R. v. Trotman, 2011 ONCJ 604

Citation: R. v. Trotman, 2011 ONCJ 604ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Mr. R. Fried ) for the Crown ) — AND — ) ) Marlon Trotman ) Mr. S. Feldman ) for the defendant ) ) ) ) lipson J.: REASONS FOR SENTENCE [1] Marlon Trotman pleaded guilty to a charge of sexual assault. The Crown proceeded summarily. The guilty plea was withrespect to an incident which occurred on September 16, 2009. As well, the facts relating to another sexual assault which occurred onSeptember 13, 2009 were also read into the record on consent.

Counsel agreed that this assault be taken into account for the purpose ofsentencing in accordance with the principle in R. v. Garcia and Silva (ON CA), [1970] 3 CCC 124 (Ont. C.A). The Offences [2] On September 13, 2009 the first victim was at the Toronto Transit Commission bus platform located at 300 BoroughDrive in Toronto. She was approached from behind by the accused who grabbed her around her waist a number of times. The accusedasked to borrow her cell phone in order to obtain her number. There was a brief discussion between the accused and the victim.

Thevictim informed the accused of her age which at the time was 15. The accused grabbed the victim around the waist again and pulled hertoward him in order to hug her. He then kissed her on the cheek. The victim managed to get away. In the two days following she received41 text messages from the accused. The victim reported the matter to the police. The text messages were sexual in nature and alsoattempts to obtain information about the victim’s address. [3] On September 16, 2009, the accused after managing to determine where the first victim lived, randomly attended herarea in the hope of finding her.

However, Mr. Trotman met with a friend of the first victim who soon became his second victim. Thisyoung woman was walking home when the accused approached her. He knew she was the same age as the first victim. The accused triedto hug and kiss her and she tried to push him away. A short time passed and the accused approached her again and attempted to hug andkiss her again. When she tried to walk away from the accused a second time, the accused grabbed her and pulled her between twohouses. He tried to kiss her and rubbed his body against her.

He put his hands down the victim’s pants, underneath her underwear andstarted rubbing her genital area and touching the rest of her body. The accused attempted to remove the victim’s underwear but shecontinued to struggle and thwarted the accused’s efforts. Mr. Trotman exposed his penis and placed the victim’s hand on his penis. Afterthe victim pulled her hands away from the accused’s penis, Mr. Trotman pulled her underwear aside and rubbed his penis along hervagina.

He then masturbated and ejaculated while holding the victim. [4] The Crown advised the court that since the time of the guilty plea, the police have been unable to contact the two victimsfor the purpose of obtaining victim impact statements. The Offender [5] Mr. Trotman’s date of birth is February 26, 1980. He was 29 years old when he committed these offences. He has acriminal record consisting of convictions for fail to comply with probation, fail to comply with a recognizance, assault, obstruct policeand theft under. He was on probation at the time of the commission of the offences before the court.

A pre-sentence report, exhibit 2,indicates that at the time of these crimes he was unemployed, living on the streets and engaging in drug use. Since his release on bail,Mr. Trotman has resided with his mother, curbed his drug use and obtained his high school diploma. The Pre-Sentence Report writerobserved that since his arrest, Mr. Trotman made “tremendous” positive changes in his life. [6] Ms. Marva Trotman, the mother of the accused, testified at the sentencing hearing that her son has behaved veryresponsibly since returning home following his arrest.

She indicated that her son has complied with a house arrest bail term and that sheis “proud of the man he has become”. [7] The court also considered a comprehensive psycho-sexual assessment, exhibit 4, authored by Dr. Scott Woodside, anexperienced forensic psychiatrist. Dr. Woodside also testified at the sentencing hearing. Dr. Woodside is of the view that Mr. Trotmandoes not appear to suffer from any major mental illness. He wrote: “It is possible he may have suffered from alcohol and/or marijuana abuse disorder in the past, although this could not be confirmed on

the basis of his self-report or based on the information received from his mother. Mr. Trotman also presents with antisocial personality traits although I did not have sufficient information or grounds to make a diagnosis of a full personality disorder in this regard. Finally, while it is possible this individual suffers from a preference for sexual contact with pubescent aged individuals and/or a preference for coercive sexual interactions, in this case, I believe his actions are better accounted for by the presence of anti-social traits and a certain degree of opportunism and callousness.

However, I cannot rule out the possibility that he has a primary sexual attraction to pubescent- aged females (i.e. paraphilia not otherwise specified-hebephilia).” [ 8 ] Mr. Trotman submitted to phallometric testing and actuarial risk-assessment tests consisting of the Psychopathy Checklist-Revised (PCL-

R) instrument, the Sex Offender Risk Appraisal Guide (SORAG) and the Static-99R instruments. From the results obtained in these tests, Dr. Woodside viewed Mr. Trotman as being a “moderate to high risk for sexual recidivism from a purely clinical perspective as well as from an actuarial perspective” and made the following observation: “If he were to reoffend in future, I suspect it would be in a similar manner and involving a similar degree of intrusiveness.

While I am not able to be definitive regarding whether he suffers from a primary preference for sexual contact with immature individuals, I suspect any future victims would also likely be young or physically immature females.” [ 9 ] In cross-examination, Dr. Woodside testified that he did not see Mr. Trotman’s conduct as “predatory” but as examples of opportunism and callousness. Phallometric test results did not indicate a preference for coercive sexual interaction with females and the results of the gender/age test were considered invalid due to low responses. Dr.

Woodside testified that he did not see the phallometric test results as adding to his understanding or assessment of Mr. Trotman’s risk. [ 10 ] Dr. Woodside recommended that the accused undergo psychological treatment for sexual offending either during any period of incarceration and/or upon release into the community. He also recommended that the accused consider treatment with sex- drive reducing medication which Mr. Trotman was not prepared to agree to at the time of the assessment. [ 11 ] In his statement to the court prior to sentencing, Mr.

Trotman expressed remorse as well as an apology to the victims and their families. He thanked his parents for their support. Positions of the Crown and Defence [ 12 ] Counsel for the accused identified the relevant mitigating factors. Mr. Feldman stressed the fact that his client pleaded guilty before the trial date. This demonstrated that Mr. Trotman was remorseful, accepted responsibility for his actions and spared the two victims from having to testify in a trial. As well, Mr. Trotman, once arrested, cooperated with the authorities by providing an inculpatory statement.

Counsel also pointed to the fact that while on almost two years of house arrest, Mr. Trotman not only complied with his bail terms but took measures to improve himself such as abstaining from street drugs and obtaining his high school diploma. Another mitigating factor cited is continuing community support for Mr. Trotman, particularly from his mother. It was also pointed out that accused’s prior criminal record is unrelated to these offences before the court. [ 13 ] Mr. Feldman urged that the court not place undue reliance on the opinion of Dr. Woodside concerning his view of the degree of risk posed by Mr.

Trotman. It was submitted that only one of the three actuarial tests given to Mr. Trotman (the Static-99R) indicated that he posed a moderate to high risk for sexual reoffending. It was also submitted that Dr. Woodside did not sufficiently avail himself of important information from the accused’s mother and probation officer dealing with the positive lifestyle changes Mr. Trotman made while on bail. [ 14 ] Finally, the defence pointed out that the accused spent 12 days of pre-trial custody. It was also submitted that the two years on a house arrest form or release should entitle Mr.

Trotman to a significant reduction in sentence. Mr. Feldman submitted that a conditional sentence or, in the alternative, a sentence in the intermittent range plus probation should be imposed. [ 15 ] The Crown proceeded summarily and seeks a sentence in the 9-14 months range to be followed by two years of probation. It was submitted that the appropriate sentencing objectives are denunciation and deterrence, both specific and general.

While regard has to be had for the mitigating factors identified by the defence, it was submitted that the accused continues to lack insight into the offences as evidenced by his less than full admissions to both Dr. Woodside and his mother. It was submitted that according to Dr. Woodside, the most reliable actuarial test used in the assessment was the Static-99R which placed the accused in a moderate-high risk category for sexual re-offending. The Crown submitted that the offences were very serious inasmuch as they were committed against teenage girls in a residential neighbourhood.

The crimes involved coercive and persistent touching. The accused placed the second victim’s hand on his exposed penis and he masturbated in her presence. As well, the accused was on probation at the time. Analysis [ 16 ] In my view, counsel for both the Crown and Mr. Trotman identified the relevant mitigating and aggravating factors. As well, there is no issue that the paramount sentencing objectives in this case are denunciation, specific deterrence and general deterrence. Nor do the parties dispute that the court must also take into account Mr.

Trotman’s rehabilitation in fashioning a fit and appropriate sentence. [ 17 ] In a case such as this, the accused’s guilty plea is an important mitigating factor. The victims were spared the ordeal of having to testify in a public trial. Mr. Trotman’s plea spared the state from expending limited resources to try him. In pleading guilty, the accused has acknowledged his crimes. I also take into account that Mr. Trotman not only expressed his remorse for his conduct but also made positive personal gains while on a very restrictive bail. His mother Ms. Marva Trotman is a sincere and caring parent.

In the past she had thrown her son out of the house because of his misbehaviour. She took a chance on him when she volunteered to be his surety on these charges. It would appear that despite his past difficulties complying with the rules of the house and probation, Mr. Trotman has

been able to successfully abide by his terms of bail and furthered his education by completing his required credits for a secondary school diploma. The support Ms. Trotman continues to provide to her son will be important in his rehabilitation. [ 18 ] Notwithstanding the mitigating factors present in this case, a conditional sentence would not constitute a fit sentence. On the evidence before me, I am unable to conclude that a house arrest sentence would not endanger the community. In this regard, I accept Dr. Woodside’s opinion that Mr.

Trotman presents, from both a clinical and actuarial perspective, a moderate to high risk for sexual recidivism. And while the accused has complied with his bail conditions during a lengthy period, I must take into account Mr. Trotman’s criminal record which includes past convictions for failing to comply with court orders. Indeed, Mr. Trotman committed these sexual assaults while subject to a probation order. [ 19 ] Furthermore, a conditional sentence would be inconsistent with the fundamental purpose and principles of sentencing set out in

section 718 to 718.2. The offences committed by the accused were very serious, involving the molestation of two female teenagers in public in a residential area. The victims were strangers to the accused. The second offence in time involved particularly callous, intrusive and disgusting behaviour.

The aggravating factors set out earlier in these reasons are so serious that a conditional sentence would be an inadequate judicial response to the required denunciatory and deterrent purposes of this sentence. [ 20 ] Taking into account the fact that the Crown has proceeded summarily as well as the relevant mitigating and aggravating factors and sentencing objectives, I have determined that the appropriate custodial portion of this sentence is in the mid-reformatory range.

Having determined the appropriate range, I turn to the issues of credit for pre-trial custody and stringent bail terms. [ 21 ] The accused served 12 days of pre-trial custody in 2009 and is therefore entitled to 2:1 credit. Mr. Trotman should also receive some credit for the two years he spent with restrictive bail conditions. He was required to comply with a house arrest term that had an exception for attending school. Mr. Trotman’s pre-trial liberty was significantly curtailed. He was, however, able to complete his high school education.

The pre-sentence report as well as the credible testimony of the accused’s mother indicated that Mr. Trotman’s behaviour and attitude improved considerably since his arrest on this charge. As appellate decisions have made clear, the amount of credit to be given for time spent on bail is within the discretion of the sentencing judge and that there is no precise formula that the judge is required to apply.

The amount of credit will depend on a number of factors including the length of time spent on bail under house arrest, the stringency of the conditions, the impact on the offender’s liberty and the ability of the offender to carry on normal relationships, employment and activity. In the end, I am of the view that Mr. Trotman should receive three months credit for his pre- sentence house arrest. [ 22 ] The accused will be sentenced to a custodial term of 8 months. In addition he is placed on probation for two years. In addition to the mandatory terms, the accused will be required to: 1.

Report to a probation officer within 48 hours of release and thereafter as required. 2. No contact with the two victims and not be within 500 metres of any place you know them to live, go to school, work or happen to be. 3. Reside at an address approved by your probation officer. 4. Attend school or vocational training as directed or make reasonable efforts to find and maintain employment. 5. Attend counselling for psychological assessment and counselling for sexual offending and drug or alcohol abuse as recommended by your probation officer. 6.

Not to have any unsupervised contact with individuals under the age of 16 years. Ancillary Orders 1. Order to Comply with the Sex Offender Registration Act (SOIRA) for 10 years pursuant to

section 490.013. 2. A DNA order. Released: November 21, 2011 Justice T. Lipson