Her Majesty the Queen v. David Hodgson, 2016 ONSC 8034

CITATION: R. v. Hodgson, 2016 ONSC 8034

COURT FILE NO: 15-10000105-0000

DATE: 20161220

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Cara Sweeny for the Crown

• and -

DAVID HODGSON

Bradley Funston for David Hodgson

HEARD: October 27, November 22, 2016

REASONS FOR SENTENCE

CORRICK J.

Introduction

1On March 23, 2016, following a trial before me without a jury, I found Mr. Hodgson guilty of sexually assaulting T.H. on February 16, 2014, and of breaching a condition of his probation that he keep the peace and be of good behaviour. He appears before me today for sentencing.

The Facts

2After a night of partying at a downtown club Mr. Hodgson was invited to a hotel room where his childhood friend, P.S. and P.S.’s girlfriend, T.H., were spending the night to celebrate Valentine’s Day. All three of them had spent the evening drinking and taking a variety of drugs, including ecstasy and GHB. They were all highly intoxicated. They ultimately passed out in the room.

3P.S. awoke to find Mr. Hodgson on the bed, naked, lying on his side pressed up against T.H.’s back. T.H.’s shorts were pulled down exposing her buttocks and vaginal area. Mr. Hodgson’s penis was touching T.H.’s skin in her vaginal area.

4T.H. was examined by a sexual assault nurse. There is no evidence that Mr. Hodgson had penetrated T.H.

5At the time of the offence, Mr. Hodgson was on probation, a condition of which required him to keep the peace and be of good behavior. His assault of T.H. violated that condition.

Legal Parameters

6Sexual assault is punishable by a maximum of 10 years in prison. The maximum sentence for the breach of probation charge is four years in prison.

Positions of the Parties

7Ms. Sweeny, on behalf of the Crown, submits that a sentence in the range of two to three years is the fit disposition in this case.

8Mr. Funston submits that the time Mr. Hodgson has already served is the appropriate disposition for Mr. Hodgson. He submits that Mr. Hodgson should be subject to a further term of probation.

Principles of Sentencing

9In determining a fit sentence for Mr. Hodgson, I am guided by the sentencing principles set out in the Criminal Code.

10The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to "contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society" by imposing sentences that have one of the following seven objectives:

1. denouncing unlawful conduct,

2. deterring the offender and others from committing crimes,

3. separating offenders from society where necessary,

4. assisting in the rehabilitation of the offender,

5. providing reparations for harm done to the victim or to the community,

6. promoting a sense of responsibility in the offender, and

7. acknowledging the harm done to victims and the community.

11Any sentence I impose must be proportionate to the gravity of the offence and the responsibility of the offender: s. 718.1 of the Criminal Code.

12Keeping in mind the purposes of sentencing, I am also required by section 718.2 to bear the following principles in mind when imposing sentence:

❏ the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;

❏ where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

❏ the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

❏ offenders should not be deprived of liberty if less restrictive sanctions may be appropriate; and

❏ all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

Circumstances of the Offender

13Mr. Hodgson is an Aboriginal man. A Gladue report was prepared about him by Aboriginal Legal Services of Toronto. It sets out Mr. Hodgson’s background in detail.

14Mr. Hodgson is 38 years old. His early years were spent living with his parents on the Rankin Reserve, near Sault Ste. Marie. He was one of eight children. He lost three of his siblings when he was young. One of his sisters died when she was struck by a car, and two of his brothers died in a fire that destroyed the family home. Mr. Hodgson believes, rightly or wrongly, that he and his older brother may have started the fire when they were playing with matches.

15Both sets of his grandparents attended residential schools. His maternal grandparents suffered from alcoholism and were violent. His parents also suffered from alcoholism, and he suffered violence at the hands of his father. His mother is still alive. His father died in May 2016 when Mr. Hodgson was in custody.

16His family moved to Regent Park in Toronto when he was five years old. There, he was the victim of racism and bullying.

17Mr. Hodgson did not do well academically. He was enrolled in special education classes. He left school after grade eight. He reads and writes at a grade three level and his math skills are at a grade five level. He suffers from a learning disability. He completed a grade twelve English course by correspondence while in custody.

18Mr. Hodgson suffers from alcohol and drug addiction. He began drinking when he was 15 years old, and using drugs when he was 16. When out of custody, he uses a variety of street drugs, such as cocaine, ecstasy and GHB. He drinks alcohol to the point of passing out. He also has mental health problems. He suffers from depression and has attempted suicide in the past. He currently takes prescription medication for his mood and for anxiety.

19Not surprisingly, given the background I have just outlined, Mr. Hodgson has a lengthy criminal record. It begins in 1993 when he was a youth. It continues without interruption until 1999. During that time, Mr. Hodgson was convicted on 17 different occasions of 36 charges in total. Most of the offences were property offences, but included two counts of robbery, dangerous operation of a motor vehicle and seven counts of fail to comply with a recognizance or disposition.

20There is then an eleven-year gap in his record. I will have more to say about that in a moment. Mr. Hodgson’s involvement with the criminal justice system recommences in 2011. The convictions are no longer for property offences, but are for serious crimes of violence. In May 2011, Mr. Hodgson was convicted of assault causing bodily harm, fail to appear in court, fail to comply with a recognizance and obstruct police. Sentence was suspended and he was placed on probation for 18 months after being credited for 48 days of pre-sentence custody. In July 2012, he was convicted of aggravated assault and assault resist arrest and sentenced to 20 months in prison in addition to 13½ months pre-sentence custody. He was also placed on probation for three years, a condition of which he has now breached.

21During the eleven-year gap in his criminal record, Mr. Hodgson established a relationship with a woman. They had four children. He was employed and eventually started his own window cleaning business. At one point, he employed seven people. He was able to control his addictions. When his relationship began to fail, his addictions began to control him, and his criminal behaviour re-emerged.

22As a result of information learned from Mr. Hodgson’s mother during the preparation of the Gladue report, Mr. Hodgson underwent an assessment for fetal alcohol spectrum disorder. A comprehensive report prepared by Dr. Shah, marked as Exhibit 2, indicates that Mr. Hodgson suffers from this disorder in addition to chronic alcohol dependence and substance abuse, a learning disability, and depression.

23Mr. Hodgson addressed the court. He acknowledged his addictions, and spoke of the control they have over him. Although he does not remember assaulting T.H., he acknowledged that he deserved to be punished if he did. He apologized for his conduct and recognized that he breached T.H.’s friendship. He told the court that he wants help. I accept what Mr. Hodgson said as a genuine acceptance of responsibility and a plea for help.

The Impact on the Complainant

24A Victim Impact Statement prepared by T.H. was filed. It speaks of the stress she endured having to testify and relive what she described as the worst day of her life. She described the sense of betrayal she felt having befriended Mr. Hodgson that evening, and the emotional impact of Mr. Hodgson’s violation. Fortunately, T.H. does not remember being assaulted and suffered no physical injury as a result.

Sentences Imposed in Other Cases

25I am required to consider sentences imposed on similar offenders for similar offences committed in similar circumstances. I turn to that now.

26Ms. Sweeny has referred me to a number of cases, most of which were decided by the Ontario Court of Appeal, in support of her position that the appropriate range of sentence for a sexual assault of this nature is two to three years in prison.

27Mr. Funston submits that this case is distinguishable from those relied on by Ms. Sweeny because there is no evidence of penetration in this case. Many of the cases referred to by Ms. Sweeney involve penile penetration of the complainant. Although this may put Mr. Hodgson’s offence into a slightly less serious category, it does not alter the fact that Mr. Hodgson profoundly violated T.H.’s sexual integrity, and it is for that conduct that I must determine a proportionate sentence, given all of the circumstances.

28The circumstances of any case, including this one, can be readily distinguished from any other case. A review of the cases demonstrates that sentencing is a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender.

29Certain general principles can be gleaned from the cases however. Firstly, denunciation and deterrence must be the paramount objectives of the sentence I impose. Secondly, sexually assaulting a woman who is sleeping or incapacitated by drugs or alcohol is an aggravating factor I must consider.

Aggravating and Mitigating Factors

30I must also consider the aggravating and mitigating factors of this case. First, the aggravating factors:

1. Mr. Hodgson betrayed T.H.’s trust. He was a guest in a hotel room that T.H. was sharing with her boyfriend. She made an effort to befriend Mr. Hodgson that evening, and he violated her in the most intimate way.

2. Mr. Hodgson assaulted T.H. when she was in a vulnerable condition, having passed out after consuming drugs and alcohol.

3. Mr. Hodgson has a lengthy criminal record that includes convictions for crimes of violence, including aggravated assault, and numerous convictions for breaching court orders.

4. Mr. Hodgson was on probation when he committed the assault on T.H.

31The following mitigating factors are also present.

1. Mr. Hodgson’s early life was plagued by severe trauma and loss.

2. He is the product of the intergenerational trauma suffered by Canada’s Aboriginal people as a result of official government policies, including residential schools.

3. Mr. Hodgson has shown some insight into his problems and has taken some positive steps while incarcerated. He completed a grade 12 literacy course and a number of other courses on topics such as substance abuse, healthy living habits, and managing stress.

4. He has in the past demonstrated an ability to live as a law-abiding citizen.

What is the Fit Sentence?

32After anxious consideration and taking into account all of the circumstances of the offence and of Mr. Hodgson, particularly his circumstances as an Aboriginal offender, I have concluded that the appropriate sentence, before credit is given for time already served is two years in prison. A sentence equivalent to the time Mr. Hodgson has already served plus a probationary period would not adequately address the sentencing objectives of deterrence and denunciation in my view.

33There is no dispute that Mr. Hodgson ought to be credited for the time he has spent in pre-sentence custody on a 1.5:1 basis. Since his conviction on March 23, 2016, he has been imprisoned at the Toronto South Detention Centre, where prisoners have been locked in their cells and denied professional and personal visits and access to a telephone for an alarming number of days due to staff shortages, according to prison records marked as Exhibit 6. The records set out the number of days on which there were full and partial lockdowns at the Toronto South Detention Centre between June 13, 2015 and September 27, 2016. Between March 23 and September 27, 2016, a period of 189 days, there were lockdowns on 92 days. All of them, but one, were due to staff shortages.

34Mr. Hodgson spent 12 days in custody between February 17 and 28, 2014 before being released on bail. He has spent 273 days in custody since he was convicted of these offences on March 23, 2016, for a total of 285 days or a little more than nine months. I will credit Mr. Hodgson with 427.5 days or 14 months of pre-sentence custody, leaving a period of 10 months to be served.

35I am going to recommend that Mr. Hodgson serve his sentence at the Ontario Correctional Institute or other institution where he can receive intensive treatment and counselling. I am aware that he has been previously treated at the Ontario Correctional Institute without success. However, I am hopeful that the outcome will be different this time given the new information authorities will have about Mr. Hodgson, and the diagnosis of fetal alcohol spectrum disorder. I am going to order that the Gladue Report and the Fetal Alcohol Spectrum Disorder Assessment Report be sent to the institution where Mr. Hodgson serves his sentence.

36I am not going to impose a period of probation. His appalling record of breaches of court orders convinces me that a period of probation is likely to invite yet another breach. Mr. Hodgson knows what he has to do and knows what services are available to him. It is up to him to decide whether he wishes to avail himself of them or languish in prison for the rest of his life. It is your choice, Mr. Hodgson.

Ancillary Orders

37In addition, there will be a mandatory weapons prohibition order pursuant to s. 109(1)(a) of the Criminal Code for life, an order pursuant to s. 487.05(1) authorizing the taking of a DNA sample and an order that his name be added to the Sex Offender Registry for 20 years.

Conclusion

38Mr. Hodgson, I sentence you to ten months in prison after crediting you for 14 months of pre-sentence custody. This sentence applies to both charges, and will be concurrent.

Corrick J.