R. v. N.H., 2017 ONSC 2493

COURT FILE NO.: CR-15-50000183-0000

DATE: 20170421

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

N.H.

Accused

Jim Cruess, for the Crown

Enzo Battagaglia, for the Accused

HEARD: February 9, 2017

B.A. ALLEN J.

REASONS FOR JUDGMENT ON SENTENCING

BACKGROUND

[1] N.H. was convicted by a jury on September 23, 2016 on three counts of sexual assault and one count of common assault.

[2] The sexual assaults and common assault arose in the context of the marriage between N.H. and his then wife, S.K. The couple married soon after they met. N.H. was raised in the Islamic faith and S.K. in the Sikh faith. S.K.’s parents who lived in India, did not approve of her marriage to an Islamic man. She married against her parents’ wishes. This resulted in a break in the relationship between S.K. and her family. She did however maintain a relationship with her brother who lived in Saskatchewan.

[3] During their marriage she and N.H. lived at N.H.’s mother’s home. Their relationship lasted for a brief nine months from about June or July 2013 until March 2014. The marriage dissolved in March 2014 when N.H. forced S.K. to leave the home.

[4] The sexual assaults occurred during the nine months of their relationship. The first sexual assault occurred on December 20, 2013, the second on December 28, 2013 and the third on February 18, 2014. The common assault happened on January 1, 2014.

CIRCUMSTANCES OF THE MARRIAGE AND THE OFFENCES

[5] The jury heard evidence that N.H. was abusive and controlling during the marriage. He belittled her by calling her names such as “bitch,” “stupid,” and a “piece of shit”. He criticized her cooking and cleaning as not being up to the standard of his mother’s. N.H. kicked her out of the bedroom, installed a lock on the bedroom door, and moved her belongings into the furnace room.

[6] The marriage began to seriously deteriorate in September 2013 when S.K. accused her husband of cheating on her with a woman at his workplace, which N.H. denied.

[7] The jury heard evidence that on December 20, 2013, N.H. asked S.K. to go to his bedroom. She reluctantly went to the bedroom because she did not want her marriage to end. Her husband constantly threatened to divorce her if she did not do what he asked. She said she was afraid to be alone since she did not have a supportive relationship with her parents.

[8] S.K. testified N.H. pulled her towards him. She was on her knees beside the bed with her hands on the bed. He then made her give him oral sex by holding her head from behind with his two hands and moving her head on his penis. She told the jury she tried to get up because she did not want to do this but she could not because his grip was tight. The jury heard that he pushed her onto the bed, she landed on her back and he forced himself on top of her inserting his penis into her vagina. He ejaculated. N.H. then asked her to go downstairs to the couch.

[9] The jury heard that on December 28, 2013, S.K. was on the couch in the living room and N.H. came home smelling of alcohol. S.K. went to the washroom which was upstairs near the bedroom. He called her to the bedroom. He was leaning against the wall in front of the bathroom door. N.H. gripped her hand tightly by the wrist. N.H. pushed her onto the bed and held her cheeks with his two hands. He got on top of her and put his penis into her mouth. He then inserted his penis into her vagina and ejaculated.

[10] S.K. told the jury that in January 2014, she was lying on the bed in the bedroom near the wall. She and N.H. had been arguing. N.H. was telling her to get off the bed and he was pushing at her legs. She stood up. The jury heard he then pushed her against the wall. He got very angry and punched the wall near her head. He told her, “Next time it will be your face.”

[11] The jury also heard that on February 18, 2014 N.H. forced her to perform oral sex by pushing her head down to his penis. She was asking him to stop. She tried to push his leg off of her with her hand but he forced vaginal intercourse and ejaculated. She went back down to the couch in the living room.

[12] In evidence were photographs of bruises on S.K.’s body and of the hole in the bedroom wall.

[13] The jury also heard about how the relationship finally ended. On March 22, 2014, S.K.’s brother and two friends came to the couple’s home to look into N.H.’s treatment of S.K. N.H. became very threatening saying he would put the brother “six feet in the ground”. N.H. ordered S.K. to take her belongings and leave the house. She never returned.

PRINCIPLES ON SENTENCING

[14] Section 718 of the Criminal Code sets down the objectives for sentencing: denunciation, deterrence and the separation of the offender from society.

[15] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other potential future offenders from committing offences; and (c) to separate offenders from society.

[16] Proportionality is also a guiding principle for sentencing. A sentence must be proportionate to the gravity of the offence, determined on the particular facts of the case. The narrow focus of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: Criminal Code, s. 718.1 and R. v. Hamilton (2004), 2004 5549 (ON CA), 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.).

[17] The parity principle requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences might not be identical: R. v. Cox, 2011 ONCA 58 (Ont. C.A.) and R. v. L.M, [2008] 2 S.C.R. 163, 2008 SCC 31 (S.C.C.).

[18] Section 718.2 addresses the totality principle. It provides that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. The principle applies with a sentence for multiple offences and requires the court to craft a global sentence of all offences that is not overly excessive.

S.K.’S VICTIM IMPACT STATEMENT

[19] S.K. did not attend the sentencing hearing. She asked, as she is entitled to, that Crown counsel read her Victim Impact Statement into the record.

[20] S.K. states that she has been emotionally scarred by N.H.’s treatment during their marriage. She had begun to believe the derogatory things he would say to her. She is distrustful of being in another relationship. She is terrified by loud voices. S.K. asserts that because of N.H. forcing her to sleep on the couch she developed a back condition which disturbs her sleep and has required her to undergo physiotherapy and the expense for treatment and medication. She indicates her plan to move to Saskatchewan to be with her brother was interrupted by the trial and resulted in her incurring extra expenses for a residence in Toronto.

AGGRAVATING AND MITIGATING FACTORS

Statutory Aggravating Factors

[21] Statute and common law recognize that the seriousness of sexual assault is heightened when it arises in the context of a domestic relationship. Section 718.2(ii) provides that sentencing should consider the fact that “in committing the offence” the offender abused “a spouse or common-law partner.” Primary consideration should be given to the principles of denunciation and deterrence when sentencing an offender who has committed domestic violence: R. v. D.J. 2110 ONSC 3910 (Ont. S.C.J.).

[22] Section 718.2 of the Criminal Code provides that a court on sentencing shall also take into consideration that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Section 718.2 (a) contains statutorily recognized aggravating factors that shall be considered among other factors developed at common law.

[23] Two such factors, found at sections 718.2(a)(ii) and 718.1(2)(a)(iii), are applicable to the facts of this case:

• evidence that the offender in committing the offence abused the offender’s spouse or common-law partner; and

• evidence that the offender in committing the offence abused a position of trust or authority in relation to the victim.

Other Aggravating Factors

• S.K. fell in love with N.H. and married him in spite of her family’s disapproval because she is a Sikh woman and should not marry a Muslim man. She gave up her relationship with her parents, who did not attend her wedding, to be with N.H.;

• S.K. was in the process of obtaining permanent status in Canada and N.H. threatened to have her deported if she did not do what he ordered;

• N.H. used force and physical control in imposing oral sex and vaginal intercourse on S.K. on three occasions occurring only weeks apart; N.H. was violent, threatening S.K. with physical harm when he punched a hole in the bedroom wall and told her, “Next time it will be your head”;

• N.H. threatened S.K.’s brother who had come to help her that he would put the brother “six feet under.”

• N.H. forced S.K. to leave the home permanently after nine months of marriage;

• N.H. was very controlling, enforcing rules about where S.K. could sleep, how she was to cook and clean and where she could place her belongings; and

• N.H. constantly yelled at and demeaned S.K. with pejorative names

Mitigating Factors

• N.H. was age 28 at the time of the offences with no criminal record;

• N.H. has a stable, supportive upbringing and family life, a loving relationship with his mother, his siblings, his wife and small son and his in-laws;

• Family members and in-laws wrote letters of support for N.H. stating what a warm and loving person he is with them, his wife and young son; and

• N.H. has been a productive member of society having had steady employment for several years.

No Guilty Plea, No Remorse

[24] A lack of a guilty plea and the absence of a show of remorse are not to be considered as aggravating factors. However, these factors, if present, are considered in mitigation of sentence. A guilty plea is a mitigating factor because it demonstrates remorse. It also results in preserving the resources of the justice system and saves the victim the harrowing experience of having to testify.

[25] Following conviction an offender is entitled to maintain his innocence and exercise his appeal remedy if he chooses. N.H. and his family members insist that he did not have a fair trial. He did not plead guilty. He has shown no remorse. The Pre-sentence Report reveals that N.H. persisted in blaming S.K., the victim, for what happened. N.H. would not discuss the offences with the author of the report. N.H. will not enjoy the advantage, as a mitigating factor, that a guilty plea or a show of remorse would offer.

CASE AUTHORITIES

• R. v. D.D., 2015 ONSC 5865, [2015] O.J. No. 4888 (Ont. S.C.J.) – offender, age 38, sexually assaulted domestic partner twice two days apart; prior unrelated criminal record; suffered from psychiatric conditions and drug addictions; mother abandoned him at early age and father was abusive; sentenced to three years, six months for each sexual assault to be served concurrently.

• R. v. D.J., [2010] O.J. No. 5878 (Ont. S.C.J.) – offender, age 47, in six-year common law relationship; guilty plea; offender and spouse in bed and offender wanted sex, spouse did not; complainant ran into washroom and offender forced entry; put towel over spouse’s head to muffle her screams; she struggled, struck at him but he overtook her and penetrated her vaginally; their five year old child was outside bathroom door during sexual assault; good prospects for rehabilitation; sentenced to three years’ imprisonment.

• R. v. N.T., [2011] O.J. No. 551 (Ont. C.A.) – offender charged with two counts of assault bodily harm; sexual assaults against his wife throughout marriage; used violence to force sex; on one occasion grabbing her by the hair and throwing her down; appeal court upheld the four-year sentence.

CONCLUSION ON A FIT SENTENCE

[26] The Crown seeks a global sentence of four years and three months: four years for each sexual assault to run concurrently and three months for the common assault to run concurrent with the sentence for the sexual assaults.

[27] The Crown also seeks the following ancillary orders under the Criminal Code: a s. 109 firearm prohibition for 15 years; an order under s. 490.012 requiring registration under the sexual offences registry (SOIRA) for 20 years; an order under s. 487.051 to produce a DNA sample; and, a no-contact order prohibiting N.H. from contacting S.K. while in custody.

[28] I note that a SOIRA order is required to be for life with more than one conviction for sexual assault.

[29] The defence did not oppose the ancillary orders. The defence seeks a penitentiary term of two years.

[30] I accept that the ancillary orders sought are appropriate in the circumstances.

[31] I do not find a two year prison term is appropriate on the facts before me. A four-year term, I find, is more reasonably within the range set by the case law and facts I considered. The cases with lower sentences than four years involve circumstances not present in the case at hand such as: a guilty plea and a show of remorse; fewer incidents of sexual abuse; less violent and controlling relationships; an abusive upbringing; psychiatric and drug addiction problems; and good prospects for rehabilitation.

[32] The facts in the case at hand are most aligned with R. v. N.T. where a four-year sentence was imposed in a domestic abuse situation where the husband was very controlling and physically abusive toward his wife. He also verbally abused his wife. He was convicted on one count of sexual assault where N.H. was convicted on three counts. N.H. might have been controlling and abusive in different ways to N.T. but he was controlling and abusive just the same.

[33] N.H. did not plead guilty and showed no remorse. According to the reference letters from family, he had a loving and supportive upbringing. In contrast, N.H. was violent and generally controlling during his nine-month relationship with his wife. He demonstrated the same aggressive, frightening conduct during the three sexual assaults and the common assault. He threatened to leave S.K. knowing she was alienated from her family because of him and threatened her with reporting her to immigration knowing her status was vulnerable. He threatened S.K.’s brother with death. S.K. loved and trusted him enough to jeopardize her relationship with her family and he wantonly violated that trust.

[34] I find a four-year prison term meets the sentencing objectives of general and specific deterrence and denunciation for sexual abuse in the context of a marital relationship.

SENTENCE

[35] I will now pronounce sentence. N.H., will you please stand?

[36] You have been convicted on three counts of sexual assault (counts 1, 2, and 3).

[37] I sentence you to four years’ imprisonment in a penitentiary for each of the sexual assaults to run concurrently. Your total sentence for sexual assault is four years’ imprisonment.

[38] You have been convicted on one count of assault (count 4)

[39] I sentence you to three months for assault to run concurrently with the sentence for the sexual assaults.

[40] Your total sentence on all four counts is therefore four years in prison.

[41] In addition, there shall be the following ancillary orders:

(a) a Criminal Code s. 490.012 SOIRA order that you be entered into the sex registry for life.

(b) a Criminal Code s. 487.051 order that you provide a DNA sample.

(c) a Criminal Code s. 109 weapon prohibition for 15 years to commence after release from prison.

(d) an order that you not contact S.K. while you are in prison.

B.A. ALLEN J.

Released: April 21, 2017

R. v. N.H., 2017 ONSC 2493

COURT FILE NO.: CR-15-50000183-0000

DATE: 20170421

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

N.H.

Accused

REASONS FOR JUDGMENT ON SENTENCING

B.A. ALLEN J.

Released: April 21, 2017