COURT FILE NO.: CR-17-SA5123
DATE: 2019/11/21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
– and –
Eric Richard Marshall
Hart Shouldice for Her Majesty the Queen
Vanessa Carew for Eric Richard Marshall
HEARD: November 13, 2019 (Ottawa)
reasons for decision - sentencing
(RENDERED FROM THE BENCH ON NOVEMBER 21, 2019)
Pursuant to s. 486.4 of the Criminal Code there is a continuing order in place making it an offence for any person to publish information that might lead to disclosure of the identity of the complainant.
o’bonsawin J.
Overview
[1] On April 5, 2019, I found Mr. Marshall guilty of the following charges: assault, sexual assault, mischief and two counts of failing to comply with a probation order.
[2] By way of background, PB, the victim, is 26 years old. Mr. Marshall is 30 years old. They have known each other since high school. When they were younger, they saw each other at parties, smoked joints together and, at times, she sold him weed. After their teenage years, they saw each other sporadically. At some point, they became Facebook friends. On the evening of October 19, 2017, PB and Mr. Marshall met up at the Tunney’s Pasture bus station and decided to hang out at his apartment in a part of town that she was unfamiliar with.
[3] On the evening of October 19, 2017, PB’s cellular phone did not have a plan. Her phone worked on Wi-Fi and had trouble staying charged. At one point, in the early hours of the morning, Mr. Marshall, who had consumed alcohol, choked PB with one hand very hard while sat on the couch. He then told her to get out of his apartment, and she asked to stay in order to collect her thoughts and figure out how she was going to get home. Mr. Marshall agreed to let her stay so she cound try to find a ride home.
[4] Afterwards, PB had to plug in her phone again because she wanted to have enough battery so that she could leave. When she leaned over the back of the couch to plug in her phone, Mr. Marshall grabbed her and anally penetrated her by thrusting three to four times. It lasted maybe three to five seconds. After she asked him why he did that and told him it was not “ok”, Mr. Marshall told her to “get the fuck out” again and ripped her necklace off her neck. At some point, he took her phone away from her. When he gave it back to her, the back of her phone was missing.
[5] When PB left Mr. Marshall’s apartment, she did not know where she was. She ended up on a street corner, fell to the ground, and cried. A male stranger found her crying in a heap on the ground and took her to his apartment to his wife in order to call 911.
Impact on PB
[6] PB did not provide a Victim Impact Statement at the sentencing hearing. She was present for the first part of the Defence’s submissions, and approximately mid-way through, she left the courtroom crying. The Crown sought a break before he started his submissions in order to see if PB would reattend. She did not.
[7] As indicated in my Decision, PB cried during her evidence at trial and, at times, we had to take breaks in order to allow her to regain her composure. Mr. Marshall’s actions have negatively impacted PB.
Circumstances of Mr. Marshall
[8] Mr. Marshall is currently 30 years old, single and has no children. He struggles with mental illness and addiction. Defence counsel advises that Mr. Marshall has family support by way of his grandmother, his grandfather and his step-brother.
[9] Three pieces of evidence were provided at this hearing: a letter from the Canadian Mental Health Association (CMHA) dated October 16, 2019, a Pre-Sentence Report dated November 4, 2019, and a copy of Mr. Marshall’s criminal record.
[10] The letter from the CMHA advises that Mr. Marshall is receptive to counselling. He began working with the CMHA in March 2019, and the service was paused when he returned to custody at the end of July. Mr. Marshall is motivated to better his life by working towards positive and healthy goals.
[11] A Pre-Sentence Report was filed at the hearing for submissions on the appropriate sentence for Mr. Marshall. I will highlight the relevant portions.
- Mr. Marshall had a difficult childhood.
- Mr. Marshall reported a longstanding history of alcohol and drug (marijuana) use. At the time of the report, he had been sober for 26 days.
- Mr. Marshall’s previous Pre-Sentence Report noted that he had a tendency “to make poor decisions while under the influence of alcohol.” He advised the writer that up until April 2019, he consumed alcohol heavily.
- Mr. Marshall stopped drinking alcohol for a period of two years between 2011-2013.
- Mr. Marshall reported that he had an appointment at the Royal Ottawa Hospital and was diagnosed with severe anxiety disorder and substance-induced depression.
- Past records of Mr. Marshall’s time in Collins Bay noted he demonstrated limited insight, deflected blame, minimized and rationalized the offence. An eventual improvement was noted where he admitted responsibility; however, he was said to harbour a version of that incident that was not consistent with the official record.
- Mr. Marshall’s bail supervisor at the John Howard Society reported he has supervised him since 2017. Mr. Marshall resided in the Bail Supervision Home from February 2019 to July 2019 when he was returned to custody for having breached his probation order by consuming alcohol.
- A worker for the CMHA reported that Mr. Marshall attended appointments as scheduled.
- Mr. Marshall struggled with compliance while bound by conditions in the community. He breached conditions and was charged with new offences when bound by community orders. He committed the index offences in this matter while supervised on probation.
- Mr. Marshall has a history of violence including a conviction for assault causing bodily harm in 2008-2009 when he slashed his ex-partner’s new boyfriend on the neck. He also breached a conditional sentence order when he became aggressive towards other co-residents by threatening and possessing a weapon (knife). He was more recently convicted of assault in 2018 for approaching two strangers randomly in the community while intoxicated and became violent with one of them.
- The Report states, “The offences of record involve a serious sexual assault of an acquaintance. Given the subject’s history of prior violence that included a Federal custody term, his continued violent and aggressive behaviours towards others in the community remain significantly concerning. This is especially troubling given the subject’s tendencies to deny, minimize and rationalize his offences.”
- Until Mr. Marshall gains better insight, he will continue to present a heightened risk of harm to others.
[12] Mr. Marshall’s criminal record is quite extensive. It began in 2008. He was convicted of assault with a weapon in 2008 and aggravated assault in 2009. His other convictions include failures to comply with undertakings and probation orders, break and enter, mischief over $5,000 and under $5,000, possession of a weapon, theft under $5,000 and assault.
Position of the Parties
[13] With regards to the position of the parties, the Defence seeks a sentence of thirty-one and a half months less credit for pre-sentence custody.
[14] On the other hand, the Crown seeks a sentence of an incarceration in the range of four to five years less credit for pre-sentence custody. In addition, the Crown seeks the following orders:
- a mandatory DNA order; and
- registration as per the Sex Offender Information Registration Act, which applies for a period of twenty years.
Sentence as per Sections in the Code
[15] I must sentence Mr. Marshall as per the sections of the Code in question. There are no mandatory minimum sentences for any of the Code provisions in question. The maximum sentences are listed below:
- assault as per s. 266 = five years
- sexual assault as per s. 271 = ten years
- mischief as per ss. 430(1)(a) = two years
- failing to comply with a probation order as per s. 733.1 = four years
Factors to be Considered with Regards to Sentencing
[16] I will review the factors to be considered regarding sentencing. The sentencing principles according to s. 718 of the Code are denunciation, deterrence, rehabilitation and the protection of society. More specifically, according to s. 718 of the Code, the purpose and principles of sentencing are to:
- denounce unlawful conduct and the harm done to victims or to the community;
- deter the offender and other persons from committing offences;
- separate offenders from society, where necessary;
- assist in rehabilitating offenders;
- provide reparations for harm done to victims or to the community; and
- to promote a sense of responsibility in offenders; and acknowledgment of the harm done to victims or to the community.
[17] Section 718.1 of the Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[18] Section 718.2 of the Code lists other sentencing principles that are relevant in this matter, such as:
- a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
- where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
- an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
- all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victims or to the community should be considered for all offenders.
Mitigating and Aggravating Factors
[19] In Mr. Marshall’s case, the mitigating factors include that he has a supportive family and that he attended his counselling sessions with the CMHA.
[20] The aggravating factors in this matter are as follows:
- Mr. Marshall anally penetrated PB;
- Mr. Marshall was on probation at the time of these offences;
- Mr. Marshall’s criminal record; and
- PB suffered physical and emotional harm as a result of these offences.
Caselaw
[21] I will turn to the caselaw. The Defence refers me to R. v. McKenzie, 2017 ONCA 128, 136 O.R. (3d) 614; R. v. McManus, 2016 ONSC 2274 and R. v. Wren, 2004 BCCA 167, 204 B.C.A.C. 1. The sentences in these cases range from nine months to five and a half years of imprisonment.
[22] The Crown refers me to the following cases: R. v. Orwin, 2017 ONCA 841; R. v. Rand, 2012 ONCA 731, 307 O.A.C. 64 and R. v. Stankovic, 2015 ONSC 6246. The sentences in these cases range from two years less one day to four years of imprisonment.
[23] In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, the Supreme Court provided the following helpful guiding points for sentencing judges:
- the inquiry must focus on the fundamental principle of proportionality;
- individualization and parity of sentences must be reconciled for a sentence to be proportionate;
- the trial judge must properly weigh the various principles and objectives of s. 718;
- sentencing is an inherently individualized process;
- sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve as guides for the application of all the relevant principles and objectives;
- sentencing ranges should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion; and
- sentencing ranges are primarily guidelines, and not hard and fast rules.
Analysis
[24] I have considered the caselaw provided to me by both counsel.
[25] At the time in question, Mr. Marshall and PB had known each other since high school but had not seen each other for quite a while. The offences occurred in Mr. Marshall’s apartment in an area of town that PB was unfamiliar with. PB is of slight build and vulnerable.
[26] Mr. Marshall choked PB and later sexually assaulted her by anally penetrating her. He also broke PB’s necklace and cellular phone. It is important to note these offences occurred when Mr. Marshall was on probation. Clearly, Mr. Marshall’s actions are very serious in nature.
[27] Although PB did not provide a Victim Impact Statement, her demeanour at trial and her reaction at the sentencing hearing demonstrate that Mr. Marshall’s actions have had a negative impact on her. Sexual assault by anal penetration is inherently violent, invasive and degrading. In addition, Mr. Marshall took advantage of a vulnerable woman who was not aware of her surroundings. She was in an unfamiliar part of town, had no way to get home and was found by a stranger in a heap, alone, outside on a street corner.
[28] According to the Pre-Sentence Report, Mr. Marshall has limited insight. His criminal record demonstrates that he does not comply with conditions while in the community. The offences in question in this matter are not his first violent offences. Mr. Marshall has served penitentiary time for a criminal conviction where he used a knife to cut someone’s throat and has threatened complete strangers. His limited insight along with the other aggravating factors and minimal mitigating factors lead me to impose a sentence that is in the range requested by the Crown.
[29] Mr. Marshall is still a relatively young man. I hope that with some assistance to deal with his mental health and addiction issues while incarcerated, he will gain insight into his behaviours and return to the community in better stead.
Final Disposition
[30] In coming to my decision, I have kept in mind the sentencing principles, the mitigating and aggravating factors, and all the circumstances of this matter.
[31] Consequently, I proceed with the final disposition. I will begin with Count #2, sexual assault contrary to s. 271, I sentence Mr. Marshall to three years of imprisonment.
[32] With regards to Count #1, assault as per s. 266 of the Criminal Code. I sentence Mr. Marshall to one year to be served consecutively to the sentence on Count #2.
[33] With regards to Count #3, mischief as per s. 430(1)(a), I sentence Mr. Marshall to one month to be served concurrently to the sentence on Counts #1 and 2.
[34] With regards to Count #4, failing to comply with a probation order as per s. 733.1(1), I sentence Mr. Marshall to six months to be served concurrently to the sentences for Counts #1, 2 and 3.
[35] Lastly, with regards to Count #5, failing to comply with a probation order as per s. 733.1(1), I sentence Mr. Marshall to six months to be served concurrently to the sentences for all other Counts.
[36] As a result, Mr. Marshall’s total sentence is for a period of four years less pre-sentence custody, calculated as follows: one hundred and forty-nine days, rounded up to one hundred and fifty days (five months) for a total of seven and a half months of pre-sentence custody.
[37] I also make the following ancillary orders:
- a mandatory DNA order pursuant to s. 487.051(1) of the Code;
- registration as per the Sex Offender Information Registration Act which applies for a period of twenty years; and
- Mr. Marshall must not have any contact or communicate directly or indirectly with PB as per s. 743.21 of the Code.
Justice M. O’Bonsawin
Released: November 21, 2019
COURT FILE NO.: CR-17-SA5123
DATE: 2019/11/21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
– and –
Eric Richard Marshall
reasons for decision - sentencing
(RENDERED FROM THE BENCH ON NOVEMBER 21, 2019)
O’Bonsawin J.
Released: November 21, 2019