ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-10000370-0000
DATE: 20120719

BETWEEN:

HER MAJESTY THE QUEEN – and – KEVIN NELSON Defendant

Joanne Bruno, for the Crown

Lance Beechener, for the Defendant

HEARD: July 16, 2012.

J. Wilson J.

REASONS FOR SENTENCE

Background Facts

[ 1 ] Mr. Nelson was convicted in a trial by jury of threatening death or bodily harm to Ms. S., confining her, committing sexual assault causing bodily harm, and committing an assault with a weapon, either a knife or scissors. Mr. Nelson was acquitted of attempted choking, and aggravated sexual assault by wounding.

[ 2 ] Mr. Nelson and Ms. S. met at a club on Christmas Eve on December 24, 2010. Ms. S. had consumed three drinks. She was 19 years of age, Mr. Nelson was 29 years old. She went back to Mr. Nelson’s apartment in a taxi arriving there at approximately 4 am.

[ 3 ] Mr. Nelson proceeded with non-consensual sexual intercourse. The sexual assault took place over several hours in several episodes beginning sometime after 4:00 a.m., and continuing to sometime after 7:15 a.m. He cut off her body suit, over her protestations, and cut her finger accidentally when cutting off her clothing.

[ 4 ] Ms. S. suffered injuries as a result of the assault.

[ 5 ] Photographs were taken by the police at the hospital. The photographs taken by the police confirm swelling around the eye area. Ms S. testified that Mr. Nelson punched her. The photographs confirm what appears to me to be three lacerations to the throat area consistent with an injury by scissors or a knife. The photographs also confirm significant bruising to Ms. S.’s legs.

[ 6 ] The version of events given by Ms. S. to the police was largely confirmed by the evidence. Ms. S. told the police that she was injured by scissors when Mr. Nelson cut off her clothing. Blood was located on the pillow. Scissors with blood on them were located on the night table near the bed. Mr Nelson’s thumbprint was on the scissors. Ms. S.’s cut up body suit was found on the floor of the bedroom.

[ 7 ] Ms S. testified that Mr. Nelson threatened her with an open knife which was on the bed and held to her throat. She testified that at one point when Mr. Nelson went to the bathroom, she kicked the knife to the floor. The police located an open knife by the foot of the bed on the floor.

[ 8 ] The evidence of the sexual assault and the forcible confinement were confirmed by the recording of the last aspect of the assault, as it was recorded by Ms. S. on her telephone.

[ 9 ] Ms. S. finally called 911 after Mr Nelson fell asleep. The contents of the 911 whispered telephone call confirm that Ms. S. did not know where she was, that she was confined and not free to go, and that she was very frightened. Ms. S. told the 911 operator that Kevin cut her with a knife.

[ 10 ] During the 911 call, obvious loud snoring was evident. The police were unable to locate Ms S. by knocking on doors. Upon the advice of the 911 operator, Ms. S. left Mr. Nelson’s apartment barefoot and clad only in a towel on that December 25, 2010 morning.

[ 11 ] After his arrest, Mr. Nelson confirmed in a statement to the police that the sexual relations were rough sex, and that they were a matter of spite, as Ms. S. had started rumours about Mr. Nelson stalking her prior to the night in question. He also confirmed that there were several episodes of sexual relations interrupted by telephone calls.

[ 12 ] Ms S. testified at the trial of the devastating psychological effects of the incident upon her. She has been traumatized, cannot sleep, cannot trust anyone, especially men. She has moved home, and is afraid to be alone. She has dropped out of school, and appears to be immobilized as a result of the traumatic events. She filed a victim impact statement at the sentencing hearing confirming and elaborating upon her evidence at trial. I conclude that the psychological effect of these events upon Ms. S. has been profound.

Pre-Sentence Reports

[ 13 ] Defence counsel raised concerns with the accuracy and fairness of the first pre-sentence report filed as ex 1. A second pre-sentence report was obtained filed as ex 4 from a different individual. Aspects of the factual basis outlined in the first pre-sentence report were investigated by the Crown, at the request of the defence.

[ 14 ] Apart from the uncontested factual matters, I have ignored the opinions expressed in the first pre-sentence report. In particular the evidence about charges in the United States is not accurate and not founded on fact.

[ 15 ] At the request of the defence, the details of the institutional misconducts have been provided to the defence.

[ 16 ] As well the details of the charge before Justice Cole have been confirmed by obtaining a transcript of those proceedings.

[ 17 ] The second pre-sentence report is more balanced and useful in my consideration of the appropriate sentence.

The Position of the Crown

[ 18 ] It is the position of the Crown that these serious convictions warrant a global sentence of 6 ½ years incarceration, with a credit for time served of approximately 19 months, on a 1:1 basis.

The Position of the Defence

[ 19 ] It is the position of the defence that although the convictions are serious, there are mitigating factors and the appropriate sentence is a global sentence of 3 ½ years, less a credit for time served.

Circumstances of the Offender

Personal background

[ 20 ] Mr. Nelson was born in St. Lucia. He is now 31 years of age. He came to Canada as a refugee in 2009 from St. Lucia. He apparently witnessed a violent crime in St. Lucia triggering his refugee application to Canada.

[ 21 ] He has two children from two previous relationships who are living in St. Lucia. His mother and father live in New York City. His mother testified at the hearing that Mr. Nelson lived with her in New York from the time he was 10 or 11 until the age of 16 when he returned to live in St. Lucia. Apart from one visit last year, his mother had no contact with Mr Nelson for at least 10 years. Mr. Nelson did not complete high school. Mr. Nelson testified that he returned to live in St. Lucia in 2004, when he would have been 23 years of age where he lived until he moved to Canada in 2009. There are some obvious discrepancies in the evidence which are not material.

References of good character

[ 22 ] At the time of this incident, Mr. Nelson was in a relationship with Alisha Senkyre. She provided a letter outlining Mr. Nelson’s many fine qualities and that she could not believe that he was capable of committing the charges based upon the man she knew.

[ 23 ] The defence filed several letters from friends and family mostly in St. Lucia about Mr. Nelson’s kindness and dependability. The letters from his father and brother speak of Mr. Nelson’s intelligence and how he could benefit from education.

[ 24 ] The second pre-sentence report confirms that Mr. Nelson was cooperative with the author in providing information. He took some responsibility for the offences as outlined in the report.

Work history

[ 25 ] Mr. Nelson has many ideas of what kind of work he could do but there is little evidence before me of a work history. His mother testified that while he lived in St. Lucia Mr. Nelson worked at her sister’s liquor store. He told the pre-sentence author that he worked as an orderly in the hospital for one summer in St. Lucia. According to Ms. Senkyre, Mr. Nelson’s desire is to be a promoter for concerts and events. Ms. Senkyre suggested that he may be able to work as a plumber. Since coming to Canada, until the date of his arrest, Mr. Nelson has not worked or attended school, but received welfare payments from the St. Lucia government.

Criminal History

[ 26 ] Mr. Nelson technically has no prior criminal record, and his counsel argues that he should be sentenced as s first time offender applying the principles of R v. Priest 1996 1381 (ON CA) , 1996 110 CCC 3 rd 289 (C.A.). That case confirms the well known sentencing principle that for first time offenders, the first prison sentence should be as short as possible.

[ 27 ] On August 29, 2011, while in custody on these charges, Mr. Nelson pleaded guilty to a charge of assault upon A P, and based upon a joint submission received a conditional discharge, with 12 months probation. The transcript of what transpired before Justice Cole is filed as an exhibit. That transcript confirms:

MR. LOCKHART: Your Honour, on Saturday, October 16 th at approximately 4:00 – 2010, at approximately 4:30 a.m., in the City of Toronto, …the complainant, Ms. A P was standing at the intersection of Keele Street and Eglinton Avenue West, in the City of Toronto. At that time that accused approached her -- approached her and started a conversation with her. He tried to entice her to accompany him and his friend to a different location, but she told him she was not interested.

She tried to leave and the accused grabbed her by the arm, and she pulled away, breaking free of his hold. He then spat at her, the saliva making contact with her clothing. The accused then left in a taxi cab.

Toronto Police happened to be passing by in a scout car, and the complainant flagged them down and told them what just happened. Police officers located the accused at Keele Street and Rogers Road in a taxi cab. He was investigated and charged accordingly.

[ 28 ] The Crown position is that although technically Mr. Nelson is a first time offender, the October 16, 2010 incident occurred some two and a half months before the incident giving rise to the charges before this court, and is indicative of an attitude toward women and an escalation from the October 16, 2010 incident to the much more serious charges in the matter before me.

Institutional history

[ 29 ] Mr Nelson has been in custody since December 25, 2010. There have been three disciplinary incidents resulting in punishment from a reprimand on the first incident, to 10 days of segregation on the third incident.

[ 30 ] On January 4, 2011 Mr. Nelson was found guilty of threatening a guard. He disputed the allegations. The disposition was a reprimand.

[ 31 ] On February 13, 2012 Mr. Nelson pleaded guilty to using abusive language, although he disputed the specific language used. The contents of that misconduct report state:

On Monday, February 13, 2012 inmate Nelson, Kevin was placed on the above misconduct when he told this officer he was a Fucking Goof because he was instructed he would have to wait an additional ten minutes to view his disclosure. This same attitude that he does not like to wait for anything was shown at 1300 hours when he was warned about yelling for a bar of soap from the shower area when the unit was busy with several activities. This inmate has previous misconduct for same.

Inmate states he did use inappropriate language but adds that he kept asking the unit officer for his disclosure as it was in the office and the inmate has trial next week.

[ 32 ] A final incident involving shouting and using abusive language to the guards occurred on March 16, 2012 which was not disputed by Mr. Nelson.

Aggravating and mitigating factors

[ 33 ] From this history, and the evidence at the trial, the following aggravating and mitigating factors emerge:

(1) Although Mr.Nelson is technically a first time offender, he does have a history with another incident involving a young woman who refused his advances and was spat upon. This incident occurred some 2 ½ months before the events giving rise to these charges and these offences may be seen to be an escalation of a problem attitude toward women.

(2) Apart from the incident noted above, Mr Nelson appears to be law abiding. However, I have very little reliable information about Mr. Nelson prior to 2009 when he came to Canada.

(3) In Canada, Mr. Nelson is essentially alone. He has support from his family in St Lucia. Since he moved to Canada in 2009 he has seen his mother who lives in New York City only once, other than coming to testify before me, and his sister came to visit once. He has the support of his girlfriend in Canada.

(4) Mr. Nelson has virtually no work history, has not completed high school and does not appear to have any developed work skills.

(5) Mr. Nelson does not appear to have a problem with drugs or alcohol. He acknowledged to the author of the first pre-sentence report that he used marijuana as it was part of his Rastafarian religious traditions.

(6) It appears that Mr. Nelson exhibits impatience and inappropriate behaviour when he does not get what he wants, as illustrated by the institutional misconducts, the prior assault, and these offences.

(7) Although in the second pre-sentence report Mr. Nelson expresses “some remorse for committing the offence” his main concern appears to be the consequences to himself - “he is concerned about what his behaviour had cost him, and what any additional consequences may be”.

(8) The sexual assault was repetitive and involved violence. The sexual assaults took place over a period of hours and involved several episodes of assaults.

(9) The evidence before the court, particularly the audio tape illustrates a callousness and determination to achieve what Mr. Nelson wanted notwithstanding Ms S. crying and begging him to stop and to let her go home to her daughter on Christmas morning.

(10) There was considerable violence involved as evidenced by Ms. S.’s injuries reflected in the photographs. A knife was used to threaten Ms. S., or to actually inflict the wounds at her throat area. If the wounds were not inflicted by the knife, they were inflicted by the scissors that Mr. Nelson admitted that he used to cut off Ms. S’s clothing.

Case Law

[ 34 ] The defence relies on three cases, in particular the recent court of appeal decision in R. v. M.Q. 2012 ONCA 224 , R. v. Quashie 2005 23208 (ON CA) , [2005] O. J. No 2694 (C.A.) and R v. Welch 1995 282 (ON CA) , [1995] O.J. No 2859 (C.A.)

[ 35 ] The Crown relies on three other cases including R. v. Katsnelson [2010] O.J. No 1601 (S.C.J.) , R.v. Rezaie [1995] O. J. No 1047 (Gen. Div) and R. v. Z.M . [1997] O. J. No 647 (C. A.)

[ 36 ] No two cases involving sexual assault and violence are the same, and much depends upon the specific facts of the cases, as well as the mitigating and aggravating factors.

[ 37 ] Mr. Nelson was convicted of several charges including threatening death or bodily harm to Mr. S., confining her, committing sexual assault causing bodily harm, and assault with a weapon, either a knife or scissors. Mr. Nelson was acquitted of attempted choking, and aggravated sexual assault by wounding.

[ 38 ] In MQ and Quashie , the global sentence in both of those cases was 5 years. Defence counsel tried to parse out part of the sentence for some of the charges in both cases suggesting an upper range of 3 years for a serious sexual assault. I do not agree with his approach. The global sentence and the entire context and facts must be kept in mind in comparing sentences. In both MQ and Quashie , the global sentence was 5 years. As well, in both R. v. ZM and R. v. Rezaie relied upon by the Crown, the court imposed 5 year global sentences.

[ 39 ] The decision of R. v. Welsh relied upon by the defence is lower sentence of 34 months. I note it is a 1995 decision. Also I note that in Welsh there was a very positive pre-sentence report, and glowing character references, which cannot be said to be the case here. Although defence counsel has done an admirable job to attempt to paint Mr. Nelson’s good character, there are a series of aggravating factors at play. The only person that has known Mr. Nelson recently is his girlfriend, who for obvious reasons may not be an unbiased witness.

[ 40 ] With respect to the Katsnelson decision, relied upon by the Crown, where a sentence of 8 years imprisonment was imposed for first offenders, there were distinguishing very negative facts in that case. The two accused cruised the halls of a girls university residence and sexually assaulted sleeping victims. That case is unique and not particularly helpful in assessing what is an appropriate sentence in this case.

Conclusions as to Sentence

[ 41 ] In my view, considering the submissions of counsel, the aggravating and mitigating factors, the principles of sentencing, and the case law referred to, I conclude that an appropriate sentence in this case is 5 years concurrent on all charges, less a credit for time served. I have taken into account the Priest decision, but given the gravity of the offences, in my view this sentence is warranted, and is consistent with the caselaw.

[ 42 ] In reaching this conclusion, I have considered the purposes and principles of sentencing enunciated in section 718 of the Criminal Code , and the objectives of sentencing, namely "denunciation, deterrence, separation from society, rehabilitation, reparation, and promotion of responsibility and acknowledgement of harm". Further, I have considered that a fundamental principle of sentencing is that sentences must be proportionate to the gravity of the offence, and the degree of responsibility of the offender.

[ 43 ] There will be a DNA order, a 20 year SORA order, and a lifetime section 109 prohibition order for weapons, as well as a life time non contact order with the victim. In my view a lifetime weapons prohibition applies, as Mr. Nelson has a prior finding of guilt for an assault, and section 109 1(a) engages. This order is also in the interests of the public.

J. Wilson J.

Released: July 19, 2012

COURT FILE NO.: 11-10000370-0000
DATE: 20120719
ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – KEVIN NELSON Accused

REASONS FOR SENTENCE J. Wilson J.

Released: July 19, 2012