COURT FILE NO.: 550/17 DATE: 2018 12 14 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – MAHIR DIABAS

R. Prihar, for the Crown P. Singh, for the Accused

HEARD: November 23, 2018

REASONS FOR SENTENCE

Publication of Any Information Tending to Reveal the Identity of the Complainant Herein is Prohibited under s.486.4 of the Criminal Code of Canada

Woollcombe J.

Overview

[1] After a six day trial, on September 12, 2018, I found Mahir Diabas guilty of two counts of sexual assault, and one count of each assault, and criminal harassment. This matter is before me for the imposition of sentence.

Facts

[2] In terms of the facts, I will address the circumstances of both the offence and the offender.

Circumstances of the offence

[3] My reasons for judgment, which set out in detail my factual findings, are now reported at: 2018 ONSC 5305. I will not repeat the details.

[4] By way of background, the complainant testified that she and the accused had a relationship in which he provided her with money and crack and she provided him with sex.

[5] Suffice it to say that on or about October 31, 2015, after the complainant had consumed crack, the accused had non-consensual anal intercourse with her in the basement apartment of the home of friends of theirs. It lasted under five minutes. This was followed by a physical altercation outside in which the accused hit the complainant on the side of her face. These are the Arjay Trail sexual assault and assault counts, which are counts 1 and 4.

[6] Between January and March, 2016, the accused provided the complainant with crack. After this, while they walked in a secluded area, he demanded oral sex. When she refused, he urinated on her. This is the count 5 assault.

[7] At some point later, between January and March 2016, the accused took the complainant to a hotel room at the White Knight Motel and provided her with crack. After this, he had non-consensual anal intercourse with her. This is count 2.

[8] Finally, in terms of the criminal harassment, count 3, on April 6, 2016, the accused saw the complainant before she got on a bus and tried to speak with her. He then followed her on the bus and parked when she got off the bus. He went towards the variety store that she had entered. In the circumstances, his following her caused her to reasonably fear for her safety.

Circumstances of the offender

[9] I have been provided with information about Mr. Diabas’ background both through the trial and in a pre-sentence report.

[10] Mr. Diabas is 51 years old. He was born and raised as a refugee in the West Bank, where he completed his elementary schooling and completed high school. He then attended a two year college program where he obtained a degree in Business Management and worked in the construction industry. He had a loving and supportive family. At age 21, he married his wife, a marriage arranged by their families and in which he says he has never been happy. They have four children ranging in age from 20 to 28.

[11] In 2008, Mr. Diabas came to Canada with his sister and remained here – first as a refugee and, since 2015, as a citizen. His wife and children joined him here in 2014, although he considers himself separated from his wife and lives separately in a basement apartment of the home he purchased. He feels it is his obligation to support his wife and he also supports his children.

[12] Mr. Diabas has worked full time since being in Canada. He works now as a pipe layer and is reported to be dependable, hard-working and reliable. A letter from the office manager of his employer describes him as friendly, reliable, punctual and as someone who shows great leadership. He is described as promoting positivity and as a valued member of the contracting company. Mr. Diabas explains that he has worked long hours and had little spare time. The time he did have was spent with his family.

[13] Mr. Diabas’ daughter confirmed to the author of the PSR that her parents have an unsatisfying marriage but that she thought he had tried to make the best of the situation and supports her mother, who cannot work, and the family. She described him as a good person who had made many sacrifices for their family.

[14] A letter written by Mr. Diabas’s daughter, on behalf of herself and her three younger brothers, expresses support of their father. The four make clear that they feel that their father has sacrificed a great deal for them and that he continues to support them, having purchased their home and taken financial responsibility for all of them. He is described as a supportive and encouraging father and as the backbone of the family.

[15] Mr. Diabas niece was also positive about him and describes him as a supportive father and respectful person.

[16] Mr. Diabas has no criminal record.

[17] I am told that Mr. Diabas feels horrible for the pain he has caused to his own family.

[18] When offered his right of allocution, Mr. Diabas called the complainant a liar and claimed that he was the real victim. He denied all of the offences and said that the complainant had taken advantage of him for nine years. He said he has no remorse for things he did not do. It is, of course, his right to continue to deny responsibility for the offences.

Impact on the Victim

[19] S.S. provided a written Victim Impact Statement which was read in court by the Crown.

[20] In her Victim Impact Statement, S.S. describes the devastating effect of these offences. She describes herself as emotionally and spiritually broken, suffering from nightmares and intimacy issues with men. She explains that as a result of the events at Trios College on April 6, 2016, she says that she dropped out of school, which led her back to her addiction. Now, the complainant says that she is in almost $8,000 debt, and cannot return to school until it is paid.

[21] By way of summary, S.S. is clear that she feels like the accused ruined her chance of a real future. She says she has never felt so abused. However, she also writes that she is now sober and working to move forward.

Positions of the Parties

[22] The Crown position is that a global sentence of 8 years is appropriate. The Crown breaks this down in the following manner:

• Counts 1: 3 years for the sexual assault at Arjay Trail
• Count 4: 3 months concurrent for the assault at Arjay Trail
• Count 2: 4 years consecutive for the sexual assault at the White Knight Motel
• Count 5: 9 months consecutive for the urination
• Count 3: 3 months consecutive for the criminal harassment

[23] The Crown seeks a variety of ancillary orders including a non-communication order with the complainant while Mr. Diabas is in custody, a s. 109 firearms and weapons prohibition, a DNA order and a SOIRA order. The defence takes no issue with any of the ancillary orders proposed and they will be made.

[24] The defence position is that a global sentence in the 3 to 4 year range is appropriate. The defence submits that there should be concurrent sentences imposed, and submits that the following would be appropriate sentences:

• Count 1: 30 months for the sexual assault at Arjay Trail
• Count 4: 90 days concurrent for the assault at Arjay Trail
• Count 2: 36 months for the sexual assault at the White Knight Motel
• Count 5: 6 months concurrent for the urination assault
• Count 3: 15 days concurrent for the criminal harassment

Applicable Legal Principles

[25] Section 718, 718.1 and 718.2 of the Criminal Code set out the purposes and objectives of sentencing. I have reviewed them but will not read them aloud now.

[26] Both the Crown and Mr. Diabas’ counsel have provided casebooks setting out the appropriate range of sentence.

[27] Sentencing is an art, and not a science. It must take account of the particular circumstances of the offence and the offender, bearing in mind the principles of sentencing and the range of appropriate sentence as set out in the caselaw.

[28] The cases before me make clear that the most important sentencing principles in this type of case are general and specific deterrence as well as denunciation. While rehabilitation is to be considered, it takes a secondary role here.

[29] One of the major differences between the positions advanced by the Crown and defence is whether the sentences imposed for the various counts should be consecutive or concurrent. The jurisprudence provides some guidelines as to when concurrent versus consecutive sentences are appropriate. Defence counsel reminds me that before adding up what sentence might be appropriate for each individual count, I must consider the principle of totality and ensure that the sentence imposed, while seeking to achieve the appropriate sentencing principles, is not crushing for this 51 year old first offender.

[30] In considering the appropriate quantum of sentence, both for the individual counts and globally, I have considered all of the decisions before me. In particular, I am assisted by the following cases:

• R. v. Quesnelle, 2014 ONCA 634 in which the CA upheld a total sentence of six and a half years for an offender convicted of two counts of sexual assault and two counts of assault arising from two different occasions with two different complainants. In respect of the first, a prostitute, he punched her in the face and forced anal intercourse. Defence counsel submits that this is similar to the White Knight Motel offence and supports a three year sentence for that offence. In respect of the second, a drug dealer, he punched her in the face and forced her to have oral and anal sex. For this, the accused received three years, consecutive. The accused was a cocaine addict at the time of the offences and had since taken steps to address his addition. He had a dated criminal record not non-violent offences. The Court of Appeal concluded that the sentence was at the low end of the range.
• R. v. S.A., 2014 ONCA 266 in which the CA upheld a five year sentence for an offender who took two acquaintances to secluded places and sexually assaulted them. There was evidence that the offences were planned and there was a use of violence, threats and one attempted rape. The offender was 23 years old with no record. The CA observed that the sentence was lenient, reflecting the accused’s relative youth and lack of record. The trial judge observed that the range for this sort of offence was from mid-reformatory time to six years.
• R. v. W.Q., [2006] 21035 (Ont.C.A) in which the Court of Appeal considered the sentence imposed on an accused who plead guilty to sexual exploitation, sexual assault and criminal harassment in relation to his stepdaughter. He abused her from the time she was between three and four years old until she was 14, with a two year break when she was eight to ten. The offence involves fellatio, cunnilingus, digital penetration and simulated intercourse. The trial judge imposed four years for the sexual assault and four years concurrent for the sexual interference. She imposed six months consecutive for the criminal harassment, without explaining why that sentence would be consecutive. The court of appeal found that it was open to her to do so.
• R. v. Curto, 2008 ONCA 161, in which the Court of Appeal upheld an effective four year sentence. In that case, the complainant was a former employee of the accused who had been raped by him 17 or 18 years earlier. She claimed that he impregnated her and that she then suffered from a miscarriage. The offence appears to have had a devastating effect on the complainant. The offender was sentenced as a first offender and had committed no similar incidents in the period of time since this incident. He also had a number of health issues.
• R. v. Rand, 2012 ONCA 627 in which the Court of Appeal upheld a four year sentence for an accused convicted after trial of one count of sexual assault and one count of breaching probation. The accused was 27 years old and the complainant was 17. They attended an open air concert at which the complainant became very intoxicated. She and the accused engaged in consensual kissing and then had little memory of what occurred. She next recalled lying on the ground with the accused vaginally penetrating her without a condom. In addition, she described oral and anal sex. The Court of Appeal observed that the sentence was fit having regard to the fact that the accused took advantage of a vulnerable intoxicated young woman and had unprotected anal and vaginal intercourse. The case was also aggravated by the fact that he had a significant prior criminal record.
• R. v. Bradley, 2008 ONCA 995, in which the Court of Appeal, reduced an offender’s sentence for one count of sexual assault from four years to three years. The accused was a police officer who anually and vaginally raped a woman for whom he was a friend and mentor. The Court accepted, at para 18, the Crown’s submission that the appropriate range of sentence for these circumstances was three to five years. In concluding that the sentence should be at the low end of that range, the court noted that the offence was dated by the time of trial and that there was much evidence of the accused’s otherwise long-standing unblemished character. The Crown submits that this case demonstrates that the range is three to five years for a single incident.
• R. v. Gadam, 2016 ONSC 4664 in which the 40 year old accused, a first offender, was sentenced to three years following his conviction for one count of sexual assault. The accused engaged in several sexual assaults over four months including attempted intercourse, threats of harm and forced intercourse eight times. The accused supported a wife and child, was an active and involved member of his community and had a reputation as a kind, gentle and respectful man. Because he was a permanent resident and not a Canadian citizen, he faced deportation. The trial judge indicated that he would have imposed four years, but for the many mitigating factors including the accused’s good character, good prospects for the future and the significant adverse effect that deportation would have on him.
• R. v. Garrett, 2014 ONCA 734 in which the Court of Appeal considered a Crown appeal from the imposition of a 90 day intermittent sentence for one count of sexual assault. The accused and complainant were friends and went on a date involving drinks and then consensual kissing. She invited him into her apartment and after consensual kissing, he became aggressive, ultimately engaging in non-consensual sexual intercourse with her while she told him to stop. The trial Crown sought a sentence of only 18 months. The Court of Appeal concluded that the sentence imposed was manifestly unfit and imposed the 18 month sentence that the Crown had sought at trial. In so doing, it noted at para 23 that this sentence should not be taken as within the appropriate or usual range.

Aggravating and Mitigating Circumstances

[31] The parties take different positions on the issue of Mr. Diabas’s prospects for rehabilitation. The defence says that he is at low risk of re-offending, given his antecedents, and that he has strong rehabilitative prospects. The Crown says that the accused has not acknowledged responsibility for the offences or shown any insight. While it is, of course, his choice to continue to deny culpability, the Crown says that that there is no evidence before me to support a position that he is at low risk of re-offending.

[32] I am not prepared to make any finding on the accused’s prospects for rehabilitation. While he is perfectly entitled to deny having committed the offences and to assert his innocence, this decision makes it impossible for me to conclude that he has any insight into what caused him to commit the offences. In the absence of any insight, or any other evidence as to his rehabilitative prospects, I cannot conclude he has strong prospects for rehabilitation. There was a pattern of conduct in this case. I have no explanation for it and no evidence that it is unlikely to recur. On the facts before me, there is an insufficient evidentiary basis from which to conclude that the offender is at a low risk of re-offending as his counsel asks me to.

[33] I find the following aggravating factors to be present: a. The offences here were brutal, invasive and degrading. There were separate incidents of different types of sexual violence including forced anal intercourse twice. The anal intercourse incidents were particularly invasive of the complainant’s bodily integrity, especially when Mr. Diabas was aware that she suffered from hemorrhoids. b. The anal intercourse incidents were further aggravated by the fact that the accused did not use a condom on either occasion, and thereby subjected the complainant to the risk of sexually transmitted diseases. c. The urination incident, while not a sexual assault, was also degrading and humiliating for the complainant, and was committed in response to her unwillingness to engage in oral sex with the accused. The complainant she described that day as the worst of her life. d. The accused chose to prey on a particularly vulnerable victim. He knew that S.S. was a cocaine addict and used this to his benefit and to her detriment. He gave her crack cocaine, compromising her, and then intentionally put her in positions where she was isolated from obtaining assistance. e. The effect of these offences on the complainant was profound. Section 718.2(a)(iii.1) of the Criminal Code specifically provides that evidence that the offence had significant impact on the complainant is an aggravating factor. Here, the complainant described the physical impact of one of the sexual assaults in that she had an inability to control her bowels after the White Knight Motel incident. She also describes in her Victim Impact Statement the long term emotional and psychological impact these offences have had.

[34] At the same time, there are a number of important mitigating factors including: a. Mr. Diabas has no criminal record. b. Mr. Diabas has always been gainfully employed and is described as a reliable and conscientious employee. He supports his family financially. c. Mr. Diabas has been, other than in committing these offences, a respectable member of the community and a committed father.

Sentence to be imposed and ancillary orders

[35] Mr. Diabas has served 160 days of pre-sentence custody. He must be credited at a rate of 1.5:1 for this time, resulting in credit of 240 days, which shall be deducted from the total sentence imposed.

[36] Bearing in mind the principle of totality, the range of sentences imposed in the cases discussed, and the particular circumstances of the offence and offender, including the aggravating and mitigating circumstances, I conclude that a global sentence of seven years for these offences is fit.

[37] In reaching that conclusion, I impose the following:

• Three years for the sexual assault at Arjay Trail (count 1);
• Three months concurrent for the sexual assault at Arjay Trail (count 4);
• Three years and five months, consecutive, for the sexual assault at the White Knight Motel (count 2). While I am mindful of the defence request that this sentence be concurrent to counts 1 and 4, I view this as a separate and distinct offence and conclude that the sentence ought to be consecutive, bearing in mind, as I have said, the principle of totality;
• Six months, consecutive, for the urination incident (count 5);
• One month, consecutive, for the criminal harassment (count 3).

[38] From this, there shall be deducted 240 days of pre-sentence custody.

[39] In addition to the seven year term of imprisonment, the following ancillary orders are appropriate: a. a s. 743.21 non-communication order with the complainant while Mr. Diabas is in custody; b. a firearms and weapons prohibition under s. 109 for 2(a) for ten years and under 2(b) for life; c. a primary DNA order under s. 487.051 of the Criminal Code; d. a SOIRA order under s. 490.013(2.1) for life.

Woollcombe J.

Released: December 14, 2018