Court Information
Ontario Court of Justice
Between: Her Majesty the Queen — And — Apirami Nithiyanantham, Gayathrie Theyagamurti and Natasha Samani
Before: Justice M.H. Bloomenfeld
Heard on: June 4, 2012 and February 14, 2013
Oral Reasons for Sentence Delivered on: March 25, 2013
Written Reasons for Sentence Released on: March 27, 2013
Counsel
P. Woods — for the Crown
L. Moldaver — for the accused Apirami Nithiyanantham
P. Connelly — for the accused Gayathrie Theyagamurti
M. Kerbel — for the accused Natasha Samani
BLOOMENFELD J.:
INTRODUCTION
[1] Apirami Nithiyanantham, Gayathrie Theyagamurti and Natasha Samani pleaded guilty to forcible confinement and assault causing bodily harm in relation to their attack on the complainant, Sherissa Edwards, on March 25, 2011. In committing these offences, Ms. Nithiyanantham, Ms. Theyagamurti and Ms. Samani jointly lured Ms. Edwards out of her home, blindfolded her, forced her into a car and beat her before leaving her unconscious and alone at the side of the road. Until that day, Ms. Edwards and the three offenders had been friends.
[2] The guilty pleas were entered on June 4, 2012, the date set for the preliminary inquiry. A critical part of the resolution agreement was that the Crown would not proceed on the more serious charge of kidnapping and would elect summarily on the other charges in order to cap the maximum potential period of imprisonment at 18 months. The lesser sentencing maximum brought the offenders within the statutory parameters for consideration of a conditional sentence.
[3] At the defence request, sentencing was adjourned to October 26, 2012, to enable the offenders to perform community service and prepare letters of reference and support. Pre-sentence reports were also ordered. The sentencing hearing did not proceed on October 26, 2012, due to the unavailability of Crown counsel and an indication by the offenders that they would benefit from further time for pre-sentence preparations. The hearing ultimately took place on February 14, 2013 and the matter was adjourned to March 25, 2013 for sentence.
[4] The Crown sought a sentence of nine months' imprisonment. Defence counsel concurred that a period of imprisonment was warranted but contended that it should be served in the community as a conditional sentence. Defence counsel suggested that the length of the conditional sentence could exceed nine months in order to adequately address the applicable sentencing principles. All parties agreed that the three offenders are essentially identically situated and should all receive the same sentence.
[5] The evidence and materials filed on the guilty plea and sentencing hearing included photographs of the victim's injuries, cell phone records from Ms. Samani's and Ms. Edwards's telephones, Ms. Edwards' victim impact statement, pre-sentence reports for each of the three offenders, letters of support for each offender and documentation of their educational and professional accomplishments and community service.
CIRCUMSTANCES OF THE OFFENCES
[6] In the late evening of March 24, 2011, Ms. Nithiyanantham contacted Ms. Edwards by cell phone and told her that she had been drinking and wished to spend the night at Ms. Edwards' house. Over the next hour, Ms. Nithiyanantham texted Ms. Edwards repeatedly to persuade her to come out of her house until Ms. Edwards finally complied just after midnight. The Crown filed records from the cell phones of both Ms. Edwards and Ms. Samani, showing parallel exchanges of text messages.
[7] The first exchange, documented in the records from Ms. Samani's phone, involved one of the three offenders and another individual who is referred to at one point as a boyfriend. About an hour before the offence, a few seconds after 11:00 p.m., Ms. Samani's cell phone was used to text that they were on their way to Ms. Edwards' home. Subsequent texts leading up to Ms. Edwards coming out of her house canvass who was involved and what was about to happen. The messages included references to Ms. Nithiyanantham as "Abi" and Ms. Samani as "Tasha." The following is a sampling of the most explicit texts documenting the plan and its unfolding:
23:00:34 – Hi I'm usin tashas phone I'm goin to sherissas now.
23:10:37 – Abi has to bring her out
23:21:15 – I'm break sherissas face now
23:24:46 – No abi tryin to kill her
23:26:52 – Wid who no imwid abi n tasha der callin sherissa out
23:28:17 – She thinks tashsa bringin abi
23:29:27 – Abi usd her name to get sherissa out
23:33:56 – Abi call her out wid tasha
23:34:27 – sed she has a surprise
23:35:25 – Abi blindfold her
23:50:29 – No imam smash her face in
23:53:32 – Almost der abi called her out sed some guy wants talj to her
The outgoing messages from Ms. Samani's cell phone stopped just after midnight.
[8] The concurrent conversation, recorded on Ms. Edwards's phone, was between Ms. Nithiyanantham and Ms. Edwards. Through text messaging, Ms. Nithiyanantham persistently and repeatedly inveigled Ms. Edwards to come outside and meet them. Ms. Edwards resisted, saying that she was tired and going to bed because she had school the next day. Ms. Nithiyanantham was relentless. First, Ms. Nithiyanantham told Ms. Edwards that she needed to talk to her because "so much shit happened have to tell you soooo much shit" and "U have no idea I need u soo much right now." Ms. Nithiyanantham then changed tack and tried to lure Ms. Edwards with the transparently false suggestion that there was a boy with them who wanted to meet her. Over and over again, Ms. Edwards said that she wanted to go to sleep and did not want to come out. Ms. Nithiyanantham persevered, telling Ms. Edwards repeatedly that she was outside that Ms. Edwards had to come out. At one point, Ms. Nithiyanantham insisted, "Don't fall asleep it'll be worth it! Trust me lovee." After demurring numerous times, Ms. Edwards finally acceded and went out to see Ms. Nithiyanantham standing outside her home with Ms. Theyagamurti and Ms. Samani. The final text messages from Ms. Edwards to Ms. Nithiyanantham, sent just seconds after midnight, said "R u rite by my door … Cus I don't see u."
[9] A cloth bag was placed over Ms. Edwards' head and she was dragged towards a waiting vehicle. She dialled 911 on her cell phone but one of the three offenders grabbed the phone and disconnected the call. The last outgoing call made from Ms. Edwards' cell phone was to 911 at 12:01 a.m. The call lasted 14 seconds before it was disconnected.
[10] Ms. Edwards was forced into the vehicle and the bag was removed from her head, enabling her to see the positions of the other three young women. Ms. Samani was driving, Ms. Nithiyanantham sat in the front passenger seat and Ms. Theyagamurti sat beside Ms. Edwards in the back seat. Ms. Edwards struggled and Ms. Theyagamurti began wrapping a tensor bandage around her head to obscure her vision. Ms. Edwards felt a hand on her mouth and nose. The offenders drove Ms. Edwards around for 10 to 15 minutes, during which she was punched repeatedly. The vehicle then came to a stop and Ms. Edwards was dragged out, thrown to the ground and struck on the back. She lost consciousness.
[11] When Ms. Edwards woke up, she was alone. Ms. Samani, Ms. Nithiyanantham and Ms. Theyagamurti had fled. Ms. Edwards did not have her phone and had to knock on random doors, asking for help. Eventually the police were called and Ms. Edwards was taken to the hospital.
[12] All three of the offenders had been drinking that night. While it is acknowledged that their conduct may have been lubricated by alcohol, there is no suggestion that intoxication diluted their mens rea. Perhaps alcohol-fuelled disinhibition contributed to the choices that they made, but they remain responsible for their actions and the consequences.
VICTIM IMPACT AND INJURIES
[13] Ms. Edwards sustained bruising to her forehead, arm and left shoulder as well as a large cut above her left eye. Photographs taken directly after the attack depict Ms. Edwards' bruises, her bleeding eyebrow, blood splatters all over her forehead and trails of blood from her eyebrow down her face. The bruising left Ms. Edwards in constant pain for several weeks. For close to three weeks, she could not sleep on her back. She also suffered severe migraines and nausea.
[14] Ms. Edwards' physical injuries healed but the emotional and psychological scars remained, as poignantly described in her victim impact statement, tendered in the form of a letter to the court dated October 25, 2012. Ms. Edwards wrote that she had never, in all of her 22 years, "experienced or witnessed something so traumatizing and inhumane." She repeatedly relived that night, to the point where she was robbed of peaceful sleep and would wake up with chills, thinking that she could have died. Her sense of personal security was desecrated and she lived in fear that stepping outside her home, even for a minute, would expose her to someone waiting to hurt her. Her social relationships, self-confidence, self-esteem and ability to trust were also damaged. Ms. Edwards blamed herself for choosing her friends poorly and felt guilt about the worry and stress that the attack had inflicted on her family. In summarizing her sense of betrayal and the lasting legacy of being victimized by girls that had she thought of as friends, Ms. Edwards wrote:
"I never imagined in a million years that the girls whom I let into my home, interact with my family were capable of something so despicable …I strongly believe that their actions were far from civilized and I am most definitely afraid that they will retaliate and hurt me or even my family again. It's heartbreaking that the 3 girls whom I spent most of time with could just leave me beaten up on the side of the road, left their too rot [sic] like I was trash. I will forever be haunted by the events of that night."
[15] Ms. Edwards is clearly a bright, articulate, insightful young woman who is just beginning to come into her own and explore her world. These vicious acts of cruelty committed against her by girls she had trusted as friends have irrevocably and indelibly altered the course of her life and her view of the world and humanity. At the insistence of her parents, she sought the help of a psychiatrist. She wrote that her psychiatrist had tried to assure her that there were good people in the world but she was unable to believe it. Ms. Theyagamurti, Ms. Samani and Ms. Nithiyanantham robbed Ms. Edwards of precious months of happiness and optimism. At least their acceptance of responsibility and their decision to plead guilty brought closure to the legal proceedings, thereby clearing one obstacle to Ms. Edwards moving forward with her life. Hopefully, Ms. Edwards will regain her ability to trust and her belief in goodness and safety. If or when she does, it will be a testament to the love of her family and her own fortitude and perseverance.
CIRCUMSTANCES OF THE OFFENDERS
Apirami Nithiyanantham
[16] Ms. Nithiyanantham was only 22 years old when she committed these offences. Today she is 24. She has no criminal record, has expressed remorse, acknowledged responsibility and performed 110 hours of community service to demonstrate her commitment to repaying her debt to society. According to her counsel, Ms. Nithiyanantham immediately wanted to apologize to Ms. Edwards and wished to plead guilty from the start. The fact that the guilty plea was not entered until the date set for the preliminary hearing was because that was the first time that the Crown had agreed to proceed by summary conviction, thereby allowing for a potential conditional sentence and limiting the maximum term of imprisonment to 18 months. At the conclusion of the sentencing hearing, Ms. Nithiyanantham expressed to the court that there is not a day that goes by that she does not think about what happened and she deeply regrets it.
[17] Ms. Nithiyanantham did not have an easy home life. She was born just a year after her parents came to Canada from Sri Lanka and, as a middle child, often felt overlooked or invisible. According to Ms. Nithiyanantham's sister, their parents may also have been somewhat challenged by the prospect of raising a young child in a new culture dominated by a second language with which they are still uncomfortable. Ms. Nithiyanantham told the author of the pre-sentence report that she felt isolated, lonely and unsupported at home. This led to a difficult and rebellious phase in which she became entangled in an abusive relationship and started cutting herself to gain attention. Her home life improved four years ago when she brought home a dog, over her parents' objections. She described getting her dog as the best thing that ever happened to her. Ms. Nithiyanantham's parents are now separated and she currently lives with her mother.
[18] Ms. Nithiyanantham also struggled in high school, acquiring at least two suspensions for physical conflicts with other girls. At one point, she stopped going to school altogether. Nevertheless, Ms. Nithiyanantham did well enough in school to gain admission to university and is currently at Ryerson University studying business administration, hoping to become a Chartered Accountant. Sadly, as her counsel advised, the criminal record resulting from these offences may bar Ms. Nithiyanantham permanently from the profession that she has worked so hard to strive towards. Further, if she has to withdraw from school, she may be left with a substantial debt that she could struggle to repay if she cannot pursue her professional goals. Despite her missteps, Ms. Nithiyanantham has demonstrated that she has the intelligence and drive to succeed and has established a solid record of professional work experience. The exhibits filed at the sentencing hearing as well as the pre-sentence report document her experience in a variety of responsible positions including event planner, customer service representative, administrative assistant, data entry clerk and accounts payable clerk. Ms. Nithiyanantham has continued to pursue her goals even though she suffers from stress-triggered migraine headaches that interfere with her ability to work.
[19] Ms. Nithiyanantham's pre-sentence report was positive. The author of the report described her as cooperative, candid and forthcoming, and opined that:
[Ms. Nithiyanantham's] upbringing suggests she was exposed to a challenging home life wherein she felt overlooked, perceiving herself to be the least favoured among her siblings with whom she competed for parental attention and approval. While she was well provided for, it would appear that she felt herself to be neglected and lonely, inadvertently causing her to seek attention elsewhere and through other less satisfactory means. In the absence of a cohesive family support system, [Ms. Nithiyanantham] pursued negative peer associations that proved to be inclined toward deviant behaviour, or worse, to violent and aggressive tendencies.
It is apparent that [Ms. Nithiyanantham] was not able to cope with the enormity and stresses associated with her family life. She consequently resorted to drinking and outings with like-minded peers as a maladaptive means of coping.
The report concluded that Ms. Nithiyanantham would be appropriate for, and benefit from, a period of community supervision, should that form part of the sentence. That conclusion is supported not only by Ms. Nithiyanantham's lack of any criminal record but also by her diligent compliance with a rigorous bail order for two years.
[20] The implicit conclusion of the pre-sentence report and the explicit submission of counsel is that Ms. Nithiyanantham is capable of rehabilitation. I agree. Ms. Nithiyanantham is young and intelligent and has proven herself able to overcome difficult challenges to become successful at school and work. Ms. Nithiyanantham has lost her way more than once and yet, over and over again, she has set herself back on a path towards a positive and productive future through her own willpower and ability. If she continues to use that strength and to believe in herself, there is every possibility that she will cope with the consequences of her criminal conduct and develop true insight into her own needs and challenges. In short, Ms. Nithiyanantham has the potential to become a successful, valued and law-abiding member of the community.
Gayathrie Theyagamurti
[21] Ms. Theyagamurti is now 27 years old. At the time of the offences she was 25. As aptly put by her counsel, Ms. Theyagamurti's credentials are "impeccable." She has no criminal record and has scrupulously observed her bail conditions for two years. Ms. Theyagamurti has always worked hard at school and at her job and she has excelled. She has a Bachelor of Arts majoring in Criminology and Justice as well as a Social Services Worker diploma. She currently works at Best Buy and hopes ultimately to become a counsellor with young offenders and abused women. Throughout her life, Ms. Theyagamurti has enjoyed the love and support of her parents and brother and they have stood by her during these legal proceedings. She still lives with her parents. Her mother and brother, as well as other family members, friends and colleagues, all see her as a strong, dependable, caring and good person.
[22] The pre-sentence report was very positive and described Ms. Theyagamurti as polite, cooperative and forthcoming. Ms. Theyagamurti not only appears to have accepted responsibility for the offence, but says that she is committed to using her own mistakes and criminal conduct to enhance her ability to help others. There is tangible evidence of that commitment in the 600 hours of community service that she has performed in the last two years. Further, as her counsel submitted, Ms. Theyagamurti's dedication to serving her community pre-dated the commission of these offences. Ms. Theyagamurti's potential for rehabilitation is reinforced by the impressive and glowing letters of support filed on her behalf. She is beloved and admired by friends, family, employers and colleagues and is clearly capable of making a significant contribution to the community and doing much good in the world.
[23] At the conclusion of the sentencing hearing, Ms. Theyagamurti apologized to Ms. Edwards and her family and acknowledged that mere words could not truly convey her regret for her actions. She wants to prove that she can once more be a valuable member of society. All that I have heard and read suggests that she can fulfil that goal. I believe that Ms. Theyagamurti is capable of rehabilitation and of gaining invaluable insight from this experience that will set her back on course towards becoming an exemplary, compassionate and law-abiding member of society.
Natasha Samani
[24] Ms. Samani committed these offences shortly before her 22nd birthday. She turns 24 next week. Like Ms. Nithiyanantham and Ms. Theyagamurti, Ms. Samani has no criminal record and has observed all of her bail conditions for the last two years without incident. As a result of the Crown's refusal to consent to a bail variation, Ms. Samani missed out on educational opportunities in Quebec. Ms. Samani has continued to apply herself at school and work. She attends York University part time where she studies Human Resources Management and works full time as an Assistant Manager in a health supplement store. She has also volunteered with Meals on Wheels since October, 2012.
[25] In her pre-sentence report, Ms. Samani expressed gratitude that her parents have stood by her during these criminal proceedings. She continues to live with them but is financially independent and hopes to have her own residence soon. Despite her parents' unwavering support, Ms. Samani does not enjoy a close relationship with them. Throughout her childhood, she found them to be strict and emotionally distant. She is, however, much closer with her older brother. He and her parents, as well as her friends and her employer, indicate that, other than this offence, Ms. Samani is a good and reliable person. Those who know her believe that this offence was out of character and attribute her conduct to immaturity and poor choices in friends. Her mother suggested that Ms. Samani has gained insight and wisdom as a result of this incident and is now more careful about who she spends time with and the decisions that she makes. The author of the pre-sentence report found Ms. Samani to be pleasant and cooperative and confirmed that she acknowledged responsibility for the offences and was capable of avoiding recidivism.
[26] Ms. Samani is very remorseful and wished to write a letter of apology to Ms. Edwards but was instructed not to do so by her counsel. She expressed her remorse directly at the sentencing hearing, saying that she apologized sincerely to Ms. Edwards and her family for everything that had happened. Further, Ms. Samani told the court that she wished she could go back to that day and take everything back and not be a part of it. The offences have set her back and caused her to evaluate every aspect of her life and to assess the people with whom she associates.
[27] Ms. Samani's circumstances and background indicate that she is certainly capable of rehabilitation. She is intelligent, resourceful, self-motivated and has gained wisdom and insight from this sad chapter in her life. If she is able to maintain her commitment to making better choices and taking responsibility for her actions, there is every reason to hope that she will not commit further criminal offences.
MITIGATING FACTORS
[28] The sentence in this case must reflect the significant mitigating factors that relate equally to each of the offenders. The value of the guilty pleas is profound. They enhance the credence of the offenders' expressions of apology to Ms. Edwards and their assertions of remorse. Further, they rescued Ms. Edwards from the ordeal of reliving the terrifying events of that night through her testimony and undergoing cross-examination at the preliminary inquiry and at trial by three separate counsel. As well, in pleading guilty and acknowledging responsibility, each of these three young women took an important step towards rehabilitation. I do note that the guilty pleas were not entered until the preliminary inquiry date and reflected a change in the Crown's position that was highly beneficial to the offenders. Further, as demonstrated by the summary of the evidence presented on the guilty plea, the Crown's case was very strong. Nevertheless, the guilty pleas and the remorse and acknowledgment of responsibility that they signify are extremely mitigating.
[29] It is also highly mitigating that these offenders are very youthful and have no criminal records at all. In many ways, their lives until this incident were exemplary. Since they were charged with these offences, all of the offenders have worked hard to regain the respect of their families, friends and community through community service, commitment to education, employment and diligent observance of their bail conditions. Their conduct before and after that awful night suggests that criminal behaviour is out of character for them. They were young, they had been drinking, they were influenced by one another, and they made a series of terrible choices. They are all capable of choosing never to participate in that sort of conduct again.
[30] Finally, all three of these young women have already begun to pay the price for their actions. For two years they have endured the constraints of rigorous bail orders, the stress of these proceedings and the uncertainty of the outcome. They have lost friends, progress in school, self-confidence and, in many ways, the innocence of youth. The young women that I am sentencing today are older, sadder and wiser than they were when they perpetrated these offences.
AGGRAVATING FACTORS
[31] The aggravating factors derive primarily from the circumstances of the offences and the impact on Ms. Edwards. In particular:
(i) Even though they did not plot exactly what they were going to do to Ms. Edwards, there is no question that the offenders planned to lure her from her home;
(ii) The plan was in the works for at least an hour before it was executed;
(iii) Ms. Edwards' objections to coming out at that late hour were repeatedly dismissed and overridden. The efforts to entice her from her home were persistent and aggressive;
(iv) Ms. Edwards' attempt to call 911 for help was short-circuited when her phone was disconnected;
(v) Ms. Edwards was attacked by multiple assailants. She did not have a chance;
(vi) The terror was compounded by Ms. Edwards being blindfolded and forced into the car;
(vii) Ms. Edwards was assaulted while she was trapped in the car, having no idea where she was being taken or what was going to happen;
(viii) The offenders were not satisfied with merely abducting, blindfolding and beating Ms. Edwards. They dragged her out of the car, knocked her to the ground and left her there unconscious;
(ix) When the offenders drove away, all they knew was that Ms. Edwards was alone and unconscious with no means of getting help. They had no idea if she was dead or alive or how badly injured she was. It was the middle of the night and Ms. Edwards was excruciatingly vulnerable. The callousness of this abandonment and leaving Ms. Edwards, as she put it, like trash, is deeply aggravating;
(x) As revealed by her victim impact statement, Ms. Edwards was profoundly traumatized by this experience. Her sense of safety and security were violated and it remains to be seen whether she will ever recover her self-confidence or her ability to trust;
(xi) In addition to the psychological trauma, Ms. Edwards was physically injured, as demonstrated in the photographs taken of her wounds at the hospital.
In summary, this was a serious, frightening, callous act of group violence, committed for inexplicable reasons. Its shocking features and penetrating consequences are egregious and aggravating and define the incident as a grave manifestation of the offences of forcible confinement and assault causing bodily harm.
PRINCIPLES OF SENTENCING
[32] The purpose and objectives of sentencing are set out in s. 718 of the Criminal Code as follows:
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders; and
(e) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.
[33] Pursuant to s. 718.1 of the Criminal Code, the calculation of a fit sentence that accomplishes the pertinent sentencing objectives must also be calibrated according to the governing principles of proportionality and totality. The global sentence must be proportionate to the gravity of the offences and the responsibility of the offenders.
[34] In my view, in this particular case, the paramount sentencing principles are denunciation, deterrence and rehabilitation.
[35] As I have indicated, each of these offenders has demonstrated not only that she is capable of rehabilitation, but also that she has taken concrete steps in that direction. Further, the objective of specific deterrence has been at least partially achieved by the consequences that the offenders have already suffered and the insight wrought by the impact of these legal proceedings. It remains crucial, however, that the sentences promote the rehabilitation of these three young women and reduce any remaining risk of recidivism.
[36] It is also critical that the sentences convey the community's denunciation of this dehumanizing, traumatizing criminal conduct and send a clear and effective message that this kind of terrifying violence will not be tolerated and will attract real and substantial consequences. In other words, denunciation and general deterrence are key sentencing objectives. The offenders' rehabilitation is important, but it cannot supplant or obscure the need for a sentence that clearly and unequivocally corresponds to the gravity of the offences.
RANGE OF SENTENCE AND JURISPRUDENCE
[37] The circumstances of these offences and these offenders are unique and it is therefore difficult to rely on other jurisprudence in determining a fit sentence in this case. Crown counsel did submit several cases that shared some common features with this incident. The sentences in those cases range from an 18-month conditional sentence to one year in jail plus two years probation.
[38] The case at the lowest end of this range is R. v. Dutrisac in which the Ontario Court of Appeal quashed a sentence of 12 months imprisonment and substituted an 18-month conditional sentence. The facts of Dutrisac as reported in the trial judge's decision bear some superficial similarity to the instant case. Mr. Dutrisac was also a youthful first offender, who, along with his co-accused, planned and executed the abduction and beating of the victim. The offences committed by Mr. Dutrisac also bore some aggravating features lacking in the case before me. Mr. Dutrisac used a wrench as a weapon to beat the victim and the attack went on longer than the assault against Ms. Edwards. There are also, however, other distinguishing factors between the two cases. Mr. Dutrisac's co-accused had received an 18-month conditional sentence. Further, the attack in Dutrisac was motivated by the victim's theft of the offender's computer equipment and marijuana. Finally, in Dutrisac, there was no indication of the humiliation, trauma and abuse of friendship that characterizes this case.
[39] Another of the tendered cases that contains some parallels with the case at bar is R. v. Gowans. In Gowans, the Ontario Court of Appeal upheld the trial judge's rejection of a conditional sentence and imposition of nine months' imprisonment. Ms. Gowans and three others lured the victim into their car late at night, confined her and drove her to a dark field where they pounded her on the head and hurt her hand. Once they reached the field, Ms. Gowans continued to beat the victim about the head, ordered her to strip and robbed her of her mother's engagement ring. Ms. Gowans' case is, in some ways, more aggravated than the instant case in that Ms. Gowans had a criminal record for violent offences, was the ring leader, made the victim strip off her clothes and also robbed her. On the other hand, the Gowans case did not include the highly aggravating feature of leaving the victim unconscious and vulnerable by the side of the road.
[40] The other two cases submitted by the Crown, R. v. Rahaman and R. v. Kanagaratnam, in which the accused were sentenced to 9 months and 12 months imprisonment respectively, do not bear sufficient factual similarity to provide useful points of comparison. Rahaman was a domestic case and Kanagaratnam, although also involving an accused with no record and a group abduction and beating, was a sentence imposed after a trial as opposed to a guilty plea.
[41] Cumulatively, these cases establish that the range for forcible confinement and assault causing bodily harm committed by multiple perpetrators can encompass both a conditional sentence and several months' actual imprisonment. Every case must be assessed according to the individual circumstances of the offence and the offender. In the case at bar, the critical question is whether the applicable sentencing principles would be satisfied by a conditional sentence.
AVAILABILITY OF A CONDITIONAL SENTENCE
[42] This case meets the statutory preconditions for consideration of a conditional sentence. There is no minimum period of incarceration and, because the Crown elected to proceed summarily, the maximum available sentence of imprisonment is less than two years. Accordingly, I may exercise my discretion to impose a conditional sentence if I am satisfied that it would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.
[43] I am satisfied in this case that a conditional sentence would not endanger the safety of the community. None of the offenders has a criminal record and all of them have demonstrated that the offences were out of character and they are able to comply with court ordered conditions of release. Two years have passed since these offences were committed and, throughout that time, the offenders have been model, law-abiding citizens.
[44] I am also satisfied that a period of imprisonment is not essential to address rehabilitation and may not be necessary to fulfil the need for personal deterrence. The process itself appears to have had a deterrent effect on these young women and I accept their expressed determination to avoid any future conflict with the law. The offenders have also demonstrated their tangible commitment and amenability to rehabilitation with their actions since these charges were laid through their community service and continued pursuit of their goals in employment, education and life. I believe that their rehabilitation can be accomplished through community supervision.
[45] The more difficult issue is whether service of the sentence in the community would satisfactorily fulfil the objectives of denunciation and general deterrence. To resolve that issue, I rely on the direction of the Supreme Court of Canada in its seminal decision in R. v. Proulx. Following Proulx, I must and do give serious consideration to the possibility of a conditional sentence in accordance with Parliament's goal of reducing the use of incarceration. I note as well that the option of conditional sentences facilitates application of the principle in s. 718.2(d) of the Criminal Code that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. Proulx also established unequivocally that denunciation and deterrence do not necessarily require a sentence of actual imprisonment. In summarizing the requisite analytical process underlying consideration of a conditional sentence, Chief Justice Lamer observed that:
• A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future.
• Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved. However, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served.
• A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances.
[46] Having applied this analytical template to the facts of this case, I have concluded that a conditional sentence would not be consistent with the fundamental purpose and principles of sentencing. In particular, in view of the gravity of the offences and the egregiousness of the aggravating circumstances, a sentence of imprisonment is needed to fulfil the objectives of deterrence and denunciation. I appreciate that a conditional sentence of substantial length that significantly restricts an offender's liberty can, in some instances, satisfy the need for deterrence and denunciation. After anxious consideration, I have determined that this is not one of those cases. The cruelty, violence and harm inflicted by these young women and their callous abandonment of the unconscious and vulnerable victim at the roadside require a period of actual imprisonment to adequately address denunciation and deterrence. In the words of Lamer, C.J.C. in R. v. Proulx, this is a case in which "the need for denunciation [and] deterrence is so pressing that incarceration [is] the only suitable way in which to express society's condemnation of the offenders' conduct [and] to deter similar conduct in the future."
[47] I am, however, also taking into account the significant mitigating factors that I have set out as well as the importance of rehabilitation in calculating the length of imprisonment. While the Crown's position of nine months is completely fair, I have concluded that a shorter period of imprisonment plus probation will most effectively address all of the pertinent sentencing principles here, including deterrence, denunciation and rehabilitation. Accordingly, Ms. Nithiyanantham, Ms. Theyagamurti and Ms. Samani are each sentenced to the equivalent of 195 days in jail, to be followed by two years of probation. From that 195 days I will deduct credit at a rate of 1.5 to 1 for time served in pre-sentence custody. That sentence is concurrent on both counts.
[48] The conditions of probation will be:
• Keep the peace and be of good behaviour;
• Appear before the court when required to do so by the court;
• Notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;
• Report within two working days of release to a probation officer and thereafter as required;
• Do not associate with, contact or communicate directly or indirectly with Sherissa Edwards;
• Do not be within 200 metres of anywhere that you know Sherissa Edwards to live, work, go to school or happen to be;
• Do not associate with, contact or communicate directly or indirectly with your co-accused;
• Do not possess any weapons as defined by the Criminal Code;
• Take any counselling recommended by your probation officer and sign any releases requested so that your compliance with this order may be monitored.
ANCILLARY ORDERS
[49] Assault causing bodily harm is a primary designated offence and there will be a DNA order with respect to all three offenders. There will also be a s. 109 weapons prohibition order for 10 years. In view of the time to be spent in custody, I waive the victim surcharge.
Released: March 27, 2013
Signed: "Justice M. H. Bloomenfeld"