COURT FILE NO.: CR-21-70000-152
DATE: 20211116
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROBIN ALLAN YOUNGS
David Spence, for the Crown
Judyth Rekai, for the Offender
HEARD: September 14, 2021
REASONS FOR SENTENCE
M. Dambrot J.
[1] On July 7, 2021, after a trial without a jury, I found Robin Youngs guilty of sexually assaulting KS in November 2016 contrary to Section 271 of the Criminal Code, R.S.C. 1985, c. C-46. I did not sentence Mr. Youngs until September 14, 2021, at his request, to permit him to obtain information about his asserted Indigenous ancestry. Unfortunately, despite the Herculean efforts of Aboriginal Legal Services (“ALS”), no such information could be found.
[2] On September 14, 2021, after hearing the submissions of counsel, I immediately imposed a sentence of three years imprisonment less 524 days to account for pre-sentence custody and an additional 100 days of Duncan credit. I was in the midst of a first degree murder trial with a jury when I imposed sentence and said that I would release brief reasons for sentence at a later date, after the completion of the trial. These are those reasons.
The Offence
[3] In 2016, KS lived alone in a bachelor apartment. She was addicted to crack cocaine and was consuming as much as she could get. She was also taking medication: a light anti-depressant with a sleep aid in it, and methadone. In the fall of 2016, KS met the offender at a friend’s apartment. Fairly soon after they met, the offender began living with KS in her apartment. KS was getting her crack from different people at the time. The offender was also a crack user, and when he moved into her apartment, he began supplying KS with crack whenever she wanted it. The offender and KS developed a sexual relationship. KS had been told by her friend that the offender might have HIV, but he always wore a condom when they had consensual sex. The relationship didn’t last long.
[4] KS testified that one night in November 2016, she was in her apartment with the offender. They smoked some crack, and after a time, she fell asleep. She was wearing panties and a top. She woke up several hours later when it was getting light outside. The effects of crack only last for about five minutes and had worn off by the time she woke up, as had the effects of her medication. She was lying on her side when she woke up and realized that the offender was penetrating her vagina with his penis. Her panties were around just one ankle. She had not consented to this. She turned onto her back and told the offender to stop, but he did not stop. She was confused at first, and then scared because he wasn’t stopping and didn’t have a condom on, and as I mentioned, she had been told that he might have HIV. Despite telling him to stop, the offender continued having non-consensual intercourse with KS for about five more minutes, until he finished. She did not recall if he ejaculated inside her or on her stomach.
[5] KS and the offender both cleaned themselves up, and KS got dressed. She was upset and asked the offender to leave. He refused. She called her best friend and told him what happened, and he came to her apartment that day or perhaps the next day to help get the offender to leave. That was the end of their relationship.
[6] The offender testified and gave an extremely brief account of his interactions with KS in examination in chief. He testified that that he had a relationship with her “a while back”. He said that while he had sex with her, it was never non-consensual. He denied that KS ever asked him to leave her apartment.
[7] In cross-examination, the offender was asked questions that required him to elaborate on his evidence, and in particular his relationship with KS and her allegation that he sexually assaulted her. I found his version of events, which changed dramatically in the course of cross-examination, to be both unreliable and unbelievable. His evidence did not leave me with a reasonable doubt about his guilt, and the evidence of the complainant satisfied me of the offender’s guilt beyond a reasonable doubt.
[8] The offence has had a significant emotional impact on the complainant, who was left feeling terrified and unsafe in her own home, feared having contracted HIV, and has had difficulty trusting and developing relationship with others, particularly men. She has received professional help for these issues.
The Offender
[9] The offender is 57 years old. He says that he believes that his mother, who passed away in 1994, was Indigenous, and may have been Cree or Ojibwe, based on a photograph he had seen of her with “long dark hair and chubby cheeks.” ALS made searches and inquiries under each of several names that the offender provided for his mother and of several individuals suggested by the offender but found no documentary or other information that supported his claim. As a result, ALS was unable to prepare a Gladue Report for Mr. Youngs. They were unsure of the specific nature of his Indigenous ancestry, and in any event could not address how being an Indigenous person has affected his life circumstances, either directly or by systemic and historical factors.
[10] Regardless of his ancestry, the offender began “following Native ways” twenty-five years ago, and has been a singer and drum keeper, a person responsible for the physical and spiritual care of the drum, at the Native Canadian Centre of Toronto’s weekly social events for the past ten years.
[11] The offender has several medical conditions, including diabetes and a cracked hip. He has had a number of HIV tests, but they have all been negative. He says that he doesn’t have a drug issue, but clearly, he does, or at least did, and was given methadone for a few years as treatment.
[12] The offender has a criminal record that dates back to 1982. Among his convictions are eight for theft and other crimes of dishonesty, one for robbery, four for weapons or firearms offences, six for assaults, two of which were domestic assaults, three for uttering threats, and seven for breaches of recognizances or probation orders. He was most recently convicted of assault in June 2021.
[13] The offender was arrested in relation to this matter in early January 2019 and released on bail. He was arrested on an unrelated matter on January 18, 2021 and has remained in custody since then. He has spent a total of 349 days in pre-sentence custody. All other charges against him have been resolved, and he has not been sentenced to imprisonment on any of them. As a result, all his pre-sentence custody can be attributed to this offence. He was the victim of a brutal sexual assault while in custody and endured lockdowns on 158 days, 120 of which were for more than a few hours.
The Position of the Parties
[14] The Crown emphasized that sexual assault is a serious offence, requiring emphasis to be placed on denunciation and deterrence. The seriousness of the offence is not mitigated by the fact that the perpetrator was known to the complainant, who invited him into her home and her bed Indeed, s. 718.201 provides that a court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims. Nor is the fact that the complainant was not otherwise physically injured and did not subject the complainant to additional gratuitous violence a mitigating factor. Sexual abuse is inherently violent, and can have painful long-lasting effects, as was the case here. Moreover, the offence is aggravated by the offender’s criminal record, which includes crimes of violence. Crown counsel urged me to impose a sentence of 4 years less 524 days credit for pre-sentence custody and three to four months of Duncan credit.
[15] The defence did not dispute the principles of sentence or the aggravating factors advanced by the Crown, but asked me to take into account the fact that the offender has suffered additionally as a result of the anxiety of being in custody during COVID, that he was the victim of a brutal sexual assault while in custody, that the offender did not subject the complainant to a detailed examination of the particulars of the sexual assault, that there were members of the community who continue to support the offender and that he has made some efforts to better himself while in custody. Counsel for the offender suggested that I impose a sentence of 2 to 2 ½ years less credit for pre-sentence custody and Duncan credit.
Analysis
[16] Given the general agreement of counsel about the applicable principles of sentence, I will not rehash what has already been said. The sentencing recommendation made by Crown counsel in a case such as this one is well-supported by the case law. However, I imposed a somewhat lower sentence having regard to the particular circumstances of the offender outlined by his counsel, and in particular the serious assault he suffered while in custody awaiting trial.
Disposition
[17] I imposed a sentence of 3 years imprisonment on the offender, less 524 days to reflect his 349 days of pre-sentence custody and 100 days for Duncan credit, together with the ancillary orders sought by the Crown.
M. Dambrot J.
Released: November 16, 2021
COURT FILE NO.: CR-21-70000-152
DATE: 20211116
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
ROBIN ALLAN YOUNGS
REASONS FOR SENTENCE
DAMBROT J.
RELEASED: November 16, 2021