Her Majesty the Queen v. Booth

[Indexed as: R. v. Booth]

Ontario Reports Court of Appeal for Ontario Huscroft, Miller and Nordheimer JJ.A. February 5, 2021 154 O.R. (3d) 329 | 2021 ONCA 80

Case Summary

Criminal law — Appeal — Fresh evidence on appeal — Sentence appeals — Accused committing sexual assault while on probation for sexual assault committed at age 17 — Accused convicted of sexual assault and breach of youth probation order — Sentencing judge imposing 18 months' imprisonment — Crown's appeal allowed — Sentence demonstrably unfit as not being proportionate to gravity of offence or accused's responsibility — Denunciation and deterrence required three-year sentence, but fresh evidence as to accused's rehabilitation made further incarceration inappropriate — Sentence varied to increase parole from two years to three.

Criminal law — Sentencing — Principles — Sexual offences — Accused committing sexual assault while on probation for sexual assault committed at age 17 — Accused convicted of sexual assault and breach of youth probation order — Sentencing judge imposing 18 months' imprisonment — Crown's appeal allowed — Sentence demonstrably unfit as not being proportionate to gravity of offence or accused's responsibility — Denunciation and deterrence required three-year sentence, but fresh evidence as to accused's rehabilitation made further incarceration inappropriate — Sentence varied to increase parole from two years to three.

The accused was six months into his probation for a sexual assault that he had committed at age 17 when he committed another sexual assault at age 19. He was convicted of sexual assault and breach of a youth probation order. He and the complainant attended a party. The complainant, who was intoxicated, went to sleep in the host's bedroom. She testified that she went to sleep on the bedroom floor and awoke to find the accused on top of her. The host, who was also sleeping in the bedroom, turned on a light and saw the accused, naked, rolling off the complainant, who appeared to be asleep. The trial judge found that the accused penetrated the complainant just before the light came on. The complainant's victim impact statement described the emotional, physical and economic impact on her. The sentencing judge considered three aggravating factors: the prior and recent finding of guilt for sexual assault; the fact that there was penetration; and the impact of the offence on the victim. She considered six mitigating factors: the accused's youth; his good prospects for rehabilitation; his hard-working character and contribution to the community; his character traits of kindness, empathy and loyalty; his family's and girlfriend's support; and his remorse. Having identified a range of 18 months to three years, the judge found nothing to justify a sentence outside the range, and sentenced the accused to 18 months' imprisonment. The accused was released on parole after having served six months of the sentence. The Crown appealed the sentence, with the accused tendering fresh evidence.

Held, the appeal should be allowed.

The sentence was demonstrably unfit. Although the sentencing judge acknowledged the relevant considerations, she failed to accord them the significance they were due. The accused's moral blameworthiness was high as he sexually assaulted an extremely vulnerable victim. That intolerable conduct required denunciation and general deterrence. The fact that it was the accused's second conviction for sexual assault involving penetration emphasized the need for specific deterrence. The sentence was neither proportionate to the gravity of the offence nor his degree of responsibility in committing it. The sentencing judge ought to have imposed three years, although that was no longer appropriate in light of the fresh evidence. The accused was employed full time and he had re-enrolled in college. He attended counselling for alcohol abuse and his addiction counsellor reported that he was motivated to engage in his treatment. He was also reported to be committed to his sexual accountability support program. Having completed a substantial portion of the original sentence, part in custody and part on parole, and having made the most of the opportunity presented by his parole, the accused's further incarceration for a brief period was not required to achieve the goals of denunciation and deterrence. The sentence was varied to increase the period of probation from two years to the maximum of three years to support his rehabilitation and reintegration into the community.

Statutes Referred To

• Criminal Code, R.S.C. 1985, c. C-46, ss. 718.1 [as am.], 731(1)(b)
• Youth Criminal Justice Act, S.C. 2002, c. 1 [as am.], s. 119(2)(h), (9)(b)

APPEAL by the Crown from sentence imposed on February 4, 2020 by Broderick J. for convictions for sexual assault and breach of a youth probation order.

Counsel: Emily E. Marrocco, for appellant. Mark C. Halfyard and Chris Rudnicki, for respondent.

The judgment of the court was delivered by

HUSCROFT J.A.: —

Overview

[1] Caelan Booth, the respondent, was convicted of sexual assault and breach of a youth probation order. The assault included intercourse he forced on a woman who was asleep. The assault was brief but ended only when someone turned on a light in the bedroom where the assault was occurring.

[2] The respondent was 19 years of age when he committed the offence. He was on probation for a sexual assault he committed less than two years earlier. That sexual assault also included intercourse.

[3] The sentencing judge sentenced the respondent to 18 months' imprisonment for the sexual assault and 30 days concurrent for the breach of probation, and put him on probation for a two-year period.

[4] For the reasons that follow, I conclude that the sentence was demonstrably unfit. The appropriate sentence was three years, as sought by the Crown. In the unusual circumstances of this case, I would not require the respondent to serve additional time in prison. However, I would vary the terms of the original sentence to increase the period of his probation from two years to three.

Background

[5] The complainant, a 24-year-old woman, attended a house party along with several others, including the respondent. The complainant and the respondent had never met before the night of the assault.

[6] The complainant and some friends left the house party to go to a bar, while the respondent and some of his friends went to a different bar. The complainant and respondent returned to the house at different times later that evening. At approximately 3:00 a.m. the complainant, who was intoxicated, went upstairs to sleep in the host's bedroom along with several friends. The respondent followed the group into the bedroom but was asked to leave. He returned downstairs.

[7] The complainant testified that she went to sleep on the bedroom floor and awoke sometime later to find a man on top of her. He was kissing and touching her. She was groggy and felt as though she was dreaming. She testified that the man told her to lay down and be quiet, but she did not recognize his voice or who he was.

[8] The host, who was also sleeping in the bedroom, testified that he heard noises that seemed like sex. He turned a light on and saw the respondent, naked, rolling off the complainant, who appeared to him to be asleep. The trial judge found that the respondent penetrated the complainant's vagina with his penis just before the light came on. The respondent was confronted by the complainant's friends and forced out of the house, following which the police were called.

The sentencing judge's decision

[9] The sentencing judge reviewed the complainant's Victim Impact Statement, which described the emotional, physical and economic impact of the offence on her. She felt distant from her friends, found it difficult to focus when school and work were difficult, and experienced anxiety and a feeling of a loss of autonomy. She had to take medication to prevent sexually transmitted infection, which made her feel ill, and incurred the expense of travelling in order to obtain that medication.

[10] The sentencing judge then reviewed the circumstances of the respondent. She noted that he was completing a business administration and marketing diploma while working three part-time jobs, in addition to a seasonal position at a golf course. He was in a two-year relationship with a young woman who reported that he was respectful, caring and supportive. The sentencing judge found that the respondent expressed remorse for the offence and that his pre-sentence report and character letter portrayed him in a very positive light.

[11] The sentencing judge found that the case law distinguishes between acts of completed intercourse and penetration short of ejaculation. She characterized this as a case of momentary penetration but added that she did not want to minimize the impact of penetration on the complainant.

[12] The sentencing judge rejected the Crown's submission that the range of three to five years applied in the case of momentary penetration of an unconscious or sleeping victim. She referred to this court's decision in R. v. Ghadghoni, 2020 ONCA 24, in which the complainant was penetrated for a brief period while asleep. The accused had no criminal record. In that case, Pardu J.A. stated, at para. 48, that "the usual range identified in past jurisprudence for sexual assaults committed in similar circumstances has been between 18 months and three years". The sentencing judge adopted this as the appropriate range for this case. She stated that the primary objectives of sentencing in this case were denunciation, deterrence and rehabilitation, but that denunciation and deterrence took precedence. She found that the prior conviction for sexual assault required the sentence to address specific deterrence and went on to consider aggravating and mitigating factors.

[13] The sentencing judge considered three aggravating factors: (1) the prior and recent finding of guilt for sexual assault; (2) the fact that there was penetration; and (3) the impact of the offence on the victim. She considered six mitigating factors: (1) the respondent's youth; (2) his good prospects for rehabilitation; (3) his hard-working character and contribution to the community; (4) his character traits of kindness, empathy and loyalty; (5) his family and girlfriend's support; and (6) his remorse.

[14] Having identified a range of 18 months to three years, the sentencing judge considered whether anything justified a sentence outside of the range. She noted the serious nature of sexual assault, that it took place while the complainant was intoxicated and asleep, and that the impact on the complainant was significant. She found, further, that the respondent's degree of responsibility was high. Although the respondent was under the influence of alcohol, he was not so intoxicated that he did not know what he was doing. On the contrary, the respondent attempted to sexually assault the complainant without waking up others in the room.

[15] The sentencing judge recognized that the respondent was not a first offender and that he was on probation for a prior sexual assault when he committed the offence. Despite the many aggravating factors in this case, the sentencing judge imposed a sentence at the bottom of the range she identified. She stated:

Had [the respondent] not had a relatively recent prior conviction for sexual assault, I may have found it appropriate to impose a sentence outside of the lower end of the range of 18 months given the factual circumstances of the offence. His prior conviction, however, is an aggravating factor that I must consider in respect of the circumstances of the offender, and that in my view requires a sentence within the range set out.

I am also mindful of the sentencing principle of restraint. The sentence should only be as long as is required to achieve the sentencing objectives of denunciation and deterrence, and further, the sentence must promote, rather than frustrate, [the respondent's] rehabilitation.

In my view, the sentence that takes into account all of the relevant factors and that will achieve denunciation and deterrence, and one that will not have a devastating effect on [the respondent's] rehabilitation, is one at the very bottom of the range and that is 18 months imprisonment.

Issues on Appeal

[16] The Crown raises three arguments on the sentence appeal:

(1) the sentencing judge erred when she found that the fact that the penetration was momentary was mitigating;

(2) the sentencing judge erred in her consideration of the rehabilitative potential of the respondent and failed to properly account for his prior record; and

(3) the sentence was demonstrably unfit and did not reflect the gravity of the offence or the moral blameworthiness of the respondent.

Discussion

[17] The principles governing the appellate review of sentences are not in dispute. In general, the decisions of sentencing judges are entitled to deference, but an appeal court may intervene if: (1) the sentencing judge errs in law or in principle and that error has an impact on the sentence, or (2) the sentence is demonstrably unfit regardless of any error: R. v. Lacasse, 2015 SCC 64, at para. 11.

[18] The Crown's argument focuses on the sentencing judge's treatment of the duration of the assault. In essence, the Crown argues that the sentencing judge minimized the harm caused by sexual assault involving penetration by emphasizing the brief duration of the assault committed by the respondent.

[19] I agree that the some of the sentencing judge's remarks can be read in this way. Although the sentencing judge was careful to state that she did "not wish to minimize the impact of penetration", at several points in her decision she appears to do just that by emphasizing the "momentary" nature of the penetration. She also states that there was "no overt violence" by the respondent, which appears to overlook the inherently violent nature of the assault committed by the respondent.

[20] Read in context, however, these remarks can be understood as distinguishing the facts of this case from the cases proffered by the Crown that involved longer, completed acts of vaginal intercourse and threats of violence.

[21] Nevertheless, in my view, the sentence imposed in this case is demonstrably unfit regardless of any error in law or principle and the appeal must be allowed on this basis.

The sentence is demonstrably unfit

[22] It is not necessary to reconcile what the Crown submits is conflicting case law concerning the appropriate range for sexual assaults involving intercourse with incapacitated complainants. The sentence imposed is demonstrably unfit regardless of any error identifying the range, for it does not satisfy the principle of proportionality: it is not proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Criminal Code, R.S.C. 1985, c. C-46.

[23] The moral blameworthiness of the respondent is high. He sexually assaulted a victim who was extremely vulnerable -- she was incapacitated by alcohol and unconscious. This is intolerable conduct that requires denunciation and general deterrence.

[24] The fact that this is the respondent's second conviction for sexual assault involving penetration emphasizes the need for specific deterrence. Thirteen months prior to committing the assault in this case, the respondent pleaded guilty to sexually assaulting a 15-year-old girl. The respondent was 17 years old at the time. These facts are taken from the transcript of his guilty plea.

[25] The assault occurred when the girl became separated from her friends at a large graduation party. She walked off with a boy, whom she knew, and the accused, whom she had never met. She described kissing and sexually touching both boys. She was intoxicated and was panicking. Eventually one or both of the boys removed her shirt against her will and she backed away. She fell to the ground and the respondent ended up on top of her. He penetrated her with his penis without her consent.

[26] The respondent received a non-custodial sentence for this sexual assault -- six months of deferred custody and an 18-month probation order. Plainly, this sentence failed to achieve the objective of deterrence as the respondent committed another sexual assault within 13 months of his first conviction, a mere six months into his probation.

[27] What we have, in summary, is this: Despite the respondent's relative youth, he is a repeat sexual offender. He committed a second sexual assault involving penetration against a vulnerable/intoxicated victim -- a victim who was asleep at the time. These were significant aggravating factors, requiring a sentence that emphasized denunciation as well as general and specific deterrence.

[28] Although the sentencing judge acknowledged the relevant considerations, with respect, she failed to accord them the significance they were due. On the contrary, she stated that, but for the respondent's relatively recent conviction for sexual assault, she "may have found it appropriate to impose a sentence outside the lower end" of the 18-month to three-year range she identified as appropriate.

[29] These remarks wrongly downplay the seriousness of the sexual assault committed by the respondent. Again, the offence involved intercourse forced upon a highly vulnerable woman. Yet, even though she acknowledged the need to address specific deterrence, the sentencing judge concluded that the respondent should be sentenced "at the very bottom of the range" in order to avoid a "devastating effect" on his rehabilitation.

[30] The 18-month sentence that was imposed fails to reflect the fact that not only was this the respondent's second serious sexual offence, but it was committed while he was on probation for having committed the first. The sentence is neither proportionate to the gravity of the respondent's offence nor his degree of responsibility in committing that offence, as required by s. 718.1 of the Criminal Code.

[31] Taking into account the mitigating factors as well as the aggravating factors, I agree with the Crown that a sentence of three years should have been imposed. However, the court is required to sentence the respondent having regard to the circumstances now obtaining.

[32] The respondent has proffered fresh evidence in this regard. The Crown does not object to the admission of the fresh evidence but argues as to the implications of requiring the respondent to serve additional time in prison.

[33] I would admit the fresh evidence.

The fresh evidence

[34] The respondent was released on parole on August 7, 2020, having served one-third of the 18-month sentence that was imposed. He is now employed full time and is working approximately 48 hours per week. He is re-enrolled in college and is working towards completing a diploma in business and marketing administration in the spring of 2021.

[35] The respondent has attended counselling for alcohol abuse twice monthly as well as sexual offending on a weekly/biweekly basis and is seeing a personal therapist. His addiction counselor reports that the respondent has attended all scheduled appointments and presents as motivated to engage in his treatment. The executive director of the sexual accountability support program reports that the respondent is dedicated to the process and committed to making the personal changes required so that he will not reoffend.

[36] The respondent notes that, as of the date of the appeal, he would have served the equivalent of over one-half of his original sentence, part in custody and part on parole. Assuming that he received the three-year sentence now sought by the Crown and would qualify for one-third release in the federal system, he would have had the equivalent of three months remaining on his sentence. However, the respondent argues that if he were reincarcerated, it is unlikely he would receive a parole hearing in time to obtain release following the service of one-third of the higher sentence, as he would have to be re-assessed and another parole hearing would have to be convened. The respondent argues that serving this additional period pending a parole hearing would constitute an undue hardship and that this is an appropriate case for staying the balance of any increased sentence imposed.

[37] The Crown does not accept that the respondent's ability to seek parole would be prejudiced by requiring him to serve additional time in the federal system and submits that he should be required to serve additional time.

[38] In my view, although a three-year sentence of imprisonment should have been imposed by the sentencing judge, in light of the fresh evidence that sentence is no longer appropriate. Further incarceration of the respondent for a brief period is not required to achieve the goals of denunciation and deterrence.

[39] The respondent is a young man. He has now completed a substantial portion of the sentence that was imposed by the sentencing judge, part in custody and part on parole. Importantly, he has made the most of the opportunity presented by his parole. The fresh evidence demonstrates that he has taken meaningful steps towards rehabilitation and reintegration into the community. These steps would be undermined if he were required to return to prison to serve additional time -- time that would presumably be brief -- before he would again be eligible for parole.

[40] However, I do not accept the respondent's submission that it would be appropriate to impose the three-year sentence sought by the Crown, only to stay the balance of that sentence and not re-incarcerate the respondent. If a three-year sentence were imposed, the probation order could no longer remain in place, as a probation order can accompany only sentences of two years or less: s. 731(1)(b) of the Criminal Code.

[41] Although the respondent appears to be making progress on parole, it must be recalled that he breached the terms of a prior probation order. In these circumstances, I would vary the respondent's sentence by increasing the period of his probation from two years to three, the maximum period of probation that is permitted. An additional year of the supervision afforded by probation is the best means of supporting his rehabilitation and reintegration into the community.

Conclusion

[42] I would grant leave to appeal sentence and admit the fresh evidence.

[43] I would allow the appeal and vary the sentence to increase the term of the respondent's probation from two years to three. I would otherwise leave the terms of the probation order and the other orders in place.

Appeal allowed.

Notes

1 The respondent was a young person within the meaning of the Youth Criminal Justice Act, S.C. 2002, c. 1 ("YCJA") when he committed this offence. Because his adult conviction was within the access period for the youth offence, the records relating to his youth offence are to be dealt with as records of an adult, which includes being available for publication: see YCJA, ss. 119(2)(h) and (9)(b).

The transcript of the respondent's guilty plea to the youth offence was sealed by the trial judge. The parties to this appeal agree that this was not required by the YCJA and that this court can unseal the transcript. By order dated January 21, 2021, this court ordered the transcript unsealed on consent.

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