R. v. S.(S.), 2012 ONCJ 482

WARNING The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

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

i) to (iii).

(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. Citation: R. v. S.(S.) , 2012 ONCJ 482 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — S. S. Before Justice T. Lipson Reasons for Sentence released on July 16, 2012 Ms. D. Kennedy and Ms. S. Olver .............................................................................. for the Crown Mr. P. Calarco ................................................................................................... for the accused S.S. LIPSON J.: REASONS FOR SENTENCE

[ 1 ] S.S., the accused, pleaded guilty to sexually assaulting M.L. with a weapon. He appears today for sentencing. Circumstances of the Offence Agreed Statement of Facts “The complainant was 66 years old at the time of the incident and immigrated to Canada from Columbia approximately 4 years ago. Her first language is Spanish and she speaks limited English. At the time of the incident, the complainant had not had sexual intercourse since her husband’s death 5 years before. Leading up to the offence, the complainant was working for a cleaning company, cleaning a condo corporation building.

She was assigned to the building located at […] H.1[…] Blvd and worked from 8 a.m. to 4:30 p.m. She regularly took a lunch break at noon for one hour in the adjacent building of […] H.2[…] Blvd. Two to three months prior to the incident, the complainant was approached by S.S. while she was working at […] H.1[…] Blvd. There was no physical contact between the parties during this interaction. The complainant stated that S.S. approached her and told her that he wanted to be her boyfriend and s he said no, and left. S.S. indicates that he was not referring to himself, but to one of his professors.

The complainant is certain that her English is quite sufficient to have understood what he said and was sufficiently affected by the interaction, that she attended her manager’s office to advise him and ask him to review security footage. At the time of the incident, S.S. was a resident of […] H.1[…] Blvd and made no attempt to conceal his identity. After her first interaction with S.S., the complainant saw him in the lobby on many occasions while she was working. No further contact was made. S.S. carried a knife on his person at all times and used it to clean his crack pipe.

The knife was described by the complainant as having a six inch blade and being very sharp. On Thursday May 19 th , 2011 the complainant was working her regular shift at […] H.1[…] Blvd. She took her lunch break at […] H.2[…] blvd and then returned to the maintenance room in the basement of […] H.1[…] blvd to retrieve her work supplies. She was alone. Once in the maintenance room the complainant closed but did not lock the door and went to the sink to wash a mop. Her back was to the door.

S.S. came up behind her and grabbed her from behind, placing her neck in the crook of his arm – she didn’t hear anyone come in because she was running water. She resisted and fought, holding onto the sink and ultimately pulling it from its stand in her resistance. She started yelling ‘please please’ and S.S. tried to calm her down and told her not to yell as he put the knife towards her throat. She stopped screaming but kept pleading with her assailant. The victim was pulled backwards with her neck in the crook of S.S.’s arm, into a corner of the maintenance room.

Once in the corner, her assailant pulled down her pants and attempted to penetrate her anally. He was unsuccessful as he was not erect. S.S. then forced the complainant to kneel, pulling her hair to get her down on the ground. He threatened that if she refused he would kill her. At first the complainant did not understand what he was asking but when the accused placed the knife against her neck as he pushed her down she understood he wanted her to kneel. With the knife in his hand, he pushed her to demonstrate what he wanted her to do and she ultimately complied and performed oral sex on him.

As this was occurring and throughout the attack, S.S. took short breaks to smoke crack cocaine. He also placed the crack pipe in the complainant’s mouth and insisted that she inhale – she complied as he was holding a knife but she quickly exhaled the substance. After oral sex was performed the first time, the accused again attempted to penetrate the complainant anally. Again he was unsuccessful and forced the complainant to perform oral sex. This pattern repeated itself approximately 8 – 10 times.

Finally, after receiving oral sex and the unsuccessful attempts at anal penetration, the accused penetrated the complainant vaginally. In order to do so he had the complainant lie on her back on the concrete floor and pulled her legs up and backwards. He was not wearing a condom at the time of the assault. Once done, S.S. placed a quantity of money in the complainant’s hand. She went to the door to escape and found that it was locked. The accused met her at the door and held the knife to her throat telling her to not call the police or advise a manager. The complainant said she wouldn’t.

The complainant exited the maintenance room 25 minutes after the accused entered the room; this is seen on security footage. The complainant ran to find help; first to her manager’s office and then to the building next door where she found her co-workers in building 55 finishing their lunch. She immediately reported the incident. The complainant suffered redness to her nose from the force with which her head was being thrust again the accused during the forced fellatio. She also suffered a sore mouth and lips.

Her knees were red from being forced to kneel and being pushed back to a kneeling position from a standing position. She suffered general body aches and pains as a result of being thrust. As a result of the vaginal intercourse, she also suffered pain in the lower back and vaginal discomfort. Semen was detected on both the vaginal swab and the rectal swab taken from the complainant. Following the incident, the complainant had to follow a course of AIDS prevention medication for 28 days as per medical advice. As a

result of the ensuing vomiting and diarrhea, she lost 8 kilograms.” Victim Impact Evidence [ 2 ] M.L. prepared and read aloud in court a victim impact statement filed as exhibit 1. This crime has had a devastating effect upon her and her family. She has been receiving psychotherapy treatment from Dr. J. Listowell to assist her in coping with the aftermath of the events of May 19, 2011. In a report dated December 14, 2011 Dr. Listowell made the following observations which mirror many of the comments made by M.L. in her victim impact statement. “M.L.…has been completely emotionally traumatized by this event.

It is my professional opinion that she is suffering from Posttraumatic Stress Disorder with depressive symptoms, as exemplified by her marked levels of hyperarousal, intrusive thoughts, as well as avoidance behaviours. She is terrified of walking alone especially at night, and is also in a constant state of fear and heightened alertness even within the safety of her home. She is expecting to be attacked at all times, causing her functioning to be impeded. She often avoids showering, as the noise of the water hinders her ability to be alert and to potentially hear a perpetrator enter her home.

Similarly, M.L. obtains minimal sleep due to insomnia resulting from her persistent ruminations of the attack she endured as well her need to be on alert. She is often awakened to paranoid ideation, and has developed rituals with respect to checking underneath her bed and locking her door to reassure herself that no one is there and she is safe. Additionally, M.L. is afflicted by the following, among others: flashbacks of her attack, panic attack-like symptoms; difficulty concentrating, bouts of crying, social withdrawal, poor appetite parried with a weight loss and a high level of victimization.

As the treating psychologist for M.L., I am testifying to the depth of the psychological damage this woman has experienced and I am aware that it is beyond repair at her age. Her sense of safety in the world has been shattered and she no longer perceives a sense of control or confidence in the outside world, as well as her immediate environment. She is now highly fearful and perceives herself as vulnerable to imminent danger and harm.

Furthermore, this is a woman who had coped well with the passing of her husband and adapting to a new country, and was looking forward to spending her remaining years with family and being active in Canada.

However, this event has shattered her ability to feel secure and to obtain pleasure and enjoyment from her daily life.” [ 3 ] In her victim impact statement M.L. spoke of her suffering in seeing the “the sadness in my family and even though my sons don’t say it, I still can see the pain their eyes”. [ 4 ] She also describes the physical effects of the attack perpetrated by S.S. as follows: “After the assault, I went to the hospital. My face was swollen, my knees were bruised and swollen, the pain on my neck and lower back was very intense. I received treatment to prevent AIDS. The treatment lasted 28 days.

During this time I had diarrhea and vomit. I lost weight 8 kg in total. I was shaky, could not walk and felt physically weak… I go for acupuncture and physiotherapy to alleviate the pain on my knees and lower back. I suffer from headaches and high blood pressure.” [ 5 ] The court also carefully reviewed the powerful and moving victim impact statements from the victim’s sons E. and J. P. and her daughter-in- law M.P. Their statements poignantly describe how difficult life has been for not only Maria but for all of them as a result of this crime.

The court acknowledges their suffering and extends its gratitude for their participation in these proceedings. I would like to say this to the victim and her family members who are here today. While I will endeavour to impose a penalty that is proportionate to the gravity of the crime and the responsibility of the offender, I also know that no sentence imposed by this court today can ever restore the good health, enjoyment of life and sense of security that M.L. and her family experienced before the events of May 19, 2011. The criminal justice system is unable to fix the pain and suffering you have had to endure.

Circumstances of the Offender [ 6 ] The court has reviewed a pre-sentence report and two psychological reports prepared by Dr. G. Ilacqua. As well, a number of documents were submitted by the defence attesting to efforts made by S.S. for admission to Stonehenge Therapeutic Community and the Salvation Army Turning Point Program. There were evidence that during his pre-trial detention the accused has participated in a harm reduction program, anger management program and spiritual counselling.

He hopes to eventually be admitted to an intensive rehab facility such as Stonehenge [ 7 ] The accused is 37 years of age and single. He is a first offender. He immigrated to Canada from Kuwait when he was five years old. S.S. reported that during his early teens, he was sexually abused for about three years by a family housekeeper. The accused graduated from high school in 1993 and has held a number of different jobs since then. He has been a bartender, a door-to-door salesman and a driver for strippers. He worked in his family’s wholesaling business.

His longest job was working for Direct Buy “off and on” at various locations. He attended a business management program at Seneca College in 2009 but was unable to complete it because he kept missing classes on account of his drug problem. He had a semester and a half left when he was arrested on this charge. [ 8 ] The accused has been using cocaine since 2001. By 2006 his crack cocaine habit was out of control. He was missing work and stealing. His brother had to take over the accused’s finances. In 2008 he took a leave of absence from work and completed a 21 day residential drug program.

He soon relapsed to the point where his drug use became worse than before. He stole jewellery from his family to pay for his drugs. According to the PSR, the accused believes that every failure in his life has been drug related. He advised the PSR writer that he accepts full responsibility for his actions. He said that on the date of the offence he admitted to buying about $800 worth of crack cocaine and was using drugs in the basement of the apartment building and that the victim had ‘startled him’ when she entered a room close to him.

He stated that he was feeling extreme paranoia and panic before he forced the victim to use drugs with him before sexually assaulting her. He told the PSR writer that he has never had a history of violence and cannot believe he harmed another person, especially like this. He revealed that he still cannot understand why he did this. He acknowledges the damage from his conduct caused to the victim, her family and his own family members. He is eager to seek treatment for his cocaine addiction. S.S. continues to

have support from his closest family members. [ 9 ] S.S. told Dr. Ilacqua that he was “high” on crack cocaine when he committed these offences. The day of the offence he had received a large amount of money from his father to pay his college tuition. Instead he used the money to buy crack. He said he used the equivalent of about $700 worth of crack during the hours before the sexual assault. He denied planning the crime and expressed remorse for his actions and their impact upon the victim and her family. [ 10 ] For his assessment, Dr.

Ilacqua conducted a file review, a clinical assessment, observations and psychometric tests including those addressing the degree of risk posed by S.S. for future criminal reoffending including sexual reoffending. Dr. Ilacqua concluded: “…it appears that S.S. presents with a moderate risk for involvement in future criminal activity and with a low risk for involvement in future sexual reoffending. Specifically, some of his risk factors include lack of personal support, a history of relationship instability, employment problems and substance abuse problems.

Currently, his future plans are vague, he experiences a degree of distress and continues to be exposed to destabilizers. However, he does not present with active symptoms of a major mental illness, suicidal/homicidal ideation, high density of offences, attitudes that support or condone offences and has a positive attitude toward treatment. Some of S.S.’s identified risk factors are dynamic and might be amenable to change if addressed.

Specifically, it appears that S.S.’s substance use has contributed to numerous difficulties in his life (including vocational, academic and relational issues) as well as the events leading to the current charges.” [ 11 ] In cross examination Dr. Ilacqua agreed that crack cocaine users can pose a high risk to reoffend. Dr. Ilacqua did not employ phallometric testing arguing that it would have limited utility since this was not a “child molesting” case. He did not inquire into the circumstances of a 1994 charge of sexual assault that was withdrawn by the Crown. Dr.

Ilacqua also conceded that he did not probe the nature of the accused’s past sexual relationships nor the type of pornography that the accused was attracted to. Position of the Parties [ 12 ] Counsel for the accused submitted that the Court should impose the maximum reformatory sentence plus three years probation in addition to pre-trial custody which is 14 months. Such a sentence would also allow for the maximum period of probation of three years in order for probation services to appropriately supervise S.S. upon his release from custody.

It was also submitted that S.S. should received enhanced credit for his pre-trial custody on the basis that the accused was subject to several lock-downs at the Metro East Detention Centre. It was submitted that there were several mitigating factors in this case including: • S.S.’s guilty plea. • Dr.

Ilacqua’s opinion that S.S. presents a low risk for sexual re-offending, particularly if his crack cocaine addiction is effectively addressed. • lack of prior criminal record. • S.S.’s alleged high degree of insight into his offending conduct and his motivation to address his drug addiction and, • S.S.’s remorse for his conduct. [ 13 ] The Crown submitted that a penitentiary sentence of nine years less credit for pre-trial custody is appropriate given • the egregious circumstances of the offences, particularly the level of violence used by the accused forcing the victim, at knife- point to submit to fellatio, anal and vaginal intercourse; • the vulnerability of the victim; and • the profoundly adverse long-term effect of the offences upon the victim and her family.

Analysis [ 14 ] The accused pleaded guilty to sexual assault with a weapon. The crime carries a maximum sentence of 14 years. [ 15 ] There are several aggravating factors present in this case. S.S. committed a brutal and horrific sexual attack upon a vulnerable 66 year old woman working by herself as a cleaner in the maintenance room of an apartment building. Holding a knife to her throat, the accused forced the victim to perform fellatio upon him. During the attack S.S. forced her to smoke crack cocaine. This was a persistent and prolonged sexual attack. He tried several times to penetrate her anally.

He penetrated her vaginally and ejaculated. It is aggravating that the accused did not use protection during the sexual assault. The victim was subjected not only to the physical violation of forced fellatio and sexual intercourse but to the fears attendant with unprotected intercourse such as sexually transmitted diseases and/or HIV/AIDS. His final act of degradation and humiliation of the victim was to leave her some money as if she was a prostitute. The victim has suffered physical injury and devastating long-term psychological trauma. The behaviour of the accused was callous and cruel in the extreme.

The impact statements of the victim and her closest family members poignantly describe the enormous harm this accused has caused. [ 16 ] I have had regard to the general sentencing principles found in s. 718 of the Criminal Code . The sentence to be imposed today must address the paramount sentencing objectives of deterrence and denunciation. In other words, the sentence must serve to denounce the accused’s conduct as well as to deter this accused and other like-minded persons from committing similar offences.

I must also take into account the important sentencing objective of rehabilitation, particularly since S.S. appears to be motivated to once again

address his severe crack cocaine addiction. [ 17 ] S.S. is a first offender. He has pleaded guilty. His plea is an important mitigating factor. While I accept that the Crown’s case against the accused is formidable, it is still true that the guilty plea has spared the victim from testifying. The plea is also a significant demonstration on the part of S.S. that he takes responsibility for his conduct and that he is remorseful. I believe he continues to be astonished and disturbed by his offending behaviour. [ 18 ] The Crown argued that this was a planned attack upon the victim.

The defence disputes this characterization of the offence. It is true that S.S. was armed with a knife and did surprise the victim when she was in an isolated area in the basement of the apartment building. On the other hand, the accused was under the influence of crack cocaine and had made no effort to conceal his identity. He was already known to the victim. I am not satisfied beyond a reasonable doubt that the Crown has established that this was a planned attack.

It seems to me that the offence, as egregious, predatory and horrific as it was, was likely to have been opportunistic. [ 19 ] There is no doubt that the accused’s heavy consumption of crack cocaine was a significant contributing factor in the commission of the offence. S.S. was still under the influence of crack cocaine at the time of his arrest and investigation. There was no evidence presented of an underlying sexual pathology. Dr. Ilacqua’s expert opinion is that there is none. However, the accused is hardly a victim of forces beyond his control.

S.S.’s consumption of crack constituted a disinhibiting trigger for his rage and desire to dominate and degrade the victim. There can be no question that despite his good intentions to control his crack addiction, S.S. has failed in past attempts to do so.

His ongoing substance abuse issue must be viewed as an obvious, serious and continuing risk factor for re-offending. [ 20 ] The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at the same time taking into account the needs and current conditions of and in the community. [ 21 ] The case law indicates that a violent sexual assault with a weapon of this nature should attract a substantial penitentiary sentence, even for a first offender.

A sentence of 2 years less a day in addition to the approximately 14 months of pre-trial custody as proposed by defence counsel does not adequately addresses the extreme gravity of the offence and the high degree of responsibility of S.S. Such a sentence falls well below the appropriate range. Crimes of this nature have a profound effect on not only the immediate victim but also on the entire community.

At the same time, the 9 year sentence proposed by the Crown, while at the highest end of range, does not sufficiently take into account the relevant mitigating factors present in this case or the principle of restraint or the secondary sentencing objective of rehabilitation. [ 22 ] While defence counsel submitted that the court should give enhanced credit for some or all of the pre-trial custody served by S.S., no evidence was tendered to support that position. [ 23 ] In my view the appropriate sentence in this case is 6 ½ years less credit for pre-trial custody which in this case is 14 months.

The accused will be sentenced to a further period of incarceration of 5 years and 4 months. [ 24 ] In addition, I am making a firearms and weapons prohibition order under s. 109 of the Criminal Code for life. Sexual assault with a weapon is a primary designated offence and there will be a DNA order pursuant to s. 487.05(1) of the Criminal Code. Further, there shall be an order under ss. 490.012 and 490.013(2) (

b) of the Criminal Code that S.S. must comply with the Sexual Offender Information Registration Act for a period of 20 years. Released: July 16, 2012 Justice T. Lipson