2019 QCCQ 278, 2019 QCCQ 278

Translated from the original French R. c. Gul 2019 QCCQ 278 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF LONGUEUIL “Criminal and Penal Division” No: 505-01-142309-166 DATE: January 22, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE PIERRE BÉLISLE, J. C. Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

RAFI MOHAMMAD GUL Accused ______________________________________________________________________ SENTENCE [1] ______________________________________________________________________ *An order directing that any information that could identify the complainants or witnesses shall not be published has been made pursuant to s. 486. 4 Cr. C . 1. Introduction [ 1 ] Under the terms of a judgment rendered on July 4, 2018, Rafi Mohammad Gul ( accused ) was found guilty of two counts of sexual assault (s. 271(1)(

a) Cr. C.) and breaking and entering with intent to commit an indictable offence therein (s. 348(1)( a )(

d) Cr. C. ). [2] [ 2 ] The sexual incident took place at the home of A.B., complainant/victim , then aged 20 years old, during the night of August 10th to 11th, 2016. [ 3 ] The facts were analyzed in detail when the accused’s guilt was determined. The findings of fact are an integral part of sentencing. The factual background was summarized at paras. 5 to 11 as follows: [ translation ] [5] The complainant lives with her mother in [Town A], in Apt. [number 1], of a four-storey building. On the evening of August 10, 2016, she was alone at home.

Her mother had gone to spend the night with her boyfriend in Montreal. [6] The complainant went to bed at about 11:00 p. m. At around midnight, she felt pressure on her lips. She woke up with a start and realized that it was her Afghan neighbour, Rafi, who lived in Apt. [number 2] in the same building. She was in shock. According to her testimony, the accused sat on the edge of her bed. He wanted to lie down beside her. She refused and told him to leave five or six times. Out of fear, she covered her head with a blanket, which she subsequently removed. The incident at issue lasted twenty minutes.

During that time, he caressed her thigh for two minutes while talking to her, sliding his left hand on her left thigh twice. She added that he told her they could live together, that she was a beautiful woman and that they could listen to music at his place. [7] The complainant tried to push him away with her hand. He twice touched her thigh with his left hand for five minutes. He finally left the premises after she convinced him to leave. [8] Still in shock, the complainant checked whether the doors had been locked.

She noticed that the patio door was locked, but that the door to the apartment from the corridor was not. There was no evidence of a break-in. [9] The complainant’s mother returned home around 9:00 a. m. the next morning. Trembling, the complainant told her what had happened that night. After much thought, she filed a complaint with the police a week later. However, they did not consider it necessary to give the police a bedsheet and a duvet cover for DNA analysis.

[10] The complainant is convinced that the individual who came into her room is the accused. She says that she recognized himimmediately. She recognized his face, his colouring, his glasses and his voice. [11] In his defence, the accused denied any involvement in the crime. He claims that on August 10, 2016, he was working as usual asa taxi driver. He returned home at about 10:30 p. m. He took a shower, ate dinner, watched television and went to bed so he would be ingood form the next morning.

His wife and child had gone to Afghanistan to visit family. [4] In spite of the accused’s general denial, the eyewitness identification evidence was convincing, credible and reliable. Theaccused broke and entered the complainant’s dwelling through an unlocked door leading to the building’s corridor, which he accessedfrom the inside. After committing the alleged acts, he left the premises through the same door. 2. Positions of the parties [5] The prosecution is suggesting that the accused receive a sentence of 18 to 24 months’ imprisonment and a probation order of 3years. It refers to R. c.

Bordage, [2017] JQ no 1109, in which sentences of 3 to 4 years were listed. [6] The defence is asking for a sentence of 90 days’ detention to be served intermittently and 240 hours of community service. Insupport of its submission, it relies on R. c. Fillion, 2013 QCCA 1843, R. c. Southière, 2012 QCCQ 3616, and R. v. Bakshi, 2017 ONSC1083, where the sentences ranged from a suspended sentence to 90 days of intermittent imprisonment with community service hours. Allthese sentences were imposed outside the context of a sexual assault committed after breaking and entering a dwelling-house. 3.

Personal situation [7] The accused is 40 years old and works as a taxi driver for Union Taxi (S-1). His annual net income is about $20,000. He ismarried and is the father of a 4-year-old daughter. His wife works in a daycare for low income. Throughout the judicial proceedings, hecomplied with the non-custodial conditions. [8] The accused still denies the incriminating acts. The defence did not request a pre-sentence report to better understand theoffender and his future opportunities, nor did it submit a sexological report to determine whether he suffers from some form of sexualdeviance. 4.

Aggravating factors [9] The following are considered aggravating factors: − planning a sexual offence; − the aggravating circumstance set forth at s. 348.1 Cr. C.; − the victimological impact on the life of the victim, who is very affected by the traumatic incident; what is more, her mother is afraidto leave her home. 5. The application of s. 348.1 Cr. C. to sexual assault [10]

Section 348.1 of the Criminal Code codifies a home invasion as an aggravating circumstance during a break and enter: 348.1 If a person is convicted of an offence under

section 98 or 98. 1, subsection 279(2) or

section 343, 346 or 348 in relation to adwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence, (

a) knew that or was reckless as to whether the dwelling-house was occupied; and (

b) used violence or threats of violence to a person or property. [11] In Tremblay Lacasse c. R., 2011 QCCA 2172, the Quebec Court of Appeal considered the conditions for this provision to apply.It stated that paragraphs (

a) and (

b) are cumulative conditions, as indicated by the use of the word “and” in the English wording of theprovision (at para. 39). [12] In R. v. Last, 2009 SCC 45 at para. 39, the Supreme Court of Canada determined that violence is inherent in the offence of sexualassault: “There is no question that there is inherent violence in any sexual assault.” [13] In R v. J. S., (ON CA) at para. 33, the Ontario Court of Appeal also raised the possibility that s. 348.1 Cr.

C.applies to sexual assault offences committed during a break and enter: For the offence to qualify as a home invasion, I would add to the foregoing that the entry to the dwelling need not be only for thepurposes of robbery or theft — or result in those offences being committed. The crimes committed within the dwelling may include otheroffences involving violence against the person, as, for example, assault, sexual assault or unlawful confinement. (Emphasis added, references omitted) [14] Since then, the Manitoba and Saskatchewan appellate courts have applied s. 348.1 Cr.

C. as an aggravating circumstanceregarding a sexual assault committed during a break and enter. [3]

[15] In R. v. Maisonneuve, 2014 NBCA 32, the facts before the New Brunswick Court of Appeal bear some similarity to the presentcase. The accused, however, admitted to the offences of breaking and entering a dwelling-house followed by a sexual assault, which isnot the situation here. The Court of Appeal stated: “the mitigating circumstances (guilty plea, first offence by a relatively youngoffender) do not justify a sentence of less than nine months.” (at para. 5).

The Court added that a longer sentence of imprisonment couldhave been imposed had the prosecution not suggested a range of sentences varying from six to nine months’ imprisonment (at para. 22). [16] In that last case, the accused was living with the complainant’s niece. After consuming alcohol and amphetamines, he broke intoher home in the middle of the night by breaking a basement window. He went to the complainant’s bed, where she was sleeping with heryoung son. He fondled her breasts and told her that he wanted her. She told him to stop and to leave, which he did. At trial, the accusedpleaded guilty.

The judge imposed a 2-year suspended sentence and added 120 hours of community service. The prosecution appealedthe sentence imposed by the provincial court. The New Brunswick Court of Appeal modified the sentence and replaced it with acustodial sentence of 9 months followed by 2 years’ probation, along with the same number of hours of community service to beperformed within 18 months. Chief Justice Drapeau (as he then was) commented on the trial judge’s application of s. 348.1 Cr.

C., atparas. 19 to 21: [19] It bears immediate mention that the ruling in first instance confirming the applicability of s. 348.1 (“Aggravating Circumstance -Home Invasion”) is not challenged on appeal. This is a perfectly reasonable concession since each of the prerequisites for the applicationof that provision is met. It is also worth remembering that s. 348(1)(

d) provides everyone who breaks and enters a dwelling-house andcommits an indictable offence therein is guilty of an indictable offence and liable to imprisonment for life. [20] In my opinion, the trial judge committed a material error in principle by failing to attribute to the objectives of denunciation anddeterrence their proper predominant influence in the crafting of a just sentence for a home invasion like the one in the case at bar. . … [21] The message from the courts must be clear and firm: in all but exceptional circumstances, a sentence of imprisonment must beimposed on offenders, even first-time offenders, when s. 348.1 applies: R. v.

Goulette, 2009 NBCA 49 , [2009] N. B. J. No. 367(QL), at para. 44, per Richard, J. A., for a unanimous court. (Emphasis added.) [17] In addition to Maisonneuve, other trial judgments have considered the aggravating circumstance mentioned in s. 348.1 Cr. C.when the accused committed sexual assault after breaking and entering a dwelling-house: R. c.

Bibeau, 2016 QCCQ 613 (the Honourable Gilles Charpentier) [translation] Breaking and entering – Sexual assault – The intellectually disabled accused was the complainant’s immediate neighbour – He saw herundressing through the window and decided to enter unannounced through the unlocked patio door – While the complainant was in thebathroom, he opened the door, pushed the complainant against the dryer, and put his hands on her waist – She started screaming and theaccused quickly left the premises and went home – The Court found him guilty of breaking and entering and sexual assault–Thesentencing judge. (at para. 42) took into account the aggravating circumstance found in s. 348.1 Cr.

C and the accused’s mental state asa mitigating factor (at paras. 45-47) – He sentenced him to 4 months’ imprisonment on each count, to be served concurrently, followedby 12 months’ probation. R. c.

Todorov, 2015 QCCQ 8505(the Honourable Patrick Healy) Breaking and entering – Sexual assault – The accused was the janitor of the building in which the complainant lived – He entered herapartment at 3:00 a. m. while the door was open, without her consent– The accused caressed the complainant’s vaginal area without herconsent – She was confused and thought it was her spouse – When she realized that was not the case, she asked him to leave, which hedid – The accused was found guilty of the offence under s. 348(1)(

b) Cr. C. - The sentencing judge applied s. 348.1 Cr. C. (at para. 6) –Sentence of imprisonment for 2 years less a day, followed by 2 years’ probation. R. v. Wilton, 2015 SKQB 30 (the Honourable G. A. Chicoine), sentence of imprisonment of 8 years and 6 months; R. v. Wilton, 2016SKCA 131, at paras. 56-58, conviction confirmed on appeal, however, sentence reduced to 9 months.

Breaking and entering – Sexual assault of a minor – In the middle of the night the accused broke and entered the dwelling of thecomplainant, aged 13 – The accused lay on top of her on the couch, where she had fallen asleep while watching television – Thecomplainant woke up when she felt the accused’s weight on top of her and his hands stroking her from her hips to her rib cage – Shemanaged to free herself and the accused did not try to stop her – The accused was found guilty of the offence under s. 348(1)(

b) Cr. C. –The sentencing judge was of the view that s. 348.1 Cr. C. applied (at para. 159) – Even a minor sexual assault includes a degree ofviolence (at paras. 143-144) – Sentence of 8 years and 6 months’ imprisonment (at para. 161) – Dangerous offender designation. R. v. McLean, 2013 ONCJ 23 (the Honourable D. A.

Harris) Breaking and entering – Sexual assault of a minor – During the night, the accused broke through a kitchen window and saw thecomplainant, then aged 8 years old, on the couch – He kissed her on the mouth, vagina and anal area, pinching her chest area, insertedhis fingers into her vagina and anus, and rubbed his penis against those areas – Having used violence to the victim, the judge applieds. 348.1 Cr.

C. as an aggravating circumstance (at para. 55) – Sentence of 4 years’ imprisonment (at para. 93). [18] The fact that the accused broke and entered a dwelling knowing that the victim was inside, and then sexually touched her person,

is an aggravating circumstance under s. 348.1 Cr. C., since he knew that the home was occupied and violence is inherent to the offenceof sexual assault. The legislature’s intent is to impose a more severe sentence on offenders who commit crimes against citizens insidetheir home, where the expectation of privacy is at its highest, even more so in a bedroom. 6.

Mitigating circumstances [19] The following mitigating circumstances are recognized: − the absence of a criminal record; − his full-time employment as a taxi driver; − his stable family life. [20] As noted by counsel for the defence, the accused may not be faulted for having demanded a trial and continuing to pleadinnocent, nor for not expressing his remorse for the victim. The lack of a guilty plea and remorse do not in themselves constitute anaggravating factor warranting a more severe sentence than what would otherwise be appropriate in similar circumstances: R. c.

Gavin,2009 QCCA 1 at paras. 24 to 30. [21] On the other hand, the accused will lose the benefit of important mitigating circumstances that reduce the sentence. 7. Objective and subjective gravity [22] The objective gravity of the crime is significant. Breaking and entering with the intent to commit an indictable offence carries apenalty of life imprisonment (s. 348(1)(a)(

d) Cr. C. ), whereas the maximum sentence for sexual assault is 10 years (s. 271 (

a) Cr. C. ). 8. Analysis and discussion [23] The purpose and principles of sentencing are listed in ss. 718 to 718.2 of the Criminal Code. The sentence must be proportionateto the gravity of the offence and the offender’s degree of responsibility.

In addition, it must be adapted to the aggravating or mitigatingcircumstances relating to the commission of the offence and the offender’s personal situation, having due regard for the principle that asentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances and therule of proportionality. [24] It is not necessary to review the various judgments submitted by the parties.

The comparison exercise remains useful, however,to establish the range, but is of limited value due to the principle of individualization of the sentence which “requires the judge to weighthe objectives of sentencing in a manner that best reflects the circumstances of the case”: R. v. Nasogaluak, 2010 SCC 6 ,[2010] 1 S. C.

R. 206 at para. 43. [25] In Traité de droit criminel, la Peine, vol. 3, 2d ed., at para. 581, authors Parent and Desrosiers wrote: [translation] “for allintents and purposes, sentences of less than 24 months’ imprisonment are reserved for minor [sexual] offences of lesser gravity,committed rarely or during a single episode, and generally against one single victim (references omitted). ” [26] Sexual acts committed on a single occasion by the accused fall at the low end of the scale of gravity. They were committed on ayoung woman he knew who lived in the same building.

He took advantage of privileged access from the corridor leading to herapartment to enter through an unlocked door. He went so far as to sit on her bed while she was sleeping. It is easy to understand thevictim’s terror when she awoke. [27] In R. c.

Régimballe, 2012 QCCA 1290 at para. 68, the Quebec Court of Appeal recalled that [translation] “[i]t is common groundthat a person’s dwelling should be, to some extent, a sanctuary, where the person is entitled to expect to be sheltered from any violence(italics in the text, references omitted). ” Even more so in a bedroom. [28] The accused bears full criminal responsibility.

He sexually touched a 20-year-old victim after he broke and entered her dwelling.In this case, the need for denunciation and deterrence dictates a significant period of detention, without exceeding that which isnecessary to reflect society’s censure of such reprehensible behaviour and punish his high level of moral blameworthiness. 9. Conclusion [29] All things considered, a sentence of 14 months’ imprisonment is appropriate in light of the circumstances of this case.

FOR THESE REASONS, THE COURT: [30] SENTENCES the accused to 14 months of imprisonment on counts 1 and 2. [31] ORDERS that the sentences be served concurrently, given that the offences were committed during the same criminaltransaction. [32] ORDERS that the accused allow bodily substances to be taken for forensic DNA analysis pursuant to s. 487.051 Cr. C.

[ 33 ] PROHIBITS the accused, pursuant to s. 109(2) of the Criminal Code , from possessing any firearm or other weapon listed in paragraph ( a ), for a period of 10 years or other restricted or prohibited firearm listed in paragraph ( b ), for life. [ 34 ] ORDERS that the accused comply with the Sex Offender Information Registration Act , pursuant to ss. 490.012 of the Criminal Code , for 20 years. [ 35 ] PROHIBITS the accused, pursuant to s. 743.21 of the Criminal Code , from communicating directly or indirectly with the victim or members of her family while he is in custody. [ 36 ] ORDERS that the accused comply with a 3 -year probation order subject to the mandatory conditions provided at s. 732. 1(2) Cr.

C. and the additional conditions set out during the hearing. __________________________________ PIERRE BÉLISLE, J. C. Q. Mtre Alexandra Guillaume Sam Soto Criminal and penal prosecutor For the prosecution Mtre Anna Maria Mocanu For the accused Dates of hearing: October 11, 2018, January 22, 2019