R. v. Jakupaj, 2018 NLSC 93

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Jakupaj , 2018 NLSC 93 Date : April 25, 2018 Docket : 201601G6143 Her Majesty The Queen v. LuLziM Jakupaj Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the persons described in this judgment as the victims shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Rosalie McGrath Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: March 28, 2018

Summary: The Offender was sentenced for two counts of sexual assault. He was sentenced to a two-month term of imprisonment for sexually assaulting a young female passenger in the taxi driven by him. The sexual assault included forceful kissing. He was sentenced to a twenty-month term of imprisonment for sexually assaulting another young female passenger in the home where he dropped her off. The sexual assault consisted of forceful kissing, forceful touching of the victim’s breasts and vaginal area outside her clothes, pulling down her pants and attempting to place his hands under her clothes. Both sentences are to be served consecutively. The Court also made ancillary orders. Appearances:

Dana E. Sullivan Appearing on behalf of the Crown Amanda J. Summers Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. A. (K.J.) (1988), (NL CA), 69 Nfld. & P.E.I.R. 99, 211 A.P.R. 99 (Nfld. (C.A.)); R. v.R. (W.), 2017 NLTD(G) 14; R. v. Jakupaj, 2017 NLTD(G) 120; R. v. Maxwell (1995), (NL SC), 132 Nfld. &P.E.I.R. 326 (Nfld. T.D.); R. v. Savard (1979), (QC CA), 3 W.C.B. 437, 55 C.C.C. (2D) 286 (Qc. C.A.); R. v. Singh,2012 BCSC 466; R. v. Dhindsa, 2014 MBPC 55; R. v. Aulakh, 2010 BCSC 1194; R. v. Torres, 2013 YKTC 5; R. v. Malik, 2012 BCSC502; R. v. Gill, 2015 BCSC 1907; R. v.

Azarsina; 2008 NUCJ 24 , [2008] N.J. 25, 2008 CarswellNfld 217 (N.L. Prov. Ct.); R. v.R. (F.T.), 2011 NLTD(G) 98; R. v. Anderson, 2011 NLTD(G) 51; R. v. Lidster (2015), 366 Nfld. & P.E.I.R. 267, 1144 A.P.R. 267 (N.L.Prov. Ct.); R. v. Branton, 2013 NLCA 61 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Sex Offender Information Registration Act, S.C. 2004, c.10 REASONS FOR JUDGMENT McGrath, J.: INTRODUCTION [1] The issue for determination in this proceeding is the appropriate sentence to impose on Lulzim Jakupaj (the “Offender”) fortwo sexual assault convictions.

On January 29, 2018, following trial, I convicted Mr. Jakupaj on two counts of sexual assault containedin the same Indictment filed on October 17, 2016. The first count for which Mr. Jakupaj was found guilty involved a sexual assault uponP.B. on or about March 31, 2016 while the second count involved a sexual assault against N.D. on or between March 21 and March 22,2016. Both P.B. and N.D. were young female passengers in a taxi driven by Mr. Jakupaj. [2] A sentencing hearing was held on March 28, 2018. No pre-sentence report was requested but Mr.

Jakupaj did speak to theCourt and provided a letter from an individual with Classification/Sentence Administration at Her Majesty’s Penitentiary (“HMP”). Neither victim availed of their right to file a victim impact statement. After hearing from counsel and Mr. Jakupaj, I set over thesentencing hearing to give my decision today. THE CIRCUMSTANCES OF THE OFFENCE [3] For sentencing purposes, I will provide only a brief synopsis of the facts underlying these offences.

The full details of thecircumstances surrounding the commission of these offences is contained in written reasons for conviction filed on January 29, 2018 as2018 NLSC 17. [4] With respect to Count No. 1, I found that in the early morning of March 31, 2016, Mr. Jakupaj committed a sexual assaultupon P.B. who was the lone female passenger seated in the front seat of his taxi cab. Mr. Jakupaj had driven P.B. home to Paradise, NLfrom the George Street area of downtown St. John’s, NL. When the taxi arrived outside P.B.’s home, Mr.

Jakupaj forcibly kissed P.B.and thrust his tongue inside her mouth, grabbing the back of her neck and pulling her towards him, all without her consent. P.B. pushedMr. Jakupaj away, left the vehicle and proceeded into her home. Mr. Jakupaj then drove away. [5] With respect to Count No. 2, Mr. Jakupaj drove N.D. and four friends from the George Street area of downtown, St. John’s,NL to a residence in Mount Pearl, NL, in the early hours of March 22, 2016. After all passengers had been dropped off at this residence,Mr. Jakupaj got out of his taxi and entered the home. [6] While both N.D. and Mr.

Jakupaj were passing on the stairs in the upstairs apartment at the residence, Mr. Jakupaj touchedN.D.’s breast outside her clothes without her consent. Shortly after N.D. left the upstairs apartment to speak with one of the group whohad gone to the downstairs apartment, Mr. Jakupaj followed. After entering the downstairs apartment, Mr. Jakupaj proceeded to askN.D. for a hug. She initially refused but reluctantly relented to a brief hug in order to ensure he left. It was then that Mr. Jakupajcommitted more acts of sexual assault upon N.D. In particular, Mr.

Jakupaj forcibly kissed N.D., placing his tongue in her mouth. Thesexual assault continued with Mr. Jakupaj touching N.D.’s breast and vaginal area outside her clothes, attempting to place his hand insideher clothes, pulling her pants down, touching her buttocks area, forcibly attempting to hug and kiss her, placing his arm against her throatand scraping his teeth against her cheeks, all while pinning her with his body to either the wall or a set of appliances. [7] During all this time. N.D. physically resisted and told Mr. Jakupaj to stop. The encounter ended when Mr.

Jakupaj left theresidence after a loud noise was heard, sounding as if someone was coming downstairs from upstairs.

GENERAL PRINCIPLES OF SENTENCING [8] In determining what is an appropriate sentence for this Offender and these offences, I must take into account the statutorysentencing principles set out in the Criminal Code. The

preamble to

section 718 states that the fundamental purpose of sentencing is theprotection of society and the contribution of sentencing, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society. A number of objectives are stated in an attempt to achieve this purpose. These include:

a) Denunciation of unlawful conduct and the harm done to victims or to the community at large that is caused by unlawful conduct;

b) general and specific deterrence;

c) the separation of offenders from society, where necessary;

d) rehabilitation of offenders;

e) reparation for harm done to victims or to the community; and

f) the promotion of a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [9] Another fundamental principle of sentencing is set forth in

section 718.1, providing that the sentence must be proportionate tothe gravity of the offence and the degree of responsibility of the offender.

Section 718.2 sets out a number of other factors I mustconsider in determining whether to increase or reduce the sentence having regard to aggravating or mitigating circumstances relating toboth the offence and the offender. This

section also articulates the parity principle that a like sentence ought to be imposed on similaroffenders for similar offences in similar circumstances. [10] In the case of sentencing for multiple offences, I must also consider whether the sentences to be imposed should be servedconcurrently or consecutively, having consideration to whether or not any of the offences relate to a single criminal adventure. Finally, Imust also consider and, if necessary, apply the principle of totality to ensure any combined sentence for any remaining consecutivesentences is not unduly long or harsh.

The atkins’ factors [11] The above principles apply to sentencing for all criminal offences. When applying these principles to the crime of sexualassault, courts in our Province have followed the decision of the Newfoundland Court of Appeal in R. v. A. (K.J.) (1988), (NL CA), 69 Nfld. & P.E.I.R. 99, 211 A.P.R. 99 (Nfld. (C.A.)) in which Goodridge, C. J. identified a number of factors assentencing guidelines.

The following have become known as the “Atkins factors”: 1) the extent of the assault...; 2) the degree of violence or force used; 3) the impact of the crime upon the victim, the family of the victim and the offender; 4) the degree of trust involved; 5) public abhorrence to the type of crime involved; 6) the attitude of the offender to what he has done and his plea; 7) the biological and psychiatric factors that lead to the commission of the offence; 8) the need for specific and general deterrence; 9) the prospect of successful rehabilitation; 10) the antecedents and age of the offender; 11) the time spent in custody prior to trial; and 12) sentences imposed by other courts in Newfoundland and elsewhere in Canada. [12] The list is inclusive, not exclusive, as all relevant circumstances of the case must be considered. 1) The Extent of the Assault

Count No. 1 [13] The Crown acknowledges that the offence committed against P.B. is at the low end of the spectrum for sexual assault. Count No. 2 [14] With respect to the offence committed against N.D., the sexual acts giving rise to the conviction were greater in number, degreeand duration than Count No. 1, placing the acts higher on the scale for sexual assault. 2) The Degree of Violence or Force Used Count No. 1 [15] While all sexual assaults are acts of violence, with respect to the offence committed against P.B., the force used was at the lowend.

The Offender grabbed the back of the victim’s neck and was forceful with the kiss and use of his tongue. However, he backed offwhen the victim pushed him away. Count No. 2 [16] The violence and force used by the Offender in the sexual assault of N.D. was greater. In particular, not only did the Offenderforcefully grope and kiss the victim while using his tongue, he used force to pin N.D. against the wall and appliances; he placed his armagainst her throat; and he braised her cheek with his teeth.

He also touched her breasts, vaginal area and buttocks outside her clothes,pulled down her pants to her buttocks and attempted to place his hands under her clothes. Unlike in the case of Count No. 1, he did notstop when N.D. resisted. 3) The Impact of the Crime Upon the Victim [17] In this case, neither victim filed a victim impact statement. However, I had the benefit of hearing their testimony at trial. Bothvictims requested and were granted the right to testify in another room. It was apparent that both victims were fearful of Mr.

Jakupaj andboth suffered anxiety arising not only from the sexual assault but also from the requirement that they give evidence in court recountingwhat had happened to them. [18] As noted by Stack, J. of this Court at paragraph 7 of R. v. R. (W.), 2017 NLTD(G) 14, no negative inference should be drawnfrom a failure of a victim to provide a victim impact statement. A Court can take note of the fact that a sexual assault is a traumaticexperience for the victim. 4) The Degree of Trust Involved [19] The Crown submits that a significant aggravating factor in this case is Mr. Jakupaj’s breach of trust.

The Offender committedsexual assaults against young, vulnerable female passengers who placed their trust in a taxi driver after consuming alcohol with friends. [20] The Crown refers to the decision of Whalen, C.J. of this Court in R. v. Jakupaj, 2017 NLTD(G) 120, dealing with a convictionagainst this same Offender for break and enter into a residence with intent to commit an indictable offence therein. At paragraph 62 ofthat decision, Chief Justice Whalen referred with approval to the decision of Roberts, J., as he then was, in the case of R. v. Maxwell(1995), (NL SC), 132 Nfld. & P.E.I.R. 326 (Nfld.

T.D.) at paragraph 6 which reads as follows: [6] The accused was clearly in a position of trust as a taxi driver. If we cannot trust taxi drivers in our community, then who can wetrust? We have no control over who comes to our door when we call a cab. I echo the words of Kaufman J.A. in R. v. Savard (1980), (QC CA), 11 C.R. (3d) 309, at pp. 311-312, a case referred to by the Crown: There is no doubt in my mind that taxi drivers (as, indeed others in similar occupations) occupy positions of trust.

Citizens must feel safein hailing cabs, especially at night (when this might be the only means of transport), and incidents of this nature must be prevented,insofar as it is within the power of the courts to do so. [21] At paragraph 63 of Jakupaj, Whalen, C.J. held that those words were equally applicable to the case before him in that citizensmust feel safe in hailing a taxi.

Taxi drivers therefore occupy a position of trust to their customers. [22] Sadly, there are numerous reported cases from other Canadian provinces in which a taxi driver has been sentenced forcommitting a sexual assault against a young and vulnerable female passenger. In all reported cases placed before me, sentencing judgeshave found the breach of trust by a taxi driver to be a significant aggravating factor. [23] One of the earliest reported cases is a 1979 decision of the Quebec Court of Appeal in R. v. Savard (QCCA), 1979, 3 W.C.B. 437, 55 C.C.C. (2d) 286 (Qc. C.A.). More recent cases include R. v.

Singh, 2012 BCSC 466, R. v. Dhindsa, 2014MBPC 55, R. v. Aulakh, 2010 BCSC 1194, R. v. Torres, 2013 YKTC 5, R. v. Malik, 2012 BCSC 502 and R. v. Gill, 2015 BCSC 1907. [24] In the British Columbia Supreme Court case of Malik, Blok, J. noted at paragraph 42 that, by reason of

section 718.01 of theCode, he had to give primary consideration to the objectives of denunciation and deterrence. In a case where the offender stands in aposition of trust in relation to their victim, that aggravating factor is a significant consideration when assessing those objectives. [25] Having heard testimony from both victims, it is evident that they rightfully viewed their actions as responsible and reasonablewhen they placed themselves in the care of a taxi driver to transport them to their destination. Mr. Jakupaj’s sexual assault of these

victims has shaken their faith and trust, leaving them with ongoing fear and anxiety. The Offender’s breach of the trust these victims placed in him as a taxi driver looms large as an aggravating factor. 5) Public Abhorrence to the Type of Crime Involved [ 26 ] Another aggravating factor is that it was not only these victims who placed trust in taxi drivers. The public has similar expectations.

The Crown says public abhorrence to this type of crime involving a breach of trust is even higher where an offender chooses young women under the influence of alcohol as his victims. [ 27 ] Canadian case law supports the Crown’s position that the sexual assault of young, vulnerable passengers by a taxi driver is deserving of the public outcry and abhorrence that ensues.

Members of the public are entitled to expect that young people will be free from harm when they place their trust in a taxi driver to bring them home after a night out with friends. [ 28 ] The impact of such crimes on the community was noted by Justice Dillon of the British Columbia Supreme Court at paragraph 4 of Singh : “The entire community feels at risk when the well used and relied upon safety of a taxi ride home after a night of drinking becomes a potentially predatory opportunity for sex assault”. [ 29 ] In the Manitoba Provincial Court case of Dhindsa , the court also noted the public’s high expectations.

At paragraph 11, in speaking of the trust placed in taxi drivers, the Court stated as follows: 11 …Their vehicles are seen as safety preservers, perhaps by a passenger being navigated through unfamiliar territory or an anxious parent not wanting a child to be alone on the street late at night. And then there is the publicly promoted use of taxis by those who are too intoxicated to get themselves home in safety. [ 30 ] Counsel for the Offender does not disagree that there is public abhorrence for this type of crime.

However, she asks that I consider that the range of actions constituting the offence of sexual assault is quite broad. The actions could range from a kiss to intercourse. She says the actions of Mr. Jakupaj are not at the high end of the spectrum and therefore would not warrant as high a degree of public abhorrence as in some of the cases referred to by the Crown. [ 31 ] Counsel for the Offender further disagrees with the Crown’s submission that Mr. Jakupaj chose his young victims.

I agree with counsel for the Offender that, in both counts before me, there was no evidence that the Offender targeted these young women in advance or lured them into his taxi solely for the purpose of committing a sexual assault. Evidence of that level of pre-meditation was not present. [ 32 ] However, that does not diminish the fact that there remains a high degree of public abhorrence to this type of crime. In this case, these two young victims entrusted a taxi driver to transport them to their destination after a night of drinking.

That is what their parents and other members of the community would encourage them to do. In sexually assaulting these passengers in any manner, the Offender not only breached the victims’ trust, causing them emotional and psychological harm, but he breached the trust the public placed in him. Public abhorrence is a significant aggravating factor. 6) The Attitude of the Offender to What he has Done and his Plea [ 33 ] As was his right, the Offender entered a plea of not guilty and was convicted following trial.

The absence of a guilty plea is not an aggravating factor but neither is it a mitigating one. [ 34 ] The fact that the accused did not testify is also not to be held against him. However, as Mr. Jakupaj did not testify I have little to consider when assessing his attitude towards what he has done. The Crown refers to the video of the Offender’s cautioned interview with police as evidence that Mr. Jakupaj does not appreciate the seriousness of his actions. I agree that Mr.

Jakupaj’s statements to police in that interview display a lack of insight into the nature of consent to sexual contact. [ 35 ] However, I must also consider Mr. Jakupaj’s statement to the Court at this sentencing hearing. This statement was made almost two years after the police interview. Mr. Jakupaj said that he truly felt sorry for the victims for whatever they have gone through. Mr. Jakupaj further stated in Court that he is regularly in the presence of females while in prison, without cameras present, suggesting he is a low risk to reoffend.

He has promised the Court that this will be the last time he is in prison as he has learned his lesson. [ 36 ] Mr. Jakupaj said he has been trying to work as hard as possible to ask for programming. This is confirmed in a letter from HMP referred to in more detail later in this decision. [ 37 ] I agree that Mr. Jakupaj’s statement to the Court and evidence of his requests for and participation in programming demonstrates a better attitude now than he displayed in his police cautioned interview.

However, the statement in Court was quite brief and did not demonstrate much insight into his responsibility for his actions.

I also do not have the benefit of a pre-sentence report. 7) The Biological and Psychiatric Factors that Led to the Commission of the Offences [ 38 ] No evidence has been presented to demonstrate the presence of any underlying biological or psychiatric factors. 8) The Need for Specific and General Deterrence [ 39 ] It cannot be disputed that a conviction for the crime of sexual assault carries with it the need to specifically deter the offender from committing similar offences as well as the need to deter other like-minded persons from committing similar offences. [ 40 ] In respect of specific deterrence, counsel for the Offender refers to the programming her client is taking in prison and his attempts to further his education.

Further, Mr. Jakupaj has promised the Court he will work hard to ensure this is his last time in prison.

Counsel for the Offender says further indicators that specific deterrence has or will be achieved are that Mr. Jakupaj will now be on the Sex Offender Registry for life, he has lost his livelihood and was previously sentenced to federal time away from his family. She says the Offender’s time in prison has delivered the message to him that he cannot reoffend. 9) The Prospect of Successful Rehabilitation [ 41 ] The Crown says that Mr. Jakupaj’s prospects of successful rehabilitation are uncertain. The Crown refers to the Offender’s conviction and sentencing for break and enter in 2017.

That offence occurred in May 2016, two months after the offences for which he is now being sentenced and before the charges now before me were laid. He has no other criminal convictions. [ 42 ] The Crown says Mr. Jakupaj has made a serious leap into the criminal justice system. The Crown further asks that I consider the fact that his prior conviction involved him picking up a young female passenger and breaking into the residence that was her final destination. When the passenger’s partner, who was present in the home, noticed the Offender’s entry and acted, Mr.

Jakupaj fled. [ 43 ] The Crown says that is a somewhat related consideration that I may take into account under

section 725 of the Criminal Code . Subsection (1)(

a) of that

section states as follows: Other offences 725(1) In determining the sentence, a court (

a) shall consider, if it is possible and appropriate to do so, any other offences of which the offender was found guilty by the same court, and shall determine the sentence to be imposed for each of those offences; [ 44 ] That subsection applies when an accused is being sentenced for multiple offences. However, Mr. Jakupaj has already been sentenced by this Court to a four-year term of imprisonment for break and enter with intent to commit an indictable offence. [ 45 ] While I am entitled to consider Mr.

Jakupaj’s personal circumstances, including the fact that he is currently incarcerated for an offence of break and enter, I must also take into account that, at the time of committing the break and enter, he had not yet been charged with the offences that are now before this Court. He therefore did not commit an offence involving a breach of the terms of his release while awaiting trial. It also cannot be said that efforts at rehabilitation for a prior conviction were unsuccessful. In light of the timing of the break and enter and the laying of the charges now before me, the matter for which Mr.

Jakupaj was sentenced in June 2017 has only limited relevance to the determination of an appropriate sentence for these offences. [ 46 ] For her part, counsel for the Offender acknowledges there is no pre-sentence report speaking to Mr. Jakupaj’s prospects of successful rehabilitation but she refers to Mr. Jakupaj’s statement to the Court as well as the above noted letter from HMP indicating that Mr. Jakupaj has requested and has undertaken programming while in prison. [ 47 ] Mr.

Jakupaj’s request for programming since his remand and federal time at HMP included school upgrading, participation in a social club and, most relevant to this offence, sex offender programming. The letter from HMP also indicates that Mr. Jakupaj had not been eligible for sex offender programming when he made the request. His counsel said this was because he had not yet been sentenced for these sexual offences. The letter from HMP further indicates that Mr. Jakupaj has attended psychological services, yoga, guided meditation and AA.

He is currently the inmate in charge of garbage removal and is enjoying this job. [ 48 ] The Offender has also promised the Court he will not reoffend. However, as noted above, at this point in time, I have little in the way of information from which to determine whether or the extent to which any past programming has met the objective of rehabilitation. I also have little information from which to assess Mr. Jakupaj’s reasonable prospects for rehabilitation.

I am of the view he could benefit from further programming, including sex offender programming that may now be available to him. 10) The Antecedents and Age of the Offender [ 49 ] Mr. Jakupaj is a 34-year old male who committed these offences at the age of 32. While Mr. Jakupaj is currently serving a four-year term of imprisonment imposed in June 2017, he had no criminal record at the time these offences were committed. He has no other convictions. [ 50 ] In respect of Mr.

Jakupaj’s personal circumstances, counsel for the Offender refers to the fact that the Offender worked as a taxi driver for three years without incident before these offences. He also worked as a translator. She also refers to the facts contained in the June 2017 sentencing decision involving this Offender. She asks that I consider that Mr. Jakupaj moved from Kosovo to Canada in 2007. For almost 10 years after his arrival in this country, he did not run into trouble with the law and had also been providing assistance to his father. Mr.

Jakupaj was also diagnosed with PTSD arising from his involvement in the Kosovo war at an early age. However, as in the case before Whalen, C.J., no evidence has been presented at this hearing to indicate that the Offender’s PTSD caused or contributed to the actions giving rise to the offences before me. 11) The Time in Custody Prior to Trial [ 51 ] All of the time that Mr. Jakupaj has spent in prison to date has either been remand time credited to him for the June, 2017 sentence or has been post-sentence time served in relation to that sentence. As a result, there is no pre-sentence remand time to credit.

12) Sentences Imposed by Other Courts in Newfoundland and Labrador and Elsewhere in Canada [52] The Crown filed extensive sentencing authorities in respect of sexual assaults. While the approach to sentencing must, ofnecessity, be carried out based upon a consideration of the circumstances particular to the offender and the offences, a consideration ofsentences imposed in similar cases is an important and relevant consideration.

Sexual Assault of P.B. – Count No. 1 [53] The Crown says a review of cases similar to the conviction involving P.B. indicates that 6 months is an appropriate sentence,while counsel for the Offender says that a sentence of between 30 and 60 days is more appropriate. I have noted the following as beingrelevant to the circumstances of the offence against P.B. [54] The Crown refers to the Newfoundland Provincial Court case of R. v. Azarsina, 2008 NUCJ 24 , [2008] N.J. 25, 2008CarswellNfld 217 (N.L. Prov.

Ct.), in which Provincial Court Judge Orr imposed a sentence of two months incarceration of anengineering graduate student who had kissed the breast of another university student while they were in an elevator on campus. Atparagraph 6 of that decision, Orr, Prov. Ct. J., found that while the extent of the assault was not the most serious in terms of the amountof force applied by the accused, it did involve direct, intimate contact as the victim was not simply touched, but was kissed. A mitigatingfactor was that there was little violence involved and the duration of the contact was brief.

An aggravating factor was the fact that thisunwanted contact occurred in a confined space, making the assault more frightening. This may have contributed to the significantimpact it had on the victim as reflected in her victim impact statement. [55] Of note is that Orr, Prov. Ct. J., found that there was no degree of trust involved as the parties were strangers to each other. However, public abhorrence would be high as the assault took place on a student at an educational institution.

Mitigating factorsincluded the fact that the Offender had entered a guilty plea at the earliest possible opportunity and expressed remorse.

Further, he hadno criminal record and was a relatively young person. [56] After reviewing the cases referred to by counsel and additional case authorities, the court was satisfied that the range ofsentence for this offence was between a suspended sentence and three months’ imprisonment, with the mitigating and aggravating factorsin each case determining where the offence falls within the range. [57] In the Newfoundland and Labrador Supreme Court, Trial Division decision of Faour, J., in R. v.

R. (F.T.), 2011 NLTD(G) 98,this Court considered an appeal of a sentencing decision of a Provincial Court Judge imposing a custodial sentence of six months plusprobation and other associated measures against a male accused who had sexually assaulted his 13-year old niece. This sentence was inexcess of the sentences suggested by both the Crown and Defence. At paragraph 11, Faour, J., described the conduct as the accusedkissing the girl on her lips with an open mouth and using his tongue on her lips. The victim did not open her mouth.

When she pulledaway, the uncle left and did not say anything. [58] In that case, the criminal record of the offender consisted of one conviction for indecent assault against a female approximately16 years earlier. Faour, J., found that the sentence imposed was disproportionate to what occurred, finding that the trial Judge placedundue emphasis on the aggravating factors of the harm done to the complainant as set out in the victim impact statement, the prior datedoffence, the trust relationship and the age of the complainant.

Balancing against those aggravating factors were the minor nature of theoffence, the remorse shown by the offender, the guilty plea and the length of time since the prior conviction. Faour, J. reduced thesentence to 34 days in custody, representing time the offender had already spent in custody pending appeal. [59] In another 2011 decision of this Court, R. v. Anderson, 2011 NLTD(G) 51, Stack, J. considered an appeal by an accused fromboth a finding of guilt as well as sentence in respect of a charge of sexual assault.

Stack, J. upheld the finding of guilt but allowed theCrown’s appeal in respect of the conditional discharge that had been imposed. In that case, the verdict was for three types of touching: “penetrative kissing, forceful holding and touching of the breasts and between the legs”. As this was an appeal decision, it did notcontain a detailed review of the evidence. However, the fact that the accused suggested the touching of the breast and between the legswas inadvertent and unintentional is indicative of it not being violent.

The accused also attempted to use his well-known position ofauthority in the community to intimidate the victim in an attempt to deter her from reporting the incident. The Court substituted aconditional sentence of three months, together with ancillary orders. Count No. 2 [60] In respect of the sexual assault of N.D., the Crown says that a sentence of two to three years is appropriate. Overall, shesuggests a global sentence for Counts No. 1 and 2 of 2.5 to 3 years consecutive to the sentence currently being served.

On the otherhand, counsel for the Offender submits that the appropriate range for this offence is anywhere between 5 and 18 months, with a globalconsecutive sentence for both counts of anywhere between 6 months and 20 months. Newfoundland and Labrador Decisions [61] In Maxwell, referred to above, Roberts, J., imposed a period of imprisonment of twenty months for unlawful confinement andtwelve months on a count of invitation to touch for a sexual purpose in respect of a taxi driver who pleaded guilty. The victim was a 14-year old girl in his taxi.

As he drove around Corner Brook while drinking four beer, he made suggestive remarks and overtures to her,asking the young girl to touch him and perform oral sex on him. During this time, the young girl cried and asked to go home. Roberts,J., held that the periods of incarceration should be served concurrently with each other, because the charges arose out of the sameincident, but consecutive to another sentence the offender was then serving. He also placed the offender on probation for three years. [62] In the Newfoundland and Labrador Provincial Court decision of Goulding, Prov. Ct.

J., (as she then was), in R. v. Lidster,(2015), 366 Nfld. & P.E.I.R. 267, 1144 A.P.R. 267 (N.L. Prov. Ct.), an offender was sentenced to 23 months’ imprisonment in respect ofa sexual assault that did not involve penetration or oral sex. The sentencing judge noted that even though there was no penetration, theact was extremely violent. The offender had ripped the sheets off the victim’s bed, tried to pull her by her feet from the bed, and forciblyremoved her pyjama pants and underwear. The victim fought back, falling into her bedroom wall and running to the bathroom to escape

the attack. The offender pursued her and broke down the bathroom door, punching her repeatedly. [ 63 ] Goulding, Prov. Ct. J., noted that the complainant, who was the offender’s roommate, was vulnerable at the time and brutal force was used in an attempt to overcome her resistance and have sex with her. At paragraph 31, Goulding, Prov. Ct.

J., held that “the sentence which I impose today must send a message that women in modern society, living in circumstances as the complainant here, must be protected by the law.” [ 64 ] In the Newfoundland and Labrador Supreme Court, Trial Division, case of R.(W.) , Stack, J. had occasion to sentence an offender who had been convicted of sexually assaulting his on-again, off-again partner. When the victim asked the offender to move out of her house, he returned the next morning. He pushed the victim through the house, eventually getting her down on the floor where he pulled down her pants and underwear.

He also tried to pull her legs apart in order to have intercourse with her. The incident ended when the victim’s mother arrived at the house and pulled the offender off the victim. The victim suffered some bruising, including on the insides of her thighs. [ 65 ] Stack, J. noted the range of sentences for sexual assault set forth by Hoegg, J.A. for the Court of Appeal in R. v. Branton , 2013 NLCA 61 , at paragraphs 40-46 .

In that case, Hoegg, J.A. referred to prior decisions of the Court of Appeal which set a range of sentences for sexual assault involving intercourse as anywhere between three years to seven years. She also noted that the range of sentence for serious sexual offences short of intercourse can be said to be lower than the range for offences involving intercourse. However, she stated as follows at paragraph 46: This does not mean that the top of the range of sentence for serious sexual assault short of intercourse is always lower than the low end of the range for sexual assault involving intercourse.

Nor does it mean that such a sentence should always be lower than the top of the range.

The particular facts and circumstances of an offence and an offender can always justify sentences both above and below the range, for sentencing ranges are guidelines, not rules, and "[a] judge can order a sentence outside [a] range as long as it is in accordance with the principles and objectives of sentencing" ( Nasogaluak , at para. 44). [ 66 ] In R.(W.) , the Court noted that the events as described by the victim, together with the bruising to the insides of her thighs, confirmed that but for her resistance, and ultimately the arrival of her mother, penetration would likely have taken place.

After considering all the aggravating and mitigating factors, Stack, J. imposed a sentence of 30 months, which he felt would appropriately denounce the crime, provide deterrence and account for the offender’s lack of remorse and history of offences as against the same victim. The court held that such a sentence would not be so long as to impede the offender’s prospects of rehabilitation.

Decisions from Other Provinces [ 67 ] In the Manitoba Provincial Court case of Dhindsa , an accused taxi driver was sentenced to a term of five months to be served in the community, subject to a series of conditions, followed by probation for two years. In that case, the accused had picked up a clearly intoxicated 18-year old female and offered her a ride. She responded by telling him that she had no money but he indicated he would drive her home regardless. The taxi driver kept reaching for and touching the victim’s breast and crotch area over her clothing while she protested.

After thirteen minutes, the victim was able to leave the taxi and go to a friend’s home. [ 68 ] In that case, the Provincial Court Judge had the benefit of a psychological assessment that the offender presented a low risk of reoffending and had embarked upon counselling at his own accord. Other mitigating factors were the offender’s timely guilty plea and lack of criminal record. However, one of the primary considerations of Judge Pollack appears to have been that the accused was a permanent resident as opposed to a citizen.

Based upon the law that applied at that time, he may have been deported from Canada if a term of imprisonment of more than six months was imposed. [ 69 ] In the British Columbia Supreme Court case of Malik , the victim was a 17-year old girl under the influence of alcohol. The 49- year old accused taxi driver had taken the victim back to his home and attempted to kiss her and have her perform oral sex on him but was unsuccessful in doing so. He also attempted to pull down the straps of her bra and dress. The victim was able to squirm away and escape.

In that case, the offender’s background and his family and community circumstances were otherwise spotless and, as Blok, J. said, might even be said to be exemplary. However, the Court felt that the offender had not demonstrated any true insight into his behaviour, nor had he demonstrated any remorse. The sentencing judge imposed a sentence of eighteen months’ imprisonment followed by two years’ probation. [ 70 ] In the British Columbia Supreme Court decision in Singh , the accused taxi driver was sentenced to two years less a day and twelve months’ probation for sexually assaulting a young female passenger.

The taxi driver took the victim back to his home, put her on his bed and placed his penis in her mouth. Due to her gross level of intoxication, she was unable to consent. The effect upon her was profound and caused lasting anxiety. Justice Dillon imposed a sentence of two years less a day. [ 71 ] Justice Dillon described the sexual assault that occurred as at the mid-range of offensive conduct within the range of conduct in sexual assault. She noted that there was no excessive violence and not a high level of premeditation.

The aggravating circumstances were the abuse of trust as a taxi driver in taking advantage of a very drunk female passenger. As well, the impact upon the victim had been extensive and profound. In mitigation was the fact that the accused had no criminal record, was young and had recently come to Canada. He had worked hard and realized the jeopardy that he had caused to his status in Canada. A psychiatric report was entered showing that he was at low risk to reoffend and he had expressed some remorse.

However, the Court was not convinced that he accepted full responsibility for his crime, nor did he fully recognize the harm that he had done. [ 72 ] The Crown has also provided me with the Yukon Territorial Court case of Torres , a decision of Cozens, C.J. Terr. Ct., in which a 41-year old taxi driver was sentenced for sexual assault committed against a highly intoxicated passenger with whom he had sexual intercourse. The offender had no criminal record and was a single parent.

Cozens, J. imposed a custodial sentence of 28 months. [ 73 ] In the British Columbia Supreme Court case of Gill , Justice Abrioux sentenced a 38-year old taxi driver who had sexually assaulted a female passenger in the early morning hours after she had fallen asleep in the taxi. The offender had touched the complainant’s leg and thighs. When she brushed his hand away, he pushed her underwear aside and digitally penetrated her, resulting in

vaginal tearing. The offender also grabbed the victim’s upper arm, pulling her towards him and tried to kiss her. [ 74 ] In sentencing Mr. Gill, Justice Abrioux reviewed case law from trial courts dealing with sexual assaults of passengers committed by taxi drivers. Relying upon these decisions, Justice Abrioux found that the low end of the sentence range was 18 months to two years less a day, while the higher end of the range, involving intercourse, was four to five years imprisonment.

Based upon the facts before him and a consideration of the aggravating and mitigating factors, including the physical injury to the victim’s vagina, the court imposed a term of imprisonment of three years. [ 75 ] The Crown also refers to another British Columbia Supreme Court case, Aulakh . In that case, the sexual assault committed by the accused was at the upper end of the range in terms of its severity. The taxi driver was asked to drive a 19-year old severely intoxicated female to an apartment where arrangements had been made for individuals to meet the taxi when it arrived.

During the ride, the victim was vomiting and lying down on the back seat. The taxi driver pulled over to a secluded area and vaginally penetrated the victim with either his penis or his fingers to the point where she suffered vaginal injury. He then dropped her off at the address he had been given. When the victim woke the next day, she began to recall some events and discovered the vaginal injury. An examination in hospital confirmed evidence of a sexual assault. In that case, the accused had also taken the victim’s debit card and made unauthorized withdrawals.

The accused had a criminal record consisting of prior convictions of theft and false pretenses. A sentence of four years’ imprisonment was imposed. [ 76 ] In the Quebec Court of Appeal decision in Savard , a taxi driver had raped a female passenger who had hailed a taxi outside a nightclub. The rape stretched out over a period of almost two hours. The accused was 31 years old at the time and had a record of prior convictions ranging from indecent exposure to theft, breach of probation and aggravated assault.

The court held that the sentence of 23 months that had been imposed by the sentencing judge, even when followed by probation for two years, was totally inadequate and varied the sentence to five years in prison. Appropriate Range of Custodial Sentence Count No. 1 [ 77 ] Having considered the case law submitted from this Province dealing with offences of a similar nature involving sexual assault at the low end of the spectrum, I find that the Crown’s suggestion of a sentence of six months for this offence in these circumstances is disproportionate to the gravity of the offence.

As noted by Provincial Court Judge Orr, the general range for the nature of that offence, i.e., a kiss on the breast while the two were in an elevator, was in the range of a suspended sentence to three months’ incarceration. Further, while Stack, J., did impose a three-month custodial sentence in Anderson , I note that the extent of the sexual assault in that case was somewhat more severe with some touching in addition to kissing.

The offender had also attempted to intimidate the complainant to deter her from reporting the incident. [ 78 ] In respect of the nature of the acts comprising the sexual assault, the circumstances are closer to that in R. (F.T.) in which a male accused in a position of trust had sexually assaulted his 13-year old niece by kissing her on the open mouth using his tongue. In that case, the accused was sentenced to 34 days. However, I do note that the offender had entered a guilty plea and shown remorse.

Count No. 2 [ 79 ] With respect to Count No. 2, a review of case law indicates a wide range of sentences for more serious sexual assaults. Such a wide range is to be expected in light of the individualized nature of the sentencing exercise and the need to consider mitigating and aggravating factors relating to both the offender and the offence. [ 80 ] While there is the case of Dhindsa in which a taxi driver was sentenced to five months for sexually assaulting a female passenger by touching her breasts and crotch area over her clothes, the low custodial sentence in that decision is somewhat of an outlier.

As well, of significance, is the apparent concern of the trial Judge to ensure that the offender received a sentence of less than six months to avoid his deportation. The trial Judge gave significant effect to the mitigating factors including the offender’s timely guilty plea, the fact that he had undertaken counselling of his own accord and the report deeming him to be at low risk to reoffend.

As well, there was no physical violence involved in that offence aside from the touching. [ 81 ] The other cases referred to above indicate a range of between eighteen months and five years, depending upon the mitigating and aggravating circumstances. The sentences at the high end of the range all involved sexual intercourse or vaginal penetration with other significant aggravating factors.

In Savard , the sexual intercourse had taken place over a period of two hours and in Aulakh , the victim had been almost unconscious at the time of the assault, only becoming aware of the assault because of her vaginal injuries. Similarly, in Gill , the victim suffered a vaginal injury. [ 82 ] In Maxwell , the accused taxi driver received a twenty-month sentence for unlawful confinement to be served concurrent to a twelve-month sentence for invitation to a young person to touch for a sexual purpose.

In that case, a significant aggravating factor was that the victim was a 14-year old girl who had cried and begged to be brought home. The offender kept her driving around in his taxi while drinking alcohol and encouraging her to perform fellatio on him. However, there was no evidence of sexual contact. [ 83 ] In the cases not involving taxi drivers, namely R. (W.) and Lidster , sentences of thirty-months and twenty-three months, respectively, were imposed for mid-range sexual assaults. However, these sexual assaults involved extreme violence and removal of the victim’s clothes.

As well, both victims suffered physical injuries. [ 84 ] The circumstances of the offence involving N.D. are closer to the acts giving rise to the offences in Malik and Singh . Mr. Malik was sentenced to eighteen months’ imprisonment followed by probation. The sexual nature of the acts were somewhat more serious as the offender unsuccessfully attempted to have the victim perform fellatio on him but the offender’s circumstances could have been said to be exemplary. The facts of the offence in Singh were also somewhat more serious with an unsuccessful attempt at oral sex.

However, there were mitigating factors of a report indicating a low risk to reoffend and there was a lack of violence. A sentence of two years less a day and twelve months’ probation was imposed. [ 85 ] Considering the range of sentences noted above, aside from Dhindsa , I would place Mr. Jakupaj’s actions as a taxi driver in sexually assaulting N.D. as toward the low end of the range that begins at eighteen months and goes up to five years for cases involving sexual intercourse.

Consecutive Versus Concurrent Sentences [ 86 ] These two convictions arise out of acts of sexual assault unrelated in time and place, involving different victims. It cannot therefore be said that these two convictions arise out of a single criminal adventure. As such, under normal principles of sentencing, the sentences for these assaults are to be served consecutively to the other and consecutive to the four-year sentence imposed on Mr. Jakupaj in June, 2017.

Totality [ 87 ] In any case in which consecutive sentences are imposed, a sentencing judge must consider whether the imposition of consecutive sentences would result in a combined sentence that is unduly long or harsh. This principle is set forth in

section 718.2 (

c) of the Criminal Code and is referred to in case law as the “totality principle”. Counsel did not address the issue of whether the consecutive sentences should be reduced to ensure the combined sentence is not unduly long or harsh. However, I have nevertheless considered this principle. I find that, in light of the relatively short length of the appropriate sentence I will impose in respect of Count No. 1 and the more serious nature of the conduct involving Count No. 2, a combined sentence for two sexual assaults involving breaches of trust is not unduly long or harsh. ANALYSIS AND

SUMMARY [ 88 ] I have carefully considered the submissions of the parties as well as the authorities filed by the Crown. There is no dispute that the objectives of denunciation and deterrence, both general and specific, are paramount when sentencing an offender for sexual assault. The fact that the Offender taxi driver was in a position of trust towards young and vulnerable female passengers is a significant aggravating factor when determining a sentence that appropriately addresses these objectives.

Such a sentence must promote a sense of responsibility in the offender as well as acknowledge the harm done to the victims and the community. [ 89 ] However, sentencing requires an individualized approach to both the offender and the offence. Mr. Jakupaj had no prior criminal record at the time these offences were committed. The Crown has asked that I consider that he was sentenced on a charge of break and enter with intent to commit an indictable offence in June 2017.

However, the acts giving rise to that conviction and sentence occurred two months after the offences now before me but before he was actually charged with these offences. The Offender’s prior conviction and current incarceration is therefore just one factor to consider as part of his individual circumstances but does not factor significantly into the objective of rehabilitation. [ 90 ] Other individual circumstances I have considered include the letter from HMP outlining programming requested by the Offender and programs in which he has participated. I have also considered the statement Mr.

Jakupaj made to the Court at his sentencing hearing, as it is relevant to his attitude and whether there are reasonable prospects of rehabilitation. However, I note that the letter and Mr. Jakupaj’s statement do not provide much information from which I can assess either of these two factors. I also have no way to assess whether, or the extent to which, any prior programming may have achieved the objective of rehabilitation. Further, I did not have the benefit of a pre-sentence report.

While I am hopeful the further programming that should be available to the Offender will meet the objective of rehabilitation, at this point, I cannot say that Mr. Jakupaj has demonstrated any significant degree of insight into his actions. [ 91 ] I also note that there is little in the way of mitigating factors.

There was no guilty plea and no evidence of any underlying biological or psychiatric factors. [ 92 ] In considering the individual circumstances of the offences, I have also considered all submissions and case authorities put before me in order to determine a sentence that is appropriate to the circumstances of each offence. While sexual assault is a violent crime that causes long-lasting psychological harm to victims, I must also recognize that sexual assault encompasses a wide range of conduct.

A sentence must be proportionate to the gravity of the offence. [ 93 ] With respect to Count No. 1, the acts consisted of a forceful kiss with the use of the tongue. Those actions are at the low end of the spectrum for sexual assault. I find that the six months recommended by the Crown is disproportionally severe and outside the range of sentence imposed on similar offenders for similar offences committed in similar circumstances.

Having considered all relevant aggravating and mitigating factors of this Offender and this offence, I find that a sentence of two months’ imprisonment is an appropriate sentence. [ 94 ] With respect to Count No. 2, the actions giving rise to the offence were more serious. I would describe the actions, including the forceful kissing, groping the breasts and vagina outside the victim’s clothes, and attempting to remove the victim’s clothes and touch her under her clothes as being on the lower end of the mid-range on the scale of sexual assault.

There was also violence used in carrying out this sexual assault including forceful pinning of the victim against a wall and appliances as well as the pressing of his arm against her throat. Considering all aggravating and mitigating factors of this Offender and this offence, in light of sentences imposed in similar circumstances by other courts, I find that a sentence of twenty months is an appropriate sentence. [ 95 ] Both sentences are to be served consecutively to each other and to the sentence the offender is currently serving for break and enter with intent.

No probation order has been requested and, in these circumstances where the offender has and will continue to serve a lengthy period of imprisonment with access to programming, I will not impose such an order. The following ancillary orders are also imposed in respect of each offence.

Ancillary Orders DNA [ 96 ] A DNA order in Form 5.03 is made pursuant to

section 487.051(1) of the Criminal Code as sexual assault is a primary designated offence within the meaning of

section 487.04 (a). Firearms’ Prohibition [ 97 ] A

section 109 order is also mandatory. A firearms prohibition order will be issued against Mr. Jakupaj for life as set out in

section 109 of the Criminal Code whereby he will be prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance commencing today. [ 98 ] Within seven days from today’s date, Mr. Jakupaj shall surrender any of these items currently in his possession, together with the related authorization, licence or registration certificate. Sex Offender Registry [ 99 ] Mr. Jakupaj is subject to a lifetime order in Form 52 pursuant to sections 490.012(1) and 490.013(2) (

c) of the Criminal Code in respect of the Sex Offender Information Registration Act , S.C. 2004, c.10. Prohibited Contact Order [ 100 ] Pursuant to

section 743.21(1) of the Criminal Code , during the custodial period of the sentence imposed, the Offender is to have no contact, directly or indirectly, with the victims. Victim Surcharge [ 101 ] A victim surcharge is imposed in the amount of $200.00 per offence pursuant to section 737(2) (b)(ii) of the Criminal Code . DISPOSITION [ 102 ] For committing two sexual assaults the Offender is sentenced to incarceration for two months in respect of the sexual assault of P.B. and twenty months in respect of the sexual assault of N.D., together with ancillary orders referred to above.

Both sentences are to be served consecutively to each other and consecutive to the sentence currently being served by the Offender. _____________________________ Rosalie McGrath Justice