R. v. Micula, 2016 ONCJ 467

CITATION: R. v. Micula , 2016 ONCJ 467 ontario COURT OF JUSTICE HER MAJESTY THE QUEEN v. MIRCEA MICULA **************** REASONS FOR SENTENCE **************** DELIVERED BY THE HONOURABLE JUSTICE G. Sparrow on Monday, June 20, 2016 at 60 Queen Street West, Toronto, Ontario APPEARANCES: Counsel for the Crown Ms. J. Witkin Counsel for Mr. Micula Ms. A. Craig *************** REASONS FOR SENTENCE SPARROW, J.(Orally): The accused has been convicted of one count of sexual assault of S.K. on July 25th, 2014. It is not necessary to go into the facts in detail as they are summarized in the judgment dated May 5th, 2016.

Briefly, the accused and S.K., who was 21 at the time, met in a bar one evening in Toronto and started a conversation while drinking beer. The accused was 46 at the time. They began discussing drug use, and the victim explained that she was trying to end her usage of cocaine. Eventually, however, she agreed to go to his basement apartment to share his cocaine. She understood it to be powder. He only had crack, however.

After using what he had, the accused went to get more, and the victim passed out or fell asleep heavily on his mattress. She had becomeintoxicated over the course of the evening. She awoke two hours later to find her bra unclasped, and her underpants and tights removed, and felt a strange sensation in her vaginalarea. She ultimately left the apartment after confronting the accused, walked to a corner and called police, expressing fear and distress. Police took her to hospital.

A rape kit showed the accused's saliva in her vaginal and rectal area, corroborating the accused's ownevidence that he performed oral sex on her. The court found that the act was nonconsensual and occurred while the victim was, as I said, passed out or sleeping. The accused is now 48. He has a minimal criminal record, a theft under dated 1987. He is on a disability pension as he has epilepticseizures which prevent him from working. He is single and not close to any family members, most of whom reside in his native countryof Romania.

He has been a Canadian citizen since 1980, and worked as a waiter and bartender until about ten years ago. He largely leads a quiet life, often at home, although he enjoys walking, parks in his neighborhood and activities with friends. The Crown filed a victim impact statement. In short, the victim states that she has developed anxiety and depression since the incidentand has been diagnosed with ailments such as post-traumatic stress disorder.

She states that she has had a general fear of men since theincident, that her relationship with her boyfriend has become strained and that she is uncomfortable with men in her job at a hotel. She isafraid to re-apply to university because she is apprehensive about advances from fellow students. I note that none of the medical conditions noted have been documented by professionals. It is well-known that it is often difficult todetermine whether there are multiple causes for such problems.

However, given the nature of the incident, the fear expressed in the 9-1-1 call, S.K.'s general candor and her youth at the time, it is believable that the offence had a significant psychological affect. The Crown seeks a sentence of 12 to 14 months in custody. Defence submits that a conditional sentence is appropriate. In R. v.

Smith 2015 ONSC 4304 , [2015], O.J. 3513, Campbell, J., of the Ontario Superior Court overturned a conditionalsentence imposed in the case of a serious sexual assault, and stated at paragraphs 36 and 37: "Conditional sentences have, on occasion and in exceptional circumstances, been imposed for offences of sexual assault committed uponunconscious or semi-conscious complainants. See, for example, R. v. Killam(1999), (ON CA), 126 O.A.C., 281..." And a few other cases cited.

"There is, however, no gainsaying the reality that conditional sentences, even those with significant restrictions on liberty and punitiveterms do not have the same denunciatory effect as a period of actual imprisonment. Accordingly, it is not surprising that in the great majority of cases a significant term of actual imprisonment is imposed upon anaccused in such circumstances. In my view, the trial judge erred in principle in failing to appropriately balance all of the relevant sentencing considerations and thisled him to impose an unfit sentence.

More particularly, in my view, the trial judge failed to consider the importance of denunciation andoveremphasized the significance of rehabilitation. This lead to the imposition of a sentence that was not proportionate to the gravity ofthe offence and the degree of responsibility of the offender." A nine-month sentence was imposed, the court emphasizing that it was very lenient based largely on the need for rehabilitation of ayouthful first offender. He stated at paragraph 44: "At the time of sentencing on June 2013 a longer term of imprisonment would have been appropriate."

In R. v. J.R. and J.D. 2008 ONCA 200 , [2008], O.J. 1054, the Ontario Court of Appeal confirmed sentences of two years andtwo years less a day imposed on two accused who had sexually assaulted an incapacitated young woman at a hotel party. Penilepenetration was involved. The court states at paragraph 25: "I agree with the appellant, J.D., that in most circumstances he should have received a lower sentence than his co-accused, given thesignificant differences and their antecedents, respective characters, and prospects for rehabilitation.

However, in my view and thecircumstances of this case, where each man took advantage of the complainant when she was incapacitated, leaving her in a state whereshe woke up naked, helpless, and alone on the bathroom floor of the hotel room, the two-year sentence is at the low end of theappropriate range of sentence. The appellant, J.R., hardly knew the appellant and took advantage of her while the appellant, J.D., washer good friend and did the same thing. Both engaged in reprehensible criminal conduct. In these circumstances, there is no basis toimpose a lower sentence than two years on the appellant J.D.

I also note that he does not seek the one-day reduction that the Crown hasagreed to be accorded to the appellant J.R." The appellant had requested a conditional sentence. The trial judge rejected the submission as a conditional sentence would not reflectdenunciation and deterrence adequately. In R. v. H.H. (ON CA), [2002], O.J. 1509, the Ontario Court of Appeal, in a case involving forced intercourse,substituted a conditional sentence with a sentence of 18 months.

The facts are different from those in this case, but the fact that theaccused took advantage of an unconscious complainant was one of the factors relied upon. Defence counsel submits that the cases relied upon by the Crown generally involve vaginal penetration and are therefore more serious. She also notes that several were prosecuted by indictment and that a conditional sentence was therefore not available at the time ofsentencing. She submits that the accused had a momentary lapse of judgment and that the incident here is closer to a fondling.

With respect to cases, she submits that case law supports the principle that a conditional sentence can be punitive and denunciatory,going back to R. v. Proulx,2000 SCC 5 , [2000] 1 S.C.R. 61 of the Supreme Court of Canada. She relies on inter alia, R. v. Burke, a 1999 trial case in which the accused received a conditional sentence for

an act of oral sex, R. v.Cooney, a 2000 trial case involving a full act of penetration where the accused was unconscious and received a conditional sentence oftwo years less a day, and in R. v. Kang, a case of full intercourse in which an 18-month conditional sentence was imposed, relianceplaced upon R. v. Proulx, supra. She also cited R. v. P.P., a 2013 decision of the Superior Court of Ontario on appeal in which vaginal touching was involved and a sixmonth conditional sentence was imposed. The victim was not unconscious in that case, according to the court's understanding.

Defence counsel has made very able submissions concerning reasons for a conditional sentence. However, I note that most of the casescited are at least ten years old -- some older -- written in an era in which the need for denunciation of this type of offence through a jailsentence had not been enunciated so clearly by the higher courts. They are largely trial decisions of the Ontario Court of Justice, somebased on fact scenarios less serious than this one and in no way binding or, in my view, heavily persuasive, given the more recent caselaw cited.

As stated in Smith, supra, a jail sentence in the case of a serious sexual assault is generally necessary to emphasize the principles ofdenunciation and deterrence. Those factors must be emphasized here. The accused was much older than the victim and took advantage of her in the most callous of ways, assaulting her when she had passedout, totally unable to defend herself. I did not find that he deliberately lured her to his apartment for that purpose: however, he was well aware of her intoxicated condition, that she was young, and that she had a history of

problems with cocaine. He knew that she was trying to rid herself of a cocaine problem but gave it to her anyway. He knew that she would wake up to find her clothes off and that she had no easy means of leaving his basement apartment in the middle of the night. The accused is not a first offender but has a very minor dated criminal record. As counsel says, he cannot offer up a positive consideration such as a long-standing career or a period of community service due to his health issues. Nevertheless, the offence was callous, frightening, and hugely intrusive into the victim's private sexual domain.

There is no evidence of penetration, as in certain cases of forced intercourse cited; however, that fact does not make the accused's act less intrusive to a great degree, given that he made oral contact with the most private part of her body. In my view, the range of 12 to 14 months in custody is correctly stated. The accused will be sentenced to 12 months in custody and the orders requested will follow, which is a SOIRA order, correct? MS. WITKIN: Correct, for ten years. THE COURT: I don’t think there was any probation requested, was there? MS.

WITKIN: There was, yes, probation for three years, no contact, not to be anywhere where he knows her to be. THE COURT: All right, no contact with S.K. MS. WITKIN: Not to be found within 200 metres of anywhere he knows her to be. I don’t expect he would know where she is, but just in case, not to have any weapons in his possession as defined by the Criminal Code . THE COURT: No weapons. MS. WITKIN: Your Honour is going to impose a DNA Order?

THE COURT: A DNA Order. *********** FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) I, Maria Chin, certify that this document is a true and accurate transcript of the recordings of M. Chin , in the Ontario Court of Justice held at 60 Queen West, Toronto, Ontario, taken from recording disk CD#: 4811_M1_20160620_095151__6_SPARROG.dcr which was certified in Form 1. ............ .............................. Date Signature of Authorized Person

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