R. v. A.S.H., 2015 ONSC 3316

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. A.S.H., 2015 ONSC 3316

COURT FILE NO.: CRIMJ(P) 46/10

DATE: 20150529

B E T W E E N:

HER MAJESTY THE QUEEN

Gregory Hendry, for the Crown

• and -

A.S.H.

K. Tarapore-Turner , for the accused

HEARD: October 1, November 4, December 1 & 19, 2014

January 9, March 10, May 1 & 22, 2015

REASONS FOR JUDGMENT ON SENTENCE

Publication Ban Pursuant to S. 486.4 of the Criminal Code of Canada

Daley, RSJ.

Introduction

1On July 2, 2014 the offender was found guilty by a jury of sexual assault and choking of the victim SK contrary to sections 271 and 246 (a), respectively, of the Criminal Code of Canada (the “Code”) in counts one and two in the indictment.. He was acquitted of the charges in the other counts in the indictment.

2There has been a delay in the conclusion of the sentencing phase in this proceeding as the offender changed counsel following the trial and once new counsel was retained, it was necessary for counsel to attend three times for submissions, particularly with respect to the offender’s right to credit for presentence custody. At the time of trial he was in custody relating to other charges pending in Toronto.

3In accordance with s. 724 of the Code, on sentencing, the court shall accept as proven all facts expressed or implied that are essential to the jury’s finding of guilt.

Factual Overview:

4As to the facts and events underlying the guilty verdicts rendered by the jury, the evidence is clear that on the evening of November 1, 2008, the offender, who had lived with the victim for several years prior to this date in a common-law relationship, entered the victim’s home, without her knowledge, through her garage while she was alone in the home.

5Upon hearing the offender in the garage, she entered the garage and engaged in some conversation with him. He then blocked her path to the doorway entrance from the garage back into the home. He then grabbed her and placed her on the hood of her car.

6During this encounter with the offender, the victim, in an effort to avoid contact with him ran to the main door of the garage which leads out to the driveway, where she attempted to scream for help.

7The offender eventually got the victim to the garage floor where he held her. She attempted to lodge her leg under the partially opened garage door to prevent it from being closed and at that time the offender choked her and demanded that she remove her leg from within the door. He threatened that he would continue to choke her unless she did so. The victim testified that she believed she was going to lose consciousness as a result of this choking.

8As this interaction between the offender and the victim continued in the garage, he eventually removed all of her clothing, head butted her and then engaged in non-consensual vaginal intercourse with the victim on the trunk of her car.

9During the offender’s assault, the victim sustained numerous bruises and abrasions as depicted in the photographs which were entered in evidence during the trial.

10In the course of the assault, the victim attempted to resist the offender and to fight him off and in doing so she kicked him and stabbed him with her car keys.

11SK attended at the Trillium Hospital later in the same day, where she was examined and following that she attended at the police station to report the offender’s assault.

Position of the Crown:

12It was submitted on behalf of the Crown that the offender committed a violent sexual assault upon the victim, which included choking, within her home and that he presents a real risk of reoffending and is a danger to society. It was further submitted that the prospects for rehabilitation are nonexistent and that therefore denunciation and deterrence are paramount considerations in determining a fit and proper sentence.

13Counsel for the Crown seeks a sentence in the following terms: (1) a global custodial sentence of 6 to 7 years less presentence custody – this sentence being composed of a sentence of 4 to 5 years in respect of the sexual assault and 2 years consecutive in respect of the conviction for choking; (2) an order pursuant to s. 490.012 of the Code with respect to registration pursuant to the Sex Offender Information Registration Act, S.C. 2004, c. 10 for life as the maximum penalty for a conviction for choking contrary to s. 246 (a) of the Code is life imprisonment; (3) a DNA order pursuant to s. 487.05 one of the Code.

Position of the Defence:

14Counsel for the offender submitted that the appropriate sentence for the offences is a global custodial sentence of four years for both offences to run concurrently. He also sought credit for presentence custody and the term of house arrest. The full submissions on behalf of the offender with respect to credit for both presentence custody and house arrest are considered below.

Circumstances of the Offender:

15The offender was born in Trinidad and came to Canada in 1973. He is 50 years of age. He is the father of eight biological children mothered by six women. He advised the author of the Presentence Report (“PSR”) that he did not wish contact to be made with four of these women.

16The offender completed his grade 12 education and following that, his employment history included positions as a forklift operator along with other labour related positions. He last worked in 2005.

17The offender acknowledges drinking alcohol to excess and consuming cocaine and marijuana. Although he expressed an interest in attending an addiction treatment program, he advised the author of the PSR that he was only willing to attend counselling with a specific counsellor. As of the date of the PSR he had no counsellor in mind and acknowledged that he had not thus far received counselling as he had not yet identified the right counselling program for him.

18It is reported that the offender had been in a relationship with Ms. DT, who the offender described as his common-law partner, for a number of years. Ms. DT described her relationship with the offender as “off and on”. Although she initially denied to the author of the PSR that there was any inappropriate behavior on the part of the offender during their relationship, she later indicated that it reached a point where she no longer wanted to have an intimate relationship with him. She further indicated that upon his release from custody she does not wish to reconcile with the offender and that she is only open to keeping a friendship with him.

19Character reference letters were submitted on behalf of the offender from his eldest sister KN, his niece WS and his brother SH, who all describe his history as a volunteer in the community.

20As indicated in the PSR, the offender has no recent work history of any significance and appears to have limited transferable work skills.

21As to his criminal history, the offender has a criminal record dating back to 1990, with the most significant related convictions being from 2006, where he was convicted for assault, uttering a death threat or threatening to cause serious harm and failure to comply with a recognizance.

22The offender’s institutional history of presentence custody with respect to the present offences, commenced on November 15, 2008 to March 25, 2009, at which time he was released on a recognizance, including a term of house arrest. The offender was in custody at the time of the trial on the present offences as a result of charges of sexual assault, assault with a weapon, assault, choking, threatening death, three breaches of recognizance. He was arrested and taken into custody on those charges on August 9, 2013 (“Toronto Charges”) and remained in custody until the jury’s verdict in this matter on July 2, 2014 at which time his bail on the present charges was revoked.

23The trial with respect to the Toronto Charges proceeded on April 2, 2015 before Garton J. and the offender pled guilty to one count of assault and one count of breach of recognizance. He received a sentence of one day in custody in addition to 8 months of presentence custody credited to 12 months.

Victim Impact Statement:

24The victim SK provided a written victim impact statement wherein she described how the brutal sexual assault by the offender has impacted on her life, her family and in particular her son. She was especially and significantly troubled by the fact that the attack occurred within her home where she sought security and peace of mind. Since the assault, she reports that her sleep has been intermittent and that she has had troubling dreams and is consumed with a sense of apprehension, anxiety when she hears her doorbell or a knock on the door and when she prepares to leave her home. She described how she has endured the disgrace and embarrassment from recounting the intimate details of the sexual assault since the events occurred six years ago.

Aggravating and Mitigating Factors:

25It was submitted on behalf of the Crown that there are several aggravating factors relating to the offence of sexual assault including that: (1) this was a violent sexual assault resulting in numerous bruises and abrasions to the victim; (2) the assault occurred within the victim’s home while she was confined to the garage; (3) the accused continued the assault upon the victim in spite of her efforts to fight back; (4) the victim had been in a previous domestic relationship with the accused within the context of s. 718.2 of the Code; (5) the victim has suffered and still suffers from the consequences of the offender’s unlawful conduct; (6) the offender has a criminal record, however it is acknowledged that this does not represent a significant factor for consideration in this sentencing.

26As to mitigating factors, it was submitted on behalf of the Crown that the accused’s statement that he was sorry, as is referred to in the PSR must be examined in the context of his lack of insight into the seriousness of his conduct.

27It was further submitted on behalf of the Crown that there are additional aggravating factors regarding the offence of choking, that included the following: (1) the choking was accompanied by a threat to continue the choking should she continue to resist; (2) the offender’s choking of the victim was successful, in that it prevented her from seeking assistance from neighbors nearby.

28As to mitigating circumstances in respect of both offences, it was submitted on behalf of the offender that he has no related criminal history to the offences for which he was convicted. It was further submitted that his history of alcohol and drug use represents a further mitigating factor for consideration on sentencing.

29It was also submitted that as the Toronto Charges dating from August 2013 postdate the offences for which the offender has been convicted and they should have no bearing on the determination of his sentence.

Analysis:

Legal Framework and Custodial Sentence:

30The presumption of innocence, while having been displaced by the jury’s findings of guilt in respect of counts 1 and 2 in the indictment, still requires proof of the aggravating factors as submitted on behalf of the Crown as to sentence, beyond reasonable doubt.

31Section 718 of the Code sets out the fundamental purposes and objectives of sentencing. The objectives include denunciation, general and specific deterrence, rehabilitation and the promotion of a sense of responsibility in the offender and acknowledgment of the harm done to victims and to the community.

32Subject to certain specific statutory requirements that may have to be considered in certain cases, the determination of a fit sentence is unique to each case and the set of facts and evidence presented: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at para. 43.

33It was submitted on behalf of the Crown that no additional findings of fact were required, as the aggravating facts put forward on behalf of the Crown were expressed or implicit in the jury’s findings of guilt.

34In considering the aggravating factors as urged by counsel for the Crown I did so by considering all of the surrounding evidence related to the submission on aggravating factors, as well as the evidence of the offender and the principles set out in R v. W. (D.) [1991] 1 S.C.R., at p. 757 – 8.

35As to the offence of sexual assault, I am satisfied beyond a reasonable doubt that the offence was especially violent and a very frightening experience for the victim and that it resulted in numerous bruises and abrasions as well that she has suffered long-term emotional effects as a result of those events.

36As to the submission that the offender’s conduct constituted an offence involving the abuse of his spouse or common-law partner as referred to in s. 718.2 (a) (ii), this was considered by the Court Of Appeal in R. v. Smith 2011 ONCA 564 and in the other decisions cited at para. 87 wherein Epstein J.A. for the court stated as follows:

Finally, in cases of sexual assault involving forced intercourse with a spouse or former spouse sentences generally range from 21 months to four years: see R. v. R. (B. S.) (2006), 2006 2908 2 (ONCA), 81 O.R. (3d) 461 (C.A.), R. v. Jackson, 2010 ONSC 3910, R. v. M. (B.), 2008 ONCA 645, R. v. Nolan, 2009 ONCA 727, R. v. Toor, 2011 ONCA 114.

37The offender and the victim had been in a common law relationship quite some time prior to the offences in question. As to whether s. 718.2 (a) (ii) of the Code is engaged so as to include a former common-law or domestic partner, there is case authority to that effect, however I prefer and adopt the views expressed by Hill J. in R. v. Barilko, [2014] O.J. No. 792 at para. 29 where he stated as follows:

Although there is authority for the proposition that s. 718.2(a)(ii) of the Code, making it a deemed aggravating feature of a crime where the facts involve “abuse” of a “spouse or common-law partner”, includes a former or ex-spouse or domestic partner (see R. v. O.F.B., 2006 ABCA 207, at para. 11), I do not read the provision that broadly. In my view, s. 718.2(a)(ii) is meant to focus upon abusive conduct within an ongoing domestic context of full or partial co-habitation. That said, these circumstances might nevertheless be said to have the “flavour of a domestic situation”: Mullin, at p. 487. The invocation of physical conflict in any period of separation from a former partner is to be deplored as it not only violates the security of the person and personal integrity of another but also because it is the antithesis of civil behaviour and tends to prolong the negative features of a relationship break-up often to the disadvantage of a child of the union.

38While the complainant and the offender had separated prior to these offences and did not have an ongoing domestic relationship, the offences did have the “flavor of a domestic situation” and as such to some degree the offender’s conduct does give rise to the consideration of that relationship, as an aggravating feature on sentencing in accordance with s. 718.2 (a) (ii).

39The offender’s lack of any clear statement of remorse and the equivocal statements as to remorse, as reported in the PSR, do not constitute aggravating factors for consideration on sentencing.

40As to aggravating factors relating to the offence of choking, I am satisfied beyond a reasonable doubt that the offender’s choking of the victim was a particularly lethal form of assault which it achieved its purpose by allowing the offender to overcome the victim’s resistance which in turn resulted in facilitating the sexual assault.

41However, I have concluded that the violent nature of the choking, and the resulting capitulation by the victim are hallmarks of the offence itself in s. 246 (a) and do not, standing alone, constitute aggravating factors on sentencing.

42As to the offender’s risk of reoffending, it is noteworthy that he indicated to the author of the PSR that he “loves sex and would like it every day”. The information contained in the PSR does not demonstrate that the offender has any real motivation to change his way of life and as such I have concluded that he remains a risk to reoffend.

43In determining the appropriate sentence in this case given the two offences involved, a global sentence must first be determined in applying the principle of totality.

44This principle was recently articulated by La Forme J.A. in R. v. R.B., 2013 ONCA 36 at para. 30 where he stated:

The proper approach to applying the principle of totality on sentencing is to first identify the most serious part of the accusations or offences made against the person that resulted in the criminal offences he or she was charged with. Next, the court is to determine the total sentence to be imposed, and then to impose sentences with respect to each offence that they add up to the total sentence. In doing so, the sentence for each offence must properly reflect the most serious part of the overall criminal conduct and must reflect the proper sentence for that offence. At this stage, the court will then decide whether a particular sentence should be consecutive or concurrent to the other sentences imposed: R. v. Jewell; R. v. Gramlick, 1995 CanLII 1897 (ON CA), [1995] O.J. No. 2213, 83 O.A.C. 81 (C.A.), at para. 27.

45In R. v. Nolan, 2009 ONCA 727, the Court of Appeal, in considering a sentence after a guilty plea for spousal sexual assault and forcible confinement arising from one incident indicated that a sentence of 100 days did not reflect the gravity of the offences committed and did not give effect to the requisite sentencing principles. The court indicated that the appropriate sentence in the circumstances was 21 months in custody.

46In R. v. Nelson, 2014 ONCA 853, Tulloch J.A. for the Court of Appeal upheld a global custodial sentence of five years in respect of a jury’s guilty verdicts for threatening death, unlawful confinement, sexual assault causing bodily harm and assault with a weapon, all arising from one incident involving the accused and complainant. The sentence was only varied with respect to the credit for presentence custody.

47The gravamen of the offender’s criminal culpability, in my view, flows from the jury’s finding of guilt in respect of the offence of sexual assault.

48The offender’s sexual assault upon the victim was most serious and included an invasion by the offender into her home. The victim’s home should be considered a place of safety and security. Apart from the violent sexual assault upon her, the victim’s rights of security in her home were also violated.

49The offender appears to have no insight into the seriousness of his conduct and further has demonstrated little, if any, interest in rehabilitation. In my view, considering the offender’s profile as is demonstrated in his criminal conduct involving the victim, and in the evidentiary and informational record available at the time of his sentencing hearing, the offender represents a risk of reoffending by the commission of further violent crimes.

50Having regard to the principle of totality, I have concluded that a global proportionately fit sentence in respect of both the sexual assault and choking, is 5 years and that this is in keeping with the overall culpability of the offender.

51The appropriate sentences for the sexual assault and choking are 5 years and two years, respectively, with the sentence for choking to run concurrently for a total custodial sentence of 5 years.

52It was submitted on behalf of the Crown that the sentences for these offences should run consecutively on the basis that Parliament has chosen to criminalize the specific conduct of choking to overcome resistance and that in order to recognize Parliament’s intention a consecutive sentence is warranted for this offence.

53The offences are closely and temporally connected and given that the choking offence was part and parcel of the sexual assault, I have concluded that a consecutive sentence with respect to the choking offence is not warranted when the principle of totality is recognized: R. v. Finney, 2014 ONCA 866.

Credit for Presentence Custody:

54The offender seeks credit for time spent in presentence custody and while he was subject to house arrest.

55The accused was taken into custody on the present charges on November 14, 2008 and was released on bail on these charges on March 26, 2009. He thus spent 131 days in custody .

56On August 9, 2013 the offender was arrested and taken into custody on the Toronto Charges and remained in custody on those charges up to and including July 1, 2014, when the jury in this proceeding found the offender guilty on July 2, 2014. The offender has remained in custody since that date, pending sentencing and as well pending trial on the Toronto Charges, until his plea of guilty on April 2, 2015.

57It is the position of the Crown that the offender should be given credit for 131 days in presentence custody for the period November 14, 2008 to March 25, 2009 at the rate of 2:1 for total of 262 days.

58It is further the position of the Crown that no credit should be given for the time the offender was on house arrest bail terms during the period March 26, 2009 to August 8, 2013, namely 1596 days. Further, no credit should be given for the time in presentence custody in the period August 9, 2013, when the offender was arrested on the Toronto Charges to including the date of conviction on July 2, 2014.

59Finally, counsel for the Crown submits that the offender should be given credit for the presentence custody period of July 2, 2014, to date, namely May 1, 2015 at the rate of 1:1.5.

60As to the position put forward on behalf of the offender, it was submitted that he should be given credit, as agreed to by the Crown, for presentence custody at the rate of 2:1 for the period November 14, 2008 to March 25, 2009.

61With respect to the period of time where he was on house arrest bail terms namely from March 25, 2009 to August 9, 2013 he should be entitled to receive credit at the rate of 1:2.

62While in custody on the Toronto Charges from August 9, 2013 it was submitted that he should receive credit at the rate of 2:1.

63With respect to the offender’s first period in custody namely from November 14, 2008 to March 25, 2009, it is common ground that the offender is entitled to credit at the rate of 2:1 as he was arrested prior to the Truth in Sentencing Act, S.C. 2009 c. 29 – amendments to s. 719 (3) of The Criminal Code of Canada, R.S.C., 1985, c. C-46 which came into force on February 22, 2010.

64The offender offered no evidence with respect to the harshness of the detention in the institutions where he was held and as such any such conditions that may have existed do not expressly form part of the considerations examined in reaching an appropriate decision as to sentence. Such considerations, in terms of the conditions in pre-sentence custody detention centres as compared to post-sentence custodial institutions is to be taken into account in calculating credit for presentence custody as stated by the Supreme Court of Canada in R. v. Summers 2014 SCC 26, [2014] S. C. J. No. 26.

65As to the period where the offender was on bail in respect of the present charges, namely from March 26, 2009 to August 8, 2013 the offender was released on recognizance following a bail hearing which was subject to the requirement that he remain at his residence at all times except: (1) for travel to and from reporting to Peel Regional Police on a monthly basis, (2) for medical appointments or emergencies, (3) for appointments for children, (4) for attendance at court, (5) meeting with counsel, (6) or in the presence of his surety, (7) or an adult approved of in writing by his surety with an approved written itinerary, signed and dated by his surety.

66On November 9, 2009 the offender’s bail terms were varied on consent and provided that he was free to leave his residence in the presence of his surety, “or an adult approved of in writing by your surety, or with an approved written itinerary signed and dated by your surety.”

67The bail terms continued subject to a bail variation on January 15, 2010, wherein new bail was put into place, following the preliminary inquiry. Those bail terms provided that the offender was entitled to leave his residence for various purposes already allowed, including when he was in the presence of the surety or an adult approved of in writing by his surety, or with an approved written itinerary signed and dated by the surety.

68Following a defence bail review application on March 31, 2011, the offender’s bail terms were modified again and allowed that while he was to remain within his residence, he was free to leave under similar circumstances outlined above, plus in the presence of an adult approved of in writing by his surety, or with one of his children for school related functions, or for appointments for the children, shopping for the children or his wife, or to drive his wife to Toronto.

69The impact of bail, and in this case the terms of house arrest cannot be assumed: R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555 at para. 28.

70The offender offered no evidence whatsoever as to prejudice or undue hardship resulting from the house arrest bail conditions imposed. As such, I am left to consider the terms and conditions of the house arrest and the timeline over which the terms were imposed upon the offender.

71The offender was granted numerous exceptions to the house arrest term which allowed him to carry on his life with very little interference, hardship or prejudice resulting.

72In the period from November 9, 2009 to March 31, 2011, there was an exception to the house arrest condition that allowed the offender to be out of the residence “with an approved written itinerary, signed and dated by your surety”. There is no evidence that the offender availed himself of this provision to seek employment in this timeframe, and in fact the author the PSR indicates that he last worked in 2005. Any claim by the offender that he was unable to engage in employment is not a loss supported by any evidence.

73Letters from members of his family demonstrate that he continued to attend family functions and events while on bail.

74It is also notable that on October 11, 2011 the offender was found guilty of breach of recognizance in Chatham, having violated the alcohol condition in his terms of release.

75While not determinative of the question of whether presentence credit should be given for his term of house arrest, it is notable that the charges in this matter have been before the courts since November 2008 and that there were five adjournment requests by the offender, one for the preliminary inquiry and four trial adjournments.

76I have concluded that the offender has had very generous bail terms and that he has not produced evidence that demonstrates that he suffered any undue hardship or prejudice while on bail and as such modest credit for the term of house arrest should be granted, namely eight months, in respect of the period of house arrest from March 26, 2009 to August 8, 2013.

77As to the period from when the offender was arrested on the Toronto Charges, namely, August 9, 2013 to the date of conviction in this case on July 1, 2014, the offender seeks credit at the rate of 2:1. It is the position of the Crown that no credit should be given for this time in custody.

78Hill J. in R. v. Gobin, 2012 ONSC 3523, [2012] O.J. No. 2785 noted that where an accused faces subsequently-laid charges, and is unable to obtain bail as the new offense is alleged to have occurred while on bail for the original charges which are now up for sentencing, it is arguable that the accused’s time in custody relating to the subsequently-laid charges are “as a result” of the original charges, within the context of s. 719 (3) of the Code and as such presentence custody for time spent in custody on the subsequently-laid charges may be considered.

79Hill J., however, also notes in para. 41 (5) and (6) that courts have also opted to step out of the s. 719 (3) regime in certain circumstances and to consider the custody on the new/other charges simply as a relevant mitigating circumstance connected to the offender under ss. 726.1 and 718.2 (a) of the Code.

80Like Hill J. in Gobin, in the present case, given the offender’s questionable level of motivation for change and his risk of reoffending, and considering his time in custody on the subsequently-laid charges during the period of August 9, 2013 to July 1, 2014, I have concluded that the offender’s Toronto incarceration should be credited to the offender at the rate of 1:1 as against the present sentence.

81As to the offender’s time in custody following July 1, 2014, counsel for the offender has urged that he be given presentence credit at the rate of 2:1.

82I have concluded that the appropriate credit for presentence custody following the offender’s conviction on July 1, 2014 is at the rate of 1:1.5 on the basis that, although he is eligible to the maximum credit of 2:1 (R. v. R.S., 2015 ONCA 291) in this case the offender violated his bail terms in Chatham and Toronto and additionally, while in custody the offender had access to and did use rehabilitative programs available to him in the detention facility: ( R. v. Warren , 1999 CanLII 2205 (ON CA), [1999] O.J. No. 4591; R. v. Mills, 1999 CanLII 5925 (BC SC), [1999] B.C.J. No. 56.)

83I have also concluded that the offender is entitled to credit at the rate of 1:1.5 in respect of the time served between the imposition of the sentence in the Toronto Charges on April 24, 2015 to May 29, 2015, when this sentence will be imposed.

84In summary, the offender shall have credit for the time served in presentence custody as follows: (1) November 14, 2008 to March 25, 2009 – 131 days with credit at the rate of 2:1 = 262 days = 8.7 months; (2) March 26, 2009 to August 8, 2013 – accused on bail (house arrest) – credit – 240 days equals = 8 months; (3) August 9, 2013 to July 1, 2014 – offender arrested on Toronto Charges and in custody on those charges – 362 days – at credit at the rate of 1:1 = 11 months; (4) July 2, 2014 to May 29, 2015 – 332 days at the credit rate of 1:1.5 = 498 days = 16.6 months.

85Thus the total credit for presentence custody is 1362 days or 3.7 years.

86Given the custodial sentence of 5 years and accounting for the credit for presentence custody outlined above, the offender shall serve an additional 15 months and 15 days in custody.

87The offender shall be subject to the following ancillary orders:

(1) the offender shall provide a DNA sample in accordance with s. 47.051 (1) of the Code;

(2) the offender shall be registered under the Sex Offender Information Registration Act, pursuant to section 490.012 of the Code, for life;

(3) the offender shall be subject to a weapons prohibition order pursuant to s. 109 (2) (a) and (b) for terms of 10 years and life respectively; and

(4) the offender is prohibited from communicating with the victim during the custodial portion of the sentence, in accordance with s. 743.21 of the Code

Daley, RSJ.