R v White, 2016 ABQB 24

Court of Queen ’ s Bench of Alberta Citation: R v White, 2016 ABQB 24 Date: 20160112 Docket: 120103692Q7 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Ryan James White Accused _______________________________________________________ Reasons for Decision on Sentencing of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] On September 26, 2015 Ryan James White was convicted by a jury on eight counts on an eleven-count indictment. The convictions related to offences committed against three complainants, SH, RH and TK. [ 2 ] I will summarize the convictions:

SH Count 3 – robbery of SH contrary to s 344(1)(b); RH Count 5 - sexual assault on RH contrary to s 271; Count 6 – unlawful confinement of RH contrary to s 279(2); Count 7 – attempting to choke, strangle or suffocate SH contrary to s 246(a); TK Count 8 – robbery of TK contrary to s 344(1)(b); Count 9 – attempting to choke, strangle or suffocate TK contrary to s 246(a); Count 10 – sexual assault on TK contrary to s 271; and Count 11 – unlawful confinement of TK contrary to s 279(2). Background [3] By way of general background, all three of the complainants were young, drug-addicted prostitutes.

They worked in the areaof 97 Street and 111 Avenue in Edmonton, Alberta. They were clearly vulnerable to abuse by reason of their occupation and their drug-addicted states. [4] There were obvious similarities in the offences committed against them by Mr. White. [5] In the case of SH, she testified that Mr. White picked her up while she was working on the streets. She was driven by him toan isolated area, where she performed oral sex on him. After the sex act was completed, Mr. White began to choke her and demanded hismoney back. SH complied.

She was driven back to a service station in the downtown area and made her way back to the area downtownthat she worked in. [6] RH was picked up by Mr. White in the same area as with SH. Mr. White drove to an isolated area. She began to perform oralsex on him, but he then leaned across the vehicle towards her and began choking her until she agreed to submit to sexual intercourse. Shetestified as to forceful, painful intercourse. SH escaped by brandishing an imitation weapon, and she was able to move to the back seat ofthe vehicle and leave through the rear passenger door. Mr.

White got out of his vehicle but left as soon as SH began to scream. She madeher own way back to the area downtown that she worked in. [7] TK was picked up by Mr. White in the same general area. Mr. White drove to an isolated area, despite TK’s request that theystay in the area she had been picked up in. She began to perform oral sex on Mr. White, but paused at some stage. Mr. White thengrabbed her by the neck or throat and choked her to the point of unconsciousness. TK begged Mr. White to let her go. He forced her tocomplete oral sex on him and demanded the return of the money he had paid to her.

After giving him back the money, she was forcedfrom his vehicle. Crown Submission [8] The Crown argues that there are a number of aggravating circumstances, including Mr. White’s size. Testimony from his ex-wife indicated that he weighed in excess of 400 pounds and was approximately six feet four inches in height. [9] The Crown cited a number of cases in support of its position that Mr.

White should receive a sentence of between 11 and 14years: R v Arcand, 2010 ABCA 363 , 2010 CarswellAlta 2364; R v Sandercock, 1985 ABCA 218 , 1985 CarswellAlta 190; R v Johnas, 1982 ABCA 331 , 1982 CarswellAlta 299; R v Robinson, 1993 ABCA 91 , 1993 CarswellAlta 584; R v Walters, 2012 ABQB 83 , 2012 CarswellAlta 116; R v Douglas, 2007 CarswellAlta 1398; R v Kruse, 2004 CarswellAlta 1431;

R. v Pearson, 2006 CarswellAlta 939; R v Gain, 2005 CarswellAlta 638; R v Latrielle, 2009 BCSC 1892 , 2009 CarswellBC 3822; R v Muhammad, 2004 CarswellBC 1715; R v (R (D)), 2004 BCSC 336 , 2004 Carswell BC 525; R v Alexander, 2013 ABCA 231 , 2013 CarswellAlta 1026; R v Geary, 2010 CarswellMan 87; R v Kane, 2011 BCSC 345 , 2011 CarswellBC 622; R v CAM, (SCC), 1996 CarswellBC 1000. [10] The Crown concedes that the unlawful confinement convictions relating to RH and TK should be Kienappled. [11] After reviewing the decisions cited, the Crown argued that the sentences imposed relating to the various offences should beconsecutive in relation to each complainant but concurrent for multiple offences committed against that complainant; that there were norelevant mitigating factors other than pre-sentence custody; and that I should follow my decision in R v Walters, 2012 ABQB 83. [12] The Crown seeks ancillary orders being a 10-year weapons prohibition under s 109; a DNA order attaching to counts 3, 5 and10; and a SOIRA order for life attaching to counts 5 and 10. [13] Specifically, the Crown seeks the following sentences broken down by count: Count 3 (SH) robbery - 3 years; Count 5 (RH) sexual assault - 6 years; Count 6 (RH) unlawful confinement – Kienappled; Count 7 (RH) choking – 4 years; Count 8 (TK) robbery – 2 years; Count 9 (TK) choking – 5 years; Count 10 (TK) sexual assault – 5 years; Count 11 (TK) unlawful confinement – Kienappled. [14] That would amount to three years relating to SH, five years relating to RH and six years relating to TK. [15] The Crown acknowledges that the totality principle should reduce the overall sentence to some degree, and suggests one totwo years. [16] The Crown suggests that a total of one year be given as credit for the pre-sentence custody and pre-trial time spent by Mr.White on judicial interim release. [17] Accordingly the Crown seeks a sentence of 11 to 14 years. [18] RH provided a victim impact statement dealing with the effects of Mr.

White’s assault on her. It is clear from her letter, as itwas from her testimony at trial, that she continues to suffer from the events she testified to. Defence Position [19] Before the sentencing hearing, the defence filed a Charter application relating to the Truth in Sentencing Act, S.C. 2009, c.29. [20] Essentially, the defence argues that Mr.

White should be given greater than 1.5 for 1 credit for pre-trial and pre-sentencecustody, relying on R v RS, 2015 ONCA 291, Lewis v Canada (Attorney General), 2015 ONCA 379, Fehr v Canada, 2015 ABQB 627,R v Clarke, 2014 SCC 28 and R v Wust, 2000 SCC 18. [21] The defence argues in the alternative that the Truth in Sentencing Act should not apply to any sentences relating to SH andTK, as it is not clear that the offences against her that Mr. White was convicted of were committed before the Truth in Sentencing Actcame into force.

They note that at trial, because of SH’s evidence, the counts relating to her were amended to have occurred betweenDecember 1, 2010 and December 1, 2011. The offence dates relating to TK were amended to between January 1, 2009 and December 1,2011. [22] The Truth in Sentencing Act came into effect on February 22, 2010.

[ 23 ] The defence seeks pre-sentencing credit of three for one instead of the “ususal” one and a half for one. [ 24 ] In support of his argument for greater credit, Mr.

White swore an affidavit in which he complains that while incarcerated at the Remand Center he has “suffered a great deal of hardship”: Because of his size he has not been provided with appropriately-sized clothing; He has had to wash his clothes in a garbage can in his cell; The mattress provided to him is insufficient to support him, and he has had to seek medical attention for back pain; The mattress is too short for him; He is unable to cut his nails as frequently as he would like; He is locked down in “super protective custody” for 20 to 21 hours per day; He was briefly housed in a cramped cell with a floor caked in dry urine and blood; He has had insufficient underwear for most of his time at the Remand Centre; He has suffered digestion issues; and Because of the nature of the inmates in his tier, he is uncomfortable displaying a family photograph. [ 25 ] The Crown agreed that for the purpose of sentencing Mr.

White, I should consider the decision in R v Clarke , 2014 SCC 28 . In that decision, the Supreme Court of Canada held that the Truth in Sentencing Act had no retroactive effect such that it applied only to persons charged after that legislation came into effect. However, the Crown argues that the defence has not established that the offences relating to RH occurred before the Truth in Sentencing Act came into effect. [ 26 ] The Crown does not object to my giving Mr.

White one and a half for one credit, but does object to more credit than that on the basis that it has not been demonstrated that the Truth in Sentencing Act does not apply to at least the offences against SH and TK (arguing that the onus is on Mr. White and that he failed to discharge that onus) and in any event, the conditions faced by Mr. White do not warrant more than one and a half for one credit. [ 27 ] It is common ground that Mr. White did not have any “uncredited” pre-trial custody to the time of his conviction on September 26, 2015.

Following his conviction, he was taken into custody, and he has remained at the Edmonton Remand Centre since that time. [ 28 ] To the time of the sentencing hearing on December 15, Mr. White had spent 81 days following his conviction. To the date of this decision, January 12, 2016, Mr. White has spent 98 days in the Remand Centre for which he is entitled to credit at the ratio I determine in this decision. [ 29 ] In addition to credit for pre-sentence custody, Mr. White argues that he should be given credit for his pre-trial release conditions. He spent most of his pre-trial time on judicial interim release.

When he was released on February 10, 2012 after a period of detention following his arrest, he was required to follow a curfew between 8 pm and 7 am every day, as well as to adhere to other relatively standard conditions. [ 30 ] That release was revoked because of an offence committed against his mother. [ 31 ] He was again released on August 14, 2012 on terms resembling house arrest, although he was permitted to be out of his residence to work and for other limited purposes. [ 32 ] Mr. White remained on that release until he was taken into custody following his convictions on September 26, 2015.

He appears to have complied with the terms of that release. [ 33 ] According to defence counsel, Mr. White was on judicial interim release for a total of three years and 47 days. The Crown’s calculations presented at the sentencing hearing were slightly less, but the Crown has taken no issue with the more recent calculations put forward by defence counsel. They appear to differ because of the intermittent sentence Mr. White served between December 2014 and June 2015 resulting from a conviction in December 2014. [ 34 ] Defence counsel submits that Mr.

White should be given credit for that time, and they argue that the credit given should be at least one for one, following R v Hilderman , 2005 ABCA 249 . In that case, the Court of Appeal found that the credit given by the sentencing judge was not demonstrably unfit (at para 24). The Court noted in para 8 that the sentencing judge had concluded that “a conditional sentence of imprisonment could not have contained more restrictions on their liberty.

In other words, they have effectively already served a 16 month conditional sentence.” [ 35 ] The Court of Appeal stated at para 21: [21] We also appreciate the fact that serving a term of house arrest is not necessarily synonymous with serving an equal term of imprisonment. Nonetheless, this court has held that there can be a credit. We note that a pre-trial custodial term often gets credit on a two-for-one basis and sometimes even a three-for-one basis. In part, the credit recognizes the possibility of early parole.

As the offenders here were found by the sentencing judge to be rehabilitated by the time of sentencing, he no doubt recognized that they would have been good candidates for early parole. Thus, a sentence term imposed may not be fully served. Here the 16 months’ house arrest had been incurred by these respondents and we cannot say that it was an error for the trial judge to credit that time in full, providing it was not

done simply as an automatic mathematical deduction. Even though the sentence here looked like an automatic mathematical deduction,reading the entire judgment we do not accept that it was so. Rather, the sentencing judge reviewed the case law on point, thecircumstances of the offenders and the restrictions that were placed on these respondents during their release on bail. He concluded that asentence of between 18 and 24 months was appropriate for these particular offenders. He then was required to consider the request for aconditional sentence and he concluded that jail time must be served.

It is obvious from reading his judgment in full that by the time hechose to take 24 months rather than the 18 he felt was appropriate he had decided to give full credit. The higher period was thereforerequired if these respondents were to serve a meaningful time in jail. In our view, the sentencing judge did not perform an automaticprocedure. He properly reviewed the relevant factors and, at the end of this review, he passed sentence and exercised his discretion togive the respondents full credit for this house arrest. That is something he is entitled to do and he committed no palpable error.

We willnot interfere with the sentence based on this ground of appeal. [36] The Court of Appeal also referenced R v Lau, 2004 ABCA 408, in which it stated at paras 15-16: [15] Similarly, a trial judge may take account of very strict bail conditions and treat that as akin to custody in calculating a sentence:R. v. Spencer (2004), (ON CA), 186 C.C.C. (3d) 181 (Ont. C.A.); R. v. Gray (2003), 2003 ABQB 473 , 338A.R. 270 (Q.B.); R. v. Hames, 2000 ABQB 958; R. v.

Ticknovich, 2004 ABQB 421 . [16] But whether or not to give such credit, and how much, is a matter within the judge’s discretion, having regard to such factors asthe intrusiveness of the terms of the judicial interim release: R. v. Nguyen, 2004 ABQB 618 . This Court has considered givingcredit for time served on judicial interim release with strict conditions: R. v. Ewanchuk (2002), 2002 ABCA 95 , 299 A.R. 267. Ewanchuk is different than the current case as it involved interim release after conviction.

This Court stated at para. 87: “... time spent inhouse arrest must be taken into account.” I interpret that to mean that a sentencing judge must consider whether it is appropriate to givecredit for time served under strict bail conditions, not that the judge is obliged to give credit. In the current case, the judge did not err inexercising his discretion to deny credit for time served on interim release. [37] There, the trial judge had given no credit for time spent on judicial interim release under conditions resembling house arrest. [38] Also submitted was R v Downes, (ON CA), 2006 CarswellOnt 778 (ONCA).

In that case, the OntarioCourt of Appeal gave the accused five months’ credit for 16 months spent on house arrest conditions of release. There, the accused hadbeen completely dependent on his surety if he wished to leave the house he was required to live in, including medical appointments orwork. [39] After consideration of pre-sentence credits, the defence points to relevant sentencing factors as follows: Mr. White is only 34 years old; Mr.

White has only one prior conviction, and at the time of the commission of the offences for which he was convicted, he had norecord; He has substantial support from his parents; He is responsible for the care of his five-year-old son; His son did well under his father’s primary care; He has had a stable employment record; A number of letters of reference were provided; The house arrest conditions on his judicial interim release were a significant restriction on him and caused him difficulties over that longperiod of time; and His size will make any incarceration more difficult for him. [40] The defence submitted a number of cases pertaining to the appropriate sentence in these circumstances”: R v Cooper, 1991 ABCA 228 , [1999] 117 AR 295; R v Kruse, [2004] 370 AR 295; R v Pearson, 2006 ABQB 488; R v Paquin, [1989] JQ no 457; R v Leung, 2012 ABPC 158 , 2012ABPC 158; Ruby on Sentencing Excerpt (Prior Criminal Record); R v RS, 20I5 ONCA 291; Fehr v Canada, 2015 ABQB 627; R v Clarke, 2014 SCC 28 R v Wust, 2000 SCC 488.

[ 41 ] After dealing with the Crown’s cases and the cases submitted on Mr. White’s behalf, the defence submitted that there should be consecutive sentences of three years in relation to each of RH and TK. They suggest that the robbery of SH should result in a sentence of six months, consecutive to the sentences for RH and TK. The defence noted that the robbery of SH involved only $40, it was a brief encounter and following the robbery, Mr.

White drove her back to a downtown service station rather than abandoning her in a remote location. [ 42 ] From that total of 6.5 years, the defence argues that the totality principle should reduce this total by one year. One-for-one credit for time spent on judicial interim release should reduce that amount by a further three years. The post-conviction, pre-sentencing custody should, at three for one credit, provide a further 240 days or more in credits. [ 43 ] Taking into account all of the credits the defence argues for, it submits that the remaining sentence should be no greater than three years.

Conclusion on Pre-sentence Credits Pre-sentence Custody [ 44 ] I am satisfied that it is appropriate to consider time spent at the Edmonton Remand Centre after conviction but before sentencing in the context of the amount of credit to be given for it. The starting place is obviously 1 for 1; there are a number of factors that generally make 1.5 for 1 (the maximum permitted under the Truth in Sentencing Act ) appropriate, the most notable being the absence of parole eligibility credit. [ 45 ] I also accept that but for the Truth in Sentencing Act , Mr.

White might have received more than 1.5 for 1 credit for any pre- trial custody. See R v Wust , 2000 SCC 18 , and R v RS , 2015 ONCA 291 at para 6 . [ 46 ] I do not accept that the onus is on Mr. White to prove the offence date for the purposes of the applicability of the Truth in Sentencing Act . The Crown is obliged to prove the offence date as part of the essential elements of the offences charged. The Crown proved beyond a reasonable doubt that the offences occurred between the dates charged on the amended indictments.

That included a period of time during which the Truth in Sentencing Act was not in force. [ 47 ] In my view, it is the Crown who is seeking to place the offences within the Truth in Sentencing Act . Without it, Mr. White was (and is) eligible for greater credit than that legislation allows for. If the Crown wishes to limit Mr. White’s eligibility for greater credit, the onus is on it to prove that the offence date was after the Truth in Sentencing Act came into force.

It has failed to do so. [ 48 ] Here, it is fair to say that RH’s evidence was unclear on dates, and the Crown was permitted to amend the indictment at trial to accord with the widest range given in her testimony. The same occurred regarding the date for the offences against TK. [ 49 ] My conclusion is that the Crown is stuck with the evidence it put forward. That evidence established a range of dates.

The accused is entitled to the benefit of any doubt relating to the offence dates, such that for the purposes of sentencing and retroactivity of legislative provisions, the offence dates here should be treated as the earliest dates in the indictment, unless the Crown has proven offence dates to the contrary. The evidence provided by the Crown gave no greater precision than the dates in the indictment. [ 50 ] As such, I consider myself able to give greater than 1.5 for 1 credit for pre-trial or pre-sentence custody. [ 51 ] To the date of this decision, January 12, 2016, Mr.

White is entitled to credit for post-conviction pre-sentence custody of 98 days. [ 52 ] Having regard to the evidence put forward by Mr. White, I am frankly not satisfied that his incarceration at the Edmonton Remand Centre has been more onerous than it would have been in a Federal institution.

His complaints do not rise to the level of Charter breaches (as I found in Walters ) and are more appropriately described as inconveniences and discomforts. [ 53 ] His placement relates to the nature of the offences he committed, and while it is unacceptable that he spent any time at all in a cell that had not been properly cleaned of urine and blood from a previous occupant, that appears to have been a very brief stay. [ 54 ] There is, in my view, a significant difference between pre-trial custody and post-conviction pre-sentence custody.

In the case of the former, there has been a deprivation of the freedom of a person presumed to be innocent. In the case of the latter, there is a completely justifiable deprivation of the freedom of a person who has been convicted of a crime. There are inevitable hardships, discomforts and inconveniences for all persons incarcerated. I see little justification in giving Mr.

White greater credit following conviction than what other convicts are entitled to. [ 55 ] That suggests to me that only credit relating to parole eligibility is appropriate in these circumstances. [ 56 ] Ultimately, my conclusion is that it is appropriate to give Mr. White credit at the rate of 1.5 for 1. That accounts for the unavailability of parole credit for the time between conviction and sentencing. [ 57 ] Greater credit might have been warranted for pre-conviction custody, but that is not the case here. [ 58 ] As a result, Mr.

White is entitled to credit for 147 days as a result of his 98 days’ post-conviction pre-sentencing detention at the Edmonton Remand Centre. Judicial Interim Release

[ 59 ] With respect to credit for time spent on judicial interim release, I recognize that I have a fairly wide discretion. The cases in the submissions before me range from no credit to one-for-one credit. [ 60 ] The sentencing judge in Hilderman did not differentiate between conditions of release and what someone on a conditional sentence might face. There is a logic to that, but I do not accept that as a general principle judicial interim release should be equated to a conditional sentence. Different considerations apply to these forms of behavioural control. [ 61 ] Here, Mr.

White was allowed by the terms of his initial release to keep a curfew but otherwise was able to go about his regular life with only “standard” restrictions. However, the imposition of a curfew during that period persuades me that credit should be given for that period. A curfew is more than a minimally intrusive obligation imposed on a person presumed to be innocent. Had Mr. White simply been released with a promise to keep the peace and be of good behavior and to report to a bail supervisor, little or no credit would be appropriate. But imposing a curfew turned Mr.

White’s home into a virtual prison for the curfew hours. That feature warrants some credit. [ 62 ] The change to house arrest occurred in August 2012. Those changes appear to have resulted from an offence committed by Mr. White against his mother while subject to release on these charges. These much more onerous restrictions arose not because of these charges but because of other conduct of Mr. White. [ 63 ] That being said, he was still on release only from these charges, so it is relevant to consider those conditions as well as the original conditions.

He was still presumed innocent of these charges. [ 64 ] I note that the courts have not been consistent with their treatment of credit for time spent on judicial interim release. The jurisdiction to give credit clearly exists under s 724(3) of the Criminal Code . [ 65 ] In R v RO , 2015 ONCA 814 , the accused had spent five years before trial on judicial interim release. His release conditions required that he live with his surety, that he have no contact with his son and that he abstain from alcohol and drug use.

No specific credit had been given by the trial judge for these release conditions, although she took that “into account globally” and considered his release conditions as a mitigating factor.

The Court of Appeal did not interfere with the sentence imposed. [ 66 ] In R v Siconolfi , 2015 ONCA 896 , the Ontario Court of Appeal declined leave to appeal from the trial judge’s refusal to give any credit for pretrial house arrest on conditions that the accused not leave her residence without being accompanied by her surety. [ 67 ] In R v Moller , 2012 ABQB, the accused was given one-for-one credit for house arrest that essentially required him to reside in a residential addiction treatment centre. [ 68 ] Manderscheid J considered strict bail conditions as a mitigating factor for sentencing purposes in R v Fick , 2011 ABQB 628 , but he did not give any specific reduction on that account. [ 69 ] In R v Olson , 2011 ABCA 308 , the Court of Appeal overturned the trial judge’s grant of credit for pretrial bail, as the bail conditions only required that the accused abstain from drinking and stay in the province. [ 70 ] Having regard to the conditions imposed on Mr.

White, and recognizing that in the main, he was able to work and raise his son during the entire period he was not incarcerated, I conclude that an overall credit of .5 to 1 is appropriate. Less credit than that is appropriate for the early period when he was not under house arrest; greater credit than that is appropriate for the later period. Having regard to the self-inflicted increase in the severity of conditions, I do not think that the overall average here should exceed 50 percent. [ 71 ] Mr.

White is thus entitled to credit for half of 1,143 days, or 572 days, on account of judicial interim release conditions. [ 72 ] His total credits are thus 719 days (nearly two years). Sentence [ 73 ] In a case such as this, and in the circumstances of this case, it goes without saying that the primary sentencing considerations are denunciation and deterrence. [ 74 ] This is a case where there are no mitigating factors to consider, apart from the pretrial credits that have been calculated above.

The absence of any significant record is already taken into account in relation to the starting point sentences that apply to at least the sexual assault convictions against RH and TK. [ 75 ] The letters of reference provided on behalf of Mr. White do nothing to explain his actions. They paint a picture of a reliable, caring family member. The crimes he committed, however, show a dangerous predator who victimizes vulnerable women. [ 76 ] At the outset, I reject the Crown’s submission that Mr. White’s size is an aggravating factor.

Undoubtedly his size made him more intimidating to his victims and assisted him in being able to overcome any resistance to his demands. But his size is not something that should properly be taken into account in sentencing any more than the colour of his skin or his facial features. [ 77 ] Nor is size a mitigating factor. Mr. Beresh argues that jail time will be more difficult for Mr. White because of his large size and the difficulties correctional facilities will likely have accommodating his needs. For the purposes of sentencing, I find this to be a neutral factor and neither increase nor decrease Mr.

White’s sentence on account of his physical characteristics. [ 78 ] I accept the Crown’s submissions that the vulnerable nature of Mr. White’s victims is aggravating. He chose to prey on victims in extremely disadvantaged circumstances. There is no evidence to suggest that Mr. White was aware of the victims’ addiction problems, but young women selling themselves on the streets of Edmonton are obviously disadvantaged and desperate. Preying on such

victims is despicable. [ 79 ] There are essentially no mitigating circumstances to consider. Mr. White has expressed no remorse; he has taken no responsibility for his crimes and so far has done nothing to suggest any rehabilitation is possible, let alone likely. He portrays as a Jekyll and Hyde character: a good father and valued family member on one hand and a dangerous sexual predator on the other. Sexual Assault on RH and TK [ 80 ] For sentencing purposes, it is clear that the sexual assault convictions relating to RH and TK are major sexual assaults.

I held in R v White , 2015 ABQB 722 , that the effect of the jury’s conviction on count 5 was a finding beyond a reasonable doubt that Mr. White had forced sexual intercourse on RH. Forced oral sex by TK under count 10 is also a major sexual assault. [ 81 ] Those convictions bring into play R v Arcand , 2010 ABCA 363 , and a starting point sentence of three years. Such starting point sentences assume no criminal record. Following R v Paquin , [1989] JQ No. 457 , (1989), 70 Crown (3d) 39 (CAQ), I am satisfied that Mr.

White’s conviction for assaulting his mother, which occurred after the offences here, should not be considered for the purposes of this sentence. [ 82 ] Mr. White was convicted of assault in December, 2014. The precise date of the assault itself was not provided to me, but it dated from the time of these offences. [ 83 ] I conclude that the assault conviction is only slightly aggravating and that it should not play any significant role in Mr.

White’s sentence for these offences. [ 84 ] Absent any mitigating circumstances, I am left to consider the impact of the aggravating circumstances. [ 85 ] The Criminal Code treatment of choking is interesting and important. The maximum sentence for choking under s 246(

a) is life imprisonment. There is no specific charge for choking while committing a sexual assault, such as there is for committing a sexual assault and using a weapon (s 272(1)(a)), although the maximum penalty for that offence is 14 years’ imprisonment. A logical inference from s 246(

a) and s 272 is that the maximum penalty for choking while committing a sexual assault is life imprisonment. [ 86 ] The Crown cites R v Robinson , 1993 CarswellAlta 584 (ABCA), 1993 ABCA 91 , for its treatment of choking, although that case did not involve sexual assault or attempted sexual assault but rather was in the context of an attempted robbery. [ 87 ] In Robinson , the accused followed the complainant into a parking lot and choked her to the point of unconsciousness. The accused pled guilty.

The trial judge had sentenced the accused to 2 ½ years for the assault (choking), and the Crown appealed. [ 88 ] The Court of Appeal dealt with the choking aspect of the crimes committed by Mr. Robinson at paras 8-9: [8] The first question is whether the sentence for choking the woman was fit. It is a very serious offence. It is one to which women are particularly vulnerable, whether on the street or elsewhere, whether the intent of the offender was to commit a sexual assault or, as in this case, some other crime.

Women must feel confident that this Court requires the trial courts in Alberta to impose sentences for such an offence which will deter other men from taking advantage of women in such a fashion, putting their lives in peril. [9] The gravity of this offence in the eyes of Parliament is demonstrated by the fact that sec. 246, which created this offence, assigns to it a maximum punishment of imprisonment for life; whereas by comparison, sec. 268, which prohibits wounding, maiming, disfigurement or endangerment of life, attracts a maximum term of imprisonment of 14 years.

Sec. 272, which prohibits sexual assault causing bodily harm, carries a maximum term of imprisonment of 14 years. In terms of maximum sentence, the offence created by sec. 248 (choking) is like that found in sec. 273 aggravated sexual assault — i.e., in committing a sexual assault, wounding, maiming, disfiguring, or endangering the life of the complainant) which attracts a maximum of imprisonment for life.

In making these observations there is no suggestion that in the normal case the sentence would be close to the maximum, but the point is that Parliament has, in deciding upon the maximum of a 14 year sentence, indicated which offence is the more serious. [ 89 ] The Court of Appeal concluded at para 10: [10] In the circumstances of this case, the sentence for choking, bearing in mind the lasting consequences to the victim as described in her Victim Impact Statement, might have justified a sentence of 5 years. We do not say that 3 years, or 4 years, would be the only possible fit sentence.

Indeed, as I have just said, in our view the sentence of 5 years might have been justified. However, there is a particular circumstance in this case which must be given effect to. After the accused entered his guilty plea Crown counsel submitted that an appropriate sentence would be 3 to 4 years. The trial judge chose 3 years. We think that that sentence was so low as to be erroneous in principle.

But, because of the Crown's position, we do not think that the sentence can be set at more than 4 years, and that is what we say it should be, even after allowing for the guilty plea and time in custody. [ 90 ] The Crown argues that I should sentence Mr. White to five years for each of the sexual assaults, and that I should impose a concurrent five-year sentence for each of the choking convictions.

That appears to presume that I would treat the choking of the victims as an aggravating feature to the sexual assaults. [ 91 ] Another approach would be to “ignore” the choking in relation to the sexual assault convictions and impose consecutive sentences for the choking convictions. Those sentences might then be reduced (if applicable) on account of totality. [ 92 ] It is helpful to look at convictions for sexual assault where a weapon was involved. I dealt with that offence in R v Walters . In that case, three prostitutes had been sexually assaulted at knifepoint.

There, having regard to the differences in the manner in which the offences had been committed, I imposed sentences of seven, three and nine years for the sexual assault with a weapon convictions (before application of the totality principle).

[93] In Walters, the three-year sentence related to a threatened sexual assault that was thwarted after the complainant screamed,although she was cut and the accused stole her purse. [94] I noted that there was no starting point sentence for sexual assault with a weapon, and that position has not changed. [95] Without going into details, the circumstances relating to Mr. Walters’ first and third victims were more egregious than thoseapplicable to the sexual assaults against RH and TK, largely in relation to the duration of the offences. Nevertheless, Mr.

White chokedboth victims here, and choked TK to the point of unconsciousness. [96] Having regard to the Criminal Code treatment of choking, it is difficult to see that a sexual assault involving choking shouldbe treated less severely than a sexual assault with a weapon, although of course each situation must be assessed on its own circumstancesand having regard to the nature and extent of the choking and the nature and involvement of the weapon. [97] Having regard to the Crown’s submissions, I am of the view that the appropriate treatment of sentencing for the sexualassaults here is to consider the choking of the victims as an aggravating feature to the sexual assault, and then to Kienapple the chokingconvictions.

Imposing separate sentences seems artificial, although if I were to do so it would then be appropriate to impose consecutivesentences and then potentially reduce the sum of them appropriately under the totality principle. [98] Approaching it in this fashion, I take particular note of R v Latreille, 2009 BCSC 1892, where the accused was sentenced tofive years following forced sexual intercourse with a prostitute after striking and threatening her; R v Muhammad, 2004 BCCA 396, inwhich the British Columbia Court of Appeal upheld a five-year sentence relating to a violent attack on a prostitute involving a knife; andin particular R v Alexander, 2013 ABCA 231. [99] In Alexander (a post-Arcand decision) the Alberta Court of Appeal reduced a six-year sentence to five years.

The accusedhad pled guilty to sexual assault with a weapon, robbery and breach of recognizance. He was 18 years old when he committed theoffences. The circumstances were strikingly similar to those in Walters. Mr. Alexander contacted a prostitute on Craigslist, lured her to aparking garage and sexually assaulted her while holding a knife to her throat, causing some superficial cuts.

He then stole some moneyfrom her and took her cell phone. [100] The Court of Appeal noted at para 7 that “this youthful offender is not beyond redemption; and it is important that a crushingsentence not be imposed on him.” [101] The discussion in that case is brief, but focuses on R v Sandercock, 1985 ABCA 218.

The Crown had sought a sentence of sixto eight years for the sexual assault before considering mitigating features; the appellant had suggested that it should be between five andsix years. [102] In R v Kane, 2011 BCSC 345, the accused received a four-year sentence for what was described as “unprotected vaginalintercourse with a vulnerable person”. The complainant had agreed to perform oral sex on him, but partway through, he banged her headagainst the wall, pulled down her pants, took back the money he had paid and forced unprotected sex on her. He had a previousconviction for a violent sexual assault.

The Crown referred to this case in relation to its argument on the vulnerability of the victims.From my review of Alberta Court of Appeal authorities, the sentence imposed by the trial judge would appear to be outside what wouldlikely have been imposed on the offender in Alberta. I place no weight on this decision. [103] The defence refers to R v Cooper, 1991 ABCA 228 , [1991] AJ No 878 (ABCA) and two four-year sentences forseparate sexual assaults with a one-year reduction on the basis of totality.

It should be noted that there was no indication of any weaponsor choking involved. [104] In R v Pearson, 2006 ABQB 488, Moore J sentenced the accused to two consecutive three-year sentences for major sexualassaults on two women, one of whom was a prostitute. No weapons or choking were involved in the assaults. [105] Moore J reduced the sentence to five years having regard to the totality principle. Analysis [106] As noted above, there are no relevant mitigating circumstances here. The significant aggravating circumstance is thevulnerability of Mr. White’s victims. I cannot denounce Mr.

White’s treatment of his victims more strongly. As countless Courts haveheld, street sex workers, and especially addicted sex workers need and deserve the protection of the law. Denunciation and deterrenceare the main considerations in this sentence. [107] Both RH and TK suffered at Mr. White’s hands; from her victim impact statement, RH still suffers. It was very obvious fromTK’s testimony at trial that she was terrified by Mr. White. [108] There is little to distinguish between the severity of the sexual assaults on these two victims.

TK testified that she was choked tothe point of unconsciousness; RH does not appear to have been choked as long. Both attacks were relatively brief. Sexual intercourse wasforced on RH; TK was forced to complete oral sex on Mr. White. [109] I do not consider Mr. White’s minor record to be of consequence in this sentencing. The starting point for both of these sexualassaults is three years.

The victims’ vulnerability must be considered, as must the choking. [110] In R v Alexander, The Court of Appeal appears to have accepted that sexually assaulting a prostitute with a weapon should drawa sentence of five to six years, before adjustments for mitigating and other aggravating features. Where choking is involved, it seems to

me that the appropriate sentence is at least in that range. [111] Here, the sexual assaults themselves were brief. There was only transitory physical harm to the victims. [112] The defence argues for a three-year sentence for each of the sexual assault convictions. This argument ignores the aggravatingfactor of the vulnerability of the victims. Three years is wholly inadequate without consideration of the choking. [113] I am of the view that the appropriate sentence for the sexual assault of RH is five years, as sought by the Crown.

She hadconsented to oral sex; ultimately sexual intercourse was forced on her. [114] While TK was choked more than was RH, the sexual assault on her was being forced to complete the oral sex she hadpreviously agreed to perform on Mr. White. Five years is appropriate for the sexual assault on TK. Unlawful Confinement [115] Any confinement of RH and TK was limited to the duration of the commission of the other offences on them. There wasvirtually no delay between the completion of the other offences and the end of any confinement. Accordingly, it is appropriate toKienapple the convictions for unlawful confinement.

Choking [116] As discussed above, I consider it appropriate to treat the choking as an aggravating factor to the sexual assaults and sentenceMr. White in a similar manner as if he had been convicted of sexual assault with a weapon. In doing so, it is thus appropriate toKienapple the convictions for choking. [117] As an alternative, it would be necessary to revisit the sexual assault sentences and exclude consideration of the choking of eachvictim.

If I had done so, an appropriate sentence for the sexual assaults on each of RH and TK would have been in the range of fouryears, having regard to the starting point of three years, the absence of mitigating factors and the aggravating factor of the vulnerabilityof the victims. The sexual assault on RH was more serious having regard to its nature, so a sentence relating to her would likely havebeen approximately four years. The sentence relating to TK would likely have been slightly less than four years, but more than threeyears. [118] The choking convictions here were significantly more serious than Mr.

White’s conviction for choking his mother. That wasapparently not in the course of committing an indictable offence. By itself, an appropriate sentence for choking would have been in therange of two to five years, following R v Robinson. [119] Here, the chokings were not as significant as those committed by Mr. Robinson. The Court of Appeal noted that the victim theresuffered lasting consequences. Here, the chokings were brief, with no lasting consequences flowing from the chokings. As I have said,the choking of TK was more severe than that of RH. It is significant that Mr.

White choked TK in the course of committing two separateindictable offences against her: sexual assault and robbery. Separate sentences would likely have been in the range of two years relatingto both victims, with the sentence relating to RH being slightly less than that for the choking of TK. [120] These sentences would have totaled approximately six years, and I would be left with consideration of the totality principle. [121] I note that the defence made no submissions in regard to the choking convictions.

Their submission of a three-year sentence foreach of the sexual assault convictions appears to subsume the choking that was used by Mr. White to overcome the will of his victims.The choking is either aggravating to the sexual assaults (as I have found) or would have otherwise resulted in a separate, concurrentsentence. Choking cannot be ignored here. Robbery of TK [122] I will deal specifically with robbery of a prostitute where choking is involved when I sentence Mr. White for the robbery of SH.The robbery of TK by Mr. White was in addition to his sexually assaulting her.

She was victimized in a worse manner than was RH. [123] I agree with the Crown’s assessment that the robbery of TK on its own warrants a two-year sentence. This is a sentence thatshould be consecutive to the sentence above for sexual assault, although the totality principle must be considered. [124] The defence submission appears to assume that any sentence for the robbery of TK would be subsumed within the sexualassault sentence, likely as a concurrent sentence. I disagree with that position. TK was choked, sexually assaulted and robbed. RH was“only” choked and sexually assaulted.

Some additional consideration for the robbery of TK is required. SH [125] Robbery has a three-year starting point sentence, but only with respect to “unsophisticated armed robbery of unprotectedcommercial outlets in the absence of actual physical harm to the victim and with modest or no success”, following R v Johnas, 1982ABCA 331 , 1982 CarswellAlta 299 (ABCA) at para 19. [126] Robinson involved a robbery during which the victim was choked. The Court of Appeal imposed a four-year sentence for

choking, and a concurrent three-year sentence for the robbery. [127] It is significant that the four-year sentence imposed was after consideration of a guilty plea and pretrial custody. [128] Here, it is notable that Mr. White was not charged with a s 246(

a) offence relating to SH, but only with robbery and unlawfulconfinement. [129] In R v Kruse, 2004 ABPC 194, the accused was given a 12-month sentence for choking a prostitute while demanding hismoney back. The woman was also kneed in the face and the accused threatened to kill her. That was obviously a more egregious robberythan was the robbery by Mr. White of SH.

There, the accused had a criminal record and was on probation at the time of the offence.Meagher PCJ determined that the appropriate sentence was three years, but gave credit for a guilty plea and pre-trial custody. [130] It is clear that the circumstances in Robinson and Kruse were more egregious than the crime committed by Mr. White againstSH. It is also significant that Mr.

White was only charged with robbery in connection with SH and not with the additional offence ofchoking under s. 244(b). [131] I have a difficult time distinguishing between the Johnas’ starting point sentence of three years for an “unsophisticated armedrobbery of unprotected commercial outlets in the absence of actual physical harm to the victim and with modest or no success” and therobbery of a modest sum from a vulnerable victim who was choked by her assailant. [132] In the absence of any mitigating circumstances, I am of the view that a fit and proper sentence for the nature and circumstancesof the crime committed against SH is two years.

There is no starting point sentence applicable. Kruse involved a similarly-vulnerablevictim, although there were multiple convictions and choking was specifically charged. The crime against SH was brief in duration; shewisely complied quickly with Mr. White’s demands and was choked briefly. There were no lasting effects on SH, at least in the evidenceat trial. No victim impact statement was provided. [133] The defence submission for a six-month sentence is wholly inadequate. That ignores the manner in which the robbery wascommitted (by choking) and the vulnerability of Mr. White’s victim.

Summary of Sentences [134] I thus find the following sentences to be appropriate: Count 3 (SH) robbery - two years; Count 5 (RH) sexual assault - five years; Count 6 (RH) unlawful confinement – Kienappled; Count 7 (RH) choking – Kienappled; Count 8 (TK) robbery – two years, consecutive to count 10; Count 9 (TK) choking – Kienappled because of count 10; Count 10 (TK) sexual assault – five years; Count 11 (TK) unlawful confinement – Kienappled. [135] The sentences relating to each victim are imposed consecutively. [136] That means that Mr.

White is sentenced to two years relating to SH, five years relating to RH and seven years relating to TK. Totality [137] The totality principle is well dealt with in Clayton Ruby, Sentencing, 8th ed, (Markham ON: LexisNexis, 2012). [138] I considered totality in the context of the sentencing of Mr.

Walter, as he had been convicted of a number of offences involvingthree separate victims. [139] One factor to consider is whether the offences were committed over a similar period of time, such as a “crime spree”, as opposedto offences having been committed with no temporal connection. [140] Here, despite the times described in the indictment, the offences Mr. White was convicted of appear to have been committed infairly close temporal proximity to each other, as well as with the assault he was convicted of in December 2014. [141] The defence referred me to R v Leung, 2012 ABPC 158.

Although that was a drug sentencing, Semenuk PCJ referred to theneed to avoid a “crushing” sentence for the particular accused (at para 64). [142] He referenced R v CAM, (1996) (SCC), 105 CCC (3d) 327 (SCC), [1996] 1 SCR 500. In that case, theSupreme Court stated at para 74:

74 However, in the process of determining a just and appropriate fixed-term sentence of imprisonment, the sentencing judge should be mindful of the age of the offender in applying the relevant principles of sentencing. After a certain point, the utilitarian and normative goals of sentencing will eventually begin to exhaust themselves once a contemplated sentence starts to surpass any reasonable estimation of the offender's remaining natural life span.

Accordingly, in exercising his or her specialized discretion under the Code, a sentencing judge should generally refrain from imposing a fixed-term sentence which so greatly exceeds an offender's expected remaining life span that the traditional goals of sentencing, even general deterrence and denunciation, have all but depleted their functional value.

But with that consideration in mind, the governing principle remains the same: Canadian courts enjoy a broad discretion in imposing numerical sentences for single or multiple offences, subject only to the broad statutory parameters of the Code and the fundamental principle of our criminal law that global sentences be "just and appropriate". [ 143 ] There, the trial judge had sentenced the accused to a total of 25 years’ imprisonment. The Manitoba Court of Appeal had reduced the sentence to 18 years.

In reinstating the trial judge’s sentence, the Supreme Court stated at para 82: 82 As a closing note to this discussion, it is important to stress that neither retribution nor denunciation alone provides an exhaustive justification for the imposition of criminal sanctions. Rather, in our system of justice, normative and utilitarian considerations operate in conjunction with one another to provide a coherent justification for criminal punishment. As Gonthier J. emphasized in Goltz, supra, at p. 502, the goals of the penal sanction are both "broad and varied".

Accordingly, the meaning of retribution must be considered in conjunction with the other legitimate objectives of sentencing, which include (but are not limited to) deterrence, denunciation, rehabilitation and the protection of society. Indeed, it is difficult to perfectly separate these interrelated principles. And as La Forest J. emphasized in Lyons, the relative weight and importance of these multiple factors will frequently vary depending on the nature of the crime and the circumstances of the offender.

In the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a "just and appropriate" sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender. [ 144 ] In Walters , the consecutive sentences imposed totaled 20 years. The Crown argued for a global sentence, recognizing the totality principle, of between 15 and 18 years; the defence argued for 10 to 12 years.

At para 61, I concluded that the appropriate global sentence was 14 years. [ 145 ] There is no consistency in the approach to global sentencing, in that there has been no suggestion of percentage reduction.

At the end of the analysis, the Court is left to consider a fit and proper global sentence, recognizing all of the principles of sentencing. [ 146 ] In Alexander , the Court of Appeal noted the need to avoid a crushing sentence where the accused was not beyond redemption; a similar sentiment was expressed in Leung . [ 147 ] The Crown acknowledged during the sentencing hearing that the totality principle might apply and suggested a reduction of one to two years in that regard. [ 148 ] Mr. Beresh on Mr.

White’s behalf suggested that a reduction of one year would be appropriate in the context of the overall six- and-one-half-year sentence he argued was appropriate. [ 149 ] When I consider the circumstances of this case and of Mr. White, I must remind myself that the primary sentencing considerations here are denunciation and deterrence. I cannot lose sight of the vulnerability of Mr. White’s victims. [ 150 ] Yet he is relatively young, being 34 years old. He has a solid work history.

He has more than family support: he has family praise for the way he is raising his child and the assistance he provides to his grandmother. Despite the absence of any mitigating factors, I conclude that Mr. White is not beyond redemption. [ 151 ] As such, I consider it appropriate to reduce the 14-year total sentences to a global sentence of 10 years. Anything beyond that would, in my assessment, be a crushing sentence that is not necessary to satisfy the need for denunciation and deterrence. [ 152 ] From that sentence, Mr. White is entitled to credit for 719 days.

His net sentence is therefore eight years and 11 days effective January 12, 2016. Ancillary orders [ 153 ] Mr. White shall provide a DNA sample in accordance with s 487.051 (1) of the Criminal Code at such time and in such manner as required by correctional officials. [ 154 ] Mr. White is declared to be an offender under the Sex Offender Information Registration Act for life in accordance with s 490.012 of the Criminal Code . [ 155 ] These offences occurred before the victim fine surcharge was made mandatory. He has been in custody since conviction, and will remain in custody for a considerable period of time.

It is appropriate to waive the victim fine surcharge in this case. [ 156 ] Mr. White is prohibited from the possession of weapons for a period of 10 years pursuant to s 109 of the Criminal Code . [ 157 ] Exhibits were discussed at the sentencing hearing. Except as directed to be returned to Mr. White, all exhibits will be forfeited to the Crown at the expiry of the appeal period. Further matters

[ 158 ] If there are any further ancillary orders or administrative matters that need to be dealt with following this decision, I reserve jurisdiction to finalize the sentencing process. Heard on the 15 th day of December, 2015. Dated at the City of Edmonton, Alberta, this 12 th day of January, 2016. Robert A. Graesser J.C.Q.B.A. Appearances: Avril Inglis Alberta Justice and Solicitor General for the Crown B.A. Beresh, Q.C. and Ian Ross Beresh Aloneissi O'Neill Hurley O'Keeffe Millsap for the Accused