R. v. Graham, 2016 ONSC 7239
COURT FILE NO.: 13-SA5066
DATE: 2016/11/23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
JUSTIN GRAHAM
Accused
Anne Fitzpatrick, for the Crown
Alan Brass, for the Accused
HEARD AT OTTAWA: November 18, 2016
REASONs on sentence
Phillips j.
[1] After a four week trial, Justin Graham was convicted by a jury of sexual assault causing bodily harm, committed against a female acquaintance at a house party on July 27, 2013.
[2] The Court now has the difficult task of sentencing a young man without any criminal record for having done a very bad act.
Facts
[3] I find the following facts to have been accepted by the jury as having been proved by the Crown beyond a reasonable doubt:
(a) In July 2013, A.K. was a 22-year-old line cook at a local pub. She grew up in Ottawa and attended […] 's high school[…], as had Mr. Graham a few years ahead of her. On July 27, 2013 a group of […]’s alumni gathered at Graham Wyatt’s house for a party.
(b) On July 27, 2013, A.K. and Justin Graham knew each other as high school acquaintances. Essentially, they knew each other through mutual friends. They had never hung out together alone.
(c) A.K. brought a 26 ounce bottle of Polar Ice vodka to the party. Periodically, throughout the evening she mixed herself drinks of vodka and Perrier. She drank this mixture throughout the night in an unknown quantity. She did not ingest any drugs.
(d) Toward the end of the night, Mr. Graham, who had brought and had been drinking Bacardi 151, offered A.K. some of his alcohol. She had 3 to 4 shots of this rum, drinking them with Justin Graham. Bacardi 151 is an extraordinarily stiff drink.
(e) A.K. became highly intoxicated. Her speech was very slurred. She was very off-balance. She had trouble with simple tasks like walking, standing up, pouring her own drinks and lighting her own cigarettes. She was 2 to 3 times more drunk than everybody else at the party.
(f) Justin Graham had been hitting on A.K. throughout the night. While she may have been somewhat flirtatious, A.K. rebuffed all his advances. Toward the end of the evening, he proposed “just let me sleep beside you”. A.K. declined his proposals, pointing out that he had a wife and child. Mr. Graham appeared to accept her opposition to his attentions in that he just dropped it.
(g) A group went out to the front porch to smoke cigarettes. The group included Mr. Wyatt, A.K. and Justin Graham. Mr. Wyatt and Mr. Graham ended up together off to the side. Justin Graham said to Mr. Wyatt, referring to A.K., “I’m going to fuck her”. Mr. Wyatt responded: “Nobody’s going to do that tonight”. He responded that way because of A.K.’s obvious level of intoxication.
(h) While the group was out on the front porch smoking, A.K. apparently realized she had become too intoxicated to remain at the party. She asked Mr. Wyatt if he could set her up with a “drunk bed”. A “drunk bed” is a term they used to refer to a place to pass out. Mr. Wyatt left the porch to go prepare a “drunk bed” for A.K.
(i) Justin Graham ended up alone with A.K. He soon proposed that she accompany him to the backyard, claiming to have a gift for her back there.
(j) Mr. Graham walked A.K. to the backyard. He basically had to hold her up in doing so. He told her the present was in the shed. She leaned toward the shed but saw that the door was locked. Mr. Graham forcibly pushed her to the ground. He pinned her down, grabbing the back of her neck. She was on her shins and forearms. He took off her shorts. He pulled a tampon from her vagina and threw it in the grass.
(k) A.K. tried to fight back. Mr. Graham kept hitting her and manhandled her as necessary to overcome her resistance. Mr. Graham unzipped his pants and penetrated A.K. vaginally with his erect penis. He then proceeded to penetrate her anally with his erect penis. Thereafter, he would switch back and forth between her vagina and anus.
(l) The force being applied to A.K. was such that her head kept banging against the shed. As well, Mr. Graham was hitting her in various places while continuing to force intercourse upon her.
(m) While holding her down, hitting her, and forcing both vaginal and anal intercourse upon her, Mr. Graham said things like “oh you like that you fucking slut” and “you like it in the ass you fucking whore”.
(n) Somehow, A.K. ended up on her back in the grass next to the shed with Justin Graham on top of her continuing to penetrate her with his penis. From what others could see from inside the house, she was basically limp and only semi-conscious. Accordingly, those inside went outside to put an end to what Justin Graham was doing.
(o) Graham Wyatt and some others then helped A.K. up and into the house. To do so, they had to help her walk and negotiate the stairs. They put her to bed in Mr. Wyatt’s parents’ bedroom. Justin Graham was told to go sleep in the basement.
(p) Soon thereafter, it was noticed that Mr. Graham had come up from the basement and had in fact got into bed with A.K. (who was asleep). He was ejected from her bedroom and told again to go sleep downstairs. About 45 minutes later, he again came up from the basement and got into bed with her. Again, the other young men at the party ejected him from her room and insisted he sleep in the basement. In fact, Graham Wyatt thereafter slept on the floor in the hallway outside her bedroom as a sort of guard.
(q) A.K. sustained injuries to her genitalia. Both her vaginal and anal area hurt a lot for days afterward. Indeed, medical examination the day after the event revealed a 6 mm linear abrasion in the area between her urethra and clitoris. Furthermore, a skin tear measuring 8 mm x 8 mm was found on her posterior fourchette, the band of tissue at the bottom of the vaginal opening where the labia join. The skin tear would have been caused by a shearing force.
(r) In addition, A.K. sustained injuries to other parts of her body. Her breasts were injured, as was her head. As well, the following was observed and photographed:
bruise to right temple;
bruise under right eye;
bruising to lips;
bruising to left armpit/ upper arm;
bruising to left elbow;
bruising/ scratches to right forearm;
bruising to left hand, index finger;
light bruising to back of right hand;
red marks on right and left hips;
dark bruise on upper right buttocks;
two small scratches on upper back;
bruising on right knee/ shin;
bruising on right ankle;
bruising on left knee/ shin; and
bruising on left ankle.
(s) Justin Graham’s sperm was found in both A.K.’s vagina and rectum.
(t) Finally, before leaving the facts, I will note that the jury obviously rejected Justin Graham’s evidence as incapable of leaving reasonable doubt. He testified that A.K. had led him to the backyard by the hand, dropped to her knees to perform fellatio and then pulled him down on top of her and immediately tried to insert his penis into her vagina. Her efforts in that regard were thwarted when he lost his erection as he did not want to have intercourse. He got up. She responded by resuming fellatio. She then pulled him down again and tried again to get his penis into her vagina but again he lost his erection as he did not want to have sex. The Defence theory was that his sperm ended up in her vagina and rectum without any intercourse having occurred. It was proposed that Mr. Graham had produced pre-ejaculate fluid containing sperm that had simply leaked into her body after being deposited on her during her failed attempts to accomplish intercourse. Her injuries were said to be the result of some kind of general intoxicated misadventure unconnected to anything Mr. Graham had done.
Positions of the Parties
[4] The Defence submits that a sentence of at most 12 to 18 months would be appropriate. In fact, Defence urges a sentence of less than 12 months due to what is said to be Mr. Graham’s overwhelmingly positive character.
[5] The Crown argues for a sentence of four years.
Legal Principles
[6] This case involves nothing less than the obligation of men to act in a way that respects the personal autonomy, security of the person and dignity interests of women. An exemplary sentence is appropriate to clearly communicate the depth of the wrongdoing. This is such a serious crime of personal violence that the usual rule that sentences imposed on young first offenders should stress individual deterrence and rehabilitation must give way to the objectives of denunciation and general deterrence (see: R. v. Ijam (2007) 2007 ONCA 597, 87 O.R. (3d) 81 at 93-94 (C.A.); R. v. Wells (2000) 2000 SCC 10, 141 C.C.C. (3d) 368 a para.26 (S.C.C.).
[7] Having said that, because Mr. Graham is relatively young and without criminal antecedents, rehabilitation should also form a part of any sentencing analysis. As well, for the same reasons, it is important that the sentence not be crushing. Mr. Graham will have a lot of years left after completing this sentence. It is important that he return to the community in a position to make a pro-social, positive contribution. Accordingly, the Court must operate with restraint. The message that needs to be sent need not be overstated. In this sense, I take guidance from s. 718.2(d) of the Criminal Code and R. v. Priest 1996 1381 (ON CA), [1996] O.J. No.3369 (C.A.).
[8] Of course no two cases are the same and sentencing must be conducted on a case-by-case basis. Nonetheless, I discern from the jurisprudence that the sentencing range for this sort of sexual assault causing bodily harm where full penetration is involved is between 2 to 4 years in the penitentiary. I deem the case at bar to be the sort of scenario the Ontario Court of Appeal was speaking to in R. v. Thurairajah 2008 ONCA 91, [2008] O.J. No.460 at para 48.
Mitigating Factors
[9] Justin Graham is 26 years old. As mentioned, he has no criminal record of any kind. He lives in a stable common-law relationship and co-parents a four-year-old son who has a significant disability. Mr. Graham is described as a loving and supportive father.
[10] Mr. Graham enjoys considerable family support. His common-law spouse has stood by him throughout, despite the fact that the events of July 26, 2013 were at least an incident of infidelity on his part. In addition, Mr. Graham’s mother attended each day of the trial, and wrote to the Court very eloquently on his behalf. It is fair to say that he has a supportive network of impressive friends and family.
[11] Mr. Graham has a sound work ethic and maintains steady employment in the construction field.
[12] Mr. Graham elected to undergo a sexual behaviors assessment. The assessor, Dr. Gray, opines that the risk of Mr. Graham reoffending is low to moderate. Moreover, Dr. Gray concludes that Mr. Graham does not suffer from any paraphilia or other mental disorders that would expose the community to increased risk of harm. His rehabilitative needs, therefore, are modest and do not require lengthy custody to address.
[13] Mr. Graham was under the influence of alcohol at the material time. Alcohol is notoriously disinhibiting and judgment clouding. I cannot help but think that none of this would have happened without it.
[14] I have reviewed multiple character references submitted on Mr. Graham’s behalf. Those letters, written by those who know him, attest to his good character and many positive qualities. However, the weight to be assigned to them is diminished by the fact that Mr. Graham to this day maintains that he had only consensual non-intercourse sex with A.K. and is therefore wrongfully convicted. He has asserted his innocence to everyone in his life. As a result, the letters from his circle are like dispatches from a parallel universe where he has not been found to have done anything wrong. I discount their impact. Of course any offender can maintain his innocence post-trial. However, the mitigation effect on sentencing of character reference letters written on behalf of a man who has conveyed to all that he is innocent is reduced.
[15] I likewise note that Mr. Graham’s insistence that he is wrongfully convicted prevented him from expressing any remorse during the sentencing hearing. Again, while maintenance of innocence is not an aggravating factor, it deprives an offender of the mitigation that might have been his had he expressed remorse and insight into his wrongdoing.
[16] Finally, before leaving the subject of mitigation I will note that this is a conviction after trial. While no one should ever be punished for putting the Crown to the discharge of its onus, it is equally true that the mitigation that could have been applicable after a guilty plea is not now Mr. Graham’s to enjoy. Again, while not an aggravating factor, conviction after trial eliminates a potential mitigating factor from the mix.
Aggravating Factors
[17] I would not describe this sexual assault as a breach of trust as contemplated by section 718.2(a)(iii). Nonetheless, I find it aggravating that Mr. Graham sexually assaulted A.K. in the context that he did. A.K. should have been able to trust that she would be looked out for at a house filled with people she knew. She should have been able to expect that those at the party would take care of her should alcohol overcome her as it did. That is especially true with respect to the powerful Bacardi 151 that Mr. Graham was dispensing. The bottom line is that A.K. accepted drinks from Mr. Graham and ultimately followed him into the backyard because she trusted him. He knew that and capitalized upon it.
[18] Mr. Graham’s conduct shows a woeful disregard for A.K.’s right to have any say about being used for sex. He asked her no questions. He made no moves. He essentially just tackled her and immediately began to do whatever he wanted. The fact that he acted without even slightly turning his mind to her position about things speaks volumes. It would appear that his mind was settled about what he was going to do as far back as his statement to Graham Wyatt: “I’m going to fuck her”.
[19] Mr. Graham’s conduct involved a significant level of violence. He rained multiple blows down upon her over most of the transaction (that is, until she passed out as observed by those inside). He was violent and rough in all respects. The injuries sustained by A.K. make that clear in a most personal way. He would have known he was hurting her but did not care enough to stop. As he was enjoying himself, her head was banging against the shed door hard enough to leave bumps.
[20] In a disturbingly revealing way, Mr. Graham’s vulgar utterances during the transaction were misogynistic and demeaning.
[21] In my view, Mr. Graham’s decision to force anal intercourse adds an extra aggravating feature. When unwanted, that act is particularly degrading.
[22] The semen found in A.K.’s vagina and rectum demonstrates that the intercourse was unprotected. As such, Mr. Graham exposed A.K. to the stress of worrying about pregnancy and/or STD.
[23] The location chosen by Mr. Graham is also aggravating. A.K. was subjected to unwanted intercourse in full view of those inside the party. Mr. Graham would have known that he had chosen a spot just outside a large window.
[24] The victim impact statement prepared by A.K. makes clear that this event had a profound effect which endures to this day. She describes having had a piece of herself taken away. The court process has left her feeling “crucified, humiliated and ridiculed”. For a time, she used drugs as a coping mechanism. She no longer trusts. She is changed.
Sentence
[25] Justin Graham saw an opportunity and helped himself to the drunkest woman at the party. His actions made clear that he did not at all care about her personal autonomy or dignity. He was going to do what he wanted regardless of whatever she might have had to say about it. He was callous, violent, demeaning and cruel. His actions resulted in serious and lasting impact upon his victim, both physically and psychologically.
[26] In light of the degree of violence used and the nature of the assault, I would put this case at the high end of the range. Nonetheless, in recognition of the offender’s circumstances along with the principle of restraint enunciated in R. v. Priest, supra, and after balancing the aggravating factors against the mitigating ones, I conclude that an appropriate sentence for Mr. Graham at this time on these facts is one of three years in the penitentiary.
[27] In addition, Mr. Graham shall provide a sample of his DNA for inclusion into the national DNA databank. He is also to be subject to a SOIRA order for 15 years. Given the violence exhibited in this offense, I make a section 109 weapons prohibition for 10 years. Finally, since Mr. Graham is employed, he shall pay the applicable victim fine surcharge within 30 days.
[28] Pursuant to the principles enunciated in R. v. Kienapple, a stay of proceedings is entered with respect to the section 271 sexual assault simpliciter finding of guilt returned by the jury.
[29] Mr. Graham, please stand. I sentence you to three years in the penitentiary. Before you leave I want you to know this: that story you are sticking to is ridiculous. No one in their right mind would believe it and I am not surprised in the least that the jury rejected it as incapable of leaving even a reasonable doubt. The sooner you accept what you did the sooner you will be able to work on yourself such as to ensure that you never come back before the Court. This state of denial that you are in will obstruct your rehabilitation. I urge you, once you get to your institution, to come clean with those who are there to offer you help. You and I both know that your semen did not leak into where it ended up.
Justice Kevin B. Phillips
Released: November 23, 2016
CITATION: R. v. Graham, 2016 ONSC 7239
COURT FILE NO.: 13-SA5066
DATE: 2016/11/23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
JUSTIN GRAHAM
Accused
reasons on sentence
Phillips J.
Released: November 23, 2016