Court File and Parties

Court File No.: CR-1095/19 Date: 2022-01-13 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – William Rannelli, Accused

Counsel: K. Ludgate, for the Crown R.J. Beckett, for the Accused

Heard: February 5, 2021

Decision on Sentencing

Hennessy, J. (orally):

[1] The facts in this case are set out in the Judgment dated February 5, 2021.

[2] Mr. Rannelli was convicted of one count of sexual assault, which occurred at his home, during a first date between the two adults. There was one incident of unprotected sexual intercourse between the offender and the complainant. The complainant was impaired in some way, did not consent to the sexual activity and was not able to respond as the sexual assault was taking place.

[3] Mr. Rannelli is currently 39 years of age.

[4] Materials filed by the defence included a Pre-Sentence Report (“PSR”) and ten letters of support from close and extended family and friends. The Crown did not file a Victim Impact Statement but referred to statements in the PSR describing the traumatic impact of the sexual assault on the complainant.

Sentencing Ranges

[5] Counsel note that there are two lines of jurisprudence on the appropriate range of custodial sentence for sexual assault involving full intercourse. The jurisprudence shows the low end of these ranges as 18 months and the high end of the ranges is 5 years. In their submissions, defense counsel proposed 18 months and Crown counsel proposed 30-36 months. The difference affects whether the offender would spend his time in a provincial institution or a federal penitentiary.

Defense position

[6] The defense submits the custodial range of sentence for this offense is 18 months to 3 years. He argues that a sentence of 18 months in custody plus a period of probation would satisfy the goals of sentencing and is a proper and fit sentence given the many mitigating factors in the circumstances. He stated that the offender would follow any recommendations from a probation officer with respect to treatment, monitoring or release of information.

[7] Defense counsel submitted that the following factors should be considered:

• That a period of incarceration would have an enormous negative effect not only on the offender but on his young daughters who had already lost their mother at a very tender age.
• That Mr. Rannelli had completed over three and a half years on bail without any problems or breaches.
• That the letters filed with the court demonstrate that the offender has well-earned support from nuclear and blended family members, and friends.
• That the offense could be characterized as a single incident of bad judgment.
• That Mr. Rannelli appears without a related or recent criminal record.

[8] In support of his position for a sentence at the low end of the range, defense counsel submits that there was no evidence of any threats or extra violence, premeditation, or predatory behavior. He underscores that the PSR identifies the mental health issues that the offender has been managing as he has confronted the risk that his young daughters would lose another parent if he was incarcerated. Both the treating psychiatrist and family members note that the offender is now in a stable and positive relationship with a woman who has brought her own two children into the blended family arrangement.

[9] Mr. Rannelli spoke directly to the court on his own behalf. He recognized and acknowledged that the incident had been traumatizing to the complainant and that he was remorseful for how it impacted her. Although he felt “everything was consensual”, he noted that he might have got that wrong and feels very badly for what the complainant has had to experience.

Position of the Crown

[10] The Crown submitted that the custodial range of sentence for sexual assaults in non-domestic circumstances where the Crown proceeds by indictment was 2-5 years. He argued that a sentence of 30-36 months, falling in the mid-range, was the appropriate sentence for this offender in these circumstances.

[11] In support of this position, the Crown submitted that the following facts constitute aggravating factors of this offense:

• That the offender engaged in unprotected vaginal intercourse, a highly invasive and risky act.
• That the complainant was asleep and impaired in some way and thus in a vulnerable state.
• That the sexual assault took place in the offender’s home, an environment in which he was in complete control.
• That the sexual assault had a profound traumatizing impact on the complainant: She quit her job afterward, she lost time with her children, she found the hospital experience humiliating, she experienced PTSD and found the entire thing the worst experience of her life.

[12] The Crown acknowledged that the offender’s very brief criminal record is unrelated and dated and therefore this offender appears before the court as a first offender. The Crown, in a manner that brings respect to his office, also acknowledges that the incident could be seen as one moment in an otherwise unblemished history of this offender.

[13] The Crown acknowledges that there are two lines of cases in Ontario which discuss a range of penalty for sexual assaults. The decision of Campbell J. in R. v. Christopher Smith, 2015 ONSC 4304 described the range as 18 months to three years. On the other hand, in R. v. Bradley, the OCA accepted that the range for sexual assault with sexual intercourse was 3-5 years. The decision in Bradley has been followed by Spies J. in R. v. McCaw 2019 ONSC 3906 at paras. 36-40 and R. v. Niyongabo 2020 ONSC 4752 at para. 47 and Molloy J. in R. v. M.M 2017 ONSC 1829 at paras. 38, 41, 44.

[14] The Crown argued that the range in R. v. Bradley is the proper line of jurisprudence to follow as it is imposes a sentence that is necessary to achieve the primary goals of denunciation and deterrence in circumstances where the offender commits a highly invasive offense against a woman in a vulnerable condition, and that rehabilitation goals are not at the forefront of sexual assault sentencing principles.

[15] In proposing this sentence, the Crown submits he has already taken into account this offender’s support from family and friends, his employability, his conduct during his time on bail, his lack of a criminal record and the pandemic and COVID related difficulties the offender will have in an institution.

Discussion

[16] In a short endorsement, the court in Bradley accepted the Crown’s submissions that the appropriate range of sentence for sexual assault in the circumstances was 3 to 5 years. The endorsement does not include any analysis. I would not characterize this single paragraph of Bradley as “establishing the range” for the offense of sexual assault. The facts in Bradley include that the offender was an experienced police officer and the complainant was a young indigenous woman who regarded the officer as her mentor and friend. The court found that the offender raped the complainant vaginally and anally and demanded oral sex from her and made degrading comments to her. This case has serious aggravating factors that do not exist in the present case.

[17] In R. v. M.M. Molloy J. held that the range for serious sexual assault is 3-5 years. However, she also acknowledged that there was considerable merit to the position that sentences in the 2-3-year range are reserved for cases where the offender has no criminal record (para. 41). In M.M., the offender had a lengthy criminal record of violence against women (paras. 45, 55) and displayed deplorable conduct toward complainant after the incident.

[18] The facts in Bradley, M.M., and Niyongabo include more aggravating features that the facts in this case.

[19] In R. v. Ghadghoni, 2020 ONCA 24, the Court of Appeal heard an appeal of sentence in a case where the facts are very similar to the ones in this case. The complainant was intoxicated. The offender took the complainant home where they both fell asleep. The complainant awoke to find the offender having sex with her. The Court of Appeal found that the trial judge erred by finding an aggravating factor that the appellant methodically planned to commit the offence and as a result reduced the sentence from 30 months to two years less a day. There was no reference made to the Bradley Endorsement.

[20] The court in Ghadghoni referenced the decision in R. v. Christopher Smith, 2015 ONSC 4304 at paras. 32-33.

“Generally speaking, in cases where the accused has been prosecuted by indictment, the usual range of sentence for this type of invasive sexual assault on a sleeping or unconscious victim is somewhere between an upper reformatory term of imprisonment and a lower penitentiary term of imprisonment (i.e. between 18 months and three years). … (para.32)”

[21] The Ghadghoni decision is based on the same salient features that are present in this case. I accept the aggravating and mitigating factors as submitted by counsel and which are set out above.

[22] The primary goals of sentencing in sexual assaults are denunciation and deterrence. The gravity of the offence requires the imposition of a proportional sentence that effectively denounces the criminal conduct in a way that is proportionate to the offender’s level of moral blameworthiness for this highly invasive offense against a woman in a vulnerable condition. In addition, I must also consider that a ‘first sentence of imprisonment should be as short as possible and tailored to the individual circumstance of the accused rather than solely for the purpose of general deterrence”. (R. v. Priest (1996) 1996 CanLII 1381 (ON CA), 110 C.C.C. (3d) 289, quoted with approval by Spies J. in R. v. McCaw para. 51.)

[23] All sentencing decisions must take into account the unique circumstances of the offence and the offender. The sentence required in this case must send a strong message of denunciation to deter others and to express society’s abhorrence of Mr. Rannelli’s selfish and degrading conduct of taking advantage of a woman who was incapable of resisting his sexual assault. The court is very aware that this traumatizing experience has left a profound and continuing impact on the complainant.

[24] At the same time, I accept the relatively positive PSR that his conduct may be seen as out of character and that he has a strong and pro-social support network. There is no suggestion in the PSR that Mr. Rannelli is likely to re-offend.

[25] Considering these goals and the factors present in this case, I conclude that a fit sentence for Mr. Rannelli is two years less a day plus a probationary term for a period of one year. In addition to the statutory terms of probation, Mr. Rannelli shall:

• Seek and maintain full time employment.
• Fully participate in any and all rehabilitative programs as may be directed by his probation officer and shall execute any releases that are necessary in order to permit his probation officer to monitor his progress in these programs.
• Abstain absolutely from the possession and consumption of any drugs except as purchased in a legal dispensary or in accordance with a medical prescription.
• Not communicate with the complainant or be within 100 metres of the complainant, her residence, school, or place of employment or anywhere you know her to be.

Ancillary Orders

[26] The following ancillary orders are made on the request of the Crown:

• s. 109 weapons prohibition for 10 years.
• DNA collection order.
• SOIRA for 20 years.
• s. 743.21 Non-Communication with the complainant while in custody.

The Honourable Madam Justice Patricia C. Hennessy

Released (orally): January 13, 2022