Court File and Parties
Court File No.: 14-5022 Date: 2016/06/23 Ontario Superior Court of Justice
Between: Her Majesty The Queen – and – Floyd Quincey Herbert, Accused
Counsel: John Semenoff, for the Crown Israel Gencher, for the Accused
Heard: May 9, 2016
Reasons for Sentence
R. Smith J.
[1] The accused, Floyd Herbert (“Mr. Herbert”), was found guilty of eight counts, namely sexual assault, assault, threatening bodily harm, knowingly uttering a threat to kill an animal, forcible entry, and three counts of failing to abide by conditions of recognizance.
A. Circumstances of the Offences
[2] Mr. Herbert grabbed the complainant by the throat in the elevator of her apartment building; pushed her against the wall; threatened to kill her dog; and then walked down the hall and forced his way into her apartment, where he consumed some crack cocaine, and later that evening he sexually assaulted the complainant in her own apartment.
B. Offender’s Circumstances
[3] Mr. Herbert is now 44 years of age, and is separated from his wife.
[4] Mr. Herbert has been a cocaine addict for a lengthy period of time. After he reached age 29 to 30 his life went downhill due to his consumption of cocaine.
[5] He was born in Halifax and his father was an African-Canadian and his mother was Caucasian. He grew up in a poor economically depressed neighborhood. His father abandoned his family early in their life.
[6] His mother passed away shortly before the offences occurred.
[7] He has one child.
[8] The offender has an extensive criminal record which is some 3 pages long.
C. Positions of the Crown and Defence
[9] The Crown seeks a sentence of four and a half years on the conviction for sexual assault (Count #2); one year consecutive on the conviction for assault (Count #3), one year concurrent on the convictions for uttering threats (Counts #4 and 5); six months consecutive for the forcible entry (Count #6); 9 months consecutive on the breaches of recognizance (Counts #7, #8 and #10); for a total of six years and nine months.
[10] The Defence submits that a sentence in the range of three to four years in total would be appropriate with credit for one year and nine months on a 1.5 to 1 basis for the time served before his sentence.
D. Mitigating Factors
[11] The following are mitigating factors:
- He offers the explanation of being a cocaine addict and stated that his life was out of control at the time the offences occurred;
- The offender expressed remorse for his actions and stated that he realizes that he has messed up his life and is now committed to living a good life;
- The offender has attended a number of education courses while in prison and the certificates were filed as exhibits. The accused is above average intelligence and is showing signs that there is hope for his rehabilitation if he follows through on his commitments.
E. Aggravating Factors
[12] The following are aggravating factors:
- The accused has an extensive criminal record starting in 2001 to 2014. His criminal record involves convictions for fraud, failing to comply with undertakings, robbery, assault, numerous convictions for failing to comply with undertakings or conditions of recognizance, and a conviction for very serious charge on May 30, 2014 for assault with a weapon and uttering threats;
- The 2014 conviction involved threatening a woman with a knife at the Honest Lawyers’ Bar in downtown Ottawa;
- The accused was released on conditions of recognizance at the time he committed these offences and three of the offences involved breaching the terms of this recognizance;
- The conviction for forced entry and of his violent and degrading sexual assault of the complainant, who is a 62 year old tenant in the same apartment building, occurred in her own home. This was a violation of her feeling safe in her own home.
F. Principles of Sentencing
[13] The Principles of Sentencing are set out in section 718 of the Criminal Code, R.S.C., 1985, c. C-46 (the “Criminal Code”). The applicable principles in this case are specific and general deterrence, as well as denunciation of the offender’s conduct. Rehabilitation is still a principle due to the offender’s stated intentions of taking responsibility for his life. However, rehabilitation is reduced given that he is 44 years of age and he has a lengthy criminal record.
G. Case Law
[14] The Crown relies on Court of Appeal decision in R. v. C. (R.), [2001], O.J. No 4486. In that case RC was convicted of sexual assault and was sentenced to 7 years in prison. He sexually assaulted his girlfriend several times while confining her to her own apartment. A sentence of six years was upheld by the Ontario Court of Appeal.
[15] The case of R. v. Richards, 2010 ONCA 728 involved two assaults with a weapon, a shoe and forcible confinement and two counts of failing to comply with a recognizance. The Court of Appeal reduced the judge’s sentence from seven and a half years to a global sentence of five years less a reduction for pre-trial custody. The Court held that the sentence of seven and a half years failed to respect the principles of totality.
[16] In the R. v. Corbiere, 2012 ONSC 2405, [2012], O.J. No. 2164, the accused broke into the victim’s home and sexually assaulted by forcing her to commit fellatio and engaged in vaginal intercourse, as well as stealing money and jewelry. The accused was 62 years of age and pleaded guilty. He was an Aboriginal offender. The accused was sentenced to nine years in prison as the offences were serious and constituted a callous attack on a vulnerable victim. He was genuinely remorseful and wished to turn his life around which is similar to the facts before me. In this case, the complainant was a 62 year old woman who was assaulted in her apartment building.
[17] The Defence relies on the decision of R. v. Warren, [1999], O.J. No. 4591 where the Court of Appeal upheld a sentence of five years, four years for the sexual assault and one year consecutive for breach of recognizance.
[18] In R. v. Quesnelle, 2010 ONSC 3713, Thorburn J. the offender was sentenced to three years for the sexual assault against T.R. and three and a half years for the sexual assault against L.I., and six months on each count of assault. The sentences for sexual assault were to be served consecutively and the assault sentences were to be served concurrently. Some violence was involved as the offender had punched both women in the face or on the jaw and forced them to engage in intercourse.
[19] The Defence also relies on the case of R. v. S.S.B., 2015 ONSC 2649, [2015], O.J. No. 2649 where the accused was sentenced to four years in jail for aggravated sexual assault, four years concurrent for two counts of sexual assault with a weapon, and six months concurrent for assault and threatening, and one year for assault causing bodily harm.
[20] None of the above cases are exactly on point. In this case the accused has an extensive criminal record, albeit mostly related to his addiction to cocaine there is a recent serious conviction for assault with a knife and threatening. He sexually assaulted a 62 year old woman in her apartment in order to humiliate her. This offence is more serious because it was committed in her home.
H. Sentence and Reasons
[21] Considering all of the above cases and the factors, I sentence the accused to three and a half years in prison on the sexual assault (Count #2); six months consecutive for the assault, (Count #3); one year concurrent on uttering threats, (Counts #4 and 5); six months consecutive on forcible entry, (Count #6); and six months consecutive on the breaches of recognizance (Counts #7, #8 and #10); for a total of five (5) years in prison.
[22] In addition the accused will be given credit for two years on a 1.5 to 1 basis, to June 23, 2016, leaving the balance of three years to serve in prison.
[23] In addition there will be a lifetime firearms prohibition order under s. 109 of the Criminal Code, and a DNA order under s. 487.05(1) of the Criminal Code and an order requiring the offender to comply with SOIRA for a period of 20 years.
Justice Robert J. Smith
Released orally: June 23, 2016
