COURT FILE NO.: CR-19-112 DATE: 2023 04 05
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – D.M.
Ms. K. Frew, for the Crown Mr. P. Craniotis, for D.M.
HEARD: April 5, 2023
REASONS FOR DECISION ON SENTENCING Conlan j.
I. The Background
[1] The offender, D.M., was tried before a jury on charges of sexual assault and unlawful confinement. On January 16, 2023, the jury returned a verdict of guilty on the sexual assault offence.
[2] A presentence report (“PSR”) was prepared, and the sentencing took place today, April 5, 2023.
[3] The facts are as follows. In November 2018, at Oakville, on a late evening when it was dark outside, the victim and the offender, known to each other previously, and another male, were inside a motor vehicle and parked at a lot. The offender and some of his male friends, two of whom were in a second vehicle, had been hanging out with the victim.
[4] In the backseat of the car, the offender and the victim sitting beside each other, D.M. touched and pulled at the victim’s breast. He then forced her to give him oral sex by pulling her neck and head towards his crotch area. His bare penis was inside the victim’s mouth. All of that was done without the victim’s consent and in the presence of the other male who was also inside the car at the time.
[5] Later, when the victim was picked up by her mother at a mall parking lot, the victim was visibly upset and shaken.
[6] The sole issue at trial was that of consent. The accused testified before the jury and admitted the alleged sexual activity with the victim, but he stated that it was consensual. Evidently, the jury found otherwise, beyond a reasonable doubt.
II. Victim Input
[7] There are two victim impact statements that have been filed – one completed by the victim herself and one by her mother.
[8] The sexual assault committed by D.M. has had a profound effect on the victim. It worsened her depression, even resulting in self-cutting. It caused her relationship with her parents to deteriorate. She lost her friends. She became fearful of men. She experienced panic attacks. Her grades at school suffered. She had to undergo professional therapy.
[9] The sexual assault has also had a lasting impact on the victim’s mother, that impact encapsulated by this phrase written by the mother, “[i]t was torture to see my once happy family fall into despair”. The mother became fearful for her own safety and that of her entire family.
III. The Circumstances of the Offender
[10] The following is taken from the PSR.
[11] The offender is currently 22 years of age, a Canadian citizen, single, and without any dependants. He has no prior criminal record.
[12] The offender’s parents divorced when he was approximately two years old. D.M. reported to the author of the PSR that his childhood was a good one, free from abuse or violence; that his father was present in his life between the ages of four and sixteen years; and that he was raised primarily by his mother, with whom he shares a close and supportive relationship.
[13] The offender’s mother spoke emotionally about her son, describing him as a good young man and a good brother to his siblings. She has found the offender to be helpful around the household. Not surprisingly, as the author of the PSR writes, the mother “is shocked about the outcome of the trial and maintains [her son] is innocent”. The offender’s brother made similar comments to the author of the PSR.
[14] D.M. has obtained his Ontario Secondary School Diploma. He attended one year of a post-secondary business administration program but did not complete it. He has had employment in various fields and is particularly interested in vehicle sales. His future goals are to open a jewellery store or complete the licensing process in order to sell vehicles. The author of the PSR described the offender as appearing to be motivated to gain meaningful employment. Besides employment, D.M. has volunteered his time with the Food for Life Program and with a day camp.
[15] No substance abuse concerns were reported to the author of the PSR.
[16] D.M. was polite and cooperative with the author of the PSR, and the officer-in-charge of the investigation reported that the offender was also polite and cooperative with the police.
[17] In terms of the offence that he has been found guilty of, as he is entitled to do, the offender maintains his innocence. He is adamant that the sexual activity that he had with the victim was consensual. According to the author of the PSR, “[t]he subject’s minimization of this offence before the Court suggests he may lack insight of a consensual relationship and his offending behaviour”. The author further states, “[i]t appears the subject could benefit from more in-depth counselling surrounding sexual offending, appropriate boundaries, and consensual relationships”.
[18] The PSR concludes with the following remarks, “[o]verall, the subject appears to be motivated to live a pro-social lifestyle and has the support for successful rehabilitation. In light of the information contained in this report, the subject appears to be suitable for community supervision”.
[19] In addition to the PSR, the defence has filed some helpful information about the offender:
i. a recent communication from Recovery Science to defence counsel which confirms that the offender’s home address is suitable for GPS monitoring;
ii. a recent letter from AppleOne which confirms that the offender is a temporary associate with that agency and is currently assigned to a posting for and currently working as a production worker, earning $18.00 per hour;
iii. a recent letter from the offender’s family’s co-operative housing organization which confirms that D.M. volunteered with the Food for Life Program in 2014, 2015, 2018, and 2020;
iv. a letter which confirms that the offender volunteered for Camp Dakota during the summers of 2014 through to 2017; and
v. another recent letter from the offender’s family’s co-operative housing organization which confirms that D.M. has been a resident of the complex in Oakville, Ontario since December 2013 and is “in good standing with the co-op and the community”.
IV. The Legal Parameters and the Positions of the Crown and the Defence
[20] Under section 271(a) of the Criminal Code, the maximum punishment that D.M. faces is ten years’ imprisonment. There is no minimum penalty.
[21] The Crown recommends the following sentence: four (4) years’ imprisonment; a firearms and weapons prohibition order for ten (10) years; a DNA order; a Sex Offender Registration Information Act (“SOIRA”) order for twenty (20) years; and a section 743.21 non-communication order with the victim while the offender is serving the custodial sentence.
[22] The defence does not oppose any of the ancillary orders sought by the Crown. The defence suggests a conditional sentence order of eighteen (18) months to two (2) years less a day in duration, to be followed by a period of probation for two (2) years.
V. The Sentence of the Court
[23] In light of the rest of the sentence that this Court will be imposing upon the offender, the victim fine surcharge is hereby waived.
[24] The DNA order requested by the Crown, unopposed, is granted. Sexual assault is a “primary designated offence” under section 487.04, clause (a) of the definition, and as such the order is mandatory under section 487.051(1) of the Criminal Code.
[25] The SOIRA order requested by the Crown is granted. The duration of the order imposed herein is for twenty (20) years, pursuant to section 490.013(2)(b) of the Criminal Code.
[26] The section 109 order requested by the Crown is granted. The order is made under section 109(1)(a), and its duration is for ten (10) years in terms of the discretionary aspect of the order under section 109(2)(a)(ii) of the Criminal Code.
[27] In terms of the request by the defence to impose a conditional sentence of imprisonment, I make the following observations.
[28] D.M. is a youthful offender and without any prior criminal history. He was barely eighteen years old at the time of the offence. As such, this Court must explore all other dispositions before imposing a custodial sentence. Given the primary considerations of individual deterrence and rehabilitation that apply generally to youthful first offenders, this Court should impose a custodial sentence on D.M. only where the circumstances are such or the offence is of such gravity that no other sentence is appropriate. R. v. Priest.
[29] In our case, both sides agree that a custodial sentence is necessary for this offender, but the principle of restraint and the directions provided by Justice Rosenberg in Priest, supra remain very relevant to this Court’s consideration of whether that custodial sentence ought to be permitted to be served in the community by way of a conditional sentence order.
[30] Recently, in R. v. A.J.K., 2022 ONCA 487, the Court of Appeal for Ontario stated that “[a] sexual assault involving forced penetration is a sexual assault involving forced penetration”; it is a “serious act of violence” that reflects the “wrongful exploitation of the victim” and which, “[a]bsent some highly mitigating factor…will typically attract a sentence of at least three years in the penitentiary”, though there will be circumstances where a departure from the range is entirely appropriate (paragraphs 73, 74, and 77).
[31] Although it is correct that denunciation and general deterrence will play little, if any, role in sentencing youthful first offenders, serious crimes of violence, particularly sexual assaults, provide an exception to that general rule. R. v. Thurairajah, 2008 ONCA 91, at paragraph 41.
[32] In summary, this sentencing decision must take into consideration several important sentencing principles: denunciation and general deterrence, on the one hand, and rehabilitation, individual deterrence, and restraint, on the other hand.
[33] The aggravating factors that must be considered by this Court include the following: the devastating impact that the sexual assault has had on the victim and her family, to the point of the victim engaging in self-harm while being terribly depressed; the fact that D.M. sexually assaulted the victim in more than one way – he touched and pulled at her breast without her consent, and then he also forced her to perform fellatio on him; the fact that D.M. did these unwanted but intimate things to the victim while there was another male present, violating her personal dignity even further; the fact that D.M. victimized his own friend; the fact that physical violence was used in that the offender grabbed the victim’s neck and head and pulled her towards his penis, overriding her clear protestations; and the fact that the victim was only 16 years old at the time.
[34] The reader will note that this Court has not included in that already lengthy list of serious aggravating factors some of the things advanced by the Crown today in terms of findings of fact that this Court is urged to make: that this evening was planned by the offender and his male friends; that the offender knew that the males in the other vehicle had already done something to the victim that she did not want to have happen before the offender himself decided to sexually assault her; and that D.M. committed the forced fellatio sexual assault while his male friend was also sexually assaulting the victim from behind.
[35] This Court, with respect, declines to make those additional findings of fact. I am not satisfied that they, all aggravating on sentence, and all strictly unnecessary to the jury’s verdict, have been proven beyond a reasonable doubt – section 724(3)(e) of the Criminal Code.
[36] There are mitigating factors here – the youthfulness of the offender, and his lack of any prior criminal record, and the fact that he appears to have been a loving and supportive son and brother. He also has a good employment history and has much ambition for the future, as evidenced through his well-spoken words to the Court earlier today.
[37] In my view, considering all of the circumstances of the offence and those of the offender, a conditional sentence of imprisonment would not be a fit disposition, even if this Court decided to impose a sentence of less than two (2) years in custody.
[38] I say that not because I think that D.M. would endanger the safety of the community but rather because, under section 742.1(a) of the Criminal Code, a conditional sentence order would not be consistent with the purpose and principles of sentencing. It would not adequately reflect the aggravating circumstances of this violent sexual assault committed against the offender’s friend. It would not sufficiently account for the denunciatory and general deterrent aspects of this sentence. And it would not come even close to respecting the current state of the law as set out in A.J.K., supra and the leading authorities cited therein.
[39] I am satisfied, however, that there is good reason to impose upon D.M. a custodial sentence that is below the three (3) years stipulated in A.J.K., supra. I think that the offender’s tender age at the time of this offence, which sexual assault occurred less than two months after he entered adulthood, and his lack of any prior criminal history of any kind, together amount to highly mitigating circumstances that justify some departure from what would otherwise be the starting point for determining the length of incarceration required for this offender.
[40] The principle of restraint, in my view, calls for a sentence of imprisonment for D.M. that is at the very low end of a penitentiary term.
[41] This Court sentences D.M. to two (2) years’ imprisonment.
[42] The section 743.21 order requested by the Crown is granted but limited to the victim herself.
[43] I know that this sentence will be very difficult for the offender and his supportive family to accept. My hope is that they will someday understand that this sentence pays full respect to the importance of rehabilitation and individual deterrence for D.M., given his youthful first-offender status, but that anything less than a penitentiary sentence would simply not be fit.
[44] I hope that D.M. has a successful life after his release from custody. I think that he has the skills required to be a productive member of our society, and he has already proven to be a treasured part of his family.
[45] The offender requested that this Court conduct the sentencing hearing today but postpone the imposition of the sentence for a few weeks. That request was denied. As much as this Court has compassion for the offender and his family, the real victim here is the young lady. She has endured the criminal justice process for a very long time. She has been crushed by it, as reflected in her victim impact statement. She deserves to try to move on as much as possible, even if there will be another court attendance down the road for a different accused person. Her need for some closure must outweigh the offender’s desire to “get his affairs together” and to wait to be sentenced until after his sibling delivers her expected child, which were the only two reasons advanced for the postponement requested.
[46] In the interests of justice, the sentence was imposed today.
Conlan J.
Released: April 5, 2023