R. v. A.K.K., 2017 ONCJ 694

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in sub-paragraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. A.K.K. , 2017 ONCJ 694 DATE: 2017 10 17 COURT FILE No.: Toronto 14-75004089 BETWEEN: HER MAJESTY THE QUEEN — AND — A.K.K. Before Justice BHABHA

Heard on August 21st 2017 Ruling under s. 475 (1) (b) (

i) and Reasons for Sentence released on October 17th 2017 Gray, S................................................................................................... counsel for the Crown The accused, A.K.K., sentenced in absentia Bhabha, J.: Charges and Findings of Guilt [1] On April 25th 2017, I found the defendant, A.K.K. (“A.K.K.”) guilty of a eight (8) offences, including sexual assault, assault,assault with a weapon x2, threatening death and criminal harassment all relating to the same complainant, A.U. [2] At the request of counsel for Mr.

A.K.K., the sentencing hearing was put over to June 4th 2017 to allow for the preparation of aPre-Sentence Report. [3] On the return date, Mr. A.K.K.’s counsel at the time, Brian Brody, advised the court that he had been unable to contact hisclient prior to the sentencing date, and that he did not expect that A.K.K. would be in attendance at court on that day.

He explained thatmembers of A.K.K.’s family were always present for any court hearing, but that no one was present on that day signalling to him that hisclient was likely not going to be attending court. [4] As he was no longer able to obtain instructions, Mr. Brody requested that he be removed as counsel of record and waspermitted to do so. A.K.K.’s Failure to Attend Court for Sentencing [5] As noted, the defendant did not attend court on the day set for his sentencing hearing in June of 2017. As well, the courtreceived correspondence from the probation Officer tasked to prepare the report.

The letter indicated that A.K.K. had failed to attend ascheduled meeting and that the probation officer was unable to reach A.K.K., despite repeated attempts to do so. [6] On June 3rd, 2017, out of an abundance of caution, the court adjourned the matter to July 12th 2017 to allow the police toinvestigate A.K.K.’s whereabouts in the event there was an innocent explanation for his absence. [7] On July 12th 2017 the court was informed that neither A.K.K., nor his residential surety, who was his brother, were at theMontreal address where A.K.K. was ordered to reside pursuant to the terms of his recognizance.

A neighbour’s child informed policethat the residents had left to go to India two months ago and had asked the child to water their plants in their absence. Based on thatinformation, A.K.K. would have left Montreal in mid-May, which was three (3) weeks after the finding of guilt. [8] Police also made inquiries of A.K.K.’s other family members in Toronto, including his sister who was his second surety. A.K.K.’s relatives told police that they did not know where he was.

I strongly suspect that this is not the case. [9] In any event, based on the information the Court received from the probation officer, A.K.K.’s counsel, and the viva voceevidence of the officer in charge as to the various unsuccessful attempts to locate A.K.K., I was satisfied that there was strongcircumstantial evidence that A.K.K. had voluntarily left the jurisdiction and that he was not likely to return voluntarily to be sentencedand to face justice. I provided brief oral Reasons at the time. What follows are my written Reasons for proceeding in A.K.K.’s absence.

Ruling under s. 475 (1) (b) (i): Sentencing in Absentia [10] I am satisfied that the defendant has in fact absconded within the meaning of

section 475 Criminal Code of Canada (“theCode”). On the evidence, I find that he has voluntarily absented himself from his trial for the purpose and intention of avoiding theconsequences of having been found guilty. See: R. v. Garofoli (1988), (ON CA), 41 C.C.C. (3d) 97 (Ont. C.A.), revdon other grounds (SCC), [1990] 2 S.C.R. 1421, 60 C.C.C. (3d) 161. [11] The next issue to be addressed was whether the court should proceed to sentence him in absentia. [12] The jurisdiction to do so is found in subparagraph 475(1) (b) (

i) of the Code. It provides that where an accused absconds duringthe course of his trial, the court may continue the trial, and if it finds the accused guilty, proceed to impose a sentence on him in hisabsence. As well, where a warrant has been issued, the court may continue the trial at any time, if it is satisfied that it is no longer in theinterests of justice to await the appearance of the accused. [13] There are several reported cases in which the courts have deliberated on the issue of whether to sentence an offender inabsentia. In the majority of the cases, the courts have granted the crown’s application to conclude sentencing proceedings in the absence

of the accused. [14] I will begin with one of the most recent cases where the sentencing did not take place: R. v. Singh, [2015] O.J. No. 691. InSingh, Justice Pomerance of the Superior Court of Justice was faced with a very similar situation to this case. Singh was found guilty of importing cocaine into Canada on September 22nd 2014. He, like A.K.K., also failed to attend a meeting with a probation officer who was to prepare a Pre-Sentence Report. He also failed to attend court on his next scheduled appearance on December 5th 2015; and he failed to attend court at the subsequent hearing on February 3rd 2015.

His bail was estreated. His sureties did not know where he was andthe police were unable to find him. There was a warrant for his arrest. All indications were that Singh had absconded to avoid beingsentenced by the court. [15] The crown brought an application to have the defendant sentenced in absentia under s. 475 of the Code and sought a sentence offifteen (15) years.

Justice Pomerance decided that she was not prepared to accede to that request and did not proceed to sentence theaccused. [16] Firstly, Justice Pomerance noted that s. 475 creates an exception to the requirement that an accused be present at his trial.Secondly, she drew a distinction between trial and sentencing hearings in determining the “operative question” of whether it is “in theinterests of justice” to proceed. In her view the exception created in s. 475 should be used sparingly, and only when the interests ofjustice create an imperative to continue despite the absence of the accused.

Thirdly, she noted that the factual parameters at a trial aredifferent than those at a sentencing hearing. The onus is on the crown to prove the elements of an offence and the court can assesswhether the burden has been made out. “Conversely, sentencing calls for a more holistic approach. The factual issues are more looselydefined, given the breadth, variety and complexity of information that might bear on penalty.” [17] Noting that sentencing is a “highly individualized process” and citing R. v.

Gardiner, (SCC), [1982] 2 S.C.R.368 at 414, Justice Pomerance declined to sentence the accused because of the complete “informational gap” regarding thecircumstances of the accused (his background, age, employment and financial circumstances, community support, character, culturalbackground, et cetera); information required to impose a fit and appropriate sentence in what was effectively an ex parte process. [18] She concluded that she would not sentence Singh in absentia given that she had “no information” about Mr. Singh, beyond thefact that he had no criminal record.

As well, she was particularly troubled that the crown was seeking a “double digit” sentence, in partbecause Singh had absconded. The crown acknowledged that the range of sentence was eight (8) to twelve (12) years, but submitted thatSingh, having forfeited his right to have representations made on his behalf, should be sentenced to fifteen (15) years in prison. [19] In essence, Justice Pomerance concluded that she was not “in a position to determine a fit sentence.” She noted that “[a]sentence imposed in absentia can educate the community about the consequences of crime and facilitate general deterrence.

But there islittle value in the symbolism that attaches to an unfit sentence. The public interest in the timely sentencing of the offender must bebalanced against the public interest in proportionality. When these interests clash, it is proportionality that must prevail.” [20] In R. v. M.C., [1994] O.J. No 4348, Justice Langdon of the Superior Court of Justice also sentenced an accused in absentia. Thecharge was sexual assault in a domestic context.

Likely because of the marital relationship between the complainant and the defendant,the court made extensive reference in the Reasons for Sentence on their personal circumstances, which included their arranged marriage,and cultural beliefs. [21] In R. v. Shirley, [2009] O.J. No 2388, Justice De Filippis of the Ontario Court of Justice came to a different conclusion thanJustice Pomerance in sentencing an accused in absentia. The distinguishing features of that case are that there was a Pre-Sentence Reportthat provided details about the defendant.

As well, counsel for the accused agreed to remain on the case and made submissions on hisclient’s behalf. [22] In R. v. Correa, 2011 ONCJ 409 , [2011] O.J. No 3980, Justice Caldwell of the Ontario Court of Justice granted thecrown’s application to sentence the accused in absentia. Correa was found guilty of two counts of sexual assault. The matter wasremanded for sentencing and a Pre-Sentence Report was ordered. Correa failed to attend at his interview with the probation officer. Hislawyer had himself removed as counsel of record.

After a year had passed, the crown applied to have the offender sentenced in absentia.Justice Caldwell, at paragraphs 12-14 of her Reasons explained why Correa should be sentenced in his absence. She noted that sexualassaults were very serious and agreed with the crown that the complainant should have some sense of finality at the end of theproceedings. [23] In Correa, Justice Caldwell had little information about the offender, apart from the fact that he had lost his mother in recentyears, and had no prior record. Unlike A.K.K., he did not testify at his trial.

The Court did not have any other information about theoffender’s personal circumstances. [24] In R. v. Bayani, [2011] O.J. No. 4369, Justice Clark of the Superior Court of Justice also sentenced one of two co-accused inabsentia. The defendant’s counsel agreed to make submissions on behalf of his client and the court appears to have had some detailsabout the defendant’s circumstances. [25] Justice Clark, at paragraph 32 of the decision, observed that “[a]lthough it would have been desirable to know somewhat moreabout Bayani for sentencing purposes, the circumstances were such that it was not possible.

That said, I am satisfied that I had sufficientinformation before me to be able to proceed with sentence: R. v. Priest (1996), 3 O.R. (3d) 538 (C.A.), at para. 15 citing R. v. Bates(1977), (ON CA), 32 C.C.C. (2d) 493 (Ont. C.A.) at p. 494.” (Emphasis added) [26] Similarly, in R. v. Maxwell, [2013] O.J. No 3776, Justice DiTomaso of the Superior Court of Justice sentenced an offender inabsentia on drinking and driving related offences.

In that case, counsel for the offender made submissions on sentence and the court hadthe benefit of a Pre-Sentence Report, a criminal record and a Victim Impact Statement. [27] I find that the circumstances faced by Justice Pomerance in R. v. Singh, supra, are easily distinguishable from those present in

this case. Like Justice Clark in Bayani , I find that there is “sufficient” information about A.K.K.’s personal circumstances to properly give effect to all of the principles of sentence, including proportionality. [ 28 ] Firstly, A.K.K. testified in his own defence.

As well, given the domestic nature of the allegations, the court heard evidence from both the complainant and the defendant about their respective personal circumstances: their ages, backgrounds, how they met, what they did for a living, their living arrangements, and their relationships with members of their respective families, including their different cultural/linguistic backgrounds and religion.

The court observed that A.K.K.’s mother was in court for most of the proceedings and that his wife and young child also attended court on at least one occasion. [ 29 ] A Pre-Sentence Report would undoubtedly have provided greater detail in each area of interest: personal background, employment history, educational background, amenability to supervision within the community, et cetera. It would also have included interviews with various family members or friends who may have been able to provide additional insight into his character and prospects for rehabilitation.

Submissions by counsel would also likely have assisted the court. [ 30 ] However, this is not a situation like that in Singh in which there is virtually no information about the defendant’s personal circumstances such that a sentencing proceeding would be a very difficult, if not near impossible task.

I find that in the particular circumstances of this case, I have more than “sufficient” information about the A.K.K.’s personal circumstances to impose a fit and appropriate sentence, notwithstanding that no submissions were made on his behalf. [ 31 ] Lastly, in this case the court had the benefit of a Victim Impact Statement. Like Justice Caldwell, I find that is in the best interests of the community, and of the complainant that the sentencing proceedings be completed and some finality achieved.

Reasons for Sentence Circumstances of the Offences [ 32 ] The offences for which the defendant has been found guilty occurred in the context of the defendant being unable or unwilling to accept the end of his very first romantic relationship. The relationship began to falter when his traditional family was unwilling to accept someone of a different cultural/religious background. The defendant was unwilling to risk alienation from his family, but he was also unwilling to let go of the relationship.

When the complainant tried to end it, he sought to control her and to intimidate her into continuing the relationship on his terms. His behaviour escalated over a period of many weeks beginning with a simple assault, then an assault with a weapon, followed by criminal harassment and threats, and finally culminating in the most serious offence: the sexual assault that involved unprotected intercourse. Circumstances of the Offender Background [ 33 ] A.K.K. is 35 years old with a date of birth of […], 1982. He was 32 years old at the time of the offences. [ 34 ] He was born in Sri Lanka and came to Canada in 2006.

He is a permanent resident of Canada. He is one of a sib line of at least three (3). When he came to Canada, he joined two of his siblings who were already living here: a brother and sister, both of whom acted as his sureties. His mother followed him to Canada. Although his father is alive, he remained in Sri Lanka because of his precarious health. [He likely was not a candidate for sponsorship based on his medical status.] [ 35 ] A.K.K. speaks and understands English, but felt more comfortable testifying with the assistance of a Tamil interpreter at his trial. His level of education is not known.

Criminal Record [ 36 ] The defendant has no prior record and had never been arrested prior to these charges. Upbringing [ 37 ] The defendant appears to have been raised in a close-knit supportive family environment. He immigrated to Canada as an adult and lived with his mother and sister. He helped support his family. There is no indication that his upbringing was unhappy or out of the ordinary. He clearly cares deeply about his family and their approval of his choices in life. His mother was present in court for most of the trial, and his sister attended occasionally.

Relationship Status [ 38 ] The defendant’s relationship with the complainant was his first intimate relationship. He explained that this was because of his culture and his traditional views on relationships. [ 39 ] At the time of the trial, the defendant was married. The marriage took place approximately one and a half years after the charges were laid. It was an arranged marriage; arranged by the defendant’s mother. His spouse, he indicated, lived in Switzerland where he had plans to join her. [The Court believes that a South Asian woman who looked to be in her 30’s, with an infant, who was

accompanied by the defendant’s mother in the latter stages of the trial, was likely the defendant’s spouse and their child.] Employment History [40] The defendant worked as a cook at F.’s restaurant in Toronto for three to four years starting in late 2009 which is where he metthe complainant. He was working as a cook at another restaurant at the time of trial. After the trial, he testified that he had plans to joinhis wife in Switzerland and work as a cook there. He was reasonably confident that he could obtain work as a cook.

Mental Health and Addictions/Dependencies [41] The defendant did not appear to be suffering from any mental health issues, nor does he appear to have had any substance abuseissues. Alcohol, however, did play a role in some of the offences he was found guilty of, namely the first assault outside F.’s and the lastoffence in time, the sexual assault. Impact of the offences on the Victim [42] The Court had the benefit of a Victim Impact Statement: see Tab 2 of Exhibit 1 on sentence: crown’s Sentencing Submissions.

Itis fair to observe that throughout the Victim Impact Statement, the complainant referred primarily to the sexual assault as “the incident”.In her statement, she explained that she suffered significant consequences. [43] The complainant indicated that whereas she used to be sociable, since the incident “building relationships with people has beendifficult as [she] developed trust issues”. As a result, she frequently stays home alone.

She also found it embarrassing and terrifying totalk about the incidents with the friends she had in common with the defendant. [44] As a result of the difficulty she had coping with the aftermath of the incidents, she lost her ability to focus. This meant she hadto quit her job at F.’s and also had to postpone her plans to start school at a college in September of 2014. As well, some of her co-workers who knew the defendant kept asking questions about the last assault. [45] In October 2016, she lost her job due to poor performance. She relates this to the stress she suffered following the sexualassault.

She states: “the stress took a toll on me and I couldn’t work for about 6 months”. This resulted in financial difficulties as she wasunable to pay bills. [46] Finally, in addition to the nightmares she has, she fears seeing the defendant again. She reports feeling “mentally scarred” by theincidents. She turned to self-medicating to cope. This involved turning both to drugs and alcohol “to ease and numb the pain andsadness” she feels. Position of the Crown: [47] The crown, in her written submissions, takes the position that a global sentence of four (4) years is a fit and appropriatesentence.

In terms of ancillary orders, she also seeks: 1) an non-communication order under s. 743.21 barring contact with the victim during the custodial period of the sentence; 2) an order under s. 109 prohibiting the defendant from possessing any firearm, cross-bow, restricted weapon, ammunition andexplosive substance for a period of ten years, and prohibiting the defendant from possessing any prohibited firearms; restricted firearm;prohibited weapon, prohibited device and prohibited ammunition for life; 3) a DNA order under s. 487.051 (2) of the Criminal Code; and 4) orders pursuant to the provincial and federal sex offender registries. [48] The crown relies on a number of cases that she submits supports her position on sentence.

The six authorities relied on by thecrown are set out at tabs 3-8 of Exhibit #1. [49] I propose to briefly review the authorities relied on with a view to noting similarities and distinguishing features. As to anappropriate range of available sentences, in R. v. R. v. N. (B.D.), infra, Justice Hackland of the Superior Court of Justice noted that “incases of sexual assault involving forced sexual intercourse with a spouse or former spouse, sentences generally range from 21 months tofour years: see R. v. R (B.S.) (2006), (ON CA), 81 O.R. (3d) 641 (C.A.), R. v. Jackson, 2010 ONSC 3910, R. v.

M.(B.), 2008 ONCA 645, R. v. Nolan, 2009 ONCA 727, R. v. Toor, 2011 ONCA 114.” [50] In R. v. H. (A.S.), [2015] O.J. No 2792 at tab 3 of the materials, the Justice Daley of the Superior Court imposed a sentence offive (5) years after a trial on an offender who choked his domestic partner, and had forced intercourse with her on the roof of a car. Thedefendant in that case had a prior record and the complainant suffered physical injuries, features that are absent from the case at bar. Aswell, the defendant in H. A.S. abused substances.

Notably, the complainant wished to have ongoing contact with the defendant. [51] In the case of R. v. E. (K.), [2014] O.J. No. 1119 at Tab 4, the offender was sentenced to four years on charges of sexual assault,assault and uttering a threat against his domestic partner. The Court of Appeal affirmed the sentence finding that rehabilitation could notplay a significant role given that the defendant showed no remorse and did not take responsibility for his actions. The defendant had aprior criminal record that included a prior related offence resulting in his deportation from the United States to Canada.

This is also adistinguishing feature from the case at bar. [52] In R .v Ahmadzai, [2013] B.C.J. No. 2090 at tab 5, the British Columbia Court of Appeal upheld a global sentence of sevenyears on a far more serious set of offences and facts involving the leader of a gang who humiliated the victim by sexually assaulting herwith a pistol. Her face was also cut and knowing that she had knee problems, the defendant forced her to remain on her knees in a closetfor an extended period of time causing her considerable pain. The Court found that the violent sexual assault alone warranted four years

in prison despite the offender’s youth and good prospects for rehabilitation. The principles of sentence that were emphasized weredenunciation and deterrence. The sexual assault in this case was far more violent and the complainant suffered additional gratuitousphysical pain and distress. [53] In R. v. D. (D.), 2015 ONSC 5865 , [2015] O.J. No. 4888 at tab 6, Justice Fairburn then of the Superior Court ofJustice sentenced an offender to 43 months jail on offences of sexual assault and threats against his girlfriend.

The sexual assault wasparticularly violent and involved force anal intercourse that left the complainant with rectal bleeding. The defendant has a minor priorrecord that did not play a significant role in sentencing. His moral culpability was found to be reduced in that he had mental health issuesand suffered from addictions in addition to having been abandoned by his mother as a child. The nature of the sexual assault in this casecan be characterized as more serious than the sexual assault at bar. [54] In R. v. N. (B.D.), [2016] O.J.

No. 1369 at Tab 7, Justice Hackland of the Superior Court of Justice imposed a two year jailsentence for sexual assault with a weapon and forcible confinement after a trial. The defendant was separated from the complainant,bound her hands and feet, whipped her with a leather belt, and had forced intercourse with her. He had no prior record. The Pre-SentenceReport was described as favourable even though the defendant insisted he and the complainant were just having “make-up sex”. Thedefendant was found likely not to re-offend.

Even though the acts were found to be degrading, the court placed reliance on the fact thatthis was a single incident, not a pattern of conduct. The crown had recommended a sentence of two and a half to three years in thepenitentiary whereas the defence recommended a reformatory term of 15 to 18 months. The circumstances of this case more closelyresemble the case at bar, except that in A.K.K., the sexual assault was the last, and most serious, of a number of incidents.

Anotherdistinguishing feature of this case is that the court concluded that there were good prospects for rehabilitation, which I am unable to findin A.K.K.. [55] Lastly, in R. v. Bates, (ON CA), [2000] O.J. No. 2558 (C.A.) at Tab 8, the Court of Appeal for Ontarioincreased the suspended sentence imposed at trial to a sentence of thirty months on an offender who pleaded guilty to criminalharassment, uttering a death threat, and three counts of assault, as well as multiple counts of failing to comply with various judicialinterim release orders.

The harassment was aggravated by the fact that the police had warned the defendant on more than one occasion tostop his behaviour. Despite this, he continued with “an escalating pattern of harassment”. The nature and duration of the harassment andother offences are different than in A.K.K.. [56] Sentencing is meant to be a very individualized process. No two factual circumstances are identical. For that reason, almost allof these cases can be distinguished from this case.

In the cases provided by the crown, the defendants either had prior records or therewas a significantly higher degree of violence and degradation inflicted on the complainant. In some of the cases the complainantssuffered physical injuries. Those factors are absent in this case. Mitigating Circumstances: [57] The defendant has no prior criminal record. He has had stable employment and has the benefit of a supportive family. None ofthe offences caused the complainant any serious physical injury.

Aggravating Circumstances: [58] The incidents occurred in the context of an intimate relationship and are therefore recognized in the Criminal Code asaggravating. [59] The incidents occurred over the span of many weeks and displayed a pattern of increasingly aggressive and controllingbehaviour. [60] The first incident occurred at the complainant’s workplace with reckless disregard to the potential impact on her employment.The last incident, the most serious, the sexual assault, occurred in the complainant’s home.

Armed with a pair of scissors, the defendantarrived at the complainant’s home prepared to take what he wanted: a lock of her hair and a forced sexual encounter. He used a ruse toget her to agree to see him one last time at her home and then robbed her of her sense of safety within her own home and also seriouslyviolated her sexual integrity and dignity. [61] The impact on the victim has been significant and is ongoing. She was a naïve and trusting twenty-one year-old when theincidents occurred. All aspects of her life have suffered.

Her employment, her education, her financial well-being, as well as her sociallife. She continues to have nightmares. Principles of Sentence [62] The fundamental purpose of sentencing is to impose a fit and appropriate sentence that will contribute to respect of the law andthe maintenance of a just, peaceful and safe society. Sentencing is a process that is meant to address a number of objectives.

Firstly, todenounce unlawful conduct; secondly to deter the offender and others from committing offences; and lastly to separate offenders fromsociety where necessary. [63] The relevant case law as it applies to this case clearly demonstrates that denunciation and deterrence are the paramountconsiderations in determining a fit and appropriate sentence taking into account the circumstances of the offences and the circumstancesof the offender. [64] In most cases, the court also must give consideration to the offender’s prospects for rehabilitation.

Given the defendant’sbackground, he would ordinarily be considered a fair or good candidate for rehabilitation. He has a supportive family, stableemployment, and no prior criminality. However, having absconded from the jurisdiction after his trial but before his sentencing to avoidsanction and responsibility for his behaviour, some of which he acknowledged, (with the apparent knowledge and likely aid of hisfamily) seriously casts doubt on his prospects for rehabilitation. In the circumstances, this aspect of sentencing can play no role in mydetermination of what is a fit and appropriate sentence.

[ 65 ] To be clear, I am not sanctioning Mr. A.K.K. for having absconded. That determination will have to wait for another day, if it ever comes. I am simply stating the obvious: the court is left in a position where it cannot give any weight to rehabilitation as a factor to be considered on sentence when he has chosen to avoid taking any responsibility for his conduct, even the conduct he ultimately admits to: assaulting the complainant, threatening to kill her, cutting her hair without her permission and stealing her clothing.

That his family may have been complicit in his failure to attend court to be sentenced in and of itself does not bode well for his rehabilitation. [ 66 ] Finally, proportionality is a factor the court needs to consider in balancing the other relevant principles of sentence. The sentence the court imposes must be proportionate to the degree of responsibility of the offender. I find that the defendant was fully aware of his actions.

They took place over a period of weeks during which he tried in vain to hang on to a failed relationship using various desperate tactics that included violence, threats and intimidation. Pre-sentence Custody [ 67 ] The defendant spent approximately fifteen (15) days in pre-sentence custody before being released on bail. Sentence Imposed [ 68 ] Mr. A.K.K. was a thirty-two year old defendant who engaged in repeated and escalating criminal behaviour beginning with simple assault, and culminating in forced unprotected sexual intercourse on the twenty-one year old complainant in her own home.

Although she did not suffer any physical injuries from the various assaults, the lasting and ongoing emotional impact of the sexual assault on her has been significant. [ 69 ] Although the defendant is a first-time offender, the principle of rehabilitation plays little to no role in his sentencing for the reasons I have already noted.

The principles of sentence that require particular emphasis for offences such as these are denunciation and deterrence. [ 70 ] Taking into account both the mitigating and the aggravating circumstances, and placing significant emphasis on deterrence and denunciation, the global sentence I impose is one of thirty-nine months (three years and three months). [ 71 ] The break-down for each count is as follows: • 30 months for the sexual assault (Count 7); • 3 months concurrent for assault with weapon (scissors) (Count 5); • 3 months consecutive for the criminal harassment (Count 1); • 1 month concurrent for assault (Count 3); • 1 month consecutive for assault with weapon (knife) (Count 6); • 1 month concurrent for assault (Count 4) • 2 months consecutive for threatening death (Count 2); • 3 months consecutive for intimidation (Count 8) Ancillary Orders DNA Order [ 72 ] Sexual assault is a primary designated offence.

I am satisfied that there is a public interest in the protection of society and the proper administration of justice through the early detection, arrest and conviction of offenders that warrants an order requiring the defendant to provide a sample of his DNA. As such, there will be an order that the defendant provide a sample of his DNA.

Section 109 Order [ 73 ] There will also be an order under s. 109 as follows:

a) prohibiting the defendant from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for a period of ten years, commencing from the date of this order, and

b) prohibiting the defendant from possessing any prohibited firearms; restricted firearm; prohibited weapon, prohibited device and prohibited ammunition for life. SOIRA Order and Order under Christopher’s Law [ 74 ] Sexual assault is a designated offence for the purpose of s. 409.012 that is punishable by a maximum sentence of ten (10) years. The defendant is therefore ordered to comply with the Sex Offender Information Registration Act (“ SOIRA ”) for a period of twenty (20) years under s. 490.013 (2). The order is effective starting on today’s date. The defendant is required to report within fifteen (15) days of his release from custody after serving the custodial portion of his sentence.

[ 75 ] The defendant will also be subject to “Christopher’s Law” (Sex Offender Registry) also known as “the Ontario Act ”. Victim Fine Surcharge Order [ 76 ] Finally, the victim fine surcharge applies. The crown proceeded by indictment. The fine is $200 per count. The defendant was found guilty of eight (8) counts. The total surcharge amount payable is therefore $1600. Released: October 17 th 2017 Signed: Justice Bhabha