R. v. Oghieakhe, 2020 MBPC 58

CITATION: R. v. Oghieakhe , 2020 MBPC 58 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Valérie A. Hébert ) for the Crown ) and ) ) ) Emmanuel Edwin Oghieakhe ) Zilla M. Jones ) for the Accused ) ) ) ) Reasons for Decision delivered: ) October 26, 2020 CORRIN P.J. [ 1 ] Emmanuel Oghieakhe was found guilty of sexual assault after trial. The issue now before the Court is what will constitute an appropriate sentence. CIRCUMSTANCES OF THE OFFENCE [ 2 ] The circumstances of the offence were as follows.

In the early morning of March 27, 2017 the victim contacted the offender and made arrangements to visit at his residence. The offender suggested she came by taxi and expressed concern about her driving in an impaired state. After her arrival they had gone to his bedroom, sat on the bed and chatted. The Court, for reasons I gave in my decision convicting Mr.

Oghieakhe, believed the victim’s version of what happened next… that the offender had become physically aggressive and initiated unwanted physical contact (i.e. attempting to kiss her) and then had ripped off her jeans and underpants and undone some buttons on her bodysuit, put baby oil on her genital area and proceeded to have forcible vaginal intercourse, ultimately ejaculating on the victim’s stomach. The victim had then put her clothes on and ran from the apartment. [ 3 ] The next day the victim and some male friends came to the offender’s apartment block and the victim texted Mr.

Oghieakhe to come down to the building’s entrance. The offender testified that the victim’s text stated that she was going to report the assault to the police if he did not come downstairs and meet with her. The offender described being assaulted by the male friends while the victim repeatedly shouted “You raped me – say it!”. Mr. Oghieakhe also exchanged texts with the victim after this confrontation. In one such exchange the complainant stated “Just admit it, you were wrong. You did something that a guy should never do to a girl”. The accused responds “I’m so sorry and my whole entire life is in debt to you”.

She then replies that he should “admit what you did” and he responds “I agree”. He subsequently messages “I want to deeply and sincerely apologize for what you feel happened between us”… also “I’m sorry I hurt you”. IMPACT ON THE VICTIM [ 4 ] The victim provided a Victim Impact Statement at the sentencing hearing. She described how the assault had impacted her emotionally, psychologically and economically. She related that she had turned to excessive drinking in order to cope with high levels of anxiety and what she termed as “anxiety attacks”.

She also described feelings of depression and suicidal ideation, declaring that because of this breakdown she was unable to complete her Red River College course and became incapable of carrying on with her employment. OFFENDER’S PERSONAL CIRCUMSTANCES

[5] Mr. Oghieakhe, now 29 years old, came to Canada on a foreign student visa in 2014. He is Nigerian. He has applied for butnot yet attained permanent residency. His immigration status is that of a “foreign national”. After completing his degree at theUniversity of Manitoba he worked full time with the University’s security services from 2015 to 2017. Since then he has worked as acustomer service representative with Bison Transport and as a dispatcher with TransX, another trucking company. He married after theincident and is now separated from his wife.

He has two children, one with his wife and another with a former girlfriend. He has nocriminal record. Counsel agree that it is likely that he will be subject to removal from Canada after he completes his sentence.

If so, hewill have no statutory right of appeal in reference to a ministerial decision to remove him from Canada as he is not a permanent resident,although the Immigration and Refugee Protection Act stipulates that even permanent residents cannot appeal an inadmissibility ruling ifthey have been found to be inadmissible on grounds of serious criminality (see I.R.P.A. section 64(1)). [6] Since coming to Canada Mr.

Oghieakhe has been quite involved in religious activities: he became a choir member shortly afterarriving in Winnipeg and is currently attending church services (at NextGen Worship Centre) every Wednesday and Sunday. He alsoassists the pastor, Mr. Andrew Bawa, with administrative matters and has made himself available to same at all times. The pre-sentencereport notes that Mr. Bawa described Mr. Oghieakhe as “a nice, kind, generous person”. [7] After conviction Mr.

Oghieakhe was the subject of two risk assessments, one performed by probation services and referencedin his pre-sentence report, the other administered by Dr. Kasmira Sobkow, a registered psychologist associated with ForensicPsychological Services, a Winnipeg professional practise specializing in treating sexual offenders. Both assessments employed aSTATIC-99R risk assessment to determine relative risk for sexual offending recidivism. Both of these assessments placed him at a totalscore of three (3), placing him in the so-called Average Risk for being involved in another sexual offence.

Both assessors stated that hefell in a five (5) year recidivism classification around 8% i.e. only 8 out of 100 such offenders would either be charged and/or convictedof a sexual offence during such time frame. The five (5) year period references only after release to community living, not incarcerationtime. [8] Dr. Sobkow also performed a second “dynamic” risk assessment because certain risk factors, such as substance abuse, level ofinsight and emotional controls are not considered by the STATIC-99 test (also mentioned in the pre-sentence report). This test, knownas the STABLE-2007, noted Mr.

Oghieakhe’s concerning dynamic factors to be “his current capacity for relationship stability, hostilitytowards women, general social rejection, impulsive behaviour, poor problem-solving skills, negative emotionality and sex drive”. Hisoverall score of nine (9) placed him at the “Moderate Needs” category for sexual recidivism risk. Dr. Sobkow states that such a scoreindicates that the combination of his static and dynamic scores confirms that he indeed only falls in the Average Risk category and notHigh Risk. That being said Dr.

Sobkow also referenced other additional dynamic risk factors in her comprehensive 16 page report. Having done so, it is observed that these other factors somewhat increased Mr. Oghieakhe’s risk for recidivism.

However she thenconcludes after significant and thorough analysis, that the “negative outcomes” i.e. incarceration, likely loss of his relationships with hischildren and probable deportation, as well as a need for a positive affiliation within the community, “will likely serve as deterrents forfuture offending” leading to his participation in interventions that are needed to mitigate his risk for reoffending. Dr. Sobkow concludesthat Mr. Oghieakhe “has many strengths that are conducive to engagement in treatment”, that he is “bright, articulate and a deepthinker”.

She also cites his “overt efforts to shift his lifestyle and behaviour as to best avail him to healthy opportunities, respectfulinterpersonal interactions and responsible conduct”. She also expresses confidence that “his commitment to his Christian faith, hiscontinuous activity within the church, and goals for ongoing and increased involvement with his children speak to his ability to makepositive and healthy choices”. [9] Dr. Sobkow also expresses concern that incarceration will be very onerous for Mr. Oghieakhe.

The basis for such a conclusionis his lack of experience “navigating the dynamics of a correctional institution, a situation which may because of his general prosocialorientation, “leave him isolated and/or victimized by more aggressive, manipulative and/or antisocial individuals”, and thus cause him tobe less likely to be open and participatory in sexual offender treatment programming, leading to “an erosion of the protective factors thatwill prevent his future offending”. Dr. Sobkow opines that Mr.

Oghieakhe is a good candidate for a community-based treatment planbecause this is where he is most likely to access the most appropriate treatment resources specific to his risk and needs”. She alsoexpresses that he would also benefit from probation supervision services offered by the Provincial Sex Offender Unit because he wouldthen be supervised by specially trained probation officers with “expertise in working with this offender population”.

The pre-sentencereport, although it mentions and recommends the need for probation supervision incongruously fails to make any mention of theavailability of this specialized probation unit. POSITION OF THE PARTIES [10] The Crown seeks a penitentiary sentence of three and a half (3½) years arguing that this is effectively mandated by the dicta ofthe Alberta Court of Appeal in R. v.

Sandercock, 1985 ABCA 218, a case which defines a “fit starting-point” for a major sexual assaultsentence as being three (3) years for “a mature accused with previous good character and no criminal record”. [11] Defence agreed that Sandercook set the starting point but emphasized “potential negative immigration consequences” andsought a sentence in the range of two (2) to two and a half (2½) years. The following cases were filed in support of such submissions: R. v. Pham, 2013 SCC 15 R. v. Azizi, 2017 MBQB 22 R. v. Bizimana, 2016 MBQB 172 R. v.

Milosevic, 2019 ABQB 199 Defence also cited major sexual assault cases where reduced sentences had been pronounced notwithstanding the general starting point: R. v. McKnight, 2020 ABQB 443 R. v. Kelkas, 2020 ONSC 3156

R. v. Allen, 2020 NWTSC 15 R. v. H.P., 2019 ONSC 6421 LEGAL FRAMEWORK [12] In R. v.

Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 the Supreme Court provided the following helpful guiding points forsentencing judges: • the inquiry must focus on the fundamental principle of proportionality; • individualization and parity of sentences must be reconciled for a sentence to be proportionate; • the trial judge must properly weigh the various principles and objectives of s. 718; • sentencing is an inherently individualized process; • sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve asguides for the application of all the relevant principles and objectives; • sentencing ranges should not be considered "averages", let alone straitjackets, but should instead be seen as historical portraits forthe use of sentencing judges, who must still exercise their discretion; and • sentencing ranges are primarily guidelines, and not hard and fast rules. [13] The sentencing principles according to s. 718 of the Code are denunciation, deterrence, rehabilitation and the protection ofsociety.

More specifically, according to s. 718 of the Code, the purpose and principles of sentencing are to: • denounce unlawful conduct and the harm done to victims or to the community; • deter the offender and other persons from committing offences; • separate offenders from society, where necessary; • assist in rehabilitating offenders; • provide reparations for harm done to victims or to the community; and • to promote a sense of responsibility in offenders and acknowledge the harm done to victims or to the community. [14]

Section 718.1 of the Code provides that a sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. [15]

Section 718.2 of the Code lists other sentencing principles that are relevant in this matter, such as: • a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; • where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; • an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and • all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to thevictims or to the community should be considered for all offenders. [16] Mitigating and aggravating factors must also be considered by a sentencing court. [17] The mitigants in this case are the offender’s lack of criminal record and his relative youth at the time of the offence.

Hisapology and courtroom expression of remorse for the harm he caused to the victim seemed sincere and also constitutes a secondarymitigant of sorts, although it was somewhat inconsistent with what he related to the pre-sentence report author. However it must beremembered that the sentence hearing apology was made after Mr. Oghieakhe received the pre-sentence report and the Victim ImpactStatement. This is a possible explanation for his seeming inconsistency.

I accept that he now realizes the seriousness of hismisbehaviour and is sincerely sorry for it regardless of his change in viewpoint. [18] There are two aggravating factors which certainly constitute the commission of a serious sexual assault. [19] Firstly, the assault has understandably had a devastating impact on the victim. She still experiences anxiety and depression andthe incident has made it difficult for her to trust others.

It has also taken a financial toll as she had to give up employment and withdrawfrom her educational aspirations. [20] The second factor was the degree of violation of the victim’s sexual integrity. The offender employed physical violence (heforcibly removed some of her clothing), had non-consensual unprotected sexual intercourse and then ejaculated on her stomach. CASELAW REVIEW [21] In R. v. Arcand, 2010 ABCA 363 at paragraph 171 (a case which amplified Sandercock) the court stated:

171 A sexual assault is a major sexual assault where the sexual assault is of a nature or character such that a reasonable person couldforesee that it is likely to cause serious psychological or emotional harm, whether or not physical injury occurs. The harm might comefrom the force threatened or used or from the sexual aspect of the situation or from any combination of the two. A major sexual assaultincludes but is not limited to non-consensual vaginal intercourse, anal intercourse, fellatio and cunnilingus.

We are satisfied thatassessing whether a sexual assault is a major sexual assault is well within the capacity of sentencing judges. [22] The defence case of R. v. Milosevic, 2019 ABQB 199 is a major sexual assault case where an offender received asentence of 30 months, six (6) months less than the Sandercock and Arcand starting point. The judge in this case also cites R. v. Sitko,2017 ABCA 434, a case where the offender received a two (2) year sentence for what was described as a major sexual assault on asleeping victim.

In Sitko there was evidence that the accused was essentially a person of better than average character with no record andno history of violence. The court determined that Sitko’s remorse was sincere and that his prospects for rehabilitation were excellent. The Milosevic court made similar findings but noted that the accused had not expressed remorse (he did not address the court at thesentencing hearing). [23] Defence also referenced R. v. H.P., 2019 ONSC 6421, a decision of the Ontario Superior Court, which relied on a series ofOntario cases where sentences under the starting-point were cited in support.

The judge, noting that there were two importantaggravating factors making the case a “relatively serious sexual assault”, breach of trust because the parties were involved in an intimaterelationship and also victim vulnerability as the victim was very vulnerable due to her high level of intoxication. The court sentenced theyoung offender to 12 months. The judge explained that she accepted H.P.’s letter of apology as a sincere expression of his remorse andthat she also felt that H.P. had “relatively good rehabilitative prospects”.

The judge remarks that she knows the sentence is “on the lowend of the range of sentences imposed in similar cases”. The Crown had argued for two (2) years less a day. [24] R. v. Allen, another case cited by defence was a Gladue case where the offender entered a guilty plea resulting in a jointsubmission and as such viewed by this court as being less pertinent as a sentencing precedent. [25] The court, having reviewed the other sexual assault cases filed by defence, does not feel that these are particularly relevant asprecedents because they are not on point.

For instance, two involve multiple complainants and the principle of totality. Another involvessentencing factors related to Gladue. THE IMPACT OF IMMIGRATION CONSEQUENCES [26] The court agrees with defence respecting it’s understanding of R. v. Pham, 2013 SCC 15 . Immigration consequencesare collateral consequences that can be considered in the sentencing process. But not as mitigating factors, only as a factor specific to theoffender and his circumstances. Therefore, any sentence must still be fit having regard to the crime and the particular offender.

Toquote from paragraph 14 “…a sentencing judge may exercise his or her discretion to take collateral immigration consequences intoaccount, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree ofresponsibility of the offender.” [27] In R. v. Azizi, 2017 MBQB 22 Greenberg, J. determined that likely immigration consequences i.e. the likelyprobability of being deported warranted a one year lower sentence for one of the co-accused she was sentencing.

Azizi, unlike ouroffender, faced deportation to a place where he had no connection since childhood, making his situation very difficult if not precarious. [28] This court is of the view that a deviation below the appropriate sentence is warranted in our case as there is a strong probabilitythat Mr. Oghieakhe will be personally devastated if he is separated from his children and fellowship community due to removal. DECISION [29] Although I perceive Mr.

Oghieakhe’s moral blameworthiness to be high, I do not think it just and necessary to over-emphasizethis factor in order to observe the paramount personal or public deterrence principle. This is because I perceive the offender as anexcellent candidate for rehabilitation. He was relatively young when the incident occurred, a first time offender and repentant respectinghis involvement. He was rated to be relatively low risk for reinvolvement. Of course I must impose a sentence that also satisfies theprinciples of denunciation and deterrence.

But the jurisprudence suggests that such a sentence should be the shortest sentence that wouldsatisfy such principles (see R. v. Thurairajah, 2008 ONCA 91 at paras. 41 and 42 and R. v. Brown, 2015 ONCA 361 at para. 7). [30] Balancing the mitigating and aggravating factors in this case, I pronounce a sentence of two (2) years less one day. Mycalculation was as follows: 36 months less 6 months in respect of immigration consequences and a further 6 months in relation to thefactors discussed in the preceding paragraph.

In my opinion this is a significant sentence that will still send a message to society thatengaging in non-consensual sexual activity will be taken very seriously by the courts. [31] I am also ordering a 24 month period of supervised probation following the offender’s release from custody.

In addition to thestatutory terms, the following conditions are imposed: • Report to probation services within 72 hours after release from custody and thereafter as directed; • No contact or communication with the victim directly or indirectly by any means; • Not to attend within two (2) city blocks of any place that you know the victim resides, works, worships or goes to school; • Attend, participate and satisfactorily complete counselling and/or therapy, including psychotherapy and sexual offender therapy, asdirected; • Sign any consents or releases of information forms required to allow your probation officer to monitor your compliance with thisprobation order.

[ 32 ] The offender is also ordered to provide a sample of his DNA pursuant to s. 487.051(1) of the Criminal Code . There will also be an order under s. 490.012(1) of the Code requiring the offender to comply with the Sex Offender Information Act for 20 years. As well, there will also be a s. 109 Criminal Code weapons prohibition for life. “original signed by:” _______________________ CORRIN P.J.