R. v. Kyere, 2017 ONSC 4829
CITATION: R. v. Kyere, 2017 ONSC 4829
COURT FILE NO.: 99/16
DATE: 2017 08 18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Emmanuel Kyere
Lindsay Bandini, for the Crown
Daisy McCabe-Lokos, for the Accused
HEARD: August 3, 2017
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR SENTENCE
Woollcombe J.
[1] On June 20, 2017, Mr. Kyere was found guilty by a jury of one count of sexual assault. He was acquitted of the other four counts in the indictment. He is before me for sentencing,
The Facts
Circumstances Related to the Offence
[2] Section 724(2)(a) of the Criminal Code provides that the court shall accept as proven all facts, express or implied, that are essential to the jury’s verdict. In accordance with s. 742(2)(b), the court may find any other relevant fact that was disclosed by the evidence at the trial to be proven.
[3] The Supreme Court of Canada explained in R. v. Ferguson 2008 SCC 6 how this fact-finding process is to be done. The sentencing judge need not arrive at a complete theory of the facts, but must make those factual determinations necessary for the appropriate sentence.
[4] The Court in Ferguson set out the two principles governing this exercise at paras. 17-18:
17 Two principles govern the sentencing judge in this endeavour. First, the sentencing judge "is bound by the express and implied factual implications of the jury's verdict": R. v. Brown, [1991] 2 S.C.R. 518, p. 523. The sentencing judge "shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty" (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 95 C.C.C. (3d) 443 (Man. C.A.).
18 Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 162 A.R. 117 (C.A.). In so doing, the sentencing judge "may find any other relevant fact that was disclosed by evidence at the trial to be proven" (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: (ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 58 C.R. (3d) 71 (Ont. H.C.)). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.
[5] Mr. Kyere has been found guilty of one count of sexual assault that took place on July 21, 2013 at the home of D.G., the complainant. The jury must have concluded that there was sexual activity that evening without Ms. G.’s consent.
[6] Ms. G. described three incidents of sexual activity with Mr. Kyere that night. She said that he inserted his fingers into her vagina in the kitchen. She said that he forced her to perform fellatio. She also said that he attempted to penetrate her vagina with his penis.
[7] Mr. Kyere’s position, which the jury obviously rejected, was that all of the sexual activity between them was consensual.
[8] Counsel for both the Crown and for Mr. Kyere have made extensive submissions as to what facts I should find. It is not surprising that they take very different views. They both acknowledge that the sentence that I impose will depend very much on the facts as I find them to be.
[9] It is the defence position that Ms. G.’s credibility is questionable and that the jury must have rejected her evidence in relation to the four counts on which they acquitted Mr. Kyere. The defence position is that I should find that at the end of the evening of July 21, 2013, after they had been arguing, Mr. Kyere and Ms. G. went to the bedroom and engaged in the sexual activity he described. More specifically, he asks me to find that he rubbed his penis near her vagina and attempted sexual intercourse. Counsel acknowledges that this was without Ms. G.’s consent. The defence says that I should not accept that there was digital penetration earlier or forced fellatio.
[10] I am satisfied beyond a reasonable doubt that Mr. Kyere engaged in the non-consensual sexual activity described by the complainant, including digital penetration, forced fellatio and attempted intercourse.
[11] I listened carefully to Ms. G.’s description of digital penetration in the kitchen and her evidence as to what Mr. Kyere said to her at the time. It makes sense to me that he would have made comments suggestive of her having had sexual activity earlier in the evening as I find that he was jealous of her and very concerned about the possibility that she was engaging in sexual activity with others. Her evidence was clear and consistent and very persuasive. The sexual conduct that she described was consistent with her description of Mr. Kyere as controlling and angry.
[12] There is some confirmation of Ms. G.’s version of events in that she described herself running out of the house screaming after the digital penetration. Neighbours heard screaming both earlier in the evening and again later. I accept that as she fled following the digital penetration, the complainant was screaming. Ms. G. also said that she banged on a neighbour’s door for assistance, evidence that was confirmed by Mr. Stephen. While Mr. Kyere agrees that Ms. G. ran outside and then came back, it is his position that they were arguing, but that there was no non-consensual sexual activity. I do not accept his version as to what happened.
[13] I accept Ms. G.’s evidence as to what occurred in the kitchen and find that there was non-consensual digital penetration.
[14] In relation to what happened upstairs, Ms. G. described forced fellatio. Her evidence was extremely detailed and her description of Mr. Kyere’s movements and actions at the time of the force fellatio was not really challenged under cross-examination. There was a denial by him of any fellatio that night.
[15] I accept that the forced fellatio occurred. In reaching this conclusion, I rely on the corroboration provided by the DNA evidence. That evidence, from expert Heather Shacker, was that there was a large amount of the complainant’s DNA on Mr. Kyere’s penis. She said that it could come from bodily fluid. I acknowledge that she also agreed that it was possible for there to be a transfer of DNA through skin cells, possibly as Mr. Kyere explained through mutual touching. However, it seems to me that it makes more sense to conclude that this amount of DNA was transferred to Mr. Kyere’s penis when he forced fellatio on Ms. G. as she described.
[16] Finally, I accept that there was non-consensual attempted intercourse as described by Ms. G.. There are two aspects of the evidence that seem to confirm her version of events. First, she explained that Mr. Kyere’s knees were on her bicep during this activity. The photographs entered as exhibits show some evidence of redness in the area that she describes having been held. Second, the neighbours called 911 shortly before the police arrival, which would correspond with the timing of this part of the sexual assault as described by Ms. G..
[17] It is my conclusion that Mr. Kyere must be sentenced on facts that include three incidents of non-consensual sexual activity with Ms. G. over the course of the one evening.
Circumstances Related to the Offender
[18] Mr. Kyere is 37 years old. He was born in Ghana and attended bible seminary there. He immigrated to Canada from Ghana in 2008. He is a permanent resident in Canada but is not a citizen.
[19] As a permanent resident, I am advised that the conviction will result in Mr. Kyere being found to be inadmissible under s. 36 of the Immigration and Refugee Protection Act (“IPRA”). I am told that Mr. Kyere can expect to become subject to a removal order under s. 44(2) of the IPRA. Deportation then follows. An appeal of the removal order will not be available, under s. 64(2) of the IPRA, if the sentence I impose is greater than six months.
[20] Mr. Kyere has four children. His son Eldad was born in Ghana and came to Canada with him. Mr. Kyere married in Canada. That marriage has ended. He and his former wife have three children, ages 11, 8 and 5, whom he supports.
[21] Mr. Kyere is a trained and ordained pastor in the Restored Christian Fellowship International Church. He worked as a pastor in Ghana and has continued to do so in Canada. He has established his church in Canada with congregations in Toronto and Ottawa. His work involves many speaking engagements, leading congregations, and being present in his community with youth groups, hospital visits and by providing spiritual guidance.
[22] I have been presented with a large number of character letters in support of Mr. Kyere. Without exception, he is described as a compassionate and caring man of great faith. Those who know him clearly have a deep affection for him and view this criminal conduct as out of character. The letters describe his openness with members of his church about having been charged and convicted. He has a wide circle of very supportive friends, acquaintances and colleagues. I accept that he has a passion for his faith and has dedicated a great deal of his time and effort to the well-being of others within his faith community and in the larger community.
[23] The letters also indicate that Mr. Kyere has been publically stigmatized as a result of the offence and that both his personal reputation and the reputation of his church have been affected.
[24] Mr. Kyere comes before the court with no criminal record.
[25] Since his conviction, Mr. Kyere has been involved in counseling with a therapist, Mr. Peach. Mr. Peach is a registered social worker who specializes in providing treatment to men who have had difficulty with the law as a result of their sexual behaviours. Mr. Peach indicates that Mr. Kyere presents as pro-social. He is able to articulate appropriate boundaries for intimate relationships and understands the need to obtain consent for sexual activity. There is a plan for treatment to continue to explore issues of communication, conflict resolution and healthy intimacy.
[26] Mr. Kyere has served 9 days of pre-sentence custody for which he will receive credit of 13 days, to be deducted from whatever sentence is imposed.
Victim Impact
[27] During the trial, I heard the evidence of Ms. G. and the manner in which she described the impact of Mr. Kyere’s conduct on her.
[28] Ms. G. has also provided a Victim Impact Statement. It was filed as an exhibit on sentencing and she read it in court at the sentencing hearing.
[29] In her statement, Ms. G. describes the profound manner in which the offence has affected and continues to affect her. She details the many effects of the sexual assault. They include recurring nightmares, sleeplessness, insomnia, difficulties in concentration, and panic attacks. She says that she isolated herself socially because she felt unable to socialize and be with others. She speaks of losing her self-confidence, self-esteem, dignity and self-respect. She describes her difficulties in trusting others and connecting with them.
[30] I accept that the sexual assault, occurring as it did in the context of what had been a loving domestic relationship, has affected the complainant deeply, and will continue to do so as she tries to move forward.
Positions of the Parties
[31] Counsel each premised their positions as to the length of incarceration that is appropriate on their positions as to what facts I should find.
[32] Given the facts that the defence invited me to find, Ms. McCabe-Lokos sought a sentence of six months jail.
[33] The Crown position, based on facts that include the three incidents of non-consensual sexual activity, is that a sentence of 3 ½ years is appropriate.
[34] The Crown seeks a variety of ancillary orders, all of which the defence agrees are appropriate. These include a s. 743.21 non-communication order while Mr. Kyere is in jail, a DNA order, a weapons prohibition order and a SOIRA order.
Applicable Legal Principles
[35] Section 718 of the Criminal Code sets out the purposes and objectives of sentencing.
[36] Both parties have filed casebooks setting out the relevant principles and range of sentences. In cases of domestic violence, the principles of denunciation, general and specific deterrence are paramount. At the same time, there must be some consideration of Mr. Kyere’s prospects for rehabilitation.
[37] Given my conclusion respecting the facts, I find that most of the cases provided to me by the defence are not particularly helpful in setting out the appropriate range of sentence. That said, the cases provided by the defence do reveal that for less serious sexual offences, the range of appropriate sentence may go as low as a suspended sentence or a short period of incarceration.
[38] The Crown says that the appropriate range for this offence is from the upper reformatory range to a sentence of five or six years.
[39] I have reviewed below some of the cases that I found to be of assistance in reaching a fit sentence in this case.
[40] In taking the position that she does, Ms. Bandini relies on the Court of Appeal’s comments in R. v. Smith 2011 ONCA 564 at para 87. In that case, Epstein J.A. said that “in cases of sexual assault involving forced sexual intercourse with a spouse or former spouse, sentenced generally range from 21 months to four years”.
[41] The other jurisprudence provided to me sets out a range of sentence, dependent on the particular facts of the offences and circumstances of the offenders.
[42] The Court of Appeal suggests in R. v. S.A., 2014 ONCA 1609 that a five year sentence was fit for an accused who took two acquaintances on dates to secluded places and sexually assaulted them. Though he was 23 and a first offender, the Court of Appeal held that the trial judge had been in error to conclude that the appropriate range of sentence in these circumstances included a reformatory sentence.
[43] The Crown also refers me to R. v. A.S.H., 2015 ONSC 2792 in which Daley J. imposed a five year sentence for a 50 year old found guilty by a jury of sexual assault and choking of his former common law wife. He had entered her garage and choked her to prevent her from seeking assistance. He used physical violence to control her and engaged in non-consensual vaginal intercourse. She sustained numerous bruises and abrasions.
[44] Also of assistance is the decision of Hill J. in R. v. D.J., 2010 ONSC 3910 in which he sentenced an offender to three years incarceration after a guilty plea to sexual assault. The relationship between the offender and complainant was intermittent. One night, while they were in bed together, he tried to initiate sexual activity which she did not want. She left the room and he followed her. She locked the bathroom door and he opened it. She began to scream and he wrapped a towel around her head, making her feel that she was choking. Despite her struggling and kicking, he forced her to have sexual intercourse. The offender had mental health and addiction issues, and a criminal record, though not for violent offences. Hill J. acceded to the joint position of three years.
[45] In R. v. W.R., 2012 ONSC 3118, Coats J. imposed a sentence of twenty-two months for sexual assault. The complainant and accused had a four year common law relationship that was on and off. The sexual assault included touching the complainant’s breasts, putting his hand between her legs, digitally penetrating her, laying on top of her and penetrating her with his penis, all without her consent. The accused had no criminal record and made some expressions of remorse, although Coats J. did not find him to have accepted full responsibility for his actions.
Aggravating Circumstances
[46] Section 718.2(a)(ii) provides that evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner is an aggravating circumstance on sentence. There was conflicting evidence at the trial as to whether or not Mr. Kyere and Ms. G. were still together at the time of the offence. It was his evidence that he viewed them as being together. It was her evidence that they had split up and that she was dating someone else.
[47] I adopt the view of Hill J. in R. v. Barilko, 2014 ONSC 1145 at para. 29 that s. 718.2(a)(ii) does not include a former or ex-spouse or domestic partner (See also: R. v. A.S.H., at para. 37).
[48] I do not need to make a finding as to the status of the relationship between Mr. Kyere and Ms. G. on the date of the offence. It is clear to me that whether or not they were continuing in a relationship, the offence had the “flavour of a domestic situation”. They were in regular communication. Mr. Kyere was financially supporting Ms. G.. Mr. Kyere’s actions, on his own evidence, were in furtherance of what he believed was their relationship. In my view, it is an aggravating factor that Mr. Kyere used the physical violence that he did on Ms. G., whom he viewed as his domestic partner.
[49] I do not accept, however, the Crown’s position that this sexual assault occurred in the context of a violent relationship. I cannot accept that this was anything other than an isolated incident. I agree that the relationship had tensions and jealousy. But there is no evidence before me that proves that there were prior incidents of physical or sexual violence that would amount to aggravating features on sentencing.
[50] There are other aggravating factors including:
a. That the sexual assault occurred in the complainant’s home and thus violated her safety and security;
b. That the sexual offences occurred over a period of time between some point after midnight and 2:30 a.m.;
c. That there were three separate incidents of different types of sexual violence. It was intrusive and involved digital penetration, forced fellatio and attempted sexual intercourse;
d. That beyond the sexual assaults, which necessarily involve violence, there was some additional physical violence used by Mr. Kyere. He persisted despite her screaming and asking him to stop. Evidence of the physical violence may be seen by her physical injuries, although I recognize that they were relatively minor;
e. That the impact of these offences on Mr. G. has been very significant.
Mitigating Factors
[51] Mr. Kyere says that he has been taking counselling with a therapist, that this is ongoing and that it is evidence of his recognition that his relationship with the complainant was unhealthy and that counselling is appropriate. He says that this is a mitigating factor and demonstrates initiative and a willingness to learn and gain insight.
[52] The Crown’s position is that the counselling only started after conviction and that the counselling is a signal of an attempt to garner mitigation rather than a true expression of remorse.
[53] In my view, Mr. Kyere’s willingness to engage in meaningful counselling is an indication that he may have accepted some responsibility for his conduct. He says he has been learning about healthy relationships, which I see as a step towards ensuring that he never again engages in non-consensual sexual activity. However, when he spoke at his sentencing hearing, while Mr. Kyere said that he accepted the jury’s verdict, he did not acknowledge that what he had done was wrong or show any insight about the profound effect that his conduct has had on the complainant.
[54] I conclude that Mr. Kyere’s willingness to take counselling is a mitigating factor, though I find that his insight into the effects of his actions are still somewhat lacking.
[55] Mr. Kyere also asks me to find that his bail conditions have been such that he should receive some mitigation of sentence. He was arrested in July 2013 and has been under conditions of bail since then.
[56] I observe that while Mr. Kyere was under a term of house arrest, that term was only between midnight and 7:00 am. Although he may have had to limit his international speaking engagements because of the restriction imposed on him that precluded him from leaving the country, this term was varied on consent when he sought the variation in May, 2015.
[57] In my opinion, the restrictions on Mr. Kyere that flow from his bail have been relatively minor. There is no evidence that he suffered any undue hardship as a result of the bail conditions. Indeed, the evidence is to the contrary in that he appears to have continued his ministry and leadership role in his church in a very fulsome way.
[58] I find the following further factors are mitigating:
• Mr. Kyere has no criminal record;
• Mr. Kyere has widespread support in the community and has demonstrated to the many people to whom he ministers that, other than having committed this offence, he appears to be a person of strong moral character who has given much back to his community and to his family;
• Mr. Kyere has accepted the verdict, although I did not hear any expression of regret for his actions or and remorse in court;
• This offence appears to me to be an isolated incident of sexual or physical violence in the relationship.
Immigration Consequences
[59] Submissions were made by counsel about the impact of Mr. Kyere’s impending deportation on the appropriate sentence.
[60] It is the defence position that if, based on the facts as I find them to be, I conclude that a sentence in the lower reformatory range is appropriate, I should impose a sentence of six months less a day so as to ensure that Mr. Kyere will have a right to appeal his removal order. I am told that this would enable him to make submissions as to why he should not be returned to Ghana. Counsel highlights that Mr. Kyere’s deportation will affect not only him, but also his three dependent younger children, whom he supports financially. It will also affect his son Eldad, who has been living with him since coming to Canada in 2008. In addition, his church will be greatly affected by the loss of his leadership.
[61] In R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739 at paras. 10-16, Wagner J., writing for the court, explained that collateral consequences of a sentence include any consequence for the impact of the sentence on the particular offender. They may be taken into account as personal circumstances, though they are not strictly speaking aggravating or mitigating factors. Collateral consequences related to immigration may be relevant when tailoring sentence, but their significance must be determined in accordance with the facts of the case. The court emphasized that immigration consequences “must not be allowed to dominate the exercise or skew the process”.
The Sentence to be Imposed
[62] In my view, the appropriate sentence for Mr. Kyere is one in the upper reformatory range.
[63] As a result of this conclusion, I do not find the fact that Mr. Kyere will be deported to be a collateral consequence that warrants much consideration in determining a fit sentence. Certainly, in my view, the fact of the likely deportation and inability to appeal that decision cannot be the single factor that warrants departing from the appropriate range of sentence and imposing a sentence of six months or less. In my view, a sentence in the low reformatory range would, on the facts that I have found, be manifestly unfit.
[64] I accept that the range for this sort of sexual offence in a domestic context is quite broad, going from upper reformatory time to significant penitentiary time. Accordingly, I must consider all of the circumstances of the offence and offender in crafting a fit sentence that gives effect to the paramount sentencing principles.
[65] In my opinion, while the offences are serious, the circumstances are not such as to require a penitentiary term. Mr. Kyere is a first offender who otherwise appears to be a person of good character and high moral standing. He is by all accounts an excellent father and committed pastor. His conduct on the night in question stands in contrast to the rest of his conduct, including that relating to Ms. G. though their relationship. The effect of the conviction on him and on his family and church have already been profound, and will be permanent.
[66] Mr. Kyere has no criminal record or history. He has accepted the verdict and chosen to begin counselling. I find that his prospects for rehabilitation, as evidenced by the letter from Mr. Peach, are strong.
[67] Many of the cases relied upon by the Crown reveal offenders who have committed more serious offences with more aggravated personal circumstances. I view this case as more similar to that described in W.R. than any of the other cases provided, although in that case there was forced sexual intercourse and more significant injuries from the physical abuse.
[68] I conclude that Mr. Kyere should be sentenced to a period of custody of 20 months in jail. From this, there will be 13 days deducted for pre-sentence custody credit.
[69] This will be followed by a term of probation for two years. The statutory conditions in s. 732.1(2) shall apply. Additional terms are: that he report to a probation officer as required, that he reside where directed, that he shall not contact, directly or indirectly D.G., that he shall not attend at any place known to be the residence, place of education or place of employment of D.G., that he obtain counselling or treatment as directed, including for or about sexual offending.
[70] In addition, the following ancillary orders are appropriate:
a. a s. 743.21 non-communication order with the complainant while Mr. Kyere is in custody;
b. a firearms and weapons prohibition order under s. 109(2)(a) for ten years and under 2(b) for life;
c. a primary DNA order under s. 487.051 of the Criminal Code;
d. a SOIRA order under s. 490.011(1)(a), 490.012(1) and 490.013(2)(b) for 20 years.
Woollcombe J.
Released: August 18, 2017
COURT FILE NO.: 99/16
DATE: 2017 08 18
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Emmanuel Kyere
REASONS FOR SENTENCE
Woollcombe J.
Released: August 18, 2017