ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20140321

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TEKLE OGBAMICHAEL

Leslie Zamojc, for the Crown

Liam O’Connor, for Mr. Ogbamichael

HEARD: March 12, 2014

TROTTER J.

Reasons

[1] Mr. Ogbamichael touches women in a sexual manner while riding buses and using the subway. He has done so for many years, dating back to 1999.

[2] Most recently, Mr. Ogbamichael was accused of sexually assaulting four young women who were riding Toronto Transit Commission (TTC) vehicles. At the time, a probation order prohibited him from being on TTC property. After a judge alone trial, I found Mr. Ogbamichael guilty of one count each of sexual assault (Criminal Code, s. 271) and breach of probation (s. 733.1).

[3] The facts relating to the offences are straightforward. On February 6, 2013, R.B.,[^1] who was 19 years old at the time, was on the subway, heading downtown. She fell asleep. Mr. Ogbamichael sat next to Ms. B. He placed his backpack on his lap, which was touching Ms. B’s leg. Ms. B. felt rubbing on her leg and crotch area that started to get harder. She said it woke her up. Mr. Ogbamichael attempted to get his hand inside her pants. The incident came to an end when Ms. B. stood up and got off the subway.

[4] In her Victim Impact Statement (VIS), Ms. B. expressed her disgust and shame at being groped and objectified in this manner. Ms. B. uses the TTC often, as it is her only mode of transportation in Toronto. She now feels insecure and wary of others when she is on buses and trains. Dealing with the sexual assault has affected her schoolwork.

[5] No doubt, Mr. Ogbamichael has made many other women feel the same way over the years, for this was his seventh similar sexual offence.[^2] It was also his sixth conviction for breaching a court order.[^3]

[6] Mr. Ogbamichael is 47 years old and was born in Eritrea. When war engulfed the country in which he lived, he was moved around as a child. When he was 12 years old, Mr. Ogbamichael was sent to the Sudan to live with another refugee family. He immigrated to Canada in 1990. In 1995, he was able to earn a B. Sc. in mechanical engineering from the University of Toronto.

[7] Despite his education and accomplishments, Mr. Ogbamichael has not been successful in establishing lasting relationships. Consequently, he is single. He has lost very good, well-paying jobs because of alcohol dependence[^4] and his offending.

[8] Mr. Ogbamichael is described as a very intelligent and pleasant man. He continues to be involved in the Eritrean community in Toronto. He engages in volunteer work. Mr. Ogbamichael also enjoys the support of some members of the community.

[9] Mr. Ogbamichael is said to suffer from “toucherism”, a paraphilia whereby a person derives sexual pleasure from touching unsuspecting (and non-consenting) persons in public places. He has previously sought treatment for this condition and for post-traumatic stress disorder (related to his upbringing). A Pre-Sentence Report prepared for a 2012 sentencing hearing (for breach of probation) reported that Mr. Ogbamichael’s psychiatrist said he was at low risk to re-offend. This turned out to be wrong, as Mr. Ogbamichael committed the current offences shortly after being released from custody on that sentence. Mr. Ogbamichael expressed a willingness to submit to further treatment for his disorder and provided the name of another specialist who is willing to work with him.

[10] When given the opportunity to address me under s. 726 of the Criminal Code, Mr. Ogbamichael was thoughtful and spoke eloquently about the court process and about his situation. However, lacking from his allocution was any real expression of remorse or concern for the victim in this case, Ms. B.

[11] Ms. Zamojc for the Crown submits that I should impose a sentence of 18 months’ imprisonment on the sexual assault count and a 15-month consecutive sentence for the breach of probation count. She agrees that Mr. Ogbamichael should receive credit on a 1.5: 1 basis for the 12 months that he has spent in pre-sentence custody (PSC): see R. v. Summers (2013), 2013 ONCA 147, 297 C.C.C. (3d) 166 (Ont. C.A.).

[12] Ms. Zamocj argues that the principles of denunciation and general deterrence must be paramount in this case. She rightly points out that some of Mr. Ogbamichael’s previous sentences were dominated by rehabilitation concerns. Since this approach has failed, Ms. Zamocj argues that more punitive measures are required to protect women who use public transit.

[13] On behalf of Mr. Ogbamichael, Mr. O’Connor acknowledges the seriousness of the situation reflected in his client’s growing criminal record for sexual offences. However, he argues that rehabilitation should still be an integral component of the sentence that I craft for Mr. Ogbamichael. Mr. O’Connor submits that, because of the time that his client has spent in PSC on these charges (and on others, unrelated to this case), he has had little access to therapy. Ultimately, he contends that society would be safer if Mr. Ogbamichael were permitted to address his offending through treatment, rather than by simply being “warehoused.” To this end, he argues that his client should not receive much further time in custody.

[14] I agree that, if Mr. Ogbamichael’s paraphilia could be effectively addressed, the probability of reoffending would be reduced. However, there is no reliable foundation in this case that would warrant me going down that path. Previous rehabilitative/treatment approaches have failed. Mr. Ogbamichael continues to re-offend. Mr. Ogbamichael has already benefited from the “one last try” approach.

[15] The sentence requested by the Crown is a significant increase from Mr. Ogbamichael’s previous custodial sentences. However, she submits that the jump principle ought to have less weight in this case because of the previous unsuccessful attempts at rehabilitation and the need to take a different approach: R. v. Ferrigon, 2007 16828 (ON SC), [2007] O.J. No. 1883 (S.C.J.) and R. v. Thompson, 2013 BCCA 220. I agree. Previous custodial dispositions have failed to curb his behaviour, both in terms of committing sexual assaults and failing to comply with court orders. In fact, Mr. Ogbamichael’s last sentence for breach of probation was 50 days’ imprisonment on top of 400 days in PSC.

[16] Mr. Ogbamichael leaves a sentencing judge with little choice but to increase the severity of responses to his re-offending. At this stage, a disposition focused on rehabilitation would delicately rest on little more than hope, leaving young women traveling on the TTC to bear the risk of this approach.

[17] The sentence I impose is meant to express society’s denunciation for Mr. Ogbamichael’s behaviour. When using public transit, women should not need to worry about being touched by someone for their own deviant sexual purposes. As counsel agreed during their submissions, this type of offending is at the lower end of the scale in terms of invasiveness. Still, as demonstrated by the VIS in this case, it is sexual offending that is demeaning, frightening and damaging to a person’s sense of personal security and autonomy. It must be firmly denounced.

[18] I also impose a sentence that acts as a deterrent to Mr. Ogbamichael and to other similarly inclined individuals. Other, more lenient dispositions have failed to deter Mr. Ogbamichael. Lastly, and related to these goals, I impose a sentence that protects the public, all the while respecting the overarching principle of restraint reflected in s. 718.2 of the Criminal Code.

[19] I sentence Mr. Ogbamichael to 18 months’ imprisonment on Count # 6 (sexual assault). Given his last sentence for breach of probation, the Crown’s request or a 15-month consecutive sentence in this case is not unreasonable. However, in order to respect the principle of totality, I impose an additional 12 months’ imprisonment on Count #7, to be served consecutively. I credit Mr. Ogbamichael on a 1.5: 1 basis for 12 months of PSC, for a total credit of 18 months.

[20] Once the custodial portion of Mr. Ogbamichael’s sentence is served, he will be subject to a probation order for a term of three years. In addition to the statutory conditions, it will include the following two conditions: (1) refrain from being on any TTC property, including any TTC vehicle and (2) refrain from communication, directly or indirectly, with R.B.

[21] I also make an order under s. 109 of the Criminal Code for life, a DNA order and a SOIRA order under s. 490.013(2)(b) for 20 years.

[22] In conclusion, I recognize that this custodial sentence, for a single over-the-clothing subway groping might strike some as severe. However, given Mr. Ogbamichael’s persistent pattern of offending, which seems to be impervious to jail sentences and court orders, a significant jail sentence is required in an effort to protect the public and to put an end to this behaviour.

TROTTER J.

Released: March 21, 2014

REASONS FOR SENTENCE

TROTTER J.

Released: March 21, 2014

[^1]: An order was made under s. 486.4 of the Criminal Code in relation to the identity of the complainant.

[^2]: Mr. Ogbamichael’s record includes the following entries for sexual offences: sexual assault (Toronto, 1999), sexual assault (Thunder Bay, 2005), sexual interference and sexual assault (Thunder Bay, 2005), sexual assault (Guelph, 2008) and sexual assault (Toronto, 2009).

[^3]: Mr. Ogbamichael’s record includes the following entries for breach offences: breach of a conditional sentence and breach of recognizance (Thunder Bay, 2005), fail to comply with a recognizance x 2 (Guelph, 2008) and fail to comply with a probation order (Guelph 2012).

[^4]: Mr. Ogbamichael’s record includes the following convictions: impaired driving (Kitchener, 2004) and impaired driving (Kitchener, 2004).