COURT FILE NO.: CR-10-0070 DATE: 2017-04-21
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Mr. A. Sadler, for the Crown
- and -
DONALD MILANI Mr. R. Poirier, for the Accused Accused
HEARD: April 13 and 21, 2017, at Thunder Bay, Ontario
Madam Justice H.M. Pierce
Reasons for Sentence
Introduction
1Mr. Milani is convicted of multiple counts of home invasion sexual assaults and related offences, including robbery, that took place between 1985 and 1987 in the rural areas of Thunder Bay. Although Mr. Milani was charged with these offences at the time, he was not committed to trial at the preliminary inquiry. The investigations continued over the years until the science of DNA gave the police another tool to examine the evidence. Ultimately, by virtue of meticulous gathering and preservation of exhibits seized and exemplary policing, the police were in a position to go forward with the charges. A preferred indictment was laid and the charges were tried by a jury. One count against Mr. Milani was dismissed by a directed verdict. The jury convicted Mr. Milani on the 18 remaining counts.
2The court must now determine a fit and proper sentence in all the circumstances. The scope of sentencing includes a consideration of whether convictions should be consecutive or concurrent, whether some of the convictions should be stayed pursuant to the principle in R. v. Kienapple, and the totality of the sentences when combined. In addition, ancillary orders apply.
3At the close of sentencing submissions on April 13, I revoked Mr. Milani’s bail and he was taken into custody.
Kienapple Principles
4The Crown and defence do not agree completely about which offences are subject to a stay pursuant to the principles in R. v. Kienapple, [1975] 1 S.C.R. 729 (S.C.C.). The Crown submits that three charges should be stayed, while the defence argues that four additional offences should be stayed.
5It is helpful to first consider the purpose for the rule. I will then discuss whether a stay applies following a summary of the facts in each incident.
6The Crown cited R. v. Anderson, 2011 ONSC 5551, [2011] O.J. No. 4394, as support for its position that only counts #2, #6, and #10 should be stayed under the Kienapple principle. The defence contends that because Anderson is factually different, the reasoning does not apply to this case. Anderson provides a useful summary of the jurisprudence relating to the principle in Kienapple. I refer, particularly, to paragraphs 4 – 8 of Anderson.
7The principle was developed to prevent multiple convictions for the same wrong-doing. For example, a person may be convicted of theft and robbery when, on one occasion, he strikes a woman and snatches her purse. However, the court will stay the conviction on the lesser offence, theft, and convict on the more serious charge, robbery, which encompasses the elements of theft and violence.
8The Ontario Court of Appeal expressed the principle in this way in [R. v. Kinnear, 2005) at para. 28:
The principle that emerged from Kienapple provides that where the same transaction gives rise to two or more offences with substantially the same elements and an accused is found guilty of more than one of those offences, that accused should be convicted of only the most serious of the offences.
9The Supreme Court of Canada elaborated on the Kienapple principle in R. v. Prince, [1986] 2 S.C.R. 480. The court held that the principle was only in play “when there was both a sufficient factual and legal nexus connecting the offences.”
10In the Anderson case, Mr. Justice T. Ducharme considered first the factual nexus between threatening and unlawful confinement in relation to sexual assault. While brandishing a knife, the offender told the victim that he wanted sex and that she should comply if she wanted to live. When she began to scream, he told her he would kill her if she continued.
11Justice Ducharme determined that the unlawful confinement began when the offender threatened the victim with a knife and backed her up against her bed. It continued when he cut her phone cord and struck her hand with the knife.
12He concluded that threats and unlawful confinement preceded the sexual assault and continued during it. He determined that there was not, therefore, a factual nexus concurrent with the sexual assault and refused to stay the convictions for threatening and unlawful confinement.
13With respect to the legal nexus, Justice Ducharme referenced paragraphs 498 – 499 of Prince, as follows at para. 8 of Anderson:
I conclude, therefore, that the requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle.
There is, however, a corollary to this conclusion. Where the offences are of unequal gravity, Kienapple may bar a conviction for a lesser offence, notwithstanding that there are additional elements in the greater offence for which a conviction has been registered, provided that there are no distinct additional elements in the lesser offence.
14In Anderson, Justice Ducharme concluded that there were additional elements in the offence of threaten death (that the offender made a threat, that the threat was to cause death, and that the threat was made knowingly) which were not elements of the offence of aggravated sexual assault, for which the offender was also convicted.
15With respect to unlawful confinement, Justice Ducharme reached the same conclusion. He reasoned that the elements of unlawful confinement require that the offender intentionally confined the complainant and that the confinement was done without lawful authority. He therefore concluded that these elements are distinct from and not subsumed in the offence of aggravated sexual assault. Accordingly, they were not stayed pursuant to Kienapple, but registered as independent convictions.
16The defence cites R. v. White, 2016 ABQB 24, [2016] A.J. No. 32 (Q.B.), paras. 115 – 116, in support of its argument that the offences of unlawful confinement are subsumed under the umbrella offence of sexual assault. The court reached this conclusion based on the Crown’s concession that because the confinement of the victims ran concurrently with their sexual assault, the unlawful confinement convictions were subject to Kienapple. In White, unlike in this case, the victims were not tied up before the assaults began.
17The court in White also concluded that the conviction for choking was merely an aggravating factor in the sexual assaults and was stayed, pursuant to Kienapple. Respectfully, I disagree with this conclusion. The elements of the offence of choking at s. 246 of the Criminal Code, focus on overcoming resistance to the commission of an offence. Thus, the offence enables the perpetrator to commit another offence after rendering the victim incapable of resisting. The annotation to s. 246 in The Practitioner’s Criminal Code, 2017 by Alan D. Gold (LexisNexis Canada Inc., 2016) at p. 383 states:
The Kienapple principle does not preclude convictions for both choking with intent to commit aggravated sexual assault contrary to s. 246(a) of the Code and aggravated sexual assault contrary to s. 273(2) of the Code.
See: R. v. Hill, 2010 ONSC 5150, [2010] O.J. No. 3956 (Ont. S.C.J.).
18The same annotation indicates:
A sentence [for choking] should generally be consecutive to the sentence for the other offence committed or the latter increased to acknowledge the increased culpability.
See: R. v. Lemmon, 2012 ABCA 103, [2012] A.J. No. 326 (Alta. C.A.).
Circumstances of the Offences
19The charges on which Mr. Milani was convicted arise out of four incidents. Identity was the principal issue at trial. For convenience, I will group them together in the order in which they were committed and summarize the evidence relating to the charges.
The E.N. Offences
20Mr. Milani was convicted on the following charges in relation to Ms. E.N.:
Count #1: break and entering a dwelling house and commit sexual assault; Count #2: sexual assault; and Count #4: unlawful confinement.
21At the time of the assault, E.N. was about 58 years old. She died before trial; consequently, her testimony at preliminary hearing was read into the record as her evidence at trial.
22The facts are that, in the darkness of the early morning hours of April 20, 1985, Mr. Milani broke into Ms. E.N.’s home through a window. She had locked the doors before retiring for the night. Her home was in a rural area outside Thunder Bay. A shoe impression resembling a shoe seized later at the Milani home was documented outside the window. At the time of the offences, Mr. Milani appeared to know some of Ms. E.N.’s personal circumstances, particularly that she lived alone at the time.
23She was sleeping and awoke to a flashlight shining in her face. Mr. Milani tied her hands and feet, threatening to hurt her if she did not cooperate. She was frightened. He warned her not to look at him. She could hear him cut the rope with a knife although she did not see a knife. He ran water in the adjacent bathroom and then returned to her bedroom. He untied her and he demanded that she give him oral sex twice. She complied, and then he engaged in vaginal intercourse with her twice.
24When Mr. Milani left, Ms. E.N. called her son. He found his mother in a distraught condition. The police also attended, and she was taken for medical attention. Bedding seized was tested for DNA in later years, and the results did not exclude Mr. Milani.
25The Crown and defence agree that count #2 (sexual assault) is subsumed under count #1 (break and enter a dwelling house and commit sexual assault) and should be stayed. I agree that there are no additional distinct elements in count #2 that are not present in count #1. In effect, there is both a factual and legal nexus between these two offences such that a stay with respect to count #2, being the lesser offence, is appropriate.
26The defence also submits that count #4 (unlawful confinement) is subsumed in count #1 and should be stayed. The Crown disagrees.
27The facts in the E.N. counts indicate that the tying of Ms. E.N.’s hands and feet and the use of a knife to cut the cord preceded the sexual assault on her. She remained confined after the sexual assault ended and Mr. Milani left. Confinement is not an element of sexual assault.
28Accordingly, there is a different factual nexus between unlawful confinement and the offence of break and enter and commit sexual assault, as discussed in Anderson. In addition, there are different legal elements in the offence of unlawful confinement that are not encompassed in the charge of break and enter and commit sexual assault: that the offender intentionally confined Ms. E.N. and did so without unlawful authority.
29In accordance with the reasoning in Anderson, I conclude that a stay is not applicable to count #4.
The First J.B. Offences
30J.B. was assaulted by Mr. Milani on two different occasions. He was convicted of the following offences relating to the first incident:
Count #5: break and entering a dwelling house and commit sexual assault; Count #6: sexual assault; Count #7: intend to commit indictable offence while masked; and Count #8: unlawful confinement.
31At the time of these offences, Ms. J.B. and her husband lived in an isolated rural area outside Thunder Bay with no near neighbours. Mr. Milani seemed to know that her husband was at work at the time he assaulted Ms. J.B.. She was then 26 years old.
32Ms. J.B. locked the doors before she went to bed and was sleeping in the early hours of September 9, 1986. At about 1 a.m., she was awakened by the sound of water running in the bathroom. Then, a man wearing a balaclava and carrying a flashlight entered her bedroom. He forced her to perform oral sex on him and then he required her to continue oral sex on him while he performed oral sex on her.
33Next, he took her into the bathroom and required her to perform more oral sex on him. He ran water in the tub and required her to wash her genitals. They returned to the bedroom where he had sexual intercourse with her. During the assault, Mr. Milani, who was a customer at a coffee shop where Ms. J.B. worked, called her by a nickname that was used in the coffee shop.
34After sexual intercourse, he tied her feet which he explained was to give him time to get away. Mr. Milani was in the house for about an hour. The telephone in the house was dead, as he pulled out the wires in the basement.
35After Mr. Milani left, Ms. J.B. located her car keys and drove to a confectionary where she called her husband and the police. She also received medical attention that night.
36The Crown and defence agree that count #6 (sexual assault), is subsumed under count #5 (break and enter a dwelling house and commit sexual assault) and should be stayed. For the reasons discussed in the E.N. charges, I agree.
37The defence also submits that count #8 (unlawful confinement) is subsumed in count #5 and should be stayed. The Crown disagrees.
38In this incident, Ms. J.B.’s feet were tied after the sexual assault concluded in order to facilitate his escape; thus, she continued to be confined after Mr. Milani left. He also cut the phone lines to the house for the same reason. Thus, her confinement is distinct in time from the sexual assault. The elements of the offence of unlawful confinement are also distinct, as discussed in E.N.. In accordance with the reasoning in Anderson, I conclude that a stay is not applicable to count #8.
The Second J.B. Offences
39Mr. Milani was convicted of the following offences related to Ms. J.B., committed on July 11, 1987:
Count #9: break and entering a dwelling house and commit sexual assault; Count #10: sexual assault; and Count #11: intend to commit indictable offence while masked.
40The second assault occurred in the same isolated rural residence as the first. Ms. J.B. locked the doors and windows and prepared to retire for the night. She heard her dog barking in the bedroom and her apprehension was borne out when she found a masked man waiting in the dark. She asked, “Why did you come back?” He replied, “Because you’re nice.”
41Mr. Milani ripped open her shirt and fondled her breasts. He demanded oral sex. He attempted to blindfold her with the belt from her bathrobe but it kept falling off. He had intercourse with her and attempted anal sex to which she objected. Before he left he remarked, “I won’t tie your feet this time.”
42After he left, she discovered that he had again pulled out her phone lines and that $67 was missing from her purse. She drove to a nearby neighbour’s home and called the police. She received medical attention that night.
43Bedding seized at this scene was later tested for DNA with the result that Mr. Milani could not be excluded as the donor.
44Identification Officer Don Macdougall also recovered distinctive tire prints from where Mr. Milani hid his vehicle in the bush. By careful investigation, the police were able to determine that Mr. Milani was an owner of this rare brand of tire.
45Foot prints recovered at the scene were similar to those found at the S.R./A.C. and E.N. scenes.
46The Crown and defence agree that count #10 (sexual assault) is subsumed under count #9 (break and enter a dwelling house and commit sexual assault) and should be stayed. For the reasons discussed in the E.N. charges, I agree.
The S.R. and A.C. Offences
47The S.R. and A.C. offences were committed on December 3, 1987 at the same place. Mr. Milani was convicted of the following offences in relation to S.R.:
Count #12: steal rings using threats of violence; Count #13: unlawful confinement; Count #14: threaten to use a weapon while committing a sexual assault; Count #15: intent to commit an indictable offence while masked; and Count #16: break and enter a dwelling house and commit sexual assault.
48He was convicted of the following offences in relation to A.C.:
Count #17: steal money using threats of violence; Count #18: unlawful confinement; and Count #19: threaten to use a weapon while committing a sexual assault.
49S.R. testified at trial; however, A.C. died before trial. Consequently, her testimony at the preliminary hearing was read into the record as her evidence.
50On December 3, 1987, the two women were working at a roadside restaurant and tavern that Ms. S.R. owned in a rural area outside Thunder Bay. Mr. Milani came into Ms. S.R.’s restaurant for coffee a couple of times, and had been there twice the day before the incident, including at about 8 p.m. the night of the incident. He asked her whether she was staying out for the evening.
51Ms. S.R. was then about 38 and married. She was working that evening with her friend, A.C.. They closed the business around midnight and went to a cabin on the property, intending to stay overnight. When they entered the dimly lit cabin, a man wearing a balaclava jumped out from behind the fridge and pointed a gun at them. He told them to “hit the fucking ground.” Ms. S.R. felt traumatized. She told him that her husband would return around midnight, but Mr. Milani did not leave.
52Mr. Milani split the women up, directing each to a separate bedroom. He blindfolded Ms. S.R. and told her to undress and lie down on the bed. Then he tied her hands and feet. Before and after she undressed, he fondled her breasts and genitals, first with his hands and then with his gun. He held a penlight-style flashlight.
53He demanded oral sex and placed his penis in her mouth. He rubbed the gun near her mouth and up and down her thighs. He told her that if she did not suck his penis and give him an erection, he would make her suck the gun. He tried unsuccessfully to have vaginal, then anal intercourse with her. When he was not successful, he went to A.C.’s room.
54Ms. S.R. attempted to escape but Mr. Milani caught her in the kitchen and redirected her back to the bedroom. He pushed her down on the bed and pressed so hard on her throat that Ms. S.R. was scared. Bruising around her throat was apparent on medical examination later that night. She said that she had no lasting physical injuries, but there were continuing emotional injuries.
55Mr. Milani went back and forth a few times between the women’s rooms that night. Ms. S.R. could hear her friend whimpering in the next room. Mr. Milani told her to “Shut the fuck up.”
56Mr. Milani rummaged in Ms. S.R.’s purse before he left, taking cash, rings, a watch and lottery tickets.
57At the time of this incident, A.C. was about 58 years old. When she was directed into the dark bedroom, Mr. Milani tied her hands and feet and blindfolded her. He also rummaged through her purse and stole about $65 – $70 and one of her credit cards.
58Mr. Milani demanded oral sex from Ms. A.C. but she refused. Then he insisted that she hold his penis, and she complied. He fondled her breasts and undid the snap on her jeans. Then he went out into the living area and ultimately, left the cabin.
59When she was satisfied that Mr. Milani had departed, Ms. S.R. freed herself and went to Ms. A.C.’s room where she untied her friend. Mr. Milani was in the cabin for at least an hour. Ms. A.C. flagged down a truck and got a ride home, then she called the police. Ms. S.R. also called the police who attended and took her to the hospital for medical care.
60The police secured the area and investigated. Tire tracks from the Milani vehicle were discovered in the snow at a boat launch road. These had been brushed or scuffed through in an attempt to obliterate them. Footprints leading to and from the cabin were also brushed out.
61By virtue of careful policing by Identification Officer Ed Linkewich, the police were able to recover footwear and tire impressions that had not been obscured. Investigation demonstrated that Mr. Milani had tires of a similar make on his vehicle. The police also discovered that the day after this incident, Mr. Milani attended at a garage in a rush to have the tires on his truck changed to a different brand, even though his tires were relatively new.
62A beer bottle from which Mr. Milani was observed drinking in the cabin was also seized and preserved. Ultimately, it yielded saliva from which Mr. Milani’s DNA could not be excluded.
63The defence argues that stays should be ordered for counts #13 and #18 (unlawful confinement) as being subsumed in the offences of sexual assault with a weapon.
64On the facts of this incident, the women were confined immediately upon entering the cabin when Mr. Milani confronted them with a gun. They were not free to leave. Indeed, when Ms. S.R. tried to escape, Mr. Milani directed her back to the bedroom, pushed her down on the bed, and grabbed her throat.
65In both instances, the women were blindfolded and had their hands and feet tied before the sexual assaults began. They continued to be restrained after Mr. Milani left the cabin. For the reasons articulated in Anderson, and as above, I find that the confinement is distinct in time from the sexual assaults and contains different legal elements. I, therefore, conclude that a stay is not applicable with respect to counts #13 and #18.
Circumstances of the Offender
66Mr. Milani was born in 1948. Currently, he is 69 years old. At the time of these offences, he was between 37 and 39 years of age.
67Mr. Milani’s parents separated when he was young; he and his siblings moved to southern Ontario where his mother and step-father raised them in an apparently stable home. Mr. Milani attended high school until age 16.
68Mr. Milani met and married his wife and they moved back to Thunder Bay where he found employment with the railway. Subsequently, he found work in the forestry industry. By 1972, he bought his own pulp truck.
69Mr. Milani was a hard worker and good provider. His wife remained at home to care for their son and daughter. The couple enjoyed an active social and family life, including family vacations and time at their summer cottage. They were secure financially and supportive of their children.
70Mr. Milani was arrested in December 1987. He was unemployed for five months after he was released on bail. The stigma of their father’s arrest was felt by his teenaged children.
71In order to pay legal fees, the Milanis sold their family home in Thunder Bay and moved to their camp at Ignace. Their children did not remain with their parents.
72In the 1990s, the Milanis enjoyed friends and neighbours in Ignace, and Mr. Milani obtained his pilot’s license and acquired a small plane that he docked at their waterfront home.
73The Milanis separated in 2004, but Mr. Milani’s wife remained on good terms with him. She is supportive of him and attended the trial. She does not believe he committed the offences.
74Mr. Milani began cohabiting with his present partner in about 2005. They kept a large garden and Mr. Milani was busy with handyman projects. When Mr. Milani was 57, he sustained a shoulder injury that could not be repaired. He received WSIB benefits until age 65.
75In 2008, when Mr. Milani was about 60, he suffered a head injury when he fell. He was hospitalized for three weeks and continues to suffer some long-term memory loss. He has a pace-maker. The defence did not file a current medical report with respect to Mr. Milani’s health.
76Mr. Milani was re-arrested on these charges in 2010. He returned to work during the winter months in 2013, driving a snow plow. Financial difficulties prompted Mr. Milani and his partner, who is 68, to sell their house in 2016. They winterized a hunt camp which is heated by a pellet stove and propane. However, they have had difficulty with frozen waterlines. The camp is isolated, without telephone or television. Mr. Milani’s partner fears the ramifications of a jail sentence on her finances and housing as she will be unable to manage alone.
77Mr. Milani is well-regarded by a close neighbour and by his current partner as well as his former wife.
78Mr. Milani has a dated, minor criminal record. In 1964, when 16, he was convicted of theft over $50 and received a suspended sentence for one year. Also in 1964, he was sentenced to ten days for theft. Finally, in 1970, when he was 22, he was fined for possession of a prohibited weapon.
79In the pre-sentence report, Mr. Milani asserts that he is innocent of all the offences, and intends to appeal. However, in remarks made to the court during the sentencing hearing, he said that he was sorry for what happened. He acknowledged that it must have been a terrible experience for the victims, adding that he had no memory of events during the mid-1980s. He also expressed regret for the suffering of his children following his arrest. He stated that he has suffered financially as a result of the charges.
Impact on the Victims
80Victim impact statements were filed by J.B. and S.R., the two surviving victims.
81Ms. J.B. described eloquently the ramifications of Mr. Milani’s assaults on her. She commented:
Fear is crippling! It is irrational. Afraid to leave the house, afraid to come home once I did, afraid to get out of my car, afraid to go into the house. Never, ever, leaving at night or coming home in the dark if I were alone. And always doing a walk through when I got home. Double checking all windows and doors. Sometimes sitting in the living room, for hours, staring out the window and everything going by. Keeping watch. And yet I knew for a fact that nothing I could do would stop someone from doing this to me again! He came into my house uninvited, he came into my life uninvited. Twice!!!!
82Oppressed by anger and fear, she sold her house and moved. She had difficulty sleeping and felt afraid for her children. When the case was reopened, she was diagnosed with post-traumatic stress disorder, for which she received treatment.
83S.R. expressed that Mr. Milani stole thirty years from her. She became afraid to enter anywhere for fear of being attacked or raped. She drank a lot to dull her apprehensions. Sadly, she never let anyone close to her because she was afraid of being hurt. Ms. S.R. said, “I became a prisoner in my own body because of you.”
84Ms. S.R. stated that, as a result of his attack, she lost her business, her home and her self-esteem. She felt guilty that she had done something wrong.
Position of the Crown on the Quantum of Sentence
85The Crown suggested a range of sentence for each cluster of offences, and then submitted that, having regard for the totality of the sentences, the global amount should be reduced.
86With respect to the E.N. offences, if sentenced on a stand-alone basis, the Crown submits that the range is 4 – 5 years.
87With respect to the first J.B. offences, which were not the first offence by Mr. Milani, and represented a step-up in his conduct, the range is 5 – 7 years.
88Concerning the second J.B. offences, the Crown submits that a sentence of 6 – 8 years is appropriate as it was the second time he victimized Ms. J.B., a significant aggravating factor.
89Finally, with respect to the S.R./A.C. offences combined, where a gun was used, robberies were committed, and both women were sexually assaulted, the Crown submits that the stand-alone sentence should be 8 – 10 years.
90The total of these ranges is 23 – 30 years. The Crown submits that after applying the totality principle, Mr. Milani’s sentence should be 20 years to life.
Position of the Defence on the Quantum of Sentence
91The defence agrees that consecutive sentences are appropriate for the separate incidents. However, it submits that sentences for committing an offence while masked should be concurrent.
92The defence also submits that since violence is part of the offence of sexual assault, the element of violence required for robbery is subsumed in sexual assault, so that a concurrent sentence for robbery should be imposed or, alternatively, a conviction for simple theft.
93The defence argues that the passage of time to sentencing does not have a significant impact on sentence except that the sentence imposed should not exceed the life expectancy of the offender. Mr. Poirier submits that Mr. Milani, now 69, has only a further life expectancy of 10 years. No authority or medical report was filed to support that proposition.
94The defence submits that because of Mr. Milani’s age and the totality principle, and the fact that Mr. Milani need not be specifically deterred, the sentence for each incident should not exceed 3 years. The defence recommends a total range of 5 – 8 years for all offences.
Case Law
Defence Cases
95The defence has filed several cases related to sentences imposed for sexual assault, which I will review briefly.
96In R. v. Carlson, 2016 ONSC 1219, [2016] O.J. No. 1142, the offender kidnapped his victim in a parking lot, drove her to a park, forced sexual intercourse on her and withdrew money from her bank account. He was sentenced to eight years’ imprisonment for sexual assault, three years concurrent for kidnapping, 12 months concurrent for robbery, and six months concurrent for assault. The offender was 34 years old and had a lengthy criminal record including prior convictions for robbery and aggravated assault.
97In R. v. White, 2016 ABQB 24, [2016] A.J. No. 32, the accused was convicted of several counts of robbery, choking, sexual assault and unlawful confinement against three separate complainants. The young women he assaulted were drug-addicted and working in the sex trade. Two of the women performed oral sex on the offender who choked them and then demanded his money back. The third woman performed oral sex on the offender. He choked her until she agreed to give him sexual intercourse.
98The accused was sentenced to a global sentence of ten years based on five years for each assault which was reduced to account for the totality principle. Credit for pre-sentence custody was also applied. The offender expressed no remorse. He was 34 at the time of conviction and had no prior record when the offences were committed. He was a good father, with a solid work history and family support.
99The case, R. v. T. (J.), 2011 ONSC 1141, [2011] O.J. No. 1695, is a sentencing case related to historic sexual and other assaults on children to whom the accused was in a position of trust. The offences included gross indecency, sexual intercourse and common assault. At the time of the sentencing, the offender was 70 years of age and treated as a first-time offender.
100The court found that a sentence of 17 years would have been appropriate before applying the totality principle, but reduced the sentence to ten years.
101The facts of R. v. T. (J.), although horrifying, are not on the same footing as the case at bar, and so are of limited help. There is no element of home invasion, use of a weapon, restraints, or robbery.
102Next, the defence cited R. v. C., 2008 CarswellOnt 6620 (Ont. S.C.). This case involved 13 historic assaults, including rape, indecent assault and assault. There were five victims, the offender’s step-children. A global sentence of nine years was imposed. Many of the sentences were concurrent. As with the previous case, the circumstances of R. v. C., involving children to whom the offender was in a position of trust are qualitatively different than the case at bar and, therefore, not persuasive.
103The same is true of the next case cited by the defence, R. v. P. (G.), 2014 ONCA 39, [2014] O.J. No. 253. The offender received a global sentence of eight years for a series of historic offences, including incest and sexual assault on his children to whom he was in a position of trust.
104Finally, the defence cited R. v. L. (R.I.), 2006 BCSC 1603, 2006 CarswellBC 2675, a decision involving a 65 year-old offender convicted of historic charges of rape, indecent assault, and gross indecency on his step-daughter. The court imposed a four year sentence with other offences attracting concurrent sentences. For the reasons mentioned with respect to assaults on children, the facts of this case are too different from the case at bar to make the reasons for sentence persuasive.
Crown Cases
105The Crown also filed a case involving historic sexual assaults on children, R. v. D.D., [2002] O.J. No. 2070 (Ont. S.C.), which is also factually very different than the case at bar and, therefore, of little assistance.
106The Crown filed two cases dealing with the implications of delay in sentencing. The first, [R. v. Critton, 2002), [2002] O.J. No. 2594 (Ont. S.C.), involved a sentence for kidnapping and extortion. The peculiar facts are that the offender, aged 24, hijacked an airplane to Cuba. Thirty years later, he was extradited from the United States to Canada where he pleaded guilty to the charges. In the interval, he became a teacher and headmaster. He became extensively involved in church and community activities and had no criminal convictions.
107He spent two years in pre-sentence custody. While in custody, he taught his fellow inmates. The court found that there were many mitigating factors, and noted that this was the only successful act of air piracy of a flight originating in Canada bound for an international destination. A global term of five years imprisonment was imposed with credit for pre-sentence custody.
108At para. 76 of Critton, Mr. Justice Hill summarized the principles arising from the jurisprudence relating to the effect of delay on sentencing, as follows:
(1) the effect of delay on sentencing is a case-specific inquiry; (2) deliberate acts to evade detection by the authorities, whether flight or contribution to delayed complaint tend to weigh against assigning mitigating impact to the fact of delay; (3) reform and rehabilitation during the intervening period tend to eliminate the prospect of recidivism and to nullify the need for specific deterrence to be reflected in the court’s disposition; (4) certain very serious crimes require sentences with measures of general deterrence and denunciation regardless of the offender’s lengthy crime-free existence subsequent to the crime(s); (5) objectively speaking, taking into account delay, the court’s disposition should not be seen as a reward or benefit eliminating or depreciating the concept of proportionate punishment.
109In R. v. Hall, 2011 ONSC 61, [2011] O.J. No. 6668, at para. 24, the court commented on delay in sentencing. The offender was found guilty of nine historic sexual offences on four young boys. The court observed:
The need for the sentence to reflect the community’s desire to denounce offences of the kind with which we are concerned is not diminished by the passage of time. While rehabilitation is to be commended, offenders must pay for their crimes, no matter how long the passage of time. To do otherwise would be tantamount to encouraging offenders to “lay low” after committing an offence and would certainly bring the administration of justice into disrepute.
110Next, I will deal with sentencing cases involving home invasions.
111In R. v. Cameron, [2002] O.J. No. 899 (Ont. S.C.), Mr. Justice Watt, as he then was, sentenced an offender for murder, attempted murder, break and enter, robbery, and sexual assault with a weapon. The case involved six convictions arising out of three incidents that occurred within a one year span. Cameron was a 33 year old first offender. He was gainfully employed, supporting his wife and three young children.
112The nature of the offences is summarized in the headnote. As the offender was sentenced to life for the murder conviction with no parole for 20 years, the remaining sentences are concurrent.
113The court found the following aggravating factors: that each incident was a planned home invasion; that there was a threatened or actual use of a weapon; that the offender used a disguise in two incidents; that there were threats to kill and in one incident, he killed his victim; callous indifference to human life; and attacks on vulnerable members of an identifiable ethnic group.
114The court noted that there was an escalation of violence and that the trauma on the surviving victims was severe. The victim of the attempted murder was left permanently disfigured.
115In the first incident, the offender entered the complainant’s bedroom through a window. He was masked and armed with a letter opener. He sexually assaulted her and when she tried to escape, he grabbed her and threatened to kill her. She offered him money, which he took. The sentence for the first attack was six years.
116During the second incident, the offender waited masked outside a woman’s home. He followed her inside, pushed her down the stairs and punched her in the face. He showed her his knife and told her not to scream. She gave him money when he demanded it. Brandishing his knife, he told her to undress. The doorbell rang, fortunately, interrupting the attack. Cameron hit the victim hard enough that she blacked out and he left the house. She was left with serious physical injuries. He was sentenced to 12 years imprisonment for this attack.
117During the third incident, the offender entered the apartment of two sisters, aged 14 and 18. He stabbed the victims repeatedly with his knife. The elder sister died of her wounds.
118In R. v. Wright, [2006] O.J. No. 4870, 83 O.R. (3d) 427, (Ont. C.A.), the Court of Appeal considered the appropriate sentence for a home invasion robbery committed while disguised and using a firearm. The appellant was 27 at the time of sentencing, with prior convictions for theft or attempted theft under $5,000. The offender pleaded guilty and was remorseful; he had a supportive family.
119The facts involved five men, armed with handguns and wearing disguises, lying in wait for the home owner, who was a small business owner. When he came home, they forced their way inside, gathered other family members together, including children, and demanded information to allow them to rob the business. The intruders threatened to harm the father and his family. They also took $950 in cash from the home. When the police arrived, the invaders fled.
120At paras. 14 – 15, the Court of Appeal emphasized that the courts must deal “sternly” with home invasions because they represent a violation of the sanctity of the home. The court concluded that a lengthy penitentiary term is warranted in home invasion cases. The trial judge’s sentence of eight years imprisonment was upheld on appeal.
121In a case unrelated to the Wright case previously cited, R. v. Wright, 2015 ONSC 4508, [2015] O.J. No. 3750, considered the appropriate sentence for a single incident home invasion. A family was at home when three men rang the bell and pushed their way into the home one night. The husband was duct-taped and threatened with a knife. The phone cord was cut by a second man. When the wife screamed, she was also threatened with a knife. The offenders searched the basement, looking for something. The police intervened in the home invasion and the offenders were arrested at the scene.
122Wright, aged 32, and a youthful first offender, was sentenced to five years imprisonment less one year’s credit for five years of house arrest before sentencing.
123The remaining cases deal with sentences for comparable sexual assaults.
124In R. v. Last, 2008 ONCA 593, [2008] O.J. No. 3208, the Ontario Court of Appeal considered the totality principle in a sentence for two incidents, one of which was a home invasion. In the first incident, the victim was pressured into entering the offender’s house after she and a friend met him at a club. When they were inside, the offender threatened the complainant with a gun and repeatedly sexually assaulted her. She was choked several times to the point of losing consciousness, and subjected to vaginal and anal intercourse.
125In the second incident, the offender came to the complainant’s home with a friend and remained there after his friend left. When they were alone, the offender hit the victim in the forehead with her mug and then choked her to unconsciousness. She regained consciousness but suffered a seizure. Then she realized she was naked and bloody. She was extensively injured, including from vaginal and anal assaults.
126The offender was 19 years old at the time of the offences with a minor and unrelated criminal record. The trial judge considered he had prospects for rehabilitation.
127He was sentenced to ten years imprisonment for sexual assault with a weapon and choking on the first incident. For the second, offences of aggravated sexual assault and choking, he received seventeen years less four and a half years for pretrial custody. There were also concurrent sentences for breach of undertaking.
128The majority of the Court of Appeal concluded that the global sentence of 27 years was at the high end of the range but did not offend the totality principle because it “did not exceed the appellant’s overall culpability for the offences.” The court also commented on the callous nature of the offences and the offender’s lack of remorse (para. 69).
129The court characterized the offences as unprovoked, extremely violent, demonstrating complete disregard for the victims. It observed that the offender created opportunities to be alone with the women, whom he had just met; that he choked them into unconsciousness, leaving one victim alone while she was unconscious and bleeding. One assault took place in the victim’s home. The other assault was facilitated by the use of a gun (para. 70).
130In R. v. Johnson, [2008] O.J. No. 4209 (Ont. S.C.), 79 W.C.B. (2d) 882 (Ont. S.C.), the offender was convicted of 29 offences arising from four incidents committed over a period of fifteen months. In each case, the offender appeared masked and armed with a knife or gun outside the vehicles of couples in a park, robbed them, kidnapped the women and sexually assaulted some of them, either by demanding oral sex or vaginal intercourse.
131The offender was 34 when sentenced. He had a good employment history and a minor criminal record. The court determined that if the sentences were to be imposed on a stand-alone basis, the global sentence would be 26 years but characterized the conduct as a crime spree. After considering the totality principle, the court determined that concurrent sentences should be imposed. The offender was designated as a long-term offender and sentenced to a global sentence of fifteen years less credit of seven years for pre-sentence custody on an enhanced basis.
132In [R. v. Assing, 2008), [2008] O.J. No. 4527 (Ont. S.C.), the offender was convicted of sexually assaulting his victim while using a knife, unlawful confinement and robbery in a single incident. He accosted the victim in a park, threatened her with a knife, and robbed her. Her took her to a vacant townhouse nearby where he bound her hands, and subjected her to vaginal intercourse twice. When she resisted, he punched her in the head and body. She suffered multiple contusions, bruises and a vaginal tear.
133At the time of the offences, the offender was 33 with no criminal record. He was described as a good father, a good provider, and a helpful individual. His family expressed disbelief at his conduct which the offender says he did not remember.
134The court emphasized denunciation and deterrence and protection of the public. Mr. Assing was sentenced to nine years imprisonment, with two years concurrent for robbery and two years concurrent for unlawful confinement, less credit of 5.5 years for pre-sentence custody.
135In R. v. Kavanagh, 2009 ONCA 759, [2009] O.J. No. 4504, the offender was convicted of sexual assault with a weapon, unlawful confinement, and robbery. He waited in a convenience store until he could victimize a woman working alone. He locked the door, forced her into a back room, threatening to kill her with a knife, then demanded oral sex and vaginal intercourse. The offender had a criminal record that included a domestic assault. The Court of Appeal noted the offences were premeditated and brutal and resulted in long-term consequences for the victim. The court imposed a sentence of 10 years less 2 years for pre-trial custody.
136Finally, the Crown relied on R. v. Sylvester, 2014 ONSC 2838, [2014] O.J. No. 2879. The offender was convicted of two historic sexual assaults, committed more than a decade apart.
137In the 1981 incident, the offender attacked a 14 year-old girl when she was walking home from school. He threatened her with a knife and had vaginal intercourse with her. She was left with permanent psychological scars. The offender pleaded guilty to rape.
138In 1993, a 53 year old woman was lounging in her back yard. The offender brought her into her home where he sexually assaulted her, stole her money and threatened to kill her and her husband if she called the police. The offender pleaded guilty to sexual assault with a weapon, threatening to kill the complainant and her husband, stealing, and unlawful confinement.
139In sentencing, the court emphasized denunciation and deterrence and imposed a sentence greater than that requested by the Crown.
140The offender was 58 when sentenced and had been imprisoned most of his adult life for various offences committed in the United States. He was likely to reoffend violently.
141As stand-alone offences, the court contemplated a sentence of 11 years for the first offence and 13 years consecutive for the second, with the related offences of theft and unlawful confinement to run concurrently: in other words, a global sentence of 24 years. However, the court reduced the sentence to 20 years to reflect totality and to give credit for the offender’s cooperation with police.
Mitigating and Aggravating Factors
142Because s. 718.2 of the Criminal Code directs that a sentence shall be increased or reduced to reflect aggravating or mitigating factors, it is necessary for the court to review these factors.
143There are many aggravating aspects to the offences committed by Mr. Milani. At common law, the sanctity of the home was valued for the sense of security it gave its occupants. For that reason, and to prevent citizens from engaging in self-help when their homes are invaded, the courts have dealt harshly with these offences. Since Mr. Milani committed these offences, the principle that home invasions are an aggravating factor has been codified in the Criminal Code. Thus, the fact that these sexual assaults are part of a series of home invasions is aggravating.
144In each case, there is evidence of planning and deliberation, which escalates as time goes on. Mr. Milani knew something about each of these women. He knew that they would be alone in isolated residences when he came in the night. He knew that their husbands or others would not be present to protect them. He used sufficient force on Ms. S.R.’s throat to cause bruising.
145There were multiple victims. Ms. J.B. was victimized twice. With the exception of Ms. A.C., who refused, he required the women to perform oral sex on him and submit to vaginal intercourse. In Ms. S.R.’s case, a gun was part of the sex act. In some instances, he attempted anal sex. In the last incident, he split the women up to better control and terrorize them.
146The circumstances of his conduct were horrific, producing disruption, financial losses, and life-long emotional scars on his surviving victims thirty years later.
147The assaults were largely committed with a disguise. He used a knife and then a gun. In order to avoid detection, Mr. Milani hid his vehicle and brushed out his tire tracks and footprints. He even changed his tires to avoid being caught.
148The Crown submits that Mr. Milani’s medical condition may be mitigating, but says it is not significant. I agree. Given the lack of current medical evidence, I am not persuaded that his medical condition should be given much weight.
149The defence points to a positive pre-sentence report as mitigating. Mr. Milani has been employed and been a productive member of society. He has a supportive family and friends. He has a minor, dated record and does not need to be specifically deterred since there is no record of any new offences in the intervening thirty years.
Principles of Sentencing
150The Criminal Code sets out the purpose and principles of sentencing at s. 718. Among some of the purposes are:
- protection of society;
- engendering respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions through
- denunciation of unlawful conduct;
- deterrence of the offender and others from committing offences;
- separating offenders from society;
- rehabilitation of offenders and
- promoting a sense of responsibility in offenders and acknowledging the harm done to victims or to the community.
151It is a fundamental principle in sentencing that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (See s. 718.2). Offenders who are equally blameworthy ought to receive similar punishments. This is the reason that the court considers sentences imposed in comparable circumstances.
152In R. v. T. (J.) at para. 49, the court reviewed the totality principle as discussed by the Supreme Court of Canada in R. v. M. (C.A.), [1996] 1 S.C.R. 500. The sentencing judge is required to review the total of consecutive sentences sought to be imposed to ensure that the cumulative sentence does not exceed the overall culpability of the offender. In other words, the court must ensure that the aggregate sentence is “just and appropriate.”
Reasons for Sentence
153The defence concedes that sentences imposed for each particular incident should be consecutive to sentences for other incidents. I agree. Each incident is distinct and not part of a crime spree such that a concurrent sentence should be imposed. I agree, as well, that concurrent sentences may be ordered for offences that are part of each incident.
154In this case, Mr. Milani has been free on bail for six years until the sentencing hearing began on April 23, 2017. The defence argued that consideration should be given for restrictions on his liberty on account of conditions of release. These included calling police twice a week during the first year of his release and limitation on leaving the district. Mr. Milani submits this term interfered with his trapping and guiding business.
155I do not find these terms onerous. Mr. Milani was not subject to house arrest. The pre-sentence report advises that Mr. Milani returned to work in the fall of 2013 and was able to work during the winter months. No complaint was made about his inability to trap. In fact, the report refers to him winterizing his hunt camp where he and his partner lived recently. There is no evidence that terms of release were sought to be varied.
156The defence submits that a lengthy sentence will overtake Mr. Milani’s life expectancy. There is no medical evidence as to his life expectancy. Apart from acknowledging that Mr. Milani is now a senior citizen, it is difficult to give effect to this submission.
157The defence submits that Mr. Milani did not intend to cause injury and did not intend violence. This submission is ill-conceived. It is belied by the facts. Mr. Milani came to two residences armed. He used his weapons to dominate the women. Nothing bespeaks violence or the potential for violence like a weapon. In S.R.’s case, the gun was used in his sexual assault of her. In the two J.B. assaults, no weapon was evident, but the phone lines were cut to isolate the victim.
158The definition of the term, “to do violence” is to “cause harm or injury to.” Sexual assault is inherently violent. Mr. Milani took control of his victims’ bodies and used them for his own gratification, regardless of their protests. He humiliated them. He deprived them of their dignity, their autonomy, and engendered long-lasting fear. He violated their sexual integrity with profound emotional consequences. He robbed them permanently of their sense of security.
159These sexual assaults were all committed as home invasions. They were not spontaneous. They were planned and premeditated. Mr. Milani determined that the women would be alone and like a predator, he attacked when they were vulnerable. There have been long-term emotional effects on the surviving women.
160Nor do I accept the defence submission that Mr. Milani should be sentenced for theft simpliciter instead of robbery because the violent element is already present in the sexual assault offence. The jury convicted him of robbery. He used his weapon in the S.R./A.C. incident to also commit robbery. The egregiousness of this conduct should not be minimized by a sentence equated with theft.
161The defence position is that a global sentence of 5 – 8 years should be imposed because Mr. Milani has avoided detection for thirty years and is now 69 years old. In effect, this amounts to a sentence of between 1.25 – 2 years for each incident.
162As was articulated in R. v. Hall, delay in sentencing should not encourage offenders to “lay low” as Mr. Milani did, hoping to avoid detection.
163Respectfully, this sends the wrong message. Mr. Milani has enjoyed his freedom for the better part of thirty years since these offences were committed. In my view, his conduct deserves denunciation and deterrence. While Mr. Milani may not need to be specifically deterred in future, others who are minded to commit similar offences must be deterred. And Mr. Milani must be held accountable for what he has done.
164With respect to the E.N. offences, the victim was assaulted in her own home. Mr. Milani used a knife. He subjected her to fellatio and vaginal intercourse twice. He tied her hands and feet.
165As a stand-alone offence, I would have imposed a sentence of five years on the charge of break and enter and commit sexual assault (count #1) and a concurrent sentence of two years on count #4 (unlawful confinement).
166With respect to the first J.B. incident, the victim was also assaulted in her own home. Mr. Milani was masked. He demanded oral sex three times, which included cunnilingus on one occasion, and vaginal intercourse. He tied her feet. There is no evidence of a weapon.
167As a stand-alone sentence, I would have sentenced him to five years for the charge of break and enter and commit sexual assault and two years concurrent each with respect to being masked and unlawful confinement (counts #7 and 8).
168With respect to the second J.B. incident, Mr. Milani victimized her twice in her own home. He fondled her breasts, sought oral sex, had vaginal intercourse and attempted anal intercourse. There was no evidence of a weapon. A more severe penalty is warranted for returning to victimize Ms. J.B. again, purely for his gratification. As a stand-alone sentence, I would have imposed a sentence of six years for break and enter and commit sexual assault and two years concurrent for being masked.
169As to the S.R. and A.C. offences, Mr. Milani used a gun to effect the assaults and robberies. A more severe penalty is warranted on these grounds alone. The assaults were committed in a cabin the women were using as their residence. They were split up. Both were tied, hands and feet. Ms. S.R. was fondled, using his hands and a gun. She was required to perform oral sex and he attempted vaginal and anal sex. He put his hands around her throat when she tried to escape.
170Ms. A.C. was fondled and required to hold Milani’s penis. He stole the women’s cash and valuables.
171As a stand-alone sentence for the S.R./A.C. convictions, having regard for the use of the gun and the fact that there were two victims, I would have imposed an eight year sentence with respect to sexual assault with a weapon, (the same sentence on the A.C. count, to run concurrently), five years concurrent for each robbery count as well as the single count of break and enter and commit sexual assault, and two years concurrent with respect to the counts of unlawful confinement and the single count of wearing a mask.
172The total of these sentences on a stand-alone basis is 24 years. Reducing the global sentence in accordance with the totality principle and considering Mr. Milani’s age and the fact that he has not been in trouble with the law since the offences were committed, I find that the appropriate global sentence is 20 years in prison.
Ancillary Orders
173There is no dispute that ancillary orders apply in this case.
174Mr. Milani used weapons during some of these offences. He is ordered subject to a weapons prohibition for life, pursuant to s. 98 of the Criminal Code.
175He is also prohibited, pursuant to s. 743.21 of the Criminal Code from communicating directly or indirectly with J.B. and S.R..
176He will submit a sample of his DNA to the DNA Data Bank.
177In addition, he will register as a sex offender under the provisions of the Sex Offender Information Registration Act.
Conclusion
178In addition to the ancillary orders, Mr. Milani is sentenced to 20 years in prison as follows:
- with respect to the E.N. offences: Count # 1: break and enter a dwelling house and commit sexual assault: 4 years; Count #2: sexual assault: stayed; Count #4: unlawful confinement: 2 years concurrent to count #1;
- with respect to the first J.B. offences: Count #5: break and enter a dwelling house and commit sexual assault: 4 years consecutive to count #1; Count #6: sexual assault: stayed; Count #7: commit an indictable offence while masked: 2 years concurrent to count #5; Count #8: unlawful confinement: 2 years concurrent to count #5;
- with respect to the second J.B. offences: Count #9: break and enter a dwelling house and commit sexual assault: 5 years consecutive to counts #1 and 5; Count #10: sexual assault: stayed; Count #11: commit an indictable offence while masked: 2 years concurrent to count #9;
- with respect to the S.R. and A.C. offences: Count #12: robbery: 5 years concurrent to count #14; Count #13: unlawful confinement: 2 years concurrent to count #14; Count #14: commit sexual assault with a weapon: 7 years consecutive to counts #1, 5 and 9; Count #15: commit an indictable offence while masked: 2 years concurrent to count #14; Count #16: break and enter a dwelling house and commit sexual assault: 5 years concurrent to count #14; Count #17: robbery: 5 years concurrent to count #14; Count #18: unlawful confinement: 2 years concurrent to count #14; and Count #19: commit sexual assault with a weapon: 7 years concurrent to count #14.
“original signed by” The Hon. Madam Justice H.M. Pierce
Released: April 21, 2017