r v. Rajieenthan, 2016 QCCQ 18206

R. c. Umakanthan 2016 QCCQ 18206 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division No: 500-01-106904-144 DATE: November 29, 2016 ______________________________________________________________________ PRESIDING: THE HONOURABLE NATHALIE FAFARD,J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v.

Rajieenthan UMAKANTHAN Accused ______________________________________________________________________ TRANSCRIPTION RÉVISÉE D'UN JUGEMENT RENDU SÉANCE TENANTE LE 29 NOVEMBRE 2016 [i] ______________________________________________________________________ [ 1 ] JF1000 The accused is charged of sexual assault on A.M.J.S. committed on June 6, 2014. [ 2 ] According to the facts, the victim, a young tourist from Vancouver and her friend were walking on the street when the accused ran toward them. He grabbed her by her neck twice, while he was masturbating himself, he also tried to touch her. The victim hit the accused.

She took a taxi and called 9-1-1. The accused was arrested near the premises, still in erection. He told the police officer he liked to scare girls. In the car patrol the accused blew on the neck of the policewoman, thinking she was unreal. [ 3 ] Earlier that day, the accused had consumed a good quantity of “hallucinogen mushrooms” with friends for the first time, and some cannabis and was subject to confusion. He has no specific recollection of the incident, and was alone when the incident occurred. [ 4 ] The accused pleaded guilty and the victim never had to testify in court.

Position of the parties [ 5 ] The crown is asking for a jail term of 12 months and a probation order for 3 years. [ 6 ] The defence pleads that a conditional discharge, with a probation order of 2 years with a follow-up, including specific conditions to attend a therapy for his psychological issues and perform 200 hours of community service would be the appropriate sentence. Analysis [ 7 ] At the time of the infraction, the accused was 19 years old, and had no prior convictions. He is now 22 years old. He is a Canadian citizen, and a student in mechanical engineering at Concordia University.

A presentence report and a psycho-sexual assessment report were prepared for the benefit of the court. [ 8 ] In the reports we learn the followings: [ 9 ] The accused was living with his parents and siblings at the time, but moved in an apartment with roommates in 2015. His parents, originally from Sri Lanka, are not aware of the situation. The accused says they are not supportive and it seems he has a certain anger toward them. [ 10 ] After his arrest, the accused maintained complete abstinence with respect to both alcohol and narcotics.

Since CEGEP he was smoking pot with friends but didn’t try to buy some. [ 11 ] The psychologist noted that the accused cooperated very well with the assessment process. [ 12 ] He noted the presence of important emotional disturbances which affect his functioning. The Rorschach test indicated a significant breakdown of the accused’s psychological organization. He also noted that without recognizing deviant sexual interests, the

subject is able to see that he presents problems in his intimate relationships with women.

While it is difficult for him to identify to ushow he could be helped, he did not seem closed to intervention. [13] He concludes that the developmental trajectory of the accused suggests the possibility of the presence of certain schizotypaltraits, but also believe that the commission of the act was probably facilitated by the taking of hallucinogens which reduced his hold onreality while neutralizing his inhibitions. [14] Without taking into account future therapeutic interventions the risk of sexual recidivism appears to him moderate to high.However, the psychologist submit whatever the sentence pronounced, that probation in the community would be necessary to help himmaintain a certain stability, and suggests a therapeutic intervention by a resource specialized in working with young adults facingpsychotic breakdown. [15] The victim filled a victim impact statement where she explains, even she wasn’t physically injured, that she lost her confidencewalking alone at night and she is scared that incident like this one could happened.

Sentencing principles [16] Imposing a sentence is a difficult part of the judicial process. The judge must take in consideration the purpose and principles ofsentencing of

section 718 of the criminal code, which is the respect of the law and the maintenance of a just, peaceful and safe society byimposing just sanctions that have one or more of the following objectives.

To denounce unlawful conduct, to deter the offender and otherpersons from committing offences, to separate offender from society where necessary, to assist in rehabilitating offenders, to providereparation to harm done to the victim or community and to promote a sense of responsibility in offenders. [17] The sentence must also be proportionate to the gravity of the offence and the degree of responsibility of the offender. To imposea fit sentence the court takes in consideration the aggravating and mitigating circumstances related to the offence and the offender. [18] As the Supreme Court said in R. c.

Nasogaluak 2010 SCC 6 , [2010] 1 R.C.S. 206, a sentence must be equivalent tothe moral culpability of the offender, not greater than it, and punishes the offender no more than is necessary. [19] The infraction of sexual assault is liable for a maximum imprisonment term of 10 years and there is no minimum prescribed bythe law. [20] I immediately say, that the sentence of 12 months of imprisonment seek by the crown is disproportionate to the gravity of theoffence and the responsibility of the accused.

And a conditional discharge is an available sentence, if it is in the best interest of theaccused and not contrary to the public interest. [21] Having in mind the factors bared in R. c. J.L., (QC CA), 1998 J.Q.755, as mitigating factors, I take inconsideration the young age of the accused, the fact he has no prior convictions, he is a student in engineering in university, he pleadedguilty and the victim never testified in court.

I also take in consideration his psychological fragility and the fact he was under theinfluence of hallucinogens for the first time and he is sober since, and finally that he fully collaborated for the presentence andpsychosexual reports and is willing to attend therapy. [22] As aggravating factors, I take in consideration the fact he assaulted an unknown woman on the street. [23] I would have appreciated that the accused benefits from family support and involvement, but it is not the case. He is an adult,and shouldn’t be punish more severely for that.

Hopefully, the accused have good friends that are aware of the situation and aresupportive. [24] Now, is it in best interest of the accused that he should be discharged.

In Corbeil-Richard, 2009 QCCA 1201, the Court ofappeal stated, referring to Fallofield of BCCA, that generally the first condition would presuppose that the accused is a person of goodcharacter, without previous conviction, that is not necessary to enter a conviction against him in order to deter him from future offencesor to rehabilitate him, that the entry of conviction against him may have significant adverse repercussions. [25] It is clear in my point of view, that a conviction in this matter would have a significant adverse repercussion on the life of theaccused.

The accused study to become an engineer, and a criminal record would obviously impeach him to fulfil his professionalachievement. It is also clear for me, that due to the young age of the accused, a psychological help would be more helpful than a criminalrecord to assure he would be a good law obedient citizen. [26] Therefore, I conclude it is in the best interest of the accused to be discharged. [27] This said, the court must consider whether or not the discharge would be contrary to the public interest.

In Rozon (QC CS), 1999 RJQ 805, judge Béliveau says that public interest should consider the general deterrence, the gravity of theoffence, its incidence in the community, the attitude of the public and its trust in judicial system. [28] Sexual assault is a serious offence, however, we are not in the worst case scenario. Without minimising the situation, we arefacing an isolated offence of a lesser gravity, committed in a moment of confusion after consuming hallucinogen drug.

The accusedrecognize the fact he has some psychological issues and he is ready to face it, although the risk to reoffend is linked to the accusedinvolvement in a therapy process. [29] The accused’s behaviour was certainly inappropriate but it deserves a sentence proportionate to the offence committed, not morenot less. [30] Considering the gravity of the infraction and the specific situation of the accused, the potential of rehabilitation should prevailover denunciation and deterrence which are usually paramount considerations in sexual offences. In those circumstances, I consider a

conditional discharge would not be contrary to the public interest and would meet the purpose of specific deterrence and rehabilitation. [ 31 ] I believe that a person of the public, well aware of all the facts in this matter would not be shocked or would not lose confidence in judicial system, if the accused would be discharged.

Conclusion [ 32 ] For all those reasons, the court grant the accused a conditional discharge, with a probation order of 2 years with follow-up, at the following conditions: - Keep the peace and be of good behaviour; - Take an appointment with the probation service within the next 24 hours; - Attend the meetings with the probation officer as often as necessary; - Follow all the recommendations of the probation officer, specifically concerning a psychological treatment program; - Attend such program; - Abstain to communicate in any manner with Amalia Maya Jane Smith; - Abstain to consume or have in your possession alcohol or drugs except with a valid physician prescription; - Perform 200 hours of community service, in a delay of 12 months. [ 33 ] Order DNA sample. __________________________________ NATHALIE FAFARD, J.C.Q.

Me Pierre-Olivier Bolduc Attorney for the Crown Me Iza-Li Ouimet-Rathé Attorney for Defence [i] Le jugement est rendu séance tenante. Conformément au principe énoncé par la Cour d'appel dans l'arrêt Kellogg's Company of Canada c. P.G. du Québec , [1978] C.A. 258 , 259-260, le Tribunal s'est réservé le droit, au moment de prononcer son jugement, de modifier, amplifier et de remanier les motifs pour en améliorer la présentation et la compréhension sans toutefois en affecter la substance et le dispositif.