SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-40000712-0000

DATE: 20151009

HER MAJESTY THE QUEEN

v.

ALAA HEJAZI

**** PUBLICATION BAN ****

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE MR. JUSTICE DUCHARME

on Friday, October 9, 2015, at TORONTO, Ontario

APPEARANCES:

Pirraglia, C.

Counsel for the Crown

Weisz, J. Counsel for Mr. Hejazi

WARNING

The Trial Judge directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss.486.4(1),(2),(3) or (4) or 486.6(1) or (2) of the Criminal Code has been made. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statues of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of the subparagraphs (a)(i)to(iii).

REASONS FOR SENTENCE

T. Ducharme, J. (Orally)

I. Introduction

After a judge-alone trial, I have found Mr. Hejazi guilty of the following offences:

Count #1: Break enter and commit an indictable offence;

Count #2: Sexual assault with a weapon against AE;

Count #3: Sexual assault with a weapon against SR;

Count #4: Robbery with a weapon of AE;

Count #5: Robbery with a weapon of SR;

Count #6: Unlawful confinement of AE;

Count #7: Unlawful confinement of SR; and

Count #11: Possession property obtained by crime.

II. Circumstances of the Offence

The circumstances of the offence were described by AE and SR. In convicting Mr. Hejazi, I found that the following facts about the nature of the attack had been proven beyond a reasonable doubt.

On November 12, 2012, Mr. Hejazi left his home and took the TTC to the victims’ neighbourhood with the intention of committing a break-in and a robbery. He brought with him a bag and a knife. I accept that this was in response to his concern about having approximately $8,000 in debt at the time. After walking down various streets he passed AE’s house just as her husband was leaving. I found that he did see AE as her husband was leaving the home. Mr. Hejazi returned to the home after AE’s husband had driven away and knocked on the door which was answered by SR. He asked her if she would like a Metro newspaper and she declined and began to close the door. At this point Mr. Hejazi forced his way through the door, knocking SR to the ground.

Mr. Hejazi used his knife to lead the two women upstairs into the centre bedroom. I reject the idea that he did this solely to commit a robbery. While I am left with a reasonable doubt about whether or not Mr. Hejazi intended to commit a sexual assault prior to entering the house, I am satisfied that he decided to do so shortly after entering and seeing AE and SR. He had both women kneel down with their pants down facing away from him. Mr. Hejazi put his finger in SR’s vagina but she said she was having her period and he took his finger out. Mr. Hejazi forced AE to fellate him and he inserted his penis into both her vagina and her anus. As he was penetrating AE from behind, he put down the knife and AE grabbed it and stabbed backward and stabbed Mr. Hejazi in the chest.

After he was stabbed, he took AE and SR into their rooms and took their valuables. He then put AE and SR in the powder room on the main floor. He was then searching for his bag which he had left on the front porch of the home. Once he found it, he left taking a handbag with him. He went around the corner to take the bus and he left the handbag in the TTC stop.

III. Circumstances of the Offender

Mr. Hejazi was born on June 9, 1992. He is now 23 years of age. At the time of the offence he was 20 years, 5 months old. He has no criminal record or previous involvement with the criminal justice system.

Mr. Hejazi was born in Lebanon and his family immigrated to the United States in 1998. His family moved to the Toronto area in 2003 and his father left the family in 2007/2008 and returned to Detroit, Michigan. Mr. Hejazi has been raised by his mother along with his two younger sisters.

Mr. Hejazi graduated from high school in 2010 with above average grades and began studying business technology and management at Ryerson University in 2011. While his academic performance there was positive, he decided to leave Ryerson after a term to pursue a career in mixed martial arts. He related this interest to his involvement in wrestling while he was in high school. He eventually could not maintain his training due to the costs involved and he stopped after seven months.

Mr. Hejazi’s employment history has been brief. He worked for two months at a McDonald’s when he was 15. He then worked as a security guard for several months in 2011 and 2012. He eventually left this position as he found it boring, and, at the time of the offence, he was unemployed.

Pre-Sentence Report

The defence also filed a Pre-Sentence Report which noted that Mr. Hejazi admitted to the robbery in this case but denied any involvement in the sexual offences and “therefore appears not to have gained insight into this particular behaviour; a circumstance that my impede the efficacy of intervention strategies.” Nonetheless, it was recommended that he might benefit from participating in sexual offender programming. The report also mentioned that Mr. Hejazi presented with problem solving deficits as evidenced by his decision to resort to robbery to solve his financial issues.

Psychiatric Report

The defence also filed a psychiatric report prepared by Dr. Julian Gojer who also testified briefly before me. Dr. Gojer got all of his information about Mr. Hejazi from either Mr. Hejazi or his immediate family. Dr. Gojer did not review any school records or other records and agreed that it would be preferable to have done so. Both Mr. Hejazi’s mother and his two sisters reported that they had a close family unit. They were all shocked by the offences saying that it was completely out of character for Mr. Hejazi.

In discussing the time period leading up to the crime Dr. Gojer says that Mr. Hejazi’s description of his mood “supports a diagnosis of a depressive disorder, likely a Major Depression.” While acknowledging that this did not rob Mr. Hejazi of the capacity to make moral choices, Dr. Gojer suggests this might have led him to overestimate the seriousness of his debt and his need to address it.

Dr. Gojer says Mr. Hejazi does not indicate any antisocial or psychopathic traits nor does he have any psychiatric history such as a psychosis, gambling problem or substance abuse disorder that might have led him to commit the robbery. As Mr. Hejazi denies the sexual assaults, Dr. Gojer observes that, “It is difficult to offer any insight into why the sexual assaults occurred when the offender chooses not to talk about the offences or simply denies them.” Mr. Hejazi has no history of sexual deviance or of sexual offending that would be of help here. Dr. Gojer did not have Mr. Hejazi undergo phallometric testing due to his concerns about standardization of the rape test and neither counsel asked him about that. Dr. Gojer suggests that the history provided by Mr. Hejazi might suggest that the sexual assaults were opportunistic. But Dr. Gojer also notes that I had rejected Mr. Hejazi’s testimony and that the sexual assaults were in fact more than merely an opportunistic act.

In terms of risk assessment, Dr. Gojer conceded in cross-examination that it is difficult to make a risk prediction for a first time offender and that it is difficult to assess the risk posed by Mr. Hejazi to society at large. Dr. Gojer agreed that if the sexual assaults were just opportunistic that would indicate a risk to re-offend which would only increase if in fact his original intention was to commit a sexual assault. Dr. Gojer used a variety of tests to assess Mr. Hejazi’s risk of reoffending. On the Hare’s Psychopathy Checklist Revised he rated Mr. Hejazi a 13 which is slightly higher than the average for the general population but significantly lower than the cut off score to label a person a psychopath. Both the Violence Risk Appraisal Guide (VRAG) and the Sex Offender Risk Appraisal Guide (SORAG) suggested that Mr. Hejazi was a moderate risk to reoffend. The Static 2002R, the HCR 20, and the SVR 20 all lead Dr. Gojer to rate Mr. Hejazi as a low moderate risk category to reoffend sexually. However, Mr. Hejazi’s refusal to accept responsibility for the sex assaults does complicate this determination.

Dr. Gojer concluded his report by suggesting that Mr. Hejazi participate in a wide variety of programs offered in the penitentiary including cognitive skills, socialization programs, programs to enhance pro-social attitudes and a sex offender program.

Letters of Support

Finally, the defence filed a number of letters of support from his mother, other family members and family friends. They all make it clear that Mr. Hejazi is an intelligent, gentle, young man who had great potential. They speak of the offences he has committed as being completely out of character for him and ask that the Court extend lenience towards him in terms of the sentence I impose.

IV. Impact on the Victim

Understandably, this attack had horrible effects on both AE and SR. This was powerfully expressed in their victim impact statements.

SR said that for the first 6 months after the sexual assault she could not sleep or eat properly and she did not want to be outside of her house. During the first year she was so paranoid that if she heard something outside her house she would call the police begging them to come over. She has had problems in her relationships and has been overly aggressive with others. Her boyfriend has left her. She concluded by saying, “I can’t remember how it feels to live without fear. It has been a part of my life and I don’t think that I will ever lose it, even if I wish for it every day.”

AE reports that the sexual assaults left her weak and hopeless. She had constant nightmares and flashbacks. Her relationship with her husband, her family and her friends were

shattered and she had to stop working. When she moved back into her house she realized she could not continue to live there so she and her husband sold it at a loss. AE explained that in her culture rape and sexual assaults are considered to be depraved, sinful acts and this prevented her from talking to others about it, including her husband.

V. Positions of the Crown and the Defence

The Crown is seeking a sentence of 12 to 15 years imprisonment less time served. While referring to several sentencing principles, Ms. Pirraglia urged me to keep Mr. Hejazi confined for as long as possible in order to protect society. In addition, the Crown seeks the ancillary orders of a weapons prohibition under s. 109 of the Criminal Code for life, an order under s. 487.051 for him to produce a DNA sample and that he be registered as a sex offender under the Sex Offender Information Registration Act for life pursuant to s. 490.13(2)(1) of the Criminal Code for having committed two designated offences.

Counsel for Mr. Hejazi submits that the appropriate sentence for the sexual assault is 5 to 7 years less time served. Mr. Weisz takes no issue with respect to the imposition of the ancillary orders.

VI. Mitigating and Aggravating Factors

In determining the just and appropriate sentence, the Court must carefully assess the mitigating and aggravating factors in the individual case.

The aggravating factors in this case are many:

AE and SR were attacked in their home. We all expect to be

safe in our homes, and because of this attack AE and SR may never feel that way again.

Mr. Hejazi used a knife during the attack

The lasting impact on both the victims and their families.

This appears to be a crime of opportunity in that there is

no evidence that Mr. Hejazi had any prior contact with AE or SR. I find the random nature of the attack very concerning.

The extent of the sexual violation involving anal and vaginal intercourse; and fellatio by AE and digital penetration of the vagina of SE.

There is no apparent trigger for this behaviour. Mr. Hejazi has not acted inappropriately sexually before, he suffers no cognitive impairments, he was not a victim of abuse and neither alcohol or drug consumption were involved. I find this to be a chilling aspect of the case.

The mitigating factors in this case are few:

Mr. Hejazi has expressed remorse for the robbery and unlawful confinement of the victims. However, he has steadfastly refused to admit to the sexual assaults.[^1]

Mr. Hejazi is a young, first offender.

His family seem to be supportive of Mr. Hejazi.

Mr. Hejazi turned himself into the police shortly after the offence.

Mr. Hejazi has not been in trouble while in custody.

VII. The Purpose and Principles of Sentencing

The purpose and objectives of sentencing are set out in s. 718 of the Criminal Code. Generally speaking, the fundamental purpose of sentencing is to foster respect for the law and to maintain a just, peaceful and safe society.

Courts attempt to achieve this purpose by imposing just penalties that have one or more of the following objectives which have been codified in s. 718 of the Criminal Code:

(a) denouncing unlawful conduct;

(b) deterring this offender and others from committing offences;

(c) imprisoning offenders, where necessary, to separate them from the law-abiding members of society;

(d) assisting in rehabilitating offenders and, in appropriate circumstances, encouraging their treatment;

(e) providing reparation for harm done to victims of the community; and

(f) promoting in offenders a sense of responsibility for, and acknowledgement of, the harm they have done to victims and to the community.

Section 718.2 of the Code also requires that courts take into account other principles, including the following:

718.2(a) that a sentence may be increased or decreased depending upon the presence of any relevant aggravating or mitigating circumstances relating to the offence or the offender ...;

718.2(b) that a sentence should be similar to those imposed on similar offenders for similar offences committed in similar circumstances;

718.2(c) that, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

Sentencing is an individualized process, in which the trial judge has considerable discretion in fashioning a fit sentence. The rationale behind this approach stems from the principle of proportionality, the fundamental principle of sentencing now codified in s. 718.1 of the Criminal Code, which provides that a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. Proportionality requires an examination of the specific circumstances of both the offender and the offence, so that the "punishment fits the crime." As a by-product of such an individualized approach, there will be an inevitable variation in sentences imposed for particular crimes.

VIII. Principles Relevant to Sentencing a First Offender

As Mr. Hejazi is a first offender, it is appropriate to consider the approach that our Court of Appeal has indicated that sentencing judges should take when sentencing first offenders.

The leading authority on this point is the decision of Rosenberg J.A. in R. v. Priest (1996), 1996 1381 (ON CA), 110 C.C.C. (3d) 289 (Ont. C.A.) at pp. 294-295:

The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation. In R. v. Stein (1974), 1974 1615 (ON CA), 15 C.C.C. (2d) 376 (Ont. C.A.) at page 377, Martin J.A. made it clear that in the case of a first offender, the court should explore all other dispositions before imposing a custodial sentence:

It is the view of the Court that the sentence imposed upon the appellant does reflect an error in principle. In our view, before imposing a custodial sentence upon a first offender the sentencing Court should explore the other dispositions which are open to him and only impose a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate. In our view, this offence does not fall within the category of offences where a custodial sentence is the only appropriate sentence to be imposed upon a first offender, nor are there other circumstances which require the imposition of a custodial sentence.

[Emphasis in Priest.]

As the Stein case shows, it has been an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. This principle implies that trial judges consider community-based dispositions first and impose more serious forms of punishment only when necessary.

[Emphasis added.]

As Justice Rosenberg makes clear at p. 296 of Priest, this same careful approach is warranted because this is Mr. Hejazi's first sentence of imprisonment:

Even if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.

This principle, which remains binding on me, is over 30 years old.

As Rosenberg J.A. pointed out in R. v. Vandale and Maciejewski (1974), 1974 1610 (ON CA), 21 C.C.C. (2d) 250 (Ont. C.A.), Martin J.A. adopted the following statement of principle from R. v. Curran (1973), 57 Cr. App. R. 945 per MacKenna J. at pp. 947-8:

As a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity of the offence, and imposed as this sentence was, for reasons of general deterrence, that is as a warning to others. The length of a first sentence is more reasonably determined by considerations of individual deterrence; of what sentence is needed to teach this particular offender a lesson which he has not learnt from the lighter sentences which he has previously received.

[Emphasis in Priest.]

More recently in R. v. Thurairajah 2008 ONCA 91 (OCA) the Court considered a sentence appeal involving a 19 year old first offender who had committed a serious sexual assault. After being convicted after a trial the trial judge imposed a conditional sentence of two year’s less a day to be followed by six months probation. The Crown appealed the sentence arguing that the sentence was demonstrably unfit. Justice Doherty for the Court said the following at paras 41 to 44:

41 Generally speaking, sentences imposed on young first offenders will stress individual deterrence, where necessary, and rehabilitation. General deterrence will play little, if any, role in fashioning the appropriate sentence in this category of offender in most cases: R. v. Ijam (2007), 2007 ONCA 597, 87 O.R. (3d) 81 at 93-94 (C.A.). Serious crimes of violence, particularly sexual assaults, do provide an exception to the general rule described above. While all of the principles of sentences remain important, including rehabilitation, for serious crimes involving significant personal violence, the objectives of denunciation and general deterrence gain prominence: R. v. Ijam, supra; R. v. Wells (2000), 2000 SCC 10, 141 C.C.C. (3d) 368 at para. 26 (S.C.C.).

42 The emphasis to be placed on denunciation and to a lesser extent general deterrence, grows with the seriousness of the particular circumstances surrounding the sexual assault for which an accused, even a young accused, is being sentenced.

43 The aggravating circumstances surrounding this offence were such that the fundamental purpose of sentencing could only be properly served by a disposition that placed a heavy emphasis on general deterrence and particularly denunciation. I recognize that a conditional sentence can in some circumstances adequately address these objectives, particularly where the conditions imposed have a significant punitive element: Proulx, supra, at para. 41; R. v. Ijam, supra, at p. 94. However, there will be circumstances in which the demands of denunciation and/or general deterrence are so pressing that incarceration is the only suitable disposition: Proulx, supra, at para. 106; Wells, supra, at para. 34; R. v. Killam (1999), 1999 2489 (ON CA), 29 C.R. (5th) 147 at 151 (Ont. C.A.).

44 I am satisfied that the objectives of denunciation and to a lesser extent general deterrence required the incarceration of the respondent despite his many positive features. Any other disposition would not only fail to reflect those objectives, but would, in my view, be disproportionate both to the gravity of the offence and the respondent's degree of responsibility: Criminal Code s. 718.1. In coming to this conclusion, I recognize that incarceration, particularly for young first offenders, is a sanction of last resort: s. 718.2(d)(e).

In R. v. Brown 2015 ONCA 361 (OCA), the Court referred approvingly to Thurairajah in an appeal involving a nine year sentence imposed on a young first time offender who participated in an extremely violent