Her Majesty the Queen v. T.W, 2019 ONSC 5596

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1119/18

DATE: 2010 09 27

B E T W E E N:

HER MAJESTY THE QUEEN

Carla Agatiello, for the Crown

• and -

T.W

Randall D. Norris, for T.W

HEARD: September 18, 2019

REASONS FOR SENTENCE

PUBLICATION BAN

An Order has been made pursuant to s. 486.4 of the Criminal Code directing that the identity of the complainant and any information that could disclose such identity shall not be published or broadcast or transmitted in any way.

Fowler Byrne J.

1On June 28, 2019, T.W was convicted of one count of sexual assault contrary to s. 271 of the Criminal Code of Canada, R.S.C., 1985, c. C-46. The sentencing hearing took place on September 18, 2019. I will refer to the victim and other witnesses by their initials in order to respect the publication ban on the victim’s identity.

Circumstances of the Offence

2On the evening of April 8, 2017, being the Easter long weekend, the victim C.R. contacted her brother J.A. and suggested they, J.A.’s wife, C.R.’s son, and C.R.’s mother get together for the evening. J.A. and his wife T.A. had already agreed to spend the evening with T.A.’s brother, the offender T.W, and his family. J.A. invited his sister C.R., her son, and their mother to accompany them.

3The circumstances surrounding the offence are detailed in my Judgment, R. v. T.W., 2019 ONSC 4028. For the purposes of these Reasons for Sentence, I will only highlight the key findings of fact.

4A great deal of alcohol was consumed by almost everyone the night of the assault, during which they had dinner and watched a hockey game. After the game was over, music was put on and some of the woman and children started dancing. At one point in the night, T.W whispered to C.R., “I’m going to fuck you.” She did not respond. Everyone continued drinking alcohol including T.W and the victim.

5During the evening, a drink spilled on C.R.’s shirt on her breast area. T.W used his hand to brush the area as if he was cleaning off the spill. C.R. did not consent to that touching. In fact, C.R.’s brother spoke angerly to T.W and told him to keep his hands off his sister. T.W admitted at trial that he did this and that it was inappropriate conduct.

6As the evening progressed, all the guests but C.R. left. The children and mother of T.W went to bed. Despite being offered a ride by her son, C.R. wanted to stay and advised that she would get an Uber home later. When J.A. and his wife left, C.R. still did not want to go. J.A. and T.W’s wife agreed that C.R. could remain the night, as she was ‘family”. As he left, J.A. was insistent about the sleeping arrangements. He wanted assurances that T.W’s wife would sleep with C.R. in the bedroom and that T.W would remain downstairs. J.A. left and more alcohol was consumed by T.W, his wife, and the victim C.R.

7At trial, T.W and his wife maintained that sexual activity did occur that night, but that it was consensual between T.W, his wife, and C.R., and that it occurred in the living room. C.R. had no recollection of those events at all. At trial, it was found that the Crown had not established beyond a reasonable doubt that a sexual assault occurred in the living room.

8However, it was found that C.R. was sexually assaulted in the master bedroom. In particular, after everyone consumed more alcohol, C.R. was put to bed upstairs at T.W’s house by T.W’s wife, of which C.R. has no memory. C.R. woke up when she was being sexually assaulted by T.W. In particular, when she woke, he was penetrating her vaginally. She verbally told him to stop, but he did not. C.R. states that while she was being assaulted, T.W said “I told you I was going to fuck you.” She admits to losing consciousness again in the midst of the sexual assault at least twice. She recalls that after T.W penetrated her vaginally, he lifted and folded her legs over her head so that he could penetrate her anally. She recalls being in pain during the assault given the way T.W was contorting her body by raising her legs over her head. T.W ejaculated and did not use a condom. C.R. had bruises the next morning on her ankles and lower legs.

9C.R. woke up early the next morning and found T.W lying naked beside her. She got up, got dressed, and left the house. She called her brother J.A., very upset that he had left her there. He came and picked her up. Based on what she told him had occurred, he insisted on driving her to the hospital. They were eventually directed to Chantal’s Place at the Trillium Health Centre, a centre that accommodates victims of sexual assault and domestic abuse. While at Chantal’s Place, the police attended and interviewed C.R. She agreed to a sexual assault examination by a registered nurse. The testing conducted was consistent with an individual reporting both vaginal and anal intercourse.

Circumstances Relating to the Offender

10A Pre-Sentencing Report was prepared on behalf of T.W. The offender chose not to speak at his sentencing hearing.

11At the time of the offence, T.W was 30 years old, married, and had two children who were approximately 5 years old and 2 years old. His mother also lived with him and his family. At trial, T.W indicated that he and his wife separated several months after he was arrested for this offence. In his Pre-Sentencing Report, T.W stated that he actually separated from his wife in 2016, but they continued to live together in the same house with his mother, did not share a master bedroom, and remained civil with each other. This discrepancy in the date of separation between T.W and his wife has no bearing on this decision. T.W also admits a casual sexual relationship with a co-worker from the end of 2016, which his wife started to suspect in February 2017.

12At the time of the trial, T.W and his wife were still in litigation over custody and access issues. T.W’s former wife was not working and T.W was not paying child support.

13As of the date of the sentencing hearing, T.W was 33 years old. T.W and his wife are still in litigation in the family court. Things appeared to have progressed somewhat in that T.W’s former wife does facilitate access between T.W and his children.

14T.W is the only child from the union of his parents. Both parents had children from a previous relationship and then joined together as a blended family. He has five step-siblings. He remained at home when all his older siblings moved out. His father died of natural causes in 2005 when he was 18 years old. When he married his spouse in 2011, his spouse moved in with him. T.W and his spouse continued to live with his mother and had a family of their own. The family lived together until T.W and his wife separated. T.W’s sister, although initially angry with him after the offence, is now supportive and remains on good terms with her brother. T.W’s mother is assisting him with his legal fees and wishes to advise the court that any term of incarceration would take a negative toll on his employment, health, and family.

15T.W states that the victim is the biological sister of his brother-in-law, and accordingly had married into his family. Over the years, he had met her causally at various family events, such as a wedding. They had been at common social gatherings approximately five times over the year before the offence.

16T.W is a high school graduate. For the last nine to ten years, he has worked with an automotive company in a supervisory role. Previously, he worked for another employer for five years. He has been off of work since July 2018 due to stress and anxiety. He will be reassessed in September 2019 to determine whether he can return to work, and believes that he will be able to return to work when this court matter is resolved. T.W wishes the court to know that any term of incarceration will have a profound impact on his health and finances.

17T.W denies having any issues with alcohol abuse, although alcohol was a significant factor in this offence. He is currently not receiving any counselling for alcoholism, but has revealed that his father was and his two step-brothers are alcoholics. He is willing to attend counselling for substance abuse or misuse. T.W is currently on prescription drugs for anxiety, stress, and hypertension.

18T.W takes full responsibility for the offence. He recognizes and acknowledges that his behaviour towards the victim was inappropriate, irresponsible, and disrespectful.

19This is T.W’s first criminal offence. He claims the offence was spontaneous. He accepts that he had a sexual encounter with the victim. He maintains that alcohol was a factor and that he regrets engaging in a sexual relationship with the victim who was a distant relative. He shows a willingness to address alcohol abuse and get the help he needs.

20The Pre-Sentencing Report indicates that neither the victim nor T.W’s former wife wish to have any contact or communication with him due to this offence. Defence counsel advised that T.W’s former wife now has contact with T.W to facilitate access and in fact, was in attendance at his sentencing hearing.

21In addition to the supportive interviews given by T.W’s sister and mother, no other letters of support were filed. Counsel for T.W indicates that he has become somewhat isolated as a result of being off of work and being separated from his wife. He is reluctant to inform friends or colleagues of this offence.

22The Defence submits that incarceration for a period of two to three years is an appropriate sentence for an offence of this nature.

Victim Impact Statement

23I have considered the victim impact statement given by the victim C.R. The victim elected not to appear at the sentencing hearing. The Defence raised no objection to the contents of the report.

24I have considered the physical and emotional harm and the economic loss suffered by the victim in connection with this offence, and the impact of the offence on the victim.

25C.R. has indicated that she has suffered both physically and emotionally. She no longer has an interest in participating in activities. She is too afraid to jog near her home. She has had no intimacy since the offence and feels fearful even on her own front porch. She struggles to keep happy. She is the sole source of support for her children and she feels she is emotionally broken. She is concerned how the offence has impacted her adult son, who testified at the trial.

26For two months following the assault, C.R. took medication to treat a possible H.I.V. infection. She was required to reattend at the rape centre for consistent blood work and follow ups. The medications made her ill and she found it difficult to work to her full potential.

27C.R. continues to suffer back pain as a result of the assault. She suffers from seizing muscles in her back every one or two months which leaves her incapacitated and unable to leave her home. She has been admitted to the emergency room on two occasions when this happened. She requires sleeping pills to sleep on these occasions. She requires specific massage therapy which costs $100.00 each month. She must regularly attend a chiropractor which costs her $300.00 per month. She recently contracted Shingles, which her doctor suggested may have been brought on by stress.

28She believes the emotional and physical harm she suffered has resulted in loss of employment opportunity. In her job, she was expected to drive long distances, which she could not do due to back pain. She believes she was not offered an extension in her employment after the last project was completed because of this. She is now unemployed and cannot find employment with comparable income.

29It is the Crown’s position that three and a half to four years is an appropriate period of incarceration for an offence of this nature.

Principles of Sentencing

30The principles and objectives of sentencing are set forth in s. 718 of the Criminal Code:

718 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.

31Further, s. 718.1 of the Criminal Code provides that:

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

32Section 718.2 of the Criminal Code also provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, and requires that an offender not be deprived of liberty if less restrictive sanctions may be appropriate. It requires that all available sanctions that are reasonable in the circumstances, other than imprisonment, be considered.

33In determining the appropriate sentence, I have considered all the case law provided to me by both the Crown and the Defence. In particular, I am assisted by the following cases:

a) R. v. McCaw, 2019 ONSC 3906: in this case, the offender was found guilty of one count of sexual assault. The victim was passed out under the influence of alcohol. The offender engaged in vaginal intercourse without the consent of the victim who was incapable of consenting. The offender claimed to have no memory of having sex with the victim. The offender ejaculated in the victim and did not wear a condom. The offender completed programs in alcoholism prior to sentencing and was remorseful. The offender received a sentence of 40 months of incarceration;

b) R. v. Rand, 2012 ONCA 731: in this case, both the offender and the victim drank excessive alcohol. The victim had little memory of the events of the night, except a memory of the offender on top of her penetrating her vaginally. She was in and out of consciousness throughout the assault. The offender did not wear a condom. When the victim rolled over, the offender penetrated her anally. The victim verbally indicated that she did not consent to the sexual act. The offender had a prior criminal record which included offences of dishonesty and crimes of violence, including assault and assault with a weapon. Two of his previous assault convictions involved incidents of domestic violence. The offender was sentenced to four years incarceration, which was not varied on appeal;

c) R. v. Bradley, 2008 ONCA 179: in this case, the offender was convicted of one count of sexual assault. The offender was a police officer and had become a mentor to the victim. The offender had no prior criminal record. The offender was sentenced to three years incarceration;

d) R. v. Stankovic, 2015 ONSC 6246: in this case, the offender was found to have engaged in vaginal and anal intercourse with the victim without her consent. The victim verbally told the offender that she did not want to engage in the sexual activity and he did not listen. The offender was wearing a condom. The victim indicated that she now has trouble sleeping and is fearful of going out in crowds. The victim blamed herself for allowing herself to be in that situation and found it difficult to be motivated in life. The offender had a previous conviction for uttering threats to his ex-wife that he did not disclose to the author of the pre-sentencing report. He also faced possible deportation. The offender received a sentence of three years incarceration.

Mitigating Factors

34This is T.W’s first criminal offence of any type. At trial, T.W expressed regret for his actions on the night in question, even though he maintained that the sexual activity in the living room was consensual and that he did not remember the encounter in the master bedroom at all. Following his conviction, T.W has shown that he has fully accepted that he committed this sexual assault, that it was inappropriate and irresponsible, and that he is regretful of the impact it has had on the victim.

35T.W was cooperative and engaged in the preparation of the Pre-Sentencing Report. He has the ongoing support of his mother and sister.

36T.W has shown that he is capable of maintaining steady employment. Following the serving of his sentence, he anticipates becoming employed soon after.

37While T.W has taken no steps to address alcohol abuse prior to the sentencing hearing, he has indicated his willingness to do so.

Aggravating Factors

38While the victim and T.W were not related, the night that the sexual assault took place was considered a family gathering. As indicated, the victim was the sister of T.W’s brother-in-law. T.W was not a stranger to C.R. While C.R. had never been at T.W’s home before, she had met him on a number of occasions prior to that evening. She had seen him at her brother’s wedding, at the baptism of T.W’s child, and approximately five times in the previous year at her brother’s home. When it was decided that C.R. would stay at T.W’s house the night of the sexual assault, the victim’s brother was assured by T.W’s wife that C.R. would be looked after as she was “family”.

39The evidence does not support T.W’s contention that this act was spontaneous. T.W showed an intention to have a sexual relationship with C.R. by touching her breasts in an inappropriate manner, and by verbally advising her that he intended to have sexual intercourse with her. At no time did she indicate that she as agreeable to any of it. While sexually assaulting the victim, he told her “I told you I was going to fuck you.”

40T.W had unprotected vaginal and anal intercourse with C.R. and ejaculated into her, exposing her to risks of pregnancy and sexually transmitted diseases.

41The impact on the victim has been significant. She still suffers physically and emotionally, is unable to be intimate with anyone, does not feel safe, and describes herself as broken. The assault has also impacted her son and mother. Immediately after the assault, the victim suffered from back pain and bruising on her lower legs. The victim continues to suffer from periodic back spasms, which affects her ability to be employed. In fact, at this time, more than two years after the assault, C.R. is not employed.

Conclusion

42The above-noted cases support the conclusion that incarceration for a period of three to four years for a sexual assault of this nature satisfies the objectives of deterrence and denunciation. A sentence of three to four years is similar to other sentences given for similar offences. T.W will be removed from society for a period of time and will have an opportunity to seek counselling or take other rehabilitative steps during his incarceration or immediately thereafter.

Sentence

43Bearing in mind the principles set forth herein, the range of sentences imposed in the cases discussed, and the particular circumstances of the offence and the offender, including the aggravating and mitigating circumstances, I conclude that a sentence of incarceration for a period of three and a half years is appropriate.

44In addition, I make the following ancillary orders:

a) a non-communication order with the victim C.R, her son L.R., and her mother B.A. while T.W is in custody, pursuant to s. 743.21 of the Criminal Code;

b) a firearms and weapons prohibition under s. 109(2)(a) of the Criminal Code for 10 years and under 109(2)(b) of the Criminal Code for life;

c) a primary DNA order under s. 487.051 of the Criminal Code; and

d) a SOIRA order under s. 490.012(1) for ten years.

Fowler Byrne J.