WARNING
The court hearing this matter directs that the following notice 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(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 Information
Ontario Court of Justice
Date: June 14, 2017
Court File No.: Brampton 16-10489
Between:
Her Majesty the Queen
— and —
Kissorie Allen
Before: Justice M.M. Rahman
Sentencing submissions heard on: May 8, 2017
Written Reasons for Sentence released on: June 14, 2017
Counsel:
- Darilynn Allison — counsel for the Crown
- Michael Owoh — counsel for the offender Kissorie Allen
I. Overview
[1] On March 30, 2017, I found the offender, Kissorie Allen, guilty of sexual assault for forcing the victim, M.M., to perform oral sex on him in the stairwell of an apartment building.
[2] The offender has been in custody since his arrest on August 18, 2016. As of today's date he will have served the equivalent of 12 months in custody. His lawyer, Mr. Owoh, asks that I impose a sentence of time served, followed by a period of probation. Crown counsel, Ms Allison, asks that I impose a sentence in the range of 20-26 months less credit for pre-sentence custody, followed by two to three years of probation.
[3] The offender has a related criminal record. Among the ten entries on his record is a prior conviction for sexual assault. When I heard sentencing submissions, I told the parties that I considered the Crown's position low, given the gravity of the offence and the offender's prior record. I alerted them that, having considered the authorities, I was considering imposing a sentence exceeding the Crown's position. I gave them the opportunity to make further submissions.
[4] These reasons explain why I have decided to exceed the Crown's sentencing recommendation.
II. Facts of the Offence
[5] The offender met the victim, M.M., at a bar in the Queen and Sherbourne area of Toronto. M.M. arrived at the bar about 30 minutes before closing time. An acquaintance of M.M. named Pop, whom she knew from the bar, introduced her to the offender. Eventually, the offender invited M.M. to a nearby apartment to continue drinking after the bar closed. M.M. thought that the offender seemed like a nice guy, so she left the bar with him and, initially, with Pop.
[6] At some point during the five-minute walk to the apartment building, Pop was no longer walking with them. The offender and M.M. ended up at an apartment building at S[…] Street. They waited in the vestibule of the building until someone opened the locked door and they were able to enter. Video surveillance footage from the vestibule area showed the offender and M.M. getting along. They appeared to be in good spirits talking and joking with one another. At one point, the offender hugged and kissed M.M.
[7] After entering the interior locked door of the building, the offender and M.M. went into an elevator. The offender pressed the button for a floor. They got off the elevator once it reached that floor. The offender then told M.M. they were on the wrong floor. He led her to the building's stairwell.
[8] Once inside the stairwell, the offender became "mean and aggressive." The offender grabbed M.M.'s head and began swearing at her. He called her a "fucking bitch" and other names. The offender then forced M.M. to perform fellatio on him. M.M. pulled out a condom that she had with her and asked the offender to use it. She explained that if she was going to be sexually assaulted, she at least wanted to ensure she did not catch a disease. The offender agreed to wear the condom at first. M.M. also told the offender that he did not have to force her. She explained that she would rather let the assault happen than be beaten to death.
[9] M.M. said that the offender removed the condom at some point, and continued with the sexual assault. The offender was grabbing M.M.'s head and forcing her to perform fellatio, causing her to choke and gag on his penis. The offender ejaculated in her mouth causing her to spit up and almost vomit.
[10] The offender became angry with M.M. for spitting up his semen. M.M. was scared for her safety because the stairwell area was cement, and she was worried about being beaten badly there. She managed to escape from the stairwell and get to the elevator. The offender followed her into the elevator. As the elevator descended to the ground floor, the offender and M.M. were wrestling and fighting the whole way down. Once the elevator reached the lobby, video surveillance footage showed the offender blocking M.M.'s path in what appeared to be an intimidating way. The video footage then showed the offender and M.M. engaged in a struggle in the lobby area. M.M. eventually broke free and managed to leave the building.
[11] M.M. called 911 after leaving the building. M.M. was crying and sounded distraught throughout the beginning of the call. She became relatively calmer towards the end of the call, but still sounded upset.
III. Circumstances of the Offender
[12] The offender is 33 years old. His pre-sentence report suggests he had a healthy upbringing and good family life. His parents have been married for 38 years. He had a good relationship with his parents and his five siblings. Indeed, while he has been in custody his family visited him at least twice a week and he also speaks with them frequently on the phone. The offender described his family as having good Christian beliefs and never having any involvement with the justice system. He wants to return to his parents' home after he is released from jail.
[13] The offender has been under the care of a psychiatrist in the past. He has been a patient of a Dr. Syed since 2008. Dr. Syed confirmed that the offender has been diagnosed with Bipolar Disorder-Type II and has a strong likelihood of Attention Deficit Hyperactivity Disorder. The pre-sentence report also says that Dr. Syed noted that the offender suffered from "anxiety attacks with agoraphobia which occur intermittently when dealing with stressful or confrontational situations." The offender has not seen Dr. Syed since being incarcerated and said that he has been seeing the psychiatrist at Maplehurst Correctional Centre.
[14] Before finding himself in custody last year, the offender was being supported by the Ontario Disability Support Program for mental health concerns. He has never been consistently employed and the last time he worked was for two weeks last year (he found work through an employment agency).
[15] The offender identified boredom as a trigger for him to engage in high risk behaviour. He told the pre-sentence report's author that when he is bored, he will make the wrong decisions and get himself into trouble. He also suggested that alcohol was to blame for his poor decision making, although he did not identify himself as someone who had an alcohol problem.
[16] The offender has a criminal record consisting of ten convictions. Two of those convictions post-date the commission of this offence so I will not consider them. His record, absent the two most recent convictions, is as follows:
| Date | Offence | Sentence |
|---|---|---|
| 2003-02-27 | Fail to appear s. 145(5); Break & enter with intent s. 348(1)(a) | Suspended sentence & 12 months' probation on each charge (4 days pre-sentence custody) |
| 2009-06-11 | Fail to comply with recognizance s. 145(3) | 7 days jail (2 days pre-sentence custody) |
| 2009-06-23 | Assault with a weapon s. 267(a) | Suspended sentence & 12 months' probation (12 days pre-sentence custody) |
| 2009-09-29 | Assault s. 266 | Suspended sentence & 12 months' probation |
| 2009-09-29 | Sexual assault s. 271 | 1 day jail (43 days pre-sentence custody) & 2 years probation & mandatory prohibition order s.109 |
| 2009-09-29 | Fail to comply with recognizance s. 145(3) | 1 day jail |
| 2009-09-29 | Uttering threats s. 264.1(1)(a) | 1 day jail |
| 2009-09-29 | Fail to comply with recognizance s. 145(3) | 1 day jail |
[17] The most relevant conviction on his record is for sexual assault. That is also the conviction for which he served the most time in custody. That sexual assault was far less invasive than this one. It also involved a stranger. The offender touched a woman in the crotch area while walking through a GO train station.
[18] The Crown also informed me that the offender had been convicted of another sexual offence for which he was to be sentenced the day after I heard sentencing submissions. I agree with Mr. Owoh that it would be inappropriate for me to consider that offence when sentencing the offender because that offence was committed after this offence. Further, I have not been told enough about the circumstances of that offence to know if it is relevant to the limited basis I would be entitled to consider it.
IV. Positions of the Parties
A. Crown's Position
[19] As I said at the outset of these reasons, Crown counsel, Ms Allison, asked that I impose a sentence in the range of 20-26 months, followed by two to three years of probation. She also asked that I impose the following ancillary orders: a DNA order, a SOIRA order for 20 years and a s. 109 order for 10 years.
[20] Ms Allison stressed the gravity of the offence. She cited the use of violence during the offence itself and afterwards as aggravating factors. As well, she cited the offender committing the assault without a condom. Ms Allison also argued that there was an element of planning by the offender, because he tried to get M.M. to a place where she was isolated and could not get help. She said that the most prominent sentencing principles in this case are denunciation and deterrence, especially specific deterrence because of the offender's prior conviction for the same offence.
[21] Ms Allison provided me with eight sentencing authorities. I will not review all of them. As she observed, the cases present a wide range of conduct (some more serious than this case) and a wide range of sentences.
[22] In two cases, R. v. Gandhi and R. v. Ziffle, the offenders received sentences of 18 months for forcing their victims to perform fellatio. The offender in Ziffle pleaded guilty and had a prior, unrelated record. In R. v. J.V.D. the offender was sentenced to 20 months (followed by one year of probation) for forcing his victim on four or five occasions to perform fellatio on him over the course of a month. The offender pleaded guilty. He was in a relationship with the victim and he used "gratuitous violence" leading up to the assaults. Finally, in R. v. Ramcharitar, the 22 year-old offender pleaded guilty and was sentenced to three years for forced vaginal, anal and oral sex on his victim. The offender told the victim he had a knife and a gun. He did not use a condom and ejaculated in her mouth. The trial judge found that the offender had strong prospects for rehabilitation and had shown remorse.
B. Offender's Position
[23] Mr. Owoh, on behalf of the offender, suggested that the time his client has served is sufficient punishment. He suggested that the sentence be followed by two to three years of probation. He took no issue with the ancillary orders sought by the Crown.
[24] Mr. Owoh pointed to a few authorities with what he suggested were more, or equally, serious circumstances that resulted in a similar sentence to the one he is requesting (again I will not review all of them here).
[25] In R. v. Hutchison, the offender received the equivalent of a 22-month sentence on appeal for a single act of fellatio with a nine-year-old victim. The offender was in a position of trust with the vulnerable victim. In R. v. Vincent, the 68-year old first offender was sentenced to 18 months for sexually assaulting his teenaged victim over three days. The assaults consisted of nude massages and fellatio. The offender pleaded guilty, and was remorseful for his crime. In R. v. Manjra, the Court of Appeal upheld a 17-month sentence for first offender who licked or kissed the seven-year old victim's vaginal area. Finally, in R. v. Butt, the court held that a sentence in the range of six to twelve months would have been appropriate for a first offender who pleaded guilty to sexual interference. The offender admitted performing fellatio on a 12-year-old boy whom he lured off the street.
V. Sentencing Principles
[26] The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code:
- 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:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[27] According to s. 718.1 of the Criminal Code, the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principle of proportionality is central to the sentencing process. In R. v. Nasogaluak, the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders:
[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused…Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.
[28] Section 718.2 sets out a non-exhaustive list of secondary sentencing principles that a court must consider in determining the appropriate sentence. Subsection 718.2(a) states that "a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender." That subsection sets out eight statutory aggravating factors. I will not set them out here, because the Crown did not rely on any of them.
[29] Finally, ss. 718.2(b)-(e) set out the following four sentencing principles:
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
[30] As I will explain below, the sentencing principles (and purposes) that deserve prominence in this case are general and specific deterrence, denunciation, and the separation of the offender from society.
VI. Mitigating and Aggravating Factors
[31] There are not many mitigating factors at play here. The offender is relatively young. He appears to have a supportive family, which suggests that he has at least some hope of rehabilitation. Although the pre-sentence report suggests that his family supports his claim to be innocent of this offence, he at least has a supportive family environment to return to upon his release from jail.
[32] There are a number of aggravating factors in this case. In addition to the violence inherent in this offence, the offender wrestled with M.M. in the elevator as she tried to escape him. He also tried to stop her from getting out of the elevator in a menacing and intimidating way. The offender did not use a condom, despite M.M.'s request that he wear one, and he ejaculated in M.M.'s mouth. While I agree with the Crown that there was some degree of planning by the offender, the circumstances do not suggest it was planned too far ahead of time. It is reasonable to conclude that from the time the offender set out for S[…] Street with M.M., he planned to sexually assault her. I draw this conclusion because the offender immediately took M.M. to the stairwell when they entered the building, and forced her to fellate him. That makes it apparent he had no intention of engaging in consensual sexual activity. He took her there to assault her.
VII. The Appropriate Sentence
[33] In my view the gravity of this offence, combined with the offender's prior criminal record, requires a sentence that exceeds the Crown's position. A fit sentence for this offence and this offender is one of three years.
[34] The Crown's position in this case was informed by the fact that this offence involved oral, rather than vaginal, penetration. During sentencing submissions, I asked Crown counsel what her sentencing position would have been had the offender vaginally penetrated M.M. Her response was that it would have been higher and that three years would likely have been the low end of the range. She correctly observed that the authorities seem to support the distinction in seriousness, at least in their results, between oral penetration and vaginal penetration. I am unable to draw such a distinction in the circumstances of this case.
[35] I recognize that sexual assaults involving vaginal penetration pose different risks than those involving oral penetration, including an increased chance of disease transmission, and internal injuries. However, I do not think which part of a victim's body is the subject of a sexual assault should have such a large bearing on the range of sentence, where an offender commits what is otherwise a violent and invasive sexual assault. The presence or absence of vaginal penetration as a major factor that moves a sentence in or out of the penitentiary range may be seen as trivializing serious sexual assaults like the one committed by the offender. Parliament repealed the crime of rape over 30 years ago. It does not seem appropriate to re-create it judicially by putting "rapes" in a different category than other sexual assaults.
[36] Rather than focusing on which part of a victim's body was attacked, it seems more logical to look at the full picture of the assault and its aggravating features, including the degree of violence involved. This was a violent and invasive sexual assault. Before the offender forced M.M. to take his penis in her mouth he grabbed her head and hair and called her a "fucking bitch" and other names. He caused her to gag and choke on his penis. He did not wear a condom even though she made one available to him and asked him to use it. The offender then made M.M. suffer the further indignity of ejaculating in her mouth. He then got angry with her for spitting out his semen. All the while, M.M. was worried she would be beaten, possibly to death, in a cement stairwell. His actions demonstrated a desire to degrade and humiliate M.M. I see no reason that the offender's crime here should not be treated so differently than those offences involving vaginal penetration.
[37] A serious, invasive sexual assault like this one requires a strong denunciatory sentence. In R. v. Thurairajah, the Court of Appeal stressed the importance of denunciation in serious sexual assault cases:
The emphasis to be placed on denunciation and to a lesser extent general deterrence, grows with the seriousness of the particular circumstances surrounding the sexual assault, for which an accused, even a young accused, is being sentenced.
[38] Despite the absence of a victim impact statement from M.M., I can infer that this offence would have had a significant effect on her. I heard her distraught 911 call to police immediately after she had been assaulted. Moreover, it cannot be gainsaid that the crime of sexual assault has a profound effect on its victims. As Hill J. observed in R. v. M.A.:
The crime of sexual assault is an offence of violence against the person. It manifests elements of degradation and domination. It is characterized by immediate physical trauma to the victim and the more pernicious and long-lasting psychological and emotional devastation as suffered by the complainant in the instant case.
[39] Apart from the gravity of the offence, the offender's criminal record is also a factor that brings this sentence above the range suggested by the Crown. The offender has a prior conviction for sexual assault. At the time he assaulted M.M., that conviction was just over a year old. Although that sexual assault was far less serious than this one, it was also committed against a stranger. He also has two convictions for assault (once with a weapon), and a conviction for uttering threats. The sentences in those cases suggest that the offences were not serious. Nonetheless, the record speaks to the offender's history of violence and threatening violence.
[40] In considering the criminal record, I recognize that an offender should not be punished again for those crimes. However, a criminal record is an aggravating factor on sentence, and may justify a stiffer sentence, because "of what it tells the trial judge and society about the need for specific deterrence, the chance of successful rehabilitation, and the likelihood of recidivism."
[41] The offender's criminal record justifies an increase in his sentence to further the goal of specific deterrence. It also fulfils the objective of separating a repeat offender from society. The offender's record, and this offence, demonstrate his propensity for violence. He is the type offender from whom society needs to be protected.
[42] Finally, I do not think that the jump principle has any application in this as Mr. Owoh suggested. As the Court of Appeal stated in R. v. Borde, that principle has little application where the severity of the offender's crimes show a dramatic increase in violence of seriousness. This is just such a case.
[43] The aggravating factors in this case call for a stiff sentence. In my view, a sentence of three years is fit given the circumstances of the offence and the offender. It is proportionate to the offender's degree of responsibility.
VIII. Conclusion
[44] The offender is sentenced to two years less a day. The information will reflect the equivalent of 12 months pre-sentence custody.
[45] After he serves his jail sentence he will be on probation for three years. In addition to the statutory terms, I add the following terms:
(1) The offender will report in person to a probation officer within five (5) working days of his release from custody and after that at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision.
(2) He must not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means with M.M.
(3) He must attend and actively participate in all assessment counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer.
(4) He shall sign any release of information forms as will enable his probation officer to monitor his attendance and completion of any assessments, counselling or rehabilitative programs as directed.
(5) He shall provide proof of his attendance and completion of any assessments, counselling or rehabilitative programs as directed.
(6) He shall not possess any weapons defined by the Criminal Code.
[46] I am also making the following ancillary orders:
(1) An order under s. 487.051 requiring him to provide bodily samples for the purpose of forensic DNA analysis.
(2) An order under ss. 490.012 requiring him to comply with the Sex Offender Information Registration Act for 20 years.
(3) An order under s. 109(1)(a) prohibiting him from possessing firearms and other items described in s. 109(2) for life.
[47] I am also making an order s. 743.21 of the Criminal Code, prohibiting the offender from having contact with M.M. while he serves his jail sentence.
Released: June 14, 2017
Justice M. M. Rahman
