R. v. Chandra Date:, 2012 BCPC 543

Citation: R. v. Chandra Date: 20120824 2012 BCPC 0543 File No: 184359-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SUDESH CHANDRA REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A.E. ROUNTHWAITE Counsel for the Crown: P. Bhatti Counsel for the Defendant: M.S.A. Fox Place of Hearing: Surrey , B.C. Date of Hearing: August 10, 2012 Date of Judgment: August 24, 2012

[ 1 ] Sudesh Chandra has pleaded guilty to sexual assault, an offence under

section 271 of the Criminal Code . Crown counsel, Ms. Bhatti, says that he should receive the maximum sentence of eighteen months in jail, followed by probation for three years. His lawyer, Mr. Fox, says that Mr. Chandra should serve an eighteen-month jail sentence in the community under a conditional sentence order with a lengthy probation order to follow. [ 2 ] The issues I must decide are: 1. whether a conditional sentence order is available to Mr.

Chandra; 2. if so, whether it is an appropriate sentence in this case; and 3. if not, what is the appropriate jail term? [ 3 ] For the reasons explained below, I have decided that a conditional sentence (“CSO”) is available, but that it is not appropriate for Mr. Chandra because it would not be consistent with the principles of sentencing set out in sections 718 to 718.2 of the Criminal Code , and in particular the objectives of denunciation and deterrence. I have decided that he requires a jail sentence of sixteen months followed by three years probation. [ 4 ] I will now explain how I reached these conclusions.

The first issue is a legal issue involving statutory

interpretation and rules of grammar. Readers not interested in those topics may wish to skip to page 5. Is a conditional sentence order available to Mr. Chandra? [ 5 ] There are two procedural routes by which a sexual assault under s. 271 of the Criminal Code may be prosecuted. Crown counsel must choose whether to proceed “summarily” (using a shorter, simpler procedure with a lower maximum penalty) or to proceed “by indictment” (using a longer procedure that involves a preliminary hearing to determine whether there is sufficient evidence for a trial, as well as a higher maximum sentence). In this case the Crown chose to proceed summarily. [ 6 ] The current [1] wording of the

section of the Criminal Code that provides for CSOs creates an issue as to whether a CSO is available for sexual assault where the Crown has chosen to proceed summarily as it has done here. Since 2007

section 742.1 of the Criminal Code has restricted the offences for which a CSO is available as follows: 742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 , the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s compliance with the conditions imposed under

section 742.3. [ 7 ] It is clear that sexual assault is a “serious personal injury offence.” However, the punctuation in

section 742.1 gives rise to an issue of whether CSOs are precluded for all serious personal injury offences or only those prosecuted by way of indictment. Provincial court decisions have gone both ways. In one-paragraph reasons on this issue in R. v. Thompson [2] , Justice Maresca of the Ontario Court of Justice decided that the phrase “prosecuted by way of indictment...” modifies all three types of offences with the result that a CSO is available for a serious personal injury offence such as sexual assault when it is prosecuted summarily. On the other hand, in R. v.

Nguyen [3] Judge Bagnall of the Provincial Court of British Columbia disagreed and found the placement of commas and separating words meant the phrase “prosecuted by way of indictment...” applies only to terrorism and criminal organization offences. Thus she concluded that a CSO is not available for a sexual assault whether it is prosecuted summarily or by indictment. [ 8 ] In clear, thorough and erudite written submissions, Mr. Fox argues that a CSO is available and I should not consider myself bound to follow Judge Bagnall’s decision. The Crown took no position on this issue. Citing various style manuals, Mr.

Fox submits that both judges’

interpretations of

section 742.1 are grammatically correct because use of a penultimate comma in a series of items (an “Oxford” or “serial” comma) is a stylistic choice. He argues that since both

interpretations are correct, the statute is ambiguous and the ambiguity should be resolved in favour of Mr. Chandra for two reasons.

[ 9 ] First, there is ample authority for the principle that ambiguities in penal statutes should be resolved in favour of accused persons. [4] Second, the rules of statutory

interpretation require courts interpreting bilingual statutes to consider both versions. Where one is ambiguous, the other may provide a plain and unequivocal meaning that should be adopted. The French version of

section 742.1 reads as follows: 742.1 S’il est convaincu que la mesure ne met pas en danger la sécurité de la collectivité et est conforme à l’objectif et aux principes énoncés aux articles 718 à 718.2, le tribunal peut ordonner à toute personne qui, d’une part, a été déclarée coupable d’une infraction autre qu’une infraction constituant des sévices graves à la personne au sens de l’article 752, qu’une infraction de terrorisme ou qu’une infraction d’organisation criminelle, chacune d’entre elles étant poursuivie par mise en accusation et passible d’une peine maximale d’emprisonnement de dix ans ou plus, ou qu’une infraction pour laquelle une peine minimale d’emprisonnement est prévue et, d’autre part, a été condamnée à un emprisonnement de moins de deux ans de purger sa peine dans la collectivité, sous réserve de l’observation des conditions qui lui sont imposées en application de l’article 742.3, afin que sa conduite puisse être surveillée.

This contains no ambiguity and makes it clear that the phrase ” chacune d’entre elles étant poursuivie par mise en accusation” modifies all three types of offences because of the placement of a comma after “organisation criminelle” and the words “chacune d’entre elles” meaning “each of them.” [ 10 ] The principle of stare decisis requires a judge to follow the decision of another judge of the same court unless subsequent decisions have affected the first judgment’s validity; or it does not consider a relevant statute or binding authority; or it was given in circumstances that prevented full consideration of all the issues.

Mr. Fox submits that I should not follow Judge Bagnall’s decision because she was not referred to the French version of

section 742.1 and because the principle of stare decisis may be less rigidly applied where liberty is at stake. [ 11 ] While I have not had the benefit of argument to the contrary, I find Mr. Fox’s argument persuasive. I accept that the French version of

section 742.1 is unambiguous; that the English version should be interpreted to be consistent with the plain meaning of the French; and that I should not follow Judge Bagnall’s decision because the French version was not before her. Mr. Chandra’s liberty is at stake, and both the French version and the amendment that will come into force in three months reveal Parliament’s intention to make CSOs available for serous personal injury offences, including sexual assaults, when they are prosecuted summarily. [ 12 ] For these reasons I accept the defence submission that a CSO is available for Mr.

Chandra’s sexual assault. I will now explain why I conclude that it will not satisfy the principles of sentencing in this case. I s a conditional sentence order an appropriate sentence in this case? [ 13 ] The sentence I impose must be proportionate to the seriousness of the offence and the offender’s degree of responsibility. The facts of this sexual assault make it a serious offence. During the evening of September 2, 2010, Mr. Chandra sexually assaulted the tenant of the basement suite in his family’s house, a woman I will refer to as Ms. A in order to protect her privacy.

He was living upstairs with his parents and sisters. Ms. A let Mr. Chandra into her suite when he offered to help with her computer. When she asked him to leave he agreed but did not do so. Instead, he blocked her exit from the room and asked to touch her breasts. When she refused, said she could be his mother, and told him to leave immediately, Mr. Chandra threw her down on her bed, got on top of her, grabbed her breasts, and covered her mouth when she shouted for help. She is petite and he is thirty years younger than she.

She tried to bite his hand when he grabbed her throat but was not strong enough to fight him. He flipped her onto her back and sucked and kissed her nipples, then pulled down her pants and underwear and digitally penetrated her. When he put his tongue in her mouth she bit it and it bled. Ms. A begged for mercy but Mr. Chandra said he wanted to hug and kiss her and asked if she loved him. He then stood up, took out his penis, and said “You will have sex with me or I will kill you”. After she begged him to let her go she was able to run for the door and out of the suite. Mr.

Chandra did not pursue her but went upstairs. Ms. A called a relative and a friend and asked them to call police. [ 14 ] When police arrived, Ms. A was crying. There were red marks on her face and Mr. Chandra’s blood on her shirt, bed and floor. Eyeglasses were found on the bedroom floor and an earring was found on the bed. Ms. A was taken to hospital and then to a police station. She gave a statement but was too traumatized to answer questions that night. About twenty minutes after police arrived at the suite, Mr. Chandra called police and reported that Ms.

A had kissed him and sucked his tongue before he told her to stop. [ 15 ] Ms. A was 56 years old at the time of the assault, a very religious woman who was celibate and had never had a sexual relationship with a man. Her victim impact statement written in March 2012 outlines the devastating effect the assault has had on her. She feels sad, anxious, embarrassed, irritable, unsettled, distracted, disoriented, and forgetful; she feels isolated and spiritually disconnected; she feels she has lost her dignity and the ability to trust; she can’t sleep or eat normally and feels as if she is sick all the time.

She missed work after the assault due in part to her embarrassment that others would know about it. When interviewed by Crown counsel nineteen months after the assault she sobbed uncontrollably. When contacted by the probation officer preparing a pre-sentence report twenty-two months after the assault she was emotionally distraught and had difficulty conversing. She continues to use the services of a women’s centre with a support worker. The devastating impact of the offence on all aspects of her life is on-going. [ 16 ] Mr. Chandra’s circumstances, outlined in his lawyer’s submissions; the report of Dr.

Kathy Lewis, a psychologist with Forensic Psychiatric Services; the Pre-sentence Report of Probation Officer Deepak Gill; and letters of support from his father and cousin; can be summarized as follows. He was 26 at the time of the offence and is now 28. He has no criminal record. He lives with his parents and has had short-term jobs. He obtained a forklift operator’s licence and a class 5 driver’s licence after the offence, and found fulltime work in a warehouse on March 27, 2012. He is currently on unpaid medical leave from the warehouse job following a car accident on May 4, 2012.

He has been on bail since the offence and has had no other criminal charges, assists his father with chores, and participates and volunteers at his temple. [ 17 ] English is Mr. Chandra’s second language: he came to Canada from Fiji in 2002. Because of some language difficulties, the results of the psychological testing may not be entirely accurate. However, he did not complete high school and scored low on the intellectual tests. Dr. Lewis diagnosed him as suffering from alcohol dependence in full remission (based on self-report); major

depressive disorder, chronic; and personality disorder not otherwise specified with schizotypal and borderline personality traits . She reported that he would have a low to moderate risk to reoffend: low as long as he abstains from alcohol and addresses mental health concerns; moderate if he does not. However, she noted that much of her assessment was based on self-reported information from Mr. Chandra that had not been directly corroborated from other sources, and the reliability of her assessment depends on the accuracy of that information. [ 18 ] Mr.

Chandra says he was drinking heavily the day of the offence, and Ms. A said his breath smelled of alcohol. While alcohol may have lowered Mr. Chandra’s inhibitions as his lawyer suggests, he bears a significant degree of responsibility for his actions. He knew Ms. A was not consenting to sexual contact with him; he used threats and violence to overcome her resistance; and his telephone call to police making a false accusation against Ms. A indicates he knew he had done wrong and was attempting to blame her. Mr. Chandra was an acquaintance of Ms. A, the son of her landlord.

She let him into her suite because of that relationship and his offer to help her with her computer. While I do not consider the circumstances to constitute abuse of a position of trust within the meaning of Criminal Code

section 718.2(a)(iii), Ms. A trusted Mr. Chandra and he took advantage of that trust by assaulting her in her home, a place where she should have been able to feel safe. [ 19 ] Mr. Fox suggests the most likely explanation for the offence is that Mr. Chandra made an awkward, inappropriate sexual advance and continued to try to force himself on the victim for a few moments, eventually coming to his senses and ending the assault by not preventing her from fleeing. This characterization significantly understates the admitted facts. Mr.

Chandra confined the victim, used force, violated her bodily integrity in several ways, and threatened to kill her after she begged for mercy. The fact that he eventually let her flee does little to mitigate the harm he did, particularly when he made a false statement blaming her a short time later. [ 20 ] With regard to his abuse of alcohol, Mr. Chandra told the psychologist he was hospitalized at 21 and 23 for alcohol poisoning and decided to be an alcoholic when he was depressed at age 26 in the months before the offence.

However, he says after his arrest his parents said he would not be welcome in their home unless he stopped drinking, and he has done so for about a year. A letter from his father states that he has quit alcohol for the past eighteen months. [ 21 ] Mr. Chandra has said he is sorry and ashamed but he has shown little insight into the offence and has made other statements that are not consistent with heartfelt remorse. He has given different accounts of the offence at different times.

In addition to his statement to police shortly after the assault blaming the victim, he told the psychologist that he felt frustrated because Ms. A told him her computer was not working when it was; that he slapped her face because he was annoyed and then sexually assaulted her. When speaking to the psychologist, he also denied digitally penetrating his victim and choking her, as well as other details of the allegations he admitted in court. He also told the probation officer he became angry when he thought Ms.

A had lied about her internet not working, and said he is frustrated at her when he thinks about his charges and contact with the criminal justice system. Moreover, he does not deny telling the probation officer that he continues to fantasize about the victim daily and masturbate up to three times a day; although he denies continuing to fantasize about her and says that that it was before the offence when he did this. Defence counsel suggests that Mr.

Chandra’s confusion about the circumstances may result from his being intoxicated at the time of the offence, his intellectual challenges and his language difficulties, but I note that Mr. Chandra’s conflicting accounts all contain an element of blaming the victim. [ 22 ] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances. The aggravating factors in this case are the use of threats and force and the devastating impact on a vulnerable victim. The mitigating factors are Mr.

Chandra’s lack of criminal record, his performance on bail for two years with no charges for disobeying bail conditions or other offences, the moderate to low risk assessment combined with his abstention from alcohol since the offence, and his stated willingness to participate in rehabilitative programmes. [ 23 ] His guilty plea was entered shortly before trial: it spared Ms. A from testifying although not from the stress of awaiting trial and preparing to testify. Mr. Fox explained that the plea was not made earlier because it took a long time for Mr.

Chandra to understand everything necessary to make an informed decision about his plea. In these circumstances I consider the guilty plea to have slight, but not significant, weight as a mitigating factor. [ 24 ] All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. Here the lawyers agree that a jail sentence is required, and the maximum sentence permitted by the Criminal Code is eighteen months. However, an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and

section 742.1 permits me to order the sentence to be served in the community under a conditional sentence order if I am satisfied of two things: first, that this would not endanger the safety of the community; and second, that it would be consistent with the principles of sentencing set out in sections 718 to 718.2 of the Criminal Code . [ 25 ] I accept the defence’s submission that Mr. Chandra meets the first condition. He is likely to be able to serve a sentence in the community under strict conditions without endangering the community.

However, the more difficult issue is whether a CSO would be consistent with sentencing principles. [ 26 ] A sentence should be similar to those imposed on similar offenders for similar offences committed in similar circumstances. The lawyers provided a number of sentencing decisions to guide me. The Crown submits that R. v. Singh [5] is a case similar to this one. There, a B.C. Supreme Court judge sentenced a taxi driver to two years less a day in jail for a sexual assault in which the driver took an intoxicated passenger to his home and engaged in fellatio without consent.

However, a CSO was not available in that case because the Crown proceeded by indictment, so the issue I must decide was not considered by the judge. [ 27 ] Defence counsel provided several cases in which CSOs were imposed for sexual assault: R. v. V.(R.W.) [6] - where a former member of the armed forces suffering from alcoholism and PTSD broke into his ex-wife’s home while intoxicated and had intercourse using force and without her consent. In “the unique circumstances of this case” a CSO of two years less a day was imposed by a BC Supreme Court judge in 2006.

R. v. L.K.C. [7] – in which a father who fondled his daughter’s breasts on three access visits while she was under the age of fourteen was sentenced to a one year CSO by a BC Provincial Court judge in 2006. R. v. Kain [8] – here, a man had sexual intercourse with an acquaintance while she was asleep. Both individuals had been drinking and the victim was traumatized by the offence. The trial judge found that because the accused lived in a small community everyone would know about his conviction and sentence, so a CSO for two years less a day with strict house arrest would have a deterrent effect.

In 2004 the Alberta Court of Appeal upheld the sentence, finding no error on the part of the sentencing judge. R. v. Tuffs [9] - in which an accused who had been consuming alcohol sexually assaulted a sleeping woman who suffered emotional trauma as a result. The assault was described as “isolated, fleeting and not gravely invasive.” In this 2011 case a Saskatchewan Queen’s Bench judge imposed a suspended sentence with eighteen months probation. R. v.

A.O. [10] - where a one year CSO was imposed in a 2006 case involving use of force in non-consensual intercourse with a former girlfriend who suffered emotionally as a result, requiring medication to sleep. The Ontario Court of Justice judge concluded that sixty- four days of pre-trial custody and eight and a half months of bail with conditions tantamount to house arrest had contributed sufficiently to deterrence and denunciation to make a CSO appropriate. R. v.

B.S.S. [11] - in which a BC Provincial Court judge sentenced an alcoholic accused to a six month CSO for forcible intercourse with his wife and a less serious assault. The Crown did not strenuously oppose a CSO and the victim was opposed to a jail sentence in this 2006 case. [ 28 ] The offenders in these cases had no criminal record; most were intoxicated during their offences; and most had taken steps to rehabilitate themselves after their offences. However, there is significant variation in the circumstances of the offences and sentencing is an inherently individualized process.

In the cases cited the nature of the assaults, the offenders’ circumstances, and those of the victims differed from the circumstances of this case. The cases show that CSOs and even probation have been imposed by Canadian courts in a range of sexual assaults, but I must consider whether a CSO would be consistent with the principles of sentencing in the particular circumstances of this case. [ 29 ] Those principles require me to impose a just sanction with one or more of the following objectives: (

a) to denounce 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 and to the community. The most important objectives in this case are denunciation and deterrence, rehabilitation, providing reparations, and promoting responsibility and acknowledgement of harm. [ 30 ] Rehabilitation can be addressed in or out of custody. Treatment programmes for sex offenders are available both in the community and in a provincial correctional centre, and these programmes would not only contribute to Mr.

Chandra’s rehabilitation, but should also help him to understand and acknowledge the harm he has done and take responsibility for it. He can abstain from alcohol in either setting. While a custodial sentence may increase the risk for self-harm arising from his depressive disorder, correctional facilities can take steps to reduce the risk. [ 31 ] Mr. Chandra is not in a position to make reparations whether or not he is in the community: there is no way he can compensate Ms.

A for the harm he has done her, and the combination of his intellectual challenges and inability to do physical work due to a car accident seems likely to pose difficulties in finding community work service for him that would provide meaningful reparation. [ 32 ] In R. v. Proulx [12] , Chief Justice Lamer said that incarceration will usually provide more denunciation and deterrence than a CSO. However, he observed that a CSO can provide significant denunciation, particularly when onerous punitive conditions are imposed and the CSO is longer than the jail sentence that would otherwise be imposed.

He also cautioned that general deterrence should not be given undue weight. [ 33 ] Defence counsel suggests that Mr. Chandra serve a CSO under house arrest in the family home in which the offence was committed, confined to the home except to attend work and treatment for the first portion of the sentence, and then be subject to a curfew. He submits that the Fijian community is a small one in which a CSO would have a significant deterrent and denunciatory effect,

and that Mr. Chandra’s family’s shame, expressed in his father’s letter, would add to this. However, the impact of this offence is not confined to the Fijian community. Ms. A is not a member of that community, and the need to deter and denounce a sexual assault of this nature is not limited to any one ethnic community. [ 34 ] Taking into account Mr. Chandra’s circumstances, because of the gravity of this offence and the devastating impact on the victim, I consider the need for denunciation and deterrence to be so pressing that incarceration is the only suitable way to express society’s condemnation of Mr.

Chandra’s conduct and to deter others from similar acts. A CSO cannot accomplish these sentencing objectives, no matter how onerous its terms. Nor would it achieve the fundamental purpose of sentencing, contributing to respect for the law and the maintenance of a just, peaceful and safe society. I therefore conclude that Mr. Chandra must serve his sentence in jail. What is the appropriate term of imprisonment? [ 35 ] How long should the sentence be? Despite the seriousness of this offence, the mitigating factors mentioned on page 10 and Mr.

Chandra’s circumstances, including intellectual challenges, psychological disorders, and a supportive family, lead me to conclude that sixteen months in jail is the appropriate sentence. The jail sentence will be followed by three years probation to facilitate reintegration and follow-up sexual offender maintenance programming. [ 36 ] There will also be orders for a ten-year firearms prohibition under Criminal Code

section 110; taking samples for the DNA databank under

section 487.051; and an order to comply with the Sex Offender Information Registration Act for ten years under

section 490.012(1). [ 37 ] I direct that it be endorsed on the warrant of committal that I endorse the recommendation of the Forensic Psychiatric Services Commission psychologist that Mr. Chandra’s risk for self-harm or suicide be monitored regularly and that he be seen by a psychiatrist to assess the possible benefits of antidepressant medication. A.E. Rounthwaite Provincial Court Judge [1] Shortly after the sentencing hearing on August 10, Mr. Fox submitted a written addendum indicating his understanding that s. 34 of Bill C-10, amending s. 742.1 to resolve the ambiguity, was proclaimed in force on August 9.

However, it is my understanding that November 20, 2012 is the date on which s. 34 comes into force, and the Privy Council website précis cited by Mr. Fox appears to confirm that: Order in Council PC 2012-0841: Order pursuant to

section 208 of the SAFE STREETS AND COMMUNITIES ACT,

chapter 1 of the Statutes of Canada 2012 fixing the COMING INTO FORCE dates as (1) the day on which the Order is registered for sections 205 to 207;

(2) AUGUST 9, 2012 for sections 10 to 31 and 35 to 38;

(3) OCTOBER 23, 2012 for sections 167 to 203;

(4) NOVEMBER 6, 2012 for sections 32(1), 33, 39 to 47, 49 and 50; and

(5) NOVEMBER 20, 2012 for

section 34. I will therefore proceed on the basis that the clarifying amendment has not yet come into force. [2] R. v. Thompson, 2010 ONCJ 399

[3] R. v. Nguyen, 2012 BCPC 97 [4] R. v. McIntosh, (SCC), [1995] 1 SCR 686; R. v. S.T., 2009 BCCA 274; and R. v. Branton, (ON CA), 2001 154 CCC (3d) 139 [5] R. v. Singh, 2012 BCSC 466 [6] R. v. V.(R.W.), 2003 BCSC 1806 [7] R. v. L.K.C., 2006 BCPC 118 , 2006 BCPC 0118 [8] R. v. Kain, 2004 ABCA 127 [9] R. v. Tuffs, 2011 SKQB 441 [10] R. v. A.O., 2006 ONCJ 117 [11] R. v. B.S.S., 2006 BCPC 135 , 2006 BCPC 0135 [12] R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61