R. v. Rahman, 2012 NSSC 303

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Rahman, 2012 NSSC 303 Date: 20120807 Docket: CRH 330049 Registry: Halifax Between: Her Majesty the Queen v. Ashiqur Rahman SENTENCING DECISION Judge: The Honourable Justice Felix A. Cacchione Heard: August 7, 2012 in Halifax, Nova Scotia Written Decision: August 9, 2012 Counsel: Denise Smith and Mark Heerema, for the Crown Donald C. Murray, Q.C., for Mr. Rahman By the Court : (Orally)

[ 1 ] As counsel have already acknowledged in their addresses to the Court, sentencing is one of the most difficult, if not the most difficult, task a judge has to perform. [ 2 ] This is the sentencing of Mr. Rahman who was convicted of manslaughter and aggravated assault in relation to the death of his seven week old daughter, Aurora Breakthrough. [ 3 ] In preparation for this hearing, I have read and considered the presentence report, victim impact statement filed by Ms.

Gomes, Aurora ’ s mother, written briefs of the prosecution and defence, together with the cases submitted with and/or referred to by counsel in their briefs. I have also examined the findings of fact which I made from the evidence presented at trial. [ 4 ] The presentence report shows a 26 year old first offender who has four years of university education. Mr. Rahman has a strong academic history and an ability to accomplish much should he so choose. The offences for which he was convicted occurred when he was 23 years old. Although Mr.

Rahman was of that chronological age, I am satisfied from the totality of the evidence presented that his level of maturity and responsibility was well below that. [ 5 ] Mr. Rahman demonstrated, through his words and actions, that his world at the time of the offences was consumed by a desire to become a successful entrepreneur. This desire was so strong that it even affected and clouded his ability to be compassionate, caring and considerate of others. In my view, this also affected his ability to recognize the dangers associated with the infliction of force on a young infant. [ 6 ] Mr.

Rahman was raised in a successful professional family. He was accustomed to having things done for him and to not being deprived of things he wanted or needed. His lack of success with his various work projects, his impoverished financial state, the disruption to his work caused by the arrival of an unplanned for infant, and the lack of attention given to him and his work by Ms. Gomes all caused him to become frustrated. [ 7 ] Mr. Rahman ’ s world revolves around his wants and needs and only included others such as Ms. Gomes or his parents when it was of some benefit or use to him.

He advised the author of the presentence report that he viewed raising his daughter as “ a significant responsibility ” and that he relied heavily on Ms. Gomes and the medical clinic for direction on how to care for his daughter, as he “ wasn ’ t confident to do everything himself ” . Unfortunately, his words were not supported by his actions. Mr. Rahman never attended appointments at the clinic with Aurora and her mother. He appeared disinterested in knowing what support resources were available and appeared perturbed by the visit of the public health nurses and social workers. I found as a fact that Mr.

Rahman had formed no bond with his daughter. [ 8 ] Mr. Rahman reported to the author of the presentence report that he loved Ms. Gomes and he had plans to marry her. His actions towards Ms. Gomes and the fact that she was never questioned about any marital union with Mr. Rahman belies his assertion of love and marriage. [ 9 ] Mr. Rahman maintains his innocence. It is his right to do so. He attributes the death of his daughter to an undiagnosed birth defect and not to anything he may have done to her.

He advised the probation officer that he did not experience stress or frustration when Aurora became fussy and cried. He also denied any aggressive behaviour towards his child. [ 10 ] As noted in my reasons for judgment, Mr. Rahman likes to be in control of things and does not like to be wrong or to be told that he is wrong. [ 11 ] The position of the Crown is that a sentence in the range of 10 to 15 years incarceration should be imposed for the manslaughter offence.

It points to the extensive brain injuries, the retinal hemorrhaging and the numerous fractured ribs and long bone injuries. [ 12 ] The Crown's submission is that Mr. Rahman had many options which he could have utilized in assisting him with the stresses and the frustrations of fatherhood, but he did not avail himself of those. It also submits that Mr. Rahman could have taken Aurora for medical attention after his anger and frustration had subsided, but again he did not do that.

[13] The Crown argues that Mr. Rahman had, in Ms. Gomes, a partner who was a loving mother to his child and who was preparedto leave him and take the child, a source of his frustration, away. It submits that Mr. Rahman's imploring his partner to stay with him inthe face of his abuse of Aurora can only be viewed as cruel and sadistic. [14] I do not agree with this characterization. Rather, I find that Mr. Rahman, in imploring Ms. Gomes to stay, was guided solely byhis self-centeredness. [15] The Crown argues that the most critical element in attributing a level of moral blameworthiness to Mr.

Rahman's actions iswhether the offence was the result of a single act or a part of a pattern of abuse. It cites the comments of MacDonald JA in R. v.Moracci (1977), 20 N.S.R. (2d) 684 where he stated at para. 66 that: ...evidence of a systemic course of violence toward such child culminating in a final fatal beating, then, in my opinion the bare minimumsentence should be one of at least ten years... [16] In the present case, I am not satisfied that the evidence established a systemic course of violence.

Rather, I would characterizethe incidents as arising from a loss of control due to spontaneous frustration caused by immaturity and inexperience regarding parentingand the needs and frailties of a young infant. In my view, the force applied to Aurora was applied by an immature young man who wasunskilled in child care matters and, in particular, the vulnerability of young infants. [17] It takes, as I said in my reasons for judgment, very little force to cause considerable damage to a young infant. I am notconvinced that Mr. Rahman appreciated this at the time of the offences.

I am not sure that he appreciates this to this day. Mr. Rahman'signorance of the harm he was causing was re-enforced by the North End Clinic staff findings that Aurora was well and thriving. [18] The defence acknowledges that the facts of this case evaluated against the provisions of ss. 718, 718.1, 718.01 and 718.2(a)(ii.1) and (iii) of the Criminal Code require a sentence of imprisonment in this case. It submits that an appropriate sentence would be 42months in a federal penitentiary taking into account any remand time.

Section 718.2 of the Criminal Code requires a consideration ofsentences imposed in similar cases. [19] The decision of the Alberta Court of Appeal in R. v. Laberge (1995), 1995 ABCA 196 , 165 A.R. 375 sets out theappropriate sentencing approach for cases of manslaughter. In this case, the Alberta Court of Appeal set out a spectrum for judges tofollow in determining the appropriate range of sentence for manslaughter offences in any given case by assessing the degree of fault ormoral culpability of an accused at the time of the commission of the offence.

At paras. 9-11 Chief Justice Fraser stated as follows: Unlawful acts may be divided into three broad groups: those which are likely to put the victim at risk of, or cause, bodily injury; thosewhich are likely to put the victim at risk of, or cause, serious bodily injury and those which are likely to put the victim at risk of, orcause, life-threatening injuries.

Only when the offender's proven mental state at the time of commission of the offence is evaluated inthe context of the crime itself, in other words in terms of its relative degree of seriousness, is it possible to classify for sentencingpurposes the degree of fault inherent in the crime committed. To complete the moral blameworthiness picture, and to ensure that an offender is properly situated in terms of sentencing vis a vis othersconvicted of the same offence, the court must also have regard to those personal characteristics of the offender which would mitigate oraggravate culpability.

She continued by saying: It will be apparent that numerous permutations and combinations of these relevant factors will be possible. In an individual case, allmust be blended and balanced as part of the court's assessment of the offender's degree of moral culpability for the crime committed. [20] In Laberge the Alberta Court of Appeal raised a three year sentence imposed after a guilty plea at trial to one of four and a half

years imprisonment where a 20 year old father caused the death of his nine month old daughter after losing his temper. He struck herhead against the floor when she was wriggling and being uncooperative while he was attempting to change her diaper. The accused inthat case had an unrelated criminal record and no psychological abnormality of any kind. [21] It is the defence submission that three broad categories emerge from sentencing decisions related to infant manslaughters.

Atthe low end of the scale are sentences of two years incarceration or less, often imposed on young single mothers of aboriginal orimmigrant status where mental disorders or social incapacity appear to result in abuse of the child or uncharacteristic fatal behaviourtoward the child. In support of those are cases: R. v. Pimentel (2000), 2000 MBCA 35 , 145 Man.R. (2d) 295; R. v. S.P.(2002), (NL SC), 218 Nfld. & P.E.I.R. 303; R. v. Lam (2004), 2004 ABQB 78 , 351 A.R. 332; R. v.Coombs (2004), 2004 ABQB 621 , 189 C.C.C. (3d) 397; and R. v.

Camire (2009), 2009 MBQB 226 , 244 Man.R.(2d) 270. [22] The defence submission is that cases attracting sentences at the high end of the scale are those of near murder. In those casessentences of eight years or more are imposed where there is an intent to repeatedly brutalize the victim or to cause harm that takes sometime to inflict and which obviously risks a fatal outcome. For example, smothering or drowning a child. [23] In R. v.

N.R.R. (2011), 2011 MBQB 90 , 264 Man.R. (2d) 155, a 12 year sentence less 40 months credit for timespent on remand was imposed on an aboriginal mother with serious addictions issues who pled guilty to smothering her child by placingher hand over the child's mouth for over one minute. [24] In R. v. Whitehawk (2010), 2010 SKCA 94 , 359 Sask. R. 105, the accused was sentenced on appeal to 10 yearsimprisonment for what the court described in that a case as very serious brutality inflicted on his infant daughter.

The court foundmultiple applications of extreme force on different days and that the accused was conscious of the child's suffering but provided no helpto her. The accused had an extensive record of 26 prior convictions, seven of which were for offences of violence. [25] In R. v. Elliot 2004 201 BCCA 220, a 12 year sentence was reduced to 10 years by the Court of Appeal for a case involvingmalnourishment and physical abuse of a child. The Court of Appeal noted that the evidence demonstrated a continuing pattern ofphysical abuse and maltreatment.

The accused, both accused in that case, were of aboriginal dissent and had limited education and workhistory. [26] In R. v. Watt 1988 CarswellOnt 1034 (Ont.C.A.), the Court of Appeal reduced a life sentence in this case, which was imposedafter a guilty plea to manslaughter, to a sentence of 12 years imprisonment. The accused there was a 20 year old father. He caused thedeath of his five month old son by brutally striking and shaking the infant to stop him from crying. The accused had no prior criminalrecord and did not suffer from any major psychiatric disorder. [27] In R. v.

Fujii 2002 ABQB 805, an accused mother was sentenced to eight years imprisonment for causing the death of her twoinfant children by abandoning them for 10 days resulting in their death by dehydration and starvation. The accused had no prior criminalrecord and suffered from depression and a borderline personality disorder. She was immature and did not have the necessary copingskills to deal with the stresses of raising children. [28] In R. v. Choy 2009 ABQB 343, the foster mother was convicted of causing the death of a three and a half year old foster childwho was in her care.

The child died when he hit his head on a toilet bowl while fighting with the accused. There was some evidencethat prior to the offence the accused had placed the child in a cold garage for a short period of time while the child was only clad in adiaper. The child had been disciplined in this way because he would not stop crying. The accused had no prior criminal record and nopsychiatric disorder. [29] A large number of sentencing cases involving manslaughter relating to infant deaths are in the middle range, with sentencesoften being in the three to six year range. [30] In R. v.

Dyke (2003), 222 Nlfd. & P.E.I.R. 298, the accused was frustrated by his daughter's crying. He shook the child andthrew her to the floor. The child died from the injuries she sustained. The trial judge found a high degree of culpability and the failure totake responsibility on the part of the accused. A five year sentence of imprisonment was imposed.

[31] Counsel for Mr. Rahman has referred to R. v. Da Silva (2005), (ON CA), 203 C.C.C. (3d) 1, a decision ofthe Ontario Court of Appeal, where the young single mother, accused, abandoned her child without food or liquids for various periodsover four days. The last abandonment lasted over 24 hours while the accused pursued a new boyfriend. The child died of dehydration asa result of a heat wave and the abandonment. The accused was sentenced to three years incarceration. The Court of Appeal, noting thatthe sentence was at the low end of the range, refused to intervene. [32] In R. v.

Stewart (2003), 2003 NSCA 150 , 221 N.S.R. (2d) 205 (N.S.C.A.) the accused was initially charged withsecond degree murder, but convicted of manslaughter relating to the death by the shaking of his girlfriend's two year old daughter. Asentence of 54 months imprisonment was upheld. [33] In R. v. Brake (2000), 190 Nlfd. & P.E.I.R. 201, the 26 year old accused pled guilty to committing manslaughter byintentionally striking his infant son in the head. He had no prior criminal record and had spent 12 months in pretrial custody. The trialcourt initially sentenced the accused to 18 months incarceration.

This was raised to three years on appeal. [34] In R. v. Grimmer (1999) (NB KB), 219 N.B.R. (2d) 150, the accused was sentenced to three yearsincarceration for manslaughter committed by shaking his nine week old infant child. The court in that case found that the accused wasaware of the dangers and consequences of shaking an infant. He was also found to have knowledge of first aid and medical matters. Theaccused had spent nine and a half months in pretrial custody. [35] In R. v. Shorting (2009), 2009 SKCA 102 , 337 Sask.R. 134 (Sask.

C.A.) a six year sentence, less 26 months, wasimposed on appeal in relation to the death of a seven month old child. The accused was the child's mother. She was a 28 year oldaboriginal woman with a history of childhood and spousal abuse who was addicted to alcohol and drugs. The accused also suffered frompsychological difficulties. [36] In R. v. Bos 2000 143 BCCA. 216, the 23 year old accused was convicted of the death of his seven week old daughter. In thatcase, the child had 33 rib fractures which had been inflicted over a four week period.

The most recent fractures were consistent with thechild having been severely shaken. The accused had no criminal record and was extremely remorseful. The Court of Appeal reduced athree year sentence imposed at trial to one of two years less one day, plus two years probation. [37] In R. v. Mendieta 2011 ONSC 1411, the 34 year old mother beat her 34 month old child about the head and body. Thebeating resulted in the child's death. The accused was extremely remorseful and was a first time offender. The accused had sufferedviolence from an early age.

She was incarcerated for six years but credited with 15 months of presentence custody, for a total sentence offour years nine months. [38] In R. v. Buckley 2000 BCPC 84 , a 26 year old pled guilty to causing death of an infant by shaking and throwing the infantonto a bed where she bounced onto the floor. He did this in a fit of anger after the child had soiled her diaper and spread the contents onthe wall and her crib, and after she would not stop crying. The infant suffered head injuries which led to her death. The accused had aprior unrelated record and a drinking problem, but no psychiatric disorders.

A four and a half year term of imprisonment was imposed. [39] In R. v. Johnson [1995] O.J. No. 3764, a 32 year old accused mother pled guilty to causing the death of her 22 month olddaughter by striking the child with an open hand or a clenched fist causing severe head injuries and death. There was also evidence inthat case that the infant had been brutalized by the accused on a number of occasions prior to the offence date. The accused had a minorcriminal record and suffered from chronic depression.

The court found her incapable of coping with the stresses of raising children. [40] As pointed out by counsel, there is no minimum sentence for manslaughter where no firearm is used. As can be seen from theforegoing, the range of sentence for manslaughter in any given case can vary considerably. [41]

Section 718.01 directs that the principles of denunciation and deterrence are primary considerations in the sentencing processrelating to offences against children under the age of 18 years.

[ 42 ]

Section 718.1 of the Code requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the accused.

Section 718.2 (

b) requires a sentence to be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 43 ]

Section 718.2(a)(ii.1) and (iii) deem as aggravating circumstances the abuse of a person under the age of 18 years and the abuse of a position of trust. [ 44 ] Aurora was seven weeks old at the time of her death. The accused, her father, was in a position of trust vis-a-vis his child. [ 45 ] At trial, in my reasons for judgment, I found a number of instances of violence being inflicted against Aurora. I believe the number was five. I find that the number of incidents where force was used is an aggravating factor in this case. [ 46 ] I have considered the statutory principles set out in the Criminal Code .

I find the accused's lack of a prior criminal record, his directing Ms. Gomes to call 911, and his performance of resuscitation efforts to be mitigating circumstances. As aggravating factors, I find the number of incidents, Mr. Rahman's lack of concern for Aurora's health and, in this case, there was no planning or deliberation. As I indicated the outbursts were spontaneous. [ 47 ] I must consider all of the circumstances relating to the offence, Mr.

Rahman and his prospects of reformation and rehabilitation. [ 48 ] At the beginning of my reasons for judgment at trial, I indicated that the Court was concerned with an offence which is particularly distasteful and cruel in nature. I noted that the death by violence of a seven week old infant is an event which, by its very nature, is calculated to excite emotions of shock and indignation. I commented that in such a situation, special care must be used to see that the trial is not marred by the improper creation of an atmosphere of prejudice and hostility.

Those comments, in my view, apply equally to the sentencing of Mr. Rahman who has been convicted of committing such an offence. [ 49 ] I have also considered, in arriving at a sentence in this case, Mr. Rahman's upbringing and cultural background. I have considered as well the fact that Mr. Rahman had no prior experience in caring for an infant child and he did not have the benefit of any prenatal education classes. [ 50 ] What occurred in this case is tragic. It is tragic for all those who are concerned. A seven week old child lost her life. A mother lost her daughter and years of education. Mr.

Rahman will lose his liberty. [ 51 ] Mr. Rahman is an intelligent and capable young man. He must be punished for what he did. A message that violence against children will not be tolerated must be sent to those who abuse or think of abusing children. Such persons must be made aware that even the lack of a prior criminal record will not prevent the imposition of a term of incarceration.

The punishment, however, cannot be so severe that it removes any hope of rehabilitation. [ 52 ] Before I impose sentence, I will address whether a conditional stay of proceedings should be entered with respect to the conviction for a charge of aggravated assault. [ 53 ] The prosecution argues that the accused should be sentenced on each count, with the sentences to run concurrently. [ 54 ] The defence submits that both offences were alleged to have been committed over the same time period and that the prosecution relied upon all acts capable of constituting the aggravated assault as unlawful acts which endangered and, therefore, contributed to Aurora's death.

The defence points to the wording of the indictment, its prosecution and the factual findings made by the Court in support of its application for a conditional stay.

[ 55 ] I am satisfied from the evidence presented at trial that there were five separate incidents where force was applied to Aurora. All of the incidents occurred at the same place. They did not, however, occur at the same time. The time frame for both offences listed on the indictment was the same. The conduct of the prosecution showed its reliance on all acts capable of constituting an aggravated assault as being the unlawful acts which endangered the life of Aurora. On this basis, I find it appropriate that a conditional stay of proceedings on the charge of aggravated assault be entered. [ 56 ] Mr.

Rahman, if you would stand please Sir. The sentence of this Court on the charge of manslaughter, Mr. Rahman, is that you be incarcerated in a federal penitentiary for a period of six years, six months. This offence, the laying of the charges and Mr. Rahman's pretrial custody occurred before the proclamation of the Truth in Sentencing Act . It came into force on February 22, 2010. Prior to this date, credit for time spent on pretrial detention was calculated on the basis of two for one.

I am satisfied that the amendments to the Criminal Code brought about by this Truth in Sentencing Act did not affect the Court's discretion to award credit on a two for one basis for pretrial custody. Mr. Rahman will be credited for his pretrial custody, however, no credit will be given for time spent in post conviction custody. [ 57 ] Mr. Rahman spent 417 days in pretrial custody. Doubling that, he will be credited for 834 days which amounts to two years and three months which will be deducted from his sentence.

Accordingly, a period of incarceration, on a go forward basis, is 51 months. [ 58 ] There will be a DNA order pursuant to s. 487.051(1) of the Criminal Code and a firearms prohibition order pursuant to s.109(1) (

a) of the Criminal Code. That will be for 10 years commencing from the date of his release. There will also be a lifetime prohibition against the possession of any prohibited firearm, restricted firearm, prohibited weapon, device or ammunition. [ 59 ] The funds deposited for Mr. Rahman's release from detention are released from the court. _________________________ Cacchione, J.