Ontario Court of Justice

Date: 2018-05-14 Court File No.: Newmarket 15-06243

Between:

Her Majesty the Queen

— AND —

AMW

Sentencing

Evidence and Submissions on Sentencing: 14 May, 2018 Delivered: 14 May, 2018

Counsel:

• Mr. Tony Vanden Ende, counsel for the Crown
• Ms. Saara Wilson, counsel for the defendant

KENKEL J.:

Introduction

[1] This case began with a 911 call made by AMW's friend and former co-worker. He told the operator that AMW was choking his former girlfriend. Police arrived to find AMW outside chasing after his girlfriend who was holding a baby. She had red marks around her neck. AMW was in an enraged state and refused to follow the directions of the officer. He fought the police to attempt to prevent his arrest and it took several officers to subdue him. Even after arrest he was verbally abusive in a plain attempt to intimidate the officer, all recorded on the in-car video. At the station the complainant described the assault by choking that happened that day, and she revealed that on a prior occasion she'd been tied up and subjected to forced anal intercourse. AMW was convicted of Assault and Assault Resist Arrest in relation to the day of arrest, and of Sexual Assault and Forcible Confinement in relation to the prior incident. A further count of assault was dismissed.

[2] The defence requested a sentence of two years less one day with probation to follow. The Crown joined in the request for two years less one day but asked for the maximum term of probation with appropriate ancillary orders.

Analysis

[3] The sentence imposed in this case must be a just sanction that protects society in general, denounces the offences and discourages others from committing similar crimes. The sentence must protect the particular victim in this case, promote a sense of responsibility in AMW for his offences and encourage his rehabilitation – s.718 Criminal Code. With respect to the Assault Resisting Arrest, the primary focus is on denunciation and deterrence of that conduct against those who work to protect the community and are exposed to unnecessary violence in their work – s.718.02. Even though the other offences involve a former girlfriend, the fact that they were still living together and that the offences occurred in a domestic context of trust I find is an aggravating circumstance – s.718.2. The impact of the sexual assault and assault on the victim is also an important consideration. The sentence must be proportionate to the gravity of the offences and the degree of responsibility of the offender. Even for such serious offences, the least restrictive sentence that meets these principles should be imposed.

[4] The circumstances of the offences are serious. AMW tied up his former girlfriend and engaged in anal sex with her without her consent. He did not use any lubrication or preparation. He admitted in his evidence that the complainant was, "obviously upset" afterwards. On a subsequent day he choked the victim during an argument then fought with the police officers who tried to calm him down and place him under arrest.

[5] The offences have had a significant ongoing impact on the victim. She's had nightmares and is still fearful of the accused. She's unable to trust others and she believes that it will be difficult for her to form an emotional and physical relationship with a new partner.

[6] The accused has no prior criminal record. He was 25 years old at the time of his arrest. He's been steadily employed and there's no history of drug or alcohol abuse. He's been on judicial interim release with some non-communication restrictions since August of 2015. It's not alleged there's been any breach of those conditions. He has moved on to another relationship. AMW engaged in treatment for anxiety and depression from June of 2016 to June of 2017, but according to the Pre-Sentence Report (PSR) he stopped seeing his doctor at that time and hasn't been back. His doctor recommends that he return for continued monitoring of his condition. This may well be important given his mother's observation that the treatment "greatly improved" his ability to cope with stress.

[7] AMW does not accept responsibility for the offences. From the time of his arrest to the present he puts the blame for his actions on others. With respect to both incidents he was controlling and manipulative with the complainant and the officers. Even in his letter of apology for the violent incident with police there is a minimal two-sentence expression of regret. The remaining 7 sentences are focused on himself, with an expressed hope that the letter to the police will lead to a sentence of probation for him as opposed to incarceration. This self-focus lacks insight. There's no evidence AMW has reflected on his behaviour, identified the factors that led to the offences and considered what steps he could take to address those issues. I find a lengthy period of probation is required in this case, in part to direct his attention to these issues and compel him to take active steps to address those problems.

[8] The fact of a joint submission is important in this case. Even considering the fact that the accused is a first offender, a sentence of two years less one day for forced anal intercourse where the victim was bound and forcibly confined is at the lowest end of the range for these offences. Considering the further violence against the victim and the officers on the day of arrest, a penitentiary sentence could easily have resulted. I find the global sentence proposed gives generous effect to every mitigating factor identified by both parties, but is not so low that it must be rejected as unfit. Combined with a maximum period of probation it is the least restrictive sentence that could be imposed in these circumstances, but one that addresses all of the sentencing factors including rehabilitation.

[9] I find the maximum period of probation is required to address the accused's lack of insight into the behaviour that led to the offences and the impact of those offences on others. It's also important that he complete PARS or similar domestic counselling since he's already involved in a new relationship. Given his positive response to medical counselling and treatment for anxiety and depression it's necessary he return to see his doctor. Finally, the complainant is entitled to the ongoing protection of boundaries and contact restrictions for the maximum period.

Conclusion

[10] AMW will serve a custodial sentence of two years less one day with three years' probation to follow. In addition to the statutory terms he will:

• Report to probation as required
• Reside at an address approved of by probation
• Take PARS or other counselling for domestic violence as directed by probation
• Resume and continue counselling for anxiety and depression as directed by probation
• Sign any releases necessary to monitor any counselling pursuant to this order
• Not possess any weapons or firearms
• Not have any contact with the complainant RB directly or indirectly except pursuant to Family Court order or through the Family Responsibilities Office for the purpose of child support or through Child Protection Services for the purpose of child access
• Not to have any contact with his child TAB unless pursuant to a Family Court order or through Child Protection Services
• Not attend within 200m of any known place of residence, employment or education of RB or TAB

[11] In addition to the probationary terms there will be a non-communication order with the victim RB while the accused is in custody s.743.21(1). For the Forcible Confinement count and Sexual Assault where the Crown proceeded by Indictment there is a mandatory s.109 order prohibiting possession of firearms and other items set out in that section for 10 years and prohibited and restricted firearms and further similar items for life. Sexual Assault and Forcible Confinement are a primary compulsory DNA offences under s.487.04 of the Criminal Code. Assault and Assault police are enumerated secondary DNA offences. I find it necessary in the public interest to make DNA orders with respect to all four offences.

[12] The Crown submits that a mandatory SOIRA order for life applies given the fact of multiple offences s.490.013(2.1). In this case there has been a conviction for a designated offence of Sexual Assault. The accused was also convicted of Forcible Confinement s.279(2). The Crown submits that reference in s.490.011 to section 279 with the words (kidnapping) refers not just to that offence but to all s.279 offences. I understand the Crown's argument, but I find this interpretation is not consistent with the treatment of other offences in s.490.11. For other offences where one section includes multiple offences, section 490.011 enumerates those offences to which it applies. For example: two offences enumerated for s.160, two offences enumerated for s.171.1, four offences enumerated for s.212 etc. Given the maximum sentence for both offences I find a mandatory SOIRA order for 20 years applies. Finally, a Victim Fine Surcharge applies to each offence. AMW will have 30 months to pay those amounts.

Delivered: May 14, 2018

Justice Joseph F. Kenkel