R. v. Sarker, 2015 ONSC 98
COURT FILE NO.: 835
DATE: 2015/01/ 06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Ovishek Sarker
Appellant
Tim Zuber, for the Crown Attorney/Respondent
Dale Ives, for the Appellant
HEARD: September 24, 2014
On Appeal from the Reasons for Judgment of
The Honourable Mr. Justice W. Rabley on May 7, 2014
RADY J.
Introduction
[1] Mr. Sarker appeals from the sentence imposed by Justice W. Rabley on May 7, 2014. He had pleaded guilty to sexual assault contrary to s. 271 of the Criminal Code. After hearing submissions from counsel (not Mr. Zuber or Ms. Ives), Justice Rabley sentenced Mr. Sarker to nine months’ imprisonment.
[2] Ms. Ives recognizes that an appellate court has limited power to interfere with sentence and deference is owed to the sentencing judge. She limits her argument to two principle points. First, she submits that the sentencing judge fell into what she termed a R. v. Priest[1] or R. v. Q.B [2] error by failing to impose the shortest possible sentence that achieved the twin objectives of general deterrence and denunciation. She submits that a second error was made, the “R. v. Jacko[3] error” because he concluded that a conditional sentence would not be sufficiently denunciatory or deterrent and that only a period of institutional incarceration would do so.
The Facts
[3] In the early morning of January 11, 2013, Mr. Sarker and the complainant, Ms. Z., both 19-year-old Western University students, were out with friends at a downtown bar. The two knew each other because they had lived in the same university residence the year prior. Ms. Z. had been drinking alcohol earlier that evening before she left her apartment and she continued to drink at the bar.
[4] Mr. Sarker, Ms. Z., her roommate and another friend left the bar and took a cab to a McDonalds restaurant. Ms. Z. was intoxicated and began to vomit. The group left McDonald’s and carried Ms. Z. to the apartment she shared with her roommate.
[5] She was placed on a sofa where she slept or passed out. Ms. Z.’s roommate and friend left to buy some food. Mr. Sarker offered to stay with Ms. Z..
[6] After the two had left, Ms. Z. woke up to find Mr. Sarker digitally penetrating her. She told him to stop and unsuccessfully tried to push him away. She passed out again. On their return, Ms. Z.’s roommate and friend discovered Mr. Sarker and Ms. Z. on the floor. The top button on Ms. Z.’s slacks was undone and Mr. Sarker’s fly was open. There was no semen on Ms. Z.’s underwear.
[7] Ms. Z. called police later that morning.
The Sentencing Hearing
[8] On the day scheduled for trial, Mr. Sarker pleaded guilty. The sentencing was adjourned to permit the preparation of a presentence report.
[9] At the hearing, the sentencing judge had the victim impact statement, the presentence report and a letter of support from Mr. Sarker’s father, who was present at the hearing.
[10] The victim impact statement described Mr. Z.’s deep emotional and psychological feelings as a result of the offence, including anxiety, depression, distrust, fear and sleep impairment. Her school work suffered. She had difficulty being open with men and used drugs and alcohol to cope. Her relationships with family and friends were negatively affected.
[11] Mr. Sarker was 19 at the time of the offence. He was a first-time offender. He lives with his parents and sister in Toronto with whom he is close. His presentence report was considered very positive. He was deeply and genuinely remorseful, something that the Crown acknowledged.
[12] Defence counsel at the sentencing sought a suspended sentence and probation. The Crown suggested a custodial sentence of six to nine months was warranted and provided a case book of authorities.
The Sentencing Judge’s Reasons
[13] After reviewing the facts, the sentencing judge accepted that Mr. Sarker was deeply remorseful and that the guilty plea was an important mitigating factor. He noted that he had “seriously considered a conditional sentence in this case because I very much believe it should be utilized where possible, especially for a youthful first offender who has entered a guilty plea.”
[14] However, he pointed out that the emphasis in sentencing for an offence such as this was deterrence and denunciation. He noted that Ms. Z. was defenceless because of her insobriety and Mr. Sarker, while not in a position of trust as it is commonly understood, was to watch over Ms. Z.. He did not stop when Ms. Z. resisted. The sentencing judge said that he was, “…a believer that denunciation and deterrence can be addressed by a conditional sentence” but he concluded that in the circumstances it would not sufficiently deterrent or denunciatory.
[15] He went on to say that “having taken into consideration all of the mitigating factors that have been set out, that the range of sentence ought to be in the range of six to nine months.” Taking into consideration the aggravating factors, he concluded that the sentence should be at the upper end of the range.
Disposition
[16] I see no basis to interfere with the sentencing judge’s decision not to impose a conditional sentence. He clearly considered it. He recognized that in some cases, a conditional sentence can be denunciatory and deterrent. However, he rejected it as a possibility given the circumstances of the offence and the offender. He committed no error in principle.
[17] Assuming without deciding that the range of sentence should be expressed without regard to mitigating or aggravating factors, I see no error in the sentencing judge’s conclusion that a sentence at the upper end of the range was appropriate. Given my conclusion, it is not necessary to address the submission that the range is in fact four to nine months.
[18] For these reasons, the appeal is dismissed.
“Justice H. A. Rady”
Justice H. A. Rady
Released: January 6, 2014
CITATION: R. v. Sarker, 2015 ONSC 98
COURT FILE NO.: 835
DATE: 2015/01/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Ovishek Sarker
Appellant
REASONS FOR JUDGMENT
ON APPEAL
Rady J.
Released: January 6, 2015
[1] 1996 1381 (ON CA), [1996] O.J. No.3369 (C.A.)
[2] 2003 4187 (ON CA), [2003] O.J. No. 354 (C.A.)
[3] 2010 ONCA 452