COURT FILE NO.: CR-12-3000455-0000

DATE: 20140617

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ALEXANDER WINSTON SYLVESTER

Defendant

Soula Olver, Jonathan Smith and Andrew Pilla, for the Crown

Daniel Moore, for the Defendant

HEARD: September 23, 24, 25 and 26, 2013, October 22, 2013, April 14, 2014, and May 16, 2014

MOLLOY J.:

REASONS FOR SENTENCE

A. INTRODUCTION

[1] On September 23, 2013, Alexander Sylvester pleaded guilty to charges relating to two sexual assaults: one that occurred in 1981 and the other in 1993. The police were unable to identify the perpetrator of either offence at the time they were committed. However, evidence had been preserved in both cases and with the evolution of DNA testing and the creation of the National DNA Databank in 2000, both cases were re-examined as “cold cases.” As a result of DNA analysis, police investigators concluded in 2002 that Mr. Sylvester committed both sexual assaults. Initially, the police believed they would find Mr. Sylvester in Jamaica, as he had been deported there by Canada Border Services in October 1999 following his release from a lengthy sentence for a rape and weapons offences. However, after some investigation, in 2003 police found Mr. Sylvester in a prison in the State of Pennsylvania. Since 2002, Mr. Sylvester has been serving sentences for various offences committed in the United States between 2000 and 2002 and offences committed in custody since 2002. At the conclusion of protracted extradition proceedings Mr. Sylvester was ultimately returned to Canada on July 15, 2011 to face trial on these two sexual offences committed in 1981 and 1993.

The Abandoned Long-Term Offender Application

[2] The charges proceeded through a preliminary hearing and Mr. Sylvester was committed to trial on June 19, 2012. Mr. Sylvester has a lengthy criminal record, both in Canada and the United States, including many crimes of violence and involving weapons. The Crown advised the defence that a dangerous offender or long-term offender designation would be sought, whereupon Mr. Sylvester agreed to be assessed by a forensic psychiatrist chosen by the defence, Dr. Lisa Ramshaw. Upon receipt of Dr. Ramshaw’s report dated August 7, 2013, both the Crown and defence agreed that a long-term offender designation would be appropriate for Mr. Sylvester. Mr. Sylvester decided to plead guilty to certain of the charges, and to agree to a long-term offender designation. However, there was no agreement as to the length of the determinate sentence that should be imposed for the two sexual assaults and some related charges. It was on this basis that the argument proceeded before me over the course of four days in September, 2013.

[3] On September 23, 2013, Mr. Sylvester pleaded guilty to one count of rape in connection with the 1981 assault. In connection with the 1993 incident, he pleaded guilty to: sexually assaulting the complainant while using a weapon; threatening to kill the complainant and her husband; stealing from her; and unlawfully confining her. Based upon the agreed facts, I entered convictions on all counts. I reserved my decision in respect of sentencing.

[4] Subsequently, I brought the matter back before me to raise two issues with counsel: (1) whether I could find Mr. Sylvester to be a dangerous offender notwithstanding the consent of both parties that he would be designated a long-term offender; and (2) whether I had any jurisdiction to make either designation in the absence of the Crown having applied for and obtained the formal consent of the Attorney-General under s. 754 of the Criminal Code.

[5] Having considered the matter further, the Crown conceded that the consent of the Attorney-General was a mandatory requirement, in the absence of which I would have no jurisdiction to make a long-term offender designation. The defence agreed with that position. The Crown sought an adjournment for the purpose of regularizing the proceeding by obtaining the required consent. I adjourned the matter from time to time over the course of the next six months as the Crown’s application for consent worked its way up the various levels of required approval. Ultimately, on April 14, 2014, Crown counsel advised that the application for the consent of the Attorney-General was still in progress, but that the Crown’s office had now decided to simply withdraw the application entirely. No explanation was provided. Accordingly, the Crown took the position, and defence counsel agreed, that I should simply proceed to sentence Mr. Sylvester to a determinate sentence for the two sets of offences based on the evidence and submissions heard in September 2013.

Effect of the American Sentence

[6] Throughout this period of time, Mr. Sylvester has remained in custody in Ontario. Mr. Sylvester has not yet completed his sentence in the United States, although he is receiving credit for the time he has spent in custody here since his extradition. He will have completed serving his United States sentence by August 31, 2016 at the earliest (the conditional release date), and at the latest by September 19, 2019 (the warrant expiry date). His Canadian sentence will not begin until he has completed serving his sentence in respect of the U.S. convictions.

Overview: Appropriate Sentence for these Offences

[7] The issue now before me is the appropriate determinate sentence to be imposed for the offences committed in Toronto in 1981 and 1993. Extremely divergent positions were taken by the two parties.

[8] Mr. Moore, for the defence, took the position that the appropriate range of sentence for the offences committed would be between five and ten years. He further submitted that I should reduce the sentence to take into account the totality principle, bearing in mind the sentence Mr. Sylvester is currently serving for crimes committed in the United States and the fact that the time served here in Canada since his extradition has been served in a detention center as opposed to a penitentiary. The defence also pointed to the length of the United States sentence currently being served by Mr. Sylvester and the fact that he might not be finished that sentence until 2022, by which time he would be 67 years old. He submitted that taking these totality principles into account should bring the sentence down to five years for both offences combined. He relied upon statistics obtained from the internet indicating that the life expectancy for a black male in prison in the United States, with a history of cocaine use, is somewhere around 72 years. A five year sentence would therefore permit Mr. Sylvester to have some period of time living in freedom prior to his death. Finally, Mr. Moore submitted that the sentence should then be further reduced by one-half to two-thirds to take into account the mitigating factor of his cooperation with the police. Thus, he argued that the appropriate sentence for me to impose would be two-and-a-half years.

[9] The Crown’s position was that Mr. Sylvester should be sentenced to six years for the rape of N.F. in 1981 and nine years for the sexual assault of G.C., with those sentences to be consecutive to each other and consecutive to the sentence currently being served in the United States. The additional charges relating to the incident involving G.C. would then be concurrent to the nine-year sexual assault sentence. The total sentence, before credit for cooperating with the police, would be 15 years. This position already reflects the totality principle, but for which the Crown would have sought a total of 20 years. With respect to the reduction for cooperation, the Crown did not recommend a specific percentage reduction, but submitted it should not exceed 25% and should perhaps be even less than that.

[10] Following argument on April 14, 2014, I reserved my decision as to the appropriate determinate sentence for Mr. Sylvester. Subsequently, I advised both counsel in writing that I was considering imposing a sentence in excess of the range proposed by the Crown. I gave counsel the opportunity to make further submissions if they thought this advisable, and they took advantage of that offer. On May 16, 2014, I heard additional submissions from counsel on this issue, which I have taken into account in reaching my decision. Notwithstanding those submissions, I have come to the conclusion that the interests of justice require a sentence beyond the range suggested by the Crown.

[11] In my view, the most important principles informing the appropriate sentence are denunciation, general deterrence, and the need to separate Mr. Sylvester from society for the protection of the public. Mr. Sylvester is likely to reoffend, and likely to reoffend violently. There are virtually no mitigating factors. The best that can be said is that as he ages he might become less dangerous and that on one occasion he provided assistance to the police as an informant. For the reasons that follow, I consider the appropriate sentence for the rape of N.F. to be 11 years and for the sexual assault of G.C. to be 13 years, consecutive. Those are consecutive to each other. The other offences committed at the time of the sexual assault of G.C. are concurrent to the sexual assault sentence. That would bring the total sentence to 24 years. I have reduced the sentence I would otherwise impose in order to give some credit for the cooperation with the police and to reflect the principle of totality, bringing the total sentence to 20 years (allocated at 9 years for the 1981 rape and 11 years for the 1993 sexual assault). That sentence will commence once the American sentence has been completed.

(Complete decision continues exactly as provided above, including all numbered paragraphs and footnotes through paragraph [97] and the footnote section.)