CITATION: R. v. N.K., 2017 ONSC 5931
COURT FILE NO.: CR-16-0013
DATE: 2017/10/13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. N.K.
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Lee Burgess, for the Crown
Jason I. Easton, for the Accused
HEARD: September 22nd, 2017 (Sentencing Submissions)
SENTENCING DECISION
Introduction
[1] These reasons deal with the sentence to be imposed on N.K. who was convicted of the four counts with which he was charged following a five day trial in Belleville. The verdict was delivered on July 5th, 2017 and was set out in written reasons released on the same date. [^1] I heard submissions on sentence on September 22nd, 2017.
[2] I found that the offender lured the complainant to a remote cottage in Bancroft under false pretences. There he assaulted her, threatened to kill her dog and engaged in non-consensual sex. This was not the end of the ordeal. Early the next morning the accused lost control of his speeding vehicle which rolled over in a ditch. The complainant was injured and was taken to hospital. When she returned to Ottawa the accused engaged in criminal harassment. He had her cellular telephone and keys to her apartment. He repeatedly tried to contact her, came to the apartment and slid disturbing communication under her door.
[3] He was convicted of assault contrary to Section 266 of the Code (Count 1), threatening to kill an animal contrary to Section 264.1 (1) of the Code (Count 2), sexual assault contrary to Section 271 (Count 3) and criminal harassment contrary to Section 264 (2) (Count 4).
Circumstances of the Offender
[4] The offender is 54 years of age. He was born in Hargeisa, Somalia in 1963 and immigrated to Canada in 1992. He is a Canadian citizen. He has a post-secondary degree from the University of Tennessee where he earned a B.A. in 1990. In addition to English, he is fluent in Somali, Arabic and Amharic and for many years he worked as a translator, editor and journalist.
[5] Apparently N.K. suffered a mental breakdown following the death of his father in 1994 and he developed an alcohol dependency. His criminal record dates from that time and runs until 2004. During those ten years, he was convicted of several drug and alcohol related charges but also has several convictions for assault, uttering threats and obstructing police. Most significantly, he was convicted of sexual assault in 2004 and after deducting credit for time served, he was given a suspended sentence and 3 years probation. It appears he successfully completed his probation and he had not been convicted of any criminal activity during the decade preceding these charges.
[6] Starting in 2005 and continuing until his arrest for these charges the offender was receiving treatment for depression, anxiety and diabetes. There is nothing in the record, however, to suggest that the current offences were fuelled by addiction or were the result of mental illness.
[7] The offender was married but has been separated since shortly after the events giving rise to these charges and is now divorced.
[8] At the time of these offences, N.K. was living in Ottawa. He was eventually given bail 21 days after his arrest and pursuant to the terms of the bail order, he lived with his brother in Whitby under strict house arrest. This continued until he was remanded into custody following conviction.
[9] Both parties agree that at the time of the sentencing submissions, N.K. had served 21 days of pre-trial detention and 55 days from conviction to the date of the sentencing hearing. Adding the additional days before sentence was pronounced, I will credit the offender with 5 months time served.
Circumstances of the Offences
[10] The details of the events are set out in detail in the decision convicting the offender and are summarized in the introduction. The complainant was known to the offender. She lived on social assistance and disability in Ottawa and over a number of years the offender had befriended her and had done various favours for her. On the night in question, he had convinced her to go with her in his car to what she thought was to be a family gathering at his brother’s cottage. Instead she found herself alone in an isolated and unknown location. She was terrorized and threatened and compelled to engage in sexual activity despite clearly indicating that she did not wish to do so.
[11] The day following the non-consensual sex, the offender drove his vehicle off the road and in the ensuing accident, the complainant was injured. Her terrified dog escaped into the forest and was lost for over a week. Initially, the offender told the police he was alone in the vehicle and denied knowing the complainant. In the meantime the complainant was sent to hospital in Bancroft and Belleville and when she eventually was able to get home, the offender began to stalk her and harass her. He kept her cell phone and her apartment keys. It was when she eventually went to the police to try to stop the harassment that she reported the sexual assault and the charges were laid.
[12] The delay in reporting the offence was fully addressed by the complainant and described in my reasons for conviction. The victim impact statement makes it clear that the trauma of the sexual assault was compounded by the car accident, by the behaviour of the offender after the accident and by the subsequent stalking behaviour. The entire incident was like the script for a horror movie mitigated only by the absence of physical restraint or actual violence.
Aggravating Factors
[13] Besides his criminal record, there are a number of aggravating factors in relation to these offences. The most egregious is the pre-mediated nature of the assault and the fact that he used his relationship with the complainant to “guilt” her into going with him to the cottage. He tricked her, misled her and preyed on her vulnerability.
[14] His behaviour after the assault compounded the trauma of the incident. Driving recklessly, involving the parties in a car accident, denying to the police that the complainant was in the vehicle and subsequently stalking and harassing her are additional factors. Far from expressing remorse, the offender compounded the impact on the complainant by attempting to intimidate her, attending at her apartment, researching her family on the internet and keeping her phone and keys.
[15] The incident has had a significant effect on the victim as set out in her victim impact statement.
[16] Although his criminal record has been interrupted by ten years of apparently law abiding behaviour, his most recent conviction was also for sexual assault. His record also contains other incidents of assault and uttering threats.
Mitigating Factors
[17] No mitigating factors are relied upon by the defence other than the personal circumstances of the offender. I am asked to consider that although he was released on bail, he had to relocate to Whitby and has spent the time since his arrest under very strict house arrest. In effect, he has been in a form of detention since shortly after the charges were laid.
Positions of the Parties
[18] The Crown seeks a sentence of 8 years in prison, a restitution order, a non communication order and mandatory ancillary orders.
[19] The defence concedes that all of the orders sought by the Crown are appropriate given the findings at trial but proposes a prison sentence of 4 years.
[20] Both parties agree that the pre-sentence detention should attract a multiplier of 1.5 days for each day in custody and agree the offender is entitled to the appropriate credit.
Gravity of the Offences
[21] Count 1, common assault contrary to s. 266 of the Criminal Code carries a maximum penalty of 5 years in prison.
[22] Count 2, threatening to kill an animal contrary to s. 264.1 (1) of the Code carries a maximum penalty of 2 years in prison.
[23] Count 3, sexual assault contrary to s, 271 of the Code carries a maximum penalty of 10 years imprisonment.
[24] Count 4, criminal harassment contrary to s.264 (2) of the Code carries a maximum of 10 years.
[25] These potential penalties indicate the seriousness with which the law regards these offences. They are offences which had a significant impact on the victim and they are the kind of offences which offend and alarm the community.
Analysis
[26] In support of his submission that these offences should attract a sentence of 8 years, the Crown relies upon the decision in R. v. J.S.[^2] That situation was a more serious offence because it involved prolonged forcible confinement including binding the victim with duct tape and also involved specific gratuitous violence. The offender also had a more significant criminal record. The case is instructive nevertheless because the forcible confinement charge alone attracted an eight year sentence. N.K. was not charged with confinement but the Crown submits that the complainant was effectively imprisoned in the cottage by the fact that they were alone in an unknown location. While N.K. did not beat, strangle or restrain the complainant, she feared that the offender would make good on his threat to beat her dog to death with a shovel and was not sure what other violent acts he might be capable of.
[27] The Crown also referred me to R. v. Clase [^3] in which an isolated victim was attacked in predatory circumstances from which she could not escape and in which despite being a first offender, the sentence imposed was five years. On the other hand defence counsel referred me to R. v. R.S.[^4] in which an accused took a young woman to his home and forced violent sexual intercourse on her. The total sentence was 4 years.
[28] Sentencing is governed by Part XXIII of the Criminal Code and in applying the principles set out in the Code each case must be evaluated on its own merits. The primary objective of sentencing law is to devise a sentence that reflects the gravity of the offence and the degree of responsibility of the offender. While rehabilitation of the offender is always a consideration, the more serious the offence, the more significant are considerations of denunciation, deterrence and protection of the public.
[29] As set out above, this was a pre-meditated assault on a vulnerable complainant. The experience was terrifying and traumatic. Premeditated sexual predation accompanied by threats of violence in a lonely and isolated location require that these crimes be visited with a significant term of imprisonment.
[30] I am imposing a global sentence of 5 ½ years net of time served which is an effective sentence of 5 years and 11 months. The requested restitution order is also appropriate and will form part of the sentence along with the ancillary orders as set out below.
Conclusion and Sentence
[31] With respect to Count 1, (assault contrary to s. 266) I am imposing a sentence of 18 months in prison to be served concurrently with the other sentences.
[32] With respect to Count 2 (threatening to kill an animal contrary to s. 264.1 (1)) I am imposing a sentence of 12 months in prison to run concurrently.
[33] With respect to Count 3 (sexual assault contrary to s. 271) I am imposing a sentence of 5 years and six months in prison to run concurrently with the other sentences.
[34] With respect to Count 4 (criminal harassment contrary to s. 264 (2)) I am imposing a sentence of 4 years to run concurrently with the other sentences.
[35] The offender will also pay restitution to the complainant in the amount of $275.00 within 90 days.
[36] I am required to impose a victim fine surcharge of $200.00 for each offence. The offender will pay a surcharge of $800.00 and will have 6 months to pay.
[37] There will be a no contact order. The offender is not to contact the complainant or any of the witnesses who testified at the trial.
[38] There will be a weapons prohibition pursuant to s.109 of the Criminal Code. In light of the offender’s criminal record, this will be a lifetime prohibition.
[39] There will be mandatory ancillary orders that the offender be placed in the sexual offender database, that he provide a DNA sample and be included in the DNA registry.
Mr. Justice C. MacLeod
Date: October 13, 2017
CITATION: R. v. N.K., 2017 ONSC 5931
COURT FILE NO.: CR-16-0013
DATE: 2017/10/13
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Her Majesty The Queen
AND
N.K.
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Lee Burgess, for the Crown
Jason I. Easton, for the Accused
Sentencing decisioin
Mr. Justice Calum MacLeod
Released: October 13, 2017
[^1]: See 2017 ONSC 3988 [^2]: 2017 ONSC 2998 [^3]: 2017 ONSC 2484 [^4]: 2016 ONSC 1290