Court File and Parties

Court File No.: Central East - Newmarket 11-06561 Date: 2014-03-21 Ontario Court of Justice

Between: Her Majesty the Queen — and — Ysay Gililov

Before: Justice P.N. Bourque

Counsel:

• Ms. Nadine Courville for the Crown
• Ms. Rita Levin for the accused Ysay Gililov

Reasons for Sentence

Released on March 21, 2014

BOURQUE J.:

Overview

[1] The defendant plead guilty to a charge of sexual assault upon one, J.M., arising out of the events of July the 17th, 2011. The plea of guilty was taken on September 27, 2012. The matter comes up today for sentence. In coming to a disposition in this matter, I take into account the facts of this offence, which I will paraphrase from the sentencing hearing.

[2] The complainant, J.M., is a 17-year-old woman. She was working as a life guard on the weekends at a trailer park. She had been for the last four weeks routinely approached by the defendant at the trailer park. At first, she was approached when he told her that he was trying to find a girlfriend for his 17-year-old grandson. At that time, she told him she was not interested as she already had a boyfriend. The defendant then told her that he wished he was her age again as he would in his words "Eat her up".

[3] Over the next four weeks leading up to July 17th, the defendant approached her on several occasions and asked her to go out on dates. There was no physical contact during any of these interactions. However, on July 17th, the complainant was working at the pool. Her shift ended at 5:00 p.m. She noted that the defendant was at the pool near the area. As she left the area the defendant waved to her so she waved back. She continued on the walk to her vehicle through the park and as she approached her vehicle she noted that the defendant was following her. She exited the park gates, got into her car which was parked just outside the gates.

[4] Having some forethought and some concern as to why the defendant was following her, she turned on her audio recorder on her telephone, a Blackberry phone, anticipating the defendant would approach her and he did as she entered her car. He reached in through the steering column and took the keys out of the ignition. He then asked her once again if she would go on a date with him to which she replied, "Maybe". He then asked if she would be willing to go to Toronto with him to which she replied, "No". He then said that he wanted to kiss her and as he was about to kiss her on the lips, she turned her head and he kissed her. The Crown used the word "nuzzle" on her cheek and her neck area as she had turned her face away. While she was doing so the complainant describes that he reached around her, rubbed her lower back as he was doing so.

[5] At this time, the complainant was 17 years old as I have said and the defendant was 62 years of age. The complainant describes how she was quite scared and nervous at the time and she was particularly concerned because she could no longer start the ignition of her automobile. Her responses to him was to respond nervously "Thank you" until he had stopped and she could then close the car door. She got her keys back and she exited the parking lot.

[6] Before she left, he had asked her to roll down the window which she did and he began to ask her some further personal questions. He asked her if her parents were home to which she replied "yes" and she again stated she had a boyfriend and she stated that she was going to meet her boyfriend.

Sentencing Considerations

[7] In assessing the facts of this case, I am mindful that in some similar circumstances courts have considered that a non-custodial disposition could be appropriate. I note in this matter the Crown has proceeded by summary conviction and I note that a conditional sentence of imprisonment is not therefore excluded. However, as per the victim impact statement, which was filed in this matter, and which in my opinion shows a young woman with a maturity and wisdom beyond her years, I must be cognisant of the fact that any form of sexual assault leaves psychological scars which can continue for years or indeed forever in the mind of the victim and indeed have an impact upon her family.

[8] As I have noted, this matter proceeded by a guilty plea September the 27th, 2012 and it was adjourned many times at the request of the defendant and then ultimately it came up for a hearing to strike the plea on February 18th, 2014. After that hearing was complete, I dismissed the application.

Judicial Pre-Trial Opinion

[9] I believe I must note in this matter that I conducted a judicial pre-trial on the day before the plea and on the day of the plea, I indicated on the record as follows:

I confirm that I met with your lawyer and the lawyer for the Crown yesterday in my office. I confirm at that time I gave an opinion to both counsel as to what I thought an appropriate range of sentence would be and I'm indicating to you that while sentencing is always finally up to me, unless I'm appraised of factors that I didn't hear yesterday I can stay within the range that I indicated.

[10] I believe that the words that I spoke to the defendant are important in the larger sense that in our system, the pre-trial process is very important. When a judge provides an opinion based on circumstances provided to him, he should not deviate from his opinion without good reasons. Persons can enter guilty pleas based on these opinions and indeed the Crown many times proceeds upon reduced charges and indeed even lowers the level of possible fact scenarios, based on the judge's opinion.

[11] In short, I would feel bound by such an opinion as long as it falls within the parameters of the facts as then known. In addition, even if the final scenario from the offence or the offender turn out to be different, I feel that it is still important to specify why and how these factors make a difference and only a very significant difference can produce a significant difference in the sentence.

[12] I do find in this case that my opinion has been altered by the following factors: As part of my opinion, there were discussions concerning the fact that the defendant would proceed with a course of counselling before sentence, which did not happen in this case. There was also a discussion that there should be a psychiatric assessment to deal with the issue of recidivism and, indeed, that did not happen either.

[13] I find that these are real considerations and while I do not therefore feel bound by the range, I believe that I still must consider that range in coming to the appropriate disposition.

Pre-Sentence Custody Credit

[14] I note that this gentleman has spent significant time under restrictive terms of house arrest. From arrest to plea, he was under house arrest for just over 13 months and indeed, that house arrest continued after the plea and up to today. That is another 18 months. However, as the delays to reach this final sentencing hearing are almost all within the actions of the defendant, I do not give much further credit for this extended period. I will, however, consider a further period of extended credit of some six months past the date of the plea as this would be an appropriate time for the defendant to have organized the counselling that was the original reason for the adjournment of the sentence.

[15] I therefore will consider a total of 19 months of house arrest in coming to a determination of a final sentence. I rely upon the decision of R. v. Downes, a decision of the Ontario Court of Appeal, which I believe stands for several propositions the most important of which is that period of house arrest before sentence should indeed be taken into account, and while there is no formula for how much credit should actually be given, it is up to the judge to provide reasons for how much credit it does give.

Offender Profile

[16] This defendant is 64 years old. He is an immigrant of Russia, but I believe is a Canadian citizen. He has in the past had the trade of a jeweller, but has been retired for several years. He has several medical conditions and he is on medications which control his heart. He is not a young man, but I do not find based on the information before that he suffers any specific debilitating illnesses.

Criminal Record

[17] I must take into account his criminal record and I note that between 1988 and 2000, he attended on six different sentencing hearings and has been found guilty of approximately eight different criminal offences. I will point out several of the offences which I think are most relevant to my considerations today.

[18] In 1989, March 15, 1989 to be specific, he was convicted of a sexual assault and given a suspended sentence. The facts in that matter indicated the victim was a nine year-old girl and there was a touching of buttocks and vaginal area. A conviction in September 23rd of 1994 for a sexual assault, he received 15 months in custody and a period of probation of two years. In 1999, he had two convictions for assault upon his wife and he spent, on top of the 65 days of pre-trial custody, a further two months in jail and then two years' probation. In 2000, he was found guilty again of two counts of assault on his second wife. He was given, in addition to the four months of pre-trial custody, he was given two further months of custody, plus two years' probation.

[19] He is a recidivist. I note that this offence is about 11 years from his previous and last conviction, and while I assign some credit to that fact, I cannot dismiss the fact that this is his third conviction for a sexual assault and his sixth crime of violence upon women. I also note that he has served several jail terms, up to 15 months in one instance.

Remorse and Insight

[20] He has pleaded guilty and I accept that as some remorse. I will note specifically that his application to have this plea set aside does not form any part of my consideration in this sentencing. I rejected that application, but I note it was largely done from the evidence from his own mouth at the hearing.

[21] There is a pre-sentence report contained in the Crown's materials from 1994. It is in many ways a quite scathing report and in its totality, I do not give it much weight. However, I cannot help but note that the findings in that report discuss how the defendant does not seem to have any remorse for what he has done or, indeed, he does not seem to have any insights into the harm that he has caused others by his behaviours. I compare this with the letter filed from his family doctor, Dr. Livshin, dated August 7th, 2013 and as I review that letter in its entirety, I think I am left with the same conclusion and that is, that this gentleman does not seem to have any insights into what he has done.

[22] I also note in this matter that he had originally undertaken to do some counselling to assist in his own rehabilitation; he has not done so. Again, I can only conclude that those are the actions of a man who lacks the sufficient insight and understanding as to what he has done.

Sentencing Principles

[23] Section 718 of the Criminal Code sets out the fundamental purposes of sentencing and it bears repeating that I am directed to consider the following: To denounce unlawful conduct; to deter this offender and other persons from committing offences; to separate offenders from society, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or the community; and to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

[24] I also note the specific provision of Section 718.01 of the Criminal Code which states:

When a Court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of some conduct.

Disposition

[25] In conclusion, it is my opinion that the criminal record of this defendant and the apparent lack of insight into his behaviours militates in favour of a custodial disposition. I do not feel for the same reasons that a conditional sentence of imprisonment is appropriate. I do not dismiss those cases provided to me by the defendant. However, I distinguish them largely on the basis of this defendant's significant criminal record for similar offences.

[26] In assessing the length of imprisonment, I take into account the following as important factors: My opinion on the pre-trial; the record of the defendant; the gap between the last and this conviction; the lack of insight on the part of the defendant; the principles of 718 and especially the aggravating factors of 718.01; the impact upon this particular victim and the impact on the community; and the need to express denunciation and deterrence.

[27] I trust this gentleman will listen carefully. I believe that the total sentence in this matter before credit for the house arrest and the pre-trial custody should be a total period of 12 months in custody. I would give a total credit for the house arrest to be applied to that figure as four months. I would also give credit for the pre-trial custody on an enhanced basis, which would be six days. Therefore, of the 12 months imprisonment, I deduct four months and six days. This gentleman will be incarcerated from this day forward for seven months and 24 days.

Probation and Ancillary Orders

[28] In addition, he will be placed on probation for a period of three years. There will be the statutory terms, the most important of which is that he keep the peace and be of good behaviour. He will report to a probation officer immediately upon release and thereafter as required. He will take such counselling as recommended by his probation officer after an assessment. He will execute a release of medical, psychiatric or other confidential information to his doctor or counsellor in favour of the probation officer so they can discuss his progress. There will be no association or communication, directly or indirectly, nor any contact with any immediate member of the complainant's family. The defendant will not attend within 500 metres of any known place of residence, work or education of the complainant. He will not possess any weapons as defined by the Criminal Code.

[29] In addition, I impose the following ancillary orders: This defendant will provide a sample of his DNA, it is a primary offence. There will be a firearms ban and I believe it is under Section 110 and it will be for 10 years. He will also comply with the terms of what is colloquially known as the Sex Offender Registry. I am waiving the victim fine surcharge.

Signed: Justice P.N. Bourque

Released: March 21, 2014