ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR14500003410000

DATE: 20151029

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DARKO STANKOVIC

Defendant

Andrea MacGillivray, for the Crown

Dragi Zekavica, for the Defendant

HEARD: August 27, 2015

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant AND any information that could disclose such identity shall not be published in any document or broadcast in any way.

SPIES J.

REASONS FOR SENTENCE

Overview

[1] On April 28, 2015, a jury found the Defendant, Darko Stankovic, guilty of one count of sexual assault. On August 27, 2015, counsel appeared before me for sentencing submissions.

The Facts

(a) Circumstances of the Offence

[2] Mr. Stankovic and the complainant met for the first time in the early morning hours of June 1, 2013. They were put in contact with each other by a mutual friend although they both gave very different evidence as to the purpose of their meeting. The complainant testified that the purpose of the meeting was that she wanted crack cocaine from Mr. Stankovic whereas Mr. Stankovic testified that he was interested in sex with the complainant. They both denied any discussion about exchanging sex for drugs or money.

[3] There was no dispute that Mr. Stankovic and the complainant engaged in consensual sexual activity on the couch in Mr. Stankovic's living room that included kissing and touching, while fully clothed. Afterwards, they engaged in vaginal intercourse and then anal intercourse in what Mr. Stankovic considered the master bedroom of his apartment.

[4] In reaching its verdict the jury must have found that the Crown had proven beyond a reasonable doubt that Mr. Stankovic did not have an honest but mistaken belief that the complainant consented to having intercourse with him. Although it is not clear whether or not the jury found that the complainant did not consent to both the vaginal and the anal intercourse; on the evidence, given the finding of guilt, the jury must have at least found that the complainant did not consent to the anal intercourse.

[5] The complainant’s evidence was that Mr. Stankovic undressed and that he took her clothes off even though she told him not to. Once they were both naked Mr. Stankovic pushed her onto her stomach onto the bed. Mr. Stankovic was getting on top of her and not saying anything and the complainant testified she crawled up towards the headboard and was saying “No,” that she didn’t want this, that it was not why she was there and that she was married. I prefer this evidence of the complainant to the evidence of Mr. Stankovic that the complainant did not say anything that suggested she was not consenting.

[6] Mr. Stankovic testified that before he went to the complainant he put a condom on. The complainant agreed in cross-examination that he must have been wearing a condom but she was not certain about this. For the purpose of sentencing I find that Mr. Stankovic did use a condom.

[7] Both the complainant and Mr. Stankovic agreed that he started to have vaginal intercourse with her first, which the complainant said lasted for about two minutes. The complainant testified that she told him “no” and said “ouch”. Mr. Stankovic disputed this evidence. Both agree that Mr. Stankovic then proceeded to have anal intercourse with her in the same position. Again the complainant testified that she told him “no” and that it hurt. Mr. Stankovic denied that the complainant told him “no” when he started anal intercourse with her. I do not accept that evidence and consistent with the jury’s verdict find that the complainant told him to stop more than once and he did not.

[8] The complainant testified that the anal sex lasted about two minutes and Mr. Stankovic then ejaculated. Mr. Stankovic denied ejaculating. However he admitted that the complainant told him that the anal intercourse hurt. It was his position that he then stopped. Since I have found that he was wearing a condom this is not an issue that needs to be resolved for the purpose of sentencing.

[9] Finally the complainant testified that Mr. Stankovic did not use any violence but he applied pressure to her so she couldn’t move. He is much larger and was essentially able to overpower her.

(b) Impact on the Complainant

[10] The complainant prepared a detailed victim impact statement which I have considered. The complainant was 32 years old at the time of the trial. At trial she admitted that she did not suffer any physical injuries other than the fact that she was sore anally.

[11] In her statement the complainant advises that as a result of this assault she had trouble sleeping including nightmares and she suffered an intense fear about going out into crowds; she became a recluse. She experiences anxiety, tension, irritability and loss of confidence. The complaint states that her thoughts, ideas and emotions have been greatly affected. It has impacted her relationship with her husband. As is often the case for victims of sexual assault, the complainant also blames herself and feels self-blame, guilt and shame for, in her mind, “allowing herself to be raped” and wondering how she could have fought harder. She now has intense feelings of worthlessness that makes it difficult for her to be motivated and causes her to feel self-disgust. She is seeing a therapist for these problems and is on medication. She will have to begin to pay for the therapy and the medication and is, therefore, facing a financial loss as well.

[12] With respect to the complainant’s psychological injury, Mr. Zekavica submitted that in cross-examination she testified she was working at a real estate office and not having any difficulties at all. He submitted there would be a lot of people in such an office. Based on my notes the complainant gave evidence about her current work at the commencement of her examination-in-chief. She did say that she was working in a real estate office. I do not see that evidence as being inconsistent with her victim impact statement. She does not suggest that she is now unable to work.

(c) Circumstances of Mr. Stankovic

[13] Mr. Stankovic was born and raised in Serbia. He is now 39 years old. He had a normal upbringing and remains close to his family. He came to Canada in 2008 and currently has permanent residency status. He and his wife, who is also in Canada, divorced in 2009. They have a daughter who is now eight years old. Mr. Stankovic provides child support of $260 per month and sees his daughter every two weeks through a third party contact.

[14] Since arriving in Canada Mr. Stankovic has worked on a self-employed basis. He advised the author of the pre-sentence report that he works in general maintenance for commercial building companies but that he had not worked for some 15 months and was living on Ontario Works. I was advised by counsel that he is now working for a roofing company as an apprentice.

[15] Mr. Stankovic was adamant that he has never used illegal drugs. The friends of Mr. Stankovic that were contacted by the author of the pre-sentence report confirm this. I note that no drugs were found during the search of Mr. Stankovic’s apartment which supports this. One of his friends, however, advised that Mr. Stankovic likes to drink and hinted that there may be some concerns in connection with his alcohol consumption. The other friend was more forthright and expressed concern at the level of Mr. Stankovic’s alcohol consumption particularly over the last two years.

[16] Mr. Stankovic maintains his innocence as, of course, he has a right to do. He advised the author of the pre-sentence report that he was disappointed with the conviction and feels that he “did nothing wrong”. When he was asked what he thought the impact of his behaviour would have had on the complainant he struggled to acknowledge that there was any as he continued to maintain that events that evening were consensual. When asked if he had learned anything from the experience he said he had not and then added that the only thing was that he would never invite anyone over again that he didn’t know.

[17] Mr. Stankovic did not disclose to the author of the pre-sentence report that he was convicted in 2011 for impaired driving for which he received a fine which he has since paid. He also did not disclose that he was convicted in June 2015 of uttering threats to his ex-wife on November 10, 2013. The pre-sentence report was requested on April 28, 2015 and written on June 16, 2015. Although the report does not state when Mr. Stankovic was interviewed it is likely that at the time of the interview he had not been convicted. That said, it is surprising that he did not mention the outstanding charge to the author of the pre-sentence report.

[18] Mr. Stankovic advises that his priority now is his daughter.

Legal Parameters

[19] Pursuant to s. 271(a) of the Criminal Code the maximum sentence for a sexual assault in these circumstances is ten years. There is no mandatory minimum sentence.

Positions of Crown and Defence

[20] Ms. MacGillivray seeks a penitentiary sentence in the range of three to four years. Mr. Zekavica’s position is that the sentence should be in the reformatory range; two years less a day. There is no dispute that a conditional sentence is no longer a possible sentence in this case by virtue of s. 742.1(f) of the Criminal Code.

[21] Ms. MacGillivray also seeks, as ancillary relief, a DNA order pursuant to s. 487.051(2) authorizing the taking of a DNA sample, a 10-year weapons prohibition order pursuant to s. 110 of the Criminal Code[1] and an order adding Mr. Stankovic’s name to the Sex Offender Registry and that he comply with the Sex Offender Information Registration Act for 20 years pursuant to s. 490.012(1) and s. 490.013(2)(b) of the Criminal Code. Finally, she seeks an order that there be no contact with the complainant for the period while Mr. Stankovic is in custody. Mr. Zekavica did not have any issue with the ancillary relief requested.

Case Law

[22] Both counsel referred me to cases dealing with sentencing in sexual assault cases in support of their respective positions. No case is on all fours with the case before me. Although the law is clear that each case turns on its own specific facts, a careful review of these cases, to the extent I can find similarities to the case before me, does assist in determining what an appropriate range is for sentence. What is clear from these cases, however, is that the range of sentence for sexual assault is broad.

[23] Dealing first of all with the relevant cases relied upon by the Crown, starting with the most recent, in R. v. Garrett, 2014 ONCA 734, [2014] O.J. No. 5031 (Ont. C.A.) the offender and the complainant had known each other for years and after drinks and dinner were kissing on the couch. This was consensual. The offender then became aggressive and would not stop when the complainant told him to, subsequently pulling up her top and bra, removing her leggings and having unprotected vaginal intercourse with her. Photographs showed the complainant had bruises on her tailbone and thighs following the incident.

[24] The Crown appealed the sentence imposed by the trial judge of 90 days intermittent and two years’ probation. The Court of Appeal substituted a sentence of 18 months. At para. 19 the Court stated:

…The facts were neither exceptional nor unique. The complainant repeatedly told Mr. Garrett to stop. He did not. This, in itself, constitutes demeaning behaviour and contemptuous disregard for the personal integrity of the complainant and engages the predominant sentencing principles of denunciation and deterrence. [Emphasis added]

[25] Also of relevance to the case at bar, the Court noted at para. 20 that the complainant’s initial consent to kissing did not render less serious the subsequent non-consensual intercourse.

[26] At para. 23 the Court stated that the sentence imposed should not be taken as a sentence within the appropriate or usual range as they were constrained by the Crown’s position at trial.

[27] In the case of R. v. Rand, 2012 ONCA 731, [2012] O.J. No. 5061 (Ont. C.A.) the offender had unprotected vaginal and anal intercourse with a vulnerable intoxicated young woman; aged 17, at an open air rock concert. The offender continued despite the complainant telling him to stop. He left her in the bush alone. She suffered relatively minor injuries. The offender’s criminal record included crimes of violence including two convictions for domestic violence. The trial judge imposed a sentence of four years’ imprisonment. The Court of Appeal did not interfere, holding (at para. 19) that the sentence imposed was “well within the appropriate range”.

[28] This case is clearly more serious that the case at bar. The complainant in the case at bar was not particularly vulnerable and given that Mr. Stankovic wore a condom and that he does not have a criminal record for crimes of violence, arguably his sentence should be less than four years as compared to the offender in Rand.

[29] In R. v. Quesnelle, 2010 ONSC 3713, [2010] O.J. No. 3634 (S.C.J.) the facts were far more serious involving two complainants and convictions for assault and sexual assault. However, the court noted that the Crown in that case submitted that a review of recent sentences for violent sexual offences involving anal intercourse generally ranged from three to five years (at para. 24). The cases relied upon are not referred to in the decision. The court decided a global sentence of six and one-half years was appropriate, which included a sentence of three years for one sexual assault and three and one-half years for the other, and separate concurrent sentences for the assault convictions.

[30] Ms. MacGillivray also referred to R. v. Thurairajah, 2008 ONCA 91, [2008] O.J. No. 460, (Ont. C.A.) another decision from the Court of Appeal. Again the circumstances of the offence in that case were more serious than the case at bar although there was no anal intercourse. In that case the offender was 19 years of age and raped the complainant who was 14 when she was passed out in the back of a vehicle. The complainant had been drinking heavily. The offender did not use a condom. He then dumped the complainant into a snowbank and called her brother advising that they had found her passed out.

[31] The trial judge imposed a conditional sentence of two years les a day, citing the offender’s relative youth, lack of a criminal record and the fact that he had a strong, close-knit family. The Crown appealed the sentence. Doherty J.A., speaking for the Court, held (at para. 38) that he was initially inclined to the position that a penitentiary term was required but came to the view that a sentence of two years less a day was within, albeit barely, the appropriate range of sentence in all of the circumstances. He found, however, that a conditional sentence was not appropriate. Noting, at para. 41, that generally sentences imposed on young first offenders stress individual deterrence and where necessary rehabilitation, he stated:

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.

[32] The Court found that the positive features of the offender must be given less weight on sentencing than would be the case if the circumstances of the offence were not so egregious (at para. 45). As the offender had completed 16 months of his conditional sentence he was sentenced to nine months’ imprisonment and probation for six months.

[33] Ms. MacGillivray relied on this decision in support of her position that the appropriate range of sentence in this case is two to four years. She submitted that the very low point of the range would be two years less a day.

[34] In R. v. G.M., 2015 BCCA 165, [2015] BCJ No. 762 (B.C.C.A.), another decision relied upon by Ms. MacGillivray, the British Columbia Court of Appeal applied Garrett in the case of an offender who perpetrated a serious sexual assault and disregarded clear and repeated requests to stop. The Court held in doing so he demonstrated the kind of demeaning behaviour and contemptuous disregard for the personal integrity of others that the court in Garrett stressed required a clear denunciatory and deterrent sentence and imposed a sentence of 18 months’ incarceration followed by 18 months’ probation given the Crown at trial had suggested an 18 month sentence.

[35] At para. 22 the Court noted that the range of sentences for sexual assault involving intercourse is two to six years citing other decisions of the British Columbia Court of Appeal. The Court added that while the range of sentences is an important consideration, ranges constitute guidelines rather than hard and fast rules. It seems that the range suggested in G.M. is higher at the top end than the range established by the authorities from Ontario.

[36] Mr. Zekavica relies on a decision from the Supreme Court of Nova Scotia; R. v. Taweel, 2014 NSSC 310. In that case the offender was 55 and had no criminal record with a positive pre-sentence report and standing in the community. He was convicted of one count for a historical sexual assault involving three occasions of sexual intercourse; at the time of the offence the offender was 32 years old and the complainant was 14 years old. The pre-sentence report was described as astounding as it included 28 reference letters that the Court characterized as impressive. The Court noted that the offender had suffered from public embarrassment and shame due to adverse media attention and that the offender accepted no responsibility for the offence although he empathized with the complainant and the difficulties that she has suffered. This was found to indicate some measure of remorse. The risk to reoffend was assessed as low. The Court imposed a sentence of 28 months which it described as being at the low end of the range.

[37] The other cases relied upon by Mr. Zekavica were not of assistance as they are all clearly distinguishable. In R. v. R.L., 2013 ONCJ 617 the offender was found guilty of three counts of sexual assault of his employee at the workplace. The Court imposed a 90-day jail sentence concurrent on all three counts and two years of probation but the sexual assaults involved only touching and kissing; not intercourse.

[38] In R. v. A.C., 2011 ONSC 4389 the offender was convicted of one count of sexual assault based on the evidence of the complainant who described three different events over several months when she was 14, none of which involved intercourse. The offender had no criminal record. A conditional sentence was imposed of two years less a day with three years’ probation. There is no dispute that a conditional sentence cannot be imposed in the case at bar.

[39] Finally in R. v. Ludlow, a decision of Thorburn J. released on June 13, 2008, the 49-year-old offender was found guilty of one count of sexual assault. The complainant was a troubled 15-year-old girl. The sexual assault consisted of touching only. Counsel agreed that the sentence should be no more than 9-12 months and so the issue was whether or not it should be a conditional sentence. A conditional sentence of one year was imposed with two years’ probation.

[40] My conclusion based on these authorities, save for the case from British Columbia, is that the appropriate range of sentence in a case of sexual assault where there is no gratuitous violence is two to four years’ imprisonment.

Principles of Sentencing

[41] The principles of sentencing applicable in this case are set out in ss. 718, 718.1 and 718.2 of the Criminal Code and I am guided by these principles. The most fundamental principles are proportionality; the fitness of the sentence must reflect the gravity of the offence and the degree of responsibility of the offender, and the principle that the sentence imposed should be similar to sentences imposed on similar offenders for sexual assault committed in similar circumstances. In light of the views of our Court of Appeal in Thurairajah, the focus of the sentence in this case given the seriousness of sexual assault is denunciation and deterrence; both specific and general.

Determination of a Fit Sentence

[42] I turn then to what is a fit sentence in this case. I will consider first the mitigating circumstances. I accept Mr. Zekavica’s submission that I should consider the fact that Mr. Stankovic is now employed and pays child support and wants to maintain contact with his daughter.

[43] There are also some factors that would be considered aggravating that are not present in this case. As I have already stated, the complainant was not a particularly young or vulnerable complainant. Although sexual assault is an inherently violent offence, as Ms. MacGillivray acknowledged, there was no gratuitous violence in this case. As Mr. Zekavica pointed out, although the complainant alleged being thrown onto the bed, there was no evidence of her clothing being ripped or that she suffered any physical injuries.

[44] Mr. Stankovic cannot be penalized for insisting on his right to a trial, but he does not get the benefit of a reduced sentence because of a guilty plea. This is a neutral factor. The fact that Mr. Stankovic has expressed no remorse and maintains his innocence of this conviction is also a neutral factor.

[45] Mr. Zekavica also asked that I consider that as a permanent resident Mr. Stankovic will face deportation if the sentence I impose is more than six months long. He argued that if the sentence imposed is in the reformatory range it would “assist” with respect to immigration suggesting that Mr. Stankovic will have another hearing before an immigration panel. He added that this would not be the case if the sentence is two years or more.

[46] The “certainty of deportation” is a factor that can be considered in determining the appropriate sentence in a particular case; see R. v. Edwards, 2015 ONCA 537 at para. 7. However, in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739 (at para. 14) the Supreme Court made it clear that:

[A] sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.

[47] Ms. MacGillivray submitted that currently the law provides that any offence that is prosecuted by indictment where the maximum sentence is ten years or more and the offender receives a sentence of at least six months there is no right of appeal of the deportation order. That is my understanding of the law. The implications of the Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16 were reviewed in the recent Court of Appeal decision of R. v. Nassri, 2015 ONCA 316. By virtue of any sentence in this case of more than six months, Mr. Stankovic will be “inadmissible on grounds of serious criminality” pursuant to s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). This would make him vulnerable to a removal order leading to deportation. He would not be able to appeal any removal order made by the Immigration Division to the Immigration Appeal Division, by virtue of s. 68(1) of the IRPA.

[48] Given the principles in Pham, any immigration concerns would not permit me to impose a sentence outside of what would otherwise be a fit sentence in this case. Clearly a sentence of less than six months is not fit in this case and Mr. Zekavica does not submit that it is. Mr. Zekavica provided no authority for his position that a reformatory sentence would make a difference as opposed to a penitentiary sentence. Having reviewed the provisions of the legislation, I assume that what he was referring to is the fact that on an admissibility hearing before the Immigration Division Mr. Stankovic would have an opportunity to call evidence and my reasons for sentence could be considered by the Immigration Division before making a removal order.

[49] Assuming that I have interpreted Mr. Zekavica’s submissions correctly, i