R. v. Carlson, 2016 ONSC 1219
CITATION: R. v. Carlson, 2016 ONSC 1219
COURT FILE NO.: CR/14/40000/2600000
DATE: 2016-02-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
SHAUN CARLSON
Counsel:
A. Stanford, for the Crown
A. Neil Singh, for Mr. Carlson
HEARD: January 18, 2016
M. Forestell J.
REASONS FOR SENTENCING
Offences
[1] Mr. Carlson was found guilty of several offences: kidnapping, forcible confinement, sexual assault, robbery, assault, and two counts of theft under $5,000. On January 18, 2016 I heard submissions on sentencing and reserved my decision on sentencing until today.
Circumstances of the Offences
[2] The circumstances of the offences are set out in detail in my reasons for judgment reported at 2015 ONSC 5487. I will summarize them briefly for convenience. In the early morning hours of May 8, 2013, Shaun Carlson kidnapped the victim in this matter from a Country Style parking lot where she was drinking a coffee and waiting to go to work at a nearby business. Mr. Carlson got into her car and forced her to drive him to a residential area. He took money from her purse. He told the victim that it was his birthday and they were going to have sex. He tried to push her into the backseat of the car. He then pulled her out of the car and pushed her into the back seat. The victim said that they could not have sex on such a main street. Mr. Carlson drove to a nearby park and forced the victim to perform oral sex. He then attempted anal sex and finally penetrated her vaginally. After the sexual assault Mr. Carlson used the victim’s debit card to buy coffee and food. He later withdrew $20 from her bank account and took a set of coins from the glove compartment of the car. Mr. Carlson left the car and let the victim leave. He called her throughout the day after the offence.
Victim Impact
[3] The victim in this case was 60 years-old at the time of the offences. She had health problems that affected her mobility. She used a walker. Her mobility issues left her particularly vulnerable to Mr. Carlson. The Victim Impact Statement filed as Exhibit 2 on sentencing indicates that the victim continues to be affected by these offences. She has suffered from depression and sleeplessness. She is nervous to be out by herself.
Positions of the Parties
[4] The Crown submits that a sentence of 9 years’ imprisonment should be imposed on Mr. Carlson in light of the seriousness of the offences and the criminal record of Mr. Carlson.
[5] Counsel for Mr. Carlson submits that I should impose a sentence of 7 to 8 years’ imprisonment taking into account Mr. Carlson’s youth, his family support and his unfortunate background.
Circumstances of Mr. Carlson
[6] Mr. Carlson is 34 years-old. He was 32 years-old at the time of the offences. He has three children aged 3, 7 and 10 years. His children do not live with him. At the time of the offences he lived at home with his mother and sister.
[7] Mr. Carlson went as far as grade 11 in school before dropping out. He later finished his high school diploma when he was serving a sentence.
[8] Counsel for Mr. Carlson informed the Court that Mr. Carlson was sexually abused as a child. He has struggled with drug addiction, but had stopped using drugs for 18 months to 2 years before his arrest. Mr. Carlson suffered two head injuries and takes medication to ward off seizures. Three months before his arrest his fiancée died of a drug overdose. His counsel informed the Court that the death of his fiancée had a significant impact on Mr. Carlson.
[9] Mr. Carlson has a criminal record that begins in 1994 and continues to 2012 with 34 entries. He has three prior convictions for robbery and a prior conviction for aggravated assault.
The appropriate sentence to be imposed given the circumstances of this offender and this offence
[10] In considering the appropriate sentence to be imposed on Mr. Carlson I have considered the general purposes, principles and objectives of sentencing as set out in the Criminal Code, R.S.C., 1985, c. C-46. The fundamental principle of sentencing set out in s. 718.1 of the Code requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[11] Section 718 of the Criminal Code identifies the objectives of sentencing, including denunciation, specific and general deterrence, separation of the offender from society and the rehabilitation of the offender.
[12] I have also considered s. 718.2 of the Code which requires that I take into account other principles, including that a sentence may be increased or decreased depending upon the presence of any relevant aggravating or mitigating circumstances relating to the offence or the offender.
[13] There are several aggravating factors in this case. This was a prolonged attack on a vulnerable victim. Even after the offences, Mr. Carlson continued to telephone the victim. There has been a significant impact on the victim.
[14] Mitigating factors are that Mr. Carlson has a supportive family and an unfortunate background, including a history of drug addiction and sexual victimization.
[15] In sentencing for violent sexual assaults, the predominant sentencing objectives are denunciation, deterrence and the protection of the public. In R. v. Kavanagh, 2009 ONCA 759, the Court of Appeal reduced an 11-year sentence for sexual assault with a weapon, unlawful confinement and robbery to 10 years. In that case the offender threatened the vulnerable victim with a knife, but the circumstances were otherwise similar to the case before me. In R. v. Assing, [2008] O.J. No. 4527 A. O’Marra J. imposed a nine-year sentence on a 33 year-old first offender for sexual assault with a weapon, robbery and forcible confinement.
[16] Mr. Carlson is not a first offender. He has a long record that includes convictions for violent offences. His prospects for rehabilitation seem bleak. The circumstances of these offences and this offender call for a significant penitentiary sentence. I have concluded that a sentence of 8 years’ imprisonment before credit for pre-trial custody is the appropriate sentence.
[17] Mr. Carlson has spent 1,024 days in pre-trial custody. At 1.5 to 1, he is entitled to 1,536 days’ (or 4 years and 76 days) credit for the time spent in pre-trial custody.
Counts to be Conditionally Stayed in accordance with R. v. Kienapple
[18] Counsel agree that Count 2, forcible confinement and Counts 7 and 8, theft under $5,000, should be stayed in accordance with the principles in R. v. Kienapple, [1975] 1 S.C.R. 729.
[19] Counsel for Mr. Carlson submits that Count 5 should also be conditionally stayed because it is subsumed in the sexual assault count.
[20] I do not agree that the assault is subsumed in the sexual assault. The assault was factually separate from the sexual assault. Mr. Carlson attempted to push the victim into the backseat of the car from the front seat. He then pulled her out of the car and pushed her into the backseat. Mr. Carlson then drove for 15 to 20 minutes before arriving at the park where he committed the sexual assault. There is neither a factual nor a legal nexus between the charges.
Conclusion
[21] I therefore enter a conditional stay on counts 2, 7 and 8. On the remaining counts I impose the following sentences:
- On Count 1: kidnapping, the sentence is 3 years’ imprisonment;
- On Count 3: sexual assault, the sentence is 8 years less 1,536 days’ (or 4 years and 76 days) credit for pre-trial custody, leaving a sentence to be served of 3 years and 289 days, concurrent;
- On Count 4: robbery, the sentence is 12 months concurrent; and,
- On Count 5: assault, the sentence is 6 months concurrent.
Ancillary orders
[22] I make a firearms and weapons prohibition under s. 109 for life. Sexual assault, kidnapping and robbery are primary designated offences under the Criminal Code. I therefore make the order that Mr. Carlson is required to provide such number of samples of bodily substances that are reasonably required for the purpose of forensic DNA analysis. Further, there will be an order under ss. 490.012 and 490.013(2)(b) of the Criminal Code that Mr. Carlson must comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 for a period of 20 years.
M. Forestell J.
Released: February 25, 2016
CITATION: R. v. Carlson, 2016 ONSC 1219
COURT FILE NO.: CR/14/40000/2600000
DATE: 20160225
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
SHAUN CARLSON
REASONS FOR SENTENCING
M. Forestell J.
Released: February 25, 2016