ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ(P) 741/10
DATE: 20121016

B E T W E E N:

HER MAJESTY THE QUEEN

Erin Norman, for the Crown

• and -

KENYU EVANS

Rohan Robinson, for the Applicant

HEARD: August 7, 2012

REASONS FOR SENTENCE:

[ 1 ] Kenyu Evans was charged with the following as it related to the complainant, Shurelle Morrison:

1. Common Assault
2. Sexual Assault with a weapon
3. Uttering a Death Threat

[ 2 ] Following a jury trial Mr. Evans was found guilty by the jury as follows:

1. Common Assault
2. Not Guilty of Sexual Assault with a weapon but guilty of Sexual Assault
3. Uttering a Death Threat

Overview of the Facts

[ 3 ] With respect to the assault conviction, the testimony that Ms . Morrison gave at the preliminary hearing was played for the jury and admitted into evidence pursuant to section 715.1 of the Criminal Code as Ms. Morrison had died by the time the trial took place.

[ 4 ] On this occasion Mr. Evans and Ms. Morrison got into a disagreement after a couple of hours of drinking at a Halloween party. They had an argument over keys to a vehicle. In her preliminary hearing testimony, she described that Mr. Evans attacked her by putting one hand on her throat and another grabbed her hair. He basically choked her. He pulled the keys out of her hand and took off. At the preliminary hearing Ms . Morrison said that Mr. Evans went out into the parking lot. She was outside yelling at him and following him. He turned around and kicked her like a karate kick and she went flying onto the pavement.

[ 5 ] With respect to the sexual assault, the jury considered the audio tape of the preliminary hearing testimony of Ms . Morrison as well as her videotaped statement to the police. On this occasion Shurelle testified that she and Kenyu had gone out to a club called Muzic. They were very intoxicated and after leaving the club they went back to Kenyu’s place.

[ 6 ] When they arrived at his place Shurelle was not feeling very well. She felt nauseous. She had had too much to drink. She had the spins. She was not in the mood for sex.

[ 7 ] Kenyu had taken a Cialus pill or a Viagra and as he did not want to waste it he forced himself on her. He put one hand on her left side of her chest while she was lying on her back and held her down. With his other hand he started punching her in the side of her hip. He was insisting on having sex. There was a knife in the room. She described it as like a bread cutting knife. He held it up towards her throat. She was begging him to kill her. He put the knife to her throat. He held it to her throat.

[ 8 ] She let him have his way with her. She just wanted it to be over. She just wanted to go to sleep.

[ 9 ] In the early morning he wanted to have sex again and again she did not want to. So he threw her out of his apartment. She had no clothes and actually drove home naked.

[ 10 ] She described her injuries from this incident as follows: a welt on her left hip from the punching; her upper chest by her shoulder bone really hurt; she thought she had a broken rib.

[ 11 ] With respect to the threatening death conviction Ms . Morrison testified that this incident started as a result of Shurelle finding some documents. She went on Kenyu’s computer to delete all of their photos and videos. She came across some documents she copied onto her portable pocket stick.

[ 12 ] These documents related to real estate issues.

[ 13 ] On the day in question, Kenyu called Shurelle at work and he confronted her and asked her if she sent the information to the banks. Kenyu said to her, “I know it was you, Shurelle. I know it was you. It was you who did it. You know what, you better not come home, because if you do come home tonight, you’re fucking dead”.

Pre-Sentence Report

[ 14 ] Exhibit 1 at the Sentencing hearing is the Pre-Sentence Report (P.S.R). The P.S.R. sets out Mr. Evans’ personal background. Mr. Evans is 41 years of age. He was born in Labrador City, Newfoundland. His parents divorced when he was about 8 years old. The Probation Officer attempted, unsuccessfully, to contact his parents. Mr. Evans has an older brother, Richard Jr., who resides in Mississauga. Richard Jr. has physical disabilities and Mr. Evans helps his brother with his property and household chores.

[ 15 ] Mr. Evans has a half sister, Camille Leslie, with whom he is currently living as she is his surety. He also has a half brother who lives in Edmonton.

[ 16 ] Mr. Evans was previously married to Nicole Evans from 2002 to 2006.

[ 17 ] Mr. Evans has no children. He is currently engaged to Sue Lourenco. They have been in a relationship for nearly two years. She has no children.

[ 18 ] Mr. Evans advised the Probation Officer that this relationship with Ms . Morrison was a bad relationship from day one. He reported that alcohol issues were problematic from both parties. Mr. Evans reported that “he did not want to blow it out of proportion and say they were alcoholics but arguments occurred while under the influence.” He stated that the relationship started to deteriorate when she was diagnosed with cancer and they started to argue more. Constable Melo reported that domestic violence concerns were an ongoing issue in this relationship and described this union as volatile. This was borne out by the trial testimony relating to other incidents not forming the subject matter of the charges before the court.

[ 19 ] Mr. Evans is employed full time for Source Office Furnishings since August 2011 as a full time Service Technician.

Florida State Conviction

[ 20 ] The Crown filed a Sentencing Brief setting out the particulars of Mr. Evans’ convictions for charges of sexual assault and forcible confinement relating to a complainant under the age of 17. The convictions are dated July 29, 1999 and the offences took place in Florida.

[ 21 ] Essentially the circumstances of this case are that Mr. Evans entered a plea of no contest and as a result of a plea negotiation he was deported to Canada and placed on Probation.

[ 22 ] The Offence Incident Report and Statement of the complainant were included in the Crown’s materials. The allegations were that Mr. Evans forced the complainant to perform fellatio so that she could remain in the club at which Mr. Evans was a security guard.

Victim Impact

[ 23 ] Of course Ms . Morrison could not file a Victim Impact Statement but her son Ryan Mainville expressed to Ms. Rita D’andreis, a friend of his mother, that it has been very difficult for him to hear Mr. Evans attack his mother’s character as she was not here to defend herself.

Character Letters Filed

[ 24 ] Mr. Evans filed four character letters of support from Susie Lourenco, his father Richard Evans, his sister Camille Evans-Leslie, and his mother Mitzy Evans. All of these letters filed were supportive.

Position of the Crown

[ 25 ] The Crown’s position is that a period of 5 to 6 years in a penitentiary is appropriate in the circumstances of this case and for these offences.

[ 26 ] The Crown points to the following aggravating factors:

1. These offences took place while the parties were in an intimate relationship and living together

2. The prior history of involvement in a similar incident as set out in the material relating to the Florida charges and convictions

3. Mr. Evans’ family knew little of his personal life as set out in the Pre-Sentence Report. As such, the court should place minimal value on the character letters filed by his family members.

4. The court can infer from the testimony of the complainant that the conduct of Mr. Evans had a profound impact on her.

5. The Crown submits that in all of these circumstances the moral and legal culpability on Mr. Evans is very high. As such, all three sentencing principles, namely, denunciation, general deterrence and specific deterrence must be considered by the court.

6. The facts are particularly disturbing when one considers that Ms . Morrison had cancer and the threatening death offence occurred during that time period when she was very ill and he was caring for her.

7. The Crown submits that Mr. Evans had no respect for Ms . Morrison at all and was determined to dominate and control all aspects of her life.

Position of the Defence

[ 27 ] The defence submits that a sentence of two years is reasonable and appropriate in all of the circumstances. With respect to the Florida convictions, the defence argues that the court should place no weight on these past convictions. The reason for this is that Mr. Evans asserts his innocence on those charges. The only reason he pleaded no contest is as a result of a plea bargain.

[ 28 ] The plea bargain was such that by pleading no contest he would agree to deportation and probation rather than risk a trial and upon conviction the Crown would ask for a period of 20 years in jail.

[ 29 ] The defence argues as well that although there were three incidents for which the jury convicted him, the incidents were isolated and there was no lengthy abusive relationship. The defence submits there was no lengthy pattern of domestic abuse. The incidents were isolated and separate and spanned from 2007 to 2009.

[ 30 ] The defence points to the support of his family and his fiancée Susie Lourenco.

Review of Cases Filed:

Florida Convictions and the plea of Nolo Contendere

[ 31 ] In R. v. D.M.G. , 2011 ONCA 343 , [2011] O.J. No. 1966 (Ont. C.A.) Watt J.A. dealt with the procedure that was followed in that case and stated that the procedure followed there was the functional equivalent of a plea of guilty. Justice Watt sets out the following at paras. 55 to 60:

This case proceeded on the basis of a plea of not guilty, a plea by which the appellant denied having committed the offence charged and required the prosecutor to prove the essential elements of that offence by relevant, material and admissible evidence beyond a reasonable doubt.

After the plea of not guilty, the prosecutor adduced no evidence. No viva voce testimony. No real evidence. As a surrogate for evidence, the prosecutor read the allegations made against the appellant. It is fundamental that prosecutorial allegations are not evidence. Nor did they become admissions under s. 655 of the Criminal Code by the failure of the appellant's trial counsel to make submissions.

To some it may seem a mere quibble, a swap of form for substance, to conclude that what occurred here was not at least a reasonable facsimile of a formal admission under s. 655. I do not agree. To admit something is to accept it as valid or as true. By an admission under s. 655 an accused admits a fact or the facts alleged as true.

The allegation of ineffective assistance of counsel has provided us with information not available to the trial judge. That information makes it plain and obvious that the appellant consistently denied that the complainant's allegations ever occurred, a position inconsistent with their formal admission before the trial judge. The appellant was never asked, nor did his counsel ever expressly admit on his behalf the prosecutor's allegations. What occurred here did not amount to an admission of fact under s. 655 .

The circumstances of this case also required the trial judge to conduct an inquiry of the appellant to ensure his (the appellant's) understanding of the nature and effect of the procedure being followed after his plea of not guilty.

The procedure followed here was the functional equivalent of a plea of guilty (or, in other jurisdictions, a plea of nolo contendere) . The appellant's conviction despite his plea of not guilty, was a certainty. Plea inquiries are mandatory where pleas of guilty have been entered, even where an accused is represented by counsel. Where what occurs is the functional equivalent of a guilty plea, an inquiry should be conducted to ensure that the accused understands the nature and effect of the procedure and has voluntarily participated in it. It is all the more so in the case of an accused who is hearing impaired.

[ 32 ] At para. 44 Justice Watt notes that “ nolo contendere is a formal plea available in some jurisdictions by express inclusion in the governing procedural law.” Translated literally from Latin nolo contendere means “I do not wish to contest.” By entry of the plea, a defender neither contests nor admits guilt of the offence to which the plea relates.

[ 33 ] The procedure followed in D.M.G. is not prohibited. At para. 51 Justice Watt notes that “no statutory provision or common law principle prohibits a procedure similar to what was followed here after an accused has entered a plea of not guilty. The flaw here was in the execution.”

[ 34 ] The Crown relies on R. v. Edwards , 2001 24105 (ON CA) , [2001] O.J. No. 2582 (Ont. C.A.) to support her position that the Florida convictions can and should be considered by the Court as an aggravating factor. In Edwards , Rosenberg J.A. stated the following at paras. 61 to 64:

Notwithstanding this court's decision in Roud , the starting point for determining the admissibility and use of evidence of untried offences must be the Criminal Code . When Roud was decided, the Code provisions reviewed above had not been enacted. To the extent that some of the language in Roud may appear inconsistent with the Criminal Code, the Code must prevail. However, I think it is possible to reconcile the Code provisions with the earlier decisions in Roud, Lees, Jones and many of the other decisions.

As is the case with evidence generally, admissibility depends upon the purpose for which the evidence is adduced. In this case, the Crown was not entitled to lead the evidence of Ms . Powell and Ms. Firth for the purpose of increasing the punishment that would otherwise be appropriate for the offence of attempted murder. To do so would offend the provisions of ss. 718.1 (proportionality) and 725 (taking other offences into account). The prosecution was also not entitled to lead this evidence to attempt to extract some punishment for those untried and uncharged offences. That would offend the presumption of innocence and s. 725. It is no answer to say that the Crown should be able to use the evidence for those purposes if it proves the conduct beyond a reasonable doubt. Such reasoning undermines the basic tenet of our system that, absent compliance with s. 725, an offender can only be sentenced for crimes that have been properly charged and proved at a trial of those offences.

In my view, evidence that discloses the commission by the offender of other untried offences is admissible for the purpose of showing the offender's background and character as that background and character may be relevant to the objectives of sentencing. That being said, the trial judge must have a discretion to refuse to admit the evidence where necessary to ensure that the accused has a fair hearing.

I would suggest that in deciding whether to exclude evidence that discloses untried offences the trial judge, in addition to considering the proposed use of the evidence, might consider some of the following:

(i) the nexus between the evidence and the offence for which the offender was convicted-the closer the connection the more likely the evidence will shed light on the circumstances of the charged offence;

(ii) the similarity between the evidence and the offence for which the offender was convicted;

(iii) the difficulty the offender may encounter in properly defending against the allegations in the proposed evidence;

(iv) the danger that the sentence hearing will be unduly prolonged;

(v) the danger that the focus of the sentence hearing will appear to be diverted from the true purpose of imposing a fit sentence for the charged offence that is proportionate to the gravity of the offence and the degree of responsibility of the offender in accordance with s. 718.1;

(vi) whether, as in Lees, the offender has adduced evidence of good character; and

(vii) the cogency of the proposed evidence.

[ 35 ] In R. v. B.M., 2008 ONCA 645 , [2008] O.J. No. 3653 (Ont C.A.) the Court noted the following at para. 11:

A sentencing judge should not rely on prior uncharged acts as "aggravating factors" as the sentencing process should not impose punishment for untried and uncharged offences. However, prior abusive conduct may nonetheless be relevant at the sentencing stage to show the character and background of the offender as it relates to the principles of sentencing: see R. v. Edwards (2001), 2001 24105 (ON CA) , 155 C.C.C. (3d) 473 (Ont. C.A.) at para. 63 ; R. v. Roberts (2006), 2006 ABCA 113 , 208 C.C.C. (3d) 454 (Alta. C.A.) at para. 28 . The background and character of the offender may be considered, for example, in order to assess the need for individual deterrence, rehabilitation, or the protection of the public. Such information is essential for crafting a sentence suitable for a particular offender.

[ 36 ] In R. v. B.M. the accused was sentenced to 2 years less a day. The complainant was subjected to forced anal intercourse. At para. 12 the Court stated:

We also agree with the Crown that the length of sentence was not within an acceptable range. We appreciate that ranges are merely guidelines designed to assist trial judges. The overall message, however, must be clear. Individuals such as the respondent, who victimize their partners within the context of the marital relationship, in this case a spouse with particular vulnerabilities, must know that serious consequences will follow. In the circumstances of this case a fit sentence, in our view, is two years less a day.

[ 37 ] In R. v. D.S.F., [1997] O.J. No. 5628 the very serious facts are set out at paras. 3 to 6. At para. 15:

I consider the primary sentencing factors applicable in this case to be general deterrence, denunciation, specific deterrence and rehabilitation, in that order. This is a case involving an escalating pattern of domestic violence over the period of an approximately 11-month marriage. Justice Hill, in his recent decision of R. v. Frittaion , [1997] O.J. No. 2782 , , July 8, 1997, at page 12, stated the following:

Resort to violence in domestic disputes cannot be condoned by the courts and deterrent sentences are warranted to educate the public as to the serious consequences attendant upon such actions. Domestic violence confrontations are notoriously dangerous, frequently with catastrophic results.

The total sentence imposed was 3½ years.

[ 38 ] In R. v. B.R., 2006 29082 (ON CA) , [2006] O.J. No. 3404 the Court stated at paras. 83 and 84:

The trial judge imposed a sentence of 30 months' imprisonment on the sexual assault charge and a sentence of 12 months' imprisonment on each of the remaining two charges, to be served concurrently. In my view, these sentences were appropriate for this offender and these offences.

Although the appellant had no prior criminal record, the offences were serious and occasioned considerable emotional trauma to M.R. They occurred in the context of a domestic relationship while young children were present in the home, in close proximity. Indeed, in the instance of the sexual assault, the crime was perpetrated while M.R. was in bed with the sleeping children. In addition, the offences were not isolated occurrences. They took place against the backdrop of a lengthy abusive relationship. Moreover, unlike many of the cases relied upon by the appellant, no guilty plea operates in mitigation of sentence. The offences here require a denunciatory sentence that also meets the requirements of general and specific deterrence.

[ 39 ] In R. v. Feick , [2008] O. J. No. 2234 the sentence was 4 years. There were many aggravating factors. He committed repeated offences and physically and emotionally tormented the complainant for about 3 years. He had a criminal record of assault on his common law spouse. As mitigating factors Feick had the support of his family and had been of good behaviour since he was charged.

[ 40 ] In R. v. Smith, 2011 ONCA 564 , [2011] O.J. No. 3832 (Ont. CA) the Court dealt with the range of sentences at paras. 85 to 87 as follows:

In this province, sentences for uttering a death threat in circumstances similar to those in this case tend to range from the imposition of a suspended sentence to six months imprisonment: see R. v. Rowe (2006), 2006 32312 (ON CA) , 212 C.C.C. (3d) 254 (C.A.), R. v. Bytyqi (2004), 2004 14964 (ON CA) , 186 O.A.C. 114 (C.A.), R. v. Stiliadis , [2004] O.J. No. 1441, 2004 CarswellOnt 1388 (C.A.) .

The jurisprudence of this court suggests that a sentence of one to two years will generally be appropriate for a conviction for common assault based on facts such as those comprising count ten, committed against a spouse or domestic partner in the context of a lengthy pattern of domestic abuse: see R. v. Petrovic (1984), 1984 2003 (ON CA) , 47 O.R. (2d) 97 (C.A.), R. v. Inwood (1989), 1989 263 (ON CA) , 32 O.A.C. 287 (C.A.), R. v. R.(B.S.) (2006), 2006 29082 (ON CA) , 81 O.R. (3d) 641 (C.A.), R. v. Sidhu , 2011 ONCA 139 , R. v. States (2006), 2006 25973 (ON CA) , 214 O.A.C. 106 (C.A.).

Finally, in cases of sexual assault involving forced intercourse with a spouse or former spouse, sentences generally range from 21 months to four years: see R. v. R.(B.S.) (2006), 2006 29082 (ON CA) , 81 O.R. (3d) 641 (C.A.), R. v. Jackson , 2010 ONSC 3910 , R. v. M.(B.) , 2008 ONCA 645 , R. v. Nolan , 2009 ONCA 727 , R. v. Toor , 2011 ONCA 114 .

Smith was sentenced to a total of 3 years.

[ 41 ] In R. v. Squires , [2012] O.J. No. 101 Squires was sentenced to 39 months, thirty months attributed to the two sexual assaults.

[ 42 ] The last case the defence referred me to is R. v. W.R. , [2012] O.J. No. 3118 (S.C.J.) . At paras 27 to 29 Justice Coats states:

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.

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

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.

[ 43 ] Justice Coats sets out the facts relating to the sexual assault as follows at para. 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. K.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.

Criminal Code

[ 44 ] Purpose and Principles of Sentencing:

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.

[ 45 ] Section 718.1 states:

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[ 46 ] Section 7182 (a)(ii)(b)(c)(d)(e) states:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

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

(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.

CONCLUSION

Aggravating Factors

[ 47 ] The parties were involved in a long term on and off again relationship. They did live together at times however, they were never married. They do not come within the definition of spouses or common-law partners as set out in section 718.2(a)(ii), however, these offences took place within the context of an intimate relationship that had been ongoing for some time.

[ 48 ] The sexual assault involved forced vaginal intercourse. The common assault and the uttering a death threat convictions depict a relationship in which Mr. Evans exerted his control and dominance over Ms . Morrison. Even in her time of serious illness with cancer, Mr. Evans did not treat her with dignity or respect. The uttering a death threat occurred while he was purportedly caring for her.

[ 49 ] The circumstances surrounding the sexual assault were serious. The jury did not find that Mr. Evans used a weapon. Ms . Morrison described her injuries as including a welt on her left hip from the punching. Her upper chest by her shoulder bone really hurt and she thought she had broken a rib.

[ 50 ] Dr. Kim confirmed the bruising was a soft tissue bruising. Dr. Kim also testified that because of her other medical issues the bruising could have been exaggerated.

[ 51 ] I am satisfied that the circumstances of the forced vaginal intercourse are serious and involved violence beyond the inherent violent nature of the forced vaginal intercourse itself.

[ 52 ] The circumstances of the death threat are also serious. Ms . Morrison in an effort to find out some background information relating to Mr. Evans, was faced with a response to that by a threat by Mr. Evans to kill her. This response by Mr. Evans was totally unacceptable.

[ 53 ] The Florida convictions are serious as well. It is quite understandable why Mr. Evans entered into the plea bargain to avoid jail time. His plea of nolo contendere was neither an admission of guilt nor was it a contest of what happened. However, it is nevertheless a finding of guilt with two registered convictions as a consequence.

[ 54 ] The Florida convictions are, in my view properly registered convictions. Mr. Evans knew that by entering a plea of nolo contendere , convictions would have been the outcome. Mr. Evans does not get the benefit of admitting responsibility with a formal plea of guilt and acknowledging his wrongdoing. Mr. Evans does derive benefit in proceeding as he did as the complainant would not have been put through the trauma of a trial.

[ 55 ] Having said all of that, these prior convictions mean that Mr. Evans does not appear before me as a first offender.

[ 56 ] These offences took place in 1999. Although the nature of the convictions are similar, sexual battery, the circumstances are different. It did not involve a lengthy relationship of intimacy as with Ms . Morrison. Mr. Evans pleaded no contest to avoid the risk of a lengthy jail term. Mitzy Evans, in her letter of support to the Court states that she has personal knowledge of the case in Florida. She states that Kenyu did not have proper representation and being innocent and scared and not quite sure how the legal system worked or how it could affect his future, he trusted his lawyer and took the advice of his lawyer to plead guilty with probation. Mitzy Evans goes on to say that in hindsight Kenyu should have had a trial as the complainant could not be found and there was no evidence or witnesses to corroborate what was a false charge. In these circumstances it is difficult for this court to attach significant, if any, weight to these convictions.

[ 57 ] Other than the Florida matters, which occurred in 1999, Mr. Evans has no criminal record. He is employed and has the support of his fiancée and his family. It is somewhat curious that despite the letters of support by his parents the Probation Officer was unable to contact them.

[ 58 ] The letters of support indicate how shocked they are that Kenyu was convicted and that this conduct was never witnessed by them. His sister Camille asks, how could someone who has been through so many friendships with ladies hide this volatile and brutish behaviour? However it is important to note that often, these events do not take place in the public domain for all to see. As a matter of common sense in these types of cases, usually the misconduct occurs in private and in most cases will not be reflected in the way a family member or a friend will view the person. It is not surprising then that Kenyu’s family would find it difficult to accept the jury’s findings and conclusions.

[ 59 ] It is my strong view that the sentencing principles of denunciation and general deterrence are seriously in play in this matter. As I indicated there was violence involved in the sexual assault beyond that inherent in the act itself.

[ 60 ] There were three separate incidents that took place from November 2007 to August 2008 to the threat in September 2009.

[ 61 ] The sexual assault took place in the context of an intimate relationship.

[ 62 ] The court must send a strong message that society cannot and will not condone this type of conduct and the response from the court must be clear.

[ 63 ] A penitentiary term of imprisonment is mandated in the circumstances of this case and for this offender. I am satisfied, therefore, guided by the sentencing principles enumerated in the Criminal Code and guided by the legal principles set out in the jurisprudence, that a period of four years in a penitentiary is the appropriate term of imprisonment.

[ 64 ] The sentence is as follows:

Count 2 - Sexual Assault - 3½ years in a penitentiary

Count 3 - Utter Death Threat - 6 months consecutive

Count 1 - Common Assault - 6 months concurrent

Total = 4 years

[ 65 ] A DNA order shall issue pursuant to section 487.051(1) of the Criminal Code .

[ 66 ] A section 109 weapons prohibition order shall issue for a period of 10 years.

[ 67 ] A Sex Offender Information Registration Act (SOIRA) order shall issue for a period of 20 years pursuant to section 490.013(1)(b).

Fragomeni J.

Released: October 16, 2012

COURT FILE NO.: CRIMJ(P) 741/10
DATE: 20121016

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N: HER MAJESTY THE QUEEN - and – KENYU EVANS

REASONS FOR SENTENCE

Fragomeni J.

Released: October 16, 2012