R. v. Elbasani Date:, 2012 BCPC 211

Citation: R. v. Elbasani Date: 20120501 2012 BCPC 0211 File Nos: 188590-2KA 188686-2C, 189055-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DARDAN ELBASANI BAN ON DISCLOSURE s. 486.4(1) CCC ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. W. JARDINE Counsel for the Crown: J. Lopes

Counsel for the Defendant: J. Percival Place of Hearing: Surrey , B.C. Date of Hearing: April 4, 10, 2012 Date of Judgment: May 1, 2012 INTRODUCTION [ 1 ] THE COURT: This is a very difficult sentencing. Mr. Elbasani has pled guilty to three separate counts on three separate Informations. Two of the Informations involve assaults of women in their 50s who were strangers to him. The nature and circumstances of those assault cases are serious and bizarre. One is a sexual assault causing bodily harm.

The breach of recognizance was committed while he was on judicial interim release on the assault simpliciter charge which arose on the 14 th day of May 2011. He was released on bail and walked away from VisionQuest Recovery Centre, a place where had been released with conditions of curfew and with conditions that he not be out of the centre except in the company of a staff member. OFFENCES AND SENTENCING PROVISIONS [ 2 ] In the order of the dates of each offence, the statutory sentencing provisions provide as follows:

(1) The Crown proceeded summarily on the Information charging the assault of W.S. contrary to s. 266 of the Criminal Code . Pursuant to s. 787(1), the legislated sentence is "a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both."

(2) The Crown proceeded summarily on the breach of recognizance Information which is a charge contrary to s. 145(3) of the Criminal Code . Section 787(1) also applies to that provision as the legislated sentencing regime.

(3) The most serious offence is the sexual assault causing bodily harm of M.G. on June 16 th , 2011. Section 272(2)(

b) provides for imprisonment for a term not exceeding 14 years. HISTORY AND BACKGROUND [ 3 ] The guilty pleas were entered on August 26 th , 2011. Mr. Elbasani had been arrested on July the 23 rd , 2011, in Ontario and had made a confession to the authorities in Ontario in which he had minimized his actions. He at that time asked for help for his mental health problems. He also wrote an apology letter to M.G. [ 4 ] After the pleas had been entered, Crown counsel and defence counsel both submitted that the circumstances warranted a Presentence Report and a full Psychological/Psychiatric Assessment.

Sentencing was adjourned to November 1 st , 2011. The reports were ordered by the court. [ 5 ] On November the 1 st , 2011, the sentencing was adjourned in order to clarify the risk assessment provided by the report of Dr. LaTorre and the psychologist, Ms. DeSorcy. In addition, the court wished to consider the effect of a further period of drug abstinence on the mental health issues relating to Mr. Elbasani. To that end, a further psychological and psychiatric update was requested by the court.

The sentencing was adjourned to January the 18 th , 2012. [ 6 ] At around the middle of January there was a change of counsel and the proceedings were then adjourned again in order for new counsel, Ms. Percival, to prepare Mr. Elbasani's sentencing submissions and get herself up to speed on the circumstances of her client so that full submissions could be made on his behalf. [ 7 ] The submissions were made by counsel for the Crown on April the 4 th , 2012. Ms.

Percival commenced her submissions and led evidence April the 10 th , 2012, and we are here, May the 1 st , 2012, for the purposes of me providing my reasons for the sentencing of Mr. Elbasani. FACTS [ 8 ] The structure of how I am going to proceed with the factual recount is on each of the Informations in a chronological order. [ 9 ] As to Information 188686-2-C, the following facts are relative and probative to the sentencing. On May 14 th , 2011, W.S. was at the Peace Arch Hospital in White Rock. She was visiting her mother, who was in a coma upstairs in the hospital. At approximately 7:55 a.m.

W.S., who was at that time 55 years of age, went into a women's washroom in the Emergency Department of the hospital. When she entered one of the stalls was occupied. She went into another stall. The person in the stall which was occupied was quiet; however, she noted a pair of large footwear on the person in that stall. [ 10 ] When she left the stall she went directly to the sink area in order to wash her hands. Her back was presented to the stalls in the washroom. At that point she was grabbed forcibly from behind. Her face was pulled to one side, the person's hand and arm across her chin and neck.

The male had his other arm around her body and he pulled her against the front of his body, her body being towards him. As he did that W.S. was able to turn her body. She looked at him, screamed and pushed him away. Mr. Elbasani advanced towards her, saying, "Shh, shh." He also told her words to the effect that she should be quiet. W.S. was able to run from the washroom. Mr. Elbasani walked out after her.

[ 11 ] There were two men in the Emergency Department and W.S. communicated with them, calling for help. She identified Mr. Elbasani to those men and the two men then followed Mr. Elbasani as he left the hospital. Mr. Elbasani essentially remained in their sight and they subsequently pointed out Mr. Elbasani to the police, who had attended to the area in response to the alarm. Mr. Elbasani was arrested. [ 12 ] At the point of his arrest Mr. Elbasani had fresh scratch marks on his left arm. He smelled of liquor. He told the police that he was using steroids and cocaine.

He told the police he was suicidal and that was the reason why he was at the hospital. [ 13 ] Following his arrest, Mr. Elbasani was seen by Dr. Dilli on May 16 th , 2011, as part of an overnight assessment. Mr. Elbasani was found, in the opinion of Dr. Dilli (from a short interview), fit to stand trial. Dr. Dilli also was of the view that Mr. Elbasani was Certifiable under the provisions of the Mental Health Act . He arrived at a preliminary diagnosis of "bipolar disorder compounded by alcohol and crack cocaine abuse" with a history of "post-traumatic stress disorder." [ 14 ] A second psychiatrist saw Mr.

Elbasani the following day and determined that in his opinion Mr. Elbasani was not Certifiable. That psychiatrist attributed the symptoms that he noted with respect to Mr. Elbasani to substance abuse and arrived at a diagnosis of "an organic mood disorder." [ 15 ] Mr. Elbasani appeared in court. He was released on judicial interim release on the 1 st of June 2011 with a number of conditions, which included a curfew and a condition requiring him to reside at VisionQuest Recovery Centre and not leave except in the company of a staff member from the facility. [ 16 ] Information 188590-2-KA. On June 11 th , 2011, Mr.

Elbasani left the VisionQuest Recovery Centre, thereby breaching the terms of his bail. He did not return. [ 17 ] Information 189055-1. At approximately 5:45 a.m. on June 16 th , 2011, M.G., a woman of 54 years of age, was taking her daily walk through Southmere Village Park in South Surrey. This quiet residential area was well lit at the time by the morning sun. As M.G. approached 16 th Avenue on the footpath she saw Mr. Elbasani come out from the bushes. He was in front of her. He appeared to be zipping up the fly of his pants. He said, "Oh, hey, how you doing?" M.G. said, "Fine," and she continued on her walk.

At that point Mr. Elbasani moved directly at M.G. She became alarmed and started to scream as he grabbed her left arm. He punched her in the face area. It was unclear from the facts how many times she was struck. As a result of the force of the blows she fell backwards onto the ground. Mr. Elbasani stood over her. He unzipped the fly of his pants. He pulled out his penis. He then straddled M.G. and put his penis about a foot from her face. He said, "I want you to take my dick in your mouth," several times as he stood over her. M.G. refused.

He then punched her in the head area one more time, a forcible punch, and left. M.G., alone in the early morning in the park area, was terrified. She went to the local RCMP office. It was closed. She went home and called the police. The police came to her home and interviewed her. [ 18 ] Her clothing was seized. The scene at Southmere Park was photographed. Her injuries were photographed June 16 th , June 18 th and June 20 th 2011. Those photographs formed Exhibit 1 at the sentencing proceedings.

It is clear from an examination of the photographs, particularly as the bruising developed and changed from the initial redness to dark purple and yellow, that she was punched forcibly in the area of the shoulder; in from the shoulder to the collarbone; above her left eye; to the occipital area of her left cheek; to the chin area of the left portion of the lower part of her face; and a forcible blow above and to the back of her head behind her left ear. The only reasonable inference from the number of bruises, the location and the surface marks is that she was punched somewhere from five to seven times.

When I say "punched," the force of the blows and the nature of the bruises are inconsistent with an open hand, but they are consistent with blunt force in the form of something hard when one examines the nature of the marks left. [ 19 ] Not only were there punches, she was also forcibly grabbed.

When one looks at the bruising to her left arm and in the area of her left shoulder and collarbone, it is obvious that she was grabbed over the top of her forearm on the distal area of her arm and that the other marks are consistent as well with blunt force trauma to the shoulder, the collarbone and the neck area. [ 20 ] During the continuing police investigation, the police accessed videotape from the businesses close to Southmere Park. From the video examination they were able to observe Mr. Elbasani walking on 152 nd Street, not a great distance from the park, within ten minutes of the assault of M.G.

In addition, during the course of the investigation the authorities took DNA from the clothing of M.G. and that DNA has been linked by assessment and analysis to a sample in the National Data Bank which had been provided by Mr. Elbasani following his robbery conviction from February the 28 th of 2008. [ 21 ] As a result of the circumstantial link between the time, the location and the DNA, the police and the Crown laid charges. Warrants were issued for his arrest on July the 15 th , 2011. All attempts to find Mr.

Elbasani in British Columbia had been unsuccessful. [ 22 ] He was subsequently arrested in Ontario on July the 23 rd , 2011. After his arrest he told the police there that he had grabbed M.G., that he had punched her once and he denied showing her his penis. He wrote, however, an apology letter to M.G. while he was in custody with the Ontario authorities.

He also asked of the police in Ontario that he receive help for his "mental health problems." [ 23 ] From my review of his arrest and his continued detention, as he has been in a reverse onus and has not sought bail since his arrest, he has been in custody as of today for nine months and ten days. [ 24 ] Those are the relevant facts for the purposes of determining the fit and proper disposition in these three matters. CIRCUMSTANCES OF THE OFFENDER [ 25 ] Ms. Percival, in her usual fashion, has said all that could be said for Mr. Elbasani. She prepared his sentencing submissions thoroughly. Ms.

Percival tendered a number of exhibits, as well as calling the father of Mr. Elbasani, Mr. Nysret Elbasani, as a witness.

Those exhibits and the testimony of Mr. Elbasani senior provide a significant amount of information about her client. [ 26 ] In addition to the letters and testimony, Exhibit number 4 in this proceeding is the criminal record of Mr. Elbasani. When he was 19 years of age he was convicted of robbery on February 28 th , 2008. I am told that the robbery occurred in 2006. He pleaded guilty to that charge. He was sentenced on February the 28 th , 2008, to one year in jail.

Given his youth, the nature of the robbery and the submissions of counsel, the court placed him on a Conditional Sentence Order for a period of one year. Therefore, he was permitted to serve his jail sentence in the community. He was also sentenced on the same date to a subsequent probation order of one year with strict terms and conditions.

He was able to successfully complete his sentence. [ 27 ] From the history and self-reporting within Exhibits 5, the Presentence Report, Exhibit 6, the first Psychological Report of October 25 th , 2011, and Exhibit 7, the subsequent Psychological and Psychiatric Report of January the 10 th , 2012, he was, at the same time, involved in a number of negative peer group activities and remained involved in the drug milieu and interacting with people from that community. [ 28 ] He asserted that in 2009, and I am told that this has been confirmed by medical information, he was involved in events related to his continued use of cocaine.

As a result of conduct by him, he was subjected to a beating where he was held under water, burned with lit cigarettes and struck on the back of his head with a machete. He was at that time, by his self-disclosure, associating with known gang members and drug dealers to enable him to continue to access cocaine. He told the interviewers that following the beating that he sustained he continued to abuse cocaine. He began taking significant amounts of steroids to enable him to train and bulk up so that he could become stronger so that he could defend himself should others try to confine him and beat him again.

This history was provided to the probation officer who prepared Exhibit 5, to the psychologist who assisted in the preparation of Exhibit 6 and to the psychiatrist who prepared Exhibit 6 and Exhibit 7. This history was also confirmed by his father, Nysret Elbasani. [ 29 ] During the periods of 2008, 2009, 2010, into 2011, Dardan Elbasani was working for his father doing metal roofs. Over time conflict arose within the family. In 2010, Mr. Elbasani became estranged from his family.

During the early part of 2010, his mother told him to leave her residence after she had become aware that her son had stolen from his father. Mr. Elbasani went to detox for help with his drug, alcohol and steroid misuse at that time. In early 2011, Mr. Elbasani stole money from a company account in a company which was set up for him by his father in the roofing business. The money was his father's. The money was the company's money, but Mr.

Elbasani self-reported that he took some $5,000 from that company in order to "party." He told the interviewers that he spent it all in one night on drinking, drugs, gambling and taxis. [ 30 ] Given the mental health issues, the addiction issues, the steroid abuse issues, the post-traumatic stress disorder issues with which he struggles, it is significant that his parents both knew of the thefts but did not report them to the police. They tried to help and protect their son and, in particular, his father said he tried to help him and he tried to talk to him, but Mr.

Elbasani did not listen to his father. [ 31 ] In the spring of 2011, his family had reached the point where they had essentially, according to his father, given up on their son and, in the instance of his sister, her brother. They had tried to help him but he was not listening. Then Mr. Elbasani disappeared. Mr. Nysret Elbasani described his son as someone who was, at that time, "not safe." He said that he was of the view that his son was out of control due to his substance misuse. [ 32 ] Nysret Elbasani also described his son from a completely different view when his son was clean and sober. When Mr.

Elbasani was sober and working, he was described as a "great worker." It is apparent from the letters and from his father's testimony that Mr. Elbasani is a very hard worker when sober. He is a capable roofer when he is not suffering the paranoia of the ups and downs of substance abuse. Mr. Elbasani senior also said that he has seen his son become more himself in the last eight months. He said it in this simple term," that jail had been good for his son". He said of his son that during the last visits in jail, he was presenting as "the best he had seen him" in the past two years. [ 33 ] Mr.

Elbasani, having heard the evidence of his father, must be aware that his father has again offered further financial, employment and emotional stability to his son in order to help him. His father has been impressed by the change in Mr. Elbasani since he has been in jail.

It is the view of his father that his son needs more help than jail. [ 34 ] For the purposes of this sentencing, the relevance of the letter of his mother, Exhibit 8; the letter from his sister, Exhibit 9; the letter from his father's friend, Exhibit 10; and the testimony of his father, is that it is clear that the family and close family friends have changed their position over the past six to eight months about Mr. Elbasani. They are now again offering him a helping hand and support once he is released again into the community.

That bodes well for his continued rehabilitation once he has been released from jail. THE CONTENTS OF THE REPORTS [ 35 ] I have reviewed, during the course of my deliberations as to the fit and proper disposition in this sentencing, the Presentence Report, Exhibit 5. Much of the content of that report is now dated. It was prepared in the fall of 2011. It has, in my view, little to add to the sentencing process as it has been supplanted by other evidence. There is, however, in Exhibit 5, one passage which is of significance to me in assessing what Mr.

Dardan Elbasani's attitude and understanding was regarding each of these offences. At page 5 and page 6, it is clear that he is being considered by the probation officer for the purposes of recommendations. What is significant is that he told the probation officer the following: Dardan reports he can take no responsibility for the offences he committed because he was under the influence of steroids, cocaine and alcohol. He reports he doesn't remember anything and cannot believe he would be capable of such behaviours.

Dardan does accept that when he is using he turns into a completely different individual who is more aggressive and out of control. Dardan does minimize his misuse, attributing others as contributors of his misuse. [ 36 ] The writer of the Presentence Report also provided information at page 6 related to programming to deal with substance abuse

management, sexual offence counselling and follow-up sexual offender maintenance programming, including the fact that there are community counselling/therapeutic/programs at the Forensic Psychiatric Service, which includes a 15-week group sex offender program. This was included as one of the strongest submissions of Ms. Percival with respect to what she submitted was the fit and proper disposition in this matter. [ 37 ] Exhibit number 6 contains significant information in a number of parts. It, too, is at this stage somewhat dated with respect to the interviews of the family of Mr.

Elbasani and the collateral information provided by his father to the writers of the report. Some of the materials have changed due to the family's change in position; moving from having essentially given up on their son and brother to the position of again offering stability in the community. At page 8 of 16 Mr. Elbasani provided to the writer of the report his version of the offences. At that portion of the report, commencing at the top of page 8 of 16, the writer provided the following: Mr.

Elbasani pleaded guilty to all three of the charges, but compared to the police reports and victim accounts, he minimized the events significantly. Mr. Elbasani stated that the assault occurred in the ladies' bathroom at the hospital where he went to seek help for self- harming behaviour after a night of drinking and cocaine use. He indicated that when he arrived at the Emergency Room he began to feel paranoid and, therefore, entered into the women's bathroom and hid in a stall.

According to his account, he 'grabbed the person's arm' and then 'ran out.' He stated that he felt as though the police were following him so he turned himself in. It was following this incident that Mr. Elbasani was ordered to attend VisionQuest Recovery House, where he was to remain between the hours of 10:00 p.m. and 7:00 a.m. every day. Mr.

Elbasani stated that he left the recovery house residence because he was feeling suicidal and the staff refused to take him to the hospital even though he was 'crying non-stop.' He indicated that he took a taxi to White Rock and 'hid out at a friend's house' until he was arrested for the sexual assault charge. He did not seek medical intervention for his suicidal thoughts. Mr. Elbasani reported that he quickly began using cocaine, steroids and alcohol while in hiding. Mr.

Elbasani stated that he was 'coming down' off drugs the day of the sexual assault and he was 'unstable.' He claimed to have no memory of the assault. He then went on to state that he remembers being on a walk near his mother's house and that he said, 'Hi,' to the victim. From that he indicated that the rest is 'kind of a blur.' He was able to recall that when the woman passed him he 'lost it and it happened.' He indicated that he thought it was a dream. [ 38 ] Page 10 of 16, "Diagnostic Formulation," third paragraph at AXIS I: Mr.

Elbasani has reported frequent use of cocaine and alcohol, and reported tolerance for increased amounts of each substance. He has spent much of the past few years in the pursuit and use of these substances, and as a result has experienced social, occupational and health dysfunction across many areas of his life. Further, he has not been able to successfully stop using these substances on his own, except as a result of incarceration. Consequently, Mr. Elbasani meets criteria for Cocaine Dependence and Alcohol Dependence.

He also meets criteria for Other Substance Abuse for his steroid use as it has led to persistent interpersonal problems. Given Mr. Elbasani's recent experience of trauma, it is also possible that he is suffering from Post-Traumatic Stress Disorder. Many of his ongoing concerns may be related to that incident; specifically his increased anxiety, nightmares, hypervigilance, difficulties with sleep, irritability and poor concentration and diminished interest in activities.

At the same time, his longstanding substance use may also account for many of these symptoms and, therefore, a definitive diagnosis cannot be made at this time. [ 39 ] At page 11, AXIS II: Mr. Elbasani evidenced many traits that are consistent with Antisocial Personality such as deceitfulness (stealing money from his father's business on multiple occasions, inconsistent reporting of history), impulsivity (stealing drugs from known drug dealers), irritability and aggressiveness and lack of remorse (minimizing his role in assaults and attributing responsibility to drug use).

However, there is no evidence of Conduct Disorder and, therefore, he does not meet the full diagnostic criteria for Antisocial Personality Disorder. [ 40 ] At page 12, given the nature of the assaults here, we have, with respect to the analysis by the psychologist and the psychiatrist and the use of the reports related to risk assessment, the following. It is at page 12, the heading "Additional STABLE – 2007 factors that are relevant in this case are:" 2. Hostility toward women. Mr. Elbasani speaks very negatively of his mother.

These factors suggest he may have some feelings of hostility towards females. [ 41 ] As a result of the tests conducted, the assessment conducted, the self-reporting of Mr. Elbasani, the file information and, in particular, as a result of a lack of personal support reported at page 15 of 16, the position taken by Dr. LaTorre and the psychologist, Ms. DeSorcy, was that their consideration of the risk assessment suggested that Mr. Elbasani presented a very high risk for future sexual violence and a high risk for general violence .

As a result, a number of recommendations were made; including a sex offender treatment program, a violence prevention program, followed by relapse prevention programs. They also suggested that there should be significant drug and alcohol treatment in a structured program and a structured environment that offered strict supervision in order to succeed in recovery and continued monitoring and treatment once released into the community to ensure his abstinence from all drugs, in particular, steroids and cocaine.

Given the history and the diagnosis that he may be suffering from Post-Traumatic Stress Disorder as well as the side effects of his substance misuse, it was thought best that he also have treatment and counselling to deal with that mental health issue. [ 42 ] The updated report, Exhibit number 7, from January the 10 th of 2012 stated that there were three separate interviews for the purposes of the preparation of the update. At page 2 of 8, Mr. Elbasani reported to the interviewer that his mother had Bipolar or Manic Depressive Disorder, that her mother and brother had the same diagnoses.

All three had been prescribed medication. He also described to the interviewer that his mother had a gambling problem that preceded her bipolar symptoms and that it was still problematic. His mother had a history of prescription medication abuse and a history of alcohol abuse that developed after the marital separation from his father. His parents separated when he was 20. He also disclosed that he had worked for his father's roofing company for the past five years. The first three years he was a hard worker but that changed with his use of cocaine and alcohol. Toward the end of that period he

additionally became depressed and became fearful of heights. He told the interviewer that his father had put a company under his name and that Mr. Elbasani took money from that company that was really his father's. He and his father had a falling out as a result and as his father was his major and last support, that things went downhill rapidly from there.

He described his father as "the most important person in my life". [ 43 ] His explanation with respect to the index offences for the purposes of the preparation of the follow-up is also of some relevance to his insight and his acceptance of responsibility for his conduct as outlined in the facts earlier. He said, with respect to the 14 th of May, the following: On 14 May he cut himself nine times on his left forearm (no scars are evident). He intimated suicide and ran off feeling paranoid that people were following him. He said he went to the hospital where he committed the index assault.

People followed him after the assault and he surrendered to the civilians before the police arrived. What is significant is that there were scratches on his arm from W.S. following his arrest: He said, with respect to VisionQuest, that at VisionQuest the staff was always sleeping and Mr. Elbasani had emotional issues he wanted treatment for. After 10 or 11 days he left VisionQuest because he did not feel he was getting the treatment he needed. He said five days later he committed the sexual assault causing bodily harm in the morning of the 16 th of June 2011.

He said that he had partied all the previous night and that partying included the use of cocaine. [ 44 ] At page 7 of 8 and at page 8, it is clear that as a result of the change in the position of the family of Mr. Elbasani that Dr. LaTorre arrived at a different level in the risk assessment. He said, in the second last paragraph on page 7 of 8, the following: The score of 12 according to the authors of the test suggests high needs. This is the same category into which he was placed in the earlier report. Mr. Elbasani appeared, however, to be near the cut score for the two categories of moderate and high needs.

The cut score is 11 for moderate and 12 for high. Dr. LaTorre continued: As noted earlier, the risk estimate is based upon a matrix considering the results of the STATIC and the STABLE. With high risk on the static and high needs on the stable, Mr. Elbasani's overall risk estimate is relatively Very High. This is the same category into which he was placed in the earlier assessment; however, with Mr. Elbasani hovering so close to Moderate Needs, I have considered that Moderate Needs with High Risk on the STATIC would provide an overall risk estimate of High. Clinically, I would agree that Mr.

Elbasani's risk of future violence of some form would be relatively High to Very High without effective intervention (emphasis added). He then continued, "Mr. Elbasani's risk may be reduced if the following recommendations are followed," and he asserted: I would recommend that Mr. Elbasani participate in and successfully complete a high-intensity sex offender treatment program and that he subsequently participate in a sex offender relapse prevention or maintenance program. He continued: I would recommend that Mr. Elbasani participate in substance abuse treatment and relapse prevention.

I would recommend that for any period of community release Mr. Elbasani have the condition that he not possess or use alcohol, steroids or illicit substances. He continued: I would recommend that Mr. Elbasani be monitored with urinalysis, serum analysis and/or hair analysis to ensure he is complying with the abstinence condition. He continued: I recommend that Mr. Elbasani be provided psychological treatment to address post-traumatic sequelae. VICTIM IMPACT – CONSEQUENTIAL HARM [ 45 ] W.S. has been affected deeply by the assault. She has experienced emotional and physical stress for a number of months.

The physical and emotional impact on her emotions are eloquently expressed by her in Exhibit number 2. She said: The first night following the offence I slept with a baseball bat. I had nightmares in which his face would appear and I could hear him saying, 'Shh, be quiet,' over and over again. The weeks and months following the offence I was afraid to go out alone at night. I still hesitate when going past a public washroom. My whole body is stressed. I have had pain all over for weeks, my knees, my elbows, my shoulders and my neck are still sore.

She continued: Staff wanted to check me out after the attack and all I could think about was my mom upstairs in a coma. The day after the attack she passed away in the same hospital a few floors above. [ 46 ] W.S. needed to take time off. She had counselling. It is clear that the emotional and psychological damage is significantly more serious than the physical injury which she suffered in what was not a forcible assault by her. That is reflected in the fact that the Crown has proceeded with a

summary conviction assault charge. It is apparent that the true impact on W.S. has been the impact of the

emotional and psychological hurt which, of course, is exacerbated and aggravated by the fact that whenever she thinks of the passingaway of her mother it is coupled with the assault by Mr. Elbasani. [47] M.G. is much more resilient. She has responded to this serious personal injury offence with courage and resolve. She makesnote in her victim impact statement of having moved on after the bruising left. It is not the physical effect of the forcible blows to herthat has done the damage, it is the psychological and emotional distress.

The after effects of the sexual assault causing bodily harm haveremoved from M.G. her sense of being safe in her own community. It is a fact that she has been robbed of her physical andpsychological integrity by the conduct of this offender. There is no question that she was violently attacked. The degree of force wasnot minimal. The element of sexuality aggravated the character of this assault. The method and means was one of an attempt todominate. It could not, in the context, be for anything more than power. There was no aspect of sexual gratification. Her refusal causedher to be struck again before Mr.

Elbasani fled. Her last sentence of her victim impact statement states it succinctly from herperspective. She said: Emotionally is where the toll has been taken. I still feel vulnerable and deeply saddened that I am not able to feel safe in my ownneighbourhood. THE CROWN SUBMISSIONS [48] Crown counsel submitted that the fit and proper global sentence range for the three offences is four to five years ofincarceration, minus the presentence custodial credit appropriate under s. 719.3. Crown counsel provided a written outline of the oralsubmissions, which was of much assistance for note taking.

I will summarize briefly some of the report without doing, of course, fulljustice to the force of her submissions, but for ease of reference and fullness of my reasons, the following passages will be read by me. Crown counsel submitted the following: Sentences for sexual offences vary a great deal and make finding case law on point difficult. Sexual assault occurs under a wide varietyof circumstances by a variety of offenders; however, because of the nature of non-consensual touching that is inherent in any sexualassault case, they are by their very definition grave offences.

The Supreme Court of Canada has enunciated the societal prohibition against sexual assault in R. v. Ewanchuk (SCC),1999 1 SCR 330 at paragraph 28. I am not going to read that paragraph, I will summarize it briefly. Society is committed to protecting the personal integrity, both physicaland psychological, of every individual. Furthermore, the Supreme Court of Canada, in R. v. McCraw 1992 3 SCR 72 at paragraph 28, has recognized the significant impact thateven the threat of sexual violence may have.

The quotation from paragraph 28 is apt: Let us consider a threat to rape in general terms without reference to the specific language of the letters. Violence is inherent in the act ofrape. The element of sexuality aggravates the physical interference caused by an assault. Sexual assault results in a greater impact onthe victim than a non-sexual assault. This has been reflected in the penalty provisions for sexual assault, which are significantly higherthan for non-sexual assault offences.

In addition, this is emphasized by the fact that the definition of a 'serious personal injury offence' ins.752 of the Code includes the commission of a sexual assault or an attempt to commit that offence, thus, Parliament has recognized thegravity of sexual assault. Crown counsel continued: For these reasons, the range of applicable sentence in sexual assault causing bodily harm cases must be significantly higher than inassault simpliciter cases. The gravity of the offence on the personal integrity of the victim is acknowledged in the sentencing regimes.

Crown counsel submitted forcibly that the court should follow the approach and the ranges articulated in R. v. W.N.C. 2005 BCCA 346and in R. v. Darling 2002 BCCA 627. [49] As to mitigating factors and aggravating factors in the balancing process of sentencing, Crown counsel submitted thefollowing: That the mitigating factors for Mr. Elbasani are: (1) his guilty pleas; (2) his expression of remorse; (3) his young age; and (4) his willingness to undergo treatment. The aggravating factors for Mr.

Elbasani are: (1) the first assault was a random and unprovoked attack on a woman in a public washroom; (2) the second attack was a vicious attack of a defenceless woman in a public park with a sexual component; (3) the level of violence was escalating;

(4) he was bound by bail conditions at the time of the sexual assault causing bodily harm; (5) he fled the jurisdiction to avoid apprehension; (6) he poses a significant risk to public safety, according to the reports; (7) he has a previous conviction for an offence of violence; (8) he caused emotional harm to the victims; (9) he caused physical harm to both victims and in one case it amounted to bodily harm; (10) he caused the community to fear for their safety due to the need of police, due to two assaults in the South Surrey White Rock area within some 32 days, to make it public that people should be careful. [ 50 ] The Crown's submission was that the sentencing principles of denunciation, deterrence and reparation are important factors in sentencing Mr.

Elbasani. However, the most important factor is the protection of the public. Mr. Elbasani, in the submission of the Crown, presents a danger to society based on his criminal record and the results of the reports prepared, which indicate a moderate to high risk to re-offend. This is especially significant, in the Crown's submission, because the attacks were on women in public places. Every woman deserves to walk freely in our community without fear of physical or sexual violence. The only way to ensure that Mr.

Elbasani does not repeat his behaviour is for him to serve a significant custodial sentence and receive treatment, followed by monitoring in the community. [ 51 ] Denunciation is the second factor of importance in this type of sentencing. The courts must send the message that violent and unprovoked attacks upon women will not be tolerated. [ 52 ] Rehabilitation plays a factor to a lesser extent than protection of the public and denunciation. [ 53 ] It is the position of the Crown that Mr. Elbasani has little to no insight as to his behaviour and that he has not been changed by his last sentence.

His continued criminality and the level of violence perpetrated increased, in the submission of the Crown. [ 54 ] The Crown's position was for a global sentence, as I have indicated, of four to five years. THE DEFENCE SUBMISSION [ 55 ] Ms. Percival has presented evidence and submitted forcefully that her client has changed significantly over the past eight months. That is the position of Mr. Elbasani's family. The Offences [ 56 ] The position of the offender is that these offences were drug and steroid induced and do not accurately reflect who and what he is as a person.

He has been co-operative with the authorities. He recalled that the first assault in the washroom did not involve him grabbing W.S. He expressed the view that he could not continue to stay at VisionQuest Recovery Centre as he was getting no help. He stated that he was drinking and using cocaine daily during the days around the sexual assault. It is his position that he has no recall of it. [ 57 ] Ms. Percival drew to the attention of the court that Mr. Elbasani's remorse was quickly expressed to the Ontario authorities to whom he gave a statement on apprehension. He also wrote a handwritten note of apology.

In addition, he entered early guilty pleas, accepting responsibility for these offences, in Ms. Percival's submission. [ 58 ] The defence position is that these offences are bizarre and no doubt the product of substance abuse. Neither substantive offence was premeditated or planned. The injuries suffered are not denied by Mr. Elbasani, but the only reasonable inference for the court and explanation is that his mind was, at the time of these offences, functioning irrationally due to the substance abuse that he was in the throes of dealing with.

That was, of course, exacerbated by the steroid misuse and his ongoing Post-Traumatic Stress Disorder. [ 59 ] As to the offender, Ms. Percival argued that Mr. Elbasani is young, he is suffering from Post-Traumatic Stress Disorder due to the beating he experienced March 16 th , 2009. He was 18 years old at the time of his first offence. He is 23 now. He was in the throes of his drug abuse in May and June of 2011. Moreover, Ms.

Percival argued, his family, who had essentially given up on him as expressed in their earlier interviews, have now expressed in the letters and in their testimony at this sentencing that they have seen a change in him since he has been incarcerated. [ 60 ] As to the reports and the findings of Dr. LaTorre and the risk assessments contained therein, Ms. Percival submitted that the reports are stale and do not accurately reflect her client as he presents today. In the case of Dr. LaTorre's two reports, Ms. Percival argued that the court should give little weight to the risk assessments.

The changes in the assessment of Dr. LaTorre as expressed at page 5 of 8 in the January 10 th , 2012, report, when compared with page 11 of 16 in the October 25 th , 2011, report should cause the court to question his opinion. The court should find that change in his report weakens his opinion considerably and the court, accordingly, should not accept his opinion or, at the very best, give it little weight, given those changes. The Defence Submission on the Fit Sentence [ 61 ] Ms. Percival submitted that the fit global sentence was in the range of two to three years.

Given the youth of her client and his successful completion of the strict 2008 Conditional Sentence Order and the strict Probation Order, it was submitted that the court could consider two years and three years of probation to follow. Since he complied then, such a sentence should be considered now, she argued. Ms. Percival reiterated the fact that her client is young. He has the support of his family. He should receive additional credit beyond the one-to-one credit due him having regard to the assessment under s. 719 of the Criminal Code because, due to the nature of

his offence, he has been held in segregation during the course of the past nine months. [62] It was submitted on behalf of Mr. Elbasani that a provincial sentence would enable him to be under a strict probation order forthree years beyond a jail sentence and that would be the fit and proper disposition for the court to impose in respect of this offender in thecircumstances of these three offences. LAW AND ANALYSIS [63] The purpose and principles of sentencing are now legislated in the Criminal Code.

The primary and overriding principle isthe principle of proportionality, having regard to the seriousness of the offence and the degree of responsibility of the offender. Theanalysis requires that trial judges strive for a sentence which is objective, reasoned, measured and which reflects the moral culpability ofthe offender and the consequential harm caused by his conduct. It is in the imposition of a just and appropriate punishment, and nothingmore, that the sentence will be fit and appropriate. [64] In R. v.

M.(C.A.), (SCC), 1996 SCJ No. 28, at paragraph 80, Chief Justice Lamer (as he then was)articulated the proposition very clearly. I will not quote from that paragraph in order not to be longwinded, but simply say that I amguided by it. [65] Also guiding the analysis are the purposes of sentencing set out in s.718. The different headings within that

section require ofthe court an assessment and determination of the weight to be assigned in the balancing of the factors to each of the purposes. That is setout in R. v.

M.(C.A.), supra, at paragraph 82. [66] The objective of denunciation mandates that the court communicate society's condemnation of the offender's conduct in thecontext of the offence for which the sentence is imposed. [67] The objective of deterrence requires a consideration of the need to deter the specific offender from further offending conductand to send a message generally to others of like mind that similar conduct will attract a similar sentence, which will reflect the gravity ofthe offence and the moral blameworthiness of the offender. [68] Separation from society, isolation if you like, may be required to protect society from an offender who has demonstratedthrough repeated conduct or, as a result of assessment, a high risk to re-offend or a dangerousness which requires incarceration ortreatment.

That is for the purposes of allaying concerns about further public safety. [69] Rehabilitation of the offender is another significant purpose of sentencing. The court should ask itself what may be achievedthrough treatment, programming, counselling or sobriety. Is there something about the offender which makes rehabilitation ofparamount importance? Has the offender begun the process of self-rehabilitation?

Is there a special program or a series of programswhich may alleviate the criminogenic factors present in the life of the individual offender? [70] It must be remembered that sentencing is an individual process, that while the community interests are of significantimportance, it is the responsibility of judges to craft the individual sentence to the individual offender, having regard to the individualoffences committed. That is why the paramount principle of sentencing is that set out in s. 718.1. [71]

Section 718.1 provides, "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender." It is a balancing having regard to an assessment of the seriousness of the offence and the nature and circumstances of theoffender in the commission of that offence. Moreover, I must consider s. 718.2(

b) and impose sentences for these three Informationssimilar to those sentences imposed on similar offenders for similar offences in similar circumstances. [72] I am indebted to counsel for providing, on the issue of range of sentence, the British Columbia Court of Appeal decision in R.v. Bernier 2003 BCCA 134 , 2003 BCJ No. 466. I am particularly guided by the remarks of Madam Justice Southin (as shethen was) at paragraphs 40 and 42; by Madam Justice Prowse, at paragraph 73 and 74; and by Madam Justice Newbury, at paragraphs105 and 106. I am mindful of the analysis to which I have already referred in R. v.

McCraw (SCC), 1991 SCJ No. 69,particularly paragraphs 21, 22 and 23. [73] It is the consideration and determination of those factors and the applicable law in analyzing the facts and the circumstancesof the offender that will inform the just and appropriate punishment to be imposed in these sentences. Range – Similar Cases [74] I have made reference to the decision in R. v. Bernier in the British Columbia Court of Appeal.

For ease of reference and toinform the listener as to how I have approached the issue of ranges and the submissions of the lawyers on the two authorities which havebeen utilized to guide me as to range in this sentencing, I have also taken the view as articulated by Madam Justice Newbury atparagraphs 105 and 106 as guiding me. She said, paragraph 105: With respect to the matter of ranges, they are general guidelines, not hard and fast categories. They do not preclude lesser or greatersentences if the circumstances or applicable principles in the particular case warrant.

The Supreme Court has, in effect, said this onmany occasions: see, e.g., R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, and R. v. McDonnell, (SCC),[1997] 1 S.C.R. 948. I find it useful to regard a range simply as a continuum within which cases may be placed depending on their factsand their relationship to the principles of sentencing.

She then explained the continuum and continued at paragraph 106: As mentioned earlier, I agree with the suggestion made by Madam Justice Southin that since Parliament has now codified the principlesof sentencing it would be better for courts to focus upon those principles and how they apply in particular cases, than on 'ranges.'(emphasis added)

[ 75 ] The range in this instance has been provided by W.N.C. 2005 BCJ No. 1389 , a decision of the British Columbia Court of Appeal in which they upheld the trial judge on a sentencing in respect of a sexual assault matter. The sexual assault matter in that case involved a complainant of some 17 years of age at the time that she was assaulted.

The consequences of the assault involved a significant aspect for both she and her family and there was a significant psychological and emotional impact from the nature of the assault, which was one where a knife was used and there was an attempt, unsuccessfully, of sexual intercourse. There was then a fleeing and it is apparent that the circumstances of the offender were particularly similar to the case at bar in the sense of him being young and of an age where rehabilitation is a significant feature for sentencing.

At paragraph 4 the court wrote the following: The appellant was 19 years old at the time of sentencing. He has no previous criminal record. He has an unenviable background. He was born in Romania to parents who separated when he was very young and left him in an orphanage. He and his three siblings were adopted and brought to Canada when he was four years old. He lived with his adoptive family until, when he was 12, his relationship with them broke down and he left home. He then lived in a group home for a short while and then a foster home until he was 18. He has lived on his own since.

He has no contact with his adoptive or foster parents or with his siblings. At the time of the offence he was living with a friend in an apartment. He had no female friends, which he attributes to his inability to form any such relationship because of his lack of social skills. He reported that the sexual assault was his first sexual experience. He has Grade 12 formal education. And he worked. He was assessed, there was a risk assessment.

He was a moderate to low risk to re-offend and would require close monitoring over months or years in the community at large. [ 76 ] At the sentencing hearing the Crown at trial sought three-and-a-half to five years. The sentencing judge reviewed the history. He referred to the aggravating and mitigating features and the sentence that was imposed by the trial judge was one of four years. The Court of Appeal did not touch that sentence. [ 77 ] The Court of Appeal's analysis at paragraph 17 is also informative to what a trial judge is to do as a sentencing judge. At paragraph 17, Mr.

Justice Smith said: Although the cases cited by the appellant are relevant in a general sense, each case must be assessed on its particular facts. It is not useful to list and compare between cases the discrete aggravating and mitigating factors and to assign a sentence based on the presence or absence of one or more of them. To do so lends an unrealistic and unwarranted air of objective measurement to the process. That is not a proper approach. The sentencing judge in this case considered all of the relevant sentencing factors, aggravating and mitigating.

He was entitled to weigh them and to give such weight to them in exercising his discretion as he saw fit. He then made reference to the approach of a Court of Appeal. [ 78 ] In R. v. Darling Chief Justice Finch of the British Columbia Court of Appeal at 2002 BCJ No. 2608 also discussed how an appellant court will review a sentencing. In that sentencing they were dealing with a sexual assault which contained some similarities to the sexual assault in the case at bar. He said, with respect to the judge's

summary, at the top of page 2 of 2 the following, "He straddled her on the bed, ripped at her brassiere such that he tore it, and he then punched her in the lip when she resisted." The assault took place in the complainant's home. [ 79 ] The sentence imposed at trial was one where the court relied upon the previous criminal record of the accused. In the view of the Court of Appeal the sentence over-emphasized it. The sentence imposed was 42 months. The trial judge said that a five year sentence was appropriate. The offender was 30 years of age.

Counsel for the appellant on appeal said the fit sentence would be three to four years imprisonment less the credit for pre-trial custody. The Court of Appeal, with the Crown conceding that the trial judge was in error, took the view that the appropriate sentence, having regard to the credit of 18 months, a two-for-one credit, upheld the sentence of two-and-a-half years in custody. [ 80 ] I am also mindful that I must, as a matter of law, consider two cases from the Court of Appeal and the direction of the Court of Appeal in the way in which I impose the sentence here. One of those is R. v.

Lavallee 2011 BCCA 531 . It is oral reasons for judgment from Madam Justice Bennett. At paragraph 34, the court made it clear yet again that trial judges are responsible as sentencing judges to calculate a fit sentence on each count, then deduct the pre-trial custody time and impose a sentence on each count, pursuant to s.719(3.3) of the Criminal Code and that it is inappropriate for the court to simply impose a global sentence.

The court has to break it down count by count or Information by Information. [ 81 ] As to the balancing, because all sentencing analysis involves a balancing of factors, I have considered the language of the British Columbia Court of Appeal in R. v. MacDonald 2012 BCCA 155 , a decision by Madam Justice Smith released on the 10th of April 2012, in which she gave direction to sentencing judges. She said: In my view, Mr. MacDonald has failed to demonstrate any error of principle, failure to consider a relevant factor or over-emphasis of a relevant factor by the sentencing judge.

With respect, there is nothing in the jurisprudence to support his submission that the extent of the injuries to a victim of an aggravated assault is determinative of where in the range of sentences the appropriate sentence should fall. While the extent of a victim's injuries is undoubtedly a relevant factor, it is the circumstances of the assault, including whether the attack was unprovoked, planned or spontaneous, or involved a weapon, that are most relevant to where in the range a particular sentence should fall. Thereafter, additional aggravating or mitigating factors may increase or decrease the sentence.

Fundamental to this balancing process is the overarching principle that a sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Court of Appeal reminding us yet again of s. 718.1 and the ultimate responsibility of the sentencing judge to fit the sentence within the legislated fundamental principle. [ 82 ] Those above-noted authorities direct my analysis and determination of the applicable evidence and principles in this case. Analysis

[ 83 ] All sentencing involves a balancing of the factors and their application to the guiding principles. In my view, the mitigating factors in this case are: (1) the early guilty pleas;

(2) Mr. Elbasani's relative young age; (3) his expressions of remorse; (4) his stated willingness to undergo treatment; (5) the support offered him by his family and, in particular, his father. [ 84 ] But I cannot leave it there. In my view, the support currently offered by Mr. Nysret Elbasani to his son merits some discussion. Mr. Elbasani senior wants his son to have help. He has helped his son before. His son stole from him. He did not report him, he protected him. His son was using drugs and "partying" at the time. As Mr.

Nysret Elbasani admitted, the family had pretty well given up on Dardan Elbasani by 2011. By that time Mr. Dardan Elbasani had been abusing alcohol, drugs and steroids for over two years. He was out of control. His lack of control, his impulsivity culminated in these two offences where the extent of violence escalated. He has now been clean and sober for some nine months, but the underlying psychological and behavioural problems still exist. [ 85 ] Ms. Percival submitted that he has taken full responsibility for his conduct by his pleas of guilt. I do not agree. Mr.

Elbasani has minimized his forceful grabbing of W.S. in the washroom. He did not simply grab her arm. Ms. Percival submitted he has no recall of the June 16 th , 2011, assault of M.G. He has said that to the probation officer, the psychologist and the psychiatrist, yet in his warned interview to the police in Ontario he admitted that he had grabbed M.G. He said he had punched her once. He denied at that time presenting his penis and demanding that she put it in her mouth.

Then, as now, he asserts he needed help for his mental problems, as he does today. [ 86 ] It is my view that he is not taking full responsibility for his conduct. He has substance abuse problems. He has mental health issues. He has a steroid induced anger management problem. He has underlying hostility issues related to women. He has attacked two strangers, women in their mid-50s, in a timeframe of just over a month. The violence has escalated. There is no explanation for the nature of these stranger attacks on vulnerable women. He has little or no insight into his motives or intentions on the evidence before me.

There is simply no explanation. Moreover, he was in the care of his father, of his mother, or residing with one or the other of them, through much of the time of his use and abuse of cocaine, drink and steroids. I am not of the view that the parents provide a management plan that we may be confident will allay further and future concerns about offending behaviour from Mr. Elbasani. [ 87 ] The aggravating factors include the following, in my view:

(1) The May 14 th , 2011, assault was a random and unprovoked assault of a woman, a stranger, in a public washroom, in a place of safety, a public hospital emergency ward;

(2) He was released on bail and breached those conditions within ten days;

(3) The June 16 th , 2011, assault, a sexual assault causing bodily harm, was a violent attack on a vulnerable woman with an aspect of dominance and degradation to it. He struck her repeatedly to force her to fellate him. When she refused he struck her again and then fled. Again we were dealing with a woman, a stranger, in her mid-50s, and it was an unprovoked and random attack in a circumstance in which she was merely out for a walk to exercise at the beginning of her work day;

(4) This was his third violence offence;

(5) Mr. Elbasani left the province to avoid apprehension;

(6) The consequential emotional and psychological harm to his victims was not minimal;

(7) His criminogenic factors and his psychological well-being are such that he presents a moderate to high risk to re-offend violently and a high risk to re-offend sexually. He has been engaged in antisocial behaviours for around six years. His associations, his drinking to excess, his abuse of cocaine, his abuse of steroids for extended periods, do not bode well for his future. It has taken time for him to be in the throes of his substance abuse and misuse. It will take time, counselling and treatment for him to maintain sobriety and remain clean from drugs and steroids.

If he does not remain clean and sober he becomes a danger to the community. ANCILLARY ORDERS [ 88 ] I am of the view, as counsel have outlined, that there is a mandatory order for me to order Mr. Elbasani to again, with respect to the third Information, that being Information 189055-1, the sexual assault causing bodily harm to M.G., that he provide a DNA sample pursuant to s. 487.051. This is a primary designated offence, there will be a fresh sample taken. [ 89 ] Pursuant to s. 109(2)(b), there will be a lifetime order of prohibition by Mr. Elbasani of the following.

I make an order prohibiting him from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance or any of those things for life. [ 90 ] And pursuant to s. 490.013(2)(b), I make a SOIRA order in Form 52 for 20 years. [ 91 ] I am indebted to both the Crown and to Ms. Percival for their clear attention to the Ancillary Order issues.

CONCLUSION [ 92 ] Balancing all the factors set out above, I am of the respectful view that the paramount principle and purpose of sentencing in this case is the protection of the public. The conduct of Mr. Elbasani, while abusing alcohol, cocaine and steroids, was escalating and he was becoming increasingly violent to women in situations where they had not in any way interacted with him. The victims, both women in their 50s and strangers to Mr. Elbasani, did not provoke his attacks on them. [ 93 ] In the June 16 th , 2011, attack he struck M.G. a minimum of five times.

The location and extent of the bruising provides circumstantial evidence from which the only reasonable inference is he struck at least five separate forcible blows to her person. His impulsive random act of violence, coupled with the standing over of M.G. and pulling out his penis, was

an act of domination and horrific and repugnant to society's normative expectations. The degree of violence, the context, the location, the position, the anger was representative of his hostility towards older women. [ 94 ] There is in the evidence and in the assessment and in his disclosure to all of the persons who prepared reports no explanation which assists in understanding why he did what he did; therefore, his actions give further weight to the psychological and psychiatric assessment of Dr.

LaTorre such that the protection of the public and vulnerable women is required and the paramount principle at this sentencing. He presents as a high risk to re-offend sexually. Moreover, in my respectful view, intensive sexual treatment is required; therefore, from a rehabilitative perspective and in accord with pages 15 and 8 of Dr.

LaTorre's two reports, such counselling and a high- intensity program is necessary in order for him to come to understand and gain some insight into why he has done what he has done. [ 95 ] In addition, in my respectful view, denunciation requires a significant period of incarceration in order to fulfil the expression of society's condemnation of his conduct. Having regard to paragraph 81 of R. v. M.( C.A. ) , the court has articulated this proposition very clearly in language which is particularly appropriate to my analysis.

The court said: The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974) 60 Cr. App.

R. 74 at p. 77 : 'society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass.' The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the costs the offender must bear in committing an enumerated offence. Our criminal law is also a system of values.

A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code .

We are back to the fact that it is a balancing process and the sentence must be measured against the proportionality of the seriousness of the offence and the degree of the responsibility of the offender. [ 96 ] I am also mindful that deterrence of this offender and others of like mind must also be considered, the features of specific and general deterrence. The sentences which I impose must be significant to demonstrate that such conduct will bring serious consequences. Mr. Elbasani needs to be specifically deterred. Others of like mind need to know such behaviour leads to significant terms of incarceration.

This is particularly apt in respect of both the assault in the washroom and the sexual assault causing bodily harm. [ 97 ] I am also mindful with respect to this matter that the other purposes of sentencing are not to be under-emphasized. In respect of Mr. Elbasani, there is, in my respectful view, no realistic plan for management of Mr. Elbasani and his long-term issues that would allay the very real concerns he presents to public safety.

In order for him to attend to the multiple mental health and addiction problems he faces, he needs long-term intensive programs and follow-up counselling and assistance in the community in order to prevent relapse. [ 98 ] In the circumstances of this case I am of the view, for the foregoing reasons, that rehabilitation of this individual offender must defer to the principles of protection of the public, denunciation and deterrence. I am aware that rehabilitation must not be undervalued, either.

The principles of totality and rehabilitation warrant a reduction of the individual aggregate sentencing ranges considered fit for these offences. For instance, with respect to the sexual assault, having regard to the normative ranges and the circumstances of this offender, and the balancing that I have referred to above, I am of the view that the sexual assault causing bodily harm Information warrants a sentence of some four years. In my view, with respect to the assault simpliciter , the appropriate sentence would be four months consecutive.

With respect to the breach recognizance, I am of the view the appropriate sentence would be one month consecutive. That would lead to an aggregate sentence of some 53 months without considering credit for time in custody. [ 99 ] Having regard to the way in which I am instructed by the authorities to which I have referred, in my view, those factors of individual aggregate sentencing must be considered, having regard to the principles of totality and the fact that rehabilitation must also be considered.

In my respectful view, those factors, combined with the credit for presentence custody, warrants a term of imprisonment of some 41 months in this case. [ 100 ] To achieve that sentence I will reduce the appropriate sentence of four years on the sexual assault causing bodily harm to one of three years. On the assault Information the sentence will be four months consecutive. On the breach recognizance Information the sentence will be one month consecutive.

The total is, therefore, the number to which I have referred, of some 41 months. [ 101 ] So on Information 189095-1, Madam Registrar, the sentence will be three years. On Information number 188686-C2 the sentence will be four months consecutive.

On Information number 188590-KA2 the sentence will be one month consecutive. [ 102 ] What that means, effectively, that we have a sentence here of some three years, five months, which has been reduced due to the time in custody, the principle of totality and the balancing factors from an effective sentence of some four years, five months. [ 103 ] I would be remiss if I did not thank counsel for their careful attention to their submissions and particularly Ms. Percival for

taking on the case on the fly and bringing before the court the family. I am sure that Mr. Elbasani feels much better knowing that his family is supportive of him at this stage. I was impressed by their candour, particularly his dad's candour, and by the fact that they had again agreed to become a support for him when he finishes his programming. [ 104 ] MS. PERCIVAL: Yes. And, actually, his father did phone me.

He was out of town, he couldn't be here, he is working, but he'd actually phoned me to find out what had happened during the break, so -- [ 105 ] THE COURT: So if you would, I would ask you to pass on my regards and thank him for his attendance. [ 106 ] MS. PERCIVAL: I shall. [ 107 ] THE COURT: Is there anything further, Ms. Lopes? [ 108 ] MS. LOPES: Your Honour, I totally understand the math. I am just thinking for the purposes of clarity of the record, the sentence on 189055 is three years -- [ 109 ] THE COURT: That is correct. [ 110 ] MS.

LOPES: -- with credit for nine months and ten days? [ 111 ] THE COURT: That is correct. [ 112 ] MS. LOPES: Thank you. [ 113 ] THE COURT: That is why I referred to the credit earlier as one of the mitigating factors, that for clarity purposes -- [ 114 ] THE SHERIFF: [Indiscernible] [ 115 ] THE COURT: Pardon me? The breach? Okay. Mr. Sheriff, I'll say it again, I know I was going quickly.

It is 36 months, three years, in other words, on the Sexual Assault Causing Bodily Harm, it is four months consecutive on the Assault simpliciter and it is one month consecutive on the Breach Recognizance, for a total of 41 months. [ 116 ] THE CLERK: Surcharge, Your Honour, victim surcharge? [ 117 ] THE COURT: Waived. (REASONS FOR SENTENCE CONCLUDED)