying, “I feel like this is going to be how I feel like the rest of my life and that I will never get better.” That is the sentence the offender imposed on B. H. Legal Parameters [ 34 ] With respect to the conviction under

section 271 of the Criminal Code of Canada , the maximum sentence is for a term not exceeding 10 years. [ 35 ] With respect to the convictions under sections 151 and 152 of the Code , and with respect to each crime individually, the maximum term is a term not exceeding 10 years but the offence also indicates a minimum sentence of 45 days. Positions of Crown and Defence [ 36 ] It is the position of the Crown attorney that the appropriate sentence range is 7 to 8 years incarceration.

The Crown also seeks a DNA order, an inclusion in the sex offender registry for 20 years, a weapons prohibition for 10 years, a non-communication order and an order prohibiting the offender for attending parks, swimming areas and such. [ 37 ] The Crown attorney submitted that there a number of aggravating factors, both statutory and otherwise, and they are set out as follows: 1. The age of B. H. when these offences occurred; 2. There was a breach of trust. The offender was much older than B H. and gained the trust not only of B. H. but also his family who allowed B. H. to be alone with the offender; 3.

The prolonged and repetitive nature of the incidents which occurred over an extended period; 4. The offender groomed B. H. to become a victim by befriending him and his family, luring the boys over to his house with his own entertainment centre and video games, by starting sleepovers as a group, by playing pornography and then by gradually increasing the scope of the sexual encounter; 5. B. H. was robbed of his natural sexual awakening; and 6. The extensive impact the incidents had on B.

H. [ 38 ] The Crown submitted authority supporting her claim that the aforementioned are aggravating factors. [ 39 ] The Crown submitted that there are no mitigating factors. There is no remorse or acceptance of responsibility on the part of the offender.

It was conceded that when these incidents occurred the offender could be described as a youthful first offender. [ 40 ] It is submitted by the Crown the the Court’s priority should be on the victim before that of the offender. [ 41 ] The Crown articulated that, as a general rule, with respect to an adult who abuses children over time, a sentence of mid to upper single digits is appropriate. The Crown submits the paramount principles for sentencing with respect to crimes of this nature are denunciation and deterrence.

[42] It is the position of the defence that a sentence of three to five years would be appropriate. Counsel for the offenderacknowledges the paramount sentencing principle but submitted all the principles of sentencing are to be considered. [43] Counsel for the offender asked the Court to consider that the offender was a relatively youthful first time offender. He submitsthe offender has the support of his family and that apart from these convictions there has been nothing troubling in his background. [44] Counsel for the offender submitted that a lack of remorse is not an aggravating factor.

The Court was asked to take into accountthe fact that the offender did not reside with B.

H. and that he was not a parental figure, nor was he a blood relation. [45] Counsel for the offender takes issues with the need for an order prohibiting the offender from attending parks and publicswimming pools and took the position that the case before me is not one where a random young person was targeted. [46] I am also to take into account that while the age difference was nine years, the offender was only a teenager when the sexualcontact commenced and many of the authorities referenced dealt with much larger differences in age. [47] Defence counsel took exception to the suggestion that the offender was guilty of grooming.

Many of the general activities werethose of the group and there was no introduction of drugs or alcohol. Case Law [48] One of the decisions relied on by the Crown is R. v. D.D., (ON CA), [2002] O.J. No. 1061 (ONCA). Atissue in that appeal was the appropriate range of sentence for adult offenders who prey upon innocent children. In D.D., the appellanthad been convicted of 11 sex-related offences involving four boys.

He was sentenced by the trial judge to eight years and one month oneach conviction, concurrent. [49] Over a seven year period the offender, beginning when he was 25 years old, befriended four young boys between the ages of fiveto eight years and for periods of two to four years engaged them in all manner of sexual activity. [50] The appellant was found to provide the victims with beer and cigarettes and exposed all of the boys to pornography. Hethreatened the boys and would hit them if they did not comply.

The appellant stood in a position of trust. [51] The Court of Appeal in D.D. said, at paragraph 31, in considering the decision of R. v. Stuckless (1998) (ONCA), 127 C.C.C. (3d) 225 (On.

C.A.), “On the contrary, it (Stuckless) indicates to me that in similar circumstances, mid to single digitpenitentiary terms will, as a general rule, represent the appropriate sentencing range.” [52] In considering the facts in D.D. including repeated acts of anal intercourse, and physical violence and extortion, placed the casein a different category and the Court expressed that a sentence of upper single digit to low double digit penitentiary terms were calledfor.

Accordingly the trial judge’s sentence of nine years was appropriate (para. 32). [53] The Court emphasized that the ranges which it identified are not meant to be fixed and inflexible. [54] Justice Moldaver wrote the unanimous decision in D.D. and I concur with the views he expressed at paragraph 34 of D.D. whichstates: The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at riskto satisfy their deviant sexual needs must know that they will pay a heavy price.

In cases such as this, absent exceptional circumstances,the objectives of sentencing proclaimed by Parliament in s. 718(a), (

b) and (

c) of the Criminal Code, commonly referred to asdenunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the otherrecognized objectives of sentencing. [55] From paragraph 35 I quote, “Our children are at once our most valued and our most vulnerable assets...they are easy prey.” Fromparagraph 36 I quote, “the horrific consequences of child sexual abuse are only now known.” [56] Finally from paragraph 44, I quote, To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocentyoung children on a regular and persistent basis over substantial periods of time, the can expect to receive mid to upper single digitpenitentiary terms.

When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of violence, threats ofphysical 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, stillhigher penalties will be warranted. [57] The Crown also provided me with R. v. J.R., [2003] O.J. No. 3458 with respect to an offender’s otherwise unblemished recordand the passage of time.

The Court of Appeal ruled the trial judge’s sentence of two and a half years was demonstrably unfit andimposed a sentence of four and a half years. From paragraph 1, I quote, “While the respondent’s conduct in the twenty years betweenthe offences and his arrest demonstrates that he poses little risk of re-offending, the passage of time does not diminish the need for adenunciatory sentence given the seriousness of these crimes.” [58] In R. v. Woodward, 2011 ONCA 610 , [2011] O.J. No. 4216 (Ont.

C.A.), at paragraph 34, the Court reiterated that a midto upper level single digit penitentiary term was appropriate for crimes of this nature involving an adult and a child.

[59] From paragraph 75 of Woodward I quote, “adult predators who seduce and violate young children must face the prospect of asignificant penitentiary term.” [60] The Court expressed the opinion that the five year sentence imposed by the trial judge was not excessive and given the factscould be considered lenient. [61] From paragraph 76 of the Woodward case, I quote, In concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocentchildren, the focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life-alteringconsequences that can and often do flow from it.

While the effects of a conviction on the offender and the offender’s prospects forrehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predatorsfrom society for society’s well-being and the well-being of our children must take precedence. [62] In R. v. S.C., [2005] O.J. No. 3729, the Ontario Court of Appeal upheld a sentence of three years imprisonment. The caseinvolved an adult male, in a position of trust, abusing a female child between the ages of 9 and 14. It would appear the defence sought aconditional sentence.

The Court, stating at paragraph 23, ruled that the trial judge made proper use of the R. v. D.D. decision in settingout the principles, but then recognized the fact differences between D.D. and the case before her. It was acknowledged that the fact theabuse was by a person in a position of trust was an aggravating factor as was the facts that the abuse was over several years, in increasingseriousness. [63] One of the authorities relied upon by the defence is R. v. C.B., 2008 ONCA 486 , [2008] O.J. No. 2434 (On. C. A.).

Theoffender in that case was convicted of two counts of sexual assault, one count of sexual interference and one count of sexual exploitationin relation to acts involving his niece when she was between the ages of 12 and 16. The offender was sentenced to three years in prison. [64] The unanimous decision of the Court was written by E.E.

Gillese J.A. who stated at paragraph 55, “This court has repeatedly andconsistently upheld upper reformatory to low penitentiary sentences in case of sexual abuse by a person in a position of trust.” The trialjudge’s sentence of three and a half years was determined not to be manifestly unfit. [65] R. v. M.B., [2008] O.J. No. 3499, is a decision of Justice Spies of the Ontario Superior Court of Justice. The facts involved anaccused convicted of historical offences committed against his nephew including two counts each of sexual assault and touching for asexual purpose a child under 14 years of age.

The acts were committed from the time the child was 7 or 8 until he was 13. The offencesincluded multiple instances of anal intercourse. [66] The Crown sought a sentence of nine years and the defence argued a sentence of three to five years was appropriate. [67] It is to be noted the offender had already been convicted and sentenced for abusing his nieces. [68] In reaching her decision the learned judge noted the range of sentence to be three to five years.

She distinguished the case beforeher from D.D. by noting at paragraph 59 that D.D. involved four victims, and the behaviour of her offender was not as serious as that ofD.D. Further, in D.D. the offender also used physical violence and the threats of violence as well as corruptive means to groom theboys. [69] Justice Spies, at paragraph 62, sentenced the offender to three years on each count to be served concurrently.

It is noted that shedid so as part of a global nine year sentence taking into account the sentence with respect to the abuse of the offender’s nieces. [70] I take from this case that while the Court of Appeal decision in R. v. D.D. states a range from mid to upper single digits the factsof each case must be considered and a sentence constructed in accordance with the facts and circumstances. The Court of Appealdecision in R. v. S. C., decided after D. D. is also supportive of the sentence imposed by Spies J. [71] Another authority presented by the defence is R. v. Manjura, 2009 ONCA 485 , [2009] O.J.

No. 2484, a decision of theOntario Court of Appeal. The offender at trial was convicted of sexual interference involving a male neighbour and a seven year oldchild. It is alleged that on one occasion the offender licked the victim’s privates. [72] The offender was sentenced at trial to 17 months in jail followed by two year’s probation.

The Crown had sought 15-24 monthsand the defence asked for a conditional sentence. [73] The trial judge accepted that the accused stood in a position of trust albeit at the lower end. [74] The Court of Appeal ruled the sentence was within the range for the offence even for a first offender. [75] This case, I assume was provided to me to support the position that while the offender, J.W., was in a position of trust it could besaid that it was at the lower end of the scale in comparison to a neighbour as opposed to someone living in the house or a blood relative.

Mitigating and Aggravating Factors [76] With respect to aggravating factors I list the following: 1. The age of the victim (s. 718.2 of the Code).

2. The offender stood in a position of trust albeit towards the lower end of the scale. I say this for two reasons. The first is the offender’s age when the offences occurred. While legally an adult, the sexual acts started when he was a teenager. The second reason is the fact the offender was a neighbour, as opposed to a relative or someone who lives in the same home. 3. The incidents occurred over an extended period of time, at least two years. 4. The impact the abuse had on B.H. I think this factor includes the loss of a natural sexual awakening. [ 77 ] I am not persuaded the offender groomed B.

H. to become a victim. Initially B. H. was part of a group who participated in the sleepovers. In fact for the period over which the abuse occurred, the group continued to have sleepovers. There is no suggestion any others of the group were groomed. One of the group members who slept over was a cousin of B. H., and was approximately the same age as B. H. [ 78 ] With respect to mitigating factors there are few. No remorse has been shown. The offender maintains his denial.

I will take into account the age of the offender at the time of the abuse, and the fact he is a first time offender and a contributing member to society. Principles of Sentencing [ 79 ] I am cognizant of

section 718.01 of the Criminal Code of Canada which states, “when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.” [ 80 ] In crafting my sentence I will give such priority to denunciation and deterrence. [ 81 ] I will also focus on the impact the crimes have had on B. H. This focus takes priority over the impact the sentence will have on the offender. Reasons [ 82 ] The Crown relies on the dicta of R. v.

D.D. and asked for a sentence of seven to nine years being the mid to upper single digit range. Had the offender been older and/or had I accepted a pattern of grooming I would have seriously considered such a sentence. [ 83 ] I also have had regard to the distinguishing features referred to by Spies J. in R. v. M.B. In the case before me there is one victim and violence and/or the threat of violence were not a factor. Nor was alcohol or drugs involved as a means to corrupt and weaken the will of the victim. [ 84 ] I return to the issue of the age of the offender when the incidents commenced.

He was a teenager, someone who B. H. asked to play road hockey with, a game enjoyed, for the most part, by children. Both were part of a group of which one other was close to the age of B.H. Another cousin of B.H. was closer in age to the offender who was the eldest.

They all participated in activities generally attributed to children and young people. [ 85 ] It is in my opinion this is not a case of a mature adult grooming and preying on a child much younger. [ 86 ] For those reasons, I do not feel bound to sentence the offender within the range suggested by D.D. and note the Court in that case, stated the range was not fixed and inflexible.

The facts in any given case have to be considered and a sentence constructed accordingly. [ 87 ] I do note the sexual activity did involve on at least two occasions anal intercourse or the attempt at anal intercourse. [ 88 ] The Ontario Court of Appeal in the R. v. C. B. decision, which followed it own decision in D. D. upheld a sentence of three years. [ 89 ] In crafting my sentence my emphasis is on the harm caused to B.H. by the offender’s conduct. The consequences to B.H. have been life-altering and will be forever. [ 90 ] B. H. continues to miss out on an enjoyment of life. Every day is a struggle to him.

He was required on two occasions to come before a court and re-live what happened. To understand the depth of the impact one just needs to read the victim impact statement. [ 91 ] The actions of the offender must be denounced and deterred. [ 92 ] Having taken into account all of these factors, I sentence J. W. to three and a half years in jail, on each count, to be served concurrently. I consider such a sentence to be at the beginning of the “mid-range” as referenced in the authorities. Ancillary Orders [ 93 ] I order the offender J.

W. to provide a DNA sample. [ 94 ] I order the offender J.W. to be placed on the sex offender registry for 20 years.

[ 95 ] I decline to make an order under

section 161 of the Criminal Code of Canada . There is no evidence before me to suggest that the offender’s had such a predatory nature as to troll parks, and public swimming pools looking for random victims. I believe there needs to be some evidentiary record to warrant such an order. [ 96 ] Further to

section 109 of the Code , I prohibit the offender J. W. from possessing any weapon for a 10 year basis. I consider this order mandatory in nature and sexual activity between a child and adult always involves a component of violence. Final Decision [ 97 ] As set out above. ___________________________ Bielby J. Released: May 21, 2013 CITATION : R. v. J.W., 2013 ONSC 1712 COURT FILE NO.: 711/10 DATE: 20130521

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – J.W. Defendant REASONS FOR SENTENCING BIELBY J. Released: May 21, 2013