ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-SA5088
DATE: 2012/11/19

BETWEEN:

Her Majesty The Queen – and – Sherlon Satkunarajah

Fara Rupert, for the Crown

Jean Claude Dubuisson, for the Accused

HEARD: March 26, 27, 28, 29, 30 and April 4, 2012 and October 25, 2012(Ottawa)

REASONS FOR SENTENCING

BEAUDOIN J. (ORALLY)

[ 1 ] On April 4, 2012, after trial, I found the offender, Sherlon Satkunarajah, guilty of Sexual Assault, contrary to section 271(1) of the Criminal Code of Canada ; Forcible Confinement, contrary to section 279 of the Criminal Code of Canada ; Uttering a Death Threat, contrary to section 264.1(2) of the Criminal Code of Canada ; Impaired Driving, contrary to section 253(1) (a) of the Criminal Code of Canada ; Impaired Driving over 80 mgs contrary to section 253(1)(b) of the Criminal Code of Canada and Dangerous Driving, contrary to section 249(2) of the Criminal Code of Canada . By application of the principles set out in R. v. Kineapple , 1974 SCC 14 , [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524 I have stayed the charge of Impaired Driving Over 80 mgs.

[ 2 ] The facts are these. On September 18, 2009, the offender asked his friend, S.R. (“Ms. S.R.”) to accompany him on a day trip from Brockville to Ottawa. It was his birthday, he asked Ms. S.R. to “wear something nice”. Ms. S.R. was unfamiliar with Ottawa and as she had a young son at home she agreed to go with the offender on the condition that they return to Brockville early that evening. After they arrived in Ottawa, they helped the offender’s friend hand out flyers and then they purchased some liquor and some lemons and they drank over the course of the afternoon. Later on, they went to another of Mr. Satkunarajah’s friends and more alcohol was consumed and a marijuana joint was shared by the group. By this time, Ms. S.R. was increasingly anxious to return to Brockville and she finally insisted that the offender drive her home as she was completely dependent on him for that purpose.

[ 3 ] By this time, the offender was intoxicated to some degree and his driving was erratic from the outset. He cut off a truck on the road and this vehicle followed them to a gas station where the female passenger confronted them, causing Ms. S.R. to burst into tears. After they had some soft drinks, they continued on their way to Brockville. Ms. S.R. was told to look for Jockvale Road. They turned down a dark road and after a short while, the offender said they were lost. The area was dark and there were no houses nearby. The offended told Ms. S.R. that he was tired and that he wanted to pull over and sleep and she insisted that he drive her home to her son.

[ 4 ] At this point, Mr. Satkunarajah told her that she would have to do him a favour if she wanted him to drive; she would have to give him oral sex. She refused and thereafter the offender told her that he “might as well shoot her or stab her and leave her in a field”. At this time, Ms. S.R. feared for her life; she knew the offender had a knife or scissors that were used to cut up the lemons they had purchased. She pleaded with the offender to let her out and she would find her way home. She attempted to leave the car but she heard the car doors lock and Mr. Satkunarajah put his arm around her neck as if to choke her. Ms. S.R. tried to reach her cell phone to dial 911. A struggle ensued as he tried to prevent her from using the phone. He groped her breast and tried to put his hand between her legs towards her vagina. She told him that she did not want to do this. Again, the offender put his arm around her neck in a choking position. She felt her airway being cut off. The offender started to drive, but Ms. S.R. managed to get her hand on the car handle and unlock the door, she kicked it open and leapt from the moving car and placed another frantic call to 911 as she ran into the middle of the road in a hysterical state. There she was rescued by Mr. Matthew Spezza (“Mr. Spezza”) and Mr. Ryan O’Connor (“Mr. O’Connor”) who had happened to be driving home to retrieve some concert tickets they had forgotten at home.

[ 5 ] Ms. S.R. got into the back seat of their car and at this time Mr. Satkunarajah sped away. Mr. Spezza and Mr. O’Connor decided to pursue him over a considerable distance and time while calling in the offender’s movements to the 911 dispatch. The offender drove all over the road, forced a vehicle off the road, he narrowly missed cars, drove through a stop sign, went the wrong way of a drive‑thru, passed vehicle on a double line and drove at an estimated speed of 160 kilometres per hour. He was eventually stopped and arrested on Highway 416.

Pre‑Sentence Report

[ 6 ] The offender has a criminal record:

• Convictions dated September 7, 2009 for Theft Under $5000, Possession of a Credit Card and Unauthorized Use of Credit Card, for which he received a suspended sentence and 18 months probation.

• A conviction dated May 18, 2010 for Impaired Driving with more than 80 mgs of alcohol, for which he received a fine of $1000.

• And convictions dated December 15, 2010 for Obstructing Peace Officer, Theft Under and Failure to Comply with a Recognizance, for which he again received a suspended sentence, probation for 12 months and was ordered to perform 40 hours of community service.

[ 7 ] The pre‑sentence report was prepared by Pierre Belanger. He notes that Mr. Satkunarajah is a 23‑year‑old repeat offender. He was born in Sri Lanka and he immigrated to Canada in 2003. His parents are hard‑working and they continue to support their son. I note that they attended every day in court for the trial. As a youth, the offender was involved in a number of community and school activities. He graduated from high school and has some community college education and he is now registered in the Business program at St. Lawrence College of Applied Arts and Technology.

[ 8 ] Mr. Satkunarajah initially minimized his history of drug use but ultimately acknowledged a problem with substance abuse. He started drinking when he was about 18 years old and the consumption of alcohol has been a factor in the commission of many offences.

[ 9 ] While the offender cooperated fully in the preparation of the report, he initially failed to accept any responsibility for his actions and denied several of the charges. Eventually he admitted his acts and recognized that his actions will never be acceptable in society. He also acknowledged that he was bound by judicial restrictions at the time of these offences but these restrictions did not act as a deterrent. He incurred further dealings with the police after these offences. He is at a loss to explain this behaviour but is open to completing an assessment and to attend counselling. Mr. Belanger notes that negative peer influences have also been a contributing factor in the commission of some the offences perpetrated by the subject. He concludes, “Sherlon will need to take a step back and honestly evaluate his choices in this area and then make changes or he is at greater risk to continue to get into trouble in the future”.

[ 10 ] The report indicates that community supervision was “absolutely ineffective” since the offender failed to commit to any form of supervision, notes that he has breached legal orders on many occasions even though he holds them in high regard.

[ 11 ] Mr. Belanger concludes that the offender “has the potential to become a valued and productive member of the community if he commits to his rehabilitation and works diligently. Sherlon unfortunately tends to minimize his actions and does as he wishes. Only time will tell whether he is willing to make this commitment and follow through”.

[ 12 ] He notes that Mr. Satkunarajah has been the subject of several types of sanctions in the past but none of them have attained the desired goals of deterrence or rehabilitation.

Victim Witness Impact Statement

[ 13 ] A victim witness impact statement was prepared. Ms. S.R. writes of the continuing fear that she experiences since that terrible night and says she no longer feels safe. She has had to resort to anti‑anxiety medication and sleeping pills so she can try to live a normal life. She says she is always looking over her shoulder to see if the offender is there. She describes her life as being “taken away from her”.

Letters of Support

[ 14 ] The offender has produced letters from elders of his church attesting to his good character. His mother, who is a registered nurse, has prepared a report that describes a regime she has planned to rehabilitate his behaviour. The offender attended a three week in‑house alcohol rehabilitation program in Belleville. This was completed just prior to his original sentencing date. The discharge report is positive but was completed by the offender himself. Regrettably, there is no objective assessment other than the pre-sentence report. He is back at school and is getting good marks in a Business program and he supports himself with part‑time sales for Amway.

The Applicable Provisions

[ 15 ] Section 718 of the Criminal Code reads as follows:

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.

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

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,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

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

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

(v) evidence that the offence was a terrorism offence

shall be deemed to be aggravating circumstances;

( 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.

The Position of the Parties

The Crown

[ 16 ] The Crown seeks a three‑year sentence and argues that the principles of denunciation and deterrence and the need to separate the offender from society and to rehabilitate the offender and promote a sense of responsibility are of particular application having regard to the nature of the offences of which the offender has been convicted. The Crown notes that the offender was awaiting trial for an impaired driving offence when he took the decision to drive to Ottawa and to consume alcohol on that day. The Crown emphasizes these aggravating factors:

• the accused was out on bail and bound by court conditions;

• that the victim was in a vulnerable position; she could not drive; she was far from home, in a city she did not know;

• the assault took place in a remote location; and

• the assault took place while the victim was confined.

[ 17 ] After the offender’s callous disregard for the victim, he then threatened the safety of the public, by erratic drunken driving.

[ 18 ] There was evidence of planning as the offender had asked Ms. S.R. to “wear something nice” that day. The Crown says there are no mitigating factors. The Crown seeks an order that the offender provide a DNA sample pursuant to section 487.05.1; an order that the offender comply with the Sex Offender Registration Act for a period of 20 years as set out in section 490.013 (2) (b) of the Criminal Code ; a weapons prohibition ban for 10 years pursuant to section 109 of the Criminal Code , as well as a three‑year driving suspension.

[ 19 ] The Crown cites and relies on the decision of R. v. Ahmadi , 2010 ONCA 639 , [2010] O.J. No. 4134 where the Court of Appeal upheld a one‑year sentence on a charge of sexual assault where the 16‑year‑old victim was in a vulnerable position due to her intoxication. In R. v. Warren (6 December 1999), Toronto C30973 (Ont. C.A.), the Court of Appeal upheld a 5‑year term for charges of sexual assault and confinement in relation to two complainants that occurred in 1994 and two other charges of breach of recognizance that occurred in 1996 and 1997. Consecutive sentences were imposed for distinct violations.

Defence

[ 20 ] The defence acknowledges that a term of incarceration is appropriate but suggests a sentence of 30 days to 6 months. In support of this submission, he has offered seven decisions where sentences in this range were imposed. None of these decisions offer much guidance however as none of these cases offer the cluster of offences that are present here. Moreover, some of these decisions deal with first time offenders. The defence does not oppose the weapons prohibition, the DNA sample or the Sex Offender Registry. He argues that the driving suspension should be limited to one year and that any sentence with respect to the driving offences should be concurrent. He emphasizes that the offender is no longer the same person as the one who committed these offences and notes that he has been sober for two and one half months.

Decision

[ 21 ] I conclude that denunciation and deterrence are the paramount principles to be applied for each of the offences for which the offender has been convicted. His record demonstrates a continuing pattern of criminal conduct and I note that he accumulated seven convictions in less than 15 months. Previous attempts to impose less restrictive forms of punishment have had no success. He was out on bail when these offences were committed. He did not acknowledge any responsibility for his actions until very recently. While his failure to accept responsibility is not an aggravating factor and he cannot be punished for insisting on a trial, he cannot expect the leniency that might have accompanied a guilty plea. While he has the support of his family and he has shown very recent efforts to rehabilitate himself, it is still too early to tell how successful these will be.

[ 22 ] This offender’s actions on the night in question were horrific. Who knows what could have happened to Ms. S.R. had she not been able to escape from a moving car and to be immediately rescued by the good Samaritans who happened to be on the road? How many innocent drivers narrowly avoided accident and injury or worse as the offender attempted his drunken and dangerous escape?

[ 23 ] I have noted the Court of Appeal decision in R. v. C.N., 2007 ONCA 376 where the offender had directed the complainant to drive to a secluded area and struck her repeatedly, prevented her from exiting the car, and had forced intercourse with her. The complainant was confined for over one hour and the accused was convicted of assault, unlawful confinement, and sexual assault. The trial judge sentenced the accused to four years imprisonment. On appeal, the sentence was varied to three years. The court noted that the assault was brutal and over a long period of time, and had serious impact on the victim. The accused was relatively young, had no criminal record, and posed virtually no risk of re‑offending.

[ 24 ] While our courts seem to reserve harsher punishment where a sexual assault involves intercourse or penetration one cannot overlook the circumstances of this assault and the impact on the victim. These events were horrifying for this victim. She was in a vulnerable position; she was confined in a dark isolated area; the offender’s crude groping was accompanied by death threats. She thought she was going to die. There was further criminal behaviour endangering the public.

[ 25 ] Here the principles of denunciation and deterrence and the need to separate the offender from society must be given weight. Less restrictive measures to ensure his rehabilitation have failed. I note the comments from the pre-sentence report in reference to the offender: “(he) has the potential to become a valued and productive member of the community if he commits to his rehabilitation and works diligently. Sherlon unfortunately tends to minimize his actions and does as he wishes. Only time will tell whether he is willing to make this commitment and follow through”. The report notes that he is at risk of committing further offences unless he commits to change. The offender’s commitment to change is recent and his attendance at the alcohol rehabilitation program was completed on the eve of the first date that this matter was set for sentencing. In his own‑self assessment the offender acknowledges that there are high risk situations that put him in danger of relapse. There appear to be two Sherlon Satkunarajahs; one who respects his family, the church community and the court’s orders and another one who pursues an irresponsible and reckless lifestyle without any regard for others. It is too early to know if he has shed this darker side of his character.

[ 26 ] The only way to ensure that these principles of denunciation and deterrence are met and that this offender commits to changing his behaviour is to impose a custodial term well beyond the range suggested by his counsel. In my view, the global sentence of three years suggested by the Crown is closer to the appropriate sentence to be imposed. Accordingly, on the charges of sexual assault, forcible confinement and of uttering death threats, I impose a two‑year jail term on each count; each sentence to be served concurrently. On the charges of impaired driving and of dangerous driving, I impose concurrent sentences of six months in jail term. As these offences represent distinct offences, these sentences are to be served consecutively to the first sentences imposed.

[ 27 ] In addition I impose the orders requested that he provide a DNA sample; that he be bound by a weapons prohibition for a period of ten years and that he comply with the Sex Offender Registry for 20 years. I also impose a one year driving ban following his release from custody.

Mr. Justice Robert N. Beaudoin

Released: November 19, 2012

COURT FILE NO.: 09-SA5088
DATE: 2012/11/19

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Her Majesty The Queen – and – Sherlon Satkunarajah REASONS FOR SENTENCING Beaudoin J.

Released: November 19, 2012