SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN ‑ and ‑ MILAN MITROVIC

REASONS FOR SENTENCE

‑‑ Before the HONOURABLE MADAM JUSTICE MOLLOY, at 361 University Ave, CR 4‑4, Toronto, Ontario, on the 28th day of February, 2017

APPEARANCES:

MR. M. GALLUZZO -- for the Crown MR. M. MCKEE -- for the defence

PURSUANT TO AN ORDER OF THE HONOURABLE MADAM JUSTICE MOLLOY, THE NAME OF THE COMPLAINANT IN THIS MATTER IS PROHIBITED FROM PUBLICATION UNDER S. 486.4 OF THE CRIMINAL CODE

TUESDAY, FEBRUARY 28, 2017

REASONS FOR SENTENCE

Molloy J. (Orally):

A. Introduction

On December 15th, 2016, I convicted Milan Mitrovic of sexual assault on the complainant ("A.A.") at her home in Toronto on March 23rd, 2014.

It is now my task to sentence Mr. Mitrovic for this offence. The Crown seeks a sentence of 4 years. In addition, the Crown seeks the following ancillary orders: a DNA order; a s. 110 prohibition order for 10 years; an order prohibiting communication with the complainant under s. 743.21 of the Criminal Code; and an SOIRA registration for 20 years. The defence takes no issue with the ancillary orders sought, but submits that the appropriate sentence is between 18 and 22 months and asks for a recommendation that Mr. Mitrovic be placed in the Ontario Correctional Institute ("OCI") because of the programming available.

B. Circumstances of the Offence

On March 22nd to 23rd, 2014, the complainant had been at a party in her apartment building where she had consumed an unwise quantity of alcohol and cocaine and then taken two pills – an antidepressant and a sleeping pill. She then returned to her own apartment a few hours after midnight. She was feeling very unwell and was afraid to be alone. She called Mr. Mitrovic, who was a platonic friend, and he agreed to come to her apartment. The complainant believed he was coming as a friend to make sure she was all right. Mr. Mitrovic, however, went there with the intention of having sex with A.A.

After he arrived, Mr. Mitrovic made some sexual advances towards A.A. which she rebuffed. Shortly afterwards, she passed out on her bed. While she was unconscious, Mr. Mitrovic unzipped her sweater in the front, ripped open the front of her bra and tore a hole in the crotch of her tights. He pulled her tampon out and threw it across the room. A.A. woke up to find Mr. Mitrovic naked in her bed with his penis inside her vagina. She screamed and pushed him away and Mr. Mitrovic left the room. He returned moments later, rummaged through the sheets and retrieved a used condom. He taunted her by saying, "Good luck with your DNA evidence."

As Mr. Mitrovic was driving home from Ms. A.'s apartment he exchanged text messages with her in which he again taunted her, writing "Good luck with the rape kit" and "Amazing how much detail you remember for an unconscious bitch."

Apart from the violation of the rape itself, A.A. was not physically harmed. However, she was emotionally devastated during the hours and days after the attack and has suffered substantial psychological harm which, while gradually lessening over time, remains ongoing. Some of the psychological harm will likely be permanent.

C. Circumstances of the Accused

Mr. Mitrovic is now 45 years old. He was born in Serbia but has lived in Canada with his family since 1981 and has been a Canadian citizen since 1987. He has a close relationship with his mother and his brother Jerry. He is currently in a relationship with a woman he started dating in July 2014 (4 months after the sexual assault on A.A.). They apparently had known each other 12 to 14 years before they started dating. His girlfriend denies that he has ever been emotionally, physically or sexually abusive with her. His brother Jerry acknowledged that Mr. Mitrovic could be "physically aggressive" towards women, but believed he would never force himself on a woman without her consent. His mother described him as "very nice" with a "good heart", and said he was not the "type of person that would hurt anybody". His mother did, however, acknowledge her son's criminal record which included assaults on domestic partners.

Mr. Mitrovic has a lengthy and alarming criminal record commencing in 1992 with a conviction for assault with a weapon, the victim in that case being a woman he was involved with. It would appear that he was about 18 or 19 at the time this offence was committed. He was also convicted in 1992 of breaking his recognizance with respect to that same criminal charge.

His criminal history includes some property crimes, but the vast majority of his convictions are crimes of violence, almost all of which are against women with whom he was, or had been, in some sort of a relationship. The balance of the record is as follows: June 15th, 1998, assault and failing to comply with recognizance for which he was sentenced to 1 day plus probation of 14 months after a credit for 49 days pretrial custody; November 24th, 1998, assault causing bodily harm and possession of property obtained by crime over $5,000 for which he was sentenced to 60 days plus 18 months’ probation; July 23rd, 1999, assault for which he was sentenced to 3 months plus 2 years probation; July 25th, 2000, assault causing bodily harm, mischief under $5,000 and fail to comply with probation order for which he was sentenced to 60 days after 87 days presentence custody plus probation of 18 months and a further 1 month on each other charge consecutive; December 3rd, 2001, attempted theft under $5,000 for which he was sentenced to a $500 fine; March 5th, 2007, criminal harassment and extortion for which he was sentenced to a 1 year conditional sentence; December 16th, 2010, two counts of mischief under $5,000 for which he received a suspended sentence and 12 months probation; February 19th, 2013, two counts of assault for which he was sentenced to 60 days intermittent and 18 months probation.

It is worth noting that the last conviction for two counts of assault on a former girlfriend was entered on February 19th, 2013. He was sentenced to 60 days intermittent and 18 months probation. On March 23rd, 2014 when he sexually assaulted A.A., he would still have been on probation from that most recent domestic assault conviction.

Mr. Mitrovic was in a serious motorcycle accident in May 2011 in which he sustained multiple injuries including the dislocation of his left shoulder. He continues to have difficulty, pain and weakness with his left shoulder and arm, as well as back pain. He was unable to work for a while, but since then has been running his own on‑line business designing and selling T‑shirts. He also testified at trial that prior to his accident he had "worked security" for a "gentleman" in Toronto. In the Pre‑Sentence Report he is reported to have described this as being a bodyguard.

D. Mitigating Factors

Mr. Mitrovic is employed. He has the support of his mother and brother as well as his current girlfriend, all of whom believe the sexual assault in this case did not happen. His mother believes that he is the type of person who would never hurt anybody. That belief is belied not only by the current conviction but by the extensive criminal record Mr. Mitrovic has amassed demonstrating a history of violence, particularly against women. It is, therefore, difficult to put much value on his familial support. Although the defence filed medical reports with respect to Mr. Mitrovic's motorcycle accident, I fail to see why this should be considered a mitigating factor. I accept he has some residual discomfort from those injuries, but nothing of the sort that would warrant a reduction in sentence.

In his submissions, defence counsel pointed to a number of factors which he suggested were mitigating, including the following:

(i) A.A. was a fragile person who had previously been on medication for anxiety or depression and that her reaction to the assault was "not surprising" given those pre‑existing conditions; (ii) no breach of trust was involved; (iii) there were no physical injuries and no gratuitous violence; (iv) Mr. Mitrovic used a condom and there was no ejaculation; (v) Mr. Mitrovic did not administer the noxious substance that rendered Ms. A. unconscious; (vi) this was not a planned act; (vii) the criminal record was somewhat dated, with a gap before the current offence.

None of these are mitigating factors. Some of them are the absence of factors that, if present, would be aggravating. Some are actually aggravating. Some are simply wrong. I will deal with them in order.

(i) Ms. A. did have a history of anxiety. She was indeed in a particularly vulnerable position. This, however, was known to Mr. Mitrovic before he took advantage of her in the way he did. In any event, even if he did not know of her particular vulnerability, his brutal assault caused her serious harm. It is not mitigating that her psychological trauma was greater than others might have experienced. On the contrary, this is aggravating.

(ii) The absence of a relationship of trust is not a mitigating factor. If there was a trust relationship that would be deemed to be an aggravating factor under s. 718.2(a)(iii) of the Criminal Code. In this case, the Crown did not argue that this section of the Criminal Code was triggered but pointed out that Mr. Mitrovic was a trusted friend who Ms. A. believed had come to help her when she was unwell, vulnerable and scared. The Crown argued that in taking advantage of her vulnerable state, Mr. Mitrovic violated the trust she placed in him and submitted that this is aggravating in the same way as the breach of a traditional trust relationship. I agree with the Crown's position that the relationship between the offender and the complainant and the particular vulnerability of the complainant in the case is an aggravating factor.

(iii) I agree that there was no gratuitous violence beyond what was necessary to accomplish the assault. That is not mitigating. It is the absence of an aggravating factor.

(iv) I accept that Mr. Mitrovic wore a condom. I do not know whether he ejaculated. The complainant was unconscious at the time. However, I do note that Mr. Mitrovic felt it prudent to retrieve the used condom from Ms. A.'s bed and twice taunted her about that, one of those times in writing. In any event, there was full penetration and sufficient rough handling to tear clothing. This is not mitigating.

(v) It is true that Mr. Mitrovic did not administer a noxious substance in order to render Ms. A. unconscious so that he could assault her. He was not charged with that. He was charged with sexual assault. Ms. A. was unconscious as a result of the substances she herself took. Mr. Mitrovic took advantage of her state to have sex with her after she had refused him while conscious. Again, this is not a mitigating factor. It would simply be worse if Mr. Mitrovic had contributed to her unconscious state.

(vi) Lack of planning and deliberation is not a mitigating factor. It could be the absence of an aggravating factor except that this was a planned act. Mr. Mitrovic knew that Ms. A. was vulnerable and alone and wanted help. He drove to her Toronto apartment from his home in Etobicoke with the intention of having sex with her. He testified that there would only be two possible reasons for him to drive that distance at that hour of the night: money or sex. When Ms. A. didn't consent to the sex, he had sex with her anyway.

(vii) Mr. Mitrovic's criminal record was not dated. His last conviction was on February 19, 2013. Defence counsel points to the fact that this related to an offence that occurred in January 2011. That is true. However, Mr. Mitrovic was in a serious accident in May 2011. He was in hospital for a period of time and then undergoing physiotherapy. He had surgery on his shoulder in January 2012. He would have then had a further period of recuperation. It is scarcely surprising that he did not assault anybody during that period of time. He was sentenced on February 19, 2013 and part of his sentence was 18 months probation. He sexually assaulted Ms. A. 13 months after sentencing which was during that probation period. I would hardly consider that to be a "gap" in his record.

E. Aggravating Factors

I consider Mr. Mitrovic's criminal record to be a seriously aggravating factor, particularly given the alarming number of assaults on various different women. Mr. Mitrovic told the probation officer who prepared the Pre‑Sentence Report that he has had "a couple hundred" sexual partners, of which 20 percent were women he had sex with just after meeting them. Detective Wilson, when interviewed by the probation officer for the Pre‑Sentence Report, noted that Mr. Mitrovic "displays misogynist behaviours", citing his history of lashing out in anger and assaulting women in his life, his complete lack of remorse, and his attitude toward the complainant at trial and during the preliminary hearing which she described as "pompous and self assured, often laughing during the victim's testimony."

I also noted that swaggering pompous attitude in the courtroom and saw Mr. Mitrovic smirking during portions of the complainant's testimony.

The absence of remorse is not an aggravating factor. The offender is entitled to stand by his assertion of his own innocence. However, the absence of remorse means Mr. Mitrovic does not have the benefit of that as a mitigating factor and it can be a factor which distinguishes his situation from some of the cases on sentencing that are on the more lenient side.

Furthermore, Mr. Mitrovic's overall attitude is a concern generally and specifically with respect to his likelihood to reoffend violently against women.

It is an aggravating factor that Ms. A. was in a vulnerable state and that Mr. Mitrovic deliberately took advantage of that to rape her while she was unconscious. His callous attitude afterwards, as, for example, in his text messages, is also aggravating.

F. Denunciation and Deterrence

This was a violent crime with terrible consequences for the victim who was extremely vulnerable.

As such, denunciation is an important factor in sentencing, as is general deterrence for other potential offenders.

Mr. Mitrovic, despite his numerous convictions for assaulting women, does not seem to have gotten the message that such conduct simply will not be tolerated. His violent conduct has escalated. His attitude of misogyny has not improved. He has had numerous sentences that were measured in months rather than years which appears to have done nothing to curb his violence. Specific deterrence would warrant a more severe sentence for this offence.

G. Rehabilitation

Mr. Mitrovic's counsel urged a sentence of less than two years and asked me to recommend that Mr. Mitrovic serve that time at OCI so that he could avail himself of rehabilitative programming.

I agree that rehabilitation is an important consideration as I have serious concerns that without an attitude change Mr. Mitrovic is at real risk to reoffend in a violent way. However, I was given no evidence or submissions as to specific programs available at OCI that are not available in the federal penitentiary system. Defence counsel suggested a program for alcohol abuse. Although Mr. Mitrovic denies ongoing issues with respect to alcohol abuse, I agree that his history suggests otherwise. I note in particular a recent accident in which he attempted to walk on a wall while heavily intoxicated and sustained a broken left ankle, a sprained right ankle, a tailbone injury and a concussion when he fell off. Counselling for substance abuse is a good idea, but I know it is available in the federal system.

Defence counsel also suggested a program for reconstructing cognitive thinking. I am not sure how effective that would be for a 45‑year‑old offender with Mr. Mitrovic's history. However, I agree it should at least be tried. Again, there is nothing to suggest that this type of programming would not be available in the federal system.

Finally, although not specifically suggested by counsel, I would hope to see some programming directed towards sexual offences and violence against women. Those programs are available in the federal penitentiary system. There is nothing about these kinds of rehabilitative programs that would require a sentence of less than 2 years. On the contrary, a longer period of treatment is more likely to be productive.

I would not increase the sentence from what would otherwise be appropriate in order to address rehabilitation, but neither would I reduce it.

H. Parity in Sentencing

As much as possible, an offender should receive a similar offence to those imposed on similar offenders for similar offences in similar circumstances. This is, of course, the abstract ideal but it is difficult to apply in the concrete world where no two offenders and no two offences are ever exactly the same. Nevertheless, consistency in sentencing is an important principle and it is necessary, therefore, to look at and compare the sentences imposed in other cases.

On the whole, I found the cases cited by the Crown to be similar to the case before me and indicative of the appropriate range for offences of this nature.

It is, of course, always possible to find some outliers and I find the cases cited by the defence to either be outliers or distinguishable on their facts.

I will start with the three cases cited by the defence.

R. v. D., 2015 ONSC 1312, is a decision of Lalonde J. of this court. The offender was 20 years old at the time of the offence. He had drunk to excess and smoked marijuana and the complainant, who was a friend but not a romantic partner, allowed him to sleep over in her apartment on a mattress on the floor. During the night he got into bed with the complainant and proceeded to have intercourse with her while she was asleep. The Crown sought a sentence of 2 years less a day plus 2 years probation. Justice Lalonde imposed a sentence of 12 months, plus 2 years probation. The sentencing judge was clearly impressed with the otherwise good character of the offender. He showed deep and genuine remorse, attributing his conduct to the influence of alcohol and drugs. He was 20 years old, had done well in high school and had scholarships for university. He had no prior criminal record. The Pre‑Sentence Report was very positive and numerous witnesses gave evidence of the offender's good character. Apart from the fact that the complainant was asleep, there are no similarities between that case and the circumstances of Mr. Mitrovic's offence.

The defence also relies on the decision of Justice Caldwell of the Ontario Court of Justice in R. v. Correa, 2011 ONCJ 409. I note that the sentence imposed was 16 months, but that this was the sentence sought by the Crown. The accused had absconded after trial and was believed to be in Brazil. He was sentenced in absentia. He did not testify at trial. There was no Pre‑Sentence Report. The trial judge had very little information about his antecedents except that he had no criminal record. As such, this case is of little or no precedential value.

Finally, the defence relies on the Ontario Court of Appeal decision in R. v. Colbourne, 2013 ONCA 308. The accused had been found guilty of sexually assaulting a young woman who was drunk and passed out at a party. He appealed his conviction and also the 14 month sentence imposed on the grounds that it was "overly harsh and long". There was no cross appeal by the Crown with respect to the sentence. The Court of Appeal dismissed the appeal against conviction for brief reasons of 16 paragraphs. The appeal against sentence was also dismissed in one cryptic paragraph as follows:

The sentencing judge was alive to the appellant's health condition and personal circumstances. The appellant has not shown any error in principle that would warrant interference with the sentence. If anything the sentence was at the low end of the range.

It is not possible to determine the basis for the 14 month sentence and what role the appellant's health condition and personal circumstances played in that. However, I do not take this decision as an overall precedent for expanding what otherwise might be the range for offences comparable to that committed by Mr. Mitrovic.

I find the decisions cited by the Crown to be on point and persuasive. In my view, the cases establish that the general range for offences of this nature is between 3 and 5 years although (as I have said already) there will always be exceptional cases and outliers that go beyond either end of the range.

I agree, in this regard, with the conclusion of Lacelle J. of this court in R. v. D. L., 2016 ONSC, in which he identified the range for sentence at being between 3 to 5 years. I note in particular his observations with respect to the Colbourne decision at paragraph 47, as follows:

The cases of Colbourne and Garett are anomalous and turn on their own facts. They are outside of the appropriate range of sentence on the facts at issue here. Garett is the only appellate authority provided by the defence which endorses a sentence below the three to five year range identified in Bradley. However, the Court of Appeal was careful in that case to clarify that in substituting an 18 month sentence for the 90 day sentence imposed by the trial judge in Garett, that sentence was not within the appropriate range of sentence. Its language at paragraph 23 is clear: "The sentence imposed by this court should not be taken as a sentence within the appropriate or usual range. We are constrained in this regard by the Crown's position at trial".

In D. L., the offender was sentenced to 5 years. He had a worse criminal record than Mr. Mitrovic and the sexual assault was more brutal. On the other hand, Mr. D.L. had mitigating factors that are not present for Mr. Mitrovic.

The position taken by the Crown before me is that the range for sentences of this nature is between 2 and 5 years and that sentences in the 2 to 3 year range are warranted only when there are mitigating factors such as no prior criminal record. There is considerable merit to that analysis. However, and although it does not affect my ultimate decision as to the appropriate sentence for Mr. Mitrovic, I see the range as being 3 to 5 years. Any range of sentence is merely a guideline and individual cases may go above or below the range, depending on aggravating and mitigating factors. There are sentences that fall below 3 years, but only where there are exceptional circumstances. I also note that in my view the trend in more recent years is towards longer sentences in cases of serious sexual assault.

In R. v. Rand, 2012 ONCA 731, the Ontario Court of Appeal upheld a 4 year sentence for an offender who was 27 years old and was convicted of sexually assaulting a very intoxicated 17‑year‑old at an open‑air rock concert. After some flirting and consensual kissing, the offender took the young woman into some bushes and had unprotected vaginal and anal intercourse with her without her consent, as well as forcing her to perform oral sex on him. The offender had a prior record that included crimes of dishonesty and crimes of violence including assault, assault with a weapon and assault with intent to resist arrest. Two of the assault convictions were for domestic violence. In a brief reasons upholding the 4 year sentence, the Court of Appeal stated that it was "well within the appropriate range".

The offender in Rand was only 27 and would therefore be characterized as somewhat youthful, a mitigating factor Mr. Mitrovic does not have. His criminal record was not as lengthy, but similar in nature to that of Mr. Mitrovic. The sexual assault in Rand was preceded by some consensual sexual contact, which does not condone the subsequent sexual assault, but does distinguish it from this case where the complainant never consented to anything at all. On the other hand, the actual assault in Rand was more brutal in nature. I find that these factors balance out such that Mr. Mitrovic is deserving of a similar sentence to Mr. Rand.

In R. v. A.(S.), 2014 ONCA 266, the Court of Appeal upheld the trial judge's 5 year sentence for sexual assault. The offender in that case had committed two separate sexual assaults, each involving a different complainant. In each case, the offence was premeditated. The offender knew both his victims and took them to secluded locations where he threatened them and forced them to perform oral sex on him. He did not use a condom and ejaculated on the complainants, which was found to be an aggravating factor on sentencing. He threatened vaginal penetration but was unable to maintain an erection. The trial judge reviewed cases going back to 2000 and concluded that he retained a great deal of discretion but that "the range accepted by the Court of Appeal for serious sexual assaults involving a single victim goes from mid‑reformatory to at least six years" (2013 ONSC 1961 at para. 19).

There were considerable mitigating factors in that case, most notably that the offender was only 23 years old at the time and had no prior criminal record. In that regard, his circumstances were markedly different from those of Mr. Mitrovic, a 45‑year‑old repeat offender with a long history of violence against women. I also note that in the S.(A.) case, there was no actual penetration of the victims, although both crimes were accompanied by threats of physical violence. Also, there were two victims, not just one.

In defining the range, however, the trial judge was referring to a serious sexual assault on a single victim. The Court of Appeal upheld the 5 year sentence as appropriate even though the appellant was a 23‑year‑old first offender. What is important for purposes of this case, however, is the Court of Appeal's specific disavowal of the trial judge's suggested range. The Court of Appeal held at para. 1:

The only error by the trial judge was to suggest that the range for these types of offences could be as low as reformatory. The offences involved in this case required a penitentiary sentence of some length. Given the circumstances in this case, the sentence imposed was lenient and reflected the appellant's relative youth and lack of record.

The Crown also referred to the Court of Appeal's 2008 decision in R. v. R.(J.), 2008 ONCA 200. I do not regard that decision as establishing a normal range for these kinds of offences that goes down to 2 years. There were two accused in that case: J.R. and J.D. Both had sex with the complainant at a party where everybody was drinking. The trial judge found that the complainant was so incapacitated at the time of the incident that she was incapable of consenting to the intercourse that occurred. J.D. was a good friend of the complainant and took advantage of her vulnerable state. J.R. simply took advantage of the situation that arose. Although the personal circumstances of the two accused were quite different, the Crown sought the same sentence of 2 years against each of them. Both accused appealed their convictions unsuccessfully. J.R. sought to have his 2 year sentence reduced to 2 years less a day so as to preserve his right of appeal in his immigration proceedings. The Crown consented and the Court of Appeal therefore varied his sentence accordingly.

J.D. appealed his sentence on the grounds that he should have received a lesser sentence than J.R. in light of their different circumstances. J.R. had a lengthy criminal record and his Pre‑Sentence Report stated that he possessed an attitude of entitlement towards women and was likely to reoffend. On the other hand, J.D. had no criminal record and had an aboriginal background and a positive Gladue report. He had been steadily employed, had done significant volunteer work and had an excellent character reference from his church ministry. The Court of Appeal agreed that normally J.D.'s sentence should have been lower than J.R.'s, but nevertheless held that it would not go below 2 years in these circumstances.

The Court held at para. 25:

I agree with the appellant J.D. that in most circumstances, he should have received a lower sentence than his co‑accused, given the significant differences in their antecedents, respective characters, and prospects for rehabilitation. However, in my view, in the circumstances of this case, where each man took advantage of the complainant when she was incapacitated, leaving her in a state where she woke up naked, helpless, and alone on the bathroom floor of the hotel room, the two‑year sentence is at the low end of the appropriate range of sentence. The appellant J.R. hardly knew the complainant and took advantage of her, while the appellant J.D. was her good friend and did the same thing. Both engaged in reprehensible criminal conduct. In these circumstances, there is no basis to impose a lower sentence than two years on the appellant J.D.

In my view, very little can be taken from this case with respect to the appropriate range in light of the Crown's position at trial that 2 years was an appropriate sentence for J.R. It is apparent from the reasons of the Court of Appeal that a longer sentence for J.R. would have likely been upheld, and perhaps even a longer sentence for J.D. However, J.D. had significant mitigating factors that do not apply to Mr. Mitrovic. He deserves a sentence considerably higher than J.D., even if 2 years for J.D. is considered appropriate.

Other decisions that I have considered helpful on the issue of the appropriate range of sentence are decisions of the Courts of Appeal of Alberta and The Northwest Territories. In the Alberta cases, the Court of Appeal set a 3 year sentence as the starting point "for an adult person who commits a serious sexual assault". R. v. Sandercock, (1985), 1985 ABCA 218, 40 Alta L.R. (2d) 265; R. v. Law, 2007 ABCA 205; R. v. Arcand, 2010 ABCA 363. In describing the range, the Alberta Court of Appeal stated in R. v. Law (at paras. 64 to 65):

The three year starting point was selected in Sandercock based upon precedents from Alberta and elsewhere as applicable to a mature person with no concerning legal history. Room was left above three years for persons like Sandercock himself who were not first offenders — the maximums being 10 years, 14 years and life imprisonment for the variants of the sexual assault. One effect of Sandercock was also to require trial judges to discern a principled reason or reasons to go higher than the starting point. In that sense, M.(C.A.) pointed out that denunciation (which is associated with evaluation of moral culpability) may actually restrain the effect of general deterrence.

The starting point approach also acknowledges the ability to go lower. One can imagine circumstances specific to the offender, such as immaturity, mental disability or special characteristics touching on how the sentence would affect the offender, which a court might consider. One can imagine other circumstances such as genuine and immediate remorse, acceptance of responsibility, spontaneous efforts to make amends and a prompt guilty plea and so on. Other considerations could arise. As none of these apply here it is not necessary to comment on what their effect on sentence might be. It is, however, realistic to say that the starting point is not a minimum sentence.

Similarly, the Northwest Territories Court of Appeal held in R. v. J.(A.J.P.), 2011 NWTCA 2, that 3 years is the starting point for a full sexual assault by a mature offender with no prior record.

The circumstances in R. v. Law are somewhat similar to the case now before me. The Alberta Court of Appeal described those as follows (at para. 66):

In the case at bar, (1) the complainant was in a drunken stupor; (2) the accused initially penetrated her vagina with his finger and she asked him to stop; (3) the accused then penetrated her with his penis again over her resistance. In addition, (4) the respondent was not himself intoxicated; (5) the respondent had agreed to look after the complainant and as a result was in a position or state of trust; (6) the respondent acted with deliberation, and manhandled the complainant to a room down the hall for the purpose of having privacy for sex, and (7) the respondent knew that the complainant did not want to have sexual relations with him both before he did this and during it.

The trial judge found substantial mitigating factors in that the offender had a favourable Pre‑Sentence Report and positive relationships with his daughter and the woman with whom he was in a current relationship. He also had a highly supportive circle of friends in the community and through his church and was found to be at low risk to reoffend. The trial judge therefore imposed a sentence of 2 years less a day to be served in the community, with the first 6 months to be house arrest. The Alberta Court of Appeal found this to be unfit and substituted a sentence of 3 years.

Mr. Mitrovic's criminal record and history of violence towards women warrant a significantly higher sentence.

In R. v. J. (A.J.P.) the complainant was a 20‑year‑old student and had been boarding at the home of the 50‑year‑old offender. The complainant had been out drinking with friends, came home in a state of intoxication and fell asleep in her bed while fully clothed. She woke up some time later to find the accused having nonconsensual unprotected sex with her. She told him to get off, which he did. He did not use a condom. The trial judge imposed a sentence of 3 years. The Northwest Territories Court of Appeal increased that sentence to 4 years for the following reasons: 1) the offender had a prior record for common assault and sexual exploitation even though those convictions were 20 years earlier and he had been a productive member of society since that time; 2) the complainant considered the offender to be a "father figure" so this assault was a breach of trust; and 3) the fact that the complainant was asleep or unconscious should have been treated as an aggravating factor.

Mr. Mitrovic's circumstances are worse than those of the offender in R. v. J.(A.J.P.) in that his criminal record was not dated and was more extensive. He did not have the benefit of 20 years as a productive member of the community with a clean record during that time. While there are elements of breach of trust (akin to the situation in Law where he said he would "look after" the vulnerable complainant) the trust relationship between him and Ms. A. was not as traditional or well‑defined as the situation involved in J.(A.J.P.). Mr. Mitrovic's situation is at the very least equivalent to and possibly worse than the offender in that case.

I. Conclusion: Appropriate Sentence in this Case

In my view, denunciation and both specific and general deterrence are the primary objectives influencing sentencing in this case. Rehabilitation is a factor, but, if anything, requires a sentence far in excess of that suggested by the defence.

There are no real mitigating factors. Mr. Mitrovic enjoys the support of his mother, brother and girlfriend, but they do not appear to have a true insight into his character. Although Mr. Mitrovic claims to be employed selling T‑shirts on the internet, I have seen no real evidence to support that. However, I will accept for purposes of sentencing that he has been employed.

The aggravating factors are significant, including:

1. an extensive criminal record stretching back over many years;
2. a history of violence against women;
3. Ms. A. had previously rebuffed Mr. Mitrovic before he took advantage of her unconscious state;
4. the vulnerable position of the complainant;
5. the complainant had invited Mr. Mitrovic into her home believing he was there to protect her wellbeing and he deliberately violated that trust;
6. Mr. Mitrovic went there with the intention of having sex with Ms. A. and proceeded to do so, even though she was unconscious;
7. Mr. Mitrovic taunted the complainant after the fact;
8. the devastating consequences for the complainant.

Having compared Mr. Mitrovic's circumstances to the cases involving similar offenders, I find the Crown's submission that an appropriate sentence would be 4 years to be within the general range.

Accordingly, taking all of the relevant principles of sentencing into account, I find that the appropriate sentence for Mr. Mitrovic in this case is 4 years.

The ancillary orders sought by the Crown shall also issue and Mr. Mitrovic is entitled to a credit of 113 days for time already served.

Form 2 Certificate of Transcript (Subsection 5(2)) Evidence Act

I, Vanessa Giorno certify that this document is a true and accurate transcript of the recording of R. v. MILAN MITROVIC, in the Superior Court of Justice, held at 361 University Ave, CR 4‑4, Toronto, Ontario, taken from Recording 4899_4‑4_20170228_085108__30_MOLLOYA, which has been certified in Form 1.

(Date) Signature of Authorized Person