Reasons for Sentence
Court File and Parties
COURT FILE NO.: CR-18-0137 DATE: 2021 02 24
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Counsel for the Crown: Mario Thouraidis
- and -
U. K. and R. P.
Counsel for the offender U.K.: Jeff Marchman Counsel for the offender R.P.: Edmond Brown
Offenders
HEARD: January 22, 2021 Via Zoom
Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.
Overview
[1] On November 6, 2019, both offenders were convicted, by a jury, of sexual assault, contrary to s. 271 of the Criminal Code of Canada. The sentencing hearing was originally scheduled for January 10, 2020, but, for a number of reasons, the primary one being the Covid-19 pandemic, the sentencing hearing did not proceed until January 22, 2021, via a Zoom teleconference.
The Facts
[2] On or about July 17, 2017, the victim L.F., along with friends attended a party at a local hotel. At the time the victim was 17 years old.
[3] As the party progressed the victim consumed a significant amount of alcohol, to the point of intoxication and beyond. As a result of how she was feeling, the victim went into the bedroom to lay down. At some point thereafter, a number of people came into the bedroom including U.K. who laid on the bed beside her.
[4] The victim testified that she heard someone say, “let her give you head” after which U.K. pulled her down lower on the bed and pulled out his penis. He grabbed the victim’s head and pulled it down to his penis and put it in her mouth. He then moved her head up and down.
[5] After some time, the victim testified that she heard U.K. say, “you take her” and the co-accused R.P. grabbed the victim and pulled her towards him. He removed her pants and underwear and attempted to have intercourse with her, although his penis did not fully enter her. At some point the victim was required to fellate R.P.
[6] Thereafter the victim was found by some of her friends on the bed, partially dressed, semi-conscious and unable to walk without assistance. They helped dress her and get her to the bathroom where she was violently ill. Her condition was so serious that R.P. called 911. The ambulance and the police arrived, and the victim was transported to the hospital and an investigation commenced.
Circumstances of the Offence
[7] The offence of sexual assault is an indictable offence, with a maximum term of 10 years in jail. On the basis of the evidence heard and the verdict of the jury, I find that the jury believed the sexual activity occurred without the consent of the victim as she was too intoxicated to consent.
Circumstances of the Offenders
U.K.
[8] U.K., at the time of the offence was 19 years of age. He was born in Pakistan and came to Canada with his family in 2008. He is a Canadian citizen.
[9] U.K.’s Pre-Sentence Report (PSR) was made Exhibit 2 and discloses that the offender turned himself into the police and was said by the police to be respectful and cordial. The PSR stated that he was co-operative, respectful, polite, and forthcoming.
[10] U.K. was described as hard-working and family oriented. He has four siblings and described his family life, growing up, as positive.
[11] When interviewed for the PSR, in late 2019, U.K. said that he had feelings of depression.
[12] The offender, along with his brother, currently operates an automobile repair business which opened in March 2020.
[13] U.K. has no criminal record. He has a girlfriend with whom he has been in a relationship since, July 2018.
[14] The report notes that U.K. believed that the sexual activity was consensual.
[15] Under the sub-title “Assessment”, in the offender’s PSR, it was said that, “The subject does not present with any issues and/or concerns regarding alcohol and/or illicit drugs.” The report goes on to say there are no noted considerations in respect to U.K. being able to comply with community supervision and his willingness to change.
R. P.
[16] The offender R.P., at the time of the assault was 19 years of age and without a criminal record. His PSR was filed as Exhibit 3.
[17] The offender was born in Dubai and his parents are originally from India.
[18] R.P.’s childhood can be described as troubled and abusive. His father was an alcoholic and inflicted emotional and physical abuse. He lived with his paternal grandparents until he was five years of age and was first assaulted by his father when he was eight years old and then, along with his siblings, was sent to live with his maternal grandparents.
[19] R.P. was expelled from school when he was 13 years old and was sent to a substance abuse treatment facility for reasons that are somewhat unclear. When there, he was sexually assaulted.
[20] The offender came to Canada with his mother and siblings in 2014, settling in Mississauga. At the age of 15 or so, his behaviour started changing and he was said to have started hanging out and smoking. He became disrespectful and would not follow household rules.
[21] At times R.P. left home and one of those times resulted in him living on the streets for six months.
[22] In 2018, the offender was sent to live with a family friend and remained there for 18 months. He then moved to Hamilton to live and find employment.
[23] During the current Covid-19 pandemic, the offender returned to live in his mother’s home and, since September 2020, he has been employed full time.
[24] The offender was said to have smoked marijuana until he was 18 and to have tried cocaine. His peer group is described as “questionable” however, the offender was said to have a good heart and deserving of a second chance.
[25] R.P. was also of the belief that the sexual activity was consensual.
[26] Under the sub-title of “Assessment” in the PSR, it is said, “Of concern is the offender’s mental health.” The offender admitted to experiencing depression for several years and continues to struggle mentally.
Impact on the Victim
[27] Exhibit 1 to this sentencing hearing is the victim’s impact statement, which reflects a victim whose life changed forever as a result of the assault. The victim wrote that the assaults,
“Took a massive toll on my emotional stability, my mental wellbeing and my entire life.”
[28] The victim described the incident as, “the day her womanhood was ripped away from her”.
[29] The victim expressed that she will never be the same again and that she never feels safe and cannot trust any man.
[30] The victim describes her life as “ruined”. She states,
“I’m hoping that the two involved don’t get any leniency in their sentencing, they deserve to be punished and I deserve justice.”
[31] The victim expresses a fear of seeing the offenders again, even by chance. She describes her anxiety being uncontrollable knowing that when she is out in public the offenders could be in the same place. She states that she is living in constant fear.
[32] The victim states that nothing will ever by the same and it is truly no way to live.
Positions of Crown and Defence
Crown
[33] The Crown submits that in regard to the facts of the sexual assault in regard to the offender R.P. and further to s. 4(5) of the Criminal Code of Canada, sexual intercourse is complete on the penetration to even the slightest degree, notwithstanding that seed is not emitted. R.P. is therefore guilty of non-consensual fellatio and intercourse. U.K. is guilty of non-consensual fellatio.
[34] The Crown is seeking a sentence of 2.5 years in jail for U.K. and 3 years for R.P. A number of ancillary orders are also sought.
[35] The Crown submits that what is required is a strong denunciatory sentence.
[36] In support of his position the Crown provided a number of authorities which will be reviewed below.
Defence
U.K.
[37] Counsel for U.K. does not disagree with the broad principles outlined by the Crown but submits an appropriate sentence is 18 months. It is submitted that a sentence which attracts penitentiary time requires some element of gratuitous violence or action on the part of an offender well beyond the facts of this case.
[38] Counsel for U.K. submits that a sentence of 18 months meets the need for denunciation and deterrence but also recognizes the potential for rehabilitation.
[39] It is submitted that the offender’s behaviour on the night in question does not reflect his general behaviour and his strong family support.
[40] While counsel for U.K. recognizes that a penitentiary sentence sought by the Crown is within the range of possible sentences for such crimes, it is submitted that it does not reflect his client’s status or youth.
[41] Counsel asks the court to take into account the presence of peer pressure and the fact that young people sometimes make bad decisions.
[42] With respect to the ancillary orders sought by the Crown, counsel for U.K. only takes exception to extending a weapons prohibition from 10 to 20 years. It is submitted that the offence did not involve a weapon of any kind or violence beyond the act itself.
R.P.
[43] Counsel for R.P. asks the court to take into account his client’s youth and lack of a criminal record. The court is asked to take into account his difficult childhood in which the offender was a victim.
[44] Counsel submits that currently, his client is doing well and living with his mother.
[45] While the crime for which R.P. was convicted is made up of two incidents of sexual assault, it is submitted that the incidents occurred over a short period of time and that the fact that he perpetrated two acts of sexual assault ought not to be considered an aggravating factor.
[46] Counsel submits that the appropriate range is from 18 months to five years and submits a sentence of two years less a day would be appropriate.
[47] The need to consider the principles of denunciation and deterrence is recognized but counsel submits the court should also take into account the prospects of R.P.’s rehabilitation.
[48] Counsel takes no issue with the ancillary orders sought by the Crown.
Case Law
[49] One of the cases relied upon by the Crown is the Ontario Court of Appeal decision in R. v. Tweneboah-Koduah, 2018 ONCA 570, in which the facts involved a complainant and offender who were first year university students living in the same residence. The assault involved forced fellatio and vaginal penetration.
[50] The offender’s appeal of his 26 month sentence was, dismissed. The court found that the sentence imposed was within the range of sentences for such offences and found that the aggravating factors included the complainant’s age (17), the fact that the assault consisted of multiple acts, the fact that part of the assault occurred when the complainant was unconscious and the grave impact on the complainant and her family (para. 34).
[51] R. v. Arcand, 2010 ABCA 363, [2010] A.J. No. 1383, is a decision of the Alberta Court of Appeal, in which the offender was an 18 year old indigenous person, without a criminal record, who had intercourse with the complainant when she was passed out.
[52] The trial judge ruled that the offender knew the complainant had not consented to sexual activity and convicted the offender of sexual assault. The Crown sought a sentence of 3-4 years whereas counsel for the offender suggested a sentence of 90 days served intermittently and three years probation, which was the sentence ultimately imposed by the trial judge.
[53] The Crown appeal was allowed and a sentence of two years less a day followed by two years probation was substituted. It was said that regardless of whether the sexual activity amounted to forced fellatio or intercourse, such acts are a major and violent sexual assaults upon a victim (paras. 171 and 172; also see R. v. Allen, 2017 ONCJ 405, para. 35).
[54] R. v. Garrett, 2014 ONCA 734 involved an appeal of sentence by the Crown. The offender was convicted of sexual assault and sentenced to 90 days in jail. The assault was said by the Crown to represent the classic date-rape scenario. The primary sentencing objectives were denunciation and deterrence (para. 16).
[55] The Court of Appeal noted that the victim repeatedly told the offender to stop and he did not. The court then said:
“This, in itself, constitutes demeaning behaviour and contemptuous disregard for the personal integrity of the complainant and engages the predominant sentencing principles of denunciation and deterrence” (para. 19).
[56] While the Court of Appeal imposed a sentence of 18 months, the Court stated that the sentence imposed should not be taken as a sentence within the appropriate range. Rather, the Court felt constrained by the Crown’s trial position (para. 23).
[57] R. v. R. (J.), 2008 ONCA 200, involved two appellants, J.R. and J.D. who were convicted of sexual assault and at trial sentenced to two years. They appealed both conviction and sentence.
[58] The facts were similar to the matter before me, and the offences were said to have occurred at a small party in a hotel room that at least 10 young men and women attended. During the evening the complainant consumed alcohol and drugs. The complainant had no memory of engaging in sexual intercourse or any other events after 3:30 am. The complainant awoke around 10:00 am alone, lying naked on the bathroom floor. No one else was left in the room.
[59] The appellant J.D. sought a conditional sentence arguing that he and the co-appellant are very different and should have received different sentences. For example, J.R., contrary to J.D., had a criminal record and a poor PSR.
[60] The Court of Appeal agreed that in most circumstances J.D. should have received a lower sentence but in the circumstances of the case where each man took advantage of the complainant when she was incapacitated, leaving her in the state of passed out naked on the bathroom floor, the two year sentence is at the low end of the range (para. 25).
[61] It was said that both accused engaged in reprehensible conduct and, as a result, there is no basis to impose a lower sentence than two years (para. 25).
[62] R. v. Smith, 2015 ONSC 4304, was a summary conviction appeal in which the offender was convicted for sexually assaulting a young female while she was sleeping in his basement apartment. It was said that the range of sentence for a sexual assault on a sleeping or unconscious victim is somewhere between an upper reformatory term of imprisonment and lower penitentiary term of imprisonment. (i.e. between 18 months and three years).
[63] In R. v. Thurairajah, 2008 ONCA 91, on a conviction for sexual assault, a sentence of two years less a day, to be served in the community was appealed. It was the decision of the Court of Appeal that the non-custodial sanction imposed at trial failed to reflect the seriousness of this crime and failed to adequately express society’s denunciation of the respondent’s brutal and callous conduct (para. 3). It is to be noted that the facts involved the consumption of alcohol. The victim was 14 years old, the offender being 19 years of age, and that the victim was left in a school yard partially clad and dumped in a snowbank.
[64] The sexual assault was characterized as an ill-conceived drinking event that got out of hand. It was recognized that considerable force was used in the assault and that the respondent did not wear a condom (para. 17).
[65] Aggravating factors included the age of the victim, the attack took place in the presence of three other persons from the victim’s peer group, the victim was in a helpless unconscious state, the intercourse was painful and unprotected and the callous treatment of the victim after the assault (para. 18).
[66] Mitigating factors included the offender’s age, lack of criminal record, the support of a strong, close-knit family and a positive PSR. The offender was said to be remorseful (para. 19).
[67] The assault was described as “a very serious assault” and from para. 44 I quote,
“I am satisfied that the objectives of denunciation and to a lesser extent general deterrence required the incarceration of the respondent despite his many positive features. Any other disposition would not only fail to reflect those objectives, but would, in my view, be disproportionate both to the gravity of the offence and the respondent’s degree of responsibility.”
[68] While the Court of Appeal imposed a sentence of nine months on the facts of the case, it was said that the appropriate range of sentence was between two years less a day and four years incarceration (para. 48).
[69] Counsel for U.K. also provided me with a selection of authorities.
[70] In R. v. Crespo, 2016 ONCA 454 the appellant had been convicted of sexual assault and sentenced to 15 months in jail and 19 months probation.
[71] The appellant was part of a group that drank heavily one night. The complainant, feeling unwell, went and laid down on the appellant’s bed. The victim was awakened with the weight of the appellant on top of her and, while still drunk and disoriented, pushed the appellant off of her.
[72] It was determined that the appellant had raped the complainant.
[73] The Court of Appeal concluded that a custodial sentence of less than six months or a conditional sentence would be manifestly unfit on the facts found by the trial judge (para. 29).
[74] R. v. Lamure, 2019 ONSC 2144 is a decision of J. Parfett J. The offender had been convicted by a jury of sexual assault. The facts involved the 20 year old first offender getting angry at the victim and pushing her down on the bed and having sexual intercourse with her, despite the victim telling him, “no” and trying to push him off of her. The offender was said to have a positive upbringing a good work ethic. The sentencing judge opined that the range of sentence was 2-3 years and imposed a sentence of two years.
[75] R. v. Walsh, 2019 ONSC 1286, is a decision of Byrne J. in which a jury convicted the offender of sexual assault. He forced the victim to fellate him and then vaginally penetrated her, notwithstanding the victim repeatedly saying, no.
[76] Aggravating factors included the serious and violent nature of the offence itself and the two acts of sexual assault, which included vaginal penetration. The offender’s treatment of the victim during and after the assault was said to be demeaning and callous and amounted to a serious aggravating factor (para. 43).
[77] In regard to mitigating factors, the judge referenced the offender’s youth and lack of a criminal record and recognized an ample opportunity on the part of the offender to rehabilitate himself (para. 47).
[78] The judge concluded by finding that a two year sentence was fit and justified (para. 50).
Mitigating and Aggravating Factors
[79] In regard to both offenders, I accept as mitigating factors their age and lack of a criminal record. Further, both seem to be gainfully employed. I also will consider as a mitigating factor that R.P., when the level of the victim’s intoxication became apparent, was the one to call 911. U.K.’s PSR can be said to be positive while the PSR for R.P. notes a difficult childhood and some troubling behaviour in the past. However, both reports suggest that both offenders will contribute positively to society after their sentence is served, a factor which I will consider as mitigating.
[80] I am also going to consider the delay in sentencing, as a result of the pandemic.
[81] Aggravating factors include the victim’s age, the fact that the offenders took advantage of her drunken state, the assaults involved multiple acts and the life-long impact the assaults will have on the victim. Further, the assaults took place, at least initially, in the presence of members of the victim’s peer group.
Principles of Sentencing
[82] The case law makes it clear that when considering the purpose of sentencing and principles of sentencing, as set out in s. 718 of the Criminal Code of Canada, the paramount principles in such cases as the matter before me, is denunciation and deterrence.
[83] On the facts of this matter, the principle of rehabilitation is also important. Both offenders were young men when the crimes were committed. Both are now working. While R.P. may have had problems in the past, as noted above, both offenders will still be young men when they are released from custody and will have the opportunity to move forward and to make positive contributions to society.
[84] The offenders seem to have a sense of responsibility for what occurred and recognize the harm done, although they both said they believed the victim consented to the sexual acts.
[85] Further to s. 718.1, a sentence to be imposed must be proportionate to the gravity of the offence. I have also had regard to s. 718.2 of the Code.
Reasons and Ruling
[86] I am of the opinion that, while it can be said that R.P. committed multiple acts of sexual assault, both offenders ought to be treated the same. Both offenders were at the party and were together when the offender R.P. committed his assaults which behaviour can be said to be encouraged by U.K. As noted in R. v. R. (J.) . , above, over a relatively short period of time, each offender took advantage of the victim when she was incapacitated. Both left the victim on the bed, semi-conscious, if conscious at all, and partially dressed. Further, whether the facts involved fellatio or vaginal penetration, they represent serious and violent sexual assaults.
[87] One cannot help but be moved by the Victim Impact Statement. The victim’s life was forever changed by what occurred to her. Whatever sentences are imposed, will not compare with the lifetime impact the assaults will have on the victim and I doubt any sentence I will impose will satisfy the victim’s need for justice. The sexual acts reflect a contempt of the victim’s personal integrity and represent demeaning behaviour.
[88] On the authorities presented to me and as set out above, I find that the range of sentence is two to four years incarceration.
[89] On the facts before me, each of the offenders is sentenced to two years less a day incarceration, followed by two years probation.
[90] I recognize the sentence is at the low end of the range but I believe the sentence is appropriate and fit taking into account all of the circumstances.
[91] Further, after the sexual activity ceased, the victim’s level of intoxication was realized and a 911 call was placed. These facts are significantly different than the facts in the R. (J.) case, the facts of which also involved a party of young people in a hotel room, where the two offenders left the victim, alone, unconscious and naked on the bathroom floor, an act said to be, reprehensible.
[92] Such a sentence meets the need to recognize the principals of denunciation and deterrence. However, on the strength of defence counsel’s submissions and the PSR’s, the sentencing principle of rehabilitation, as referenced above, is of significant importance.
[93] The terms of probation for both offenders are as follows:
- Keep the peace and be of good behaviour;
- Report to a probation officers as required;
- Abstain from the consumption of alcohol and drugs not prescribed by a medical professional;
- To have no contact, directly or indirectly with the victim, L.F. or her family;
- Participate in counselling as directed by a probation officer; and
- Sign whatever documents are required to allow a probation officer to speak to the counsellor to monitor the progress of the counselling.
Ancillary Orders
[94] Further to s. 109 of the Code, the offenders are prohibited from possessing restricted and prohibited weapons for life and all other weapons for 10 years.
[95] The offenders are to remain on the sexual offenders’ list for a period of 20 years.
[96] The offenders are ordered to provide a DNA sample, further to s. 487.053 of the Code.
[97] Further, the offenders are prohibited from contacting the victim or her family, directly or indirectly, in any manner.
Recommendation
[98] It is the recommendation of this court that, given the circumstances of this case, both offenders be allowed to serve their sentences at the Ontario Correctional Institute (OCI) in Brampton.
Bielby J.
Released: February 24, 2021