2012 QCCQ 4687, 2012 QCCQ 4687

R. c. Parker JW0200 Peine et agression sexuelle-3 ans. 2012 QCCQ 4687 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-001967-089 DATE: June 15, 2012. _____________________________________________________________________________ BEFORE THE HONOURABLE JUSTICE LORI RENÉE WEITZMAN, J.C.Q. _____________________________________________________________________________ THE QUEEN v.

FRANK PARKER _____________________________________________________________________________ SENTENCE _____________________________________________________________________________ [ 1 ] Frank Parker was found guilty of one count of sexual assault and one count of forcible confinement, both committed on March 19, 2007 against "Florence". [ 2 ] Florence knew the accused as he was a friend of her ex-boyfriend. On the date in question, Florence went to her friend's apartment where she unexpectedly found the accused. He had just been released from jail.

He made some sexual advances toward her and asked if she would be his girlfriend. She was not interested in any of it. When she tried to leave the apartment he did not let her go. He grabbed her by the throat and only released his grip when she agreed to do whatever he wanted. He had sexual intercourse with her and then had her perform fellatio and ejaculated in her mouth. [ 3 ] Florence was 18 years old at the time of the assault.

The Crown filed a "victim impact statement" in which Florence describes the consequences of the crime: Shortly after the incident, she suffered from depression, insomnia, mood swings, fears, and crying episodes. These effects have somewhat subsided as she has recently begun a relationship with a man but she still struggles with trust issues with men in general and with Black men in particular. [ 4 ] As for the accused, a pre-sentence report sets out his personal history and criminal past. He is 33 years old and arrived in Canada 15 years ago as a refugee from Liberia.

He has never learned to read or write having spent his youth in a refugee camp in Côte d'Ivoire. He presently has no legal status in Canada and is currently facing a deportation order that has not been executed since 2006. As such, he is not able to work. He is presently in a relationship with Jasmine Lucille LeBlanc and they hope to marry this summer. Ms. LeBlanc testified for the defense and explained that she has known Frank Parker for two years. She feels that he is a changed man since he met her. They now have a five-month-old son whom the accused takes care of.

She is worried that if the accused goes to jail she will not have any help to care for her infant son. She describes Mr. Parker as a good man who is respectful toward her and a good father to their son. She was more or less aware of his criminal record but did read the pre-sentence report in the present file. She is aware that he used to consume drugs but states that he no longer does so.

[ 5 ] According to the pre-sentence report, the accused regularly smokes about 7g of cannabis per day. He has several prior convictions: in 2001, theft; in 2004, 3 counts of failure to respect court-imposed conditions; in 2005, drug possession; also in 2005, robbery and fraudulent use of a credit card for which he received a one-month jail term; and in September 2006 (6months before this incident), robbery and possession of a weapon for which he received a six-month jail term. [ 6 ] The accused continues to deny any wrongdoing in the present file.

According to the psychological evaluation, the risk of recidivism is present and might even be considered high if he accused is not in a relationship and has to deal with feelings of frustration, or rejection. The psychologist opines that the accused would benefit from a program geared toward sexual offenders but given the accused's position in the present matter, he is not a candidate for any such treatment. It is to be noted that the accused also denies his guilt regarding his previous convictions for two robberies and use of a credit card.

The position of the parties [ 7 ] The Crown insists on the following aggravating factors: • the violence exercised against Florence, her young age, (she had just turned 18 one week before), and the consequences of the crime as detailed in the victim impact statement; • the absence of any acceptance or recognition by the accused of the wrongfulness of his actions; • the specific sexual acts in question (intercourse and fellatio) as well as the confinement; • the prior record of the accused including two convictions involving some violence (robberies), as well as his substance abuse which he seems to trivialise; • the fact that this offense took place shortly after he was released from prison and while he was subjected to a probation order; and • the risk of recidivism as documented in the pre-sentence report and the psychological evaluation. [ 8 ] The Crown requests a sentence that will underscore the principles of denunciation and deterrence sufficient to send a clear message that any forced sexual activity will not be tolerated and will be severely a punished.

She suggests a four-year penitentiary term, and refers to the following examples from first instance cases as support for this position: • R. v. Gauthier [ 1998] O.J. No. 2591 : The accused was found guilty of sexual assault involving fellatio, sexual intercourse and attempted anal penetration with force used to achieve his objective. The complainant was physically harmed (numerous bruises as well as vaginal tears). The accused was 30 years old, with no prior record and he presented evidence of good character on sentencing.

A sentence of 40 months was imposed. • R v Mankwe : [1998] J.Q. no 1549 : the accused called an escort service and when the victim arrived at his apartment he informed her that he could not pay her. He then prevented her from leaving the apartment and forced her to have sexual intercourse and to perform fellatio. The accused had no previous convictions. A three-year sentence was imposed. • R v. Curto [ 2005] O.J. No. 5932 : the accused was the victim's employer. He forced her to have sexual intercourse in her apartment after which he spat on her before leaving.

The accused had no criminal record at the time of the offense but had since received three convictions in unrelated matters. A four–year sentence was imposed. • R. v. Ramcharitar [ 2005] O.J. No. 1528 : the accused pleaded guilty to a charge of sexual assault. He followed the victim into her building and made sexual advances which she refused. He then claimed to have a gun and a knife and led her to a wooded area. The accused forced anal and vaginal intercourse upon the victim and then forced her to perform fellatio and ejaculated in her mouth.

He threatened that if she told anyone he would come back and kill her family. The accused was 22 years old with one prior conviction as a youthful offender. He was extremely remorseful and showed a low to moderate risk of recidivism. The sentence imposed was three years and eight months. • R v. Heer [2009] A.J. No. 382 : the accused was found guilty of sexual assault where the victim was forced to engage in fellatio. The judge noted that the crime was planned. The accused had no prior record.

A four-year sentence was imposed. [ 9 ] The Defense asks the Court to consider the absence of any convictions since this offense in 2007. According to Ms Leblanc, the accused's relationship with her has had a positive effect on him and he presently is putting his life back together, taking care of their son, although he is unable to work due to his immigration issues. The defense recommends a sentence of two years less a day to be served in the community. THE APPLICABLE PRINCIPLES [ 10 ]

Section 718 of the Criminal Code states the objectives of sentencing as follows: " to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders from society, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community."

Section 718.1 provides that : "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[ 11 ]

Section 718.2(

b) requires similar sentences to be imposed for similar offences perpetrated by similar offenders. It must be noted that sentences in maters of sexual assault may extremely disparate, reflecting a wide range of actions that may legally constitute sexual assault while presenting varying degrees of severity. [ 12 ] In general, it must be recognised that sexual assault is an attack on the physical and emotional integrity of the victim who is used as an object for the selfish needs of the perpetrator.

The predictable resulting feelings of anger, powerlessness, fear and even disgust are thrust upon the victim who is left to deal with them, often while struggling emotionally with a desire not to be deprived of the positive feelings that should normally be associated with sexuality. [ 13 ] In the present case, the sentence must reflect the nature of the acts in question, ie, sexual intercourse (penetration) and fellatio.

The appropriate range of sentences for this type of offence can be gleaned from the examples submitted by the Crown as well as a useful overview of sentences canvassed by Judge Romilly in the matter of R. v. Hughes [1999] B.C.J. No. 32 . [ 14 ] The Court takes into consideration all of the factors presented by the parties as canvassed above. The mitigating factors in the present case are few.

Although the Defense underscores the absence of any further criminal activity perpetrated by the accused since 2007, this may be fairly treated as the absence of an additional aggravating factor, as opposed to a truly mitigating factor.

The apparent positive "change" in the accused as noticed by his girlfriend is a positive element in the file, yet the Court must consider that the accused has shown no remorse, nor any indication of an understanding of the inherent wrongfulness of his actions. [ 15 ] The aggravating factors as described by the Crown include the accused's prior convictions (although none in matters of sexual offences), the fact that he had just been released from jail and was under probation, the consequences of the crime on the victim and the violence used, as well as the risk of recidivism, in

part linked to the absence of any responsibility taken by the accused for his actions. [ 16 ] Considering all of these factors, and the objectives of sentencing as referred to above, in my view, a penitentiary term is required in order to give sufficient effect to the principles of denunciation and deterrence. As such, a conditional sentence is not an option. [ 17 ] In conclusion, the sentence will be three years on the count of sexual assault and 1 year concurrent on the count of confinement. In addition, the following orders are imposed:

section 109 prohibiting the possession of any weapons as described in that section, for life;

section 487.051: requiring the accused to submit samples for DNA analysis;

section 490.012: requiring the accused to comply with the sexual offenders registry for 20 years. [ 18 ] Given the penitentiary term imposed, no victim surcharge is imposed. ____________________________________ LORI RENÉE WEITZMAN, J. C.Q. Me Mélanie Rose Crown Attorney Me Annie Laflamme Defense Attorney Date of hearing: May 22, 2012.