R v David, 2024 ABCJ 22

In the Alberta Court of Justice Citation: R v David, 2024 ABCJ 22 Date: 20240201 Docket: 210961447P1 Registry: Calgary Between: His Majesty the King - and - Simon Oluwagbem David Sentencing Judgment of the Honourable Justice B.R. Fraser Introduction [ 1 ] The Offender has been convicted after trial of sexually assaulting the victim in her own home while she was intoxicated, unconscious and sleeping. This was a major sexual assault as it involved penetrating her vagina with his penis. This is the sentencing stage of the trial.

I have received written oral submissions of counsel as well as authorities from both parties. Principles of Sentencing [ 2 ] The applicable principles of sentencing here are as follows: A.

The fundamental purpose of sentencing is to protect society by imposing just sanctions with the following objectives: 1) to denounce unlawful conduct and deter offenders from, in this case committing sexual assaults; 2) to separate offenders from society when necessary; 3) to rehabilitate offenders; and 4) to promote a sense of responsibility in offenders and acknowledge the harm done to victims. [ 3 ] The fundamental principle of sentencing is to ensure the sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender. This is the cardinal principle.

The severity of the sentence depends on the seriousness of the

consequences of the offence particularly to the victim and the moral blameworthiness of the offender. [ 4 ] The sentence must account for the relevant aggravating or mitigating circumstances of the offence and offender. [ 5 ] There should be parity of sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 6 ] An offender should not be deprived of his liberty if less restrictive sanctions are appropriate.

Aggravating Factors [ 7 ] The aggravating factors in this case are as follows: 1) The victim was intoxicated, unconscious, sleeping and therefore in a vulnerable state, unable to consent and taken advantage of in that state. 2) The assault took place in the victim's own home in her own bed by a man she barely knew and did not know he was in her home, he having entered her home after she and her friends had gone to bed. 3) The Offender had been rejected by the object of his first affection who had locked him out of her room.

Not to be deterred he returned to the main bedroom and took advantage of another female who was completely unaware of his presence. 4) The impact on the victim was significant as demonstrated by her reaction when she realized what he was doing and his penis was inserted in her vagina. As well it is shown by her Victim Impact Statement and the effect the sexual assault has had on her to this day and beyond.

The psychological effect on sexual assault victims is enormous and often affects them for the rest of their lives. 5) The Offender knew the victim was vulnerable and took advantage of her which makes him highly blameworthy. Mitigating Factors [ 8 ] It is suggested his youthful age is mitigating. He was 22 at the time and is now 25. Youthfulness can be mitigating depending on the circumstances of the Offender. In this case I find the Offender to be mature, well-educated and becoming a professional engineer. This offence was not a momentary impulse as he had left the party and returned to find the party over.

Rather than leave he went to the girl’s bedroom, stared at them in bed and then climbed in bed with them. He followed the victim's friend into another bedroom but she locked him out. He retreats to the victim's bedroom and takes advantage of her. This shows a determination to get what he wants. His age may be mitigating. His maturity and determination in committing the offence reduces that mitigation.

Position of the Parties [ 9 ] The Crown submits the appropriate sentence is four years incarceration in a penitentiary. [ 10 ] The defence submits the appropriate sentence is a Conditional Sentence Order of two years less a day to be served in the community followed by three years of probation. [ 11 ] The Crown's position is based on the well-known starting point in Alberta of three years set out by the Court of Appeal in R v Sandercock , 1985 ABCA 218 and R v Arcand , 2010 ABCA 363 for a major sexual assault as refined by the Supreme Court of Canada in R v Parranto , 2021 SCC 46 , a drug case not a sexual assault case, that held starting points are a guide to assist sentencing courts to reach a proportionate sentence but not to be rigidly adhered to as sentencing is and remains an individual case exercise.

The Crown maintains the sentence in this case should be higher given the aggravating factors. [ 12 ] The defence position is based on a number of authorities of similar major sexual assault cases where the sentences were two to two and a half years. Those cases were Crown appeals of sentences of 18 months and 90 days intermittent that were increased to two years and beyond after finding those sentences were demonstrably unfit. It is recognized that the Court of Appeal in Arcand increased the sentence to two years less a day but in that case the Offender was 18 years of age.

The cases relied on by the defence are R v Sitko , 2017 ABCA 434 , R v Krueger , 2017 ABQB 459 and R v Milosevic , 2019 ABQB 199 . The last two were sentencing court decisions in Queen's Bench. Conditional Sentence Order [ 13 ] Conditional sentences are available if the appropriate sentence is a term of imprisonment of less than two years; a sentence in the community would not endanger the community; it would be consistent with the fundamental purpose and principles of sentencing as reviewed previously; and there is no minimum term of imprisonment. [ 14 ] There is no minimum term of imprisonment for this offence.

The maximum is 10 years. I am satisfied this Offender would not be a danger to the community having reviewed the Pre-Sentence Report, the letters submitted regarding his employment, and his expression to the Court of an understanding what he did was wrong and showing remorse. I am satisfied his maturity and education indicate he is a low risk to re-offend.

[ 15 ] However, given the aggravating factors as previously reviewed, in particular taking advantage of a vulnerable victim and the psychological damage this has inflicted on her, making him highly blameworthy, any sentence less than two years would be demonstrably unfit and inconsistent with the fundamental purposes and principles of sentencing. [ 16 ] Therefore, a Conditional Sentence Order is not available as an appropriate sentence. The Appropriate Sentence [ 17 ] The Alberta Court of Appeal has set a starting point sentence of three years for a major sexual assault.

The Supreme Court in Parranto has confirmed starting points are a valid sentencing guideline for sentencing courts but they are not mandatory and sentences must be individualized. They have also said in R v Friesen , 2020 SCC 9 there should be no reduction from the norm for major sexual assaults on adult victims and their psychological effect on the victim should weigh heavily in determining the appropriate sentence. The aggravating factors no doubt, factored into the submissions of the Crown that the sentence should be above the norm and set at four years.

That position is supported by comparable cases cited by the Crown such as R v Shrivastava , 2019 ABQB 663 , R v Abreha , 2022 ABKB 830 , R v Quintero-Gelvez , 2023 ABCA 64 , where the sentences for major sexual assaults on adult victims with similar aggravating factors were in the three and a half to four and a half years range. [ 18 ] However, there are other factors to consider including the one mitigating factor of youthfulness. Although I find him to be mature for his age, he is still youthful.

Other factors to consider, although not considered expressly mitigating, are the favourable Pre- Sentence Report, his expression of remorse to the Court and an acknowledgement of what he did was wrong, letters indicating he is a good employee and he has a likely future as a professional engineer, that he is well-educated; and it is my assessment he is a low risk to re-offend. This leads me to conclude specific deterrence and denunciation is not a strong factor in sentencing.

General deterrence and denunciation is, but is already factored into the starting point guide. [ 19 ] Proportionality and individualization demand these accumulated factors require some reduction in the otherwise appropriate sentence of four years. I will reduce the sentence to three and a half years.

Ancillary Orders 1) He will provide a DNA profile pursuant to sec 487.04. 2) There will be a Firearms Prohibition Order pursuant to sec 109; 10 years for firearms etc. following his release and life for prohibited or restricted firearms, etc. 3) He will register under SOIRA as a sex offender pursuant to sec 490.012 as he qualifies under the amended sec 490.012(3). 4) There will be a Non-communication Order with the victim during his custodial sentence pursuant to sec 743.21(1). 5) The victim fine surcharge will be waived given the length of his incarceration.

Dated at the City of Calgary, Alberta this 1 st day of February, 2024. B.R. Fraser A Justice of the Alberta Court of Justice Appearances:

M. Kostiuk for the Crown E. Ryland for the Accused