Court File and Parties
COURT FILE NO.: CRIM J(P) 496/22 DATE: 2024 07 15
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING – and – G.W.
Counsel: T. McCann and D. Noonan, for the Crown R. Rotenberg and K. Taghabi, for the Defendant
HEARD: June 14, 2024
M.T. Doi J.
Reasons for Sentence
Publication of any information tending to reveal the identity of the complainant herein is prohibited under s. 486.4 of the Criminal Code.
Overview
[1] After an eight-day trial, a jury found the Defendant guilty of having sexually assaulted K.M., his former spouse, on October 28, 2021, contrary to s. 271 of the Criminal Code, RSC 1985, c. C-46. The jury found him not guilty of a second charge of sexual assault involving K.M. on February 25, 2022.
[2] I must now sentence the Defendant for his conviction. The following are my reasons for sentence. [1]
Circumstances of the Offence
[3] As this was a jury trial, I shall begin by deciding the material facts required for sentencing: R. v. Ferguson, 2008 SCC 6 at paras 15-17. I must accept as proven, all facts, express or implied, that are essential to the jury’s verdict: ss. 724(2)(a) of the Code. In addition, I may find any other relevant fact disclosed by evidence at the trial to be proven: ss. 724(2)(b) of the Code. Where the factual implications of the jury’s verdict are ambiguous, I shall not attempt to follow the logical process of the jury but come to my own independent determination of the relevant facts: Ferguson at para 15. Insofar as I may find aggravating facts that are not expressed or implicit in the jury’s reasoning, I must be satisfied that they have been proven beyond a reasonable doubt: ss. 724(3)(e) of the Code. I may find mitigating facts if satisfied of them on a balance of probabilities: ss. 724(3)(d).
[4] The Defendant and K.M. are former spouses who had two children together. At the time of the offence, they were experiencing strain in their marital relationship.
[5] The key issue for trial was consent that turned on credibility. To find the Defendant guilty of sexual assault, the jury had to reject his evidence where it differed from K.M.’s evidence, accept K.M.’s evidence, and find beyond reasonable doubt that the Crown had proven the essential elements of the offence. Ultimately, the jury believed K.M.’s evidence.
[6] During the evening of October 28, 2021, K.M. was sleeping on the sofa in the living room of the family home. Around 10:30 pm or 11:00 pm, she went upstairs to sleep on her side of the bed in the master bedroom. The Defendant was in bed on his side when K.M. entered the bedroom and laid down on her side of the bed.
[7] After a few minutes, the Defendant told K.M. that he needed intimacy which he would say before having sex with her. K.M. did not want to be intimate with him because she had asked to separate the day before. She pushed away his hand to stop him from touching her and repeatedly refused to have sex. He separated her legs by straddling her, restrained her wrists, removed her underwear, manoeuvred her, engaged in rear vaginal intercourse while standing, and ejaculated on her backside. He then cleaned himself in the ensuite bathroom, used a washcloth to wipe the ejaculate from her body as she lay on the bed, and said that he was sorry.
[8] To the extent that ambiguity arose with the facts, I find beyond a reasonable doubt that the aggravating acts that K.M. described did occur. This includes the fact that K.M. pushed away the Defendant’s hand, that K.M. repeatedly refused to have sex, that the Defendant physically restrained and positioned K.M. to engage in intercourse, and that he apologized for the forced sexual activity. K.M.’s evidence was straight-forward, reliable, and credible.
Impact on the Victim
[9] At the sentencing hearing, the Crown read and filed K.M.’s victim impact statement.
[10] The sexual assault was deeply traumatizing and led K.M to experience anxiety, depression, post-traumatic stress disorder, and related physical symptoms. The trauma impacted her ability to navigate daily activities, strained her relationships with family and friends, sullied her ability to deal with professional and business activities, and caused her to feel isolated, lonely, and a sense of despair. She developed trust issues. Therapy and legal expenses have strained her finances and required her to make difficult choices to prioritize expenses.
Circumstances of the Defendant
[11] The Defendant is 48 years old. He was born in Jamaica and has a biological sister and four step-siblings. His parents separated when he was young. He has maintained positive relations with all of his family members who are aware of his current circumstances and saddened by his situation. He currently resides with his mother and biological sister and is employed as a vice-principal with a local public school board.
[12] The Defendant moved to Canada in 1987 at 12 years of age and was legally adopted by his paternal cousin who took him in and raised him in the Jane Finch neighbourhood. When his cousin’s husband lost his job, the family moved to social housing. After encounters with police and being expelled from school for truancy, the Defendant was asked to leave his cousin’s home. As a 17 year old teen, he was forced to live in the shelter system, initially in a youth shelter and later in a rooming house, all while working to support himself and pursuing educational programs before eventually earning a high school diploma. Later on, while working at social service agencies, he obtained an undergraduate degree at Atkinson College (now the Atkinson Centre for Mature and Part-time Students at York University) and a graduate degree at the Ontario Institute for Studies in Education at the University of Toronto on scholarship. He pursued a PhD in sociology before attending teacher’s college at York University. He is the first in his family to pursue higher education.
[13] In September 2004, the Defendant married his first wife. They had two children, now 18 and 15 years of age, from the relationship. After substantial delays in applying for a green card to work in the United States, the Defendant and the first wife separated in 2010 due to issues with their long-distance relationship and lengthy separation. He maintains a positive relationship with his first wife who lives with the children in Florida and describes him as a model partner and good father who has always cared for the family, supports their needs, and plays an active role in their children’s lives.
[14] After ending his first marriage, the Defendant began a relationship with K.M. whom he has been married to for about 13 years. Their two children are now about 10 and 4 years of age. Their relationship had its ups and downs while they both worked hard to establish their professional careers and other business and financial pursuits.
[15] During his marriage to K.M., the Defendant suffered a debilitating stroke on April 21, 2014 that paralyzed half of his body. Following months of recovery and rehabilitation, and with K.M.’s support, the Defendant recovered and regained much of his physical ability despite continuing to have some persistent or residual health issues.
[16] Around the time that the sexual assault took place on October 28, 2021, the Defendant and K.M. were dealing with a marital separation that came to involve family law litigation.
[17] The Defendant has been attending therapy to cope with ongoing issues that are related to this criminal proceeding. His pre-sentencing report describes him as being a conscientious and connected father to his children and having a strong support system. He filed many character letters of support. Members of his family, including his biological sister, K.M.’s mother, and others are unwavering in their support of the Defendant. Over the years, he has maintained stable employment as a teacher and earned a promotion to vice-principal in the Spring of 2021.
[18] There is no evidence that the Defendant has any substance use issues.
[19] The Defendant is a first-time offender.
[20] The Defendant maintains that the sexual acts with K.M. that occurred on October 28, 2021 were consensual. He continues to maintain his innocence, as he is fully entitled to do.
Position of the Parties
[21] The Crown seeks a 3-year custodial sentence. In addition, the Crown seeks a DNA order under ss. 487.051(2) of the Code, a mandatory 10-year weapons prohibition under ss. 109(2) of the Code, a 20-year order under ss. 490.012(3) of the Code to require the Defendant to comply with the Sex Offender Information Registration Act, SC 2004, c. 10 (“SOIRA”) and a non-communication order pursuant to s.743.21 of the Code to prohibit the Defendant from communicating with K.M. while in custody.
[22] The Defendant submits that a conditional sentence order of between 12 and 18 months would be an entirely appropriate sentence given his potential for rehabilitation and the need for restraint, among other things. The Defendant urged me to consider his good character and first-time offender status as mitigating factors.
Legal Principles
[23] Section 718 of the Code describes the purpose of sentencing as follows:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
a. to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
b. to deter the offender and other persons from committing offences;
c. to separate offenders from society, where necessary;
d. to assist in rehabilitating offenders;
e. to provide reparations for harm done to victims or to the community; and
f. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[24] Any sentence the court imposes must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Code. Imposing a proportionate sentence is a highly individualized exercise that is tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime: R. v. M. (C.A.), [1996] 1 SCR 500 at 557-59.
[25] A sentence should be increased or reduced to account for any aggravating or mitigating circumstances relating to the offence or the offender: ss. 718.2(a) of the Code. A sentence should apply the principle of parity by being similar to those imposed on similar offenders for similar offences arising in similar circumstances: ss. 718.2(b); R. v. Friesen, 2020 SCC 9 at para 31; R. v. Parranto, 2021 SCC 46 at paras 10-11. Courts should exercise restraint in imposing imprisonment by considering all available sanctions other than imprisonment that are reasonable in the circumstances of the offender who should not be punished more or deprived of liberty if less restrictive sanctions may be appropriate in the circumstances: ss. 718.2(d) and (e); R. v. Nasogaluak, 2010 SCC 6 at paras 40-42. The principle of individualization helps to calibrate proportionate sentences by focusing on the individual circumstances of an offender: Parranto at para 12; R. v. Lacasse, 2015 SCC 64 at para 58.
[26] Restraint is a particularly salient principle in sentencing a first offender: R. v. Borde at para 36; R. v. Batisse, 2009 ONCA 114 at paras 32-34. In addition, the court must not lose sight of the fact that an offender is more than his offending conduct and is a person with strengths, weaknesses, and potential who will return to the community after serving their sentence: R. v. Katsnelson, 2010 ONSC 2246 at para 37; R. v. Ngo, 2023 ONSC 282 at para 36.
[27] A potential mitigating factor is whether the Defendant’s degree of moral responsibility is impacted by race and systemic discrimination: R. v. Morris, 2021 ONCA 680 at para 13. That said, an offender’s experience with anti-Black racism does not impact the seriousness or gravity of the offence: Morris at para 13.
[28] As Fairburn ACJO noted in R. v. A.J.K., 2022 ONCA 487 at para 74, all sexual assaults are serious acts of violence:
[74] All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones
[29] Given the seriousness of sexual assaults, and while all of the sentencing principles remain important, the objectives of denunciation and deterrence gain prominence when imposing a sentence for a sexual assault: R. v. Wells, 2000 SCC 10 at para 44; R. v. Thurairajah, 2008 ONCA 91 at para 41; R. v. Garrett, 2014 ONCA 734 at para 19.
[30] The sentencing range for sexual assault involving forced penetration is three to five years, regardless of whether the accused and the complainant were strangers or in some sort of relationship: A.J.K. at para 77. Absent some highly mitigating factor, a sexual assault that involves forced penetration will typically attract a custodial sentence of at least three years: Ibid. Of course, a range is just a quantitative sentencing tool to assist the court by offering a place to start the sentencing analysis: Parranto at paras 15-17. Accordingly, there will be circumstances where a departure from the range, either above or below the range, is entirely appropriate: A.J.K. at para 77.
[31] In amending the Criminal Code in 2022, Parliament enacted a reinstatement of conditional sentences that should be applied meaningfully. As a result, a conditional sentence may be imposed for a sexual assault if four prerequisites are met: (1) the offence must not carry a minimum period of incarceration; (2) the court must decide appropriately that a sentence of less than two years of incarceration will be imposed; (3) serving the sentence in the community would not endanger the safety of the community; and (4) a conditional sentence is consistent with the fundamental purposes and principles of sentencing: s. 742.1 of the Code; R. v. Proulx, 2000 SCC 5 at para 46; R.S. at para 68; see also R. v. Hay, 2023 ABCJ 191 at paras 48-54.
[32] A conditional sentence is a sentence of imprisonment, albeit one that may be served entirely in the community: s. 742.1; Proulx at para 29; R.S. at para 71. An offender may not be institutionally incarcerated if a conditional sentence is imposed. In addition, incarceration is more effective in achieving denunciation and deterrence due to the immediate and certain nature of incarceration that, in certain cases, will be the only suitable way to achieve the required denunciation and deterrence: Proulx at para 106, R. v. Ali, 2022 ONCA 736 at para 32. Nevertheless, the impact of conditional sentences cannot be understated as they carry significant consequences, are not lenient, and can be as harsh in application as sentences of incarceration: Proulx at para 41; R.S. at paras 71-72. [2] A conditional sentence is a punitive sanction capable of achieving the objectives of denunciation and deterrence: Proulx at paras 22 and 41; R.S. at para 75. Further, the stigma of a conditional sentence with house arrest is significant: Proulx at para 105.
[33] Conditional sentences are not reserved for specific minor offences, as this kind of approach introduces unwarranted rigidity in the determination of whether a conditional sentence is a just and appropriate sanction: Proulx at paras 81-82. Similarly, it would be an error in principle to rule out a conditional sentence based solely on the level of violence committed during an offence without considering the extent to which a conditional sentence could provide denunciation and deterrence, especially if punitive conditions are imposed, and without weighing all relevant sentencing objectives that apply to the factual circumstances: Ali at para 38; R.S. at paras 77-78. Further, courts identify and apply sentencing ranges as “ guidelines, not hard and fast rules ” as they do not remove legislated sentencing tools from being considered or applied: Friesen at para 37; R.S. at para 79. There will be circumstances where a departure from the range, either above or below the range, is entirely appropriate: A.J.K. at para 77. As such, it is incorrect to find that a conditional sentence is unavailable because a sentencing range for an offence generally exceeds the maximum period for a conditional sentence of two years less a day: R.S. at para 79. Sentencing judges should give serious consideration to the possibility of imposing a conditional sentence by examining whether such an order would be consistent with the principles of sentencing at ss. 718 to 718.2 of the Code, although there may be cases where the need for denunciation and deterrence is so high that only a period of incarceration in a custodial facility would be a suitable sentence: Proulx at para 127.
[34] Accordingly, I accept that a carefully crafted conditional sentence with punitive conditions potentially could give meaningful effect to the principles of denunciation and deterrence, depending on the particular circumstances: Wells at para 35; Proulx at para 41; R.S. at para 41; R. v. T.H., 2024 BCCA 123 at para 62. But while conditional sentences are available in adult sexual assault cases involving penile penetration, the Court of Appeal has cautioned that a conditional sentence will rarely, if ever, be proportionate in the context of a sexual assault offence involving violence to overcome resistance: R.S. at para 4.
Analysis
[35] As noted above, the sentencing range for a sexual assault offence is three to five years, with an offence involving forced penetration typically attracting a sentence of at least three years in the penitentiary: A.J.K. at para 77. That said, sentencing ranges or starting points are not “hard and fast rules” but simply guidelines: Friesen at paras 36-38. In deciding the proper sentence for the Defendant, I must exercise my discretion by considering all relevant factors and sentencing principles including denunciation, deterrence, rehabilitation, and restraint, among others, that may well justify a significant downward or upward adjustment in the sentence ultimately imposed: Parranto at paras 44-45.
[36] All sexual assaults constitute serious acts of violence by wrongfully exploiting the victim and impacting their autonomy, bodily integrity, and dignity: A.J.K. at para 74; R. v. Mabior, 2012 SCC 47 at paras 45 and 48; R. v. Kirkpatrick, 2022 SCC 33 at para 51; R. v. Maslehati, 2024 BCCA 207 at para 72.
[37] There are a number of aggravating factors to this case. The sexual assault offence involved an intimate partner: ss. 718.2(a)(ii) of the Code. In committing the offence, the Defendant breached a trust relationship that raised his level of responsibility: ss. 718.2(a)(iii) of the Code; Friesen at paras 126 and 129-130. He held down and positioned K.M. to force vaginal intercourse on her. K.M. resisted but could not stop him. The assault was highly intrusive and occurred in the victim’s home. Continuing to force intercourse over a victim’s repeated objections shows demeaning and contemptuous disregard by the offender for the personal integrity of the victim that implicates the predominant sentencing principles of denunciation and deterrence: R. v. Garrett, 2014 ONCA 734 at para 19. Based on K.M.’s victim impact statement, I find that she was seriously impacted by the sexual assault.
[38] K.M. raised other allegations of domestic violence. However, the Defendant was convicted only in relation to the October 18, 2021 incident. Despite some conflicting evidence in relation to other alleged abusive conduct, I do not find beyond a reasonable doubt that the Defendant engaged in any other or repeated assaults or violent behavior. In deciding the appropriate sentencing for the Defendant, I find that the sexual violence was isolated to the October 18, 2021 incident.
[39] Absent some highly mitigating factor, the forced penetration of another person typically attracts a sentence of at least three years in the penitentiary: A.J.K. at para 77; R.S. at para 22; S.W. at para 32
[40] There are mitigating factors in this matter. The Defendant is a 48-year-old father who has no prior criminal record. Although a lack of a criminal record is not a mitigating factor in the sense that the absence of a record does not diminish the gravity of the offence or the degree of the offender’s responsibility, a lack of prior offences is relevant to the offender’s rehabilitative potential or to restraint in punishment as the offender may be deterred by a lighter penalty. The Defendant continues to suffer from some persistent health issues from his 2014 stroke. Although no evidence was led to show that his health care may not be adequately managed while incarcerated, I accept that his access to health care may be more limited in custody.
[41] The Crown concedes that the Defendant is unlikely to reoffend. I accept this concession, which is reasonably supported by the evidence. In his sentencing statement, the Defendant made a number of observations to show his deep reflection on the seriousness of this matter. He clearly has been impacted by the charge and the prosecution, and the stigma and social impact of being a convicted sex offender will be substantial for him. I highly doubt that he would ever find himself in a similar situation in the future, and I find him to be at low risk to reoffend. In addition, I accept that any treatment or counselling goals may be achieved in the community. Nevertheless, denunciation and general deterrence are predominant sentencing principles in this matter.
[42] The Defendant is a nurturing father to his children, is supportive to other family members and friends, is gainfully employed, and is a contributing member in the community. He has no substance use issues. He has fully complied with all court orders. In addition, he filed a number of very positive letters of support. He has considerable support in the community. The statements of support for him suggest that the sexual assault was out of character. However, this mitigating support should not overwhelm the sentencing analysis in light of the gravity of the offence and his significant moral culpability.
[43] Like Richardson J. in R. v. J.G., 2024 ONCJ 42 at para 87, I share the observation made by Antonio J. (as she then was) in R. v. Shrivastava, 2019 ABQB at paras 87 and 93 that courts should avoid placing too much weight on “otherwise good character” as a mitigating factor as doing so can undermine the denunciative and deterrent functions of criminal sentences and ignore the fact that people of good character in pro-social careers are not immune from offending sexually. All potential offenders should hear the message of deterrence as sexual offences must be denounced as a serious wrong, no matter who commits them.
[44] Although the Defendant’s actions were not excusable, they were, when considering a range of sentence, generally towards the lower end of the sentencing range for sexual assaults involving forced penetration without physical injury. In recent sentencing decisions, courts have imposed three-year custodial sentences in cases involving penetrative sexual assault against a friend or intimate partner: R. v. T.S., 2023 ONCJ 584 at para 67; J.G. at para 88. In another, the court imposed a four-year custodial sentence for one count of sexual assault involving an intimate partner and forced intercourse with vaginal ejaculation: R. v. M.T.-S., 2023 ONSC 4448 at para 43.
[45] In R. v. Dickson, 2023 ONSC 2776 at para 41, the court imposed a conditional sentence of two years less a day for an offender who pled guilty to penetrative sexual assault of an intimate partner who contracted chlamydia in the assault, although the victim forgave the offender and did not want him incarcerated. Importantly, the court in Dickson relied on the trial decision in R. v. R.S., 2021 ONSC 2263 that was overturned on appeal 2023 ONCA 608 after the Court of Appeal found that the mitigating factors relied on by the trial judge were insufficient to lower the sentence below the A.J.K. range of at least 3 years. In light of this, I respectfully decline to follow the reasoning in Dickson.
[46] The Defendant filed a report from a therapist to show his ongoing commitment to personal growth and mental health. This lends support to his rehabilitative potential.
[47] The Defendant has not expressed any remorse, but I view this as neither an aggravating nor mitigating factor as he is maintaining his innocence which is his right.
[48] There is no evidence to suggest that the Defendant’s degree of personal responsibility was directly impacted by his race or systemic discrimination. The evidence of his childhood establishes that he grew up in an “at-risk” inner-city neighborhood and had a rather difficult upbringing in which his was forced to leave home after his encounters with police and expulsion from school. That said, the evidence about the Defendant’s background and how he overcame life obstacles is helpful in assessing the sometime competing sentencing objectives of rehabilitation and denunciation in arriving at a sentence that accords with the proportionality principle and serves the fundamental purpose of sentencing: s. 718 of the Code; Morris at para 102. To this end, I am mindful that a jail sentence may have a disparate impact on the Defendant: R. v. Hill, 2023 SCC 2 at para 135.
[49] As noted earlier, restraint is a particularly salient principle in sentencing a first offender: Borde at para 36; Batisse at paras 32-34.
[50] Taking everything into account, I find that a 2½-year custodial sentence is appropriate to impose in this case. In my view, a conditional sentence of less than two years to be served in the community under house arrest, as argued by the Defendant, would be inadequate to appropriately achieve the denunciatory and deterrence objectives in sentencing, despite the punitive nature and stigma of conditional sentences. K.M. tried to stop the Defendant from touching her and repeatedly refused to engage in sex with him. But she could not stop the Defendant and was physically restrained and positioned to engage in the forced intercourse. Given the use of violence to overcome resistance to the forced intercourse, I find that this is not one of those rare cases where a conditional sentence would provide a proportionate and appropriate sanction: R.S. at para 4. In my view, granting a conditional sentence in this matter would be disproportionate to the seriousness and gravity of the sexual assault and the Defendant’s moral culpability on the particular facts of this case. However, I find that the Defendant, a first-time offender with health issues, presents a low risk to reoffend and is a strong candidate for rehabilitation.
Outcome
[51] Accordingly, I sentence the Defendant to 2½ years of imprisonment.
[52] In addition, the Defendant is subject to the following ancillary orders:
a. A mandatory weapons prohibition order pursuant to ss. 109(2) of the Code for 10 years; and
b. An order pursuant to s. 743.21 of the Code that while in custody the Defendant is not to communicate directly or indirectly with the victim. The non-communication order shall specify the name of the victim.
[53] Given the Defendant’s low risk to reoffend, I am satisfied that requiring him to submit a bodily substance for DNA analysis under ss. 487.051(2) of the Code or otherwise comply with SOIRA would not assist in the prevention or investigation of sexual offences. As a result, I find that ordering him to submit a substances sample or comply with SOIRA would be grossly disproportionate to the public interest in protecting society by the prevention or investigation of crimes and the proper administration of justice. Accordingly, I decline to make any such orders: ss. 487.051(2) and 490.012(3)(b) of the Code. [3]
Released: July 15, 2024 M.T. Doi J.
Footnotes
[1] At the sentencing hearing on July 15, 2024, I delivered oral reasons for sentence that omitted references to authorities and advised the parties of my intention to release written reasons with citations to authorities. To the extent that these written reasons for sentence depart from my oral reasons, these written reasons shall govern.
[2] As Paciocco J.A. noted in R.S. at paras 72-73:
[74] Specifically, if the offender breaches the conditions on which they are permitted to serve their sentence of imprisonment in the community, they will presumptively be incarcerated in an institution for the remainder of their sentence, a not infrequent outcome. The Crown need not prove breaches of a conditional sentence beyond a reasonable doubt for this to occur. Breaches proved on the balance of probabilities are enough.
[73] Indeed, if a breach occurs early in the sentence, the offender may end up being incarcerated for longer than they would have been if they had initially been sentenced to incarceration. This is because conditional sentences are often longer than sentences of incarceration in recognition that serving a sentence in the community, although punitive, tends not to be as punitive as the equivalent sentence of incarceration, and because conditional sentences are not eligible for parole.
[74] Even when the conditions are complied with, a conditional sentence will have punitive conditions, unlike the conditions imposed on probation, parole, or statutory release. Conditional sentences tend to include real limits on liberty through house arrest provisions. The attraction of the conditional sentence is that it “incorporates some elements of non-custodial measures and some of incarceration”: Proulx, at para. 21. It is therefore capable of achieving both punitive and restorative objectives, simultaneously.
[3] Due to inadvertence in delivering my oral reasons for sentence, I indicated orally that the Defendant was to submit a bodily substance sample for DNA analysis under ss. 487.051(2) of the Code. However, as I find that the Defendant, a first-time offender with a positive background, is at low risk of re-offending, my intention had been to not make the order which is hereby withdrawn.