SUPREME COURT OF NOVA SCOTIA Citation: R. v. Alas, 2019 NSSC 68

Transcription

1 SUPREME COURT OF NOVA SCOTIA Citation: R. v. Alas, 2019 NSSC 68 Date: Docket: CRH Registry: Halifax Between: Her Majesty the Queen v. Pablo Moises Alas Restriction on Publication: Section 486 of the Criminal Code Sentencing Decision Judge: Heard: Oral Decision: Written Release: Counsel: The Honourable Justice Timothy Gabriel February 12, 2019, in Halifax, Nova Scotia February 12, 2019 February 22, 2019 Jane Mills, for the Crown Thomas Singleton, for the Defence

2 Page 2 By the Court (orally): [1] I have been provided with a joint recommendation in this case. A joint recommendation does not invite a rubber stamp procedure, nor is it some kind of dry academic exercise. Nonetheless, the Supreme Court of Canada tells me in R. v. Anthony-Cook, [2016] 2 S.C.R. 204, that if I am to depart from a joint recommendation, a very high threshold, in terms of unfitness of sentence, would have to be apparent to me. I am going to outline to some extent the reasoning behind the conclusions that I have made and what has gone into my determination of the appropriateness of the joint recommendation. [2] As I said, I remind everybody of the publication ban which is in place to both protect the identity of the complainant, and also to ban the publication of any facts that could identify the complainant. [3] On September 4, 2018, Mr. Alas entered pleas of guilty to two charges. The first was on or about the 7 th day of December, 2016 at, or near Dartmouth, in the County of Halifax, Province of Nova Scotia that he did in committing a sexual assault on S.M., cause bodily harm to the said S.M. contrary to Section 272(1)(c) of the Criminal Code. The second is that he, at the same time and place, did unlawfully utter a threat to S.M., to cause bodily harm or death to the said S.M., contrary to Section 264.1(1)(1)(a) of the Criminal Code. [4] Without repeating all of the facts to which the parties have agreed, the encounter between the victim and the accused began when she went out in the wee hours of the morning on December 7, 2016 to mail a letter. She encountered Mr. Alas. There was some discussion of the fact that she was an escort, the fees charged for certain sexual services, and other conditions. One thing led to another, and the parties went back to her residence. [5] While the two sat on her couch, Mr. Alas began punching her in the face. Then she was choked, first with one hand, then two, blocking her airway. Then he wrapped her long hair around his hand. The accused removed her pants, punching her face and continuing to pull her hair in the process. As she begged him to stop, he told her she was going to die. The accused forced her to perform fellatio. She begged him to wear a condom, which he did but told the victim that if she bit him, he would kill her. When the accused ejaculated he went to the bathroom warning the victim that if she tried to fight back or leave he would kill her.

3 Page 3 [6] At one point, the victim recalls the accused telling her that he could not do this anymore, and that he was a psychopath. She was scared. The accused repeatedly told her that he was raping her during the forced vaginal and anal intercourse. There is more, but it is not necessary that I continue beyond this. At one point, she was able to dial 911, and although she did not speak into her cell phone, the police were able to trace the call. When they knocked at her door, she told the accused it was her boyfriend. When the door was opened, the victim ran out, naked from the waist down, screaming. Her face was swollen and bruised. She was taken to the hospital and later released. [7] I have been presented with a joint recommendation by counsel for a period a incarceration of seven years on the section 272(1)(c) charge (sexual assault causing bodily harm) and three years on the section 264.1(1)(a) charge (threat to cause bodily harm or death) to be served concurrently, as well as some ancillary orders. I have considered the submissions of counsel and some additional materials, to assist in the determination of whether I am prepared to accept the recommendation. [8] As to these materials, first, I have the Comprehensive Forensic Sexual Behaviour Assessment with respect to Mr. Alas, prepared by Dr. Michelle St. Amand-Johnson dated October 23, Next, I have Mr. Alas Pre-Sentence Report dated January 25, Finally, I have Ms. M s Victim Impact Statement, which she was able to read to the Court. [9] I see nothing out of the ordinary in the Pre-Sentence Report. Mr. Alas parents hail from El Salvador. They separated before he was born. He himself was born in Hamilton, Ontario. He lived primarily with his mother growing up but saw his father regularly. He still currently resides with his father. As expected, both parents spoke well of their son. [10] At page 4 of 7, Dr. Alas stated he was shocked and that he struggled to understand what was happening after the charges. He further noted, It got me in a state of turmoil and panic. Dr. Alas informed that the accused fell into a bout of depression following the matter, noting it was common to find his son crying alone, all the while displaying deep remorse. He spoke of the impact which this has had on the family. The author also made contact with his mother. She described her son as a good kid, noting that he experienced a positive childhood. She offered that her son did struggle a bit in school, but he would make up for it by devoting more effort, notably when he returned to school to continue his education later on. She had no concerns with his use of alcohol or illicit drugs. She indicated that this has been a nightmare and that he made a mistake.

4 Page 4 [11] The accused told the author of the Pre-Sentence Report that he works full time as a call agent, but was only able to work out of his home, due to the house arrest condition to which he was subject while he awaited trial. He has no criminal record of any sort. He aspires to be a plumber. He confirms his mother s impression that he is not involved with drugs or gambling or drinking. [12] He says that the actions which led to the charges came about in the aftermath of a recent breakup with his girlfriend after a three year relationship, and he said that his head space was not where it usually is when he committed these offences. He says that he is ashamed of his actions and can offer no excuse for them. He says that he deserves what is coming to him and feels a lot of shame towards the victim saying he is sorry 110 percent. [13] The Forensic Sexual Behaviour Presentence Assessment reports that Mr. Alas reported no history of abuse, neglect or parental substance abuse or anti-social behaviour, and that he has had positive relationships in his adulthood and within his family of origin. He now has obtained his grade 12 education. [14] Psychological testing results were obtained through a number of diagnostic tests that were performed by Dr. St. Amand-Johnson. She summarized the results in her report, and concluded at page 25 that using the combination of actuarial risk assessment and structured clinical judgement, Mr. Alas risk for sexual recidivism is assessed as being in the average range. This suggests that he has some criminogenic needs requiring meaningful engagement in treatment. If Mr. Alas were to re-offend sexually, his history and current assessment results suggest that it would most likely be against an adult female, at a time when he is highly distressed or frustrated and is not managing his feelings well. [15] We heard from S.M., the victim who read her Victim Impact Statement for the court. She has described in detail the feeling that she has sustained of a loss of self-worth. She also is left with intimacy issues, daily pain, flashbacks, nightmares, and feelings of being emotionally, spiritually and mentally broken. She struggles with insomnia, isolation, and embarrassment. She lives in fear. When this ordeal was inflicted upon her, in her own home, she literally feared for her life and that of her child. She attends therapy and is determined to overcome the injuries that she has sustained. She has shown commendable courage in coming forward to read her Victim Impact Statement today.

5 Page 5 [16] Section 718 of the Criminal Code codifies the objectives to which a court aspires in sentencing. It is an individualized process, not a cookie cutter exercise. These objectives are as follows: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [17] I am also mindful of Section 718.1, which reminds me that a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. And Section which requires that: A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (v) evidence that the offence was a terrorism offence, or

6 Page 6 (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act shall be deemed to be aggravating circumstances; (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [18] I have been referred to various case authorities by the parties. I have reviewed these and others, including R. v. McCraw, [1991] 3 SCR 72; R. v. Simpson, 2017 NSPC 25; R v. JCM, 2013 NSSC126; R. v. Anderson, 2015 MBCA 30; R. v. Desjarlais, 2017 SKQB 227; R v. Mahun, 2016 ABCA 230; R. v. Whyatt, 2017 ONSC 390; R. v. MBMM, 2015 BCPC 2; R. v. Arcand, 2010 ABCA 363; R. v. Doyle, NSR(2d) (CA). [19] To begin, I can say it no better than Justice Corey did in McCraw, at paras. 31 and 32: 31. Violence and the threat of serious bodily harm are indeed the hallmarks of rape. While the bruises and physical results of the violent act will often disappear over time, the devastating psychological effects may last a lifetime. It seems to me that grave psychological harm could certainly result from an act of rape. 32. The psychological trauma suffered by rape victims has been well documented. It involves symptoms of depression, sleeplessness, a sense of defilement, the loss of sexual desire, fear and distrust of others, strong feelings of guilt, shame and loss of self-esteem. It is a crime committed against women which has a dramatic, traumatic impact. See D. J. Giacopassi and K. R. Wilkinson, "Rape and the Devalued Victim" (1985), 9 Law and Human Behavior 367; R. v. Billam (1986), 8 Cr. App. R.(S.) 48 (C.A.), at pp ; P. Marshall, "Sexual Assault, The Charter and Sentencing Reform" (1988), 63 C.R. (3d) 216, at p. 221; A. W. Burgess, "Rape Trauma Syndrome" (1983), 1:3 Behavioral Sciences and the Law 97; C. H. Herd, "Criminal Law: Kansas Recognizes Rape Trauma Syndrome" (1985), 24 Washburn

7 Page 7 L.J To ignore the fact that rape frequently [page85] results in serious psychological harm to the victim would be a retrograde step, contrary to any concept of sensitivity in the application of the law. [20] I also return to Doyle, where Mr. Justice David Chipman, as he then was, explained: Comparisons with other cases is a difficult exercise. Attempts to seek similarities with or differences from other offences committed by other people can be very frustrating and counter productive. We are not dealing with an exercise of reviewing "comparables" such as is done in a property appraisal. In exercising the discretion under s. 744 of the Code, other cases are no more than a rough guide for the sentencing judge in identifying the types of aggravating or mitigating circumstances that other courts have relied on as relevant in applying the guidelines. [21] Here the attack was completely unprovoked. The impact on the victim will be lengthy as she struggles to overcome what has been done to her. She was beaten, over what was not a trivial period of time. She sustained physical injuries and emotional damage. She was threatened and she feared for her life. The assault occurred in her own home. She was punched and choked. She was also taunted while the process was going on. These are all aggravating factors. [22] Mitigating factors include the guilty plea and the expression of remorse at least in in the Pre-Sentence Report, the relative youth of the accused, although 30 is certainly an age where one would expect much more stability than Mr. Alas has shown himself to be capable of. The absence of a prior criminal record is also a mitigating feature. So is the fact that he has a supportive family who are here to support him and have supported him throughout his life and in the aftermath of these charges. The fact that he went to great lengths to remain employed and seems to have a decent work ethic (even to the extent of finding a job that he could do from his home while on house arrest) are also mitigating factors. [23] I have considered all of the above including the case authorities. While no two cases are alike, I begin with the observation that the range of sentences for these offences with similar circumstances, broadly speaking as identified in the authorities, globally falls on a continuum of between five to nine years of imprisonment. Despite the mitigating factors which are present, I would not have considered a sentence at the low end of the range to be appropriate given the significance of the aggravating factors that I have noted herein. Moreover, I consider that, in dealing with offences of this type and nature, the principles of denunciation and deterrence (both individual and societal) must be stressed. While society does

8 Page 8 not seek vengeance through the sentencing process, it must exact what it considers to be just retribution. [24] Returning to the joint recommendation, I am required, as I indicated earlier, to follow the guidelines set forth by the Supreme Court of Canada in R. v. Anthony- Cook. These principles were aptly summarized by (then) Provincial Court Judge Anne Derrick (now Justice Derrick of the Nova Scotia Court of Appeal) where, in R. v. Sponagle, 2017 NSPC 23, she explained that: 49. In Anthony-Cook, the Court established the test that a sentencing judge must apply before departing from a joint submission. That test is whether the proposed sentence would bring the administration of justice into disrepute, or would otherwise be contrary to the public interest. (para. 5) Moldaver, J. writing for a unanimous Court has said this test "helps keep trial judges focused on the unique considerations that apply when assessing the acceptability of a joint submission." (para. 31) Reciting a passage from one of two decisions he referenced from the Newfoundland Court of Appeal, Moldaver, J. said when assessing a joint submission, trial judges should "avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts." (para. 33) And this is what Moldaver, J. had to say about what he described as a "powerful" statement against the rejection of a joint recommendation on sentence:...rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold...(para. 34) [25] Bearing all of the above in mind, I have concluded that the recommended sentence is appropriate to the circumstances of this case. In saying that, I have obviously concluded that what is recommended does not come anywhere close to the undeniably high threshold identified by Anthony-Cook as the prerequisite to a departure from a joint recommendation. [26] Accordingly, Mr. Alas, please stand. You are sentenced to seven years imprisonment in a federal institution. It will be broken down on the basis of seven years on the Section 272(1)(c) offence and three years on the uttering threats under Section 264.1(1)(a), to be served concurrently. I will also grant the DNA Order sought on a primary designated basis in relation to both offences, a SOIRA Order pursuant to Section for 20 years (which will require you to be registered in

9 Page 9 the Sexual Offender Registry for that period of time) and a Firearms Prohibition Order pursuant to Section 109(a) of the Criminal Code for 10 years. [27] I will also recommend that, while incarcerated, you attend, participate in and successfully complete a specialized treatment program for sexual offenders at a moderate level of intensity. [28] Given that it would impose undue hardship, given the period of imprisonment to which you will be subject and the recent case authorities which have in effect restored my ability to do so, I will waive the imposition of the victim fine surcharge. [29] In concluding, I am going to remind you, first of all, that you have said to various people that you are sorry for what you have done. That is easy to say. Now it is going to be up to you to demonstrate that. You are going to have to apply yourself to the treatment program and make sure that what happened in this case, does not happen to anybody again. Because of the degree of savagery with which this offence was perpetrated, I suspect that there is a little more to you than the civilized veneer that meets the court s eye today. I expect that you will apply yourself in these circumstances to see to it that no member of our community is ever victimized or traumatized by you in the matter of what you did to the victim in this case. If not for your own sake, do it for your family s sake and for the sake of all those people out there that have a right to expect far better treatment in our society. Gabriel, J.