Court File and Parties

COURT FILE NO.: CR-5134 DATE: 2017/12/11 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – CURTIS RADING

Counsel: Lisa Miles and James Bocking, for the Crown Paul Lewandowski, for the Accused

HEARD: August 15 and October 30, 2017

There is a publication ban order made pursuant to s. 486.4 (1) of the Criminal Code, directing that any information that could identify the victim or a witness in this proceeding shall not be published in any document or broadcast or transmitted in any way.

SENTENCING DECISION

RATUSHNY J.

[1] Mr. Rading has pleaded guilty to four offences: break and enter of a dwelling house and sexual assault (s. 348(1)(b)); robbery (s. 344(1)); uttering threats to cause bodily harm (s. 264.1(1)(a)); and sexual assault (s. 271).

1. The Facts

[2] The accused committed all the offences on August 24, 2015. An Agreed Statement of Fact was filed and I summarize from it, as well as from the victim’s statement to the police, also filed.

[3] The victim, an 84-year-old woman, lived alone in her home. She was sleeping on her side and awoke around 4 a.m. to the words, “Here, kiss my cock”. She thought she had left the television on but then saw a large male standing beside her bed with his face covered, wearing a woollen hat and gloves, and with his pants down exposing his erect penis that he was holding with his hand. The victim was terrified as the man’s exposed penis was directly in front of her face. He repeated his instruction for her to put his penis in her mouth. He then forced her onto her back on the bed, got on top of her and put his penis in her mouth while she was crying and gagging.

[4] Because of her crying and gagging he made her change positions and then dragged her off the bed by her neck and sat himself down on a chair with his pants down. He directed her to get on her knees and suck his penis. When the victim told him she had bad arthritic knees, he grabbed a pillow from the bed and placed it on the floor, telling her to kneel on it. He then forced her to continue to perform fellatio on him and during it was saying, “Oh ya, oh ya” and “keep going, keep going”. He also told her not to look at him.

[5] After a period of time he stood up and directed the victim to go to the bed where he lay down on it on his back and pulled her close to him. He then grabbed her by her neck and forced her face into his crotch making her suck his penis again. He grabbed her right hand forcefully and told her to touch his testicles.

[6] The victim wanted to resist but she had little strength to do so and feared he was going to hit her. The male continued to moan and groan as she was forced to continue this “dirty sex act” as she described it.

[7] The victim was uncertain if the accused ejaculated in her mouth.

[8] Afterwards, the male stood up, pulled his pants up and told the victim that since she had such a big house she must have money. He said, “OK, I want money” and “Don’t you dare tell anyone and when I leave here, if you phone the police, or if I see a police car, I’m gonna come and get you or your daughter”. She gave him the seventy dollars she had in her purse. He noticed she had a credit card in her purse and demanded it and its PIN number. The victim handed him her card but gave him the wrong PIN number. He again threatened to kill her daughter if she had given him the wrong PIN number.

[9] The male put the money in his pants pocket and told the victim to help him remove the sheets off her bed. He was careful to fold them and keep all the potential evidence within the sheets. He included the pillowcases and the television controller. He left the victim’s home and threw the sheets into the nearby river where the police later recovered them.

[10] During the attack the victim came to believe that her attacker was her neighbor, Mr. Rading, from two doors away. After he left her home she looked out the window but could see no car leaving. She tried, unsuccessfully, to telephone her daughter and then got into her car in her garage and drove to her daughter’s house where the police were called.

[11] The victim later identified Mr. Rading to the police as her attacker because of his distinctive voice, his build resembling that of his grandfather who had lived in that same house two doors away, and because she remembered a visit Mr. Rading had made to her home a few weeks before, asking to use her phone because he had locked himself out of his home. He had also been to her home on another occasion when he had knocked on the door but she did not answer. She had been so concerned by that visit that she had written “Upsetting” in her personal calendar for that day.

[12] Shortly after the victim left her home, Mr. Rading took a taxi to a nearby bank machine. Video footage from inside the taxi and from the bank machine captured his photo. He had his face covered at the bank machine, but not in the taxi. He was unsuccessful in getting any money from the bank machine. The taxi waited for him and drove him back home.

[13] The victim’s home had been built for her and her late husband. At the time of the attack she had been a widow for sixteen years. She was extremely upset that she could not return to her beloved home. She suffered bruising on her wrists and soreness around her neck and back.

[14] In her statement to the police, the victim spoke of the horror she felt, how awful it all was, how much she was crying and gagging from the secretions, and how mad she felt. She knew if he hit her she would really be in trouble and so she decided to try to say nothing. She said she found herself wondering if she was having a nightmare but when she would come up for air, Mr. Rading would say, “Don’t look at me”. She said, “it was awful you know, in an hour what can happen” and “one hour and to wreck your whole life”. She commented that “it was all him, him, him”.

2. The Accused

[15] Mr. Rading was 26 years of age at the time of the attack. He is now 28 years of age.

[16] He has been in custody in remand facilities since his arrest on September 10, 2015: a period of 823 days.

[17] Mr. Rading agreed to submit to a full sexual behaviours assessment and was assessed by Dr. J. Paul Fedoroff, a psychiatrist and director of the Sexual Behaviours Clinic at the Royal Ottawa Mental Health Centre in Ottawa. His report (the “SBA Report”) is dated June 12, 2017 and was generated at a time when Mr. Rading was planning to proceed with his scheduled trial and before he decided to plead guilty. Mr. Rading’s personal information comes from the SBA Report.

[18] Mr. Rading gave a confused account to Dr. Fedoroff of what had happened between him and the victim, essentially lying to Dr. Fedoroff and admitting to a robbery but denying seeing or having had any contact with the victim. He said he was using alcohol and non-prescription drugs at the time, about ten drinks and cocaine, although he said, “but I have a high tolerance”.

[19] Mr. Rading told Dr. Fedoroff that he did not think he has psychiatric or sexual problems but agreed he has problems with alcohol and illegal drugs, consuming forty-eight beers and three 26-ounce bottles of rum in an average week. He said he would like treatment for drug and alcohol use. He has used all kinds of illegal drugs but prefers cocaine. He has never been treated for alcohol abuse or illegal drug use.

[20] He is single, without dependents, and was living at home with his parents before his arrest. His parents remain supportive of him. He worked as a landscaper. He reported having had a good family life with his two brothers. He has a Grade 11 education. Beginning when he was eight years of age, he said he started bullying others and starting physical fights, and then at 13, started to be physically cruel to others, rob others, destroy windows and shoplift. He used a weapon in a fight, broke into houses and cars, and forged cheques and credit cards. He was expelled or suspended from school at age 16 for starting fights and this is about the time he began running away from home overnight.

[21] He has a criminal record beginning in 2009 at 19 years of age. His eleven convictions include three for criminal harassment, one for assault, two for uttering threats and five for breaches of court orders. All his non-breach convictions involved different girlfriends. He was first incarcerated at age 19 for uttering threats. His longest sentence of incarceration appears to have been for 210 days or seven months, in 2010.

[22] Dr. Fedoroff reported that actuarial risk assessment placed Mr. Rading in the “moderate” risk category with an approximate re-offence risk of 19.2% within five years. He noted Mr. Rading’s history of problematic relationships with women, a significant problem with illegal substances (especially cocaine) and that his Sexual Behaviours Clinic testing suggested he is primarily aroused by same-aged adult women.

[23] He diagnosed Mr. Rading with polysubstance use (especially alcohol and cocaine), attention deficit hyperactivity disorder and antisocial personality disorder. He recommended treatment for alcohol and substance use, anger management and counseling concerning relationships, especially with women, social interactions and jealousy.

[24] In the context of Mr. Rading denying having had any contact with the victim, and his phallometric testing suggesting a preference for same-aged adult women, Dr. Fedoroff surmised that Mr. Rading’s actions could have been more opportunistic than being motivated by any deviant sexual interest. I respectfully disagree with this as a possible motivation and return to this issue in the Analysis section below.

[25] Mr. Rading prepared a five-page letter to the Court expressing his shame and embarrassment. He said he was truly sorry and could not explain how this happened except that drugs and alcohol played a huge role and he recognizes he has a lot of issues when he is under their influence. He said he does not believe he would have done this if he had been sober. He spoke of having lost his self-respect and dignity as a result of what he did. He is very grateful for his family’s support. He recounts bad experiences while in custody over the last two years arising from crowded conditions, having to be placed in segregation and a dearth of treatment options. He asks to be sentenced to the maximum period of time in provincial custody, after the deduction of his pre-sentence custody credit, so he can have the advantages of treatment at the Brockville treatment facility. He says he wants treatment.

3. The Victims

[26] The victim’s two daughters each speak of the negative life changes forced on all of them as a result of the attack. Their mother has been unable, both physically and emotionally, to be present in Court and her daughters have attended, as the Crown stated, as her voice.

[27] The attack has had, needless to say, a devastating impact on all of them. It has made the victim fear for her safety in her home, particularly in the circumstances of the nearby Rading family home. It has made her and her daughters fearful, anxious and stressed. As the victim said in her statement to the police, she thinks she would die if she ever heard the accused’s voice again. The victim’s health has declined.

[28] Perhaps the unspoken element in considering the magnitude of the distress that has been caused was touched on by the victim in her statement to the police. She commented on the difficult times her family has had to endure with a lot of illness to contend with and now, in the latter part of her life after having carried on so admirably, Mr. Rading has intruded and “wrecked” her sense of security and happiness for the time she has left. And it all happened within one hour.

[29] It is evident the victim is a dignified, resilient and courageous person. She has passed on those qualities to her daughters. She is certainly to be admired for carrying on as best she can at this time.

4. Analysis

The Circumstances of the Offence

[30] Mr. Rading’s crimes are extremely serious. A break and enter of a dwelling house with the intention of committing an indictable offence—here, the sexual assault—is punishable by up to a life sentence under the Criminal Code.

[31] The evidence is clear that Mr. Rading broke into the victim’s home intending to sexually assault her. He had seen her before in her home. He knew her general age and vulnerability and that she lived alone. He knew she would be sleeping at around 4 a.m. He prepared for his home invasion and sexual assault. He had his face, head and hands covered, his pants down and his penis erect. There is no evidence he first looked for something to steal and then stumbled on the victim in her bedroom. Instead, the evidence is that he looked for and found her sleeping in her bed and woke her up with his demands for fellatio. He carried on with his attack for about an hour and then, secondarily, asked for money and the credit card. He uttered threats. He cleaned up potential evidence and threw it in the river. He phoned for a taxi and went to a bank machine.

[32] While he may well have been under the influence of alcohol and drugs during all of this, as he stated to Dr. Fedoroff, he was certainly thinking clearly enough under these influences to know that what he was doing was wrong and hence, the timing of his attack, the covering of his face, head and hands, the disposing of the sheets and pillowcases, the threats to the victim that she was not to call the police, and the maintaining of his face cover at the bank machine.

[33] In those circumstances, therefore, this was a break and enter that was planned for the purpose of a sexual assault. These were not impulsive, unplanned acts. Neither can the sexual assault be characterized as opportunistic. Dr. Fedoroff advanced this as a possible explanation for the sexual assault. However, with all due respect to Dr. Fedoroff, and his view that the “most parsimonious psychiatric explanation for Mr. Rading’s actions is that he acted impulsively on sexual feelings with the victim because she was available”, I cannot accept this opinion in the SBA Report, given all of the circumstances indicating a planned attack.

[34] This was not only a planned home invasion but it was for the purpose of committing a sexual assault that was an act of violence, degradation and humiliation against a particularly vulnerable person whom he knew as his neighbor. As such, Mr. Rading’s home invasion offences are certainly more aggravating on sentence than a random home invasion committed for the purpose of a theft that, while serious by its very nature, has no accompanying personal violence.

The Circumstances of the Offender

[35] This is, beyond a doubt, the most serious offence Mr. Rading has committed. His criminal record going back to 2009 exposes convictions for violence and harassment of women in his life, in addition to breaches of court orders. His longest period of incarceration has been seven months. By his own admission, he has lived a dysfunctional life since around 8 years of age. While his record includes offences against his female partners, he has no prior convictions for sexual assault.

[36] Mr. Rading admits to drug and alcohol problems and expresses a wish for treatment for those problems. He does not appear to understand that he has any mental health issues. However, I accept Dr. Fedoroff’s opinion to the contrary that Mr. Rading does have more than substance abuse issues given Dr. Fedoroff’s diagnoses of Mr. Rading as a moderate risk (an approximate 19.2% re-offence risk within five years) to commit violent re-offences, including sexual re-offences, and as having attention deficit hyperactivity disorder and antisocial personality disorder.

[37] Mr. Rading is neither young nor old. He is certainly, at age 28, capable of and has time to change should he be sincere in wanting to change. I expect Mr. Rading will have to abstain from any illegal drugs or alcohol as part of that change, for the rest of his life. I also expect Mr. Rading needs more treatment and counselling than he understands he requires at the present time. And, as Dr. Fedoroff commented, Correctional Service Canada does not offer treatment to sex offenders who do not admit a need for treatment. This, then, will be a step that Mr. Rading will first have to take to be able to deal with his sexual offending and against women.

[38] I am not able to assess the sincerity of Mr. Rading’s expressions of remorse and commitment to change. When Dr. Fedoroff interviewed him, he was not admitting to the sexual assault so that the resulting SBA Report stands on those misstatements. The only other material on Mr. Rading comes from his letter to the Court where its main tenor, not surprisingly, is to plead for a shorter period of incarceration. I accept, however, that his pleas of guilt although not early pleas, are extremely important acceptances of responsibility for his crimes and deserve to be accorded significant weight as a mitigating factor on sentence. Additionally, of course, they have saved the victim the additional stress and anguish of having to testify at trial.

[39] I conclude, and I agree with the Crown on this point, that we are left with an unexplained and shocking crime committed “out of the blue” by a man who has exhibited aggressive and violent tendencies in the past, although never to the present extent, and who has serious and untreated substance abuse issues as well as mental health issues.

Mitigating and Aggravating Factors on Sentence

[40] These have been stated above. The aggravating factors include the circumstances of the offences as described before, Mr. Rading’s criminal record, and the SBA Report assessing him as a moderate risk for violent re-offending. The mitigating factors are Mr. Rading’s pleas of guilt, his acceptance of the need for treatment at least in respect of his substance abuse problems, the presence of a supportive and pro-social family and the relatively limited scope of his prior criminal record making him a first-time sexual offender.

Applicable Sentencing Objectives

[41] There is no mystery in identifying the applicable sentencing objectives in all of the circumstances of these offences and this offender.

[42] Mr. Rading has committed, as stated before, a violent, degrading and planned attack on a vulnerable person as part of a home invasion. With his record, these current offences and the SBA Report, I accept that he has at least a moderate degree of dangerousness attached to him.

[43] The primary sentencing objectives in these circumstances are to protect society and of course the community, including the victim, to adequately denounce these violent crimes, to deter others who might be similarly inclined and to specifically deter Mr. Rading from re-offending in the future. The objective of rehabilitation, although extremely important for Mr. Rading in his circumstances and at his relatively young age, must assume, in my view, a secondary role to these other primary objectives.

Counsel Sentencing Positions

[44] Both counsel agree that Mr. Rading is entitled to a pre-sentence custody credit at the rate of 1.5 days for each day of actual pre-sentence custody. I agree. As of today’s date of December 11, 2017, Mr. Rading has served 823 actual days in custody and his pre-sentence custody credit at the rate of 1.5 to 1 is a total of 1235 days or three years plus four months and 20 days, by my calculations.

[45] Defence counsel requests the maximum provincial reformatory sentence for Mr. Rading of two years less one day in addition to Mr. Rading’s pre-sentence custody credit of 1235 days, to be followed by three years of probation. This translates into an effective sentence of more than five years’ incarceration when the pre-sentence custody credit is included and a total supervision period of eight years when probation is included.

[46] Crown counsel requests a federal penitentiary sentence in the range of thirteen years less the pre-sentence custody credit, leaving a sentence left to serve of just under ten years.

Authorities

[47] Counsel has referred me to case law in support of each of their sentencing positions, recognizing that sentencing is a fact-specific process.

[48] The Crown focuses its submissions and authorities on the nature of Mr. Rading’s offences as a planned home invasion for the purpose of the commission of a sexual assault. As such, the Crown submits the five year sentence range requested by the Defence is inappropriately low and case law, including that from the Ontario Court of Appeal, supports something in the range of eight to fourteen years less the pre-sentence custody credit.

[49] Defence authorities are the following four cases.

[50] In R. v. Corbiere, 2012 ONSC 2405, the Ontario Superior Court of Justice sentenced the aboriginal offender with a lengthy record to nine years’ incarceration for a robbery and a sexual assault involving forced fellatio and vaginal intercourse on a 62-year-old woman. The charged offence of break and enter was withdrawn by the Crown but sentencing was imposed in that context. The offender had entered the home demanding money and later jewelry. The sexual assault occurred after these thefts. The offender had entered pleas of guilt.

[51] In R. v. P.A.N., 2002 NSSC 112, the Supreme Court of Nova Scotia sentenced the offender to eight years’ incarceration for a break and enter and sexual assault against a 74-year-old woman. The victim woke up to find the offender on top of her. The offender had a related and lengthy criminal record. He had entered pleas of guilt.

[52] In R. v. K.A.S., 2016 BCPC 401, the British Columbia Provincial Court sentenced the offender to seven years’ incarceration for a break and enter and sexual assault against a 48-year-old woman, and robbery. The offender used threatening language, brute force, struck the victim with a flashlight at one point and forced intercourse on her. He entered the home and committed the sexual attacks before grabbing the victim’s purse as he was leaving. He had a criminal record of thirteen unrelated convictions. He had entered pleas of guilt.

[53] In R. v. Okumu, 2006 ABQB 856, the Alberta Court of Queen’s Bench sentenced the offender to five years’ incarceration for a sexual assault involving either actual or simulated intercourse (this was not able to be determined) on a 91-year-old female resident of a nursing home who was suffering from dementia. The offender had been employed by the nursing home at the time. He had no prior record. He was assessed as a low to moderate risk to re-offend. He was convicted after trial.

[54] All of the Defence authorities, except for Okumu, involve a sexual assault committed in the context of a home invasion. The Defence submits the relevance of Okumu is the breach of trust operating as an aggravating factor similar to the circumstance of a home invasion. I accept that as a relevant comparison.

[55] In each of P.A.N. and K.A.S. but not in Corbiere, it appears the home invasion was committed for the purpose of the sexual assaults and the sentences imposed were eight and seven years’ incarceration respectively, after pleas of guilt.

[56] It is on this basis that Defence counsel requests a sentence equivalent to just over five years’ incarceration, admittedly, as he states, in the lower range of the five to nine year range supported by his authorities.

[57] The Crown’s authorities are submitted in support of a higher range. They are the following five cases.

[58] In R. v. Wright (2006), 2006 ONCA 40975, 83 O.R. (3d) 427, while the facts are clearly distinguishable from Mr. Rading’s offences, the Crown relies on this case for its emphasis on the seriousness of home invasions and the appropriate ranges of sentence arising out of the circumstances of the home invasion and the offender. The Ontario Court of Appeal upheld an eight year sentence of incarceration for a violent home invasion by the offender and four others, all using firearms and disguises. There was no accompanying sexual assault. The offender had pleaded guilty.

[59] Blair J.A. noted (para. 14) that home invasion offences are particularly troubling “because they represent a violation of the sanctity of the home and of the sense of security people feel when in their homes – highly cherished values in our society – and because they are frequently perpetrated against vulnerable individuals”.

[60] He also commented (para. 18) on the “elastic nature of the home invasion offence and the myriad of circumstances to which the label may apply, that make it difficult to define a range of sentence for such a crime”.

[61] He went on to say (para. 21) that courts “have moved away from the notion of a firm “range” of five to eight years’ imprisonment for crimes involving home invasions”.

[62] He concluded (para. 23) that his research indicated a “gamut” of sentencing dispositions in home invasion cases ranging from a low of four to five years to as high as eleven to thirteen years, “with the suggestion that even higher sentences may be reserved for situations involving kidnaping, the infliction of serious injuries, sexual assault or death”.

[63] In R. v. D.A.W., 2002 BCCA 336, the offender and an accomplice were convicted after trial for a home invasion. The offender entered the home and brandished a knife and demanded money from an elderly couple. A scuffle between the accomplice and the female victim turned into a sexual assault. The British Columbia Court of Appeal upheld a thirteen year sentence for the accomplice and a ten year sentence for the offender, commenting (para. 21) on the alarm and apprehension in the populace caused by the “terrifying ordeal” of home invasions such as these and on (para. 26) the need in sentencing to address the principle of retribution, characterized as a reflection of the moral blameworthiness of the offender. The Crown relies on D.A.W. for these principles.

[64] In R. v. L.C.D., 2004 BCCA 405, the offender pleaded guilty to breaking and entering the 88-year-old victim’s home and raping her at knifepoint while disguised. The assault was brutal. It caused her to bleed. At one point, she feared being suffocated by a pillow placed over her face. She was left with a fractured jaw, two broken ribs, a crushed vertebra, recurring nightmares and was unable to continue to live alone.

[65] The British Columbia Court of Appeal upheld the eighteen year sentence of incarceration, citing the need for denunciation, deterrence and protection of the public for an offender who had led a troubled life full of substance abuse, had a criminal record for break and enters but not for sexual assault and had been assessed as having an intellectual impairment.

[66] The Court supported the trial judge’s reasoning (quoted at para. 9) that given the offender’s “apparent lack of mental capacity” in a situation where treatment of him would be the only method available to “systematically reduce the risk to the community”, the trial judge was concerned that the offender “may be verging on the untreatable, which makes him or may make him an even greater threat to the public”.

[67] The Crown relies on L.C.D. not for its facts, which are far more aggravating than those of Mr. Rading, but for the Court’s analysis of these applicable principles.

[68] For similar purposes, the Crown refers to R. v. Osecap, 2006 SKCA 69, where the Saskatchewan Court of Appeal upheld a fifteen year sentence of incarceration plus a ten year Supervision Order for an offender found to be a long-term offender. He was convicted after trial of break and enter, robbery and aggravated sexual assault. He had invaded the home of an 88-year-old woman. She was discovered naked on her bedroom floor in an almost comatose state and had suffered a blow to her temple, a resulting acute internal hemorrhage, bruises to her arms and gouges on her thigh. The offender’s semen was found on the victim’s bed. The trial judge found that the offender had entered the home intending to steal and while searching the home, had come upon the victim in her bedroom, and in the process of sexually assaulting her, had caused her injuries.

[69] The Court of Appeal characterized the crime as one of “extreme gravity” (para. 6), by an offender who had a lengthy and violent record with over eighty-nine previous convictions (para. 5), putting denunciation and deterrence in the foreground of sentencing objectives and worthy of the fifteen years’ fixed term of incarceration, even though this sentence was “near the top of the range for the facts here” (para. 6).

[70] In R. v. Anderson, 2012 ONCA 373, the Ontario Court of Appeal upheld a life sentence for an offender convicted after trial of break and enter, aggravated sexual assault and attempted murder. He was 26 years of age when he broke into the 76-year-old female victim’s residence in the middle of the night. The victim awoke to find him standing before her armed with a knife and threatening her that if she screamed and did not comply with his demand for sex he would kill her. He forced her to engage in vaginal intercourse, attempted to penetrate her from behind, stabbed her three times in the abdomen, slashed her face all the way to the jawbone and brutally beat her. One of her wounds was potentially fatal. The attack lasted for one hour notwithstanding that she was bleeding profusely.

[71] The offender had declined to participate in a forensic psychiatric assessment. He had no prior criminal record and while his family was supportive of him, the sentencing judge found them to be “woefully deficient historians who were unable to reliably portray the [offender’s] true character” (para. 13). As a result, the sentencing judge had no “insight into his personality or how it is that he could have committed this terrible crime” (para. 16).

[72] The Court of Appeal supported (paras. 17 – 19) the sentencing judge’s determination of the offender’s future dangerousness and the need to protect the public by a life sentence, even though there was little evidence of the offender’s true character aside from the brutality and randomness of his crimes. It said (para. 17) the sentencing judge was “obliged” to assess these issues in the context of the gravity of the offences and the offender’s moral blameworthiness.

[73] While the Crown is not suggesting a life sentence for Mr. Rading, it does submit that the conclusions of Dr. Fedoroff in the SBA Report and his assessment that Mr. Rading presents a “moderate” risk of re-offence in the context of not understanding why he committed these serious offences, raises similar concerns to those in Anderson regarding Mr. Rading’s future dangerousness and the protection of the public.

[74] I agree. There are certainly public safety concerns arising from this dearth of information and uncertainty over Mr. Rading’s future dangerousness.

Conclusions

[75] In order to adequately reflect the primary sentencing objectives of protection of the public, denunciation and general deterrence for these serious crimes, there is no dispute that a period of incarceration is required. The issue is its length.

[76] That length is shaped by

• public safety concerns;
• the applicable sentencing objectives of denunciation and general and specific deterrence;
• the aggravating and mitigating factors, the latter including Mr. Rading’s pleas of guilt, his age and his desire for some treatment;
• a factoring in of the sentencing objective of rehabilitation, especially given Mr. Rading’s age; and
• the application of the principles of proportionality and restraint.

[77] The principle of proportionality in s. 718.1 of the Criminal Code bears directly on the shaping of sentence by these considerations, requiring that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.

[78] The gravity of Mr. Rading’s offences has been reviewed.

[79] His “degree of responsibility” relates to his moral blameworthiness for the offences, which is high. He comes from a pro-social family; he had a good childhood; he indulged in alcohol and illegal drugs as he wished without admitting the need for or submitting to any treatment; he acted out against women and served some time in jail; he ignored some court orders with resulting consequences and then he planned and carried out an unexplained home invasion and sexual assault against the victim, his neighbour. All of this is to say that he seems to have chosen, aside from the effect of untreated mental health issues, to conduct his life to date as he has pleased, notwithstanding interventions by the criminal justice system. These are clear warning signals for the future.

[80] In considering the authorities relied on by counsel as reviewed before, all have been instructive on the various facts and factors shaping sentence in each case. However, in considering the length of the period of incarceration for Mr. Rading, I find the cases of P.A.N., K.A.S., and Wright to be more applicable.

[81] P.A.N. and K.A.S. each involved a home invasion for the purpose of a sexual assault and the sentences were eight and seven years respectively, with other differing factors shaping these sentences. Wright is perhaps the gold standard in Ontario for its discussion of the “elastic” range of sentence for home invasions of between four to thirteen years and up.

[82] On balance, I have determined that Defence counsel’s request for a total sentence of incarceration in the range of five years including pre-sentence custody is too low to adequately protect the public and to adequately reflect the primary sentencing objectives of denunciation and deterrence as well as Mr. Rading’s high moral blameworthiness for his serious offences.

[83] Instead, I impose a total custodial sentence on Mr. Rading that is slightly higher than that in P.A.N. and K.A.S., and within the range referred to in Wright. It is one of nine years’ incarceration less pre-sentence custody. I hope Mr. Rading will admit his need for treatment as a sex offender so that this treatment can occur. I also recommend, following Dr. Fedoroff’s advice in the SBA Report, that Mr. Rading receive treatment for alcohol and substance use, anger management and counseling concerning relationships, especially relationships with women, social interactions and jealousy.

Mr. Rading, please stand at this time.

[84] For the break and enter and sexual assault, I sentence you to nine years’ incarceration or 3285 days. I direct that your warrant of committal indicate you have been granted a pre-sentence custody credit of 1235 days for this offence calculated at the rate of 1.5 to 1, leaving a balance left to serve of 2050 days or approximately 5.62 years.

[85] For the robbery, I sentence you to two years’ incarceration, concurrent to your sentence for break and enter and sexual assault.

[86] For the sexual assault, I sentence you to five years’ incarceration, concurrent to your sentence for break and enter and sexual assault.

[87] For the threatening offence, I sentence you to one year incarceration, concurrent to your sentence for break and enter and sexual assault.

[88] There are corollary orders. The first is a mandatory DNA Order requiring you to submit to the taking of a bodily sample for the purposes of DNA analysis and data bank storage. The second is a mandatory order under s. 109 of the Criminal Code prohibiting you for your lifetime from possessing any weapons, ammunition or any other item referred to in the Order. The third is a mandatory order under the Sex Offender Information Registration Act that imposes registration requirements on you for your lifetime as stated in the Order. The fourth is a non-communication order under s. 743.21(1) of the Criminal Code, prohibiting you from communicating directly or indirectly with the victim or any member of her family during the custodial period of your sentence.

The Honourable Madam Justice Lynn Ratushny Released: December 11, 2017