COURT FILE NO.: 17-SA-5099
DATE: 20191204
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
YANNICK MUGABO
Accused
Kerry McVey, for the Crown
Genevieve McInnes, for the Accused
Restriction on Publication
Pursuant to section 486.4 of the Criminal Code of Canada there is a continuing order in place making it an offence for any person to publish, broadcast, or transmit in any way any information or document that could identify the victim or the witnesses. This decision does not refer to the complainant or witnesses by name, and may be published.
REASONS FOR sentence
ROGER J.
Introduction
[1] On September 4, 2019, Mr. Mugabo was found guilty of one count of sexual assault under s. 271 of the Criminal Code, R.S.C. 1985, c. C-46, and of one count of theft not exceeding $5,000, under s. 334(b) of the Criminal Code. As well, on October 22, 2019, Mr. Mugabo pled guilty to one count of failing to comply with an order made under s. 490.012 of the Criminal Code, requiring him to comply with the Sex Offender Information Registration Act, S.C. 2004, c.10 (“SOIRA”).
[2] The events leading to the convictions for sexual assault and theft occurred in the stairwell of an apartment building during the early morning hours of September 2, 2017. The victim and the offender had never met. After an evening out with friends, the victim was returning to her apartment when she encountered the offender in the vestibule of her building. As the victim entered her building, the offender gained entry and followed her into the elevator. The offender then followed the victim to the 10th floor where the victim resided.
[3] As per my reasons reported at R. v. Mugabo, 2019 ONSC 4308, I concluded that the offender and the victim had oral sex and vaginal intercourse in the stairwell of the victim’s apartment building. As I explained, I was left with a reasonable doubt about the victim’s subjective consent up until vaginal intercourse. However, I found that vaginal intercourse occurred without the consent of the victim. More specifically, I found that the victim said “stop” when the offender attempted to penetrate her vagina with his penis; that the victim was crying and resisting the offender; that the offender pushed her phone and placed his hand over the mouth of the victim; that he said “shut”; that he penetrated her vagina with his penis; and that the offender had unprotected vaginal intercourse with the victim, without ejaculation.
[4] I also concluded that the offender took the victim’s bank cards knowing that he was doing so, but I was not satisfied that he did this sufficiently immediately to the sexual assault to constitute robbery. I therefore found the offender guilty of the included offence of theft.
[5] With regards to the guilty plea of failing to comply with the order made under s. 490.012 of the Criminal Code, the admitted facts are that on May 15, 2015, the offender was sentenced for a sexual assault, which included a SOIRA order, and that contrary to his obligations under that legislation, the offender failed to notify the authorities of a change of address.
[6] The offender was 22 years old at the time of these offences. He is currently 25 years old and suffers from attention deficit hyperactivity disorder (ADHD). Mr. Mugabo was born in Rwanda, on about the same time as the Rwandan genocide was occurring. His father was a victim of this genocide and the offender escaped to Europe and then to Canada at the age of nine, where he initially resided with his mother. He was eventually found to be at risk of suffering harm while in the care of his mother and, at the age of 12, he was made what was then called a Crown Ward (and today is referred to as extended Society care). While in Society care, the offender resided with 22 foster families. It seems trite to say that Mr. Mugabo’s childhood was difficult. From the evidence presented at trial, it also appears that the offender regularly abused alcohol and drugs; indeed, he was under the influence of both at the time of these offences. The offender has some social qualities that could facilitate rehabilitation. Despite his difficulties, the offender graduated from high school. He was studying political science at the University of Ottawa and working part-time at about the time of these offences. Probation, if available, could facilitate some treatment to address his sexual behaviour, as well as his alcohol and drug abuse. The offender chose not to speak at his sentencing hearing.
[7] The victim filed a victim impact statement. Not surprisingly, the victim has been dealing with increased anxiety since these events. She is more withdrawn from her family, and she finds it difficult to be around too many people. These events also impacted her schooling. The victim’s grades suffered, and she was required to take an extra semester, which also impacted her financially. The victim is also concerned about her ongoing personal safety. She is fearful that she could be the victim of some form of retribution by the offender or his friends.
[8] The Criminal Code provides that a person found guilty of the indictable offence of sexual assault is subject to imprisonment for a period not exceeding 10 years when the complainant is 16 years of age or older, and such an offender is also subject to various ancillary orders. A person found guilty of the indictable offence of theft, where the value of what is stolen does not exceed $5,000, is subject to imprisonment not exceeding two years. Finally, a person found guilty on indictment of failing to comply with an order made under s. 490.012 of the Criminal Code (the SOIRA legislation) is liable to a fine of no more than $10,000 or to imprisonment for a term of no more than two years, or to both.
[9] The Crown seeks a sentence of incarceration of six years, together with a DNA order, a life-time weapons prohibition under s. 109 of the Criminal Code, an order that the offender complies with the SOIRA for life, and an order under s. 743.21 of the Criminal Code that the offender not communicate with the complainant while in custody. The Crown states that the range for such a sexual assault where there was intercourse with no additional gratuitous violence is between two to four years, but argues that the offender’s prior conviction for sexual assault warrants a sentence of five and one half years for the sexual offence, plus six months consecutive for the breach of the SOIRA order, and about two months concurrent (or consecutive) for the conviction for theft, for a total of six years.
[10] The offender suggests that a sentence of incarceration of three and one half years would be appropriate. He suggests that the applicable range is between upper reformatory and three years, and suggests three years for the sexual assault, three months consecutive for the SOIRA breach, and three months consecutive for the theft; together with the ancillary orders requested by the Crown, plus a long period of probation (which would be available because of the long period of pre-trial detention).
[11] The ancillary orders sought by the Crown are not disputed by the offender. Indeed, s. 109(3) and s. 490.013(4) require a lifetime order considering the offender’s prior conviction for sexual assault for which he was still subject to conditions when this sexual assault occurred. Both the Crown and the offender agree that the appropriate factor for a credit for pre-trial detention is 1.5 days for each day spent in pre-trial custody. Both agree that the offender has been in pre-trial detention since September 17, 2017. They also both agree that up to today, this results in 808 days of pre-trial detention, and that after applying the factor of 1.5, this results in a credit for pre-trial detention of 1,212 days. Both also agree that whether the offender would in any event have been detained under the existing deportation order is too speculative to impact the calculation of pre-trial detention, and very limited submissions were made on this point. Moreover, none of the parties requested a pre-sentence report or a psychiatric evaluation, and I did not insist.
[12] The Crown stresses that the victim was vulnerable at the time because of her intoxicated state and that she was violated in her own apartment building, where she should have been safe. The offender has a criminal record for offences when he was both a youth and an adult. I focus on his adult conviction. In 2014, he was found guilty of fraudulently obtaining food or lodging, assault, failing to comply with a recognizance, failing to attend court, and breaking and entering with intent to commit an offence. More importantly, on May 15, 2015, the offender was found guilty of sexual assault under s. 271 of the Criminal Code and of failing to comply with a recognizance for which he received a sentence of incarceration of 32 months plus two years of probation. As a result, the offender was on probation for this prior sexual assault when he sexually assaulted the victim in this case. The Crown also argues that because there was already a removal order resulting from the 2015 conviction for sexual assault, immigration consequences on the accused were already applicable and therefore not a relevant consideration. The latter was not disputed by the defence, and no other submissions were received on the impact of this finding on the accused’s immigration status.
[13] The defence points out that the offender is young, that he had an unfortunate early life, and that he has rehabilitation potential because he pursued his education and was working at the time of these events.
[14] Applicable sentencing principles are set out in ss. 718, 718.1 and 718.2 of the Criminal Code. The sentence must denounce the unlawful conduct and the harm done to the victim. It must deter the offender and other persons from committing such offences. Specific deterrence is particularly important in this case given that the offender was on probation for a May 2015 sexual assault when he committed these offences. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender; it should be comparable to sentences imposed on similar offenders for a sexual assault committed in similar circumstances. An additional factor to consider, only in part given that despite the offender’s young age and early personal circumstances he was previously sentenced as an adult including a long sentence for the earlier sex assault, is the sentencing principle stated by the Court of Appeal (see R. v. Borde (2003), 2003 4187 (ON CA), 63 O.R. (3d) 417 (C.A.) at para. 36) that where a youthful offender “has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives.” Immigration consequences cannot justify an otherwise inadequate sentence (see R. v. Crespo, 2016 ONCA 454, 132 O.R. (3d) 287 at para. 29). A prior criminal record amounts to an aggravating factor in sentencing; however, an offender is not to be re-punished for prior crimes and a sentencing judge must not raise a sentence beyond what would otherwise be a fit sentence on account of a prior record (see R. v. Miller, 2016 ONSC 4448, at para. 26). Finally, a sentence may be imposed consecutively even if it arises out of the same transaction or incident “where the offences constitute invasions of different legally protected interests, although the principle of totality must be kept in mind” (see R. v. Fournel, 2014 ONCA 305, 319 O.A.C. 42, at para 58).
[15] The Crown and the defence have referred me to many Court of Appeal and Superior Court sentencing decisions, each involving a not entirely dissimilar sexual assault. As can be expected, none, however, raises exactly the same facts as this case. Considering these decisions, an applicable range of sentence for the count of sexual assault could be between upper reformatory to six years. However, looking more precisely at the facts of each case to distinguish those involving less or more serious circumstances, a more precise range of sentence for the sexual assault in this case is between two years less a day to five years (see for example: R. v. Bradley, 2008 ONCA 179, 234 O.A.C. 363 at para. 18; R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99; R. v. Stankovic, 2015 ONSC 6246 at para. 40; R. v. McCaw, 2019 ONSC 3906; R v. T.W., 2019 ONSC 5596; R. v. Garrett, 2014 ONCA 734; R. v. S.M.C., 2017 ONCA 107; R. v. A.G., 2015 ONCA 159, 124 O.R. (3d) 758; R. v. D.L., 2016 ONSC 733; and R. v. Barton, 2002 45108 (ON CA), 165 O.A.C. 294 (C.A.)).
[16] Counsel did not refer me to any cases dealing with the count of theft under five thousand dollars. Cases reveal a broad range from non-custodial sentences, short exemplary jail terms, or more substantial sentences for incorrigible offenders. For example, a chronic offender received a 45-day sentence for the theft of a small amount, not attended with aggravating circumstances. The range for such a case was noted to be between 30 to 60 days (R. v. Guitard, 2014 ONCJ 191).
[17] Similarly, counsel did not refer me to any cases dealing with the one count of failing to comply with an order made under s. 490.012 of the Criminal Code. Sentencing decisions for SOIRA breaches are infrequently reported. I have reviewed three decisions indicating that the range for such an offence is typically between 30 to 60 days, and that general and specific deterrence are usually the most important considerations on sentence (see R. v. Caruana, 2016 ONCJ 367; R. v. Zimmerman, 2010 ABPC 228, 30 Alta. L.R. (5th) 327; and R. v. Firingstoney, 2017 ABQB 343).
[18] The circumstances of this case are aggravated by the fact that the offender’s conduct exhibited some predatory quality: the offender followed and raped an intoxicated young woman who was trying to return home. Showing even less respect for the victim, the offender also stole the victim’s credit cards. The offences had a significant impact on the victim. As well, despite his young age, the offender had previously been sentenced as an adult, including a rather lengthy sentence of 32 months (less time served of slightly more than 8 months) for the earlier conviction of sexual assault, on May 15, 2015, for which he was on probation and subject to conditions (which he breached) at the time that he committed this sexual offence. The potential for rehabilitation is therefore uncertain, but the offender is young. Nonetheless, these facts militate in favour of a serious custodial sentence. However, the sentence suggested by the Crown is out of proportion to the facts of this case. Cases where a sentence exceeding five years was imposed involved a more violent assault, and usually with fewer prospects for rehabilitation (see R. v. Barton). Conversely, cases in the range suggested by the offender do not involve an offender on probation for an earlier sex assault, and usually concern an offender with better rehabilitative prospects.
[19] Considering all the circumstances, I find that a fit sentence for all three offences is four years and two months, less time served to date, followed by three years of probation, together with the required ancillary orders. I arrive at this sentence as follows: four years for the sexual assault, two months concurrent for the theft (despite the invasion of a different interest, considering the circumstances, I considered the theft also as an aggravating factor to the sexual assault and therefore made it concurrent), and two months consecutive for the SOIRA breach (the offender’s prior convictions for failing to comply with a recognizance pushed it up, and I did not find cases in the range suggested by the Crown).
[20] Mr. Mugabo, would you please stand. You are sentenced as follows:
− With respect to your conviction on count no. 1, for sexual assault, you are sentenced to a term of imprisonment of four years.
− With respect to your conviction on count no. 2, theft under five thousand dollars, you are sentenced to a term of imprisonment of two months concurrent.
− With respect to your conviction for failing to comply with an order made under s. 490.012 of the Criminal Code, requiring you to comply with the Sex Offender Information Registration Act, you are sentenced to a term of imprisonment of two months consecutive.
− Consequently, as of today, the time of incarceration remaining to be served is 308 days.
I arrive at the remaining time to be served as follows. The offender has been in pre-trial detention since September 17, 2017. He has therefore been detained to date for 808 days. Applying a factor of 1.5, this results in a credit for pre-trial detention of 1,212 days. Four years and two months adds up to 1,520 days, and the difference with 1,212 is 308 days.
− You shall provide a DNA sample (pursuant to s. 487.051 (2) of the Criminal Code).
− You are for life prohibited from having possession of the weapons/items set out in s. 109 of the Criminal Code.
− You shall for life comply with the Sex Offender Information Registration Act (made under ss. 490.012 and 490.013(2)(b) of the Criminal Code).
− You shall not contact or communicate in any way, directly or indirectly, with the victim while you are in custody (made under s. 743.21 of the Criminal Code).
− You shall be on probation for three years. The probation order shall include the conditions found in s. 732.1 (2) of the Criminal Code as well as the following additional conditions made under s. 732.1 (3) of the Criminal Code: to report to a probation officer within five working days from your release from custody and thereafter when required by the probation officer and in the manner directed by the probation officer; to attend counselling or treatment as recommended by the probation officer, including recommended counselling or treatment for alcohol and substance abuse and recommended counselling or treatment for inappropriate sexual behaviour and impulses, and to complete all such counselling or treatment to the satisfaction of your probation officer; to sign any release required to allow your probation officer to monitor your attendance, participation and completion of any assessments, counselling or rehabilitative programs as directed; to abstain from communicating in any way, directly or indirectly, with the victim; and to refrain from going within 500 m of any place where you know the victim to live, work, attend school, frequent or any place you know her to be.
Mr. Justice Pierre E. Roger
Released: December 4, 2019
COURT FILE NO.: 17-SA-5099
DATE: 20191204
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
YANNICK MUGABO
Accused
reasons for sentence
Roger J.
Released: December 4, 2019