R. v. Mozumdar, 2012 ONCJ 151

Court Information

Ontario Court of Justice

Between: Her Majesty the Queen

Mr. J. Smith for the Crown

— And —

Johurui Mozumdar

Ms. L. Burke for the accused

Before: Justice T. Lipson

Reasons for Sentence

Introduction

1Mr. Mozumdar pleaded guilty to charges of sexual assault and robbery. He appears today for sentencing.

Circumstances of the Offences

2Mr. Mozumdar and the victim were strangers prior to the date of these offences. On December 15, 2010 the accused contacted the victim by telephone. They then corresponded by text messaging and speaking on the phone throughout the day. In the early evening the victim met the accused at a subway station. He led her to an apartment building where they went to an 11th floor stairwell. The accused told the victim to sit on the stairs and he sat beside her. When she attempted to get up to leave he told her "no" and sat her down again. He began to touch the victim's breast and vaginal area over her clothing. She pushed his hand away, stood up and attempted to leave. He stood in front of her, pulled out his penis and told her to give it "a little kiss". She told him "no" and attempted to walk down the stairwell. He pushed her against the wall and began to fondle her buttocks. He then produced a condom and attempted to place it on his penis. She again attempted to leave and the accused told her he would hurt her. Out of fear, she then pulled her own pants down. He ordered the victim to kneel on the stairs and attempted to have vaginal intercourse. He was unable to enter the victim and discarded the condom on the floor. The accused then removed the victim's cell phone out of her pocket. She asked for her cell phone back and began to cry. The accused told her to leave him alone or he would hurt her. He then ran down the hallway with the victim chasing him. She was unable to catch him. She returned home and contacted the police. Investigation linking the accused to the crime included a photo line-up and DNA evidence.

3The Crown did not introduce victim impact evidence.

Circumstances of the Offender

4In addition to the helpful submissions of counsel, the court had the opportunity to review a pre-sentence report prepared by probation services, a psychiatric assessment authored by Dr. Scott Woodside and a psychological evaluation prepared by Dr. Carolyn Abramowitz. These reports provide a detailed account of the accused's background and have been considered by the court.

5The accused is a 21 year old first offender born in Bangladesh who came to Canada at age 7. He was living with his large close knit family at the time of his arrest. By all reports, he was brought up in a stable and loving home environment. Mr. Mozumdar dropped out of high school by grade 11 and was in the process of taking courses in business administration at Everest College at the time of his arrest. He has not continued his studies.

6With respect to the accused's attitude toward the offences, there are concerning comments found in both the PSR and Dr. Woodside's assessment.

7At the time of the guilty pleas, counsel for Mozumdar requested that her client undergo a psychiatric assessment to determine whether he was criminally responsible for the offences. Mr. Mozumdar had indicated to counsel as well as others that he was suffering from mental health issues that may have influenced his conduct. On the consent of the parties, Dr. Woodside, an experienced forensic psychiatrist, assessed the accused and prepared a comprehensive report assessing criminal responsibility, future risk and treatment recommendations.

8Dr. Woodside opined that the accused possibly suffers from a major mental illness, namely schizophrenia. However, Dr. Woodside was satisfied that whatever symptoms Mr. Mozumdar was experiencing at the time did not appear to have any direct impact on his capacity to appreciate the nature and quality of his acts insofar as he was aware he was having sex with the victim and would have remained able to appreciate that she did not wish to have sex at that time. Mr. Mozumdar indicated to Dr. Woodside that he knew the wrongful nature of committing a sexual assault at the material time, both legally and morally. Dr. Woodside believed that the accused's actions were most likely a function of antisociality, expressed through the use of force upon an unwilling partner.

9Mr. Mozumdar told Dr. Woodside that he abused alcohol and attributed difficulties with anger and depression to his use of alcohol. It is not alleged that alcohol or drug use played a role in these offences. Dr. Woodside recommended that the accused abstain from use of alcohol or street drug for the foreseeable future, given that "use of alcohol may further disinhibit him and make him more likely to act out on his underlying deviant sexual preferences."

10Dr. Abramowitz administered a number of psychological tests. She found evidence that the accused was feigning memory deficits. She was unable to find evidence of exaggeration or feigning of psychiatric symptoms. The Minnesota Multiphasic Personality Inventory-Second Edition (MMPI-2) showed that similarly scoring individuals to Mr. Mozumdar tend to show an extreme pattern of chronic psychological maladjustment. "Individuals with similar profiles tend to rationalize their difficulties and deny responsibility for their actions, preferring instead to blame others or external circumstances." Indeed in his comments to both the doctors and the PSR writer, the accused tended to minimize his role and responsibility for his crimes. This necessitated a second plea comprehension inquiry after the court received the three reports which fully satisfied me that the accused had made a fully informed and voluntary decision to accept responsibility for his crimes and plead guilty.

11Dr. Abramowitz stated that "Mr. Mozumdar may be characterized as somewhat aloof, cold, non-giving and uncompromising. He may attempt to advance himself at the expense of others. His lack of trust and cynical view of life may prevent him from developing warm, close relationships." Dr. Abramowitz felt that the accused is not likely to benefit much from treatment.

12Mr. Mozumdar underwent actuarial testing in order for a risk assessment to be completed. The types of testing and results are set out in Dr. Woodside's report. It should be noted that the accused declined to undergo phallometric testing which, according to Dr. Woodside, is the "most objective test available regarding the presence of sexually deviant preferences". In the result, Dr. Woodside was of the view that his sexological assessment of the accused was necessarily incomplete. The absence of phallometric testing limited the doctor's ability to conduct a full risk assessment"as having a positive phallometric test for interest in sexual activity with children remains the single most predictive risk factor for sexual recidivism".

13Overall, Dr. Woodside viewed the accused as being at a high risk for sexual recidivism from both a clinical and actuarial perspective. He believed the accused would likely continue to offend in a manner similar to that in the past, that is"engaging in opportunistic and moderately predatory behaviour leading to more intrusive sexual behaviour, that being oral sex or intercourse". Dr. Woodside stated that the accused "does appear to suffer from personality pathology (antisocial personality disorder) which may interfere with treatment and which renders the prospect of successful treatment less likely".

Positions of the Crown and Defence

14Submissions as to sentence were made on February 23, 2012. Mr. Mozumdar has been in pre-sentence custody since his arrest on August 26, 2011. He had served 124 days between the date of arrest and his pleas on December 28, 2011. The accused has served a further 85 days in custody awaiting sentence following his guilty pleas.

15The Crown seeks a custodial sentence of 22 months less credit for pre-sentence custody plus a period of probation for three years. The Crown also seeks a DNA order and SOIRA order for 20 years and section 109 order for 10 years.

16Counsel for the accused submits that a further nine months in addition to time served is appropriate. Counsel does not take issue with the probationary and ancillary terms sought by the Crown.

Analysis

17There are a number of aggravating factors present in this case. The accused and the victim were strangers. He used threats in his efforts to coerce sex from the victim. He compounded the sexual assault by stealing the victim's cell phone. Despite his guilty pleas, Mr. Mozumdar has limited insight concerning his offending conduct and its impact. Dr. Woodside found him to be a high risk for sexual reoffending.

18On the mitigating side of the ledger, the accused pleaded guilty and spared the victim from having to testify at trial. He is a youthful first offender. Mr. Mozumdar enjoys good family support which will assist his efforts to rehabilitate himself. The accused has expressed interest in receiving treatment including antipsychotic medication which he is currently taking in the detention centre.

19The relevant sentencing objectives present in this case are denunciation, general and specific deterrence and rehabilitation. The court must take into account that Mr. Mozumdar is a youthful adult first offender who will be serving his first and, hopefully, last custodial disposition. In view of the somewhat pessimistic prognosis from Drs. Woodside and Abramowitz and the cautionary comments contained in the PSR, the sentence must allow for potential counselling and treatment in and out of custody and maximum community supervision. Much will depend on whether Mr. Mozumdar is amenable to counselling and treatment. Proportionality and restraint are also important applicable principles.

20I agree with the Crown that the appropriate sentence in this case should be in the upper reformatory range. That is primarily because of the serious nature of these offences and the need for the court to stress the denunciatory and deterrent objectives of sentencing. I am of the view that a fit and reasonable sentence is in the 18-21 month range less credit for pre-sentence custody plus probation for three years.

21Counsel acknowledged that Mr. Mozumdar was not entitled to enhanced credit for his pre-trial custody prior to plea. Ms. Burke submitted that enhanced credit should be given for the period between his guilty plea and today's sentencing date. It was submitted that the interests of justice required that a thorough psychiatric assessment be conducted to determine criminal responsibility as well as risk assessment. As well, counsel agreed that a pre-sentence report was necessary to assist the parties and the court. The requests for these materials were made by counsel and acquiesced to by the accused who, as a result, lost the benefit of any remission for that pre-sentence assessment period. This was not an effort on the part of the accused to unduly prolong his pre-sentence detention or manipulate the system. In some cases where circumstances beyond the offender's control will justify enhanced credit, such as the court being unavailable due to illness or delay due to the need to prepare a pre-sentence report: see R. v. Morris, 2011 ONSC 5206 at para. 47. I agree with this submission.

22In the unique circumstances of this case, I am prepared to credit the accused on a 1.5:1 basis for the 83 days spent in custody since his guilty pleas. That amounts to 128 days and is added to the 124 days of pre-sentence custody. The total pre-sentence custody is 250 days or 8½ months.

23The remaining sentence to be served for the sexual assault is 12 months. He is sentenced to six months for the robbery to be served concurrently. I would strongly recommend that the correctional authorities consider placing Mr. Mozumdar in either the Ontario Correctional Institute or the St. Lawrence Valley Correctional and Treatment Centre. The authorities should consider the treatment recommendations made by Dr. Woodside in his assessment of the accused.

Probation and Ancillary Orders

24The accused will also be placed on probation for three years. In addition to the statutory terms, the accused shall:

• Report to a probation officer within 72 hours of release and thereafter as required.
• Attend for psychiatric and/or psychological assessment/treatment including substance abuse treatment as directed by his probation officer.
• Not to possess or carry any weapons as defined in the Criminal Code.
• Not to associate or hold any communication directly or indirectly with the victim.
• Reside at an address approved by his probation officer.
• Seek gainful employment and/or attend school.
• Abstain from the use of alcohol or non-prescribed drugs.
• Not to associate with anyone known to him to have a youth record or adult criminal record.

25There will be a SOIRA order for 20 years pursuant to section 490.013(2)(b) as well as a section 109 weapons, explosives and ammunition prohibition for 10 years. There will also be a DNA order.