SUPERIOR COURT

OF ONTARIO

COURT FILE NO.: 1243/11
DATE: 2012-05-14

B E T W E E N:

HER MAJESTY THE QUEEN

E. Norman, for the Crown

• and -

RASHAWN GIBSON

M. Sciarra, for the Defendant

Defendant

HEARD: May 14, 2012

REASONS FOR SENTENCE

E.J. KOKE J.

[ 1 ] The accused, Rashawn Gibson, has been convicted on each of five counts in a five count indictment under the Criminal Code of Canada (“The Criminal Code ” or “The Code ”). The charges involved C.A., who was 14 years old when the offences occurred, and her mother, I.A..

[ 2 ] Mr. Gibson is before the court to be sentenced. Written sentencing submissions have previously been received from counsel for both the Crown and Mr. Gibson, and these have been reviewed and filed. In addition, the court received oral submissions from both counsel today.

THE FACTS

The Circumstances of the Offence

[ 3 ] The charges which involve C.A. pertain to events which occurred on April 27, 2010.

[ 4 ] On that day, C.A. visited her friend Mike after school. Mike lived in an apartment which was located in a building which is one of a number of apartment buildings on Roche Court in Mississauga, Ontario. Mr. Gibson, who was 25 years old at the time, lived in one of the other apartment buildings on Roche Court.

[ 5 ] C.A. and Mr. Gibson knew each other. They had met several years earlier while they were both living in a shelter. Mike and Rashawn were friends and while C.A. was in Mike’s apartment Rashawn showed up at the door and spent time with them.

[ 6 ] When C.A. left Mike’s apartment to return home, Rashawn accompanied her on the elevator down to the main floor, from where she walked to the stairwell to exit the side of the building. C.A.’s testimony, which the court accepted, was that, when they reached the stairwell, Rashawn pushed her up against the wall and started to kiss her and fondle and stroke her breasts and buttocks. She stated that she resisted and tried to push him away but she was unable to do so; he was too strong. She stated that, although he attempted to put his hands down her pants, her belt was so tight that he was unable to do so. Rashawn continued to kiss and feel her breasts and buttocks for what she believes was about 10 minutes, at which time another resident of the Roche Court apartments entered the stairwell and Rashawn released her.

[ 7 ] With respect to this incident, Mr. Gibson was convicted of sexual assault of C.A., contrary to section 271 of the Criminal Code and of touching C.A., who was under the age of 16 at the time, for a sexual purpose, contrary to section 151 of the Criminal Code . At the conclusion of trial, the conviction for sexual assault was stayed on the basis of the Kienapple principle.

[ 8 ] With respect to the charges which involve C.A.’s mother, I.A., the facts giving rise to these charges arose four days later, on May 1, 2010.

[ 9 ] The court heard evidence that on the evening of May 1, 2010 I.A. attended at the Roche Court apartments to pick up C.A. who had been visiting a friend. After she arrived, she encountered Mr. Gibson outside one of the buildings. I.A. testified that she had heard from her daughter and her daughter’s friends that Mr. Gibson had been touching C.A. and her friends inappropriately. She had also heard that Mr. Gibson had been spreading rumours among the residents of the buildings and among C.A.’s friends that she, I.A., had wanted to have sex with him. She decided to confront Mr. Gibson and soon the two of them were engaged in a heated argument.

[ 10 ] While they were arguing, Mr Gibson displayed in his hand what appeared to be a sharp metal object which I.A. believed was a knife. Mr. Gibson threatened to stab her and to kill her. Mr. Gibson was restrained by another resident of the Roche Court building and he eventually left after I.A. made a call on her cell phone to the police.

[ 11 ] With respect to the events of May 1, 2010, Mr. Gibson was convicted by this court of assault using a weapon, contrary to section 267 (a) of the Criminal Code and with uttering a threat of death against I.A., contrary to section 264.1(1) (a) of the Code .

[ 12 ] At the time these offences occurred, Mr. Gibson was subject to a probation order which had been issued in relation to unrelated charges. In addition to the four charges I have just referred to, Mr. Gibson was also convicted of breaching this probation order by failing to keep the peace and be of good behaviour, contrary to section 733.1(1) of the Code .

The Circumstances of the Offender

[ 13 ] Mr. Gibson has not had an easy life. His mother, in large part, raised him as a single parent. He became a ward of the Children’s Aid before he reached the age of 16 and he has spent a considerable amount of time in group and foster homes. His teenage years have, therefore, been marred by instability. He has two younger siblings who remain in the care of the Children’s Aid Society.

[ 14 ] To add to the challenges which he faces, Mr. Gibson has been diagnosed with Attention Deficit Disorder and as suffering from developmental delays. Probation records indicated that when Mr. Gibson was 18 years old he was functioning at the level of a 10 year old. The evidence during the trial depicted a man in his mid twenties who spent much of his time with high school age young people. His limitations are such that he qualified for and receives an income from the Ontario Disability Support Program.

[ 15 ] When one considers the lack of guidance, structure and stability which has characterized Mr. Gibson’s life to date, it does not come as a complete surprise that he has been in trouble with the law. In fact, he has an extensive record.

[ 16 ] The Crown points out that since September 1, 2000 Mr. Gibson has received a youth and adult criminal record 10 times for violent offences. In addition, there have been 12 findings for other offences, namely property related offences. His record contains 10 findings for failing to comply with court orders. Significantly, he has a previous conviction for sexual assault which he received as a young offender.

[ 17 ] On a more positive note, Mr. Gibson has experienced what would appear to be a significant and stable relationship with Ms. Tanya Rich for approximately the past 9 years. Ms. Rich and her sister acted as sureties for Mr. Gibson on the charges before the court and have continued to act as supports for him following his conviction.

Impact on the Victims

[ 18 ] When C.A. was asked how she felt after the incident with Rashawn in the stairwell, her spontaneous reply was that she felt “disgusted”. In fact, she repeated this response on a number of occasions during her evidence. In my view, it is significant that her immediate reply was not that she was “afraid” or “scared”. I believe it is also significant that, although Rashawn was free on bail after he was charged and he continued to live in his Roche Court apartment, C.A. felt comfortable enough to continue visiting her friends at the Roche Court apartments following this incident, notwithstanding the fact that she might run into him.

[ 19 ] During her testimony, C.A. candidly admitted that one of her high school friends had willingly engaged in the same type of activities with Rashawn but in her mind this was alright because her friend liked Rashawn. Although C.A. was only 14 years old when these events occurred, clearly she was not easily shocked.

[ 20 ] Although I.A. testified that she was afraid during her confrontation with Rashawn on May 1, 2010, she presented her testimony at the trial in a calm detached manner, and I did not detect a strong emotional component to her testimony, neither fear nor anger. She revealed during the trial that she and her family moved in with friends who lived in an apartment building on Roche Court about six months after this incident occurred, notwithstanding the fact that Rashawn continued to live on Roche Court. She herself had been raised in the Roche Court apartments. I.A. struck me as a person who is not easily intimidated, and her own life experiences have taught her to handle herself in stressful and uncertain situations.

[ 21 ] I.A. did file a witness impact statement in which she stated that the emotional loss resulting from this incident is something she has not been able to assess properly. Furthermore, she does not easily express her emotions in tears. She has been left confused and unfocused, however, and she states that her “energy is all over the place”. She has stopped working outside of the house and believes she has “lost everything”.

[ 22 ] I.A. states in her victim impact statement that C.A. will not talk about the incident but has expressed fears of Rashawn’s family coming after her.

[ 23 ] Clearly, both C.A. and her mother do not easily express their fears and insecurities. I am prepared to find that the incidents which gave rise to these charges have naturally left them in a state of some shock and some confusion. On the whole, however, their actions subsequent to these events suggest that they have recovered relatively well from the trauma which accompanied the events.

POSITIONS OF CROWN AND DEFENCE

The Crown

[ 24 ] The Crown submits that Mr. Gibson should be committed to custody for a period of 12-15 months, less time already served, to be followed by probation for three years.

[ 25 ] With respect to the conviction of sexually interfering with C.A., the Crown submits that Mr. Gibson ought to receive a sentence of four to six months, in addition to the mandatory sentence of 45 days which is stipulated for this offence in the Criminal Code .

[ 26 ] With respect to the offences involving I.A., the Crown submits that Mr. Gibson should receive a further three to four month custodial term in relation to each of these offences, to be served concurrently.

[ 27 ] On the failing to comply with a probation order, the Crown requests that the court impose a custodial term of two months.

The Defence

[ 28 ] The defence submits that Mr. Gibson should receive a custodial term of five months, plus probation for two years. It submits that the custodial term should be broken down as follows:

a) Sexual Interference - Mr. Gibson should receive the minimum custodial disposition of 45 days.

b) Assault with a Weapon – Mr. Gibson should receive 60 days consecutive;

c) Threatening Death – Mr. Gibson should receive 30 days consecutive;

d) Fail to Comply Probation – Mr. Gibson should receive 15 days consecutive;

MITIGATING FACTORS

[ 29 ] The Crown acknowledges that Mr. Gibson suffers from developmental delay but points out that Mr. Gibson has been committed to custody on previous occasions, despite his compromised development level.

[ 30 ] The Crown also acknowledges that Mr. Gibson is a youthful offender but points out that notwithstanding this fact he is a very experienced one. He has amassed a vast criminal record over what is now a 12 year period. He has been given numerous non-custodial sentences, apparently to no avail and therefore specific deterrence and denunciation should be considered the paramount sentencing principles.

[ 31 ] The defence reminds the court that Mr. Gibson’s life has been characterized by instability and abandonment. He has not had the benefit of a stable, disciplined and secure upbringing. It submits that the court should consider Mr. Gibson’s intellectual and developmental limitations in determining a proper and just sentence. It also submits that Mr. Gibson’s relatively young age should be taken into consideration.

AGGRAVATING FACTORS

[ 32 ] The Crown asks the Court to find that the following are aggravating factors:

a) The young age of the complainant, C.A.;

b) The fact that Mr. Gibson has amassed a lengthy criminal record, including a record for sexual assault as a young offender;

c) The fact that Mr. Gibson approached C.A. prior to trial and asked her if she was going to drop the charges;

d) The fact that Mr. Gibson threatened violence against I.A.; and

e) The fact that Mr. Gibson was bound by a court order to keep the peace and be of good behaviour at the time these offences were committed.

Discussion

[ 33 ] I am satisfied that the factors set out by the defence and the Crown as mitigating factors constitute such factors. I agree with the Crown that these factors should be considered in the context of Rashawn’s criminal record and the attempts which have been made to rehabilitate him to date.

[ 34 ] I also agree that the factors set out by the Crown as aggravating factors should properly be considered as such.

[ 35 ] Both counsel agree that a period of probation is appropriate considering Rashawn’s circumstances and the defence agrees with the terms of probation which are proposed by the Crown.

[ 36 ] Clearly, Mr. Gibson has suffered from a lack of guidance and structure in his life. A probationary period, with the right conditions, will provide Mr. Gibson with the accountability he needs, and will assist in his rehabilitation.

[ 37 ] I am imposing a three year term of probation to commence once Mr. Gibson is released from custody, with the following conditions, in addition to the statutory terms:

a) No contact with C.A. or I.A.;

b) Not to attend at the residence, employment, school or other places or establishments frequented by C.A. or I.A.;

c) Not to possess any weapons; and

d) Take counselling as directed by the probation officer.

[ 38 ] The defence agrees that, given Mr. Gibson's criminal record and the offences for which this Court has found him guilty, it is clear that there must be a deterrent and denunciatory element to the sentence.

[ 39 ] The defence argues, however, that the Court must not impose such a heavy sentence as to crush Mr. Gibson's prospects at rehabilitation, and submits that the sentence suggested by the Crown will do just that. The principle of restraint requires a Court to consider rehabilitation in determining the appropriate length of sentence.

[ 40 ] I note that, despite having numerous convictions, Mr. Gibson’s criminal record reveals that he has served very little time in custody. There are numerous sentences in which the court has imposed no more than a period of probation, or a suspended sentence or a short custodial term to reflect time served together with a probationary sentence.

[ 41 ] Simply stated, probation by itself has not worked. There is nothing to indicate that probation alone has served to either deter or rehabilitate Mr. Gibson. As I have already stated, Mr. Gibson requires a period of probation because he will benefit from the introduction of some meaningful supervision and accountability in his life after his release, but, in my view, it is time he receives a meaningful custodial term as well which hopefully will deter him from returning to what has become a life of crime.

[ 42 ] With respect to the conviction on the count of sexual interference, the Crown relies on the 2001 judgment of Justice Donnelly in R. v. S.P. [2001] O.J. No. 2896 in submitting that a lengthy custodial sentence is in order. It argues that the facts of that case closely parallel the facts in this case.

[ 43 ] In S.P . the 25 year old accused sexually assaulted a 12 year old girl in his apartment. The assault consisted of touching and kissing, and attempting to remove the young victim’s top. It was a one-time occurrence. The offender was on probation at the time and had a long criminal record. The accused pleaded guilty to sexual interference and breaching his probation. The sentencing judge accepted a joint submission for a 9 month custodial sentence.

[ 44 ] The Crown relies on this case to support the position that a lengthy custodial term is warranted. The Crown points out that Mr. Gibson does not avail himself of the mitigation of a guilty plea, nor a joint submission from counsel, as was the case in S.P. The offenders in both cases appear to be similar in age, as are the complainants, and both offenders have lengthy criminal histories, of which there are an abundance of convictions for breaching court orders.

[ 45 ] The defence submits that the case of R. v. S.P. can be distinguished from the case before this Court.

[ 46 ] It points out that, although the sexual activity in issue between the two cases was similar, the victim in S.P. was younger than C.A. by two years. Although two years is not a significant age gap between adults, it does present as a meaningful gap between young people. The difference in maturity and development between a 12 year old and a 14 year old can be significant. In addition, C.A. presented as a sophisticated 14 year old, who hung out with older people and regularly disobeyed her mother. Although not much is known about the 12 year old victim in S.P. , the defence submits that this age difference should be taken into account as a distinguishing feature.

[ 47 ] The defence also points out that the Court knows little or nothing about the previous sanctions received by S.P. Although this offender had a significant criminal record, nothing is known about the length of custody he received for any of his convictions.

[ 48 ] Thirdly, there is nothing to suggest that S.P. suffered from any of the developmental delays which are present in the case before the court, and therefore that mitigating circumstance was not present.

[ 49 ] I agree that the case of S.P. can be distinguished from this case. In S.P . the court referred to the nature of the crime as “predatory conduct by an older and physically dominant male, making sexual advances on innocent children, children who are too young to have an awareness of what is going on”. I agree that there is a difference in maturity and development between a 12 year old and 14 year old and that this difference can be significant. I would not go so far as to refer to C.A. as an “innocent child”. C.A. was a street smart teenager and was aware of what was going on. However, this does not take away from the fact that the nature of the offence of sexual interference is serious and, in this case it still involved the use of force by an older and physically dominant male. Furthermore, to the extent that C.A. was aware of what was going on, she did know that Mr. Gibson’s conduct was wrong and it disgusted her.

[ 50 ] I agree that there is no evidence to suggest that S.P . suffered from development delays. In fact, I am inclined to believe that it is likely that Rashawn was no more mature than C.A. at the time these offences occurred. The S.P . case can also be distinguished on this basis and, in my view, Rashawn’s delayed development is a valid factor which should be considered in the circumstances of this case.

[ 51 ] With respect to the offence of Sexual Interference, I am sentencing Mr. Gibson to a custodial term of six months. A custodial term of this length is required to give proper effect to the principle of deterrence.

[ 52 ] With respect to the two charges involving I.A., I am sentencing Mr. Gibson to a three month custodial term on each of these charges, to be served concurrently. This represents a denunciatory response and is also intended to deter Mr. Gibson from engaging in such violent conduct in the future.

[ 53 ] With respect to the breach of probation, the Crown requests a further sentence of two months and the defence argues that, because the behaviour representing the breach was part and parcel of the other charges, Mr. Gibson should not receive a significant amount of consecutive custody for this conviction. The defence suggests that a sentence of 15 days, consecutive to the other counts would properly address this concern.

[ 54 ] Although I would normally be sympathetic to the sentencing submissions of the defence with respect to this charge, I note from Mr. Gibson’s criminal record that he has a history of breaching the terms of probation orders. Mr. Gibson will again be placed on probation with respect to the charges before the court today and it is necessary that the court impress on him that, if he breaches the terms of this probation order when he is released from custody, there are consequences which follow from such a breach. I am, therefore, sentencing him to an additional one month with respect to this charge.

[ 55 ] In summary, I am sentencing Mr. Gibson to a custodial term of six months on the charge of Sexual Interference, and consecutive thereto to three months on each of the charges of Assault with a Weapon and Threatening Death, to be served concurrently, and consecutive thereto to one month for breaching his probation order. He is, therefore, sentenced to a custodial term which totals 10 months.

PRE-SENTENCE CUSTODY

[ 56 ] Mr. Gibson spent 14 days in pre-trial custody. The defence submits that the circumstances justify a finding that Mr. Gibson is entitled to credit at a rate of one and a half days for every day spent in custody. The defence also submits that, due to the fact that the conditions of his interim release were very strict and amounted to virtual house arrest, he should be given credit of 60 days on the principles set out in R. v. Downes , [2006] O.J. NO. 2930 .

[ 57 ] The defence points out that Mr. Gibson is not barred from receiving enhanced credit by any of the sections outlined in section 719(3.1) of the Criminal Code , and that, although Mr. Gibson was arrested for breaching his recognizance on two occasions, he was never subsequently detained on the offences before this court.

[ 58 ] In support of its argument that Mr. Gibson should be given enhanced credit, the defence also argues that Mr. Gibson was unable to earn remission during the period he was in custody.

[ 59 ] In my view, there are insufficient circumstances which support giving Mr. Gibson enhanced credit. Not only was he arrested for breaching his recognizance on two occasions, it does not appear that he was committed to observing the conditions of his recognizance at any time. C.A. testified that she saw Mr. Gibson out and about at the Roche Court apartments and at the Square One Mall. On one occasion, he even approached her and asked her if she was going to drop the charges...this was in clear breach of the terms of his recognizance.

[ 60 ] Mr. Gibson is entitled to credit of 14 days for the time he spent in custody awaiting the trial of this case.

ANCILLARY ORDERS

[ 61 ] In addition to the above, I am making the following ancillary orders:

a) SOIRA for 10 years (Section 490.001(a)-Primary Designated Offence);

b) DNA on all applicable counts (Section 487.051)

i. Sexual Interference-Primary Designated Offence-Compulsory

ii. Assault with a Weapon-Primary Designated Offence-Compulsory

iii. Uttering Threats-Secondary Designated Offence;

c) An Order pursuant to section 161 (communicating and being in the company of persons under the age of 16) for 10 years;

d) An Order pursuant to section 109 (firearms prohibition) for life; and

e) An Order pursuant to section 743.21(1) prohibiting contact with the complainants while Mr. Gibson serves any custodial sentence that may be rendered.

FINAL DECISION

[ 62 ] In summary, I am sentencing Mr. Gibson to a custodial term of 10 months, less 14 days representing pre-trial custody, to be followed by a three year term of probation which is subject to the terms already discussed. I am also imposing the ancillary terms which I have already referred to.

E.J. KOKE J.

Released: May 14, 2012

COURT FILE NO.: 1243/11

DATE: 2012-05-14

SUPERIOR COURT OF ONTARIO B E T W E E N: HER MAJESTY THE QUEEN - and - RASHAWN GIBSON Defendant REASONS FOR SENTENCE Koke J.

Released: May 14, 2012