COURT FILE NO.: CJ 9483

DATE: 2020/11/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BENJAMIN KOWBA

Defendant

Katherine Enns, Counsel for the Crown

Anthony Andreopoulos, Counsel for the Defendant

HEARD: August 31, 2020

D.A. Broad

(ORALLY)

REASONS FOR SENTENCE

[1] Benjamin Kowba was found guilty by a jury of two counts of sexual assault – one count in respect of each of two individual complainants K.K. and S.G.

[2] The evidence led by the Crown at trial alleged distinct instances of sexual touching by the accused of each complainant, two in the case of K.K. and three in the case of S.G.

[3] The parties agreed that there existed ambiguity on the factual basis of the jury’s verdict in respect of each count. On consent, I ordered that a bifurcated hearing be held on sentencing - the first segment to determine what facts from the evidence had been proven beyond a reasonable doubt to support the jury’s verdict, and the second to determine the appropriate sentence, based upon the found facts.

[4] The first phase of the bifurcated hearing was held on March 16, 2020 and my Endorsement respecting the factual findings was released in writing on April 14, 2020 (R. v. Kowba, 2020 ONSC 2255). This Endorsement was read in open court in the presence of Mr. Kowba at the commencement of the second phase hearing on August 31, 2020.

[5] I do not propose to repeat the findings of fact necessary for sentencing from the issues before the jury, as they were fully set out in my earlier reasons. It is sufficient for present purposes, to summarize the findings as follows:

In respect of count 1, Mr. Kowba has been proven to have committed sexual assault against the complainant K.K. by:

(a) touching or “grazing” K.K.’s back and upper buttock while she was seated on his knee on the balcony of the apartment he shared with his partner (the “apartment”); and

(b) digitally penetrating K.K. while she was sleeping on the floor of the apartment.

In respect of count 2, Mr. Kowba has been proven to have committed sexual assault against the complainant S.G. by:

(a) touching or grabbing S.G.’s buttock while he was following her into the apartment;

(b) kissing S.G.’s arm and touching or caressing her left breast while she was sleeping on the living room couch in the apartment.

Victim Impact Statements

[6] Each of the complainants provided victim impact statements. S.G. read hers in open court. K.K.’s victim impact statement was read by Crown counsel, as was a victim impact statement prepared by K.K.’s partner.

[7] S.G. described how Mr. Kowba’s conduct took away her sense of security and violated her trust. She has suffered panic attacks and sleep deprivation. She also lost her sense of community and supportive friendships. When she learned of the allegations of Mr. Kowba’s sexual assault against K.K. she felt guilt and turmoil and had to seek out counselling. She described the experience of having to re-live the events in court in front of a room full of strangers as nerve-racking and humiliating to her.

[8] In her victim impact statement K.K. described the deep impact the sexual assault committed against her by Mr. Kowba has had on her sense of self and safety. Prior to the event she perceived Mr. Kowba to be a close friend and his actions represented a violation of her trust.

[9] K.K. also struggled with anxiety and panic attacks and sleep disturbances. Her ability to be physically intimate with her partner was disrupted which in turn adversely affected their relationship. It was only when she obtained access to counselling that she was able to develop coping strategies which helped to minimize the effects of her anxiety.

[10] K.K.’s anxiety about encountering Mr. Kowba led her to disengage from the rugby community which she loved and regarded as her “chosen family.” K.K. gave up her career in Kitchener and re-located to Toronto due to the anxiety and fear she was experiencing in Kitchener-Waterloo. Her anxiety has impeded her ability to focus on her graduate studies and has led to chronic stomach problems for which she has had to take medication.

[11] In her statement, K.K.’s partner A.B. described how the two of them previously pictured themselves as spending their lives together in Kitchener-Waterloo. Now they are fearful of running into Mr. Kowba or his fiancée and, as a result, they no longer consider Kitchener-Waterloo to be a safe or comfortable space for them. She also described how Mr. Kowba’s actions took away their rugby community which was so meaningful to them.

Pre-Sentence Report

[12] A Pre-sentence Report was completed on March 27, 2020.

[13] The report noted that Mr. Kowba is 29 years of age with no criminal record.

[14] Mr. Kowba reported that he had a positive upbringing. He is now engaged to his partner of seven years and they each report a positive relationship. His partner describes him in positive terms and has supported him through the court process.

[15] Mr. Kowba graduated from university with a Bachelor of Arts in 2013 and, following graduation, he commenced full-time employment in retail and is presently a store manager for a local computer and video game retailer.

[16] Mr. Kowba reported no history of recreational drug use. He began to use alcohol on a social basis at 17 years of age - a pattern which continued until his early 20s. He had a routine of consuming alcohol on a weekly basis following rugby games to the point of intoxication. He acknowledged that he had consumed alcohol prior to both matters before the Court. Following his arrest, in consultation with his partner, he decided to stop consuming alcohol. He reported that he also discontinued participation in his rugby league.

[17] The writer of the report noted that Mr. Kowba did not express any responsibility for the matters before the Court, nor any empathy towards the victims. He described the matters before the Court as pursuing a consensual sexual encounter and displayed remorse solely for his infidelity and the impact on his partner.

[18] Mr. Kowba advised that he has assumed a caregiver role for his parents, assisting with errands and transportation.

Other Evidence

[19] Defence counsel filed a letter from Mr. Kowba’s father stating that Mr. Kowba helps the family get groceries, medications and other necessities. He has also driven his mother, who is ill, to the hospital emergency department on a number of occasions. Mr. Kowba’s father was thankful for his caring and goodness.

Guiding Principles

[20] As set forth in s. 718 of the Criminal Code, the purpose of sentencing is 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 on the offender. The stated objectives of any sentencing decision include denunciation, deterrence, rehabilitation, reparation for harm done, promotion of offender responsibility and acknowledgement of harm done.

[21] Section 718.1 of the Code explicitly states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[22] The principle of parity requires a sentence to be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances, however, sentencing remains an individualized process such that sentences imposed for similar offences may not be identical (see R. v. Cox, 2011 ONCA 58 (Ont. C.A.) at para. 45).

[23] Under the introductory portion of s. 718.2(a) a sentence is to be reduced to take into account mitigating circumstances relating to the offence or the offender or increased to account for any aggravating circumstances, including, under sub-para. (iii) that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.

[24] S. 718.2(b) requires that a sentence be similar to those imposed on similar offenders in similar circumstances, and paragraphs 718.2 (d) and (e) provide that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

Position of the Crown

[25] The Crown seeks a sentence involving incarceration of two years less one day, followed by a three-year period of probation, together with the following ancillary orders:

(a) that Mr. Kowba provide a DNA sample in respect of both counts on the basis that the offence is a primary designated offence;

(b) a weapons prohibition under s. 109 of the Criminal Code for life;

(c) that Mr. Kowba comply with the Sex Offender Information Registration Act for life pursuant to s. 490.13(2.1) of the Criminal Code;

(d) that Mr. Kowba have no contact, directly or indirectly, with S.G., M.V., K.K. and A.B. during the custodial period of his sentence pursuant to s. 743.21 of the Criminal Code.

[26] The Crown also requests that the terms of probation include the following:

(a) that Mr. Kowba report to probation as directed;

(b) that he reside where approved by his probation officer;

(c) that he remain in Ontario;

(d) that he had no contact directly or indirectly with S.G., M.V., K.K. and A.B. during the probationary period;

(e) that he not attend within 100 m of anywhere that the above individuals are known to live, work, study or frequent during the probationary period;

(f) that he participate in counselling, including for sexual offending, as directed by his probation officer and execute any required releases in that respect; and

(g) abstain from the consumption of alcohol or other intoxicating substances during the probationary period.

[27] Ms. Enns for the Crown submits that there are limited mitigating circumstances, namely, that Mr. Kowba has no prior criminal record and that he is relatively young.

[28] Ms. Enns outlined a number of aggravating factors including the following:

(a) he sexually assaulted each of the victims twice on each occasion;

(b) each of the victims considered themselves close friends of Mr. Kowba, in whom they had placed their trust;

(c) Mr. Kowba assaulted each of the victims while they were asleep; and

(d) the sexual assaults have had a profound and long-lasting impact on each victim.

[29] Ms. Enns argues that, while Mr. Kowba’s protestations of innocence may not be treated as an aggravating factor, it is not improper for the court to consider, in determining a fit sentence, a pre-sentence report indicating that the offender showed a lack of insight into the effects of his behaviour on the complainants. (See R. v. C.B. 2008 ONCA 486, [2008] O.J. No. 2434 (C.A.) at para. 57 in this respect).

[30] Ms. Enns submits that the court should consider 18 months incarceration for the incidents involving the complainant K.K. and an additional 6 months less 1 day for the incidents involving the complainant S.G. for a total of two years less 1 day.

[31] Ms. Enns argues that the predominant sentencing principles in this case should be denunciation and deterrence.

Position of the Defence

[32] Mr. Andreopoulos suggests that a period of incarceration on a global basis of 7 months would be a fit sentence, comprised of 6 months in reference to the sexual assaults of K.K. and one month in reference to those of S.G. He suggests a probationary period of 18 months. He is not opposed to the ancillary orders sought by the Crown or to the suggested terms of probation.

[33] Mr. Andreopoulos made reference to the following cases in support of his position:

R. v. M.D., 2018 ONSC 2792 (S.C.J.); and

R. v. Giraldo-Vargas, 2016 ONSC 8117 (S.C.J.).

[34] M.D. involved a sexual assault by the manager of a nightclub on a recently hired employee in training. During working hours, the offender engaged in a sex act with the complainant, who was intoxicated and therefore in a vulnerable position, in a secluded washroom, consisting of performing cunnilingus on her and brief digital penetration of her vagina.

[35] The Crown sought a sentence of two years less one day followed by 18 months probation whereas the defence sought a 90-day period of incarceration to be served intermittently, followed by a period of probation.

[36] Calum MacLeod, J. noted that the offender had no prior criminal record and, apart from the incident, appeared to be of general good character with a record of steady employment and pro-social activity. On the other hand, the offence occurred in the workplace and involved a betrayal of trust. There was also a significant difference in age. The offender was 30 and the complainant was 19. The offence left the complainant feeling humiliated, degraded and upset.

[37] MacLeod, J. noted at para. 25 that:

in sentencing a first-time offender who is a productive member of society and for whom the events in question appear to be an anomaly, rehabilitation and individual deterrence are important. The principle of restraint requires that the Court consider the least restrictive sanctions that are appropriate in the circumstances.

At the same time the principles of denunciation and general deterrence require a punishment that is perceived as more than a simple slap on the wrist.

[38] MacLeod, J. concluded, at para. 29, that the circumstances of the case represented a significant but not a severe sexual assault and that an appropriate range of sentence for an offence involving these elements would be 6 to 18 months of jail and up to 24 months of probation.

[39] MacLeod, J. imposed a sentence providing for a term of imprisonment of 9 months followed by 18 months probation.

[40] Giraldo-Vargas involved an appeal by the Crown from a sentence imposed in the Ontario Court of Justice for sexual assault involving digital penetration by the offender of the complainant who was asleep due to intoxication. The sentencing judge sentenced the offender to a conditional sentence of 5.5 months and two years probation.

[41] On the appeal, Then, J. held at para. 17 that, although the sentencing judge recognized that digital penetration of an unconscious and vulnerable complainant which caused significant emotional and psychological impact was a serious offence with aggravating features, she had failed to apply those principles in assessing whether a conditional sentence was consistent with fundamental principles of sentencing.

[42] Then, J. determined that the imposition of a conditional as opposed to a custodial sentence represented an error in principle.

[43] Notwithstanding its position at trial that an appropriate sentence of 12 months custody was appropriate, the position of the Crown on the appeal was that an appropriate range would be 6 to 9 months of custody, without consideration of the collateral immigration consequences to the offender. Then, J. varied the conditional sentence of 5.5 months imposed at trial, which had already been served, and substituted a sentence of 5.5 months of incarceration, with the result that the offender was not required to be incarcerated.

[44] Mr. Andreopoulos pointed out that Mr. Kowba was born and raised in Kitchener and benefited from a positive upbringing. He was educated at the University of Waterloo. He is engaged to his long-standing partner and there are no incidents of any violence in his relationships. He is in a caregiving role to his parents. He submits that all of these factors contribute to good prospects for his rehabilitation.

Analysis

[45] The Crown and the Defence are not in disagreement on the guiding principles, and, in particular, that the objectives of denunciation and deterrence are the primary sentencing objectives in this case. I agree with this proposition.

[46] The sentencing of an individual is perhaps one of the most difficult tasks for a judge. It is well recognized that determining a fit sentence is an individualized process. Each case is unique, with a different factual context and different circumstances of the individual offender.

[47] The task of the court in this case is to craft a fit sentence which will adequately address the predominant principles of denunciation and deterrence while also promoting the objective of rehabilitation in Mr. Kowba’s individual circumstances. As indicated above, the Criminal Code directs sentencing judges to determine the least restrictive sentence that would meet the purpose and principles of sentencing.

[48] As indicated above, the principle of parity is important in the sentencing process. The difficulty is that the facts of each case are unique as are the circumstances of each offender. Although previous cases are useful in providing guidance on the applicable sentencing principles and in suggesting appropriate ranges of sentences in different circumstances, the process remains highly individualized.

[49] The case of M.D. is helpful and instructive. However, it must be noted that, although there are features in common with the case at bar, there are also important distinguishing features. As her employment supervisor, the offender in M.D. was in a position of trust vis-à-vis the complainant. Mr. Kowba was also in a position of trust, albeit informal, with K.K. and S.G. by virtue of their relationships. In R. v. M.M., 2017 ONSC 1829, [2017] O.J. No. 1523 (S.C.J.) Molloy, J. held, at para. 15, that the relationship, as friends, between the complainant and the offender was an aggravating factor.

[50] In M.D. there was only one victim and MacLeod, J. made particular reference to the fact that the offender lived an otherwise pro-social lifestyle and continued to enjoy the support of family, friends, co-workers and others in the community, all of whom regarded the events as out of character. In contrast, in the case at bar, Mr. Kowba committed the sexual assaults on two different victims in his apartment while they were sleeping, approximately one year apart. His sexual assault on K.K. was more intrusive than his assault on S.G. and therefore represented an escalation of the behaviour exemplified by his sexual assault of S.G.

[51] In my view Giraldo-Vargas is of little assistance due to the unique features of that case. The Crown elected to proceed summarily, and a conditional sentence was available. There were immigration consequences to the offender which the Court was required to take account of. The focus of the appeal was very much on whether the sentence imposed should have been conditional or custodial.

[52] The Crown cited the case of R. v. Saunders, [2010] N.J. No. 164 (Nfld. S.C.) in which the offender was found to have grabbed the complainant, placed her on a bed, forcibly pulled down her pants and digitally penetrated her. He was also found to have stolen a computer and camera from the complainant.

[53] The offender in Saunders had a relatively lengthy criminal record both as a youth and as an adult. LeBlanc, J., at para. 26, noted that although the assault could not be described as the worst of sexual assaults, the circumstances in which it occurred, including the fact that it took place in the victim’s own home, the use of force as well as the digital penetration made the offence a very serious one. It represented a significant violation of the complainant’s sexual integrity.

[54] At paragraphs 33 and 34, LeBlanc, J. noted that, although specific and general deterrence as well as denunciation are the overriding considerations, he was unable to ignore the prospects for the offender’s rehabilitation. He noted that, given the offender’s relative young age at 23, the best protection for society resulting from any sentence imposed, would be if he learns from his sentence and changes his lifestyle to become a law-abiding and productive member of society. He noted that the offender had the support of his girlfriend and his family, all of which boded well for his rehabilitation.

[55] A sentence of 12 months imprisonment was imposed for the sexual assault in light of the particular circumstances of the offence and the offender.

[56] The Crown also cited the case of R. v. Allen, [2017] O.J. No. 3127 (O.C.J.). In that case the offender forced the complainant to perform oral sex on him in the stairwell of his apartment building. The offender had invited the complainant to his apartment to continue drinking after the bar where they had met closed. Once inside the stairwell the offender became “mean and aggressive,” grabbed the complainant’s head and began swearing at her and forced her to perform fellatio on him.

[57] At para. 36, Rahman, J. observed that, rather than focusing on which part of the victim’s body was attacked, it was more logical to look at the full picture of the assault in its aggravating features, including the degree of violence involved. He noted that the case involved a violent and invasive sexual assault. At paragraph 37, he noted that an invasive sexual assault like the one before him required a strong denunciatory sentence. At paragraph 38 he made reference to the fact that the crime of sexual assault has a profound effect on its victims.

[58] The offender in Allen had a lengthy criminal record including a previous conviction for sexual assault, albeit less invasive than the one that was in issue. He also had two convictions for assault, including one with a weapon, and a conviction for uttering threats.

[59] At para. 40-41, Rahman, J. noted the offender’s criminal record to be an aggravating factor on sentence, justifying an increase in the sentence to further the goals of specific deterrence and the objective of separating a repeat offender from society. At para. 43 he found that a sentence of three years was a fit sentence, given the circumstances of the offence and the offender, and was proportionate to the offender’s degree of responsibility.

[60] The Crown also cited the cases of R. v. Arcand, 2010 ABCA 363, [2010] A.J. No. 1383 (Alta. C.A.) and R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207 (S.C.C.), to which I have had regard, for their respective explications of the principles of sentencing applicable to cases of sexual assault. Each of these cases emphasize the fact that major sexual assaults are serious crimes for which denunciation and deterrence must be given considerable weight and primacy (see in particular Arcand at para. 274).

[61] In reference to the case at bar, I accept the Crown’s characterization of the mitigating and aggravating factors, referred to earlier, with which the defence did not take serious issue.

[62] I find that a sentence of 15 months incarceration, followed by 2 years probation, would be fit in the circumstances of the offences and the offender. The period of incarceration may be attributed to 12 months for the sexual assaults on K.K. and 3 months in respect of the sexual assaults on S.G. This sentence recognizes the primary objectives of denunciation and deterrence, while recognizing the prospects for Mr. Kowba’s rehabilitation, and the principles of parity and restraint.

Disposition

[63] Mr. Kowba – would you please stand:

[64] I sentence you to a period of incarceration of 15 months, followed by a 2-year period of probation, together with the following ancillary orders:

(a) you shall provide a DNA sample in respect of both counts on the basis that the offences are primary designated offences;

(b) you shall be subject to a weapons prohibition under s. 109 of the Criminal Code for life;

(c) that you comply with the Sex Offender Information Registration Act for life pursuant to s. 490.13(2.1) of the Criminal Code;

(d) that you have no contact with S.G., M.V., K.K. and A.B., directly or indirectly during the custodial period of your sentence pursuant to s. 743.21 of the Criminal Code.

[65] The terms of your probation shall include the following:

(a) that you shall report to probation as directed;

(b) that you reside where approved by your probation officer;

(c) that you remain in Ontario;

(d) that you have no contact with S.G., M.V., K.K. and A.B., directly or indirectly during the probationary period;

(e) that you not attend within 100 m of anywhere that the above individuals are known to live, work, study or frequent during the probationary period;

(f) that you participate in counselling including for sexual offending, as directed by your probation officer and execute any required releases in that respect; and

(g) that you abstain from the consumption of alcohol or other intoxicating substances during the probationary period.

D.A. Broad, J.

Date: November 13, 2020

COURT FILE NO.: CJ 9483

DATE: 2020/11/13

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

BENJAMIN KOWBA

REASONS FOR sentence

D.A. Broad, J.

Released: November 13, 2020