R. v. Cepic, 2018 ONSC 3346

COURT FILE NO.: CR 17-50000262-00000

DATE: 20180605

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Damir Cepic

Defendant

C. Igwe, for the Crown

S. Whitzman, for the Defendant

HEARD: February 20 and 21 and March 29, 2018

REASONS FOR SENTENCE

ANNE LONDON-WEINSTEIN, J.

The Conviction:

The Conviction

1On March 29, 2018 Damir Cepic was convicted by this court of sexually assaulting OI. It was admitted at trial that Mr. Cepic had vaginal intercourse with OI and that she also performed fellatio on him. The sole issue to be determined in the trial was whether consent was provided in regard to the vaginal intercourse and the fellatio.

The Circumstances of the Offence:

The Circumstances of the Offence

2On March 13, 2016 OI and some of her friends attended the Foxxes Den, which is a male strip club in Toronto. The group were celebrating the birthday of one of the young women in the group. OI had never attended a male strip club on any prior occasion. Mr. Cepic was employed at the club as a dancer. OI had consumed a significant amount of alcohol on the night in question, but her evidence at trial, which was accepted, was that she was not intoxicated to the point of being unable to render or refuse consent. She was 23 years old at the time of the sexual assault.

3OI had an initial lap dance with Mr. Cepic. She admitted that she was attracted to him. After the initial lap dance she paid for a second lap dance. It took place in the VIP room of the club.

4The VIP room has an entry way, but no door which can be closed. Patrons and other dancers can walk in and out of the room. During the second lap dance in the VIP room, Mr. Cepic put his penis inside of OI’s mouth. He held on to the back of her head and held her head while his penis was in her mouth.

5He then turned her over on to her stomach. Her Underarmour shorts, skirt and her underwear were removed by Mr. Cepic. He then penetrated her briefly. She said it was for a minute, Mr. Cepic said it was for a few minutes. I have found it to be, for the purposes of sentencing, a very brief period of penetration.

6Mr. Cepic withdrew his penis and ejaculated on to the floor of the VIP dance room. OI was not certain exactly when she started saying no, but she is certain that she said no before he penetrated her. Mr. Cepic said that just prior to him pulling out to ejaculate that OI said she had a boyfriend. I rejected his evidence on that point at trial.

7OI testified that she tried to push Mr. Cepic off of her by reaching behind her, as she lay on her abdomen, in a vain attempt to try and push Mr. Cepic off of her body. He penetrated her vaginally from the rear position. Mr. Cepic was not wearing a condom at the time of the incident and he was a stranger to OI.

8OI left the Foxxes Den shortly after being sexually assaulted by Mr. Cepic. Her boyfriend at the time came to pick her up. The incident was reported to police much later in the early hours of the morning. OI received a course of medical treatment as a result of having unprotected sexual interaction with Mr. Cepic. The Plan B protocol, in particular rendered her very ill.

Circumstances of the Offender:

Circumstances of the Offender

9Mr. Cepic was 29 years old at the time of this offence. He came to Canada from Bosnia, Sarajevo with his parents in 1995. His parents were present in court during sentencing submissions and support him fully. Indeed, when his surety was unable to continue acting as a surety, his parents indicated a willingness to continue as replacement sureties.

10Mr. Cepic is a Canadian citizen. The evidence in this matter revealed him to be a hard working individual who also supports his young daughter, who is now 8 years old. The mother of that child wrote a letter on his behalf which was submitted to the court. She indicated she has known him for 10 years and he remains one of her best friends. She describes him as being an excellent co-parent to their daughter. The letter writer beseeched me to consider, when sentencing him, that he is someone’s father, son, brother, lover and cousin. She indicated that she and her daughter both love Mr. Cepic.

11Mr. Cepic has been employed as both a tile setter and as a model. Mr. Raquiya G. Austin, a lawyer who has known Mr. Cepic for 10 years, wrote a letter in support of Mr. Cepic which described him as a passionate and diligent worker. He indicated that Mr. Cepic had signed with a professional modeling agency in Toronto and had participated in a charity runway show.

12A Ms. Lisa Hope wrote a letter describing Mr. Cepic as trustworthy and also reiterating, as many others did, what an excellent parent he is to his daughter.

13Mr. Kevin Boyle, of York Durham Services, works with Mr. Cepic. He described him as a diligent worker and a loving family man. A Mr. Scott Coates-Reid, HBSc, MBA described him as being one of the few honest people that Mr. Coates-Reid knew, and as an excellent friend and father.

14Mr. Phil Tsu, met Mr. Cepic in a chess tournament in downtown Toronto. They are friends who practiced martial arts together. Mr. Tsu related a story in his letter of support, which described Mr. Cepic helping an elderly woman who was struggling with heavy bags of groceries. This incident happened when Mr. Cepic and Mr. Tsu were together. The incident, Mr. Tsu wrote in his letter, exemplifies the big hearted and kind nature of Mr. Cepic. Mr. Tsu also noted that Mr. Cepic takes his daughter to YMCA classes and sports programs including basketball and soccer and dance and swimming.

15A letter from Ms. Vanessa Sonia Lachman, who is the CEO of 6IxPM, indicated that Mr. Cepic is very honest and of good character. He has modelled for runway shows and has been very helpful in cooperating with the members of the company, vendors and clients. She indicated that Mr. Cepic was unable to accept an opportunity to represent Chavez, a designer, in New York City during Fashion Week, as a result of this incident.

16As I indicated, the letters filed in support of Mr. Cepic describe a man who is compassionate and kind; a diligent worker, an honest person, and the type of person who would go out of his way to assist someone in need.

17Mr. Cepic had a somewhat dated prior conviction in 2010 for dangerous operation of a motor vehicle cause bodily harm and fail to stop at scene of accident involving bodily harm. He received an 86 day intermittent sentence, having served 184 days of custody at the time of sentencing. In 2014 he was convicted of possession of a scheduled substance (marijuana) for which he received a $350 fine. He has no prior convictions for anything related to the incident for which he has been convicted by this court.

Impact on the Complainant:

Impact on the Complainant

18OI read her victim impact statement during the sentencing hearing. She indicated that her trust in humanity has been eroded by the incident and that her school work suffered. She did graduate, despite the trauma and stress of the incident and earned her Bachelor’s degree in Environmental Science. She was unable to sustain the grades required to apply for a Master’s program. Her ability to focus on her education was effected by the sexual assault, which in turn, undermined her ability to succeed in her final exams.

19She attributes the demise of her relationship with her former boyfriend DS to the changes in her personality which occurred as a result of the sexual assault. OI indicates that she has been unable to form the type of meaningful relationship she had with DS, in large part because she feels mistrustful of people and is unable to open up to them.

20She is struggling emotionally and will attend therapy after the court proceedings. She experienced painful memories after both the preliminary hearing and the trial.

21She also indicated that the medications and vaccinations she had to take at the hospital because of the possibility of being infected with sexually transmitted infections or diseases was a significant ordeal.

22“I will never forget the excruciating pain and discomfort of the physical altercations caused by the medications,” she said. She was sick to her stomach for the next 24 hours and had crippling abdominal pain.

Position of the Parties:

Position of the Parties

23The Crown in this case is asking that I impose a sentence of 2 years less one day. The Defence is requesting a sentence in the mid to upper reformatory range (12 to 15 months)

Aggravating and mitigating factors:

Aggravating and Mitigating Factors

24The fact that this was both oral and vaginal penetration without any form of protection is aggravating. I have already referenced the pain which OI had to endure during her treatment protocol, which was a direct result of the unprotected sexual activity.

25The fact that this occurred in a somewhat public place is an aggravating factor. While it was not in the middle of a street, as was the fact pattern in one of the cases I reviewed in this matter, people could have come in and out of the VIP room and been able to see OI.

26Mr. Cepic was sober and OI, while not too intoxicated to provide or refuse consent, had consumed a significant amount of alcohol on the night in question. Mr. Cepic worked at the club and was familiar with the rules of engagement. OI was visiting the club for the first time and did not know what to expect.

27The crown in this case argued that the fact that OI said no more than once to Mr. Cepic was an aggravating factor. I initially did not agree. However, after reviewing the case law provided to me in closer detail, I see that persisting in the face of being told no can be regarded as an aggravating factor on sentence. I have accepted that the crown is correct on this issue and I have treated that factor as an aggravating one on sentence. See R v. H.H., 2002 41397 (ON CA), [2002] O.J. No 1509 at paragraph 5.

28I did not find the approximate six year age difference between Mr. Cepic and OI to be of any real significance especially in light of the other factors upon which I have relied, and I declined to treat the age difference as an aggravating factor.

29I noted that Mr. Cepic charged OI for a second lap dance and then proceeded to sexually assault her. It would be possible to regard this taking of payment followed by a sexual assault as a form of callousness. However, that factor was not argued before me by either the Crown, or the Defence, and I have declined to treat it as an aggravating factor on sentence.

30The mitigating factors in this case include the fact that the sexual assault was relatively brief and was absent any additional violence beyond that which is inherent in the act of sexual assault itself. Mr. Cepic provided excellent letters of reference regarding his character. He is described as a stellar parent, worker and friend. He has an admirable employment record and is well regarded by employers, co-workers, friends, and his former domestic partner. Mr. Cepic also turned himself in to police when contacted.

Case Law and Legal Analysis:

Case Law and Legal Analysis

31The defence argues that this case is unique factually. The facts are that a male dancer sexually assaulted a patron in a strip club. I have characterized the sexual assault as being the taking advantage of a young woman who had too much to drink and who was in a new and strange environment.

32The predominant sentencing principles are deterrence and denunciation. Both counsel provided me with a number of cases which I have reviewed. Although each case turns to some extent on its own facts, I am required to consider relevant case law dealing with similar cases.

33In R v. Garrett 2014 ONCA 734, 2014 O.J. No. 5031 the Court of Appeal found a 90 day sentence to be manifestly unfit in a case where the complainant had bruises on her tailbone as a result of the sexual assault. The accused in that case had exemplary prior conduct and no prior criminal record. The Court of Appeal noted the normal range for a case of that type to be 18 months to 3 years. A sentence of 18 months was imposed. The case featured severe injuries to the victim and a significant breach of trust, both aggravating features not present in the case before me.

34The Court also noted that the sentence imposed of 18 months should not be taken as appropriate, or within the usual range as the Court was constrained by the position taken by the trial Crown.

35In R v. Foster [2017] O.J. No 4761 the victim was a teenager who was sexually assaulted by friends of her parents. The court imposed a three year sentence for one offender and 3.5 years for the second offender. The two accused persons in that case engaged in a gross breach of trust and also plied their victim with alcohol. In my view, the extent of the breach of trust in that case distinguishes it significantly from the case before me.

36In R v. Tweneboah-Koduah [2017] O.J. No 626 the court imposed a sentence of 26 months for a first time offender who sexually assaulted his victim, leaving injuries which included a tear to her vagina. The complainant also contracted a STD and had not had any prior sexual contact with anyone else, having never had sex before. However, the trial judge found that this potentially aggravating factor had not been proven beyond a reasonable doubt.

37In R v. H.H., 2002 41397 (ON CA), [2002] O.J. No. 1509 the Court of Appeal found that a sentence in the penitentiary range would have been appropriate where the trial judge had given the accused a conditional sentence of two years less a day. The facts in that case involved an employer sexually assaulting his 18 year old employee after giving her alcohol. The accused had already served the bulk of his conditional sentence when the appeal was heard. A sentence of 18 months imprisonment was substituted for the original conditional sentence. The case involved a significantly greater breach of trust than the case before me, but did not occur in a public or semi-public forum.

38In R v. J.R. 2008 ONCA 200, [2008] O.J. No. 1054, Justice Ducharme imposed a 2 year sentence where two men took advantage of the victim while she was incapacitated. The Court of Appeal indicated that two years was at the low end of the appropriate range for that type of sentence. On appeal, the sentence for J.R. was reduced to two years less a day due to potential immigration issues. The two accused had been acquitted of gang sexual assault, but convicted of sexual assault.

39In R v. R.D.C., [2005] O.J. No. 2922 the accused was sentenced to two years less a day in a case where the accused had forcible sexual intercourse with a 17 year old victim. The Court found the sentence to not be demonstrably unfit given his age, lack of a criminal record and positive presentence report. The accused in that case had also threatened the victim. The victim had also been a long time and trusted friend of the accused prior to the sexual assault. The Court noted that this type of offence would normally attract a three to four year sentence.

40In R v. M.K., [2005] O.J. No 127 the trial judge had imposed a sentence of six months imprisonment plus one year probation where the accused and forced sexual intercourse on a 17 year old victim. On appeal, it was held that a term of imprisonment in the penitentiary range would not be inappropriate, but instead imposed a sentence of two years less a day. The accused had a prior unblemished record.

41In R v. Quesnelle 2010 ONSC 3713, [2010] O.J. No 3634 Justice Thorburn convicted the accused of two counts of sexual assault and two counts of assault. The accused was sentenced to a global sentence of 6.5 years. The offences were highly violent and involved anal intercourse, generally regarded as an aggravating feature on sentence. I found this case to be so factually different from the case before me that its value as a precedent was negligible.

42Defence counsel provided me with R v. J.W.M. [2004] O.J. No. 1295. In that case Justice Hill found an 18 month sentence to be fit in circumstances where the crown had proceeded summarily and was unable to therefore seek a sentence in the penitentiary range for the accused. That case involved an abuse of trust. Justice Hill noted that the doctrine of worst offender/worst offence analysis is not applicable to an 18 month sentence where the Crown proceeds summarily for tactical reasons in a case that is nonetheless a more serious sexual assault. That is not to say that a higher sentence, had the crown proceeded by indictment, would be inappropriate in those circumstances.

43The crown in this case argued that where the accused has had the benefit of a preliminary hearing, and the complainant has had to testify both at trial and at preliminary hearing, that an 18 month sentence should not be available. I do not interpret the ratio in J.W.M., to stand for the proposition that an 18 month sentence would be an unavailable sentence even where the crown proceeded by indictment and a preliminary hearing held. In J.W.M., in all of the circumstances, including the mode of election, an 18 month sentence was held to be fit.

44In my view, it would be an error in principle for me to refuse to consider the fitness of an 18 month sentence in all of the circumstances of this case, simply due to the crown’s mode of election. Rather, I must craft a proportionate sentence based on the facts before me. R v. Lacasse 2015 SCC 64, [2015] 3 SCR 1089

45Defence counsel also provided me with R v. J.S., 2011 ONSC 1743. In that case a 15 month sentence was imposed where the accused had sexual intercourse with an individual who had no capacity to consent. The accused in that case had no prior record. He was a dedicated father and hardworking, like Mr. Cepic.

46In R v. Casilmas 2013 ONCJ 211 Justice Pringle of the Ontario Court of Justice imposed a 15 month sentence for a sexual assault which she noted as being at the lower end of the appropriate range. (See para 22)

47In that case, the accused had sexual intercourse with a woman who told him she wanted to have sex with him, but lacked the capacity to consent. The court found that Mr. Casilmas was wilfully blind to the fact that the victim was too intoxicated to be capable of furnishing consent. The case took place in public view and no condom was used. In that case, Justice Pringle found that the accused did not persist in insisting on sexual intercourse when being told no, which distinguished the case from some of the other sentences which were higher and are reflected in the case law. In the case of Mr. Cepic of course, I have found that he persisted after being told no, and that the case law reflects that this is an aggravating factor on sentence. The offender in the case also had an unrelated record.

48Justice Pringle found that the accused had demonstrated remorse and that he had not shown callous indifference by persisting in the face of being told no by the complainant.

49In the case before me, Mr. Cepic has not demonstrated remorse. I do not find that to be an aggravating factor on sentence, but neither can I give him credit for demonstrating remorse.

50In R v. Crespo 2016 ONCA 454 the accused received a 15 month sentence. The accused in that case did not continue in the face of being told “no”, and the sexual assault did not take place in a public place. The accused also did not appear to have a prior criminal record.

51In R v. McKenzie 2017 ONCA 128 the accused was convicted of sexual assault involving brief anal penetration. The trial court imposed a 9 month sentence which was not interfered with by the Ontario Court of Appeal. The trial judge wrote at para 37 of the judgment that, “had there been a fully completed act of vaginal or anal intercourse in the face of the complainant saying no, no, no, than 3 years would have been entirely appropriate.” (Para 20)

52The trial judge found that because there was only partial penetration, and in light of the acts that preceded the assault, the case was somewhat less serious than the assaults in cases referred to by the Crown.

53At paragraph 21 of the appellate decision, doubt was expressed as to the mitigating value of those factors, but the sentence was not altered.

54I am prepared to accede to the crown’s request of two years less a day. Although the facts of this case, in my view, could potentially attract a penitentiary sentence in the range of three years, the Crown position is imminently reasonable, given all of the facts in this case. Each case must be decided individually, but having reviewed all of the case law provided to me, in my view the sentence proposed by the crown adequately reflects the principles of deterrence and denunciation required by this type of serious sexual assault.

55In my view, the fact that this was unprotected penetration by a stranger, where both fellatio and vaginal intercourse took place, militate against the type of sentence requested by the defence. As I indicated, Mr. Cepic has a dated and unrelated criminal record, which means that I cannot treat him as a first offender. The incident occurred in a semi-public place, which added to the potential for humiliation of the victim. And, I have found that Mr. Cepic was told no, and yet he persisted. The crown was quite correct that persistence in the face of being told no is an aggravating factor.

56If I were to impose a sentence in the range suggested by the defence, I am of the view that I would be committing the error identified by the Court of Appeal in R v. Inksetter 2018 ONCA 474. In that case, the court found that the trial judge identified the need for deterrence and denunciation to be paramount values in crafting a sentence. The sentence imposed, in the view of the reviewing court however, failed to adequately express those values. That case involved the worst/offence, worst/offender principle, which does not apply in the case before me.

57I am of the view that any sentence below an upper reformatory sentence would not give sufficient weight to denunciation and deterrence on the facts of this case. I have not made this decision lightly, as the letters provided describe Mr. Cepic as a loving father, loyal friend, compassionate human being and an enterprising worker.

58At the end of the day however, this is a case where a sober person familiar with his environment, took advantage of a young woman who, while not too drunk to consent or to refuse consent, was not sober. She had never been to a strip club before. She was forced to perform fellatio on a stranger and penetrated by that same stranger. No condom was used, ensuring that she had a world of suffering visited on her at the hospital through the post-sexual assault protocol. The incident took place in a semi-public place and had a significant lasting impact on her.

59Despite the very able submissions of defence counsel, I am unable to find that the circumstances of this case are so unique as to allow me to impose a lower sentence. In my view it is not possible for me to do so while also appropriately reflecting the required sentencing values of denunciation and deterrence in an appropriate manner. Please stand up Mr. Cepic.

Sentence

60Mr. Cepic I sentence you to two years less a day. You shall be on probation for 24 months. You shall be placed on the Sexual Offenders Information Registry (SOIRA) for 20 years. Upon your release from prison you are to report to probation within 72 hours and thereafter as required.

61You shall reside at an address which you are to provide to your probation officer. You are to have no contact with the victim in this matter and not to attend within 500 metres of where you know her to be. You are to attend any programs recommended to you by your probation officer and sign any necessary releases.

62There will be a section 109 order banning you from possessing weapons for 10 years. There will be an order requiring you to provide a sample of your DNA.

Anne London-Weinstein, J.