27 Year Sentence For Sexual Assault

There is an ongoing sense in the public that criminal sentences are too short and, in the rare event a significant sentence is imposed, appeal courts lower that sentence.

As practicing lawyers we know that, whatever its faults, the belief in nominal sentences is false.

Today's Court of Appeal decision in R. v. Last, 2008 ONCA 593 makes this clear.

The crimes were brutal. But the sentence was stiff -- 27 years. Next time someone says criminals get an easy ride, mention this case. (Of course the victims get no joy from such a sentence -- nothing can erase the crime but no punishment can turn back the hands of time).

The appellant was convicted of one count of sexual assault with a weapon (a handgun), one count of aggravated sexual assault, two counts of overcoming resistance by choking, and two counts of breach of undertaking.   

The trial judge, Justice Killeen, sentenced the appellant, who was 19 years of age at the time of the offences, to 22.5 years imprisonment, after granting a 4.5-year credit for pre-trial custody, resulting in an effective global sentence of 27 years.

The Court of Appeal agreed:

SENTENCE APPEAL

[63]          The appellant argues that the global sentence was demonstrably unfit and offended the principle of totality. He also argues that the trial judge erred in principle in failing to consider the appellant's prospects for rehabilitation.

[64]          The trial judge sentenced the appellant to seventeen years imprisonment, less four and a half years of pretrial custody, for the aggravated sexual assault and overcoming resistance by choking of M.A.  He sentenced the appellant to an additional ten years for the offences of sexual assault with a weapon and overcoming resistance by choking of S.M.  In addition, the trial judge imposed a sentence of one month each for the two breaches of undertaking, to be served concurrent to each other and to the other sentences.

[65]          At the time of the offences, the appellant was 19 years old with an unrelated and relatively minor criminal record. The trial judge determined that the appellant had some prospect of rehabilitation.  The appellant argues that, in these circumstances, the combined sentence of 27 years offended the principle of totality and ignored his prospects for rehabilitation.  He proposes a sentence of 10 years in relation to the assault on M.A. and 5 years in relation to the assault on S.M. 

[66]           At the time of sentencing, the trial judge had dismissed the Crown's dangerous offender application because he rejected the expert opinion given on behalf of the Crown that the appellant was a sexual sadist and psychopath.  Instead, the trial judge accepted that the appellant suffered from antisocial personality disorder that was treatable on a reasonable possibility standard.  In his admittedly brief sentencing reasons, the trial judge noted that the crimes against M.A. resembled cases where life imprisonment was imposed for a grave single instance of sexual assault.  In imposing a 17-year sentence, he noted the principles of proportionality, denunciation and deterrence.  He refused to impose a concurrent sentence for the crimes in regard to S.M., noting that to do so would "make a mockery of our sentencing laws" because the convictions related to separate crimes committed at different times.

[67]          The appellant does not take issue with the imposition of a consecutive sentence, which he acknowledges was open to the trial judge to impose, because the offences did not arise out of the same transaction, but rather were committed on separate occasions. 

[68]          However, the appellant argues that the combined sentences offended the totality principle set out in s. 718.2 of the Criminal Code, which states that "where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh."

[69]          In my view, while the combined sentence imposed by the trial judge fell at the high end of the appropriate range, the sentence did not offend the principle of totality because it did not exceed the appellant's overall culpability for the offences.  The sentence could not be said to be outside a range that was other than just and appropriate in light of the callous circumstances of the offences and the lack of remorse shown by the appellant.  See also R. v. C.A.M. (1996), 105 C.C.C. (3d) 327 (S.C.C.).

[70]          Both sets of offences were unprovoked, extremely violent, and demonstrated complete disregard for the victims.  In both instances, the appellant created opportunities to be alone with each of the women, whom he had just met. The appellant choked both women into unconsciousness and left M.A. alone while she was unconscious and bleeding from the head.  The M.A. assault took place in the "security" of her home.  The S.M. assault included coercion with the use of a gun.  Both victims suffered greatly, although undoubtedly the increased violence against the second victim, M.A., was more significant.

[71]          There was no explanation for the appellant's conduct and a virtual absence of mitigating circumstances apart from his relative youth and the absence of significant earlier sentences of imprisonment. The appellant showed neither remorse for his crimes nor acceptance of any need for treatment.  In addition, the antisocial personality disorder  from which he suffers is difficult to treat.  He is at risk of re-offending. 

[72]          While it is difficult to compare sentences in the disparate circumstances of offences and offenders, the individual sentences imposed by the trial judge did not exceed those imposed in other situations, as evidenced by many of the cases cited in counsels' sentencing charts.  In addition to those cases, I note the life sentence imposed in R. v. Schultz, [1987] B.C.J. No. 1970 ( C.A. ) for two separate incidents of break and enter and sadistic sexual assaults against a 19-year-old and a 44-year-old woman, one of which involved the use of a knife.  In the appellant's case, the Crown also sought a life sentence. Life sentences for serious sexual offences were also imposed in R. v. Craig, [1996] O.J. No. 1504 ( C.A. ) and R. v. Pontello (1977), 38 C.C.C. (2d) 262 (Ont. C.A.). 

[73]          The sentence, although lengthy given the appellant's young age, need not be crushing because he may seek early release if he is found to benefit from treatment.

[74]           Finally, I do not accept the appellant's submission that the trial judge failed to take into account the appellant's prospects for rehabilitation.  The sentencing reasons, while brief, immediately followed the dangerous offender hearing.  In his reasons on the dangerous offender application, the trial judge was not only alive to the appellant's prospects for rehabilitation, but they were a central focus of that hearing.  The trial judge's sentencing reasons must be read in the context of his reasons in the dangerous offender application.

[75]          While I would grant leave to appeal sentence, since I am not persuaded that the sentence was unfit, or that the trial judge erred in principle, I would dismiss the sentence appeal.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
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