Court File and Parties

COURT FILE NO.: CR-17-40000679-0000 DATE: 2019-03-07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – VASHINDRA THAKOORDEEN Defendant

Counsel: Imran Shaikh, for the Crown Christophe Preobrazenski, for the Defendant

HEARD: March 7, 2019

Reasons for Sentencing

BOUCHER J.

Overview

[1] These are the reasons for sentence in R. v. Vashindra Thakoordeen. I found Mr. Thakoordeen guilty of one count of sexual assault contrary to s. 271 of the Criminal Code. For the reasons set out below, I sentence Mr. Thakoordeen to 2 years jail.

Circumstances of the Offence

[2] The facts of the offence are detailed in my reasons for decision in this matter cited at 2019 ONSC 25. In summary, Mr. Thakoordeen and his friend Mr. Bacchus dragged the victim, against her will, to the dark end of a parking lot in the middle of the night. She struggled. The two men removed her purse and she was pushed to the ground. Mr. Thakoordeen removed her pants and underwear with a vigorous pull. He got on top of her and started thrusting. He had removed his penis from his pants, but he did not penetrate the victim with his penis. Instead he digitally penetrated her with what she said felt like three fingers, a couple of times. The victim continued to struggle. Mr. Thakoordeen then got up and left the area.

Circumstances of the Co-accused’s offence - Parity

[3] After the assault in the parking lot, the victim began looking for her purse and phone. Mr. Bacchus led the victim to believe that these items could be found at his house. He took her back to his home. This was a ruse. Mr. Bacchus sexually assaulted the victim by trying to force her hand to his penis, and forcing her head to his penis.

[4] Mr. Bacchus plead guilty in provincial court to sexual assault. He was 20 years old at the time of the defence, had a positive presentence report, had a good work history, had a family and was expecting a second child, and was the sole supporter of the family. He pled guilty to the offences, and understood that he would possibly be required as a witness in Mr. Thakoordeen’s trial. His conduct was found to be not as severe as that of Mr. Thakoordeen, and was described as paling in comparison, but was found to be a continuation of that behaviour. In aggravation, Bacchus was a party to Mr. Thakoordeen’s offence, the circumstances involved two offenders on one victim, the area of the attack was secluded, and Mr. Thakoordeen’s offence was described as violent and callous in nature. The sentencing judge determined that Mr. Bacchus was not a high risk of re-offence. He was sentenced to 12 months jail plus 12 months’ probation.

[5] Mr. Bacchus’s conduct and his sentence are relevant factors in Mr. Thakoordeen’s sentencing hearing, from the perspective of the principle of parity, along with the other cases detailed in the section of this decision dealing with the sentencing range. The most significant difference between the two was Mr. Bacchus’s guilty plea, which was apparently given substantial weight by the sentencing judge. Bacchus was a party the offence in the parking lot, though he did not actually do the specific sexual act in the lot, Bacchus continued to victimize the victim in her vulnerable state. The sentence would appear to be at the extreme low end of the sentencing range given the overall aggravating factors, if justifiable, mainly by reference to the guilty plea.

Circumstances of the Offender

[6] Mr. Thakoordeen is 28 years old. He has a grade 10 education, having left school by choice to work. He has worked with a construction company for the past four years, and they have provided him a positive reference attesting to his work ethic and trustworthiness. He has been in a common law relationship for the past eight years, and they together have one child, age 9 at present. They live together, with his partner’s family. He assists in supporting the family.

[7] In his pre-sentence report, he described not being a heavy drinker, consuming alcohol during weekends or sports events in moderate amounts.

[8] The pre-sentence report details his attitude towards the offence. He maintains that he was falsely accused of the offence and that he understands consent is necessary for sexual activity. His family maintains that he did not evidence any prior attitudes negative to women.

[9] In terms of prior criminal offences, he was previously found guilty of theft and received a fine, and also violated the terms of his recognizance. Both these offences occurred after the sexual assault as I understand it.

Impact on the victim

[10] The victim provided a victim impact statement that was filed with the court. She describes the traumatic impact that the sexual assault on her, and in the victim’s estimation, the offence has had a significant impact on her life.

Maximum sentence – Sentencing Range

[11] The maximum sentence for sexual assault when the Crown proceeds by indictment is 10 years in jail. There is no applicable mandatory minimum sentence.

[12] The range of sentencing for sexual assault varies widely depending on the individual circumstances of the case. Sexual assaults that involve a likelihood of serious psychological or emotional harm whether or not physical injury occurs, are considered to be particularly grave offences. This includes acts of forced intercourse, cunnilingus, fellatio, and other types of contact which in the overall circumstances would be likely to produce very real psychological or physical harm, including fear, humiliation, degradation, sleeplessness, a sense of defilement, shame and embarrassment, impact on other relationships, and other significant psychological impacts: see R. v. Arcand, 2010 ABCA 363 at para. 170-181.

[13] Sexual assaults that involve a violent attack by a stranger in a park or a parking lot or other similar place at night require sentences with a strong emphasis on deterrence and denunciation of the conduct: see R. v. Trumpa 2017 ONSC 5966, where the court commented that such cases are a “nightmare scenario for women”.

[14] The Crown filed a number of cases illustrating the range for such cases. Though some of those cases involve more serious circumstances than this case, they provide a benchmark for the Crown’s position of 3 years here.

[15] In R. v. Trumpa, 2017 ONSC 5966, the offender held down, choked and raped the victim in a park. The offender had mitigating factors. Justice Goldstein noted that the range for such offences was 3-5 years in jail. The offender was sentenced to 4 years.

[16] In R. v. Myers, [2000] O.J. No. 1787, the victim was grabbed off a bus, dragged to a secluded area and sexually assaulted and punched. It was unclear whether there was penetration. She was threatened with death. He had a criminal record for assault offences on his girlfriends. The offender was sentenced to 6.5 years.

[17] In R. v. M.A. [1996] O.J. No. 2899, the offender chased the 16 year old complainant while she was on her bike. He dragged her to a secluded area, pulled her to the ground and forced intercourse with her. The victim suffered significant psychological impact from the offence. The accused plead guilty and expressed motivation to change and insight into his conduct. He also had a history of sexual assault and a psychological profile documenting sexual deviancy. He was sentenced to 6.5 years, and received credit for pretrial custody.

[18] In R. v. Smith [2001] O.J. No. 4512, the offender was sentenced to 5 years for dragging the victim from a public location to a secluded area, choking her, and attempting sexual intercourse with the victim, unsuccessfully, three times, and performed oral sex on her. The offender had a history of substance abuse. He expressed remorse and plead guilty.

[19] In R. v. Katsnelson 2010 ONSC 1601, the accused and his friend entered a university dorm without permission and entered two victims’ rooms and raped them. The accused also took photos of his friend raping them. No condoms were used. One victim had significant physical injuries and there were significant psychological impacts from the offences. The accused was a stranger to the victims. There were mitigating factors. He was sentenced to 8 years for this predatory, planned attack. The co-accused received a sentence of 3 years, and pleaded guilty previously to facts including only the digital penetration of one victim.

[20] In R. v. Rand 2012 ONCA 731, the victim was highly intoxicated at an open-air concert. The victim was blacking out from the alcohol. The offender brought her to the bushes, and had sex with her despite the victim saying no. The 4 year sentence was described by the Court of Appeal as being well-within the range.

[21] In R. v. Henderson 2018 ONSC 3550, the victim was dragged to a secluded area, assaulted and choked, and threatened. The offender unsuccessfully attempted intercourse. He then digitally penetrated her. The victim freed herself and ran away, bloodied on her face and naked from the waist down. She suffered injuries and significant psychological impact from the incident. He had mitigating factors. The offender was sentenced to 4 years and 2 months.

[22] In R. v. Smith 2018 ONSC 1990, the victim was walking home from the transit station. The accused grabbed her, knocked her to the ground and started to touch her vaginal area and legs. She struggled and freed herself. The accused had previously been convicted of sexual assault and a significant record for other offences. He was sentenced to 3 years.

[23] The defence filed a number of cases. Many of these cases did not include additional violence, did not involve dragging or secluded areas and did not involve stranger attacks.

[24] In R. v. Stambuk, [2009] O.J. No. 4338 (SC), Trotter J. (as then was) upheld a 90 day sentence plus 18 months’ probation on summary conviction appeal. The accused and victim were together at his apartment after a night of socializing. The accused prevented her from leaving, dragged to her to the bedroom, and without consent fondled her, touched her breasts with his mouth and digitally penetrated her. He eventually allowed her to leave. The offender was 36 years old at the time of the appeal, had no record, and had a good reputation and work history. The sentence was said to have been at the low end of the range, and the court varied the sentence to allow it to be served intermittently.

[25] In R. v. Nwaiku, [2012] O.J. No. 28 (SC), MacDonnell J. upheld a five month sentence for sexual assault. The victim attended her boyfriend’s apartment along with the offender and two of her friends. The friends left the apartment. The victim was sick from alcohol, and went to sleep in the boyfriend’s bed. The victim awoke to the offender lying beside her and digitally penetrating her vagina. He left on request. The offender had presented significant mitigating factors including “an extraordinary amount of community service, had taken counselling, and presented letters of references… speaking to his good character”.

[26] In R. v. Giraldo-Vargas, 2016 ONSC 8117, on summary conviction appeal, Then J. converted a five month conditional sentence into a custodial sentence. The victim attended a party at the offender’s house. She became intoxicated and fell asleep in his bedroom. She awoke to him digitally penetrating her vagina. The offender was described as a youthful first offender, gainfully employed, and as having extensive family support. There were significant immigration consequences possible for the offender if he were to have received a sentence in excess of six months. The court noted that Nwaiku stood for the proposition that incarceratory sentences were required in sexual assault cases involving digital penetration of unconscious victims to adequately meet the principles of denunciation and deterrence. The Crown position on appeal had varied to a request for six months less a day incarceration.

[27] In R. v. M.D., 2018 ONSC 2792, MacLeod J. imposed a sentence of nine months in jail plus 18 months of probation. The victim was employed as a bartender. She was sexually assaulted at work in the early morning hours in a second floor bathroom by her supervisor. He digitally penetrated and performed oral sex on her, and she was too intoxicated to consent to the acts. The offender was described as otherwise of good character with no criminal record, had received a good education and had gainful employment with the good work record, had the support of his family, and had sought professional assistance to gain insight into his behaviour. The offence was described to be an anomaly in the life of an otherwise productive member of society, and significantly different from other more serious cases including those involving additional or gratuitous acts of violence, threats of violence or injury, coercion, prolonged or repetitive assault, forcible confinement, forced fellatio or sexual intercourse.

[28] In R. v. Sarkar, [2015] O.J. No. 21 (SC), Rady J. dismissed the offender’s appeal seeking a conditional sentence. There was no error in the sentencing judge’s reasons. He had been sentenced to nine months imprisonment for a sexual assault of a fellow university student. The victim became intoxicated and was brought home by some friends including the offender. She fell asleep, and awoke to the offender digitally penetrating her. She told him to stop and tried to push him away, and then passed out. The offender was a 19 year old first offender at the time of the offence, he had an extremely positive presentence report, and was considered to be deeply and genuinely remorseful.

[29] In R. v. R. J. [2017] O.J. No. 1834 (SC), the offender was sentenced to a total of 35 months for two counts of sexual assault on his 16-year-old cousin: 17 months for the first conviction and 18 months for the second. The offender was significantly older than the victim. The victim’s family had entrusted the offender with trying to help her in relation to prior sexual abuse by another relative. The abuse included one instance of vaginal touching, one instance of digital penetration, and one act of attempted intercourse that caused bleeding. The offender was subject to immigration consequences as a result of the sentence. The summary conviction appeal judge upheld the sentences as no error was revealed.

Positions of the Parties

[30] The Crown requests a sentence of 3 years, based on the case law with similar aggravating factors. Given the overall context, the offence is said to be very serious with the principles of denunciation and deterrence of primary importance.

[31] The defence requests a sentence of 12 to 18 months. The defence position is tied largely to the co-accused Bacchus’s 12 month sentence, as well as the other mitigating factors outlined below. This case is said to be less serious than the other cases filed by the Crown because of the overall context of the offence, the duration of the offence, and fact that there was not intercourse and ejaculation.

Aggravating and Mitigating Factors

[32] I find the following to be aggravating factors:

• The victim was in a heightened state of vulnerability. She was highly intoxicated, was sick and had difficulty walking and struggling against the men. Mr. Thakoordeen took advantage of this fact to allow him to commit the sexual assault and continued despite her resistance. See for example the court’s treatment of an offender taking advantage of intoxication as an aggravating feature in R. v. Arcand, 2010 ABCA 363; R. v. S.G., 2014 ONSC 6309. The accused also left the victim following the attack in a vulnerable state, disrobed and on the ground.
• The assault was committed in concert with another person, which added to the victim’s vulnerability and facilitated the commission of the offence. The group commission of an offence is an aggravating feature, due to the degree of fear this provokes and the impact on the victim from a multi-person assault. See for example R. v. Mohamed Bacchus, unreported, Pringle J. January 18, 2018 (ONCJ). The offence involved coordinated activity of the two co-accused in targeting the victim, as I detailed in my judgment.
• The assault involved dragging and confinement, in the middle of the night, and gratuitous violence in the pushing of the victim onto pavement outdoors, which in turn caused minor physical injuries documented in photographs. Her clothes and undergarments were forcefully pulled off her body.
• The assault occurred in a secluded area, a dark parking lot in the middle of the night, where she had been dragged after being in a public area.
• Mr. Thakoordeen was the leading force in dragging the victim down to the end of the parking lot at one point and the sole person dragging her the second time to where she was sexually assaulted.
• The offence involved internal penetration, which constitutes a more serious sexual offence than other forms of sexual touching, and is significantly invasive.
• The victim’s property was compromised in the course of the attack, some damaged beyond repair and some never recovered.
• As detailed in the pre-sentence report, the victim was significantly impacted by the offence, a statutory consideration per s. 718.2(iii.1) of the Criminal Code. For the treatment of the psychological impact of sexual assault as an aggravating feature, see also R. v. Arcand at para. 272; R. v. McCraw, [1991] 3 S.C.R. 72 at para 29; R. v. Nwaiku, [2012] O.J. No. 28 (SC).

Mitigating Factors

[33] I accept the following as mitigating factors.

• The accused has no relevant criminal record prior to the commission of the offence.
• The accused has positive family support.
• Mr. Thakoordeen has a positive work history.
• He is relative youthful at 28 years old.
• In light of the Crown’s position, he is facing a significant penitentiary sentence. This is a factor that gains heightened importance given his youth and that this would be a first sentence of incarceration and a first penitentiary sentence.

Principles of Sentencing

[34] All sentences must conform to the principles of sentencing in the Criminal Code. The fundamental purpose of sentencing, as described in s. 718, “is to contribute… 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”, which include the denunciation of unlawful conduct, deterrence of the offender and others who might be similarly tempted, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender.

[35] The balancing of the principles of sentencing is a case-specific exercise governed by all the circumstances.

[36] All sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[37] Deterrence and denunciation are key principles as outlined above given the nature of the offence.

[38] Rehabilitation and restraint are always factors for consideration. These factors are particularly pronounced where a first penitentiary sentence for a youthful offender is contemplated. See for example R. v. Borde (2003); R. v. Sousa 2011 ONSC 6463, para. 19.

[39] Parity with other offenders including the co-accused is of intense significance, for the reasons outlined above.

Sentence

[40] Mr. Thakoordeen is sentenced to 2 years’ incarceration. This is a one year increase over his co-accused’s sentence, differencing the benefit received by Bacchus for his guilty plea and evidences Mr. Thakoordeen’s leading role shown in the video at certain points in the encounter directly leading to the assault he committed there. As well, this more closely mirrors the range of sentencing for other offenders in similar circumstances, though at the low end of the range. The reason for not being in the 3 to 5 year range was that the injuries in this case were not as extensive as in the other cases, and he has no prior record for violence. The sentence is however lengthy for a nearly first offender with a first jail sentence and demonstrates the seriousness of this offence and the impact on the victim.

Ancillary Orders

• There will be a DNA order as this is a primary designated offence.
• There will be a s. 743.21 order prohibiting communication with the victim.
• There will be an order under s. 490.012(1) to comply with the Sex Offenders Information Registration Act, for 20 years.
• There will be a s. 109 weapons order for 10 years.

Boucher J.

Released: March 7, 2019