SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: JJ 23/11
DATE: 20120706

RE: Her Majesty the Queen v. W.R.

BEFORE: Coats J.

COUNSEL:
K. Frew, Counsel for the Crown
T. Wiley, Counsel for W.R.

Publication of Any Information Tending to reveal the identity of the Complainant Herein is Prohibited under s. 486.4 of the Criminal Code of Canada

REASONS FOR SENTENCE

cOATS j.

1. Overview

[ 1 ] On June 23, 2011, Mr. W.R. was found guilty by a jury of sexual assault, contrary to s. 271 of the Criminal Code of Canada and assault, contrary to s. 266 of the Criminal Code of Canada. On February 3, 2012, Mr. W.R. pleaded guilty to failing to comply with an undertaking given to an officer in charge to abstain from communicating directly or indirectly with K.J., contrary to s. 145(5.1) of the Criminal Code of Canada.

2. The Facts

a) Circumstances of the Offences

[ 2 ] W.R. and K.J. were in an “on-again/off-again” romantic relationship from 1991 to October 1, 2009, with some gaps in time. The jury found Mr. W.R. guilty of sexually assaulting and assaulting Ms. K.J., both incidents having occurred on October 1, 2009. On June 4, 2012, I made a Ruling Re: Ambiguous Verdict and concluded that the sexual assault included Mr. W.R. touching Ms. K.J.’ breasts, putting his hand between her legs and digitally penetrating Ms. K.J. and Mr. W.R. laying on top of Ms. J. and penetrating her with his penis, all without Ms. K.J.’ consent. When Mr. W.R. touched her breasts, Ms. K.J. asked Mr. W.R. to stop and rolled over and put her back to Mr. W.R.. When Mr. W.R. put his hand between her legs, Ms. K.J. asked him to stop and he digitally penetrated her. At some point, Mr. W.R. said this is what it’s like to be raped. She asked him to stop again and he kept going.

[ 3 ] With respect to the physical assault, after the sexual assault Mr. W.R. went to the bathroom. When he returned to the bed, he lay down beside Ms. K.J. and she got up. Mr. W.R. leapt out of bed and turned Ms. K.J. around and threw her on the bed so the back of her head hit the footboard. Mr. W.R. straddled Ms. K.J. and punched her leg with his closed fist. He then slapped her face on both sides and at one point had his hand on her neck and was striking her face. He hit her face more than four times. There were four photographs filed as exhibits at the trial showing Ms. K.J.’ injuries to her face (marks, bruising) and injuries to her buttocks (bruising). Some of the facial bruising lasted approximately one week; the vertical bruise lasted 4 to 5 days. The bruising on her buttocks happened during penetration.

[ 4 ] With respect to the breach of condition, on November 11, 2009 Mr. W.R. phoned Ms. K.J.. At some point, Ms. K.J. said to Mr. W.R. that he could not come near her because he beat the crap out of her. He responded by saying, “Is that what you call beating the crap out of you?”.

b) Circumstances of the Offender

[ 5 ] Mr. W.R. was 43 years of age at the time of the sexual assault and assault and 44 years of age at the time of the failure to comply (d.o.b. […], 1965). He is the eldest of 5 children born into a family in Jamaica. He immigrated to Canada at approximately 8 years of age. He lived with his mother and stepfather in a loving and nurturing environment.

[ 6 ] Mr. W.R. had a four-year common-law relationship. He has one son from this union.

[ 7 ] Mr. W.R. graduated from grade 12 and enrolled in a law and security program at a community college. He left after completing a few courses.

[ 8 ] Mr. W.R. has had fairly steady employment, with periods of lay-offs. He worked in a warehouse for 12 years, following by 10 years employment with a glass company commencing in 1998. In 2009 he worked apprenticing in appliance repair. In 2010 he was hired by a large company, then laid off after 4 months. He worked for another company, then was called back to the large company in May 2011.

[ 9 ] Mr. W.R. admitted to experimenting with crack cocaine. On October 1, 2009 both Mr. W.R. and Ms. K.J. had smoked crack cocaine. On October 1, 2009 Mr. W.R. had also consumed alcohol.

[ 10 ] Mr. W.R. has no criminal record.

c) Evidence at Sentencing Hearing

[ 11 ] No witnesses were called at the sentencing hearing. Five exhibits were filed, on consent, which are summarized as follows.

1. Exhibit 1 - Ms. K. J.' Victim Impact Statement

Ms. K.J. stated that her world has been markedly altered by these incidents. She has experienced fear and distrust. She states that her facial bruising lasted for about 10 days. Ms. K.J. writes that while the physical wounds have healed, the emotional toll continues to be paid. She gives specific examples of how the fear and distrust enter into her daily life. She states that in the space of one night her life path was completely altered.

2. The Pre-Sentence Report

Much of the information above under the heading “Circumstances of the Offender” comes from the pre-sentence report. Overall, it is a positive report. In addition to the information already summarized, Mr. W.R. presented as a person “with a consistent social circle” and his brothers who were interviewed spoke positively about Mr. W.R., as did his friend, Marlon Brown. The pre-sentence report sets out that Mr. W.R. appears to have a positive relationship with his son.

3. Exhibit 3 - Letter from T.R. dated November 16, 2011

T.R. is W.R.’ son. T.R. in his letter states that he has a very positive relationship with his father, who has been there for him “emotionally, physically and financially”, all of his life. T.R. concludes his letter by stating, “My dad is a good person. I respect and love my dad dearly. He’s been around my whole life and I appreciate everything he has done for me”.

4. Exhibits 4 and 5 - Letters from Front Line Workforce Inc.

These letters, one dated November 11, 2011 and one dated March 28, 2012, confirm Mr. W.R.’ employment through this temporary/permanent agency. Mr. W.R. has a new position through this agency commencing February 21, 2012.

3. Legal Parameters

[ 12 ] Under s. 271(1)(a) of the Criminal Code of Canada , Mr. W.R., having been found guilty of the indictable offence of sexual assault, is liable to imprisonment for a term not exceeding 10 years. Under s. 266(a) of the Criminal Code of Canada , Mr. W.R., having been found guilty of the indictable offence of assault, is liable to imprisonment for a term not exceeding 5 years. Under s. 145(5)(a) of the Criminal Code of Canada , Mr. W.R., having pleaded guilty to the indictable offence of failure to comply, is liable to a term of imprisonment not exceeding two years.

4. Positions of Crown and Defence

[ 13 ] The Crown is seeking a global sentence of 40 months of incarceration. Mr. W.R. spent 4 days in custody following the failure to comply charge. The Crown and defence agree that Mr. W.R. is entitled to a 4 day credit. The Crown also requests various ancillary orders, all of which the defence consents to. The defence requested a global 90-day intermittent sentence followed by 3 years of probation with the maximum number of community service hours. The defence sought an intermittent sentence to enable Mr. W.R. to keep his employment. As an alternative, if the Court determined the 90-day intermittent sentence to be too lenient, the defence sought a sentence of 6 months incarceration.

5. Case Law

[ 14 ] Only the Crown filed a case brief. The defence did not file any cases, but referred to the Crown’s cases. A brief summary of the cases filed by the Crown and referred to by both counsel is as follows:

1. R. v. B.R. , 2006 ONCA 692

This was an appeal from convictions and sentences on charges of assault, assault with a weapon and sexual assault. The accused was sentenced to 30 months on the sexual assault and 12 months on each of the remaining charges, to be served concurrently. The complainant was the Appellant’s wife. At the time of the incident of assault with a weapon, the children were in a bath nearby. The Appellant tightened a shoelace around his wife’s neck causing her to stop breathing and her eyes rolled back in her head. As a result of the assault, M.R. suffered a concussion. The sexual assault included sexual intercourse and occurred while M.R. was lying in bed with the children. The Appellant had no criminal record. M.R. testified at trial to a history of physical and sexual abuse. With regard to the sentence appeal, the Court of Appeal held, at para. 82, that, “To the extent that the trial judge’s statement indicated a conclusion by her that a penitentiary sentence was mandatory for a first offender, like the appellant, on the offences charged, the trial judge erred in principle”. The Court of Appeal found that the sentences were appropriate.

2. R. v. N.T., [2011] O.J. No. 551 (Ont. C.A.)

This was an appeal by the accused from convictions and sentence for two counts of assault causing bodily harm and sexual assault on his wife. In the first incident, the Appellant punched his wife and dragged her across the floor. With respect to the sexual assault, the appellant violently forced himself on his wife. With respect to the second incident of assault, the appellant grabbed his wife by the hair, threw her down and stomped on her, hitting her harder and harder. The appellant was a first offender. The sentence of 4 years imprisonment was upheld.

3. R. v. Glassford , [1988] O.J. No. 359 (Ont. C.A.)

This was an appeal by the Crown from a sentence of 90 days to be served intermittently followed by 1 year of probation upon the accused being convicted of sexual assault causing bodily harm. This was not a domestic situation. The accused followed the complainant, grabbed her, punched her until she was unconscious and then sexually assaulted her. The complainant did not know if intercourse occurred and the evidence was inconclusive in this regard. The complainant recovered quickly and had no long-term injury. The accused was a first offender. The Court of Appeal allowed the sentence appeal and increased the sentence to 2 years less one day followed by probation. The Court of Appeal found that the trial judge did not give sufficient weight to general deterrence. The Court stated that a penitentiary term of more than 2 years would have been a fit sentence even though the accused had no record and a not unfavourable pre-sentence report. As the accused had served the part of the sentence imposed following trial and would incur additional hardship by returning to prison, the Appeal Court determined the ends of justice were served by a maximum reformatory sentence.

4. R. v. D.J., [2010] O.J. No. 5878 (Ont. S.C.)

The accused was sentenced to 3 years incarceration after having pleaded guilty to a charge of sexual assault. The complainant and the accused were in a common-law relationship. The details of the incident are as stated at paras. 6 and 7 as follows:

6 On June 3, 2007, she and the offender were in bed together. The offender wanted to have sexual relations. The complainant did not. The offender kept touching the complainant, trying to engage her in sexual activity. She got out of bed and left the room. The offender followed her. The complainant ran into the washroom and locked the door. The offender managed to open the door, at which point the complainant began to scream. The offender wrapped a towel around her head to prevent neighbours from hearing her screams. The complainant felt herself choking and gasping for air. The offender forced her up onto a hand sink basin and at that point she was able to remove the towel from her head. The complainant tried to get past the offender but he grabbed her arms, leaving marks of restraint on her wrists. She struggled and tried to kick him. He made it apparent to her that he was going to have sex with her. The complainant then gave up and the offender vaginally penetrated the complainant and ejaculated inside her.

7 The couple’s son, then five years old, had awakened and was crying outside the bathroom door as the offender raped his mother. The complainant told the offender to get out of the house or she would call the police. Before he did so, he removed the batteries from her phone and pulled the phone lines out of the wall.

The complainant testified that this type of incident had happened 5 to 10 times during their relationship. The accused had mental health and addiction issues and a criminal record. The accused pleaded guilty and waived the preliminary inquiry. The sexually assaultive behaviour was found to have involved serial rape. This was a joint submission for sentence.

5. R. v. F.N. , [2005] O.J. No. 3594 (Ont. C.J.)

The accused was found guilty of sexual assault, assault and 2 counts of failure to comply with probation. The particulars of the incident are as set out in paras. 3 to 5 as follows:

3 The victim and offender argued about whether J. would spend the night. The victim returned to her bedroom while the offender and J. watched a movie. Sometime later, Mr. F.N. entered her room and punched her in the head. He also sprayed her with a water bottle, then took a drink of the water, and spat it out at her. After a short struggle, he kicked Ms. R.C. off the bed causing her to strike her nose on the bedside table. On observing this, the offender said, "Baby, you're so clumsy" and pushed her head into the wall. He then sprayed her a second time with a water bottle and left the room.

4 The offender entered the bedroom again a short time later. He told the victim she was not to talk unless told to do so. He pinned her down and kicked her. He demanded sex. The victim refused. The offender left the bedroom and returned almost immediately looking for a cigarette. He "rummaged" around the room and pulled up the mattress causing the victim to fall onto the floor. After finding a cigarette and left. Mr. F.N. returned yet again with a water bottle and, for a third time, sprayed Ms. R.C. with it. He then threw the empty bottle at her.

5 The victim lay down on her bed. The offender returned and lay beside her. He was now naked. He grabbed the victim's breast. Ms. R.C. resisted and observed that this aroused the offender. She stopped resisting. She called him a "pig" and said her breast was bruised. Mr. F.N. said, "Do you want me to bruise the other one" and then ejaculated inside her. He then said, "why are you such a bitch ... [you] don't treat my friends well". He left the bedroom, returned immediately, and punched the victim in the face, threatened her with more violence if she called the police, and left the apartment.

The complainant suffered soreness to her jaw, nose, side of her face, back of her head and legs. She had scratch marks on her chest, shoulder and elbow, a large bruise to her breast and bruises on her arm. The accused had a criminal record, including convictions for violence. The accused had a difficult life. He struggled with depression and alcohol abuse and was recently diagnosed with bipolar disorder. The accused was sentenced to 3½ years for the sexual assault and one year for the assault, to be served concurrently. He was sentenced to six months for each breach, concurrent to each other, but consecutive to the others. The total sentence was therefore four years. The accused then received a credit for pre-sentence custody.

6. R. v. E.M. , [1999] O.J. No. 3417 (Ont. C.J.)

The accused was sentenced to 22 months imprisonment, followed by 2 years probation, after his plea of guilty at trial to a charge of sexual assault. The accused attended at his former common-law spouse’s house and engaged in forcible sexual intercourse. The accused had a prior record, including two prior assaults and uttering a threat. The accused had a serious alcohol problem. There were children in the home at the time of the incident. There was a joint submission of a sentence range of 18 months to 2 years less a day. He received 13 days on the failing to comply charge, having served 7 days in pre-sentence custody, to be served consecutively.

7. R. v. L.A.M. , [2011] O.J. No. 3488 (Ont. C.J.)

The accused was sentenced to 30 months global imprisonment following his convictions for sexual assault and uttering threats, theft under $5,000, as well as 6 breaches of recognizance. The global sentence was 40 months, reduced to 30 months for pre-sentence detention. The accused had a difficult upbringing and abused drugs and alcohol from a young age. He had ADHD. He had an extensive youth record and a minor adult record. The complainant was his former girlfriend. He forced intercourse on the complainant twice in one night at her home. He had a poor record of compliance with court orders.

8. R. v. Budarick , [2009] O.J. No. 5202 (Ont. C.A.)

Both counsel referred to this case as confirming that a conditional sentence is not available for a conviction for sexual assault where the Crown proceeded by indictment.

6. Mitigating Factors

[ 15 ] Mr. W.R. has no criminal record. Mr. W.R. pleaded guilty to the failure to comply charge.

[ 16 ] Mr. W.R. has made some expressions of remorse, although he does not appear to have accepted complete responsibility for his actions. On page 4 of the pre-sentence report, Ms. Fedun, the probation and parole officer, quotes Mr. W.R. as saying, “I take full responsibility for my actions, and I am concerned about the eventual outcome”. On page 5, Ms. Fedun quotes Detective MacDonald as saying, “As well, Mr. W.R. on some level took responsibility for the physical assault, but not the sexual assault”. In Mr. W.R.’ statement to the Court at the sentencing hearing, he said if Ms. K.J. were in court he would apologize to her. He said, “I am remorseful to what happened and I take full responsibility of hitting her,...”. It is impossible to know if he has accepted responsibility for the sexual assault. He only specifically references hitting Ms. K.J..

[ 17 ] Defence counsel argued that a possible mitigating factor is that Mr. W.R. in his testimony at trial admitted the physical assault. This is not the same as pleading guilty. He pleaded not guilty and only acknowledged the assault during the trial.

[ 18 ] A… Mr. W.R. admitted to crack cocaine use, including on the night of the incidents, he denied that he had a drug addiction or was an alcoholic and, therefore, this is not a mitigating factor. In his testimony at trial, he also minimized his impairment by intoxication on the night of the incidents.

7. Aggravating Factors

[ 19 ] I have considered the following as aggravating factors:

1. The incidents took place in Ms. K.J.’ home;

2. The parties were involved in a long-term relationship. They never lived together and were never married. They do not meet the definition in section 718.2(a)(ii) in that they were never spouses or common-law partners. However, the purpose of the section is to recognize the seriousness of offences committed in the context of relationships. Mr. W.R. and Ms. K.J. were clearly in an intimate relationship of considerable duration;

3. When Ms. K.J. called 911 for help, Mr. W.R. hung up the phone on her, denying her immediate access to the help she required; and

4. The sexual assault involved forced intercourse.

[ 20 ] The Crown argued that an aggravating factor was that Mr. W.R. was in a position of trust with regard to Ms. K. J.. I do not accept this submission. They were clearly in a long-term relationship, but there was no evidence of a trust or authority relationship between Mr. W.R. and Ms. K.J..

8. Principles of Sentencing

[ 21 ] In determining a just sentence, I have considered the purpose and principles of sentencing set out in ss. 718 , 718.1 , and 718.2 of the Criminal Code of Canada . Taking into account all relevant factors, the sentence must denounce and deter the unlawful conduct; it must be proportionate to the gravity of the offence and the degree of responsibility of the offender; it must take into consideration any relevant aggravating or mitigating circumstances; and it should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

9. Reasons

[ 22 ] In reviewing the case law, I note that in the case before me there was no evidence of a history of physical or sexual abuse. What occurred on October 1, 2009 were isolated incidents.

[ 23 ] The sexual assault was of a very serious nature. Mr. W.R. ultimately forced Ms. K.J. to have non-consensual intercourse. She asked him to stop several times. She suffered bruising to her buttocks during the intercourse. She also suffered facial injuries during the assault. Mr. W.R. also made degrading comments to Ms. K.J. during the incidents. Ms. K.J. was clearly distraught as she can be heard on the 911 tape. Ms. K.J.’ life has been greatly impacted by the incidents. She lives with fear and distrust.

[ 24 ] The Court of Appeal, at para. 84 of R. v. B.R. , stated that “The offences here require a denunciatory sentence that also meets the requirements of general and specific deterrence.” In upholding the 30 month sentence in R. v. B.R. for sexual assault, the Court of Appeal considered that children were present in the bed when the sexual assault occurred and that the offences were not isolated occurrences. There was a lengthy abusive relationship. In the case before me, there were no children present and the physical assault and sexual assault were isolated incidents.

[ 25 ] In R. v. N.T. , the Court of Appeal dismissed the sentence appeal and upheld the four year sentence. The Court of Appeal referred to the trial judge’s determination that the appellant controlled the complainant and physically abused her at will and subjected her to psychological imprisonment. There was no evidence of such control in this case.

[ 26 ] The Court of Appeal in R. v. Glassford , on p. 5, determined “that primarily each case must be decided on its own facts.” Further down on p. 5, the Court stated that “Sentences must be designed to assure that the offender will not repeat his crime and so consideration must be given to his reformation and deterrence. The sentence must also be designed to be an effective deterrent to others. Both are necessary but proper weight must be given to each if we are to attain the purpose of the criminal law which is to protect the public.”

[ 27 ] Mr. W.R.’ prospect for reformation are high. He is a first offender. He has expressed some remorse. These were isolated incidents in a lengthy, intimate relationship. I have imposed a sentence to allow for the maximum probation period as Mr. W.R. will benefit from the programs I have ordered he enrol in.

[ 28 ] The sentence will also deter others. It reflects the seriousness of the incidents.

[ 29 ] The case law has provided a range of sentences. No case is exactly like the case before me. I am sentencing Mr. W.R. to 22 months incarceration for the sexual assault, and 12 months incarceration for the physical assault, to be served concurrently. With respect to the failure to comply, I sentence Mr. W.R. to two months incarceration, to be served consecutively. The global sentence, therefore, is 24 months. Mr. W.R. is to be credited with four days time served. So the total sentence is two years less four days. Mr. W.R. will also be subject to three years probation, on the terms set out in Schedule ‘A’ attached. I have made the first two sentences concurrent, as I have determined they were close in proximity (occurring on the same evening), and were part of a continuous event. The failure to comply sentence is consecutive as it was a different event occurring weeks later. I also make the ancillary orders consented to.

10. Conclusion

[ 30 ] Mr. W.R. is convicted of the charges for which he was found guilty by the jury and the charge for which he pleaded guilty, and is sentenced as follows:

1. 22 months imprisonment on the conviction for sexual assault;

2. 12 months imprisonment on the conviction for assault, to be served concurrently with the sentence on the sexual assault;

3. two months imprisonment on the conviction for failure to comply, to be served consecutively to the sentence on the sexual assault;

4. the total is, therefore, 24 months, with a four-day credit for pre-sentence custody, bringing the total sentence to 24 months, less four days;

5. three years probation on the terms set out in Schedule ‘A’ attached hereto;

6. an order authorizing the taking of the number of samples of bodily substances from W.R. that are reasonably required for the purpose of forensic DNA analysis pursuant to ss. 487.051(1) (a) of the Criminal Code ;

7. an order pursuant to ss. 109(1) (a) and 109(2) (a) of the Criminal Code prohibiting W.R. from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance during the period that begins today and ends in 10 years from W.R.’ release from imprisonment, and prohibiting W.R. from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life;

8. an order pursuant to ss. 490.011(1(a), 490.012(1) and 490.013(2)(b) in Form 52 requiring W.R. to comply with the Sex Offender Information Registration Act beginning today and ending 20 years from today; and

9. an order pursuant to s. 743.2.1(1) prohibiting W.R. from communicating, directly or indirectly, with K.J. during the custodial period of the sentence.

Coats J.

Date: July 6, 2012

1. Keep the peace and be of good behaviour;

2. Appear before the Court when required to do so;

3. Notify the Court or the probation officer in advance of any change of name or address;

4. Promptly notify the Court or the probation officer of any change of employment or occupation;

5. Report to a probation officer within two working days following release from imprisonment and thereafter, when required by the probation officer and in the manner directed by the probation officer;

6. Remain within Ontario, unless written permission to go outside Ontario is obtained from the Court of the probation officer;

7. Abstain from the purchase, possession and consumption of alcohol or other intoxicating substances and from the purchase, possession and consumption of drugs, except in accordance with a medical prescription;

8. Abstain from owning, possessing or carrying a weapon;

9. Based on your agreement, and subject to the program director’s acceptance of you, to participate actively in a treatment/rehabilitative program approved of by the Province for counseling, a sexual offender relapse prevention program, and a partner abuse relapse program, and to attend for an assessment for substance and/or alcohol abuse and any counseling as recommended, and sign any general information/medical release forms to allow your progress to be monitored by your probation officer;

10. Abstain from communicating or associating, directly or indirectly, with K.J.; and

11. Abstain from attending within 100 metres of K.J.’ residence, place of employment, or anywhere that she is known to frequent.