‘Violence can justify sentencing a first offender beyond the range,’ court rules on sexual assault

By Amanda Jerome

Law360 Canada (February 21, 2023, 3:20 PM EST) -- In a sexual assault case, the Court of Appeal for Ontario has reduced a sentence of 10 years' imprisonment to eight, ruling the sentence was “demonstrably unfit.” Although the sentence was reduced, the court agreed with the Crown that “violence can justify sentencing a first offender beyond the range.”

In R. v. Sousa, 2023 ONCA 100 the court heard that in 2015 the appellant, Helder Sousa, sexually assaulted the complainant.

According to court documents, the complainant had “gone out drinking with friends, become separated from them, and had passed out on the couch at a house party.”

The appellant and complainant were not known to each other. However, the court noted, Sousa took the complainant “in his car to a wooded area” away from the party.

The complainant “remembers waking up in the wooded area,” the court explained, noting that Sousa sexually assaulted the complainant before returning her to town and leaving her on an “unfamiliar street.”

According to court documents, Sousa was charged “almost two years later, on April 21, 2017, following a police investigation.” Although he pleaded not guilty, Sousa was “convicted on Nov. 5, 2019, after a two-week jury trial.”

At the time of sentencing, the court noted, Sousa was “37 years old, working in construction, and had no criminal record. He is a national of Portugal but since age five has been a permanent resident of Canada.”

The sentencing judge, Justice James Ramsay of the Superior Court of Justice, relied on R. v. Myers, [2002] O.J. No. 965 “where the offender received a nine-year sentence for a random and brutal sexual assault of a stranger” and “noted that the sexual assault had a ‘devastating and long lasting’ impact on the victim, including ‘tak[ing] away her own home town from her.’ ”

According to court documents, Justice Ramsay “considered the offence so serious and the appellant’s blameworthiness so great that he imposed the maximum penalty, a ten-year prison sentence.”

“After credit for presentence custody, the total sentence was reduced to nine years, eight and a half months,” the court explained.

Sousa appealed, raising three grounds: the trial judge “erred by failing to consider the potential immigration consequences for the appellant;” the trial judge “erred by treating the appellant’s denial of the offence and lack of remorse as aggravating; and the appellant’s sentence was “demonstrably unfit, particularly for a first offender.”

In his analysis, Justice Peter Lauwers, writing for the Court of Appeal, noted that while the sentencing judge stated that the appellant “might face immigration consequences, he could not ‘adjust the sentence to take these into account because any adjustment would result in a sentence that is not consistent with the principles of sentencing, mainly, proportionality and denunciation.’ ”

“This court was advised that a deportation order exists for the appellant. However, there is no certainty that it will be executed. I agree with the sentencing judge’s comments putting actual deportation in doubt,” he explained while emphasizing that the “criminal acts in this case were so egregious that no reasonable adjustment in the sentence could obviate any immigration consequences.”

Pointing to R. v. Pham, 2013 SCC 15, Justice Lauwers explained that “the sentence must ultimately still be proportionate to the gravity of the offence and the responsibility of the offender.”

“Given the characteristics of this case, and the unknown likelihood of actual deportation, there is no reason to adjust the sentence on the basis of immigration consequences. This is how I interpret the judge’s statement, and I agree with him,” he added, dismissing the first ground of appeal.

According to court documents, the appellant’s second argument was “rooted in these comments by the sentencing judge, who said: [T]here is a real need to bring it home to the offender that he is in need of serious introspection. So far he has not started on that path. His denial of the offence in the face of scientific evidence may seem puzzling to some, but I think at the moment he feels that the loss of face before his family would be too much to bear.”

Justice Lauwers also dismissed this ground of appeal, noting that the sentencing judge “knew that he could not treat the appellant’s decision to defend against the prosecution as an aggravating factor,” which was made “plain from the colloquy during sentencing submissions.”

On the third ground, the appellant’s counsel submitted that “a sentence of six years, which is itself beyond the range, would be fit,” and urged the court to “substitute that sentence.”

“I am mindful of the Supreme Court’s frequent admonitions to appellate courts to be duly deferential to the determinations of sentencing judges,” Justice Lauwers wrote, noting that the appellant was “quite right that the sentence of ten years is twice the top of the applicable sentencing range of three to five years” and it “merits closer scrutiny.”

“The law is very clear that a sentencing judge can go beyond the range,” he added, querying whether the sentence was “demonstrably unfit, having regard to the sentencing principles set out in s. 718 of the Criminal Code and in the caselaw?”

Upon consideration, Justice Lauwers agreed with “the sentencing judge that Myers is the closest comparator.”

“I respect and accept the sentencing judge’s conviction that the appellant’s vile acts could not be adequately addressed even at the top of the sentencing range and required a higher sentence. The appellant effectively concedes this point by proposing six years, which is outside the three- to five-year range,” he added, noting that “the principle of restraint in sentencing a first offender requires some reflection in the sentence.”

“The sentencing judge noted that the appellant has no criminal record, but it is not clear that this played any role in his thinking. He did take the prospect of rehabilitation into account as noted earlier. The appellant is a first offender but is not youthful,” he concluded, agreeing with the respondent that “violence can justify sentencing a first offender beyond the range.”

“Gathering these threads together, I conclude that the sentence of ten years is demonstrably unfit and would substitute the sentence of eight years as adjusted by the sentencing judge's credits,” he ruled, in a decision released Feb. 14.

Teodora Pasca, Daniel Brown Law LLP

Teodora Pasca, Daniel Brown Law LLP

Justice Lauwers, with Justices Gary Trotter and Jonathon George in agreement, allowed the appeal and reduced the sentence from “ten years to eight years, which, after credit for presentence custody, results in the total of sentence of seven years, eight and a half months.”

Teodora Pasca, of Daniel Brown Law LLP and counsel for the appellant with Mark Halfyard, noted that “non-citizens who receive sentences of at least six months have no right to appeal an inadmissibility finding, so their deportation is a virtual certainty — absent some unlikely event, like CBSA not executing a removal order by mistake.”

“Unfortunately, the court's decision suggests that may not be enough. To be safe, lawyers should lead evidence at sentencing of the actual immigration consequences the individual accused will face,” she added.

Pasca also noted that it is “no surprise that sentences for sexual offences continue to increase: here the court imposed an eight-year sentence where the typical range is three to five years. That said, the court’s decision indicates that being a first offender still warrants substantial mitigation, even in cases involving serious sexual violence.”

“Although first offenders are going to receive substantially longer sentences than in the past, they still deserve to be treated less harshly than repeat offenders,” she emphasized.

The Ministry of the Attorney General, on behalf of the Crown, did not respond to request for comment.

If you have any information, story ideas or news tips for Law360 Canada, please contact Amanda Jerome at Amanda.Jerome@lexisnexis.ca or 416-524-2152.

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