COURT FILE NO.: 18-SA5175
DATE: 20210223
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MUBARAK MOHAMED
Accused
Juliana Martel, for the Crown
Marc Andre Lavigne, for the Accused
Restriction on Publication
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code of Canada.
REASONS FOR sentence
Beaudoin J.
[1] On December 4, 2020, I found the offender, Mubarak Mohamed, guilty of one count of sexual assault contrary to s. 271 of the Criminal Code of Canada, R.S.C., 1985, c. C-46 (“the Code.”).
Background Facts
[2] During the evening of September 26, 2018, the complainant, M. J-M., and her friends attended a small party at an apartment located in student housing near the University of Ottawa. The offender along with his friend Abu then showed up. There was a party atmosphere and alcohol was consumed. M. J.-M. admitted that she was feeling the effects of the alcohol, but she did not consider herself intoxicated.
[3] The victim admitted to being flirtatious with the offender and that they smoked some marijuana. She asked him if he sold speed and he invited her to his room where he would sell it to her. Once they arrived upstairs, followed by Abu, the offender pushed the victim into the washroom. Once inside the washroom, the offender grabbed the victim by her wrists and pushed her up against the wall. I conclude that Abu stood watch outside the door. With one hand, the offender held M. J.-M.’s wrists, and with the other, he pulled down her pants and underwear and raped her, penetrating her vagina from behind. The victim screamed, she told him she did not want this. The offender did not use a condom. After he ejaculated inside the victim, the offender then left.
[4] The victim broke down in tears – she was in a state of shock. She told her friends what happened. The offender was later found outside with a group of men who were laughing about what happened to the victim: they were mimicking the sounds of a girl crying out for help. One of M. J.-M.’s friends, Bennet Fong, went to confront them as he recognized the offender and Abu as part of that group. Mr. Fong was assaulted with a tree branch. The offender was charged with that offence, but I acquitted him since Mr. Fong was unable to identify him as his attacker.
[5] The offender testified that there had been consensual sex. I found his evidence to be completely incredible. His story was inconsistent, and he attempted to blame the victim; essentially going so far as accusing her of being the aggressor; of having seduced him and that he was the unwilling participant.
Position of the Parties
[6] The Crown submits that the appropriate range of sentence is three to six years. Given the aggravating circumstance of this case, the Crown submits that sentence of five years should be imposed. The Crown also seeks a weapons prohibition order pursuant to s. 110 of the Code, for a period of ten years, a DNA order, a non-contact with the complainant while in custody under s. 743.21 and a Sex Offender Information Registry Act, S.C. 2004, c.10 (“SOIRA”) order for 20 years.
[7] On behalf of the offender, Mr. Lavigne seeks a sentence of six months less a day to avoid a possible deportation order since Mr. Mohamed is not a Canadian citizen and has had no contact with this father in his native Djibouti. He relies on the offender’s youth and also cites the impact of COVID 19 on incarcerated persons as an additional consideration in sentencing. The ancillary orders sought by the Crown are not opposed.
Circumstances of the Offender
[8] Mr. Mohamed is currently 27 years of age. His criminal record contains the following convictions:
April 9, 2015 (Adult Court)-Robbery s. 344(b) for which he received a suspended sentence and placed on probation for 18 months and received a mandatory prohibition order pursuant to s. 109 for 10 years.
April 9, 2015 (Adult court) – Obstruct Police Officer, s. 129(a); Fail to comply with conditions of undertaking, s. 145(5.1) for which he received a four-month conditional sentence.
October 7, 2019 – Failure to comply with recognizance, s. 145(3) for which he received a suspended sentence and probation for 1 day (19 days pre-sentence custody).
November 29, 2019, Failure to comply with recognizance, s. 145(3) for which he received a suspended sentence and probation for I day (19 days -presentence custody)
It is further conceded that Mr. Mohamed has a conviction for another failure to comply with his recognizance which conviction is dated March 10, 2020 and for which he received a sentence of 40 days presentence custody. It is agreed that the offender has an unused credit of 40 days for time spent in custody.
The Pre-Sentence Report (PSR) of January 18, 2021
[9] The PSR reveals that Mr. Mohammed was born in the Republic of Djibouti in Africa and immigrated to Canada at the age of 6 accompanied by his maternal grandmother. His mother was already in Canada. His father remained in Africa and Mr. Mohammed has had no contact with him to this day.
[10] Mr. Mohammed had a good childhood. He is currently in a relationship and this person has been very supportive of him throughout the court process.
[11] Mr. Mohammed admitted that he started drinking alcohol in 2016 and claims to have stopped him completely at the beginning of 2018. When it was pointed out to him that he admitted having a bottle of rum with him on the day of the offence, in September 2018 , he responded he only planned to take a few sips and did not consider taking a few sips as “drinking”. He admitted to some marijuana use but claims to have never sold drugs or to have experimented with other drugs.
[12] The following paragraph from the PSR is noteworthy:
In recounting his life, the subject often portrayed himself as a victim in situations that did not go his way. He states that the teacher refused to give him his last credit that would allow him to graduate with classmates. He indicates that he has no idea why this occurred, taking no responsibility for his part whatever happened between him and his teacher. He also indicated he was tricked into cheating on his first girlfriend, again allowing himself to be blameless.
[13] The offender denied any responsibility for this offence and insisted that he had consent for the sexual contact between himself and the complainant. He claimed that being charged with this serious offence has left him traumatized and bewildered. He blamed certain people for trying to ruin his life.
[14] The PSR assessment concludes that Mr. Mohammed appears to have good family support but is not currently working or attending school. The probation officer notes her concern with respect to Mr. Mohammed’s failure to accept responsibility for much of the negative aspects of his life. His poor performance, while bound by bail for the current matters, reveals an individual who is not prepared to abide by court conditions if they are inconvenient to him. He was not deemed suitable for community supervision.
Victim Impact Statement
[15] The victim provided a Victim Impact Statement that was read by the Crown. It is evident that she has been traumatized by this incident and a sense of fear continues to haunt her. She suffers from anxiety and post-traumatic stress. She fell into substance abuse to manage her distress and has now completed a detox program which has helped restore her sense of well-being, but she continues to have flashbacks to the events of that night.
Sentencing Principles
[16] The applicable sentencing principles are set out in ss. 718, 718.1 and 718.2 of the Code. Section 271 provides for a maximum sentence for sexual assault of ten years. Further ancillary orders can be imposed.
[17] Denunciation and general deterrence are the paramount principles to be considered in case of violent rape such as this one. A 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.
[18] The aggravating factors are the following:
a. The offender took advantage of the victim’s somewhat intoxicated state.
b. This was a sudden, violent rape, with full vaginal penetration without a condom.
c. The offender abandoned his victim to join a group of men who then laughed and mocked the victim’s cries for help.
d. The accused has a prior record for a serious offence.
[19] The only mitigating factor is the offender’s support from his family, While the offender is entitled to maintain his innocence, he does not earn any credit that he might have earned from a guilty plea.
[20] The PSR indicates a general failure on the part of offender to take any responsibility for any problems in his life. That attitude, along with his repeated failure to comply with the terms of his recognizance undermine his prospects for rehabilitation.
[21] While a penitentiary term will have possible immigration consequences, the Court of Appeal concluded in R. v. Crespo, 2016 ONCA 454, 132 O.R. (3d) 287, that “consideration of immigration consequences cannot justify an otherwise inadequate sentence.” It remains a factor in imposing a sentence in this case.
[22] As for the impact of COVID 19, I am aware of media reports on the impact of the pandemic on in incarcerated persons, but as Justice De Filippis in R v. Ilunga, 2020 ONCJ 270 observed at para. 27 after his review of the affidavit evidence of an epidemiologist:
The above noted statements by medical professionals are important and relevant. But there are other factors at play. The Court’s primary duty in sentencing is protection of the public. This duty is fulfilled by a consideration of statutory and common law principles. If jail can be avoided or minimized, it should be, because of what the medical experts have told us about the pandemic. However, at the end of the day, public safety cannot be sacrificed on the altar of COVID-19.
[23] I accept that the Crown’s submission that the appropriate range of sentence for sexual assault is three to six years in custody. I recognize that the offender’s record for the more serious robbery offence is somewhat dated, but it offsets any consideration that might be given to his relatively young age. As noted, his record is aggravated by his repeated failure to comply with court orders. Having regard to the offence and this offender, I am of the view that the appropriate range of sentence is four years less the 60-day credit earned.
[24] Mr. Mohamed would you please stand. Do you have anything you wish to say?
[25] You are sentenced as follows:
• With respect to your conviction for sexual assault you are sentenced to a term of imprisonment of three years and ten months.
• You must provide a DNA sample pursuant to s. 487.05 (1) (2) of the Code.
• Pursuant to s. 490.012 of the Code, you must comply with the SOIRA for a period of 20 years.
• In accordance with s.743.21(1) of the Code, you must not communicate in any way, directly or indirectly, with the victim while you are in custody,
• As this is a second prohibition order, you are prohibited from having possession of the weapons/items set out in s.110 of the Code for ten years.
Mr. Justice Robert N. Beaudoin
Released: February 23, 2021
COURT FILE NO.: 18-SA5175
DATE: 20210223
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
MUBARAK MOHAMED
Accused
REASONS FOR sentence
Beaudoin J.
Released: February 23, 2021