Court File and Parties

Ontario Court of Justice

Date: 2019-07-04

Court File No.: Brampton 17-8147

Between:

Her Majesty the Queen

— and —

O.K.S.

Before: Justice M.M. Rahman

Sentencing Hearing: April 15, 2019

Reasons for Sentence Released: July 4, 2019

Counsel

Carla Agatiello — counsel for the Crown

Robert Christie — counsel for the offender, O.K.S.

Notice

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. Any information that could identify the victim or a witness in this matter shall not be published in any document or broadcast or transmitted in any way. Failure to comply with this order is an offence under section 486.6 of the Criminal Code.

Reasons for Sentence

RAHMAN J.:

1. Overview

[1] On November 7, 2018, I found the offender, O.K.S., guilty of sexual assault and assault. In my reasons for judgment at trial, I found that the offender got angry with S.K. and assaulted her by pulling her hair, striking her, and choking her. A short time after that assault, the offender forcibly had sexual intercourse with her.

[2] The Crown asks that the offender be sentenced to three years imprisonment. The Crown also asked for the following ancillary orders: a DNA order, a SOIRA order for 20 years; a s.109 order; and a s. 743.21 order prohibiting contact with S.K. while the offender serves his sentence.

[3] The offender says that an appropriate sentence is in the range of 21 to 24 months. The offender also asks that he be given credit in the range of three months for the time that he spent on house arrest after his release. He does not oppose the ancillary orders.

2. Circumstances of the Offence

[4] As mentioned above, the offender forced S.K. to have sexual intercourse with him after having assaulted her. The offender and S.K. had returned from an evening out. S.K. had been drinking quite a bit. After engaging in some consensual sexual activity on their couch, S.K. decided she wanted to go to sleep. The offender followed S.K. into their bedroom. When she made a disparaging comment about him, the offender asked to see her phone. When S.K. refused to unlock her phone, the offender pulled her hair, struck her in the face, and choked her with one hand. S.K. agreed to unlock her phone in hopes of ending the assault. The offender left the bedroom with her phone and went onto their balcony.

[5] S.K. went outside to find her phone broken on the balcony. She got upset with the offender, and then returned to the bedroom to sleep. The offender went into the bedroom before S.K. fell asleep. The offender grabbed S.K.'s hair and said, "I'm going to finish and I'm going to do this right." The offender then had non-consensual intercourse with S.K. During the sexual assault, he pulled S.K.'s hair and pushed his forearm on her lower back until she went limp. S.K. could not recall how many times she told him to stop.

3. Circumstances of the Offender

[6] The offender is 36 years old. He was born in Jamaica and came to Canada alone in 2013 to work. He completed high school in Jamaica and went on to get a diploma as an automotive technician in 2005. The offender started working in grade eight. Before coming to Canada, he worked as an airline security officer in Jamaica for a year. After coming to Canada, he worked as a truck driver in Alberta. He came to Ontario in March 2016 because the trucking company he was working for had difficulty finding him work in Alberta. He was unable to find work in Ontario and has been unemployed since he moved here.

[7] The offender met S.K. in March or April of 2016. They began living together in May, and got married in September 2016. His marriage to S.K. is his second marriage. His first wife lives in Jamaica with their three children and he has a good relationship with them.

[8] The offender told the author of his pre-sentence report that he only stayed in his marriage with S.K. to get his "permanent resident papers." During the trial, S.K. explained that she took steps in July 2017 to withdraw her sponsorship of the offender.

[9] A few of the offender's friends and his current girlfriend provided input for the pre-sentence report. All of them considered this offence out of character for the offender. The offender's current girlfriend described her relationship with the offender as "amazing." She also said that the offender copes with conflict by withdrawing "until he is in a better mindset."

[10] There is no dispute that the offender faces deportation given his conviction for these offences and his status in Canada.

4. Impact on the Victim

[11] The impact of this offence on S.K. has been significant. In her victim impact statement, S.K. said that she was not able to function at work after the offence and was dismissed from her job. She did not work for almost a year afterwards. S.K. said that the offence has impacted her emotional stability and that she suffered from depression afterwards. S.K. also said that she is uncomfortable with physical contact, something that had not been an issue for her prior to the assault.

5. Parties' Positions

5.1. Crown's Position

[12] The Crown says that the offender should be sentenced to three years imprisonment on the sexual assault count, and a shorter, but still significant, concurrent sentence on the assault count. Crown counsel, Ms Agatiello, cited the following aggravating features of the offence in support of her position: the violent nature of the assault; the fact that the victim was the offender's spouse; the impact that the offences had on the victim; and that the assaults took place in the victim's home, which should be a place of comfort and security.

[13] Ms Agatiello said that a three-year sentence takes into account the primary sentencing objectives of denunciation and deterrence for this offence. Ms Agatiello also said that the sentence for the assault simpliciter charge should be concurrent, but should nonetheless reflect the gratuitous and violent nature of the assault. Ms Agatiello also said that the collateral consequence of the offender's deportation should not play a large role in determining the appropriate sentence because of the seriousness of the offence.

5.2. Offender's Position

[14] The offender says that a sentence between 21 and 24 months is appropriate. The offender's lawyer, Mr. Christie, says that his client is a first offender and that he has never had any incidents of violence in his domestic relationships prior to this one. He also raises the fact that the offender's marriage to S.K. was a dysfunctional relationship, mired in mutual jealousy and pettiness and that it was doomed from the outset. Mr. Christie made it clear that he was not relying on the dysfunctional nature of the relationship as an excuse, but simply to distinguish it from those cases relied upon by the Crown where the offender had been completely controlling and dominant and made the victim live in fear. He said that this was one incident, albeit a serious one, and not one that was characteristic of the relationship.

[15] In support of his submission for a sentence in the range of 21 to 24 months, Mr. Christie relied principally on R. v. Kyere, which he said is analogous to this case. In that case, the offender was sentenced to 20 months in jail for non-consensual digital penetration, fellatio, and attempted intercourse. Mr. Christie also noted that a number of the cases relied on by the Crown, where higher sentences were imposed, involved repeated assaults, or relationships where the offender exercised control over the victim throughout the relationship.

[16] Mr. Christie also said that the offender should receive Downes credit in the range of three months for the 160 days the offender spent on a house arrest bail order. Mr. Christie notes that the offender was restricted from using his phone by his sureties which limited his contact with his children in Jamaica. Both of his sureties, particularly his second one, restricted his activities and his ability to leave his home. The offender testified that he suffered depression because of the severe restrictions placed on him while on house arrest. Mr. Christie submitted that his client should have his sentence reduced by a total of four months and eight days when his pre-sentence custody (equal to 38 days) and Downes credit are combined.

[17] The offender does not take issue with the ancillary orders being sought by the Crown.

6. Sentencing Principles and Objectives

[18] The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code. That section also sets out six sentencing objectives.

718. 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;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[19] According to s. 718.1 of the Criminal Code, the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principle of proportionality is central to the sentencing process. In R. v. Nasogaluak, the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders.

[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused…Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

[20] Section 718.2 sets out a non-exhaustive list of secondary sentencing principles that a court must consider in determining the appropriate sentence. Subsection 718.2(a) states that "a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender." Seven factors are listed under subsection (a). The Crown relied on the following statutory aggravating factors:

(ii) evidence that the offender, in committing the offence, abused the offender's spouse or common law partner

(iii.1) evidence that the offence had a significant impact on the victim, considering their age, and other personal circumstances, including their health and financial situation

[21] Finally, ss.718.2(b)-(e) sets out the following four sentencing principles:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

7. Analysis

7.1. The Sentencing Range for Sexual Assault

[22] Sentencing is a highly individualized exercise that cannot be reduced to a simple mathematical calculation. Despite the individualized nature of sentencing, sentencing judges often consider sentencing ranges for offences to ensure parity in sentencing similar offenders for similar offences committed in similar circumstances. Sentencing ranges are more descriptive than prescriptive, since they serve as historical summaries of sentences given for a particular crime. These ranges are guidelines for sentencing judges, and should not be considered hard and fast rules, or straitjackets.

[23] The sentencing range for the sexual assault in this case is 21 months to four years. That range comes from the Court of Appeal's decision in R. v. Smith, where the court observed that sentences for "forced intercourse with a spouse or former spouse" generally range from 21 months to four years. As mentioned above, Mr. Christie urged me to impose a sentence within the lower end of this range, especially given the one-time nature of this assault within the relationship. His position finds support in R. v. E.(H.) where the Court of Appeal observed that "cases at the lower end of the range involve single events."

[24] I cannot find that a sentence at the very low end of the range is appropriate in this case. The sexual assault here was preceded by a violent assault against the victim. Although that assault constitutes a separate offence, it would be wrong to ignore it as part of the backdrop of the sexual assault that followed. The sexual assault was a continuation of the offender's attempt to dominate S.K. His comment before he committed the sexual assault – "I'm going to finish and I'm going to do this right" – demonstrates that. The sexual assault itself was a violent one with the offender pulling S.K.'s hair and pushing down on her back, even as she repeatedly told him to stop.

[25] The violence surrounding the assault, the violence during the assault, and the significant impact on the victim, are sufficiently aggravating to remove this case from the upper reformatory range. In my view, a sentence at the low end of the range would be disproportionate to the gravity of the offence. Moreover, a penitentiary sentence is required to fulfill the paramount objectives of deterrence and denunciation given the aggravating factors at play here, even though it involved only a single instance of sexual assault.

[26] Given the aggravating features of this offence, I find that the appropriate sentence for the sexual assault is 2½ years. That sentence is proportionate to the gravity of the offence, by reflecting the aggravating features of the offence, while observing the principle of restraint. That sentence is also sufficient to fulfill the objectives of deterrence and denunciation.

7.2. Immigration Consequences

[27] The offender will likely be deported from Canada after he serves his sentence. As a foreign national, the offender is subject to removal because he has been convicted of an indictable offence that is punishable by more than ten years imprisonment.

[28] I agree with the Crown that the potential immigration consequences should not play a role in determining the appropriate sentence. Indeed, in R. v. McKenzie, the Court of Appeal noted that Supreme Court did not endorse a particular approach for considering immigration consequences. The court concluded that one acceptable approach would allow a sentencing judge to consider immigration consequences only where necessary, and that, "where a sentencing judge determines that a substantial penitentiary term is warranted, there is little point in considering the offender's immigration status."

[29] In the offender's case, the mere fact of his conviction will result in him being inadmissible to Canada for criminality. Further, any sentence I impose within the appropriate sentencing range will make him inadmissible for serious criminality. In short, he would be subject to deportation even if I had decided to impose the sentence he requested. This is a case like McKenzie where there is little point in considering the offender's immigration status.

7.3. Downes Credit

[30] The offender says that his time on house arrest should result in a reduction in his sentence of three months.

[31] I agree with Mr. Christie that the conditions of his client's time on house arrest deserve credit. Without questioning the wisdom of the decision to put him on house arrest, such a bail was an onerous one for someone who has no criminal record. I did not understand the Crown to dispute the offender's testimony about the severity of the restrictions placed on him by his sureties. The Crown's argument that the offender does not deserve much credit because he spends most of his time at home anyway ignores the fact that he was prohibited by his sureties from using the phone to call his family and from even going out of the house.

[32] However, I cannot accept Mr. Christie's submission that his client should receive three months credit for spending just over five months on house arrest. Although there is no precise formula to calculate Downes credit, three months would amount to more than half the time the offender was on a house arrest bail. In my view, credit of 52 days would be more appropriate, given the conditions of his house arrest. That credit is roughly one-third of the time that he spent under house arrest.

7.4. The Assault Count

[33] The assault in this case was serious. The offender choked the victim, pulled her hair, and struck her on the face. She suffered bruising afterwards. A sentence of 4 months concurrent is appropriate on that count.

7.5. Conclusion

[34] The offender is sentenced to 27 months for sexual assault. That net sentence reflects a reduction of 90 days from the sentence of 30 months. He is sentenced to 4 months concurrent on the assault count.

[35] I am also imposing the following ancillary orders:

(1) An order under s. 487.051 requiring him to provide a bodily sample today for inclusion of his DNA profile in the DNA databank.

(2) An order under s. 490.012 requiring him to comply with the Sexual Offender Information Registration Act for 20 years.

(3) An order under s. 109 for ten years for items referred to in s. 109(2)(a) and life for items referred to in s. 109(2)(b).

(4) An order under s. 743.21 prohibiting the offender from having contact with S.K. while he is serving his sentence.

Released: July 4, 2019

Justice M.M. Rahman