Superior Court of Justice - Ontario

CITATION: R. v. Trumpa, 2017 ONSC 5966

COURT FILE NO.: CR-15-10000610-0000

DATE: 2017-10-06

BETWEEN:

Her Majesty the Queen

– and –

Brandon Trumpa

COUNSEL:

Danielle Carbonneau, for the Crown

Peter DeJulio, for Mr. Trumpa

HEARD: August 24 and September 29, 2017

Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way.

R.F. GOLDSTEIN J.

REASONS FOR SENTENCE

1. Overview

[1] I convicted Mr. Trumpa of one count of sexual assault and one count of choking. He now comes before the court for sentencing.

2. The Facts

(a) Circumstances of the offence

[2] The circumstances of the offence are set out in detail in my trial judgment: R. v. Trumpa, 2017 ONSC 4122. I will summarize them here. On Friday, July 18 2014 N.H. was 19. She was working in Fort McMurray, Alberta for the summer. She had arrived in Toronto early in the morning. She and her friends got together at her house from around 8 pm to approximately 10:45 pm. The started drinking. Their plan was to drink, then go to a club in the Annex area of downtown Toronto. At the time N.H.’s tolerance for alcohol was low due to medical reasons. She was drunk when she left the house to go to the club with her friends.

[3] N.H. remembered leaving the house that evening to go to the subway. She lived 5-7 minutes away from the Royal York subway station. TTC video showed her at the ticket booth at 23:07:30 and on the platform two minutes later. At 23:13:44 she boarded an eastbound train. N.H. testified that she had no memory of being in the subway station or on the subway. Her next memory was being in a park being sexually assaulted by Mr. Trumpa. It is unclear how she and Mr. Trumpa met. I was unable to resolve that issue during the trial. It was not necessary for me to do so, as I was satisfied beyond a reasonable doubt that N.H. did not have the capacity to consent and that Mr. Trumpa was aware that she did not.

[4] The assault on N.H. occurred on a picnic table in a park. She tried to push Mr. Trumpa away and told him “no” but he continued on. He told her to “fucking put your arms down”. He started choking her and she had difficulty breathing. He told her to “shut the fuck up” when she was coughing and choking. He told her that she would have his children as he did not wear a condom. Eventually she got away and was able to call 911.

[5] A witness, Ms. Bright, heard Mr. Trumpa yelling at N.H. She came out of her home with a flashlight, found N.H., and called 911 as well. Mr. Trumpa went to hide in the bushes when the police arrived. He gave himself up when it became obvious that the police would find him.

(b) Circumstances of the offender

[6] Mr. Trumpa is 29 years old. A pre-sentence report was prepared to assist the court, from which I draw much of the information about him. Mr. Trumpa grew up in Toronto and Southampton, Ontario. He apparently had a “good” childhood, with a good relationship with his siblings and parents, and no abuse. He completed high school and it appears he has had a series of jobs. At one point, he was employed for five years with a call centre handling accounts for student loans. He also indicated that he had a good relationship with his grandmother, who was an important influence on him. In fact, it appears that he was residing with his grandmother at the time of the offence.

[7] According to Mr. Trumpa’s mother, he had no behavioural issues as a child. She was, however, aware that alcohol was a potential problem for him. Indeed, there are indications in his probation records that substance abuse, particularly alcohol, has been a problem for him. I found in my judgment that Mr. Trumpa had been drinking on the night of the offence.

[8] Since the offences he has managed to accumulate a criminal record. All of his convictions involve bail and probation violations, except for one conviction for impaired driving. For the purposes of this case, I will sentence him as a first offender.

[9] Mr. DeJulio had initially planned to call Mr. Trumpa’s mother to give evidence. Unfortunately, she is quite ill and unable to testify. Her illness has affected Mr. Trumpa considerably.

[10] Mr. Trumpa read a lengthy statement to me from the prisoner’s box. It was also made an exhibit. In it he described how he breached his bail due to an alcohol addiction. He also described how alcohol has been a factor in that it has caused serious problems in his life. He said that he decided he would no longer drink at one point, but it is obvious that he has been struggling with that resolution. He has clearly accumulated offences as a result of his alcohol problems.

[11] Mr. Trumpa also described to me what he had been doing while on bail. He was living outside of Toronto. He was helping an elderly couple, and after the wife died he continued to assist the husband until his death. He said that this man had a profound influence on him. He also did odd jobs in the area, including painting and repairs. Mr. Trumpa also described how he looked forward to the future when he could start his own business.

[12] Finally, Mr. Trumpa indicated that it has greatly affected him that he is unable to care for his mother and that he will be unable to do so while he is serving his sentence.

(c) Impact on the victim and the community

[13] N.H. filed a victim impact statement and read it to me. It is obvious that the process has been traumatic and difficult for her. She described how she suffered from panic attacks, anxiety, depression, and guilt. She felt as if the assault were somehow her fault. I pause here to say that nothing that happened to her that night is her fault in any respect and in the Court’s view there is no reason for her to feel guilty about it. When she returned to school that year she became socially isolated and anxious. It affected her friendships and relationships.

[14] N.H. also started a university program in criminal justice and public policy. Understandably, she has had a difficult time with it, especially when the topic of sexual assault came up. It caused her to fall behind but, eventually, she made up her courses. N.H.’s participation in the criminal justice system from the point of view of a victim has given her a perspective and an understanding that most people don’t get. She has started a master’s program and looks forward to a career in law, policing, or corrections where she can help victims of crime. N.H. is obviously a resilient young woman and I am hopeful that when we finish the sentencing process it will help her in providing closure. I am also hopeful that it will help her to move on with her life.

[15] Ms. Bright, the witness, also provided a victim impact statement. She described how the crime has affected her sense of peace and security within her neighbourhood. Finding N.H. in the condition she did affected her profoundly as well. She became distressed and upset. She suffered insomnia and a breakdown. She also worried about her own safety. Her doctor told her that she was suffering from post-traumatic stress disorder. Her health and her enjoyment of life has been affected.

[16] It is also important to note that offences of this type don’t just affect the individuals involved. They undermine the feeling of safety and security that the community at large ought to enjoy. When an attack of this nature occurs, everyone, but especially women, feel less safe.

3. Positions of the Crown and Defense

[17] Counsel are in agreement that the range of sentence for this type of offence and this type of offender is 3 to 5 years. Crown counsel’s position is that Mr. Trumpa should receive a global sentence of four years in the penitentiary, along with the mandatory ancillary orders. Mr. DeJulio, with his usual candor suggests a sentence at the lower end of the range. He takes no issue with the mandatory ancillary orders.

4. Case Law

[18] Given that there agreement as to the range of sentence, I need not analyze the cases in detail. I agree with counsel that 3-5 years is the norm. I will only refer to a few of the cases.

[19] In R. v. Mitrovic, 2017 ONSC 1829 the offender and the victim were platonic friends. The offender came to the victim’s apartment as she was not feeling well. While the victim was asleep the offender sexually assaulted her. He then taunted her by text message after she left. Although she was not physically harmed, the victim suffered psychological trauma. Molloy J. analyzed the cases and concluded that the range of sentence was 3-5 years. The offender had a lengthy criminal record, including several convictions for crimes of violence. Molloy J. found that the appropriate sentence after trial was four years.

[20] In R. v. Myers, [2000] O.J. No. 1787, 2000 CarswellOnt 1798 the offender grabbed the victim off a bus. They were strangers. He violently dragged her to a secluded area. He held her down and raped her. When she tried to escape he seized her by the hair and punched her in the head. He also threatened to kill her. She pleaded with him as she had children to take care of. He paid no heed. Langdon J. sentenced him to 6 ½ years in the penitentiary after a guilty plea.

[21] In R. v. M.A., [1996] O.J. No. 2899 (Gen.Div.) the offender pleaded guilty to sexual assault. The victim was 16 years old. The offender and the victim were strangers to each other. The victim was walking through a park at 9 pm in the evening. The offender grabbed her, put his hand over her mouth, and dragged her to a secluded spot. He then proceeded to rape her. The offender was identified through a photo lineup and DNA analysis. The victim was traumatized and suffered loss of confidence and self-esteem. The offender had a lengthy criminal record. He was on probation for sexual assault at the time. He had problems with substance abuse and anger management. He appeared to have an anti-social personality disorder. Hill J. found that the appropriate range was 6-7 years. He sentenced the offender to 5 years and two months after crediting him for 1 year and 4 months pre-sentence custody. In sentencing the offender, Hill J. said the following:

The offence here is a grave genus of the sexual assault offence - a rape of a stranger in a public park. While the attack was not the result of any real planning or deliberation, the accused, in effect, ambushed the complainant knowing she was under the influence of alcohol. The offender forced unprotected sexual intercourse upon the youthful victim imposing the terrifying spectre of the contracting of a deadly virus.

[22] Those comments could equally apply to this case.

[23] In R. v. Rand, 2012 ONCA 731 the victim was 17 years old. She was at an open-air concert with her friends. She drank a great deal of alcohol, which affected her memory. She met the offender, who was a stranger to her. They met at some point during the evening. She became separated from her friends. Although she had memory black-outs, she became aware that the offender was having sex with her in the bushes. She told him “no” but he continued. The Court of Appeal made these comments dealing with the four-year sentence imposed after trial:

The appellant also appeals from his sentence of four years imprisonment. I would not interfere with the sentence. The appellant took advantage of a vulnerable intoxicated young woman. He committed acts of unprotected anal and vaginal sex. He has a prior criminal record dating back to 2004 that includes offences of dishonesty and also convictions for crimes of violence, including assault, assault with a weapon, and assault with intent to resist arrest. Two of the assault convictions, in 2004 and 2007, involved incidents of domestic violence. The sentence imposed by the trial judge in this case was well within the appropriate range.

[24] In my view, the facts of Rand, M.A., and Myers are similar to this case: the offender took advantage of a vulnerable young woman and committed a serious assault. Indeed, the level of violence employed by Mr. Trumpa here appears to have exceeded that employed in Rand. In that sense, it is closer to M.A. and Myers.

5. Mitigating and Aggravating Factors

[25] In my view, the most important mitigating factors in this case are Mr. Trumpa’s relative youth, his relatively unblemished record, and a strong work ethic. I find that it is also important that he wants to start a business and appears to have taken steps towards that end. I certainly hope that upon his release he will do so, and I believe his prospects for doing so are good.

[26] I also find it mitigating that Mr. Trumpa seems to have shown some insight into the fact that he has a problem with alcohol. I have no doubt that alcohol played a role in the crime that I must sentence him for. I also find as a fact that there is a link between Mr. Trumpa’s consumption of alcohol and his anger. This was obvious from the description of the assault by Ms. Bright as well as N.H. It was also obvious from Mr. Trumpa’s shouting – shouting that can be heard on the 911 calls.

[27] The most important aggravating factor in this case is the brutality of the assault. Mr. Trumpa was violent and angry. This case is a nightmare scenario for women: a bigger, violent stranger took a physically smaller woman to a secluded spot and held her down, choked her, and raped her. This type of offence is not just an assault on an individual woman, awful as that is, it is also an assault, as I have pointed out, on the sense of security that should be enjoyed by all members of the community.

[28] It is also extremely aggravating that Mr. Trumpa committed this sexual assault without using a condom. That, of course, exposed N.H. to the prospect of a sexually transmitted disease or unwanted pregnancy. It also caused extreme anxiety to N.H. as she waited to find out the results of the tests.

6. Principles of Sentencing

[29] The principles of sentencing are well-known in cases of this nature. In my view, where a stranger violently sexually assaults a random woman at night in a park the key principle is general deterrence. Would-be sexual predators must understand that they will be harshly punished for these offences. The principle of specific deterrence plays some role here as well, given the link between alcohol consumption and anger. Finally, the court must also pay attention to the principle of rehabilitation. Mr. Trumpa is clearly not beyond rehabilitation and a fit sentence must balance this principle against the others.

7. Ancillary Orders

[30] Sexual assault is a designated offence pursuant to s. 490.011 of the Criminal Code, which means that the court must impose an order under s. 490.012. Pursuant to s. 490.013(2)(b) Mr. Trumpa will be placed on the sex offender registry for 20 years. This is a mandatory order when a person is convicted of sexual assault contrary to s. 271(a) of the Criminal Code.

[31] There will be a s. 109 order for 10 years. This is also a mandatory order.

[32] Finally, there will be an order to take a sample of Mr. Trumpa’s DNA pursuant to s. 487.051 of the Criminal Code, as sexual assault is a primary designated offence pursuant to s. 487.04.

8. Final Decision

[33] This was a terrible offence by a young man with a problem. He raped a stranger in a park at night. He took advantage of N.H.’s vulnerability and inability to resist. In my view, he will not be able to rehabilitate himself unless he takes proper steps to deal with his alcohol issues. As noted, I am concerned that alcohol is a trigger for Mr. Trumpa’s anger. If he deals with his alcohol issue, then I am certain that rehabilitation will follow and this will be the end of his criminal activity. If he is unable to do so, then I fear that he will be unable to refrain from committing further criminal offences. I must consider this fact when balancing the principles of sentencing. As I have already noted, I must balance Mr. Trumpa’s need for rehabilitation with the principles of general and specific deterrence. I cannot ignore the requirement for general deterrence and the impact on the victim. Taking all the circumstances into account, in my view a fit global sentence for this offence is four years in the penitentiary. Mr. Trumpa is sentenced accordingly. The sentence is 4 years on the count of sexual assault and one year concurrent on the choking.

[34] These reasons will be transmitted to the correctional authorities so that they will be aware of the Court’s view that Mr. Trumpa should receive treatment and counselling for his alcohol issues.

R.F. Goldstein J.

Released: October 6, 2017

CITATION: R. v. Trumpa, 2017 ONSC 5966

COURT FILE NO.: CR-15-10000610-0000

DATE: 20171006

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BRANDON TRUMPA

REASONS FOR SENTENCE

R.F. Goldstein J.