ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CR-14-280
Date: 20150916
BETWEEN:
Her Majesty the Queen
Peter Leger, for the Crown
- and -
J.F.
Alan Risen, for the Defendant
Defendant
Heard: May 11, 12, 13 & 14, 2015 and September 16, 2015
REASONS FOR SENTENCE
Conlan J.
I. Introduction
[1] What sentence should be imposed on a young man with no prior criminal record and good prospects for the future who committed a very serious offence when he sexually violated his female friend? That is the issue that I must decide. It is not an easy task.
[2] J.F. was tried before me, without a jury, in Owen Sound in May 2015.
[3] In written Reasons for Judgment reported at 2015 ONSC 3136, I found J.F. guilty of sexual assault under section 271 of the Criminal Code of Canada.
[4] A presentence report was ordered. The sentencing was held in Milton, Ontario on September 16, 2015.
II. The Facts
[5] In a nutshell, J.F. and his female friend, C.S., travelled together from Durham Region to Blue Mountains, Grey County.
[6] J.F. was attending his employer’s Christmas party at a hotel in the village of Blue Mountains. He and C.S. stayed overnight (December 17/18, 2011) in the same hotel room.
[7] After a night of drinking alcohol, J.F. had sexual intercourse with C.S. while she was asleep. I found that the sex was not consensual.
III. The Offender
[8] J.F. is currently 25 years old. He has no prior criminal record.
[9] According to the presentence report, J.F. has little memory of his actions. He feels terrible. He lost his best friend. He may lose his job.
[10] The offender is a smart young man. He completed grade 12 and then obtained a college diploma to become an automotive service technician. He has worked in that field for six years with the same company – Mercedes Benz.
[11] J.F. lives with his parents in Whitby, Ontario. He has a supportive family.
[12] The presentence report is mixed in terms of whether J.F. has a problem with marihuana. The offender reports that he has reduced his marihuana consumption to twice monthly, however, information from J.F.’s mother led the author of the report to observe that J.F. is likely continuing to use marihuana much more frequently than that. At page 5 of the report, the author writes “[o]f concern is the subject’s daily drug use which he was not honest about reporting. He is using marijuana daily and this use is condoned in the parental home. Substance use was a factor in his offending”.
[13] It is true that J.F. was intoxicated the evening of December 17, 2011. Whether that intoxication was the result of alcohol alone or also a consequence of having smoked some marihuana, which is clear on the evidence, I do not know. It is troubling, however, that J.F. would continue to use any drugs after such a life-changing incident had occurred in December 2011 and even after the trial in May 2015.
[14] The Defence filed a collection of very positive character letters. I have read them all. They describe J.F. as, among other things, mature, well-mannered, intelligent, responsible, caring, compassionate, respectful, an all-around excellent worker, generous, big-hearted, open-minded, a loyal and reliable friend, athletic, a dedicated son and brother, a favourite grandson, a family man, a model student and a trustworthy person.
[15] Regarding the most latter attribute, of course, it cannot be ignored that J.F. betrayed the trust of his close friend, C.S.
[16] Otherwise, the letters are impressive. They confirm what I already thought by the end of the trial – that J.F. is a very decent and accomplished young man.
IV. The Positions of the Parties
[17] The Crown requests the following sentence: three (3) years of imprisonment, a primary DNA Order, a section 109 firearms and weapons prohibition Order for life, and a Sex Offender Registry Order for twenty (20) years.
[18] The Crown focusses on the significant breach of trust in this case. The Crown emphasizes the sentencing principles of denunciation and deterrence.
[19] I have read the casebook filed by the Crown.
[20] The Defence requests the following sentence: six (6) to nine (9) months in custody to be followed by probation.
[21] The Defence does not oppose the primary DNA and Sex Offender Registry Orders sought by the Crown.
[22] The Defence does oppose the section 109 Order.
[23] The Defence focusses on J.F.’s unblemished history, the fact that he is of very good character, the principle of restraint, the notion that what happened here was more of an error in judgment as opposed to a premeditated act, the argument that there are many more mitigating factors in existence here than aggravating ones, and the submission that the offender has lost a great deal already. He is a good person who does not need to go to jail for a significant period of time.
[24] The Defence filed some written submissions on sentence, primarily focused on general principles applicable to J.F.’s situation, as well as a dense Book of Authorities. I have read all of the materials filed.
V. Analysis
[25] Sentencing is a highly discretionary and individualized process.
[26] I must have regard to the principles of sentencing outlined in section 718 of the Criminal Code of Canada – denunciation, specific and general deterrence, the need to separate certain offenders from society, rehabilitation, restorative justice and the promotion of responsibility in offenders.
[27] Those principles most applicable here are denunciation, specific and general deterrence and rehabilitation.
[28] Any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender – section 718.1.
[29] This was a very serious offence. J.F. had sexual intercourse with his friend and without her consent. He violated their trust relationship. That is deemed to be an aggravating circumstance under subsection 718.2(a)(iii).
[30] J.F. should not be deprived of his liberty if less appropriate sanctions are appropriate in the circumstances – subsection 718.2(d). I should consider all available sanctions other than imprisonment that are reasonable in the circumstances – subsection 718.2(e).
[31] It should be noted that, by virtue of subsection 742.1(f)(iii), a conditional sentence of imprisonment is not available for J.F.
[32] I agree with the Defence that any custodial sentence imposed on a first offender ought to be as short as reasonably possible in the circumstances. Further, it ought to be tailored to the accused rather than solely for the purpose of general deterrence. R. v. Priest, 1996 1381 (ON CA), [1996] O.J. No. 3369 (C.A.), at paragraph 23.
[33] I also agree with the Defence that, in fashioning an appropriate sentence, I am at liberty to consider what other consequences will be suffered by the accused besides a period in jail. Those other consequences include the criminal justice system experience itself. R. v. M.B., [2006] O.J. No. 5876 (S.C.J.), at paragraph 27.
[34] As both counsel have conceded, no two cases are ever the same. Sentencing decisions can always be distinguished on their facts.
[35] Having said that, after a review of all of the authorities filed by both sides, I agree generally with Justice Campbell in the very recent decision filed by the Crown. The usual range of sentence for an accused who has sexual intercourse with a sleeping or unconscious victim is between an upper reformatory term of imprisonment and a lower penitentiary sentence. R. v. Smith, 2015 ONSC 4304, [2015] O.J. No. 3513 (S.C.J.), at paragraph 32.
[36] Justice Campbell described that range in numbers as between eighteen (18) months and three (3) years in custody. I think that is a fair assessment, however, I would stretch the lower end of the range to fourteen (14) months – the disposition upheld in the decision of the Court of Appeal for Ontario in R. v. Colbourne, 2013 ONCA 308, [2013] O.J. No. 2095.
[37] The Defence submits that I should treat the decision of Justice Campbell in Smith, supra with some caution because J.F. should not be punished for the fact that the Crown proceeded by indictment. With respect, Justice Campbell provides a complete answer to that at paragraph 34 in Smith, supra. Sentences are generally lower where the Crown proceeds summarily because the maximum sentence for sexual assault is eighteen (18) months in custody. That is simply a fact.
[38] This is not a low end of the range case. In Colbourne, supra, the length of the custodial sentence was tempered by the trial judge, upheld on appeal, at least in part because of the health problems on the part of the accused.
[39] In addition, the breach of trust in the case before me demands a sentence in excess of fourteen (14) months in custody.
[40] At the same time, on these facts for this offender, I am of the view that a penitentiary sentence is unnecessary, particularly in light of the principles enunciated in Priest, supra.
[41] Balancing against the aggravating factors of J.F. having taken advantage of his friend and abusing their trust relationship by having sexual intercourse with her while she was sleeping, there are numerous mitigating features to this case.
[42] Those include J.F.’s lack of any prior criminal record, his otherwise exemplary character, his good prospects for the future, and the submission (which I accept) that his criminal behaviour on the night in question was the result of a gross lapse of judgment in a non-sober state as opposed to some pattern of behaviour or a premeditated attack on C.S.
[43] Having regard to all of the relevant circumstances, I have determined that a fit sentence for J.F. is a period of imprisonment of eighteen (18) months.
[44] That sentence will adequately denounce J.F.’s unlawful conduct; it will sufficiently deter him and others from engaging in non-consensual sex in the kind of situation that confronted J.F. on the night in question; and it will not crush this offender but rather will enable him to rehabilitate himself so that he is not placed in similar circumstances in the future.
[45] I am convinced that nothing short of eighteen (18) months in custody would be reasonable in these circumstances. The gravity of the offence demands a custodial sentence in the upper reformatory range.
[46] I am aware of the fact that the sentence I have decided upon is the same one that was imposed by the Court of Appeal for Ontario in R. v. H.H., 2002 41397 (ON CA), [2002] O.J. No. 1509, a case where the victim woke up and protested during the sexual encounter. That did not happen in our case. Nevertheless, we do not know all of the facts in H.H., supra. What is important is what is a fit sentence for J.F. Eighteen (18) months in custody is a fit sentence.
[47] The custodial sentence shall be followed by two (2) years of probation. The compulsory conditions under subsection 732.1(2) apply. The following optional conditions apply under subsection 732.1(3), with the full and proper wording on the face of the order: reporting, no alcohol, no drugs except in accordance with a medical prescription, counselling as directed, and no contact with C.S.
[48] On the only other contested matter, there will be a section 109 firearms and weapons prohibition Order for a period of ten (10) years and life as per paragraphs (a) and (b) of subsection 109(2) of the Criminal Code of Canada.
[49] In my view, such an Order is mandatory on these facts. J.F. has been convicted of an indictable offence in the commission of which violence against C.S. was used and for which J.F. may be sentenced to ten (10) years or more in custody – subsection 109(1)(a). Having sexual intercourse with a sleeping woman constitutes violence, in my opinion.
[50] Even if I am wrong in that regard, I would have imposed the Order anyways. The only submission against it relates to stigma. That will already occur as a result of the Sex Offender Registry Order.
VI. Conclusion
[51] The sentence of the Court is as follows.
[52] First, a conviction is registered.
[53] Second, a primary DNA Order is issued.
[54] Third, a section 109 CCC Order is issued for the terms indicated above.
[55] Fourth, a Sex Offender Registry Order is issued for twenty (20) years.
[56] Finally, J.F. is sentenced to a period of imprisonment of eighteen (18) months. If the offender wishes, as per the presentence report, I will recommend that the custodial sentence be served at the Ontario Correctional Institute. Two (2) years of probation, on the terms outlined above, will follow the period of imprisonment.
[57] J.F. needs to understand that things could have gone much worse for him today. A penitentiary sentence could have been justified for J.F. Sufficient reasons could have been given to explain why a sentence behind bars of a term much longer than eighteen (18) months was necessary. J.F. has benefitted from a degree of restraint. C.S. should have had that same compassion shown to her on the night in question.
[58] I thank both counsel for their helpful submissions.
Conlan J.
Released: September 16, 2015
Court File No.: CR-14-280
Date: 20150916
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
J.F.
Defendant
REASONS FOR SENTENCE
Conlan J.
Released: September 16, 2015