ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R v TO, 2013 ONSC 6037
COURT FILE NO.: CR-13-10000010-0000
DATE: 20130926
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
T.O.
D. Moscovitz, for the Crown
Nicholas Charitsis, for the Accused
HEARD: September 23, 2013
KELLY J.
reasons for sentencE
[1] The accused, T.O., pleaded guilty to one count of sexual assault on September 24, 2011; a second count of sexual assault on September 27, 2011 and one count of breach of probation, all contrary to the Criminal Code.[^1] All offences involve the same complainant. As a result of the plea, five charges were withdrawn at the request of Crown Counsel.
[2] T.O. now comes before me for sentencing. Crown Counsel seeks a sentence of 18 months to 2 years less a day. She also submits that T.O. should be subject to a period of probation and certain other ancillary orders. T.O. submits that the appropriate sentence is 1 year less 9 months of time served to reflect the onerous bail conditions that T.O. has been subject to since his arrest.
[3] For the reasons set out below, I find that the appropriate sentence is 18 months less 13 months time served. T.O. will be required to serve five months in custody. He will also be subject to a DNA and s. 109 order.
The Facts
[4] The facts giving rise to the plea are summarized as follows:
a. The complainant and T.O. were involved in a dating style relationship between July, 2010 and July, 2011. Since July, 2011, they have seen each other sporadically. The complainant has made efforts to end the relationship. However, T.O. has been determined to salvage it.
b. The complainant and T.O. reside separately and have no children together.
c. On Saturday, September 24, 2011, T.O. telephoned the complainant and requested they meet in order to discuss the status of their relationship. She agreed.
d. At approximately 21:00 hours, they met outside the Oakwood Library on a bench. They spoke with one another at that location before entering the vehicle belonging to T.O..
e. T.O. drove the complainant about as they continued to discuss their relationship. The complainant requested that he drive her home, but he insisted they return to his residence together.
f. Upon their return to T.O.’s residence, they attended in his bedroom. The complainant stated that she was tired and wanted to go to sleep. She then undressed and got into bed.
g. T.O. lay down in bed with the complainant and began to make sexual advances towards her. The complainant advised that she did not want to be intimate with him; however, T.O. persisted and attempted to get on top of her.
h. The complainant reiterated her desire not to engage in sex and even used her hands to physically block her vagina from him. In spite of her numerous demands and her attempt to physically block T.O., he inserted his penis in the complainant’s vagina unprotected.
i. On Tuesday September 27, 2011, the complainant agreed to meet with T.O. once again in an attempt to end the relationship. The complainant mislead T.O. by advising him that she was involved in another relationship, hoping that this would convince him that their relationship was over.
j. The complainant and T.O. met, once again, outside the Oakwood Library. This meeting occurred at around 20:00 hours. The complainant entered his vehicle.
k. T.O. drove to a secluded parking lot in an area off of Caledonia Road. Here, a verbal argument ensued as the complainant expressed again that she wished to break off the relationship. There was also a physical altercation in the vehicle.
l. T.O. exited the vehicle and attended the passenger side of the car where the complainant remained seated. He began to grab and shake the complainant in an attempt to remove her from the vehicle.
m. T.O. then re-entered the driver’s seat of his car and, in spite of her pleas to be driven home, T.O. drove her to his residence. Upon their arrival, the complainant began to walk from the residence in an attempt to separate herself from him.
n. T.O. caught up to the complainant, grabbed her about the arm, and stated, “You’re coming with me”. He escorted the complainant by the arm to a nearby park where there was a further physical altercation.
o. At the park, the complainant managed to get free and walk away. T.O. caught up to the complainant, grabbed her arm, twisted it behind her back and proceeded to lead her back to his bedroom.
p. The two of them lay in bed unclothed as the complainant tried to fall asleep. T.O. began to make repeated sexual advances toward the complainant. The complainant stated that she did not wish to be intimate with him. He began to grope at the complainant as she attempted to create space between them. T.O. repeatedly pulled the complainant closer by pulling her shoulder.
q. T.O. proceeded to locate a condom in a nearby drawer and throw it at the complainant demanding that she put it on him using her mouth. The complainant refused and placed the condom on him with her hands. T.O. then pulled the complainant on top of him and proceeded to have vaginal intercourse with her. Then they went to sleep.
r. The following morning, T.O. drove the complainant home.
s. The complainant reported the incident to her school’s Child and Youth Worker. Police were then notified.
t. With respect to the “fail to comply” probation charge, T.O. was convicted of robbery by Justice Cavion on September 24, 2009. He was placed on probation for 2 years with the following condition: keep the peace and be of good behaviour. On October 1, 2011 he was charged with breaking this condition.
Analysis
[5] In determining the appropriate sentence for T.O., I am guided by s. 718 of the Criminal Code which sets out the purposes of sentencing, including denunciation and deterrence. Amongst other things, I must also take into consideration the circumstances of the offender, the complainant and the facts giving rise to the convictions.
[6] Bearing these principles in mind, I will now turn to the factors which form the basis for my conclusion.
The Aggravating Factors
[7] I consider the following to be aggravating factors regarding T.O.’s involvement in the offences before the Court:
a. T.O. has a criminal record, although it is not lengthy and related. He has a criminal conviction for armed robbery for which he received a sentence of 90 days in addition to 7 months of pre-trial custody. I am advised that the robbery involved an imitation firearm and $20 was stolen from the complainant.
b. The circumstances giving rise to these convictions are serious and of a domestic nature. The complainant was trying to extricate herself from the relationship with T.O.. Not only was she unable to do this, but was abused during the time she was making efforts to do so.
c. The complainant has given a moving and powerful victim impact statement. It is obvious from reading such a statement that she has been negatively affected by the selfish acts of T.O. and that such acts will have a lasting and negative impact upon her. This is particularly so because of issues regarding trust that were so deeply scarred by the conduct of T.O..
The Mitigating Factors
[8] I consider the mitigating factors to be as follows:
a. T.O. pleaded guilty to the offences before the Court. As such, he saved the expense of requiring Crown Counsel prove its case beyond a reasonable doubt. The plea of guilt also provided certainty of the result.
b. The plea obviated the need for the complainant to testify which is significant in these particular circumstances.
c. T.O. is relatively young. He is currently 27 years of age.
d. T.O. has the support of his parents, both of whom are employed. They describe T.O. as being helpful within the home.
e. T.O. also has the support of family friends. He has been described as “honest”, “hardworking”, “reliable” and “conscientious”.
f. T.O. appears to have been steadily employed since leaving high school. Initially he worked for a cleaning company and has been employed in other capacities, including: landscaping, construction and factory work.
g. At the time of his arrest, T.O. was working with Maran Kitchen & Home Designs. His supervisor, Mr. Tony Amorim, confirmed this employment and indicated that he considers T.O. to be a “valuable member of the work team, who consistently achieved good results and delivers on all expectations and that he would happily re-employ the subject”.
h. T.O. has a problem with alcohol. Having recognized this, he quit drinking alcohol in 2009 and attended AA meetings regularly until his arrest. His bail conditions did not allow him to attend regular meetings. He has stated that he is intent on maintaining his sobriety.
i. T.O. also admits that he smoked marijuana for some time, but that he discontinued doing so approximately 4 years ago. Ministry records show that T.O. has attended regularly at a substance abuse program at the Toronto Western Hospital.
j. The Probation Officer who produced the pre-sentence report described T.O. as “courteous, polite and forthcoming”.
k. T.O. takes full responsibility for his actions giving rise to the offences before the Court. He is “very sorry” and hopes that he may be forgiven. He acknowledges that he should have walked away from the situation involving the complainant and that he has learned from his mistake. This remorse was not only expressed to the Probation Officer, but to T.O.’s mother as well.
[9] T.O. has been subject to strict terms of bail since his release on October 5, 2011 (almost two years ago). Some of the terms included the following:
a. That he reside with his surety and be amenable to the routine and discipline of the household;
b. That he be subject to house arrest, requiring that he be in his residence “at all times seven days a week except in direct company” of his surety;
c. That he not possess any cellular phones or other electronic mobile communication devices; and
d. That he not have access to computers.
[10] It is my view that the terms of T.O.’s bail conditions have been particularly onerous. The terms of his bail required T.O. to live with his parents and forbid him from leaving the residence unless in the company of his surety (his father). There was no exemption for T.O. to attend to medical necessities, employment and attendance for religious worship. Accordingly, T.O. was entirely dependent on his surety if he wished to go out of the house.
[11] T.O.’s father suffered a work-related injury some time ago which did not permit him to leave the residence, sometimes for weeks on end. As a result, T.O. did not leave the home for weeks.
[12] Although current Crown Counsel permitted a variation of T.O.’s bail to permit him to work outside the home, his employer was unable to provide work for him. Initially it was because there was not enough work for T.O. and then it was an issue of availability. T.O.’s employer wanted some certainty about his ability to be steadily employable. Until these charges were resolved and the sentence known, T.O. could not commit to long term employment.
[13] Further, the terms of T.O.’s release deprived him from the use of computers and a cell phone, both of which are items that most people in their twenties would access regularly. Having abided by these terms for two years, T.O. has been isolated from standard forms of social media. There is no allegation that T.O. has breached any terms of his release.
[14] In my view, the 23 months that T.O. has been on bail with terms akin to house arrest must be considered as a mitigating factor in sentencing[^2]. As stated in R. v. Downes:
Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration. Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of a conditional sentence under s. 742.1 of the Criminal Code.
[15] The terms of release have infringed on T.O.’s liberty for almost two years. He was unable to work or attend school. He was unable to socialize either through media or in a social setting outside of the home. He has been confined to his home, cut off from family or friends unless they visited him or his father was able to socialize with him outside the home. In my view, this is a significant factor to be considered in sentencing T.O..
What is the Fit Sentence?
[16] What is the fit sentence? There is no case that can provide an exact precedent for a fit sentence and there is no rigid calculation to follow for crediting “pre-trial” custody in a case such as this. Accordingly, and in consideration of the above-mentioned factors, I find the fit sentence to be 18 months less 13 months time served for a period of five months to be served in custody. It is my view that such a sentence denounces T.O.’s conduct and will serve to deter others from committing such acts.
[17] T.O. will also be subject to three years of probation. While on probation, T.O. will:
a. Report to a probation officer as directed.
b. Have absolutely no contact, direct or indirect with the complainant (C.C.) or any member of her immediate family.
c. Make reasonable efforts to find and maintain suitable full time employment. Seek employment if employment is lost.
d. Attend for assessment for sexual behaviour issues as directed by his Probation Officer and take any counseling/treatment as recommended from this assessment.
e. Sign any consent for the Probation Officer to monitor progress in treatment or counseling.
[18] T.O. shall be subject to a DNA order and a s. 109 order for 10 years. He will also be bound by the terms of the Sex Offender Information Registration Act, S.C. 2004, c. 10 for life.
Kelly J.
Released: September 26, 2013
CITATION: R v TO, 2013 ONSC 6037
COURT FILE NO.: CR-13-10000010-0000
DATE: 20130926
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
T.O.
reasons for sentencing
Kelly J.
Released: September 26, 2013
[^1]: R.S.C., 1985, c. C-46
[^2]: See: R. v. Spencer (2004), 2004 5550 (ON CA), 186 C.C.C. (3d) 181 (Ont. C.A.) at para. 43