COURT FILE NO.: CR-19-40000393
DATE: 2019-12-03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DANNY FRANCISCO CORREA
Defendant
Henry Poon, for the Crown
Jeffrey Fisher, for the Defendant
HEARD: November 5, 2019
REASONS FOR DECISION: APPLICATION RE ORDER FOR ASSESSMENT PURSUANT TO SECTION 752.1 OF THE CRIMINAL CODE
BROWN, CAROLE J., J.
[1] On October 1, 2019, Danny Correa was convicted, by a jury, of attempted sexual assault and weapons dangerous in Toronto. He had previously, on the same indictment, pled guilty to voyeurism, prior to commencement of the trial.
[2] The Crown seeks to have the respondent declared a dangerous offender (DO) or a long-term offender (LTO) pursuant to sections 751(1) and section 753.1(1) of the Criminal Code.
[3] To that end, the Crown seeks an order remanding the respondent for a period not exceeding 60 days for an assessment to be performed by an expert(s) designated by the Court pursuant to section 752.1(1) of the Criminal Code.
[4] Section 752.1(1) provides:
On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1.
[5] The test for granting this application is whether there are reasonable grounds to believe that the offender might be found to be a dangerous offender or a long-term offender. The threshold is low with the focus on whether, given the totality of the circumstances of the case, there is a "real possibility" as opposed to "probability" that the offender could be designated either as a dangerous or long-term offender: R v RD [2017] O.J. No. 4764 ; R v Vincent [2002] O.J. No. 5623 at para. 3; R v Torres [2007] O.J. No. 1402 at paras. 22, 23; R v MacArthur [1997] O.J. No. 5146 at para. 20.
[6] To meet the section 752.1(1) threshold, the Crown must satisfy the Court that:
The respondent has committed a "serious personal injury offence" or an offence referred to in paragraph 753.1(2)(a); and
There are reasonable grounds to believe that the respondent "might be found" to be either a dangerous offender under section 753 or a long-term offender under section 751.1 of the Code.
[7] Pursuant to section 752 of the Code, a "serious personal injury offence" is:
(a) an indictable offence other than high treason, treason, first-degree murder or second-degree murder, involving
i. the use or attempted use of violence against another person, or
ii. conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person;
and for which the offender may be sentenced to imprisonment for 10 years or more, or
(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).
[8] In this case, Mr. Correa has been convicted, inter alia, of attempted sexual assault which falls under section 752.1(1)(b) as a "serious personal injury offence".
[9] The second step of the inquiry is to determine whether there are reasonable grounds to believe that the respondent might be found to be a DO or an LTO.
[10] Pursuant to section 753(1)(b) of the Code, a person shall be found to be a dangerous offender where the Court is satisfied that that person, by his conduct in any sexual matter including that involved in the commission of the offence for which he has been convicted, has shown failure to control his sexual impulses, and a likelihood of causing injury, pain, or other evil to other persons through failure in the future to control his sexual impulses.
[11] An offender can be declared a long-term offender pursuant to section 753.1(1) of the Code where the Court is satisfied that (i) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (ii) there is a substantial risk that the offender will reoffend; and (iii) there is a reasonable possibility of eventual control of the risk in the community.
[12] Mr. Correa, who is now 33 years old, has been found guilty, for the third time in eight years, of offences related to sexual assault and sexual matters. At the age of 25, he sexually assaulted three young women who were total strangers to him in a park in broad daylight. At the age of 27, he followed a 13-year-old girl, who was unknown to him, into an elevator in her apartment building and sexually assaulted her. In this case before this Court, he targeted twin teenaged girls, unknown to him, to their home where he engaged in voyeurism with the intention of sexually assaulting them. The jury found that he brought along tools with which to perpetrate the crime and with which to overcome the victims anticipated resistance (including a weapon and 12 foot cord).
[13] As regards the previous convictions for sexual assault, Mr. Correa was psychiatrically assessed. The previous psychiatrists who assessed him found as follows:
The respondent has had a long history of mental health issues;
There is a diagnosed history of schizophrenia;
There is a finding of pedohebephilia (sexual preference for children or pubescents);
A finding of a coercive sexual preference could not be ruled out;
The respondent had minimal to no insight into his mental and sexological disorder (even after significant periods of incarceration for his sexual misconduct);
The respondent disputed findings of the psychiatrists;
The respondent has been less than cooperative or reliable in his participation in the assessments;
There has been a history of non-compliance with forms of boundary setting, as well as with court orders;
The respondent has minimal family and community support;
The respondent has no stability in his life; and
There is no prosocial behaviour which can be identified in the respondent's background;
There is a history of absconding from institutional settings.
[14] The pre-sentence (PSR) report dated January 15, 2014, after his second sexual assault conviction, contains the following opinion of the author: "the subject's behaviour has escalated through the years and it is possible that he will reoffend in the community based on his past behaviour and mental health issues".
[15] Following these findings, the respondent has now reoffended and appears to have, again, failed to control his sexual impulses.
[16] It is the position of the Crown, based on all of the findings, that the respondent has minimal to no insight into his psychological and sexological disorders and, as a result, that this almost guarantees "future failures to control his sexual impulses"; that each subsequent conviction has been an escalation in the gravity of the sexual assault or intended sexual assault, which leads to a compelling conclusion of a high likelihood of causing pain, injury or other evil to young women; and that the respondent poses a significant risk to the safety and well-being of young women and girls in the community.
[17] The Crown further states that as regards the test for being found an LTO, a sentence of imprisonment of two years or more is likely in the circumstances of this case, a substantial risk to reoffend is deemed to exist based on the provisions of the Code 753.1(2) in this case where the respondent has been convicted of an offence of attempted sexual assault involving "serious conduct of a sexual nature". This was the third conviction for sexual misconduct or sexual assault involving young women who were strangers to him, with each involving an escalation of the gravity of the sexual misconduct. The last conviction involved a sentence of imprisonment for more than one year and, in this case, and in the circumstances involved, a jail sentence of two years or more is possible: R v SB 2013 ONSC 5189, [2013] O.J. No. 3962; R v Stoney [2004] A.J. No. 74.
I have read the caselaw and considered the submissions of both counsel. Based on the foregoing, Mr. Correa's criminal record, his numerous psychiatric assessments and probationary findings, I am satisfied that there is a likelihood of causing injury, pain or other evil to other young females in the future through similar offences" and/or there is a pattern of repetitive behaviour showing a failure to restrain his behaviour and a likelihood of causing injury to other young women and girls, or inflicting severe psychological damage on them pursuant to Criminal Code section 753.1(2)(ii) and section 751.1(2)(i). I am satisfied that there is deemed to exist under the Criminal Code a substantial risk that the respondent will reoffend. Based on the psychiatric evidence before this Court, it would appear that Mr. Correa does not appreciate or accept the diagnoses made regarding his psychiatric and sexological conditions.
[18] Pursuant to section 752.1(1) of the Code, I order that Mr. Correa be assessed by a psychiatrist to be named from the Centre for Addiction and Mental Health (CAMH) in Toronto. An updated expert psychiatric assessment will also assist the Court in determining whether there is a reasonable probability of eventual control of the risk in the community.
BROWN, CAROLE J., J.
Date: 2019-12-03
COURT FILE NO.: CR-19-40000393
DATE: 2019-12-03
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DANNY FRANCISCO CORREA
Defendant
REASONS FOR DECISION: APPLICATION RE ORDER FOR ASSESSMENT PURSUANT TO SECTION 752.1 OF THE CRIMINAL CODE
BROWN, CAROLE J., J.
Released: 2019-12-03