Court File and Parties
Court File No.: CR-17-143 Date: 2018-07-27 Ontario Superior Court of Justice
Between: Her Majesty the Queen Counsel for the Crown: Amber Lepchuk
- and -
Zamir Simas-Mamani Counsel for the Defendant: Peter Boushy and Daniel Richter
Heard: July 25 and 26, 2018
Before: The Honourable Mr. Justice T. R. Lofchik
Reasons for Sentence
[1] Zamir Simas-Mamani was convicted of one count of choking in an attempt to render the complainant, M.M. incapable of resistance and one count of sexual assault. He appears before me for sentencing with respect to his convictions. I acknowledge that in proceeding with the sentencing I must take into account the fundamental principles of sentencing as recognized in s. 718 and 718.1 of the Criminal Code, that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Finally, the court must be cognizant of the totality principle inclusive of the need to ensure that a sentence is not crushing to the offender.
[2] So far as the offences are concerned, Zamir Simas-Mamani met the complainant M.M., a sex trade worker, on a public street in the City of Hamilton where an agreement was made for the complainant to provide “full service” sexual services for $100.
[3] Simas-Mimani told M.M. that his vehicle was parked nearby, so they began to walk east along Barton Street and then turned down Birch Avenue in a northerly direction. After walking for some distance Simas-Mimani attacked M.M. from behind, putting his arm around her neck and began choking her. She testified that she passed out as a result of his actions as she could not breathe because he was lifting her up with his right arm around her neck. He dragged her up an embankment into a clearing in a bush area and proceeded to attack her by choking her with his hands, causing her to blackout again. She was on her back and he was straddling her chest area rendering her immobile with his hands to her throat.
[4] As M.M. came to, he would choke her into unconsciousness again and this happened a number of times. At one point, she woke up to find her tights, underwear, and shoes had been removed with the offender on top of her rubbing himself all over her. Her shirt was lifted up and the offender tried to run his penis all over her body. He tried to penetrate her vagina at one point with his penis, then turned her over and tried to penetrate her anus. At one point, he put his penis inside her mouth and at times his fingers in her vagina and anus. He was not wearing a condom. She could not recall whether he actually performed oral sex on her. From the evidence it appears that the attack lasted over an hour.
[5] By way of injuries, M.M. suffered a bruised neck and bruises in the area of her eyes, abrasions to her face in the area of the right eye and to her neck and back. There was an injured area around her mouth as a result of the offender covering her mouth with his hands to prevent her from screaming.
[6] The crime of sexual assault is an offence of violence against the person. It manifests elements of degradation and domination and is characterized by immediate physical trauma to the victim and the more pernicious and long lasting psychological and emotional devastation over the passage of time.
[7] Given the choking involved, this was a particularly brutal and dangerous assault. The principles of general deterrence, specific deterrence and denunciation support a significant sentence.
[8] I find that the offence that this man committed was exceptionally serious and horrific. This is one of those cases discussed by the Alberta Court of Appeal in R. v. Lemmon, 2012 ABCA 103, [2012] A.J. No. 326 where choking, as a means to achieve sexual assault, is more serious and life threatening.
[9] Parliament’s recognition of the inherent dangerousness of rendering a person unconscious to facilitate the commission of another offence is reflected by the maximum penalty prescribed for that offence: life imprisonment. Put in context, that is a significantly greater sentence than could have been imposed for the underlying offence in this case of sexual assault which carries a maximum penalty of 10 years imprisonment. In other words, what is usually seen to be the “incidental” offence carries a much greater penalty than the one it facilitates. Presumably, this is because rendering a person unconscious, whether by choking, strangulation or suffocation, is an inherently dangerous act that is easily capable of causing death or brain injury with devastating lifelong consequences.
[10] The case before me is as much about domination and power as it is about sex. The actions of the offender in choking M.M. clearly endangered her life, as the difference in outcome between unconsciousness, brain damage and death may be only a matter of a few additional seconds of pressure.
[11] As stated by the Alberta Court of Appeal:
In the final analysis, this is an act of cruel domination met by sheer horror and often accompanied by serious physical and psychological harm.
In short, although this crime is typically employed as a means to achieve another, it is often the more serious and life-threatening. Accordingly, it would be wrong to treat the offence of choking, suffocation or strangulation, where the victim has been rendered unconscious, as merely a particular or detail of the underlying offence. To do so would fail to hold the offender responsible for what is often the more serious offence, and in the process marginalizes extremely dangerous conduct.
Accordingly, a serious sentence is appropriate where the victim is rendered unconscious.
[12] The Ontario Court of Appeal in R. v. Finney, 2014 ONCA 860, [2014] O.J. No. 5787 set aside a sentence of five years imprisonment for sexual assault together with one year concurrent for choking expressing the view that the choking offence was part and parcel of the sexual assault holding that the proper application of sentencing principles rendered a consecutive sentence not warranted. They held that the sexual assault charge should be concurrent to the sentence on the choking charge.
[13] The Alberta Court of Appeal in Lemmon suggested that these sentencing principles might be achieved by imposing a concurrent sentence that is greater than that imposed for the underlying offence, sexual assault, with respect to the choking or a sentence where the underlying offence (sexual assault) that has been significantly increased because it was accompanied by the choking.
[14] Apart from the brutality of the assault, additional aggravating factors would be the fact that:
(1) the sexual assault was committed without using a condom thereby exposing M.M. to the prospect of a sexually transmitted disease and pregnancy;
(2) the fact that the offender has a criminal record involving one count of arson and an offence involving violence as well as convictions for disobeying and failing to comply with court orders;
(3) that in her victim impact statement the complainant M.M. points out that she is suffering from psychological repercussions from the attack as well as continuing back pain and difficulty swallowing;
(4) the major size and strength discrepancy between that offender and the victim; and
(5) the duration of the attack.
[15] Considering the facts of this case and applying the principles of sentencing to it, and considering the totality principle, I find that an appropriate sentence in this case for the sexual assault would be eight (8) years. The sentence for the choking offence of eight (8) years is to be served concurrently.
[16] The most important factor in this case is the brutality of the assault. The principles of general deterrence, specific deterrence and denunciation support this sentence. These were very serious crimes, worthy of a lengthy penitentiary terms.
[17] Zamir Simas-Mamani has served 477 days in pre-trial custody for which he should be given two years credit based on 1.5 to 1.
[18] The sentence on each offence is therefore six (6) years to be served concurrently.
[19] The offender shall be subject to the following ancillary orders:
(1) the offender shall provide a DNA sample in accordance with s. 47.051(1) of the Criminal Code;
(2) the offender shall be registered under the Sex Offender Information Registration Act, pursuant to s. 490.012 of the Criminal Code, for 20 years;
(3) the offender shall be subject to a weapon prohibition order pursuant to s. 109(2)(a) and (b) for life respectively; and
(4) the offender is prohibited from communicating with the victim during the custodial portion of the sentence, in accordance with s. 743.21 of the Criminal Code.