ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-30000177-0000
DATE: 2014/06/23

BETWEEN:

Her Majesty the Queen

– and –

Jason Smith

Accused

Julie Battersby, for the Crown

Victoria Tucci, for the Accused

HEARD: June 6, 2014

DECISION ON SENTENCING

B.A. ALLEN J.: (Orally)

BACKGROUND

[1] The accused, Jason Smith, 32 years at the time, was arrested at about 12:45 a.m. on April 29, 2012 and charged with sexual assault and criminal harassment.

[2] The Complainant, 17 years of age at the time, was returning home from an evening out with friends. She boarded a TTC bus on Victoria Park Ave. Mr. Smith boarded the same bus. The Complainant saw a flash of light and thought Mr. Smith had taken a picture of her with his cellphone. The Complainant got off the bus at St. Clair Ave. East as did Mr. Smith. The Complainant became concerned Mr. Smith was following her and called a friend from her cellphone. Video footage of a McDonald’s shows the Complainant talking on her phone and walking by the women’s washroom. Mr. Smith is seen following her.

[3] The Complainant leaves the McDonald’s to go home and she sees Mr. Smith following her. She lives in a condo apartment with her mother. The Complainant reaches the front door and Mr. Smith follows her making comments to her. The Complainant feared to open the condo door in case Mr. Smith followed her. Mr. Smith approached her and squeezed her buttocks. The Complainant screamed out and Mr. Smith ran away.

[4] Mr. Smith pleaded guilty on the first day of trial on January 20, 2014.

EVIDENCE

Jason Smith

[5] Mr. Smith is currently in an eight-year relationship with his common law spouse and plans to marry her in April 2015. At the time of the incident, Mr. Smith was unemployed and having difficulty finding a job. He did not have a history of stable employment. At the time of the incident, because of infidelity on his part, his relationship with his girlfriend was strained. Mr. Smith had taken to drinking. It is those circumstances of his life that he says was the backdrop to the harassment and sexual assault of the Complainant.

[6] Mr. Smith has a close relationship with his mother who raised him as a sole support parent. He also has a circle of friends who support him who have known him since his youth. Mr. Smith completed high school and attended college. He has obtained a job with a plumbing company which he has held since May 2013.

[7] Mr. Smith has been apologetic and expresses embarrassment about what he has done to the Complainant. He submitted a letter to the court that expresses those sentiments. Mr. Smith has begun to attend church on a weekly basis and seeks counselling from the priest about his relationship with women. He attended a church program about how to treat women with respect and indicates he is interested in continuing his counselling sessions at the church.

[8] Mr. Smith has a criminal record. None of the family members, his common law wife or friends have criminal records. His record is in relation to offences he committed years ago, with his last conviction being in 2005. He has a 1997 conviction as a youth for being unlawfully in a dwelling house; a fail to comply in 1999; a B&E/theft in 2000; a carry concealed weapon in 2001; a fraud under $5,000 and an indecent phone call in 2004; and a sexual assault in 2005. On his past charges he received probation and suspended sentences. His only custodial time was time served before trial.

[9] The Crown sought and Mr. Smith agreed to have a psychological assessment done. A report, dated April 8, 2014 by psychologist Dr. Giorgio E. Ilacqua, was filed with the court. A battery of psychological assessment tests was conducted. Mr. Smith and his common law wife and mother were interviewed. Some of the pertinent findings are that Mr. Smith:

• presented as honest, candid and with insight into the cause of his problems, able to accept responsibility for his actions;

• has a clear plan for the future to continue to focus on employment and his home;

• is amenable to individual counselling;

• has a low/moderate general risk and a moderate/high sexual risk to become involved in the criminal justice system;

• he does not have thought patterns similar to criminal elements;

• has a positive attitude with supportive family and friends; and

• does not have a history of mental problems or substance abuse

[10] The psychologist concluded that Mr. Smith’s risk is in the low/moderate range and that he could be managed in the community. The psychologist specifically advised that Mr. Smith abstain from alcohol due to its adverse effect on his decision making, that he be supervised in the community and that he make better use of his time through voluntary social involvement.

The Complainant

[11] The Complainant provided a written victim impact statement in which she sets out the emotional and financial effects of Mr. Smith’s offence against her. She fears travelling on TTC and is afraid in her neighbourhood. She also fears for her mother who is a sole support parent. The Complainant bemoans the tension between them as she feels her mother blames her for the assault making her feel guilty for her predicament. She has been affected financially because of missing work due to emotional exhaustion and attending court dates. She also missed classes and fell behind in her school work.

THE LAW

[12] The fundamental guiding principle as stated in s. 718.1 of the Criminal Code is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718 sets out the principles that underlie the purpose of sentencing as denunciation, deterrence, separation of offenders from society, rehabilitation, reparation and responsibility.

[13] I find the sentencing principles to be considered in the case before me are denunciation and general and specific deterrence. Specific deterrence is appropriate in this case because Mr. Smith has a criminal record involving several convictions spanning a number of years, one of which was for sexual assault. A sentence must be fashioned for the offences of sexual assault and criminal harassment which are crimes of a serious nature. The sexual assault may not have been the most severe form of sexual transgression, however, the physical invasion of a young woman’s person following upon stalking her in the night to her home, should not be underestimated. The sentence must be commensurate with the seriousness of the offences and sufficient to promote the ends of denunciation and deterrence.

[14] Section 718.2(a) requires the court in considering the nature and extent of sentence to consider any mitigating and aggravating circumstances.

[15] I find the mitigating factors in this case are:

• Mr. Smith pleaded guilty before the trial proceeded which avoided the necessity for the Complainant to testify on an embarrassing and frightening experience

• He has a close and caring mother and longstanding spouse and a group of long-time friends, none of whom have had involvement with the criminal justice system.

• He has obtained a job which he has held for about one year.

• His last previous involvement with the criminal justice system was about nine years ago

• He received a suspended sentence and probation for his sexual assault conviction in 2005, not a severe punishment which, on the proportionality principle, suggests he committed a less severe form of the offence

• On the current charges, he was subjected to strict two-year bail conditions and remained in full compliance with the terms.

• He did not contest undergoing the psychiatric assessment which found him to have a low/moderate risk to re-offend.

• During the psychological assessment, he agreed to undergo any appropriate medical treatment and to receive spiritual counselling from his church.

• He submitted a letter of apology to the court and expressed regret for his conduct.

[16] I find the aggravating factors are:

• Mr. Smith has a criminal record for crimes committed over a span of seven years for a variety of offences, one of which involved sexual assault, the offence he is currently convicted of.

• The context of Mr. Smith’s offence was particularly frightening. In the late night, he followed a lone young woman off a bus into a restaurant, then out of the restaurant and to outside her home. He tried to make conversation, then reached out and squeezed her buttocks, only running away when she called out for her mother.

• Sexual assault in any form is degrading to the victim, a form of crime against a person that should not attract too lenient a sanction.

DISPOSITION

[17] Based on the aggravating elements in Mr. Smith’s conduct on the charges before the court and his past criminal record, the Crown seeks a custodial sentence of two years less a day followed by three years’ probation.

[18] The defence submits the mitigating factors outweigh the aggravating factors and argues for this reason a non-custodial sentence is appropriate − a suspended sentence, with three years’ probation on strict conditions. Alternatively, the defence submits if the court tends towards a custodial sentence such sentence should be served intermittently on weekends in order to preserve the positive step Mr. Smith took in obtaining employment.

[19] Counsel indicated they could find no case law with fact situations sufficiently similar to the case before the court. The Crown presented one case, but I did not find it helpful in fashioning a sentence for Mr. Smith.

[20] I agree with the defence’s position that the mitigating factors outweigh the aggravating factors. Taking into account the nature of the offences, Mr. Smith’s past, his psychological makeup and his current circumstances, I agree that a non-custodial sentence as recommended by the defence is suitable.

[21] I find a suspended sentence with three years’ probation will adequately satisfy the objectives of denunciation for the crimes and general and specific deterrence.

SENTENCE

[22] Jason Smith, you are sentenced to a suspended sentence for sexual assault and criminal harassment, with three years’ probation on the following conditions:

(a) You will keep the peace and be of good behaviour.

(b) You will appear before the court when required to do so by the court and notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation.

(c) You will refrain from communicating directly or indirectly with the Complainant.

(d) You will refrain from attending within 100 metres of the Complainant or at any place known to be the residence or school or place of employment of the Complainant.

(e) You will attend for and actively participate in, and to the satisfaction of your probation officer, any assessment, treatment or counselling as required by your probation officer, including for alcohol abuse and sexually deviant conduct, you will sign whatever consents or releases that may be required by your probation officer in order to monitor and verify compliance with said assessment, treatment or counselling and you will provide written proof of completion of said assessment, treatment or counselling to your probation officer.

(f) You will not own, possess or carry any weapons defined by the Criminal Code.

[23] Further, the following ancillary orders will be made:

(a) There will be an Order made under s. 109 of the Criminal Code which prohibits you for the next ten years from owning, possessing or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.

(b) There will be an Order authorizing the taking of such bodily substances as are necessary for the purposes of a forensic DNA analysis.

B.A. Allen J.

Released: June 23, 2014

COURT FILE NO.: 13-30000177-0000
DATE: 2014/06/23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Jason Smith

Accused

REASONS FOR JUDGMENT

B.A. Allen J.

Released: June 23, 2014