Court File and Parties

COURT FILE NO.: CR-12-70000260 DATE: 2014/09/08

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DARYOUSH AKBARI Accused

Counsel: Lorna Spencer, for the Crown Clayton Ruby and Nader R. Hasan, for the Defendant

HEARD: June 2, 2014

REASONS FOR SENTENCE

A.J. O’Marra J.

[1] Daryoush Akbari was found guilty after trial of sexually assaulting A.A., age 13 sometime between January 1 and March 7, 2005.

[2] Mr. Akbari, age 56 is here today to be sentenced.

The Offence

[3] In 2005 Mr. Akbari, then 47 was separated from his wife and dating A.A.’s mother. He would be at the family apartment several times a week. One evening when A.A.’s mother was elsewhere in the apartment building Mr. Akbari entered the apartment. A.A. was sitting on the couch in her pyjamas and covered with a blanket watching television. He sat beside A.A. on a couch and asked her if she was cold. Telling her she was beautiful he reached his hand under her pyjamas and attempted to touch her genitals. She pushed his hand away several times. He moved his hand upward and rubbed her chest. She fled from the couch to her bedroom.

[4] Later that night when her mother returned to the apartment she told her what happened. Her mother, either because she did not believe A.A. or in fear of the shame it would bring the family, decided not to report it to the police. She did not want A.A. to tell anyone either. It was her view that it would be better for A.A. to try to forget it. She begged A.A. not to tell anyone or to ever mention it because if her father found out then he would come and do something horrible to her mother. She told A.A. it would be best to just bury it and for it to never come out to keep the family honour.

[5] However, within a short period of time the incident became known to the police as a result of A.A. telling the vice principal of her school who contacted the police. A.A.’s mother on learning of her daughter having made the complaint subsequently urged her in the interests of the family to tell the police that it had not happened. Succumbing to her mother’s pressure A.A. reported to the police that she had lied. After a brief investigation the police closed the file.

[6] Over the next several years A.A. and her mother became increasingly estranged as a result of the incident and her mother’s lack of support. A.A. left the family home at age 18 and thereafter refused to speak with her mother.

[7] Later, to repair the rift between them, her mother urged her daughter to resurrect the complaint with the police.

[8] In March 2010 A.A. provided a statement to the police repeating her recollection of the incident that had occurred in 2005.

Circumstances of the Offender

[9] Mr. Daryoush Akbari is 56 years old and he has no criminal record. He has been married for the past 24 years. He and his wife have two children, a daughter 22 and son 16. Mr. Akbari and his wife separated for a period of time in 2004 and 2005, during which he formed a relationship with A.A.’s mother. Since the incident Mr. Akbari and his wife have reconciled and continue in their marriage.

[10] Mr. Akbari was born in Iran and remained there until he left the country in 1979 to attend a university in India. He received an undergraduate degree in 1982, majoring in chemistry and in 1986 received a Master’s Degree in chemistry. In 1987, he immigrated to Canada to continue his education towards a Ph.D. In 1990 he married his wife whom he had met earlier in India. He discontinued his academic pursuits and to support his family worked for a period of time at a franchise convenience store as a store manager and then later in a pizza business. He opened his own pizza business in 2008 in Bradford.

[11] While his wife works on commission as a mortgage broker at a major financial institution, Mr. Akbari is the principal income earner. In a Pre-Sentence Report prepared in this matter it is reported that Mr. Akbari works 7 days a week at his business, earning approximately $65,000 a year to ensure that his business thrives and “for the family to survive financially”. His future plans include opening another restaurant location.

[12] In the Presentence Report family and friends describe him as a dedicated family man and well-liked for helping fellow members of the community.

[13] A number of letters of reference were filed attesting to his good character. Farkhondeh Shams, an owner of a daycare centre who has known Akbari and his wife since 2000 described him as follows:

From all my experiences with him, Daryoush is a gentle man, a caring father, and a responsible husband. Daryoush is gentle and sensitive in his approach to others. He is always ensuring that everyone is looked after, whether they need a job, assistance with finances, business advice or emotional support. I myself have called on Daryoush to help a new member of our community shortly after his arrival in Canada. Even though Daryoush did not require another staff member at his job, he hired this man just to help him out. Daryoush can always be counted on to help and he is well known for this. I have never seen anything bad, aggressive or disrespectful in his attitude towards others. He always seems calm, polite and his level of education is clear.

[14] Mr. Naghi Shafi another pizza shop owner who first met Mr. Akbari while attending the same university in India and with whom he has remained good friends, described him as generous, someone who sacrifices himself for his family and supportive of fellow members of his community. He is courteous, polite and truly caring. He frequently goes out of his way to help newcomers to the community in Canada. He knows that Mr. Akbari continues to send money back home to his sister where she is raising her young children alone.

[15] Simin Shafie, sister of Naghi, a friend of he and his family for more than 20 years writes:

From all of my many dealings with Daryoush over the past 20 years, he has consistently and repeatedly shown me that he is a kind and patient man. He is very good with people, always concerned about keeping everyone happy and taking care of everyone. At parties Daryoush is the one keeping the peace between everyone, helping those who drank too much and remaining calm and reasonable no matter the situation. Because of his easy manner and non-judgmental approach, he gets along very well with other people and has strong relationships with many.

[16] She indicated as well that he assisted with the tutoring of her son for several years with math and science courses which resulted in significant improvement of her son’s grades.

[17] Farideh Ahamdi, wife of Daryoush writes that she is supportive of Daryoush notwithstanding what happened during the few months of their separation. She states that in her view “Our relationship is stronger now than ever”. He is a good father and willingly goes out of his way to assist others. Like his sister in Iran. She indicated that he appeared to suffer depression after returning to the marriage and that she is “currently experiencing depression, insomnia, anxiety, and so much sadness over the thought of losing Daryoush”.

Victim Impact Statement

[18] In her Victim Impact Statement Aida Akmadi describes a “downward spiral” in her life as an adolescent and an enduring estrangement with her mother from which “she is still trying to recover” as a result of what Mr. Akbari did to her. She wrote the following:

After the act in question, the following painful events occurred in my life. My close relationship with my mother plummeted, and steadily turned into a source of anger, hatred and betrayal. Where she was once not just my mother, but my best friend and a person I could laugh and always rely on, I soon began to find it painful to acknowledge her very presence. So naturally, I focused all my energy towards staying away from my own mother. This included staying at friends’ homes without giving my mom notice and staying out in the streets until later hours of the evening.

This virtually instantaneous change in my lifestyle ultimately translated into the people I began to associate with and the devastating choices I would make. I started to go out with much older men. While alone, I would often find myself in tears or violent sobs for no apparent reason other than I felt small and lonely. So I quickly sought out the slightest sign of security and comfort, no matter how temporary it remained. I began to skip school on a daily basis to be with these older men and I found myself drinking alcohol and smoking cigarettes before I had even reached high school. Not much time had passed before I was caught shoplifting.

[19] A.A. has gone on to graduate from university. She appears as a poised young woman notwithstanding the turbulent years of her adolescence. However, she writes that in her view, Mr. Akbari’s “selfish actions consumed my childhood like a debilitating disease and left me socially, emotionally, psychologically, and physically crippled throughout crucial years of my youth.”

Position of the Parties

[20] The Crown submits that Mr. Akbari should be sentenced to a period of incarceration in the penitentiary in the range of three to four years. In addition, the court should make ancillary orders requiring him to provide a DNA sample for the purpose of forensic analysis, a weapons prohibition under s.109 of the Criminal Code, an order that he register under the Sexual Offender Information Registration Act for a period of 20 years and an order under s. 161 of the Criminal Code prohibiting him from having contact with children under the age of 16 for life.

[21] The Crown’s position is based on a number of aggravating factors cited in submissions:

1. The sexual assault occurred in the victim’s home.
2. Mr. Akbari as the boyfriend of A.A.’s mother was in a quasi-position of trust.
3. After A.A. reported the matter to her mother the next morning Mr. Akbari appeared with her mother to try to “intimidate” A.A. into silence.
4. There were devastating consequences for the family unit as a result of A.A.’s altered relationship with her mother.
5. The sexual assault has a significant impact on A.A. as outlined in her Victim Impact Statement. She was emotionally, psychologically and physically affected.

[22] The position of the defence is that as a singular transitory offence committed by a first time offender the court should order a conditional sentence of 30 days incarceration, to be served in the community. In the alternative, he should be permitted to serve any jail sentence on an intermittent basis to be able to continue to financially support his family.

Sentencing Principles

[23] In addition to the sentencing principles set out in s.718 I take into consideration the following:

Section 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

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

Section 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,…

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of 18 years,

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

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;…

(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.

[24] In this instance the governing sentencing principles which are paramount are deterrence and denunciation where the offence involves the abuse of a person under the age of 18 years, however, a sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Further, the sentence should be similar to sentences imposed on similar offenders for similar offences and all available sanctions other than imprisonment that are reasonable should be considered.

[25] The need to emphasized deterrence and denunciation in the sentencing of offenders who have sexually abused children is set out in R. v. D.D., 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061 (OCA) by Moldaver, J.A., (as he then was) at para. 34-35:

The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718 (a), (b), and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, must take precedence over the other recognized objectives of sentencing.

We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and as such, they make easy prey.

[26] A period of incarceration is required to underscore the objectives of deterrence and denunciation when children are abused. The initial question is as to the appropriate period of time that should be imposed.

[27] The Crown relies on the passage at para. 44 in R. v. D.D., supra, as setting the benchmark to be considered in sentencing an offender for sexual assaults involving children:

As a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms.

[28] The Crown argued that in the circumstances of this case a sentence of three to four years would be lower than mid-range cited in D.D. and therefore appropriate.

[29] In R. v. D.D. the offender regularly and persistently engaged four young boys ranging in age from five to eight years for periods of time ranging from two to seven years in “virtually every conceivable homosexual act with him”. The Court of Appeal concluded that his conduct was reprehensible and had to be condemned in the strongest of terms. He was required to pay a heavy price because of the harm he had done to the children by robbing them of their youth and innocence and by tearing apart and rendering dysfunctional their families. A global sentence of nine years and one month, reduced to eight years and one month because of pre-sentence custody was upheld as being in the lower end of the range of sentences for such crimes.

[30] In addition to R. v. D.D. supra the Crown has relied on a number of cases in support of its position that Mr. Akbari should be sentenced to a penitentiary term such as R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216, R. v. P.M., 2012 ONCA 162, [2012] O.J. No. 1148, and R. v. D.M., 2012 ONCA 520, [2012] O.J. No. 3616 (OCA).

[31] In R. v. Woodward the accused established an online relationship with a 12 year old and by fraudulent means engaged her in a number of sexual acts including fellatio and sexual intercourse. In that instance the offender received a global sentence of six and a half years, consisting of five years for sexual assault; four years concurrent for touching for a sexual purpose; two years concurrent for invitation to sexual touching; 12 months concurrent for attempting to obtain sexual services for consideration and 18 months consecutive for luring a child for a sexual purpose. The sentence was upheld on appeal.

[32] In R. v. P.M., the offender, the complainant’s father engaged his 13 year old daughter enforced anal and vaginal intercourse over a 13 month period. There were approximately 10 incidents which were violent and which the accused videotaped. A global sentence of six years was considered lenient but not clearly inadequate given the unusual circumstance relating to the accused’s mental state.

[33] In R. v. D.M. the victim was a fifteen year old girl who was subjected to ongoing and serious sexual assaults and exploitation by her uncle. The sexual assaults including approximately 124 times of sexual intercourse occurred over a three year period. In that instance the sentencing judge sentenced the accused to three years imprisonment however the Court of Appeal held that she had made an error of law in setting the range of sentence too low where there was prolonged sexual abuse of a child, including penetration by an adult in a position of trust. The sentence was raised to seven years imprisonment. The cases relied on by the Crown involve ongoing abuse and sexual assaults, deception, fraud, violence, penetration and other degrading sexual acts which represent far more serious conduct.

[34] In my view, while the general principles are applicable, the factual circumstances of the cases cited by the Crown provide little assistance in determining the fit sentence in this instance.

Conditional Sentence

[35] While a conditional sentence is no longer available for an offence under s. 271 it was available at the time of the events that gave rise to the conviction in this matter. There is no mandatory minimum sentence for sexual assault at the time which would have prevented consideration of a conditional sentence under s. 742.1. The Crown argued that the statutory change setting a minimum sentence, while not applicable in this instance should be persuasive that a conditional sentence should not be considered as a sentencing option for the offence committed.

[36] I am mindful however, by virtue of s.11 (i) of the Canadian Charter of Rights and Freedoms that Mr. Akbari is entitled to be sentenced under the sentencing regime extant at the time of the offence. Section 11(i) provides an accused has the right “if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment”.

[37] In R. v. Proulx, [2012] 1 S.C.R. 61 Lamer C.J. held that the conditional sentencing provisions of the Criminal Code must be read alongside s.718.2(d) and (e) of the Code, which embody the principle of restraint. Section 718.2(d) provides that:

(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…should be considered.

[38] The Supreme Court directed that a conditional sentence is available for all offences in which the statutory prerequisites are satisfied. There is no presumption that a conditional sentence is inappropriate for any specific offence.

[39] At the time Mr. Akbar committed the offence a conditional sentence was available where the criteria as set out in s.742.1 are met.

[40] Under s.742.1 of the Criminal Code the court may order a conditional sentence when:

1. The offence does not call for a minimum term of imprisonment;
2. The court imposes a sentence of imprisonment of less than two years; and,
3. The court is satisfied that “serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in s.718 and 718.2.

[41] At the time Mr. Akbari committed the offence there was no minimum sentence for the offence of sexual assault involving a person under the age of 18 years.

[42] Is it an offence for which a period of incarceration of less than two years is appropriate?

[43] Defence counsel referred to a number of cases in which the appropriate period of incarceration involving similar facts or arguably more serious than the facts of this case in which sentences of than less than two years were imposed and which could be served in the community subject to conditions.

[44] In R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132 a conditional sentence of 21 months was imposed where the accused was found guilty of 10 to 12 sexual assaults that involved forced masturbation and fellatio with the child who was between 6 and 12 years old. Most of the assaults took place in a locked shed and accompanied by threats that if she told anyone her family would be endangered.

[45] The Supreme Court, relying on its judgment in Proulx held that the sentence fell within the acceptable range even though the accused had “committed terrible offences and did not express any remorse…” and a conditional sentence can provide significant denunciation and deterrence, particularly when onerous conditions are imposed”.

[46] In R. v. B.S., 2004 CanLII 32226 (ON CA), [2004] O.J. No. 1170 the accused, who was like an uncle to the complainant age 13, touched her inappropriately on multiple occasions over a 13 month period. He would attempt to touch her on her breasts, offered to show her his penis, kiss her on the mouth and put his tongue in her mouth, had her sit on his lap clothed when he had an erection and put his hand down her bathing suit and touched her buttocks. The Court of Appeal considered the sentence of 12 months imprisonment to be excessive in the circumstances, stating:

We are nevertheless of the view that the sentence of 12 months imprisonment for this first offender was manifestly excessive. As serious as the conduct was, exacerbated by the trust relationship 12 months imprisonment was outside the appropriate range for this kind of conduct for this type of offender.

[47] The sentence of 12 months was altered to a conditional sentence to be served in the community.

[48] In R. v. A.G., 1998 CanLII 7189 (ON CA), [1998] O.J. No. 4031 the offender, an uncle of the complainant on three separate occasions rubbed her vagina while she was clothed. The Court of Appeal held that a custodial sentence of five months imprisonment in addition to three years’ probation was unduly harsh for a sexual touching. The Court of Appeal noted that despite the breach of trust involved there were a number of mitigating circumstances which militated in favour of a non-custodial sentence. The offence was out of character. The appellant had the support of his family, friends and others who knew him. He was a productive member of the community. He was gainfully employed and the primary source of income for his family. The sentence was altered to be served conditionally in the community.

[49] In a case similar to the circumstances of this case, R. v. R.M., [2008] O.J. No. 2191 a 12 month conditional sentence was upheld on appeal. The accused had been drinking and arrived home late one night and asked the complainant his 13 year old niece or one of his daughters to volunteer to sleep with him. The complainant volunteered. Once in bed, the accused fondled the 13 year old complainant’s stomach and chest. She tried to pull away a number of times but each time he pulled her back. In that instance, despite the breach of trust the sentencing judge in imposing sentence for the sexual assault considered in mitigation that the offender had no criminal record, he was employed and the sole financial provider for his family. Marrocco J. in considering the appeal noted at para. 27:

It is true custodial sentences are the norm for sexual assaults on children, particularly when the accused was in a position of trust relative to the victim. Though they are rare, there have been occasions where the Court of Appeal has approved non-custodial sentences for sexual assaults that involve abuse of trust. See, for example, R. v. B.S. (2004), 2004 CanLII 32226 (ON CA), 185 OAC 45, where the court replaced the 12 month custodial sentence ordered by the trial judge with a conditional sentence. In that case the Court of Appeal weighed the nature of the offence, the effect of the sexual assault on the 13 year old victim by a man described as being like her uncle, the fact that this was the accused’s first conviction, a psychiatrist finding that the conduct seemed to be out of character for him, and his role in supporting his family financially. In short, the circumstances considered by the Court of Appeal were similar to the circumstances of this case.

[50] This was not a situation of regular or persistent abuse, or even repeated abuse as in the cases cited by the Crown. It was one incident of sexual touching committed by a person in a quasi-position of trust to the victim.

[51] I am satisfied that a period of incarceration of less than two years would be appropriate for a first time offender in the circumstances of a transitory sexual touching.

[52] The question remains as to whether a conditional sentence is appropriate considering the danger the offender may pose to the community while serving the sentence in the community.

[53] In R. v. Proulx the Supreme Court observed that two factors must be considered with respect to endangering the community: 1) the risk of the offender re-offending; and, 2) the gravity of the damage that would ensue in the event of re-offence.

[54] I note with respect to the first consideration that the offence occurred in 2005 and there is no evidence that any other offences occurred since that time. Further, Mr. Akbari has been on strict bail conditions for the past four years during which there have been no reported transgressions.

[55] In terms of the incident itself, once the touching was rebuffed by the complainant, it ended when she left the room. There is nothing in the evidence to suggest a risk of re-offence.

[56] I have no doubt that he incident seriously affected A.A. over her adolescence and affected her relationship with her mother. However, I am unable to conclude that all of her cited behavioural and emotional problems as an adolescent were as a result of the one incident. While all sexual assaults are serious and can cause significant emotional and psychological consequences, I bear in mind that this was an isolated act more aptly characterized as being at the lower end of the spectrum of seriousness. Sadly however, it would appear in this case the sense of betrayal experienced by A.A., as a result of her mother’s lack of support and active suppression of the incident, had a debilitating impact on her as well.

[57] Mr. Akbari is a first offender with considerable support both within his family and his community. In my view, the goals of deterrence and denunciation can be achieved by imposing a period of incarceration of nine months to be served in the community under house arrest with absences to attend work and work related activities of his business to continue the financial support of his family and for medical appointments and religious observance.

[58] In addition, Mr. Akbari will be subject to a Sex Offender Information Act order for a period of 20 years and he shall be required to provide a DNA sample for forensic analysis pursuant to s.487.051(1) of the Criminal Code.

[59] I have given consideration to imposing an order pursuant to s.161 of the Criminal Code. I am satisfied that in what appears to be an isolated incident such an order is unnecessary.

A.J. O’Marra J.

Released: September 8, 2014

COURT FILE NO.: CR-12-70000260 DATE: 2014/09/08

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DARYOUSH AKBARI Accused

REASONS FOR SENTENCE

A.J. O’Marra J.

Released: September 8, 2014