R. v. L.M., 2011 ONCJ 387

Sault Ste. Marie COURT INFORMATION No. 1013 Citation: R. v. L.M. , 2011 ONCJ 387 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) David Kirk, ) for the Crown ) — AND — ) ) ) L.M. ) Ross Romano, ) for the accused ) ) ) ) HEARD: March 1, 2011 kukurin j. [ 1 ] This is a sentencing decision. The offender was charged with ten separate offences. The details are as follows: Offence Date Offence Type Offence Details Plea 1. 16 April 2010 Breach Recog. Abstain communication with victim G 2. 16 April 2010 Breach Recog. Remain 100 m. from victim’s home G 3. 16 April 2010 Breach Recog.

Access to child only by family court order G 4. 18 April 2010 Breach Recog. Abstain communication with victim G 5. 18 April 2010 Breach Recog. Remain 100 m. from victim’s home G 6. 18 April 2010 Breach Recog.

Not molest, harass, interfere with victim G 7. 18 April 2010 Sexual assault on victim NG 8. 18 April 2010 Utter threat to victim to kill victim NG 9. 18 April 2010 Break and Entry to victim’s home NG 10. 18 April 2010 Theft Under of victim’s laptop computer G [ 2 ] Following a trial, the offender was found guilty of sexual assault [s.271], uttering threat [section 264.1(1)(a)] and breaking into residence and committing sexual assault [section 248(1)(b)].

Written Reasons release December 14, 2010 set out some factual background of the offender, the victim, the offences and the basis for the findings of guilt. [ 3 ] At the commencement of the sentencing submissions, counsel for the Crown requested the court to stay the charge of break and entry and commit sexual assault because of the finding of guilt on the sexual assault offence. [1] [ 4 ] These offences took place almost one year ago. The accused has been detained in custody throughout this time.

However, he was also detained on other charges arising from incidents that predated the offences to which the present sentencing relates. In addition, he has apparently been twice sentenced since last year and received some credit for part of the time he has been detained in custody. Counsel agreed, that for purposes of this sentencing, the offender should be entitled to a credit of 232 days as of March 1, 2011. As the case has been adjourned to April 12, 2011, for the imposition of sentence, he will, by that date, have amassed a further 42 days, for a total credit against sentence of 274 days.

I accept the jointly presented submission on this aspect of sentence. [ 5 ] That is the extent of the joint position with respect to sentence for this offender. The Crown is seeking a sentence of time served plus four years of imprisonment as a global sentence on the nine offences. The offender initially intended to argue for a conditional sentence of imprisonment to be served in the community.

However, he concedes that a conditional sentence is not available. [2] Accordingly, his submission is that an appropriate global sentence is two years less a day, less a credit of 274 days (approximately nine months) for his pre-trial detention. [ 6 ] From the pre-sentence report commissioned following the findings of guilt, come the brush strokes that paint the portrait of who this offender is today. The Children’s Aid Society had involvement in his birth family over concerns about neglect, lack of supervision, and parental alcohol abuse. His mother died of cardiac problems in 2003, when he was about 17.

He and his father, who was a drinker, became estranged. He dropped out of high school having earned only 15 credits, and joined a travelling carnival. He lived for a time in Brantford, Ontario. In 2006, he had his first adult encounter with the criminal justice system. He drifted out to Vancouver later in 2006 where he partied, engaged in mischief, and was introduced to cocaine and crystal meth. In 2009, he returned to his hometown to a family

catastrophe. Both his father and his younger brother perished in a house fire. He then had another half-year stint in Vancouver where he was abusing drugs on a daily basis. Eventually, he returned to Ontario back to his hometown. He has been using marijuana since age 12 and reported a usage frequency of three times per week before he was detained. He also drinks alcohol. [ 7 ] The offender was diagnosed with ADHD over a decade ago. He was initially prescribed Ritalin but this was discontinued after medical suspicions that he was abusing this medication. He made some ineffectual attempt to upgrade academically.

He has had a few short term jobs, mainly labour, over the years. He has relied primarily on social assistance. He has no assets, no savings, and no prospects. He also has no debts. [ 8 ] The offender has grief issues that he has not addressed. In addition to losses of family members, he has also lost three close friends, one in a motor vehicle fatality, and two to suicide. The loss of his relationship with the victim is another source of grief, but not as great as he claims is the result of his being cut off from his daughter H. (and his ex-partner’s older child, S.).

He has been treated in his present custodial facility for depression. He has been referred to a psychiatrist and is on a waiting list. [ 9 ] The offender’s relationship with the victim appears to be yet one more of his life’s enterprises that went south. The relationship was marred by infidelity, fiscal mismanagement, domestic conflict (including violence and police involvement on occasion), eviction and Children’s Aid Society intervention. Overlaid on this blissless domesticity was the offender’s alcohol and drug use.

According to the offender’s maternal grandmother, one of his few family supports locally, his anger is exacerbated when he uses alcohol. [ 10 ] The offender has a dismal, perhaps even abysmal, record of compliance with court imposed conditions and restrictions. He did not comply with the reporting condition of his 18 month probation order imposed in 2006. This led to a breach of probation conviction the following year. He has already been convicted and sentenced on two separate breach of undertaking charges in August 2010 and December 2010.

Of the nine charges for which he is now being sentenced, six are for breaches of recognizance. It is a bit of a dilemma to decide if this offender is obstinate, or if he is simply obtuse. One inference that I do make is that he has a distain for the authority of the criminal justice system. I am very sceptical that he will comply with any conditions imposed on him. Consequences do not appear to have dissuaded him from breaching in the past. Perhaps this sentence will. [ 11 ] In

summary, the offender is genuinely an unfortunate in what life has thrown his way. But he is also the author of his own misfortunes in many ways. His prospects for a successful life are poor. He hasn’t a great deal of insight into his own personal problems. Addressing these is integral to his future success. He has a bad record of compliance with authority and virtually no record of positive accomplishments. He denies culpability for the offences on which he was found guilty, including after trial.

His stated intention is to pursue his paternal relationship with his child H., and he contemplates relocating, when released, to live close to the child – and necessarily, to the child’s custodial parent who is the victim of the present offences. As far as can be determined, he provides no financial support for this child. [ 12 ] There exists no penal table, no sentencing grid in our judicial system. Sentencing is a “profoundly subjective process”. [3] As stated by the Supreme Court of Canada in R. v.

Proulx [4] : “... individualization of the sentencing process through the judicial exercise of a broad discretion by the trial judge is the central feature of the sentencing process in Canada.” The exercise of judicial discretion in sentencing is guided by principles and objectives set out in the Criminal Code . The application of these principles to the specific facts of a case is expected of the court. The end result of the process is expected to be a fit sentence. “Trial judges are give a very wide discretion to determine the appropriate disposition in each case.

In exercising that discretion, Parliament provides guidance by way of the broadly worded objectives and principles in

Part XXIII of the Criminal Code . Trial judges must apply those objectives and principles to the specifics of each case and, in the exercise of their discretion, fashion a sentence that is tailored to the circumstances of the offence and the circumstances of the offender.” [5] [ 13 ] Unfortunately, broadly worded sentences don’t work. Sentencing an offender to imprisonment “for a long time” or imposing a “short, sharp sentence” doesn’t quite meet the demands that society has of our judiciary. What is expected is a positive integer in units of days, months or years for custodial (or non-custodial) sentences.

This quantification requires something more in terms of guidance than broad principles. That guidance comes in the guise of judicial precedent or case law, particularly that decided at appellate levels. statutory principles of sentencing [ 14 ] With the abandonment of any argument for a conditional sentence, the primary issue distils down to the appropriate length of a custodial sentence of imprisonment. [6] [ 15 ] Sentencing principles for adult offenders are set out in

section 718, and following, of the Criminal Code . There does not seem to be much disagreement that the offence of sexual assault in this case is a serious personal injury offence, and an offence of violence. It is very common for such offences to result in sentences of imprisonment (incarceration). The main objectives of these custodial sentences are generally for deterrence, not only of the offender, but also of others in the community who might think twice before engaging in similar conduct.

It is also for denunciation of such unlawful conduct, thereby expressing the opprobrium of society. [ 16 ] Yet another objective, although of slightly lesser priority, is the objective of rehabilitation, particularly where the offender is young or immature and not yet a confirmed recidivist. Most offenders eventually return to society following custodial sentences, so it is in society’s long term interests to encourage rehabilitation.

Until that reintegration back into the community, the offender is separated from society, which is, in itself, also a legitimate objective of sentencing. [ 17 ] All of these foregoing objectives will be enhanced if the offender undergoes an attitude change, namely, if he or she

develops a sense of responsibility for the harm done to the victim specifically, and to the community generally. [ 18 ] The principle of proportionality requires the court to consider both the offender and the offence. The oft quoted aphorism is that the maximum sentence is reserved for the worst offender and the worst offence. It is necessary to consider what the evidence in this case is with respect to both the offender as well as the offence. [ 19 ] The offender in this case is not the worst by a wide margin.

He had two unrelated adult convictions (in January 2006 and October 2007) when the offences to which this sentence relates were committed. However, he was hardly a stranger to criminal justice. He had a record as a youth for offences in 2003 and 2005 for which he received probation. Perhaps the worst that can be said of him is that the present offences were committed at a time when he was already charged with other offences involving the same victim and at a time when he had been released on specific bail conditions designed to keep him away from her.

Although his record discloses no drug offences, his own admissions in the pre-sentence report confirm fairly recent periods of serious illegal drug use which may have tapered down to less serious (but still illegal) drug use even to the present. In short, the accused is no angel, but he is not a career criminal.

More to the point, his offences thus far have not been offences of violence, and have not been committed in a sexual context. [ 20 ] The sexual offence for which he is being sentenced, on the other hand, falls at the high end of the spectrum of offences included in the rather generic term “sexual assault”. In days gone by, what the offender did was called “rape” – forcing a woman to have sexual intercourse against her will. He did this twice on the same night. This kind of sexual assault has been recognized by our highest court [7] to be a grave and serious act of violence.

In the hierarchy of sexual assault offences, it is considered as a major sexual offence. [8] [ 21 ] In this case, the Crown proceeded by way of indictment on all charges. The offence of sexual assault, prosecuted by indictment, carries a maximum sentence of imprisonment for a term not exceeding ten years. [9] [ 22 ] There are other statutorily mandated principles of sentencing set out in the Criminal Code that the court must consider prior to the imposition of a sentence. Prominent among these is

section 718.2(a) [10] of the Code. The use of the word “should” in this subsection does not eliminate judicial discretion; rather, it gives a very clear indication that the court has a responsibility to exercise that discretion, and even more, provides guidance on how that discretion should operate in the exercise of determining a sentence.

Reducing or increasing a sentence to factor in circumstances relating to an offence is a concept that presupposes that there is some starting point, or, at least, a temporal range within which sentences for such offences should fall. [ 23 ] In the present case, as with most custodial sentences, increase or decrease is principally with respect to length – that is the temporal duration of the sentence. There is a list of features that are deemed to be aggravating. There is no corresponding list of mitigating features.

Nor is there any suggestion of any relative priorities among whatever of these circumstances that may be found to exist in a particular case. The Criminal Code does not pretend to quantify the impact on sentence that any such circumstances may have. The end result is that a sentencing judge has to consider mitigating and aggravating circumstances, if any, but has a lot of leeway in how he or she uses these in determining a proper sentence. [ 24 ] In the present case, there are several mitigating factors. Most of these relate to the offender rather than to the offences.

His relative youthfulness, his lack of a record for offences of violence, his lack of any previous conviction for a sexual offence, his ADHD with all of the symptomology inherent in that condition, his misfortune in the death of both parents, a sibling, and three friends, with the unresolved grief that appears to plague his life, are all factors that are mitigating, in varying degrees, with respect to sentence.

His guilty pleas to six of nine offences are also mitigating, although less so, as these were to breaches of bail conditions that were never disputed, were easily proved, and did not obviate the necessity of having the victim testify, or otherwise shorten the trial process. [ 25 ] Unfortunately, the aggravating circumstances are more numerous and considerably more serious. A deemed aggravating circumstance exists statutorily when the offender abuses his or her spouse or common-law partner. The Crown argues that this should be interpreted to include a “former” common-law partner or a “former” spouse. I agree.

In fact, in many cases of domestic violence, the parties have, in fact, separated and the perpetrator is unable to accept that the relationship is over. [11] It seems incongruous that an offence against a spouse/common-law partner on the day before separation would be considered statutorily aggravating, and the same offence the day after separation would not. [ 26 ] It would not be appropriate or fair to include the gravity of the offence in “circumstances relating to the offence” for purposes of

section 718.2(a). That has already been considered in terms of the principle of proportionality in

section 718.1. However, apart from the inherent seriousness of the offence itself, there are a number of circumstances in which it was committed that I do consider to be aggravating. [ 27 ] First, and perhaps foremost, is where these offences took place, and how that came to be. The location was the victim’s own home. I have rejected the offender’s contention that he was invited there by the complainant. Why I did so is explained in my Reasons released December 14, 2010. My finding after trial was that the offender broke into and entered the victim’s home without her invitation or consent to do so.

This is not what may be considered as the classic home invasion, but it is very close. It is worthwhile to note that I found the offender guilty of the offence of break, entry and commit under section 348(1)(b), and this was in relation to a dwelling house. The maximum penalty for such an offence, if proceeded with by indictment, is imprisonment for life.

While I may be staying this charge, and will not be imposing a sentence on this charge, the factual underpinnings are certainly available as circumstances relating to the other offences on which I am pronouncing sentence. [ 28 ] Close on the heels of location are temporal considerations. The offences took place sometime between 2 a.m. and 4 a.m. in the early morning hours when most people are asleep. But it is not just the time of day that is relevant to this consideration. It is also the duration of the incident, which was rather prolonged, spanning a period of two hours.

I have already adverted to the fact that the sexual assault incident was really two incidents, one repeated shortly after the other ended. [ 29 ] While the nature of the sexual assault is relevant to the gravity of the offence, the circumstances in which it was committed are relevant to

section 718.2(

a) considerations for sentencing. In this case, I have found there was physical force utilized by the offender and this resulted in physical injuries to the victim, apart and aside from the physical and psychological harms occasioned by non-

consensual sexual intercourse. I am referring to scratches and bruises on the victims arms, back and face as a result of the force used by the offender in restraining and controlling her. [ 30 ] Associated with this violence was the offender’s threat verbalized to the victim. While this may be the basis for a completely separate offence, it nonetheless forms part of the overall circumstances and it is aggravating. The purpose of the threat was to dissuade the victim from making a report of what had taken place to the authorities. The offender did more than that, however.

He disconnected the phone lines and took the portable phones away with him, presumably to isolate the victim even more. He also took away her computer. [ 31 ] Another feature that is clearly aggravating is the presence of two very young children in the home while these offences were taking place. The offender knew that they would be there. His infant daughter, in fact, was in the same room where his violence took place. It matters little to the finding of an aggravating circumstance that the child may have been too young to appreciate what was going on.

The other child fortunately did not awaken, but easily might have done so, and might easily have been exposed to what I surmise would have been a very traumatizing tableau of violence. [ 32 ] Perhaps the most aggravating aspect of these offences, at least from the perceptive of the community and the justice system, is the deliberate disregard of the offender for authority. On April 18, 2010, he was already facing a charge of threatening this very same victim.

He was subject to bail release conditions prohibiting him from not only keeping at least 100 metres away from her home, but also from associating and communicating with her. Despite these prohibitions, he had been communicating with her, by telephone, and face-to-face, when he went to her residence on April 16, 2010. On that occasion, he removed the child H. and took her away with him. This prompted police involvement.

Knowing that there was a warrant issued for his arrest for doing all these things, he not only did not surrender to the authorities, but he went back to the victim’s home and repeated these very same breaches on the 18 th of April. [ 33 ] Finally, there are aggravating aspects to the sexual act itself in the following aspects: - There were two separate acts, not just one, and involved vaginal intercourse, - The offender ejaculated during the second episode of intercourse. - The offender used no contraceptive protection thereby putting the victim at risk of possible pregnancy. - The sexual assault was committed despite the victim’s pleas to stop, as well as her active resistance when the offender would not stop. - The offender’s manual masturbation to achieve an erection and his ejaculation are indications of his motives of sexual gratification and sexual dominance. [ 34 ] In

summary, the aggravating features greatly outweigh the mitigating features in this case. Whatever the sentencing range may be for a sexual offence of this nature, the net result of considering aggravating and mitigating factors is an increase of the sentence that would otherwise be considered appropriate. jurisprudence on sentencing [ 35 ] What length of custodial sentence would be appropriate here? In Ontario, there is no “starting point” per se . In R. v. Arcand , the Alberta Court of Appeal, in granting a Crown appeal against sentence, spent a great deal of time discussing sentencing tools for trial courts.

Among its comprehensive reasons was substantial comment on the desirability of judicial establishment of starting point sentencing, particularly where there is a potential for a large disparity between sentences imposed for a particular crime because the range of sentence set out in the Criminal Code is so broad. [ 36 ] The “starting point” approach to sentencing is not binding in Ontario, although some jurists [12] have expressed some favourable comment on the reasons in Arcand . What is very common in appellate decisions on sentencing is the use of the term “range of sentence”.

Indeed, appellate courts often uphold sentences that they consider to be “in the range”, and overturn sentences that are “outside the range” – either too high or too low. [ 37 ] In the present case, what is possible as a custodial sentence is from one day to ten years. The real issue is where the appropriate range (or appropriate starting point if one prefers to use this approach) is located in the span of ten years. [ 38 ] A “range” of sentence has two important aspects. The first is where it is located in the continuum of potential sentences.

The second is the breadth of the range. [ 39 ] To locate the range, it is first necessary to categorize the particular offence in the case before the court in some way. For Example, a sexual assault could, at one extreme, consist of touching a female breast through clothing, and at an opposite extreme, may involve full vaginal penetration. [ 40 ] In this case, there is no question in my mind that the sexual assault in this case was a major sexual assault. Major sexual assault includes, but is not limited to, non-consensual vaginal intercourse. This was a grave and serious act of violence.

I would place the range of sentence for this offence in this case at two to five years imprisonment. I choose this spread of three years to represent the span of the range mainly to establish an initial upper and lower border for this type of offence, a border that can be adjusted to take into account mitigating or aggravating circumstances. [ 41 ] The location of the range is not arbitrary. There are numerous appellate decisions in this province that have dealt with

sentences for similar kinds of sexual assaults. [13] One of the closest in terms of the actual facts is R. v. D.J. , a very recent decision in the Ontario Superior Court of Justice, in which a three year sentence was imposed. [14] [ 42 ] What is apparent from a review of jurisprudence in this province relating to sentence for major sexual assaults is that sentences for the most part seem to start in the low penitentiary range (i.e. two years).

They also seem to fall in the lower third to middle of the ten year span that is possible for this kind of offence (i.e. two years to four years). [ 43 ] Having regard to the offence and the offender in this case, I gauge an appropriate length of imprisonment to be 36 months for the offences of April 18, 2010. These include the sexual assault, threatening, theft of the victim’s computer, and three breaches of recognizance on that date. The mitigating factors would reduce that by eight months to 28 months.

The aggravating factors would increase that by 12 months to 40 months. [ 44 ] The offences of April 16, 2011 are breaches of three separate conditions of the same recognizance of bail. These offences were committed on a different day, in a different situation, and in a different context. Logically, there is good reason to impose a sentence on these three offences that is consecutive to the sentence for the April 18, 2011 offences. However, there is a totality principle that the court is mandated to apply.

These April 16, 2011, offences would warrant a sentence of six months taking into account the circumstances in which they were committed. Should another six months behind bars be added to these forty months that I have already decided to be the proper length of sentence for this offender? I don’t think so. Forty months is long enough to meet the overall objectives of sentencing for a relatively young offender.

The sentences on these April 16, 2011 offences will be made concurrent. [ 45 ] The offender is entitled to a credit against sentence for his time in pre-trial detention on these charges that has not otherwise been allowed as a credit to him against other sentences. That amounts to 274 days as of the date of imposition of sentence. This is equivalent to 9.13 months. I am inclined to give him a credit rounded off to ten months for his pre-trial detention time. [ 46 ] The global sentence for all nine offences is 40 months against which will be set off a credit of 10 months for time in pre- sentence detention.

The final sentence is for 30 months allocated as follows: - sexual assault 30 months - utter threat 30 months concurrent - theft under 30 months concurrent - breach of recognizance x 3 30 months concurrent on each - breach of recognizance x 3 6 months concurrent on each Total 30 months [ 47 ] There will be a stay of the charge of break and entry and commit sexual assault. [ 48 ] In all of the circumstances there will be no victim fine surcharge on any of the sentences imposed. Released: April 12, 2011 _____________________________________ Justice John Kukurin, Ontario Court of Justice [9] S. 271.

(1) Every one who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; [10] 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances;