CITATION: R. v. Tweneboah-Koduah, 2017 ONSC 640

COURT FILE NO.: CR-15-3509-0000

DELIVERED ORALLY: Tuesday, January 31, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

FRANCIS YAW TWENEBOAH-KODUAH

Jennifer Holmes, for the Crown

Patricia Brown, for the Defence

HEARD: December 12, 2016

REASONS FOR SENTENCE

Howard J.

Overview

[1] Mr. Tweneboah-Koduah was charged with one count of sexual assault, that on or about September 6, 2014, at the City of Windsor, he did commit a sexual assault on the complainant, contrary to s. 271 of the Criminal Code.[^1]

[2] The complainant is shielded from identification in this proceeding; hence, I refer to her as “the complainant.”

[3] On September 30, 2016, following a five-day trial, during which I heard evidence from 11 witnesses, including both the complainant and Mr. Tweneboah-Koduah, I found Mr. Tweneboah-Koduah guilty of the one count of sexual assault, as charged.[^2]

[4] Mr. Tweneboah-Koduah is now before me for sentencing, the sentencing hearing having been held on December 12, 2016.

Factual Background

Circumstances of the Offence

[5] The offence here arose out of an encounter that started on the night of Friday, September 5, 2014. Both the complainant and Mr. Tweneboah-Koduah attended an impromptu party held at the Alumni Hall residence on the University of Windsor campus, where they each resided.

[6] At the time of the offence, the complainant was 17 years of age. She was attending the University of Windsor and was enrolled in the English and Creative Writing program. The complainant and her family were not from the Windsor area. She was away from home, living in residence, in her first year of university.

[7] The complainant was also a virgin at the time. The complainant had never even kissed a guy before then. The most she had ever done was give a guy a friendly hug. She had not had a boyfriend at that point.[^3]

[8] The complainant, who had no real history of alcohol use, was drinking extensively the night of the party in the “two south lounge.” She and her friends started drinking about or before 8:00 p.m. that night. The complainant cut herself off at about 11:00 p.m., by which time she had consumed a significant amount of alcohol.

[9] The independent evidence of another student, who had stopped drinking to make sure that her friends were okay, was that the complainant was “probably equal to, if not more” intoxicated than her roommate, whom the student felt compelled to escort down the hall to her dorm room because she was so intoxicated.[^4]

[10] I found that the complainant was both significantly and visibly intoxicated that night.[^5]

[11] In contrast, by his own admission, Mr. Tweneboah-Koduah had consumed no alcohol that night.[^6]

[12] Mr. Tweneboah-Koduah and two of his friends had been in the “three north lounge” that evening and were looking to socialize and meet new people. Not finding any party on the third floor, Mr. Tweneboah-Koduah and his friends made their way downstairs to the “two south lounge” and joined the party there sometime around 11:30 p.m. He and his friends introduced themselves, and then he sat down beside the complainant on a couch. The two began to chat about university life. The complainant could not remember the details of what was said.

[13] By 12 midnight, Mr. Tweneboah-Koduah and the complainant were sitting in very close proximity on the couch; they were laughing and flirting, with his arm around her neck. Mr. Tweneboah-Koduah then stood up, picked the complainant up off the couch, and carried her out of the room. They made their way up to his room on the third floor.

[14] As they entered Mr. Tweneboah-Koduah’s room, the complainant believed they were just going to kiss and make out. Mr. Tweneboah-Koduah pushed her by the shoulders onto her back on the bed and then climbed on top of her. The complainant was conscious at that point, although she said she was not really alert. She felt like she could not get up and leave; she felt like her body was a lead weight at that point.

[15] Mr. Tweneboah-Koduah started taking off the complainant’s clothes, groping her breasts, and kissing her “very aggressively.” He shoved her bra up and out of the way. She tried to pull her bra back down, but he just knocked her hands out of the way. He pulled off her shorts and underwear, and he then was on top of her.

[16] The complainant then blacked out; the next thing she remembered was coming to and the accused’s penis was in her mouth as she was lying down. She started choking on it. She found it hard to breathe. The complainant said she blacked out several times during the encounter.

[17] Mr. Tweneboah-Koduah left the bed to get a condom, returned to the bed, and then attempted to have vaginal intercourse with the complainant. He had some difficulties penetrating her in the missionary position and other positions, as a result of which he became frustrated, and finally he placed her on her hands and knees and penetrated her vaginally from behind. The complainant’s evidence was that it “hurt like hell.” He ejaculated and then moved off her. She fell on the bed and passed out again.

[18] Mr. Tweneboah-Koduah then left the complainant in his room and went back downstairs to the two south lounge to rejoin the party. Other students asked him if he had had sex with the complainant and he replied in the affirmative.

[19] There is no dispute that at no time during the encounter did the complainant say any words to the accused by way of protest.

[20] There is also no dispute that at no time during that night did Mr. Tweneboah-Koduah ever ask the complainant if she was drunk or had been drinking or was under the influence of alcohol. He thought that would have been “rude” to ask.[^7] I rejected his evidence that he could not see, smell, or sense any indication that the complainant had been drinking.[^8]

[21] When Mr. Tweneboah-Koduah grew tired and returned to his room upstairs, he turned the bedroom lights on and woke up the complainant. She quickly dressed, grabbed her belongings, and returned to her room downstairs. It was then around 3 a.m. on the morning of Saturday, September 6th. The complainant went to the bathroom and brushed her teeth, repeatedly, and then took a shower. She put on a sanitary pad because she was bleeding so much from her vagina. She sent some text messages to her friends, and then she fell asleep in her bed.

[22] The next day, the complainant attended the Sexual Assault Treatment Centre at Windsor Regional Hospital. The treating nurse examined the complainant and noted that the complainant had sustained a 1 cm. laceration to the posterior fourchette, at the base of the vagina. That injury was not a function of a woman losing her virginity. Rather, as the treating nurse testified, the laceration was caused by “blunt force trauma.”

[23] The complainant remained at the University of Windsor for only the rest of her first year. She then returned home. At the time of the trial, she was attending another university, living at home with her parents again.

Circumstances of the Offender

[24] A pre-sentence report was prepared on December 2, 2016, and marked as exhibit no. 5 on the sentencing hearing.

[25] Mr. Tweneboah-Koduah is currently 20 years old. He had turned 18 years of age just a few short weeks before the date of the offence in September 2014. He was then attending the University of Windsor, enrolled as an international student in a first-year program.

[26] Mr. Tweneboah-Koduah was born and raised in Ghana, where his parents continue to reside. He is the youngest of five children. He appears to have been raised in a traditional nuclear family, which he described as positive and free of any neglect or abuse. His father is a high school teacher and his mother is a bank manager at a bank in Ghana. He lived with his family until he was 15 years of age, at which time he commenced high school at a private boarding school, a Presbyterian Boys School, where he lived throughout the school year. His parents would come to visit him once a month.

[27] Mr. Tweneboah-Koduah considers his eldest siblings to be second parents to him. However, with the exception of his one sister who is close in age to him, he is reportedly not close with his other siblings, as they are all married or living in different countries. He and his sister immigrated to Canada to receive their post-secondary education here. His sister is completing her university degree in Vancouver, British Columbia, and has come to visit him three times since his arrival in Canada in 2014.

[28] Mr. Tweneboah-Koduah came to Canada in or about September 2014 on a student visa. He had been in the country not even a month before committing the offence. Following the offence, the University of Windsor took the position that it would hold its own academic hearing to determine whether he would be allowed to remain at the University and that such hearing would be held following the conclusion of the criminal proceedings.

[29] Accordingly, in or about November 2014, Mr. Tweneboah-Koduah transferred to York University in Toronto, where he has completed two years of his four-year program in the Actuarial Stream of the Honours Mathematics for Commerce program. He described himself at a B+ student, and that is consistent with the academic transcripts of his first two years at York, which were entered as exhibit no. 7 at the sentencing hearing. Mr. Tweneboah-Koduah reported that he has goals of becoming an actuary for an insurance company or working as an investment banker.

[30] After Mr. Tweneboah-Koduah transferred to York University, he obtained a part-time position at the start of his second year with The Island Caribbean Restaurant, located on the York campus, where he works on average 16 hours per week. The operations manager of the restaurant provided a letter of recommendation dated December 9, 2016, which was marked as exhibit no. 8 on the sentencing hearing, and which describes Mr. Tweneboah-Koduah as one of the restaurant’s “best servers” and “top employees.” The manager spoke of Mr. Tweneboah-Koduah in very positive terms, describing him as a reliable and dependable employee who takes initiative, offers to cover shifts of his co-workers, and completes job functions outside of his own job description. The manager advised that he received a wage increase in 2016 because of his “impressive work ethic and performance.”

[31] Mr. Tweneboah-Koduah is currently residing in Brampton with his father’s cousin and his wife, both of whom are pastors. He described them as surrogate parents, with whom he spends time when not in school and attends church every Sunday. They are aware of the criminal proceedings and have reportedly provided support and counselling to Mr. Tweneboah-Koduah.

[32] Mr. Tweneboah-Koduah is not married, was not involved in any relationship at the time of the pre-sentence report, and has no dependents. He reportedly does not consume alcohol or use illicit substances, which was confirmed by collateral sources.

[33] The pre-sentence report indicates that Mr. Tweneboah-Koduah “appeared to have insight into his behaviour and the lasting effects it would have on the victim, however minimized his responsibility, maintaining that she consented to sexual contact. … He acknowledged that in hindsight he should have inquired as to whether she had been consuming alcohol, however, did not believe this to be a factor at the time in her inability to consent.”[^9]

[34] Mr. Tweneboah-Koduah has no criminal record and reportedly no prior involvement with the criminal justice system in Canada.

Impact on the Victim

[35] Subsection 722(1) of the Criminal Code directs a court to consider any statement of a victim prepared in accordance with that section.

[36] The complainant provided a victim impact statement, which she read in court and was marked exhibit no. 1 on the sentencing hearing. It is clear that, more than two years since the offence, the complainant continues to suffer emotionally from the assault. As she said, the physical wounds that she suffered have healed, “but the emotional wounds are still fresh and far from disappearing.”[^10]

[37] The complainant described these last two years as the roughest of her life. As indicated previously, as a result of the “blunt force trauma” of the assault, the complainant had sustained a 1 cm. laceration to the posterior fourchette of her vagina. Following the assault, the complainant went on HIV post-exposure prophylaxis medication, because she knew nothing of her assailant. Within hours she became “the sickest [she] had ever been in her entire life,” violently vomiting from the HIV PEP, which made it impossible for her to sleep or eat or function normally and resulted in the complainant missing her entire first week of classes.[^11]

[38] In the weeks immediately following the assault, the complainant struggled with thoughts of suicide and self-loathing. She was “terrified” to leave her room. She began to blame herself, feeling like she had failed her parents and herself by getting so drunk that she placed herself in such a vulnerable, exposed position. She apparently contracted herpes and developed genital sores. She was prescribed anti-depressants and found she had to continually increase the dosage.

[39] Eventually, the complainant forced herself to start going to therapy, feeling plagued by dark and intrusive thoughts, which could be triggered by seemingly innocuous every day incidents. She reported attending eight months of counselling once a week, and while she found some comfort and temporary improvement from it, she found it necessary to return to counselling once the trial proceedings commenced, which made her feel as if she was reliving the assault all over again. As the complainant said, “PTSD has been [her] constant, unwelcome companion.”[^12]

[40] The experience left the complainant feeling robbed – robbed of the “fresh start” that she and her family had so hoped she would find through the experience of going away for her first year of university, especially after not having had the easiest time in high school – and, more importantly, robbed of her virginity, of the opportunity and the right to decide for herself who would be her first sexual partner, “someone that I knew, someone that I trusted, and someone that I deeply cared about.”[^13]

[41] As a result of the assault, the complainant finds it difficult to trust and be fully open with people outside of her family. She is extremely distrustful of strangers. In particular, she finds it “next to impossible to trust women”[^14] and has no close female friends as a result of the fall-out from the assault and the reaction of her previous roommate, from whom she was instilled with a profound sense of betrayal.

[42] Thankfully, the complainant is currently in a very happy and supportive relationship, but “physical intimacy continues to be a challenge.”[^15] She is required to take very expensive medication in order to keep the herpes lesions suppressed and to avoid passing the disease on to her partner.

[43] Struggling with nightmares for the past two years of her life, the complainant continues to experience feelings of paranoia, low self-esteem and self-consciousness, physical illness and stress, and PTSD triggers. Her life was dramatically changed, and she feels that “there is forever going to be a massive split in [her] history, between ‘before’ and ‘after’” the assault.[^16]

[44] Thankfully, the complainant has learned just how strong she can be. She has “learned how to cope with the bad days, the dark times, and to make [herself] keep going when all [she wants] to do is give up.”[^17] She has made the choice to be a survivor. I was impressed with the strength and sheer determination of this young woman.

[45] I also received victim impact statements from all members of the complainant’s immediate nuclear family, that is, her brother, mother, and father.

[46] The statement of the brother was read by the complainant in court and then marked as exhibit no. 2 on the sentencing hearing. Learning what happened to his sister hit him “like a freight train.” He too felt the profound loss of what the family had hoped would be a “fantastic” first year away from home at university. The brother has supported the complainant throughout; they have had “deep talks” together, and they have cried together. The brother expressed feelings of guilt and remorse that he was not there at the time to stop the assault, to protect his sister, to be “there for her when she needed me most.” He wonders whether he could have prevented the assault by warning her beforehand not to drink. He feels like he failed his sister. However, he is also inspired by the strength he feels his sister has shown throughout this ordeal. He feels immense pride in his sister because of her strength.

[47] The complainant’s mother read her own statement in court, which was marked as exhibit no. 3. The mother recounted the family’s efforts to support the complainant over the last two years and help her cope as best they could, but it has been stressful. The family has been strong for her, but the assault has taken its toll on them as well. The mother finds herself immersed in worry. As she watches her daughter struggle with depression, still on medication and in counselling, she is worried for her daughter’s future. Will her daughter still need medication and counselling? If her daughter secures gainful employment, will her benefits cover the cost of the expensive medication and counselling? How will the herpes affect her daughter’s future relationships? Childbirth? The mother’s thoughts are clouded with worry and helplessness, and she laments with the realization that she cannot just “kiss and make it better” anymore.

[48] The complainant’s father read his statement in court, which was marked as exhibit no. 4. The father’s grief was palpable. He expressed the anguish of a parent watching a child – a father watching his only daughter – suffer through the aftermath of a crime of personal violence and violation. He continues to struggle with the “why’s” – the desperation of trying to understand how and why this thing happened to his daughter. He was consumed with rage then; he continues to struggle with his anger now. He watched his daughter experience the mental stress, the self-doubt, and the helplessness, and he shared in those feelings. However, like his wife and his son, he is encouraged by his daughter’s strength, and he looks forward to better days ahead for her.

Legal Parameters

[49] At the time of the offence, the provisions of s. 271(a) of the Criminal Code relevant to the circumstances of this case provide that everyone who commits a sexual assault is guilty of an indictable offence and is liable to imprisonment for a term not exceeding 10 years.

Positions of Crown and Defence

[50] The Crown submits that the usual range of sentence for a sexual assault of this nature is a term of imprisonment between 18 months and three years.[^18] The defence does not dispute that range. I accept that the usual range is as submitted by the Crown.

[51] I have carefully considered the submissions of counsel for both parties. Ms. Holmes submitted on behalf of the Crown that an appropriate sentence in the circumstances of the instant case would be imprisonment for a term somewhere between 26 to 30 months. Ms. Brown for the defence submitted that imprisonment within the range of 12 to 18 months would be appropriate.

[52] I have also considered the cases relied upon by both counsel and their submissions on each other’s authorities. The cases submitted by Crown counsel generally fall within the usual range of sentence for a sexual assault of this nature. [^19] Not surprisingly, the cases submitted by the defence generally argue for a lesser sentence. [^20]

[53] Sentencing is a highly discretionary and individualized process. Accordingly, while cases decided by other courts are useful for certain purposes, the decisions turn on their own unique circumstances. My task is to impose a sentence that is appropriate for Mr. Tweneboah-Koduah “based on the particular facts of the offence and of the offender within the applicable principles of law.”[^21]

Analysis

Principles of Sentencing

[54] The fundamental purpose of sentencing is set out expressly in s. 718 of the Criminal Code, which provides as follows:

The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[55] For particular offences, where, as here, the complainant is less than 18 years of age, s. 718.01 of the Code specifies the following objective:

When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[56] The fundamental principle of proportionality in sentencing is enshrined in s. 718.1 of the Code, which provides as follows:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[57] Section 718.2 of the Code sets out other sentencing principles and considerations, including the following:

A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

Mitigating Factors

[58] I consider the following mitigating factors:

a. youthful first offender: Mr. Tweneboah-Koduah had just turned 18 years of age some three weeks before the assault. He has no criminal record or involvement with the criminal justice system in Canada. These considerations are deserving of significant weight;

b. favourable employment history: Mr. Tweneboah-Koduah is extremely well regarded by his current part-time employer, who described him as one of the restaurant’s “top servers” and “best employees.” That Mr. Tweneboah-Koduah has been able to excel at his part-time employment while maintaining above-average grades in his university program is worthy of some consideration;

c. considerations of remorse: While the pre-sentence report does indicate that Mr. Tweneboah-Koduah expressed feeling badly knowing that the complainant was a virgin and that she apparently contracted a sexually transmitted disease from her first sexual encounter, he was unsure how this occurred because he had medical screening before entering Canada, which led him to believe he had no sexually transmitted infections.[^22] The pre-sentence report indicated that Mr. Tweneboah-Koduah “appeared to have insight into his behaviour and the lasting effects it would have on the victim, however minimized his responsibility maintaining that she consented to the sexual contact.”[^23] In the circumstances, I agree with the submission of Ms. Holmes that this does not reflect a true expression of remorse for his conduct and the impact it has had on the victim. It is therefore entitled to no weight as a mitigating factor. That said, while an offender’s expression of remorse is a mitigating factor, the failure to express remorse is not an aggravating factor.[^24] The fact that Mr. Tweneboah-Koduah has expressed no real remorse, has maintained his innocence, and has expressed his intent to appeal his conviction are all just neutral factors.

Aggravating Factors

[59] I also consider the following aggravating factors:

a. the age of the victim: As indicated previously, s. 718.01 of the Criminal Code requires the court to give primary consideration to the objectives of denunciation and deterrence where the offence involves the abuse of a person less than 18 years of age. Consistent with s. 718.01, s. 718.2(a)(ii.1) of the Code statutorily deems the abuse of a person under the age of 18 years to be an aggravating circumstance. In the instant case, the complainant was 17 years of age at the time of the offence, and the sexual assault upon her was clearly an abuse of her person;

b. the vulnerability of the victim: The complainant here was 17 years of age and extremely intoxicated at the time of the offence. The accused had not consumed any alcohol that night. The accused had the opportunity and means to stop, think, and realize what he was doing. The complainant was not in that position. Simply put, Mr. Tweneboah-Koduah took advantage of her. That is an aggravating factor.

c. significant impact on the victim: As indicated above, s. 718.2(a)(iii.1) of the Code stipulates that evidence that the offence had a significant impact on the victim, considering her age and personal circumstances, shall be deemed to be an aggravating circumstance. In my view, as is apparent from the victim impact statements reviewed above, there is no doubt but that Mr. Tweneboah-Koduah’s assault of the complainant had a significant impact on her and has caused her ongoing emotional and psychological harm;

d. transmission of a sexually transmitted disease: The evidence of the complainant at trial was that prior to the sexual assault she had no symptoms of herpes or any other sexually transmitted disease. She first noticed genital sores following her assault by Mr. Tweneboah-Koduah, and she has required ongoing medication to treat the condition. The pre-sentence report indicates that Mr. Tweneboah-Koduah was cleared for STDs when he immigrated to Canada and that he is therefore uncertain as to how he could have transmitted herpes to the complainant. During the sentencing hearing, there was objection taken by defence counsel to the conclusion that the accused gave the complainant herpes, especially given the complainant’s evidence that the accused used a condom during, at least, the vaginal intercourse, and the absence of any conclusive medical evidence on point. In view of the objection of defence counsel, I find that the Crown has failed to prove beyond a reasonable doubt that the accused gave the complainant herpes and, much less, that he knew he was doing so at the time of transmission. While I do not doubt the complainant’s evidence that she has been required to take medication to treat the symptoms of herpes, I am unable to conclude on the evidence before me that the Crown has proven beyond a reasonable doubt that the accused caused the transmission of that virus.

Collateral Consequences: Immigration Concerns

Legal principles

[60] At the sentencing hearing before me, defence counsel submitted that the accused would confront “immigration issues” as a result of my sentence, and that his immigration status would be “adversely impacted” by a custodial sentence. However, there were no specific submissions as to exactly how or why the accused’s immigration status would be affected by the sentence of the court. No reference was made to any relevant statutory provisions or case law in that regard.

[61] However, on my review of the jurisprudence, I note the leading decision of the Supreme Court of Canada in R. v. Pham,[^25] where the court recognized that a sentencing court should have regard for the collateral consequences, including immigration concerns, that may be faced by an offender upon conviction. In R. v. Pham, Wagner J., for the court, made the following observations:

[T]he collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender (s. 718.2 of the Criminal Code). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders (s. 718(d) of the Criminal Code)…

Therefore, collateral consequences related to immigration may be relevant in tailoring the sentence, but their significance depends on and has to be determined in accordance with the facts of the particular case.

The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.

The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.[^26]

[62] Accordingly, “while the spectre of deportation is a legitimate consideration for a sentencing judge, it cannot be used to justify an otherwise unfit sentence.”[^27] Immigration concerns or other collateral consequences may be considered in order to situate the sentence within the range of appropriate sentences, but they must not be used to re-calibrate the appropriate range.[^28]

[63] As our Court of Appeal has said, sentencing judges “ought not to be imposing inadequate or artificial sentences at all, let alone for the purpose of circumventing Parliament’s will on matters of immigration.”[^29] However, there is seldom only one correct sentence available to a sentencing court:

If a trial judge were to decide that a sentence at or near two years was the appropriate sentence in all of the circumstances …, the trial judge could look at the deportation consequences … of imposing a sentence of two years less a day as opposed to a sentence of two years. I see this as an example of the human face of the sentencing process. If the future prospects of an offender … can be assisted or improved by imposing a sentence of two years less a day rather than two years, it is entirely in keeping with the principles and objectives of sentencing to impose the shorter sentence. While the assistance afforded … by the imposition of a sentence of two years less a day rather than two years may be relatively small, there is no countervailing negative impact on broader societal interests occasioned by the imposition of that sentence.[^30]

[64] These considerations will generally permit the court to make a “limited adjustment to an otherwise fit sentence to avoid unnecessary consequences”[^31] or to trim “a few days (or weeks) off a fit sentence, for immigration reasons.”[^32] However, they will not permit the court to disregard the appropriate range of sentence and substitute “a completely different sanction because a conviction might have serious immigration implications for the offender.”[^33]

Immigration consequences

[65] Mr. Tweneboah-Koduah entered Canada and remains here on a student visa. He is neither a Canadian citizen nor a permanent resident; he is a “foreign national” for the purposes of s. 2(1) of the Immigration and Refugee Protection Act.[^34]

[66] Subsection 36(2) of the IRPA provides that a foreign national is inadmissible to Canada on the grounds of criminality where the foreign national has been convicted in Canada of an offence punishable by way of indictment.[^35] Given that, under s. 271 of the Criminal Code, sexual assault may be prosecuted by way of indictment, and was here, the result is that Mr. Tweneboah-Koduah is subject to being found inadmissible on the grounds of criminality for the purposes of the IRPA.

[67] As such, on my review of the legislation, Mr. Tweneboah-Koduah could be the subject of a removal order by the Minister of Citizenship and Immigration. It appears that where an immigration officer transmits a report to the Minister that a foreign national is inadmissible, and where the only grounds of inadmissibility are criminality or serious criminality, the Minister is expected to make a deportation order if he is of the opinion that the officer’s report is well-founded.[^36]

[68] It would appear that, drawing an inference from the language of s. 63(2) of the IRPA, a foreign national who does not hold a permanent resident visa cannot appeal a removal order to the Immigration Appeal Division, which has the power to stay a deportation order for humanitarian and compassionate grounds.[^37]

[69] Moreover, even if the foreign national did have a right of appeal, that right would appear to be limited by s. 64(2) of the IRPA, the effect of which would appear to limit the right of appeal to cases where the term of imprisonment was less than six months.[^38]

[70] The other relief available to a foreign national subject to a removal order is an application for a pre-removal risk assessment or a request for a ministerial stay on humanitarian and compassionate grounds.

[71] In the result, it would appear that the only sentence that could avoid the collateral consequences under the IRPA is a conditional or absolute discharge[^39] or, if Mr. Tweneboah-Koduah were found to have a right to appeal the removal order, a custodial sentence of less than six months.

[72] In my view, given the circumstances of the instant case, it is plain that neither a conditional or absolute discharge nor a custodial sentence of less than six months would be a fit or just sentence here. Imposing a sentence of that nature would not be proportionate to the gravity of the offence or the degree of responsibility of the offender. It would seek to do exactly what the Supreme Court of Canada has said a sentencing justice must not do, that is, misuse the flexibility of the sentencing process “by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.”[^40]

Appropriate Sentence

[73] Mr. Tweneboah-Koduah has no criminal record. That is a primary consideration. The courts have repeatedly held that, generally speaking, the primary objectives in sentencing a first offender are individual deterrence and rehabilitation.[^41] Our Court of Appeal has made it clear that in the case of a first offender, the sentence “should constitute the minimum necessary intervention that is adequate in the particular circumstances,” and the sentencing court “should explore all other dispositions before imposing a custodial sentence” and impose a custodial sentence only where the circumstances are such, or the offence is of such gravity, that no other sentence is appropriate.[^42]

[74] Moreover, Mr. Tweneboah-Koduah is a young man. He was just barely 18 years old at the time of the offence and is 20 years old at present. The courts have said that in the case of a youthful first offender, the general rule is that the analysis should focus on the particular offender and the considerations of individual deterrence, where necessary, and rehabilitation.[^43]

[75] However, our Court of Appeal has also recognized that an exception to the general rule is provided for serious crimes of violence, particularly sexual assaults. In R. v. Thurairajah, Doherty J.A. held that, “[w]hile all of the principles of sentences remain important, including rehabilitation, for serious crimes involving significant personal violence, the objectives of denunciation and general deterrence gain prominence.”[^44]

[76] The sexual assault upon the complainant was a serious crime of significant personal violence, perpetrated against a young woman of 17 years of age. In addition to the physical violence inherent in the sexual assault itself, Mr. Tweneboah-Koduah tore the vagina of the complainant, causing a 1 cm. laceration to the posterior fourchette, by blunt force trauma. The physical assault involved significant personal violence to the complainant. It has caused her to suffer lasting emotional and psychological harm. Her family has suffered significant harm as well.

[77] I am troubled by the vulnerability of the complainant and, more particularly, Mr. Tweneboah-Koduah’s response to that vulnerability. In convicting the accused, I found that the complainant was significantly and visibly intoxicated at the time of the offence. I rejected, completely, the accused’s evidence that he never observed the complainant exhibiting any signs of drunkenness or intoxication. His evidence on that point was inconsistent with every other witness who observed the complainant that evening. The complainant was 17 years old and extremely intoxicated, in a party setting at a university residence lounge where, as was known to the accused, most everyone else had also been drinking, including the accused’s own friends. She was, at that point in time, a vulnerable person. I simply do not accept that the accused was unaware of any semblance of the complainant’s intoxication. Rather, I have found that he was aware of her intoxication but went ahead anyway. He himself had not been drinking. In those circumstances and at that moment, the accused had a choice to make – having consumed no alcohol himself that night, and being of apparently sound and sober mind, he could choose to help the complainant, to protect her from her own misjudgment, the temporary lapse in judgment of an otherwise responsible 17-year-old girl during frosh week of her first year at university, or he could choose to take advantage of what he must have known to be the complainant’s vulnerability caused by her apparent intoxication in order to service his own desires. He chose the latter. That choice underscores his moral blameworthiness. That choice requires the court’s, and society’s, denunciation.

[78] Having regard for all of the relevant circumstances, and for all of the mitigating and aggravating circumstances, as well as the collateral consequences that the sentence will have in terms of the immigration concerns, I have concluded that a fit sentence here requires a term of imprisonment of 26 months.

Final Disposition

[79] Mr. Tweneboah-Koduah, would you please stand.

[80] With respect to your conviction on count no. 1, I sentence you to a term of imprisonment of 26 months.

[81] In addition, I make the following ancillary orders.

[82] Pursuant to ss. 490.012(1) and 490.013(2)(b) of the Criminal Code, I make an order in Form 52 that your name be added to the Sex Offender Registry and that you comply with the provisions of the Sex Offender Information Registration Act[^45] for a period of 20 years.

[83] Pursuant to s. 487.051(1) of the Code, I make an order in Form 5.03 authorizing the taking of the number of samples of your bodily substances that is reasonably required for the purposes of forensic DNA analysis. The offence of sexual assault being a “primary designated offence,” the making of such a DNA order is mandatory. I also make an order in Form 5.041 requiring you to attend forthwith to give such samples.

[84] Pursuant to s. 737 of the Code, you are hereby ordered to pay a victim fine surcharge of $200 on or before 180 days following your release from imprisonment.

[85] Pursuant to s. 743.21(1) of the Code, you are hereby prohibited from communicating, directly or indirectly, including any communication through electronic means or social media, with the complainant or any member of her family during your time in custody. Failure to comply with this order is a crime in itself.

[86] Finally, pursuant to s. 109(1)(a) of the Code, you are hereby prohibited from possessing any weapon beginning today and ending ten years from your release from imprisonment.

Original Signed by “Howard J.”

J. Paul R. Howard

Justice

Delivered Orally: January 31, 2017

CITATION: R. v. Tweneboah-Koduah, 2017 ONSC 640

COURT FILE NO.: CR-15-3509-0000

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

FRANCIS YAW TWENEBOAH-KODUAH

REASONS FOR sentence

Howard J.

Delivered Orally: January 31, 2017

[^1]: Criminal Code, R.S.C. 1985, c. C-46. [^2]: R. v. Tweneboah-Koduah, 2016 ONSC 6159 (S.C.J.) [“Conviction Decision”]. [^3]: Conviction Decision, para. 66. [^4]: Ibid., paras. 30-31 and 157. [^5]: Ibid., paras. 211 and 158. [^6]: Ibid., para. 52. [^7]: Ibid., at para. 51. [^8]: Ibid., at para. 159. [^9]: Pre-Sentence Report dated December 2, 2016, exhibit no. 5, at p. 7. [^10]: Victim Impact Statement of the complainant dated December 6, 2016, exhibit no. 1, at p. 3. [^11]: Ibid., at pp. 3-4. [^12]: Ibid., at p. 4. [^13]: Ibid., at p. 5. [^14]: Ibid., at p. 5. [^15]: Ibid., at p. 5. [^16]: Ibid., at p. 3. [^17]: Ibid., at pp. 6-7. [^18]: See, for example, R. v. Smith, 2015 ONSC 4304 (S.C.J.), at para. 32; and R. v. J.F., 2015 ONSC 5763 (S.C.J.), at para. 36. [^19]: R. v. Colbourne, 2013 ONCA 308 [14 months’ imprisonment, 2 years’ probation]; R. v. J.F., [18 months’ imprisonment, 2 years’ probation]; R. v. J.R., 2008 ONCA 200, 59 C.R. (6th) 158 [2 years less a day]; R. v. Smith, [summary conviction appeal]; R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99 [range appropriate there: 2 years less a day to 4 years]; R. v. Law, 2007 ABCA 203, 409 A.R. 190 [3 years]; R. v. D.D., 2015 ONSC 1312 [12 months’ imprisonment, 2 years’ probation]; R. v. Arcand, 2010 ABCA 363, 40 Alta. L.R. (5th) 199 [2 years less a day imprisonment, 2 years’ probation]; and R. v. McDonnell, 1997 389 (SCC), [1997] 1 S.C.R. 948. [^20]: R. v. Glassford (1988), 1988 7094 (ON CA), 42 C.C.C. (3d) 259 (Ont. C.A.) [2 years less a day]; R. v. H.H. (2002), 159 O.A.C. 272 (C.A.) [18 months]; and R. v. M.W., [2008] O.J. No. 4320 (S.C.) [30 months]. [^21]: R. v. Johnson, 2016 ONSC 6656 (S.C.J.), at para. 18. [^22]: Pre-Sentence Report dated December 2, 2016, exhibit no. 5, at pp. 4-5. [^23]: Ibid., at p. 7. [^24]: R. v. Rockey, 2016 ONCA 891, at para. 31. [^25]: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739. See also R. v. Nassri, 2015 ONCA 316, 125 O.R. (3d) 578. [^26]: R. v. Pham, at paras. 11, and 13-15. See also R. v. Zhou, 2016 ONSC 3233 (S.C.J.), at para. 14. [^27]: R. v. Spencer, 2015 NSCA 108, 367 N.S.R. (2d) 246, at para. 8. [^28]: R. v. Giraldo-Vargas, 2016 ONSC 8117 (S.C.J.), at para. 24; R. v. C. (R.), 2016 ONCJ 605, at para. 28. [^29]: R. v. Badhwar, 2011 ONCA 266, 270 C.C.C. (3d) 129, at para. 45. [^30]: R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 158. [^31]: R. v. Zhao, 2014 BCCA 98, 352 B.C.A.C. 288, at para. 34. [^32]: R. v. Bandesha, 2013 ABCA 255, 556 A.R. 1, at para. 9. [^33]: R. v. Zhao, at para. 34. [^34]: Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). [^35]: Paragraph 36(3)(a) of the IRPA provides that where an offence that can be prosecuted either summarily or by way of indictment, it is deemed to be an indictable offence. [^36]: See ss. 44(1) and (2) of the IRPA and s. 228(1)(a) of the Immigration and Refugee Protection Regulations, S.O.R./2002-227. See also Cha v. Canada (Minister of Citizenship & Immigration), 2006 FCA 126, 349 N.R. 233, at paras. 34 and 38. [^37]: Subsection 63(2) of the IRPA provides that: “A foreign national who holds a permanent resident visa may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing.” [^38]: Section 64 of the IRPA provides that: 64 (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. (2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c). See also R. v. Nassri, at para. 12, where our Court of Appeal noted recent significant legislative amendments: One month before the sentence was imposed, Bill C-43, the Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16, came into force and amended s. 64(2) of the IRPA. As a result of the amendment, the definition of “serious criminality” for the purpose of s. 64(1) changed from “a crime that was punished in Canada by a term of imprisonment of at least two years” to “a crime that was punished in Canada by a term of imprisonment of at least six months” (emphasis added). [^39]: In that event, under s. 730(3) of the Criminal Code, he would be deemed not to have been convicted of the offence. [^40]: R. v. Pham, at para. 15; and R. v. Nassri, at para. 28. [^41]: R. v. Priest (1996), 1996 1381 (ON CA), 30 O.R. (3d) 538 (C.A.), at para. 17. [^42]: Ibid., at paras. 17-18, quoting R. v. Stein (1974), 1974 1615 (ON CA), 15 C.C.C. (2d) 376 (Ont. C.A.) at p. 377. [^43]: R. v. Vandale (1974), 1974 1610 (ON CA), 21 C.C.C. (2d) 250 (Ont. C.A.), at para. 4; and R. v. Thurairajah, at para. 41. [^44]: R. v. Thurairajah, at para. 41. [^45]: Sex Offender Information Registration Act, S.C. 2004, c. 10.