CITATION: R. v. Downey and Thompson, 2010 ONSC 1531 COURT FILE NO.: 2695/08 DATE:

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1 CITATION: R. v. Downey and Thompson, 2010 ONSC 1531 COURT FILE NO.: 2695/08 DATE: SUPERIOR COURT OF JUSTICE - ONTARIO RE: HER MAJESTY THE QUEEN v. THOMAS DOWNEY and SPENCER THOMPSON BEFORE: O Connor J. COUNSEL: Ms. K. Holmes, for the Crown Mr. R. Singh, for Thomas Downey Mr. S. Caramanna, for Spencer Thompson S E N T E N C I N G R U L I N G [1] In June 2007, KC, a young woman from Nova Scotia, was visiting family and friends on a vacation in Ontario. Her visit was horribly interrupted when she was kidnapped and confined for 24 hours, during which she was repeatedly and violently, sexually and physically assaulted. Her two assailants stripped her, bound her hand and foot, and then beat, kicked and burned her with a cigarette lighter on various parts of her body, including her vagina. One sexual assault was inflicted by inserting a bottle into her vagina. She was released only after

2 -2- her assailants learned she is the sister of a man they knew. She retains the physical and psychological scars of her ordeal to this day. [2] The offenders and a third man, Anthony Roberts, were charged with kidnapping, unlawful confinement, human trafficking, theft of an identity card to facilitate human trafficking, assault, several sexual assaults, two counts of sexual assault with a weapon and aggravated sexual assault. [3] The offenders were tried by a judge and jury. At the conclusion of the Crown s case, Roberts brought a motion for a directed verdict of not guilty on all counts. For written reasons released October 30, 2009, the motion was granted and he was found not guilty on all counts and released. [4] On November 5, 2009, the jury found Spencer Thompson guilty of kidnapping, unlawful confinement, four counts of sexual assault, one count of sexual assault with a weapon, assault and aggravated sexual assault. [5] The jury found Thomas Downey guilty of kidnapping, unlawful confinement, sexual assault, assault, sexual assault with a weapon and aggravated sexual assault. [6] The jury acquitted both offenders of several counts on the indictment, including: Count 3 trafficking in persons

3 -3- Count 4 theft of identity documents to facilitate an offence Count 6 sexual assault with another person (Downey only) Count 7 sexual assault with a weapon: bottle, but guilty of sexual assault [7] At the outset of this sentencing hearing the parties agreed that the findings of guilt on some of the counts against both offenders should be stayed in accordance with the principle in R. v. Kienapple (1975), 15 C.C.C. (2d) 524 (S.C.C.). These included: Count 2 unlawful confinement Count 7 sexual assault with a weapon, to wit, a bottle Count 8 sexual assault with a weapon, to wit: a lighter Count 9 assault Count 12 sexual assault (Thompson only) [8] As a result of the acquittals and Kienapple stays, the offenders are to be sentenced on the following counts: Count 1 kidnapping (both offenders) Count 5 sexual assault (Thompson only) Count 10 aggravated sexual assault (both offenders) Count 11 sexual assault (Thompson only) The Facts [9] When a jury finds an offender guilty of an offence, it of course, does not give reasons, only its verdict. When the offence upon which the offender has been convicted is one that could involve a broad spectrum of underlying facts, such as in this case, with guilty verdicts on the kidnapping, sexual assault and aggravated sexual assault charges, the sentencing judge must determine, as

4 -4- best as he is able, the facts upon which the jury made its findings. In R. v. Ferguson (2008), 228 C.C.C. (3d) 385 (S.C.C.), Chief Justice McLachlin said at para. 16: This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury s verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand. [10] The Supreme Court outlines two governing principles guiding the analysis of the jury s findings. First, as set out in s.724(2)(a) of the Criminal Code, the sentencing judge shall accept as proven all facts, express or implied, that are essential to the jury s verdict of guilty. The judge must not accept as fact any evidence consistent only with a verdict rejected by the jury: R. v. Braun (1995), 95 C.C.C. (3d) 443 (Man. C.A.). Second, as Chief Justice McLachlin said at para. 18 of Ferguson: [W]hen the factual implications of the jury s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts In so doing, the sentencing judge may find any other relevant fact that was disclosed by evidence at the trial to be proven (s.724(2)(b). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: (ss.724(3)(d) and 724(3)(e). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues. [Citations omitted.]

5 -5- [11] Applying the above principles and directives of the Supreme Court, I have set out below the relevant facts essential to the jury s verdicts in this matter. In doing so I have ignored the evidence relevant only to the counts in the indictment upon which the jury found the offenders not guilty. Because most, if not all, of the important facts are atrocious and thus aggravating, in finding them as facts I have kept in mind the necessary standard of proof beyond a reasonable doubt that must apply to them. [12] In June 2007, the complainant, KC and her boyfriend journeyed from North Preston, Nova Scotia, to visit her aunt and friends in Mississauga, Ontario. She was nineteen years old at the time. She was and is a very small woman. She is under 5 tall and weighs less than 100 pounds. [13] On June 27, 2009 she and her boyfriend were to stay at her aunt s home. However, she had left her bag at her boyfriend s cousin s apartment. They went to retrieve it. While she was there, lying on a bed watching TV, Thompson, Downey and Roberts came into the room. [14] Thompson told her to get [her] shit together. He smacked her in the face and he and Downey took her with them, down the apartment elevator and forced her into a car. [15] They drove her to an apartment building in Mississauga, into an underground parking area and took her up an elevator to an apartment.

6 -6- Thompson told her to take a shower. She did. He told her she didn t know what she had got herself into, but that it was a life and death situation. [16] Thompson tied her hands and feet with shoe laces, then connected the ties with a belt, effectively hog-tying her. He put a dirty sock in her mouth and tied a bandanna around it. He put a t-shirt over her head. He pushed her to the floor and punched her in the head. Both Thompson and Downey then kicked her in her stomach. [17] Downey told Thompson to burn her. Thompson pulled her pants down and burned her with a lighter on her arms, legs, buttocks, and the outside of her vagina. Some of the burns left lasting scars. [18] Thompson shoved a cream bottle into her vagina. [19] Downey forced her to perform fellatio on him and asked her if she was going to be a good girl. [20] They put her in a small closet lined with tinfoil for the night. She remained hog-tied. [21] In the morning she could not feel her hands and feet. Roberts came in and loosened her ties. Roberts and Downey left the apartment.

7 -7- [22] Thompson forced her to fellate him three times. He pulled her pants down and forced vaginal intercourse with her, using a plastic grocery bag as a condom. [23] Still hog-tied, she was put back in the closet for the rest of the day until about 7:30 that evening. Thompson asked her whether it was true that FC was her brother. She confirmed he was. He untied her. At about 10:30 he apologized to her and called her a cab. She returned to her aunt s home. [24] The next day she took the bus back to Nova Scotia. Her mother met her and took her to the hospital where a sexual assault examination was conducted and she received medical treatment for her burns and other injuries. She learned she was pregnant. Two weeks later she miscarried her baby. She gave a statement to the Halifax police. [25] She learned from the police that her assailants believed that her boyfriend had stolen a car and a safe belonging to one of her assailants brother and that her assailants believed she was a party to the thefts. She said that at one point they said she was going to be their prostitute and that she would have no choice about it. The Goals and Principles of Sentencing

8 -8- [26] In R. v. Amara, 2010 ONSC 441 at para. 131, Durno J., in sentencing one of the so-called Toronto 18, young men accused, and some convicted, of terrorist related offences, remarked as follows: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions The purpose is achieved by blending the various objectives identified in s.718. The proper blending of those objectives depends on the nature of the offence and the nature of the offender: R. v. McArthur (2004), 182 C.C.C. (3d) 230 (Ont. C.A.). [27] When sentencing any offender, a trial judge has diverse but specific duties to the offender, to the public and to the victim, especially in the latter case, in circumstances of physical and/or sexual violence. This difficult balancing analysis nevertheless has a narrow focus, as the sentence imposed must reflect the circumstances and the gravity of the offence and the attributes of the offender. Sentencing requires a delicate, case specific analysis: R. v. Hamilton, [2004] O.J. No (C.A.). Pursuant to s.718.2(a) of the Code, the sentencing judge must take into account any aggravating and mitigating factors which may increase or reduce the sentence. Section 718 [28] Section 718 provides that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sentence that has one or more of the following objectives.

9 -9- a) To denounce unlawful conduct [29] The courts must reflect, through the sentences they impose, society s abhorrence of particularly violent, abusive crimes. Thus, in R. v. M.(C.A.) (1996), 105 C.C.C. (3d) 327, at para. 81, the Supreme Court said that a sentence with a denunciatory element represents a symbolic, collective statement that the offender s conduct should be punished for encroaching on our society s basic code of values enshrined within our substantive criminal law. In this case, society would wish to denounce in the strongest terms the extreme and degrading violence undertaken by these offenders. The kidnapping and torture of a young girl over a period of 24 hours obviously warrants a severe sentence to express the denunciation of this court. b) To deter the offender and other persons from committing offences [30] General and specific deterrence are fundamental sentencing goals that are generally common to virtually all sentences imposed by our courts. A sentence must send a strong and clear message to other like-minded individuals who may be inclined to engage in conduct similar to that of the offender. The offender must also understand that a repetition of his conduct will draw a similar or even harsher penalty. Again, this objective is achieved by the duration of the sentence imposed. c) To separate offenders from society, where necessary

10 -10- [31] Where it is apparent that the offender is a dangerous person, who is likely to compromise public safety if released, he should be detained for a period of time sufficient to reasonably conclude that such danger has subsided. The duration of the sentence must be sufficient to give the correctional authorities the necessary time to properly treat the offender and for the National Parole Board to assess the risk of his reoffending. In this case, the sentences that Messrs. Thompson and Downey are to serve will be adequate to meet this objective. d) To assist in rehabilitating offenders [32] Achieving the rehabilitation of an offender in custody necessarily involves programs, courses and activities designed to educate, retrain and counsel him/her to choose a productive lifestyle after release, rather than to continue on the destructive path he/she was on when convicted. While the sentencing judge can order rehabilitative steps after an offender s release by providing for a period of probation, the terms of which may include assigning a parole officer, drug counselling, anger management courses, attendance in school, etc., he is limited in his jurisdiction in ordering help while the offender is in custody. Treatment in custody is determined and administered by the correctional authorities. Unfortunately, meaningful treatment is sometimes limited by a scarcity of adequate resources.

11 -11- e) To provide reparation for harm to the victim and the community [33] There is little Messrs. Thompson and Downey can do to provide reparation to KC or to the community. They should have no direct or indirect contact with her either before or upon their release from custody. Any such contact would only serve to rekindle in her, memories of the horror of the ordeal she suffered at their hands. f) To promote a sense of responsibility in the offenders, and acknowledgement of the harm done [34] Again, achieving this objective usually requires programs and education commencing while in custody, if available, and continuing after release. This objective goes hand in hand with the objective of rehabilitation. [35] Mr. Thompson appears to have made some progress in acknowledging the harm he inflicted on KC. While in custody awaiting trial he took about forty short bible study courses and received certificates of completion. He said he is now guided by the Lord. He stated to the probation officer preparing his presentence report that he feels very sorry for the victim and the long road to recovery that she has ahead of her for all the pain that she has suffered. Mr. Thompson s pre-sentence report is remarkable for its apparent honesty. When given the opportunity to address the court before passing sentence he made similar comments. While, for obvious reasons, the courts should be suspicious of the sincerity of pre-sentence religious conversions, I note that he took the bible

12 -12- courses over a two year period before he was convicted, and continues to take them, and that he is consistent in his remarks of remorse for his victim. The Crown submits that weighed against these beginning signs of possible rehabilitation is the evidence of Lt. Michael MacDonald, with respect to Mr. Thompson s record of misconduct while in custody. Lt. MacDonald is a security investigator at Maplehurst Correctional Centre, where the offenders were lodged for two and a half years awaiting trial. Mr. Thompson has been cited for five misconducts resulting in terms in solitary confinement. These involved fights and possession of drugs, pills or a cell phone. It should be noted that the procedure for determining responsibility for such conduct is perfunctory at best and unfair at worst, usually giving the accused little or no opportunity to mount a defence. Further, the last of Mr. Thompson s misconducts occurred near the end of November 2008, about the same time he commenced his bible study courses. I find that the Crown has not met its burden of proving beyond a reasonable doubt, a lack of remorse on the part of Mr. Thompson. [36] In contrast, during the preparation of his pre-sentence report, Mr. Downey denied any guilt or responsibility for the offences. He indicated he should be sentenced to time served for watching the offence take place and not calling police. However, when given the opportunity to address the court, he said that he is sorry for everything he did to KC and her family.

13 -13- Aggravating Factors a) Duration of the Offences [37] These offences did not occur on the spur of the moment, for example, as a spontaneous reaction to an assault or an insult. They took some deliberation and planning and they were carried out over a period of 24 hours. They were nothing short of the planned and executed torture of a small, vulnerable young woman involving elements of sadism. b) KC Spent 13 days in custody [38] KC, who lives in Nova Scotia, was reluctant to attend court in answer to a subpoena served on her. Although there was no evidence as to the reason for her reluctance, it was assumed she feared retribution by the many friends and relatives of the offenders living in North Preston, Nova Scotia. The police made travel, accommodation and protection arrangements for her attendance. However, it was necessary to issue a witness warrant to ensure her attendance. She spent 13 days in custody. The Crown argued that her confinement is an aggravating factor to be considered on this sentencing. [39] I disagree. Although her fears and concerns were no doubt genuine, without some evidence of threats or coercion from the offenders, or someone at their behest, KC s custody cannot be considered an aggravating factor in their

14 -14- sentencing hearing. I decline to consider her unfortunate custodial situation an aggravating factor to be considered when sentencing these offenders. (c) Motive [40] The Crown submitted that the motive for the offences should be considered an aggravating factor. There was some evidence that the offenders motive was either retribution against KC s boyfriend because he had allegedly stolen a car and a safe from one of the offenders brother or because they wished to second KC into prostitution for them. I find that neither of these alleged motives was proven beyond a reasonable doubt. I have therefore not considered either as an aggravating factor. d) Lack of Remorse [41] The onus is on the Crown to prove beyond a reasonable doubt the offenders lack of any remorse for the offences. Mr. Thompson has expressed his remorse both to the probation officer preparing his pre-sentence report and to the court. Although one must be sceptical of his sincerity, for the reasons stated above, I would find the Crown has not proven the lack of remorse beyond a reasonable doubt. [42] Similarly, Mr. Downey now says he is sorry for what he did to KC and her family. Again I cannot find that Mr. Downey s lack of remorse has been proven to the standard required.

15 -15- Mitigating Factors (a) Age [43] Both offenders are relatively young, Mr. Thompson being 22 at the time of the offence and Mr. Downey being 21. In R. v. Borde (2003), 172 C.C.C. (3d) 225, the Ontario Court of Appeal held that the relative youth of an offender can be an important consideration in sentencing, along with whether there is a previous criminal record. However, the more serious the offence, the less of a mitigating factor age will be. In this case the offences are very serious. Further, the offenders are both at the upper end of the youth scale. Both offenders have youth and adult criminal records. The particulars of Mr. Thompson s record are unclear. He admitted to the probation officer preparing his pre-sentence report that he had a youth and adult record in Nova Scotia. Mr. Downey has been convicted as a youth of assault causing bodily harm, and as an adult of threatening police, possession of a restricted weapon and possession of a scheduled substance. Thus, I find the seriousness of the offences, the relative ages of the offenders and their previous criminal records mitigate the effect of their youth. I do not consider their age a mitigating factor. b) Remorse [44] The flip side of lack of remorse is obviously a demonstration of remorse, which need be proven only on a balance of probabilities. In this case, I find Mr. Thompson s expressions of remorse meet that standard, if only barely. He will

16 -16- be given some credit for his expressions in this regard, although the weight I give it as a mitigating factor is minimal, given the seriousness of the offences involved. [45] Similarly, with Mr. Downey, his short and late expression of remorse carries little weight in the determination of a just sentence for him. Pre-sentence Custody Credit [46] Pre-sentence custody is deemed to be part of the punishment imposed after conviction. As recognized by Durno J. in R. v. Gaya, 2010 ONSC 434, at para. 76, whether to give enhanced credit for pre-sentence custody is within the discretion of the sentencing judge: Double credit is normally given in Ontario: R. v. Warren, [1999] O.J. No (C.A.), R. v. Wust, [(2000), 143 C.C.C. (3d) 129 (S.C.C.)] at para. 45; R. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.). Enhanced credit is given because, except for life sentences, a sentence starts on the day it is imposed and cannot be back-dated to the date of incarceration: s.719. Legislative provisions for parole and statutory release do not take into consideration pre-sentence custody which may account for its street name, "dead time." Second, local detention centres do not provide extensive educational, retraining or rehabilitative programs: R. v. Rezaie (1996), 112 C.C.C. (3d) 97 (Ont. C.A.). It has also been argued that local jails are notoriously overcrowded in support of enhanced credit: Wust, supra, para. 41. The comparisons that lead to double credit are between pre and post sentencing incarceration. [47] Mr. Thompson has been in custody for 978 days, or 2 years, 8 months and 8 days. Mr Downey has been in custody for 962 days or 2 years, 7 months and 22 days. Both offenders were held at Maplehurst Correctional Centre for the duration of their pre-trial incarceration. According to the evidence of Lt.

17 -17- MacDonald, quite coincidently, both offenders received nine detentions in segregation, five of which were punishments for misconducts. He said the balance were probably administrative, relating to overcrowded conditions or isolation during an ongoing investigation of an alleged misconduct or perhaps at the offender s request, i.e. sometimes an inmate asks for a time-out from the general population. Lt. MacDonald was unable to advise the court of the exact nature of each of the offenders misconducts (except that he knew that one against Mr. Thompson arose out of an alleged assault on another inmate resulting in criminal charges that have not yet been tried). Nor could he advise as to the exact duration of each detention. Lt. MacDonald s notes were incomplete and disorganized and thus his evidence was not helpful as to the nature of the misconducts of both offenders and exactly when they occurred. However, Mr. Thompson s last misconduct appears to have been in October or November of 2008, around the time he started his bible classes. [48] This court is aware of the conditions and circumstances existing at Maplehurst, since most in-custody accused persons that the Brampton courts encounter are held there. The facility endures frequent lock down days where there is no movement of inmates including no visits from counsel or family, and no access to showers, the yard or phones. Occasionally, the guards implement work-to-rule days, or several days, over labour issues between their union and the Ministry of Community Safety and Correctional Services. These conditions

18 -18- will be considered in the analysis of the amount of credit for pre-trial custody that should be given. [49] The Crown submitted that each offender should be given credit on a 1:1 or possible 1.5:1 basis, anticipating that both will be released after serving a full two-thirds of their sentence. She argues that neither offender is a good candidate for early parole, at between one-third and two-thirds of their sentence. Thus, the rationale for enhanced credit should not apply to them. Their incustody record of misconducts precludes such a credit. Further, she says, a lack of programming, a traditional reason for enhanced credit, did not in this case prejudice these offenders. They have had access to high school courses, substance abuse counselling and Mr. Thompson has completed over 40 bible study courses. [50] Responding first to this last issue, an offender should not be penalized for making use of what is available during pre-trial custody. As Durno J. said in Gaya, supra at para. 102: I also have to consider that Saad Gaya spent some of his time productively, taking courses and reading widely. He is to be commended for those efforts towards his rehabilitation. That he has accomplished something should not be used against him on the basis that one of the justifications for double credit, lack of programs, does not apply. I find that what was available does not amount to "full access to educational, vocational and rehabilitative programs" as reference[d] in Wust at para. 45. In those circumstances, it does not detract from the pre-sentence custody credit. [Emphasis added.]

19 -19- [51] I see no reason to depart from the practice of giving enhanced credit to Mr. Thompson on the grounds that he has taken advantage of the bible study courses at Maplehurst. Nor do I see any reason to given less than 2:1 credit to Mr. Downey on the grounds that he has not been prejudiced by a lack of programming. The programs available at Maplehurst do not compare to those at federal penitentiaries. [52] Double, or 2:1 credit has been found to be inappropriate in some circumstances, see Gaya at para. 78, including where the offender is an unlikely candidate for parole, as in R. v. Francis (2006), 207 C.C.C. (3d) 536 (Ont. C.A.). In that case, the offender was found to be a serious danger to society following his conviction for manslaughter and robbery in connection with offences committed with gratuitous violence at a café. The offender assaulted and robbed a number of patrons and had a significant criminal record for escalating violence. The Crown urges me to find that Mr. Thompson and Mr. Downey are unlikely candidates for early parole based on the violent nature of their offences and their records of institutional misconduct. While the offences of Mr. Thompson and Mr. Downey are very serious, I am not prepared to find, on the quality of the evidence presented by Lt. McDonald with its above-noted uncertainties, that these offenders are unlikely to get early parole.

20 -20- [53] Finally, in R. v. Brown, 2009 ONCA 357, double credit was found to be inappropriate for an offender who was found to be an unlikely candidate for rehabilitation. In that case, the offender had a criminal record of 66 convictions and had demonstrated his failure to participate in rehabilitative programs both while in custody and while in the community. Though urged to do so by the Crown, I cannot find that either offender is an unlikely candidate for rehabilitation. [54] Accordingly, Mr. Thompson will be given credit for time served of 978 days x 2 or 1956 days which translates into approximately 5 years and 5 months. Mr. Downey will be given credit for having served 962 days x 2 or 1924 days or approximately 5 years and 4 months. The Cases [55] The Crown seeks a term of imprisonment for each offender in the range of 18 to 20 years. She submits that Mr. Downey s term should be somewhat less, given Thompson s additional two sexual assault convictions for the events on the second day. In support, the Crown relied on R. v. Davis, [1999] O.J. No. 141, in which the Court of Appeal upheld a sentence of 16 years for the kidnapping of two victims and 13 years concurrent for the sexual assault with a weapon of one victim. The victims in that case were driven in their own car at

21 -21- gunpoint to secluded location, wherein the female victim was sexually assaulted by two offenders, involving the use of gratuitous violence and humiliation. [56] The Crown also relies on R. v. L.D., [2002] O.J. No (C.A.), in which an 18 year sentence was upheld for numerous offences as a result of random carjacking, kidnapping, assault, extortion and robbery of two victims. While there was no sexual assault in that case, there were elements of sadistic cruelty. Importantly, at para. 4, the Court of Appeal confirmed that it was permissible to sentence both offenders to the same term of imprisonment on their common convictions as the facts disclosed that the two participated in a joint venture throughout transaction. [57] Finally, the Crown relies on R. v. Assing, [2008] O.J. No (S.C.) in which a sentence of 9 years was given for sexual assault simplicter, along with a sentence of 2 years concurrent for unlawful confinement. [58] Counsel for Mr. Thompson submitted that the appropriate sentence would be closer to the range of 6 to 8 years, and that the Crown s range was not supported by the case law. Counsel for Mr. Thompson noted that no firearm was used in the commission of these offences. Counsel relied on R. v. Tan, 2008 ONCA 574, in which the court noted that a sentence of 15 years was at the high end of the range for charges of attempt murder, forcible confinement, sexual assault. While the court did uphold the sentence imposed, significant aggravating

22 -22- factors present in that case, including the offender s intent to kill the victim of his sexual assault and the fact that the victim was left to bleed to death in a remote location, are not present here. [59] Defence counsel also relied on R. v. Clark, 2009 ABCA 24, in which a 6 year global sentence was upheld for offences arising out of a domestic relationship torture situation, including unlawful confinement, aggravated assault, assault with weapon (x2), choking, uttering threats 6 years global. The victim was the common law wife of the offender and was subjected to 16 hours of torture. While the attack was certainly brutal, as the Crown rightly notes, there was no sexual assault in that case. [60] All three counsel submitted cases involving kidnap for ransom or extortion, including: R. v. Tahvili, 2008 BCSC 22; R. v. Miller, [1993] Y.J. No. 127 (Terr. Ct.); R. v. Deo, 2007 BCSC 1893; R. v. Chong, 2000 BCCA 359; R. v. Randhawa, 2007 BCCA 598; R. v. Narwal, 2006 BCSC 570. The sentences in these cases appear to range from 5 to 17 years. However, there is no evidence in this case to suggest that KC was held for ransom, which means these cases are of limited use. [61] Cases submitted by counsel for Mr. Thompson and counsel for Mr. Downey concerning the range for sexual assaults of varying degrees of brutality, and in combination with confinement offences, indicates a range between 4.5

23 -23- and 15 years, including; R. v. Tait, [1992] Q.J. No. 874 (Q.C.A); R. v. Caouette, [1994] B.C.J. No (C.A.); R. v. Clayton, [1994] N.S.J. No. 80 (N.S.S.C); R. v. H.(M.) 214 O.A.C. 199 (C.A.); R. v. McAuley, 2005 NSSC 87; R. v. Hamilton, 75 Man. R. (2d) 308 (C.A.); R. v. Niedermier, 2005 BCCA 602; R. v. Jensen (1992), 64 O.A.C. 91 (C.A.), and; R. v. Abrosimo, 2007 BCCA 406. Parity [62] Although sentencing is a very individual process, when sentencing more than one offender for the same offences, the Court must take into account the principle of parity. Generally, two or more offenders found guilty of the same offences should receive the same or similar sentences. However, a court may impose diverse sentences so long as the difference is understandable and not unreasonable and provided it avoids the appearance of injustice to one of the offenders when the two sentences are compared: R. v. Dawdy (1993), 12 C.C.C. (2d) 477 (Ont. C. A.). [63] In this case, the Crown submits that Mr. Thompson should receive a longer sentence to take into account the offences he alone committed on the second day of KC s confinement. While I acknowledge there could be a disparity on this basis, I find that it is in part, offset by two factors: the greater degree of remorse demonstrated by Mr. Thompson while in custody and in court and the

24 -24- small initial steps he has taken toward rehabilitation. In the result, as explained below, the sentences for both offenders will be of equal length. The Sentences [64] As noted in paragraph 26 above, sentencing involves a difficult balancing exercise, taking into account the principles and purposes of sentencing, considering the aggravating and mitigating factors, and recognizing the parity principles where there are more than one offender. [65] Accordingly, Spencer Thompson is sentenced to 10 years on count one, 10 years on count five, 14 years on count ten and 10 years on count eleven, all such terms to be served concurrently. He is to be credited with pre-sentence custody of 5 years and 5 months, leaving approximately 8 years and 7 months to be served. [66] Thomas Downey is sentenced to 10 years on count one and 14 years on count ten, such terms to be served concurrently. He is to be credited with presentence custody of 5 years and 4 months, leaving approximately 8 years and 8 months to be served. [67] There will be a DNA order and a lifetime weapons prohibition under s.109 of the Criminal Code respecting each of the offenders.

25 -25- O CONNOR J. DATE: March 15, 2010

26 CITATION: R. v. Downey and Thompson, 2010 ONSC 1531 COURT FILE NO.: 2695/08 DATE: RE: SUPERIOR COURT OF JUSTICE - ONTARIO HER MAJESTY THE QUEEN v. THOMAS DOWNEY and SPENCER THOMPSON BEFORE: O Connor, J. COUNSEL: Ms. K. Holmes, for the Crown Mr. R. Singh, for Thomas Downey Mr. S. Caramanna, for Spencer Thompson SENTENCING RULING O CONNOR J. DATE: March 15, 2010