R. v. M.B.M.M. Date:, 2015 BCPC 2

Citation: R. v. M.B.M.M. Date: 20150113 2015 BCPC 0002 File No: 230073-1-K Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. M.B.M.M. EXCERPTS FROM PROCEEDINGS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. ST PIERRE BAN ON PUBLICATION 486.4(1) CCC; 486.4(2) CCC; RESTRICTED ACCESS Counsel for the Crown: S. Black

Counsel for the Defendant: K. Westell Place of Hearing: Vancouver , B.C. Date of Hearing: January 13, 2015 Date of Judgment: January 13, 2015 [ 1 ] THE COURT: M.B.M.M. today is being sentenced for two offences that were committed on March 14th, 2013. The original charge on Count 1 is an aggravated assault of N.S., but the plea is under s. 606(4) of the Code . The plea was to s. 272(1)(c), which is a sexual assault causing bodily harm. Then there was a plea taken under Count 2 which is colloquially known as unlawful confinement of N.S., as well.

That is under s. 279(2) of the Criminal Code . [ 2 ] We started this matter on March 18th of this year, scheduled for a preliminary hearing. We commenced that preliminary hearing. N.S. is the victim in this case. She testified in chief, but was not cross-examined. Those pleas that were just mentioned were entered after N.S. had testified in chief. Identification was not an issue because she knows the accused. [ 3 ] They first met about four-and-a-half years ago. They started to date each other. After about three months, they became a monogamous couple. They lived together for some period of time.

He had even moved back to Montreal for a period of time and they still remained together. They broke up according to her evidence, around the beginning of 2012 and he moved out of the house in about April of 2012, but they were, I suppose the proper characterization is, off and on. They would at times get back together. [ 4 ] At the beginning of February 2013 he moved out his belongings. She testified she was very straight with him, that even though she would see him from time to time, that she was dating other people.

She suspected that he was not accepting that arrangement with any great facility and that he was still upset about the break-up of the relationship. [ 5 ] Around March 14th, 2013, the offence date, she was seeing another individual and she testified that M.B.M.M. actually knew this individual, but she was not quite clear whether M.B.M.M. knew about this relationship. On March 13th, a day before the offence, M.B.M.M. texted her and said he wanted to meet up with her again. She initially resisted that request but later she agreed to meet him. [ 6 ] They met around Commercial and Broadway.

They went out for drinks at Toby's Pub. She, at that meeting, told him that she was tired of the emotional roller coaster that their relationship seemed to be on and she said that he seemed to agree with that characterization and so she thought that it was understood that the relationship was generally over at that stage and that they would remain friends. [ 7 ] In fact, he asked her to stay at her place that evening because he had to work next day Downtown and he lived out in Port Coquitlam at that time and she lived in the city. They left the pub. They grabbed a bottle of wine to take home with them.

She said that she consumed about another half glass of wine when she got home. They smoked a marihuana cigarette. They got into bed together. They ate dinner, watched a movie. It seemed to be the kind of, I suppose, relationship where both remained friends and both were still close with each other, but they were not in a romantic relationship. She said that she eventually fell asleep. [ 8 ] Initially, she was actually wearing what are called Jeggings, I guess they are kind of like yoga pants, and he was making advances. She resisted.

Then apparently something inside of M.B.M.M. snapped and he got very angry at her and he accused her of "getting it" from other places and she told him that she just wanted to go to sleep at that time. [ 9 ] She eventually fell asleep and woke up with him tying her hands up and he was straddling her and tying her hands up with a scarf. He demanded answers from her. He wanted to know if she had been having sex with this other person that they both knew. He called her all manner of names.

He showed her text messages from her phone with this other individual that she had been seeing. [ 10 ] He started to assault her. He hit her in the face. He was straddling her. He eventually grabbed some scissors and cut her clothes off. He cut off her underwear. He turned her over and raped her. He moved her around from different positions sexually assaulting her. He forced her to engage in oral sex with him. While he was conducting some of these horrific activities, he was filming them with a cellphone and threatening use of those videos. [ 11 ] She was understandably extremely distraught.

At that time, she was a small woman. She was 115 pounds and he is a large man. There was a period of time he tried to penetrate her anally, but she screamed. She was being hit. He started to pull the clothes out of her closet and cut those up, as well, calling them "whore clothes." He threatened to stab her in her stomach. He cut all of her underwear and bras. [ 12 ] She was trying to find a way to escape and asked to go to the bathroom. He followed her into the bathroom. He, at that point, did penetrate her anally. All of this, obviously, with no consent from N.S. She was yelling.

She was trying to tell him to stop, but she knew that there was a -- she lived in a basement suite and she knew there were seven and eight-year-old girls upstairs with a couple that she knew quite well and she was more worried about them than she was about herself at that point. [ 13 ] He eventually poured alcohol on her. After that obtained a laptop and posted a Craigslist ad advising anyone who subscribes to these ads that N.S. was happy to have sex with them and wanted to engage in fantasies about males raping her. He showed her those ads. He threatened to rape her sisters.

He told her he was going to turn her into a "crack whore" and obtained what appeared to be some foil and a small white nugget which appeared to be crack. She had never seen it before. I note eventually that it was determined it was not crack cocaine. At least that is the information that was received. [ 14 ] After that, he took her back to the bedroom and retightened her restraints. Throughout this whole time he is assaulting her, he has head-butted her a couple times, he is hitting her about the face and, at other times, he is appearing to be exhibiting some concern for

her by petting her and calling her sweetheart and things of that nature. [ 15 ] It is now hours and hours after the initial attack, about 6:00 a.m., when N.S. could hear the neighbours waking up upstairs. She now let out a very loud scream. She started to scream for help. M.B.M.M. punched her several times and told her to "shut the fuck up," and he started to choke her. She kicked a couple of holes near the bed.

He told her he had to go out, and told her not to call the police. [ 16 ] He told her that he was going to set up a "ghetto booby trap" and he basically tied her to the pedestal table and set up a -- sounds like some candles around the table with some flammable liquid containers that were opened and placed around the table so that if she tried to get away from the table, it would cause the flammable liquid to ignite.

He left, ostensibly, to go find this other fellow that she had been having the relationship with and, when he did so, she managed to escape, went to the upstairs' neighbours, called the police, and M.B.M.M. was eventually arrested. [ 17 ] She suffered two black eyes. She has got a broken nose. There are bruises. There is vaginal damage, damage to her anus. Her back and neck were sore. She had surgery to repair a deviated septum. She suffered obvious emotional damage. She suffered from suicidal thoughts afterwards.

She was very traumatized. [ 18 ] After her evidence, M.B.M.M. instructed his counsel to enter pleas of guilty to those offences that I have talked about and the matter was put over for sentencing. On July 17th of 2014, there was a request for a private psychiatric assessment or risk assessment to be done and the matter was put over again to December 5th for sentencing where sentencing submissions were made. [ 19 ] The Crown noted that the offences were of the utmost seriousness, that the aggravating factors are numerous and significant.

I do not really need to go over them because just by one recounting the facts of this incident, you have enumerated the aggravating factors. It is a sexual assault that involves a greater degree of harm than many. [ 20 ] Obviously, deterrence and denunciation are the most important factors in this case, but also, because M.B.M.M. comes before the court with no criminal record, rehabilitation cannot be ignored. They were in a romantic relationship.

There was a degree of trust that was built up between the two of these individuals and this was the highest form of abuse of that trust. [ 21 ] The degree of violence was extremely high. His actions, his threats, the horrific night that she endured, obviously, will be impossible for her to ever forget. There were several things that he did during that night that were for the sole purpose of simply just degrading her and exerting a degree of control and power over her and, again, I will not recount all those things. They are obvious. [ 22 ] N.S. spoke eloquently in delivering her victim impact statement.

She spoke eloquently about the emotional impact that she has suffered and that is an aggravating factor under s. 718.2. She had a difficult, difficult time in composing herself to simply face this matter. [ 23 ] The mitigating factors are that M.B.M.M., again, has no criminal record and he comes before this court having no previous contact with the criminal justice system. He has entered a guilty plea. It was after a preliminary hearing, but it is noted that it was prior to any cross-examination of N.S. [ 24 ] There are several cases that were commended to me. I have read them all. I have read other ones.

There is a joint submission between counsel and these are experienced counsel who, after researching the applicable authorities, have suggested that an appropriate sentence in this matter is a federal penitentiary sentence of five years for M.B.M.M.

Initially, when I heard the evidence of this matter, I had, to be quite candid, initially thought that that submission was going to not be adequate in order to meet the principles of sentencing, but I have changed my viewpoint or my initial viewpoint on that matter, because I agree with counsel after reading the cases and reading others that propose sentences certainly in the range for similar type offences. [ 25 ] He is 30 years old, M.B.M.M. He has been a citizen here in Canada since 1995. His mom and dad are from Tunisia. His mother still lives here.

He started a company some time ago called (*****) which is a mixed martial arts promotion company. He works as a web designer. [ 26 ] He had some mental health difficulties in his life when he was himself a subject of a criminal assault where he was assaulted in Montreal and was stabbed and he suffered mental and emotional fallout from that including depression. [ 27 ] He says, and I accept, after this incident and after some reflection on how brutal and how inhumane his actions were towards someone he once professed to have loved, he became suicidal after recognizing how horrible his actions were.

He says he is focusing now on attaining and maintaining sobriety. After this incident, he lived at a residential treatment facility for some period of time, VisionQuest, and he lived there for quite a period of time. [ 28 ] He eventually became so respected there and valued that the treatment facility made him a house monitor and, in recent months, he had been, and this was prior just to the sentencing submissions, he had been made a relief manager for one of VisionQuest's residences, The Creek.

His hope is that he can stay involved in those kind of programs and help others who have an issue with addiction and abuse of intoxicating substances. [ 29 ] He does not try to mitigate or to minimize the seriousness of the offence or his involvement in it.

He has taken, at this point in time, full responsibility for it and he expresses, himself, that he is extremely apologetic for his actions to the point where he says it has caused him to be quite depressed and suicidal at times, and he says that there is no way that he can ever make up for this and that is true. [ 30 ] A sentencing judge is not bound by joint submissions.

As I indicated, a sentencing judge, when he gets a joint submission, he or she is not bound by it, but the judge is required to give serious consideration and concern to that submission and that is the law and it has been the law for some period of time. [ 31 ] In this, a trial judge should not exceed a joint submission unless the proposed sentence would be contrary to the public interest and bring the administration of justice into disrepute. Now, that law has been generally accepted. However, you know, it seems to me

recently the Court of Appeal has applied a more flexible approach to that general statement and, in some cases, the Court of Appeal of our province notes that while a joint submission should be given considerable weight, it should also be true that it could properly be rejected if the sentencing judge concluded the sentence proposed was unfit. A sentencing judge does not know what kind of matters are taken into consideration behind the scenes between competent counsel when positions are taken.

Obviously, it is less important after a full trial, but this was not a full trial. [ 32 ] I looked at many cases including a case called Roadhouse , 2012 BCCA 495 , where Justice Ryan writes for the Court of Appeal in that case, another horrific sexual assault and unlawful confinement. He only pled guilty to an assault causing bodily harm, but the facts were read in. In that case, involving a very reluctant complainant, the joint submission was for a suspended sentence. The trial judge gave two years in jail.

There was an appeal and the Court of Appeal noted that the trial judge in that case acted appropriately in not accepting the joint submission. [ 33 ] I have looked at many cases including the ones that counsel has handed up, a case called Wren , a case called Mohammed [phonetic], Parker , Latreille , they are all in the book of authorities, where a five-year sentence was imposed. [ 34 ] In this case, the circumstances of this offence are so -- well, I have been in this business for over 20 years and I have to say this is very unique because it involves one of the worst set of circumstances I have heard, but that is coupled with, which is also very unique, an individual who has no previous criminal record.

Usually, when someone gets to this level of depravity in their criminal offending, it takes some time to get there. M.B.M.M. went from zero to 100 and apart from his particular circumstances, it is very difficult to figure out why. [ 35 ] All of that having been said, I cannot see an appropriate basis for which to depart from the joint submission that has been submitted to me by counsel who are also very experienced in these matters, and I sentence you, M.B.M.M. -- will you stand up.

I sentence you to spend five years in a federal penitentiary. [ 36 ] What you did just cannot be -- there is nothing I can do, no sentence I can impose on you, that would level it out for the crimes that you committed against N.S., and I think you know that, but you are going to have to start trying and the first thing you have to do is pay your debt. Your debt is a five-year penitentiary sentence. [ 37 ] In addition to that, M.B.M.M., under s. 109(2)(

a) of the Code , you are not to possess any firearms for a period of 10 years. Under s-s. (b), there is a list of items there that you are prohibited from possessing for life. [ 38 ] Under s. 487.051, there is a DNA sample that will be required from you. [ 39 ] Under the sex offender registration legislation, s. 490.012 of the Code , you will be required to comply with that legislation and all its reporting conditions for a period of 20 years from the date of this date, today. [ 40 ] I cannot say much more to you, M.B.M.M.

I think you know how bad it was and I know that you are going to have to spend the rest of your life trying to make up for these actions because this is going to follow you around for the rest of your life, unfortunately for you, but those are the choices that were made and those are the penalties a man suffers for the terrible choices that they do make. [ 41 ] All right. Is there anything else, counsel? [ 42 ] MR. BLACK: I just wanted to just take a moment and just make sure all the ancillary orders -- [ 43 ] THE COURT: Yes. [ 44 ] MR.

BLACK: -- that I asked for are ordered. [ 45 ] THE COURT: I have got s. 109(2)(

a) and (b). I have got s. 487.051, the DNA. I have got the sex offender registration. I am not sure if there was any more, but can you check while I deal -- [ 46 ] MR. BLACK: I think that is everything. [ 47 ] THE COURT: -- while I deal with -- [ 48 ] MR.

BLACK: Your Honour, I just wanted -- [ 49 ] THE COURT: -- the victim fine surcharge and, given the lengthy penitentiary sentence that M.B.M.M. is -- do you have any submissions on the victim fine surcharge? [SUBMISSIONS RE VICTIM FINE SURCHARGE] [ 50 ] THE COURT: I will find the victim fine surcharge payable forthwith and there will be a one-day sentence concurrent with the sentence I have given on both counts. [ 51 ] Now, Mr. Black, do you have any other ancillary orders that I forgot? [ 52 ] MR.

BLACK: No, Your Honour, I think that covers the ancillary orders, and I just wanted to make clear -- or I am sure Your Honour will do it in your sentence -- [ 53 ] THE COURT: Yes. [ 54 ] MR. BLACK: -- when I was -- my submissions were -- I did not separate between the two counts --

[ 55 ] THE COURT: Yes. [ 56 ] MR. BLACK: -- and so is it a five-year sentence for the sexual assault causing harm and then a concurrent five-year sentence for the unlawful confinement count that you are imposing? [ 57 ] THE COURT: They are concurrent. [ 58 ] MR. BLACK: Okay. [ 59 ] THE COURT: Yes, I do not think it will make any difference to M.B.M.M. [ 60 ] MR. BLACK: Thank you. Then there is nothing else. [ 61 ] THE COURT: Yes. Okay, M.B.M.M., good luck to you. All right. [ 62 ] MR. BLACK: And Crown directs a -- if I have not already, a stay of proceedings on the remaining counts. [REASONS FOR SENTENCE CONCLUDED]