R v. RS, 2016 ONSC 1290

COURT FILE NO.: CR-14-50000652

DATE: 20160225

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Regina v. RS

BEFORE: E.M. Morgan J.

COUNSEL: Aaron Del Rizzo, for the Crown

Bally Hundal, for the Defendant

HEARD: January 25, 2016, sentencing hearing

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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.

SENTENCING

[1] After a five-day trial before me without a jury, the Defendant was convicted on December 3, 2015 of sexual assault contrary to section 271(a) of the Criminal Code and unlawful confinement contrary to section 279(2)(a) of the Criminal Code. The convictions relate to events that occurred in the early morning hours of November 16, 2013, when the Defendant confined in his apartment and violently raped a young woman whom he had just met the previous evening.

[2] The Defendant is a 50-year-old man. He is 6 feet tall and weighs 190 lbs. The Complainant is a 23-year-old woman. She is 5 feet tall and weighs 95 lbs.

[3] The Defendant was visiting his friend Cosmo when the Complainant, who is a friend of Cosmo’s daughter, stopped by around midnight to ask her friend for some cigarettes. She had drunk a few beers, and told Cosmo and the Defendant that she was on her way to a club downtown. Cosmo’s daughter was not home, but Cosmo drove her to a convenience store for cigarettes. When they returned to Cosmo’s house, the Defendant said that he was about to go home and offered her a ride downtown. She unfortunately accepted the offer. Instead of driving her to where she wanted to go, the Defendant drove her to his apartment and would not let her leave for several hours.

[4] The disparity in size between the Defendant and the Complainant allowed him to physically overpower her and to impose himself on her aggressively and without her consent. During the course of the one night, the Defendant forced the Complainant to have intercourse with him in which he used a plastic bread bag as a makeshift condom.

[5] The plastic bag and the violent nature of the sex act caused the Complainant to suffer substantial vaginal bleeding and physical trauma. She was only able to escape the Defendant’s apartment at about 5:00 a.m. Seizing a moment when the Defendant’s attention was momentarily diverted, she grabbed the phone and made a desperate 911 call before he came back into the room and forced her to hang up. Since it was a land line, the police were able to determine where she was located and shortly thereafter came to the door. When the police entered the apartment, the Complainant ran out and huddled in fear in the hallway with one officer while a second officer arrested the Defendant and took him into custody.

[6] The Complainant did not provide a victim impact statement for the sentencing hearing. But in my view she didn’t need one. Instead, she wrote a short note to Crown counsel explaining that she was so traumatized by the Defendant that she does not want to relive her memory of him or of the incident by describing her feelings once again.

[7] I understand how she must feel. Having heard the Complainant testify at trial, I do not need to read a victim impact statement to know that she suffered tremendously, and doubtless continues to suffer, due to the violent and degrading acts of the Defendant. She impressed me as a naïve but likable young woman, who is not only physically petite but emotionally sensitive. I have no doubt that she was shocked, both physically and psychically, by the offense perpetrated upon her by the Defendant.

[8] A pre-sentence report was prepared in respect of the Defendant. The author of the report states that, “This writer is not certain as to whether the subject has remorse for his actions or whether he takes responsibility for his actions.” The report indicates that the Defendant was not willing to talk about the offense, and then tellingly goes on to note, “He was not able to express any empathy for the victim.” This observation accords with the callous nature of the offense itself.

[9] As I said in my judgment of December 3, 2015, the Defendant seemed oblivious of the suffering he made the Complainant endure. During the night in question, he responded to her entreaties to leave the apartment by repeating the bland statement, “No, you’re staying here with me tonight.” The Defendant was entirely focused on himself, and throughout the ordeal barely recognized the Complainant as another human being. He treated her as if he had captured a prize that was his to use for the night while his wife and children were away on a trip. It appears from the pre-sentence report that in this respect his state of mind has not changed.

[10] This case is reminiscent of R v Thurairajah, 2008 ONCA 91, where the defendant forced vaginal intercourse on a vulnerable young woman. While in that case the victim was underage and in the present case the Complainant is an adult, the exploitation of the victim’s essential vulnerability was similar. The Court of Appeal indicated that there is a necessity for a custodial sentence, and that these kinds of cases cry out for sentences where individuals get properly denounced for their acts.

[11] Likewise, in R v Rand, 2012 ONCA 731, the Court of Appeal observed that “the appellant took advantage of a vulnerable intoxicated young woman.” Although that case involved both anal and vaginal intercourse while the present case involved only vaginal intercourse, the Defendant’s use of the bread bag here added a tortuous and degrading element that must be taken into account. In Rand, the court imposed a 4-year sentence as the appropriate measure, taking into account the societal need for denunciation of this kind of conduct.

[12] I acknowledge, of course, that, “[t]he determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence”: R v M (C), 1996 CanLII 230 (SCC), [1996] 1 SCR 500, at 566. In this respect, it is important to look not only at the impact of the offense on the victim, but the circumstances of the Defendant in order to understand what drove him to commit the offense and what impact it will have on him and his family.

[13] I note that the Defendant is a family man in a long-term, stable marriage. He does, however, have a prior conviction for domestic assault some 10 years ago. He has two children, ages 15 and 4. He has been steadily employed as a truck driver, and is the primary income provider for his family. Although his spouse does some income-earning work, it is generally his salary that supports the mortgage payments on their condominium. There is no doubt that his conviction has had an impact on his relationships, and his incarceration and consequent lack of income will have detrimental economic consequences for his family.

[14] That said, there is nothing in the Defendant’s background that explains the kind of assault that he perpetrated on the Complainant. He by all accounts has a good relationship with his spouse, who continues to be supportive of him. His domestic assault conviction was a decade ago and has not been repeated.

[15] The Defendant has apparently never had mental health problems. He occasionally drinks alcohol – including during the night at issue here – but has no history of drinking to excess. He has maintained full-time, steady employment for the 20 years since coming to Canada. While I commend his industriousness and financial responsibility, there is no background of hardship or anything else which might help explain his conduct or put it into context. It is as if for him the sexual assault on the Complainant while his wife was out of town was just an ordinary part of middle class life.

[16] Counsel for the Crown states, and counsel for the defense agrees, that I have broad discretion in sentencing for this offense.

[17] The Crown suggests a sentence of 3½ years for the sexual assault and a consecutive 6 months for the forcible confinement. Crown counsel submits that this is appropriate given the violence of the assault, the callous and brutal behavior engaged in by the Defendant, and the prior violence in his record.

[18] Defense counsel suggests a sentence of 18 months to 3 years for the sexual assault and a concurrent 0-3 months for the forcible confinement. He submits that this is appropriate given that the Defendant is a family man and an economically productive citizen, and that while the sexual assault may have had some aggravating factors the Complainant suffered no lasting injury beyond the sex act itself.

[19] In my view, the Defendant’s abhorrent conduct struck at deeply held values of bodily integrity and human dignity. The importance of these values in our society gives rise to a need to ensure that the kind of abuse committed here is deterred. My colleague Thorburn J. stated the principle succinctly in R v Quesnelle, 2010 ONSC 3713, at para 21:

Denunciation is important to reflect society’s condemnation of certain conduct by punishing those who disobey society’s basic values. Deterrence is important to deter the offender in question but also to deter others who commit such offences. In cases that involve violent acts of sexual assault, denunciation and deterrence are primary considerations.

[20] I hereby sentence the Defendant to a total of 4 years, composed of 3½ years for sexual assault and 6 months for unlawful confinement, to be served consecutively.

[21] There shall be a DNA order pursuant to s. 487.051(1) of the Criminal Code, and a weapons prohibition order for 10 years pursuant to s. 109 of the Criminal Code. In addition, there shall be an order under s. 40-.013(10(b) of the Sex Offender Information Registration Act for a period of 20 years.

Morgan J.

Date: February 25, 2016