R. v. Cubillan, 2015 ONSC 2747

COURT FILE NO.: CR-14-50000226-0000

DATE: 20150515

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ADONAY CUBILLAN

Defendant

Valerie Culp, for the Crown

Luis Antonio Monroy, for the Defendant

Date of Sentencing Hearing: 21 April 2015

REASONS FOR SENTENCING

mew j.

[1] Following a judge-alone trial the defendant was convicted, on 13 February 2015, on a single count that he sexually assaulted the complainant on 13 March 2013 (see 2015 ONSC 969).

[2] After considering a pre-sentence report and a number of letters addressing the defendant’s character and record of community service, and having heard the submissions of counsel, I indicated that I would reserve my decision on sentence. I did indicate, however, that there would be a custodial sentence and, accordingly, I ordered that the defendant’s bail should be revoked and that he should step into custody immediately.

Circumstances of the Offence

[3] The offence occurred on the early hours of 13 March 2013 at the complainant’s home. The complainant is a self-confessed alcoholic who had been drinking continuously for the previous 48 hours or so.

[4] The defendant was a visitor to the residence and had spent the hours leading up to the offence with the complainant. Although they had only met once before, the defendant (who was an acquaintance of the complainant’s mother) and the complainant shared a common heritage, and she had talked to him about her drinking and the recent death of her fiancé. While recounting these issues she had become emotional.

[5] The defendant had then gone out to get some fast food for the complainant. She recalled eating some of the food. Her next memory is of being on the bed in her mother’s bedroom with the defendant on top of her. She remembers intimate events – the removal of her pants, the defendant kissing her breast, being vaginally penetrated, and then trying to resist the defendant kissing her face. The defendant does not dispute that he had sexual intercourse with the complainant. He did not wear a condom. On his behalf it was submitted that the intercourse was consensual.

[6] I concluded that, at the time of the offence, the complainant was depressed, drunk and exhausted. At the time of the sexual activity in question she was at best intermittently conscious but not to a degree necessary to be able to assess what was happening and, hence, to consent.

[7] After the incident, the complainant’s next memory was of waking up. The defendant was sitting on the bed. He told the complainant he was going to leave but asked her if she wanted him to take the dog out first. The complainant told him to leave. After he had left, she went to the bathroom, and following that, realized that the defendant had had intercourse with her.

The Accused

[8] The accused is a 56 year old Venezulian national. He is a certified electrician. He came to Canada in 2011 under the Temporary Foreign Worker Program. He lost his job in September 2012. His work permit expired in October 2014. An application to extend or renew that permit is pending.

[9] The defendant lived in Venezuela until 2000, when he moved to Spain in order to begin working for a large multi-national corporation as an electrician in their transportation division. His wife and daughter subsequently joined him in Spain and the family lived there for approximately ten years before moving to Ontario where he was employed by the same company that had employed him in Spain (that company having been awarded a contract in the Greater Toronto area). He obtained a Journeyman Electrician designation through the Ontario College of Trades. As already noted, he ceased to be employed in September 2012.

[10] The letters filed with the court indicate that the defendant is actively involved with his church parish and that he participates in social and cultural activities held by the church for the Latin community.

[11] There is no known history of drug or alcohol abuse, no previous incidents of sexual violence and no previous criminal history. Until recently, the defendant had not experienced significant periods of unemployment.

[12] The defendant has stated that he feels a great deal of shame arising from being charged and subsequently convicted. His criminal conviction is likely to undermine any application he makes for a renewal of his work permit and any subsequent application he may make for permanent residence. It was also submitted on his behalf that as a result of his conviction he faces the prospect of deportation, although no specific evidence was put before the court in that regard.

[13] The defendant acknowledges that he should not have stayed with the complainant after others who had been there that evening had left. He told the probation officer who prepared the pre-sentence report that he denied the offence had taken place and stated that the complainant had fabricated the events, but did not offer any explanation for his belief. At his sentence hearing he apologized for what had occurred and explained that it was the result of a “misunderstanding”. He expressed concern about the impact of his incarceration on his wife and daughter.

Impact on the Victim

[14] The complainant did not provide a victim impact statement. However, according to the pre-sentence report, the complainant continues to be affected by the offence and by the defendant’s actions. She states that she has concerns about the defendant being close to her and has nightmares about being victimised again.

The Position of the Parties

(i) Crown

[15] The Crown seeks a custodial term of 2 to 3 years imprisonment and, in addition to that:

(a) In the event that the custodial sentence is for a term of 2 years or 2 years less a day, probation;

(b) A DNA order pursuant to s. 487.051 of the Criminal Code;

(c) An order requiring the defendant to comply with the Sex Offender Information Registration Act for a period of 20 years pursuant to s. 490.013(2)(b) of the Criminal Code;

(d) An order prohibiting the defendant from possessing any firearm, cross bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of 10 years pursuant to s. 109(1) of the Criminal Code.

[16] Aggravating factors are said to include:

(a) The impact on the victim, who now has nightmares;

(b) The defendant took advantage of the victim in an extremely vulnerable state;

(c) The defendant had unprotected intercourse with the victim.

[17] Mitigating factors would include:

(a) The defendant has no criminal record;

(b) Apparent community and family support for the defendant;

(c) The defendant’s good work history.

[18] This was a serious sexual assault and a serious intrusion into the complainant’s privacy. The circumstances cry out for penitentiary term. Deterrence is an important factor in circumstances where a defendant has taken advantage of a vulnerable victim.

[19] Non-consensual intercourse is an extreme violation of an individual’s privacy and bodily integrity. The circumstances of this event do not support the suggestion that it was a result of an error of judgment on the part of the defendant.

[20] Furthermore, the pre-sentence report offers no insight into the risk of the defendant re-offending. His apparent lack of remorse, while not an aggravating factor, is not a mitigating one either.

(ii) Defence

[21] On the defendant’s behalf it was submitted that he had not planned to take advantage of the victim. He did not impose his presence on her: he was an invited guest at her residence and, prior to the incident, had spent a number of hours with the complainant during which they had discussed intimate issues. When the complainant said she was hungry and tired, the defendant had gone to get her food. The defendant had not left after intercourse but had remained and waited for the victim to wake up.

[22] After he left the complainant, he had tried to contact her to find out how she was doing. He wanted to apologise. He had also tried to approach the complainant’s mother to explain.

[23] The complainant was initially inclined to leave what had happened “in God’s hands”. She had only reported the incident after being encouraged by her mother to do so.

[24] The defendant showed the victim some kindness. There was the possibility of a misunderstanding which led to the offence.

[25] The defendant has no criminal record and is a low risk for re-offending.

[26] Contrary to the pre-sentence report which refers to an apparent lack of remorse the defendant was, in fact, concerned, and prepared to apologise for his actions.

[27] What occurred was an error of judgment, rather than a pre-meditated violent assault.

[28] The defendant has a pending application for extension of his work permit. He has disclosed that he is the subject of criminal proceedings. Once his conviction is disclosed, it is likely to seriously undermine any application for either an extension of his work permit or for permanent residence.

Discussion

[29] The principles of sentencing set out in s. 718 of the Criminal Code require the imposition of a just sanction that has one or more of the following objectives:

(a) Denunciation of unlawful conduct;

(b) Deterrence;

(c) The protection of society;

(d) Rehabilitation;

(e) Reparation for harm done; and

(f) Promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims and the community.

[30] Primary consideration is to be given to the objectives of denunciation and deterrence (s. 718.01).

[31] While none of the aggravating factors enumerated in s. 718.2(a) of the Criminal Code are present in this case, I nevertheless regard the victim’s vulnerability as a serious aggravating factor. Far from being an error of judgment on the part of the defendant, the sexual assault occurred when the defendant cynically and with full knowledge of his actions, took advantage of the complainant’s intoxicated condition.

[32] An additional aggravating factor is that the defendant had unprotected sex with the complainant.

[33] The defendant’s lack of any criminal record, his work history, and the apparent support of his community are mitigating factors.

[34] In R. v. Bartlett, [1997] O.J. No. 2333 (C.A.) the parties had met at a bar and had both been drinking. The victim’s intoxication supported the trial judge’s finding of lack of consent. The offence did not involve gratuitous violence, cruelty or degradation. It was an isolated act resulting from the use of alcohol and poor judgment. On appeal, the defendant was sentenced to imprisonment for a period of two years less one day. While it was, at that time, possible for the court to consider a conditional sentence, the Court of Appeal declined to do so in light of the appellant’s criminal record (particulars of which are not provided in the report).

[35] The Crown submits that the tariff for sexual offences has, effectively, gone up in the 18 years that have elapsed since the Court of Appeal’s decision in Bartlett.

[36] In the recent case of R. v. Ouellet 2014, ONSC 5387, both of the parties had been at a bar. After consuming a drink at the bar which had been bought for her by the defendant, the victim’s next recollection was being at the defendant’s home feeling lightheaded and very “detached” as if she was under the influence of something other than alcohol. She did not know why she was in the defendant’s home with him and felt disoriented. When, subsequently, sexual intercourse occurred, the victim had resisted and told the defendant to stop.

[37] As with the present case, in Ouellet, the court found that the victim’s vulnerability, and in particular the fact that she was significantly incapacitated at the time of the sexual assault, was an aggravating factor. In Ouellet, unlike in the present case, the court also found that there was an element of planning by the defendant, who had accompanied the victim from the bar to his home where the offence had taken place. McKelvey J. was satisfied that the gravity of the offence and the degree of responsibility of the defendant required a penitentiary sentence and imposed a period of incarceration for 30 months.

[38] Also instructive is R. v. J.R., 2008 ONCA 200. There the two appellants each had intercourse with the victim who, it was held, did not have the capacity to consent because of her intoxication. The victim had no memory of engaging in sexual intercourse. She awoke several hours later, alone in a hotel room, lying naked on the bathroom floor. The Crown had asked for a sentence of two years for each appellant and the trial judge had imposed the requested sentence. On appeal, the Court of Appeal noted, at para. 25:

…In the circumstances of this case, where each man took advantage of the complainant when she was incapacitated, leaving her in a state when she woke up naked, helpless, and alone on the bathroom floor of the hotel room, the two-year sentence is at the low end of the appropriate range of sentence. The appellant J.R. hardly knew the appellant [sic] and took advantage of her, while the appellant J.D. was her good friend and did the same thing. Both engaged in reprehensible criminal conduct. In the circumstances, there is no basis to impose a lower sentence than two years on the appellant J.D.

[39] In R. v. Colbourne 2013 ONCA 308, after an evening of drinking the defendant had sexual intercourse with the complainant in circumstances in which the court concluded that the complainant was incapable of consenting. In response to an appeal from, inter alia, the imposition of a sentence of 14 months’ imprisonment followed by two years probation, the Court of Appeal, noting that the sentencing judge had been “alive to the appellant’s health condition and personal circumstances” (particulars of which are not provided in the report), stated that “[i]f anything the sentence was at the lower end of the range”.

[40] While the immigration consequence of a sentence should be taken into consideration as part of the assessment of the proportionality of a sentence, immigration concerns should not distort sentencing to the point that it is not proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Pham 2013 SCC 15. As noted in the submissions of the Crown in this matter, information concerning the immigration consequences was not specific. Suffice it to say that the defendant, whose work permit appears to have expired, likely faces the very real prospect of not being able to remain in Canada in the long term.

Disposition

[41] The defendant took advantage of a vulnerable individual and sexually assaulted her. It was a selfish, cynical, wanton act which violated the victim’s privacy and bodily integrity. It is deserving of a meaningful custodial sentence together with measures to regulate the defendant’s conduct once his prison sentence is served.

[42] Taking into account the submissions of counsel and the cases they referred me to, I have concluded that the appropriate sentence in this case is a period of imprisonment of two years less a day. The defendant should receive a credit of 1.5 days for each of the 31 days he has already spent in custody: R. v. Summers 2014 SCC 26.

[43] The term of imprisonment will be followed by two years probation, the conditions of which are that the defendant shall:

(a) Keep the peace and be of good behaviour;

(b) 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) Refrain from communicating directly or indirectly with the complainant;

(d) 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; and

(e) Attend for and actively participate in, and to the satisfaction of the probation officer, any assessment, treatment or counselling as required by the probation officer, and shall sign whatever consents or releases may be required by the probation officer in order to monitor and verify compliance with such assessment, treatment or counselling, and will provide written proof of completion of such assessment, treatment or counselling to the probation officer.

[44] Further, the following ancillary orders are made:

(a) an order made under s. 109 of the Criminal Code which prohibiting the defendant 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) an order pursuant to s. 490.012 of the Criminal Code requiring the defendant to comply with the Sex Offender Information Registration Act for a period of 20 years (being the applicable term provided for in s. 490.013(2)(b) of the Criminal Code); and

(c) an order authorizing the taking from the defendant such bodily substances as are necessary for the purposes of a forensic DNA analysis, pursuant to s. 487.04 of the Criminal Code.

(d) an order pursuant to s. 743.21 of the Criminal Code that the defendant shall not communicate directly or indirectly with the complainant while in custody.

Graeme Mew J.

Released: 15 May 2015

CITATION: R. v. Cubillan, 2015 ONSC 2747

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ADONAY CUBILLAN

Defendant

REASONS FOR sentencing

Mew J.

Released: 15 May 2015