R. v. Nicolaou

2008 BCCA 459 R. v. Nicolaou

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Nicolaou, 2008 BCCA 459 Date: 20081105 Docket: CA034910 Between: Regina Respondent And Nicolaos Nicolaou Appellant RESTRICTION ON PUBLICATION: AN ORDER HAS BEEN MADE IN THIS CASE PURSUANT TO SECTIONS 486(3) AND 486(4.1), [Now s. 486.4], AND 486.4(2) OF THE CRIMINAL CODE Before: The Honourable Madam Justice Ryan The Honourable Mr. Justice Mackenzie The Honourable Madam Justice Kirkpatrick Oral Reasons for Judgment J. R. Ray Counsel for the Appellant M. T. Ainslie Counsel for the (Crown) Respondent Place and Date of Hearing: Vancouver, British Columbia 5 November 2008 Place and Date of Judgment: Vancouver, British Columbia 7 November 2008 [1] RYAN, J.A.: On February 19, 2007 the appellant was convicted in Supreme Court of six offences --, extortion, sexual assault, assault with a weapon, assault, compelling a person to engage in prostitution and one count of living on the avails of prostitution. On March 5, 2007 the appellant was sentenced to five years imprisonment for the extortion, two years consecutive for the sexual assault, 18 months concurrent for assault with a weapon, one year concurrent for the assault, and one year concurrent for compelling a person to engage in prostitution. The count of living on the avails of prostitution was stayed, in error, in accordance with the principles enunciated in Kienapple. Prior to the

sentence the appellant had been in custody for 18 months. His effective sentence is therefore eight and a half years. [2] On July 16 2008 this Court ordered a new trial on both the prostitution offences. Those offences have subsequently been stayed. The appellant seeks leave to appeal his sentence. [3] The appellant submits that the stay of proceedings in relation to the prostitution offences has substantially reduced the basis upon which the appellant was sentenced. He says that his sentence should be reduced accordingly. In the alternative he says that the sentence is so beyond the range imposed for similar offences as to make the sentence unfit. [4] The respondent's position is that the factual basis for the sentencing remains the same. While some of those facts do not form the basis of additional convictions, those facts are aggravating and may be considered in determining the overall conduct for which the appellant has been sentenced. The respondent says that the sentence imposed is not outside the range for the offences of which this appellant remains convicted. [5] I begin with the observation that the effective global sentence of eight and a half years is at the high end of the range considering the circumstances of the offence and the offender. The appellant has a serious record, and the facts of the case were disturbing, but as Madam Justice Southin said in R. v.

Hayes (1998), 115 B.C.A.C. 22 para. 3, sentences of over four years imprisonment for extortion are rare -- here it was five years with the additional term of imprisonment imposed for sexual assault. It is in this context that I will discuss the fact that the appellant now stands convicted of four rather than six offences. [6] In sentencing the appellant on the five counts (the one count being stayed as earlier noted) the learned trial judge said this: [20] The facts underlying the six offences are set out in my reasons for conviction, but briefly stated, I found that Mr. Nicolaou was the enforcer in a drug house and that he frequently assaulted the complainant and terrorized her and the household, creating an atmosphere of menace and dread thereby enhancing his power and control over the complainant. [21] Believing that the complainant had stolen some of the drugs, he ordered her to be searched, including a vaginal search, and the search was carried out in the presence of other persons thereby humiliating the complainant and further enhancing his power and control over her. I found that Mr. Nicolaou imposed fines or taxes on the complainant for real or imaginary offences and forced her to work as a prostitute in order to pay off these fines or taxes, and, out of a combination of fear for her safety and her need for drugs, the complainant was to work as a prostitute [7] These

paragraphs set out the salient facts the trial judge took into account in sentencing the appellant. It is notable that he made no mention of the facts that constituted the living on the avails of prostitution and compelling the complainant to engage in prostitution offences. [8] When this Court ordered a new trial on the two prostitution offences, it found that the trial judge had made a number of legal errors. In convicting the appellant of living on the avails of prostitution, the trial judge had relied in part on a misapprehension that a friend had corroborated the complainant's testimony that the appellant forced her to go out and perform sexual acts for his friends. The trial judge also concluded, incorrectly, that the offence of living on the avails could be established because the appellant was running a business partly funded by the proceeds of the complainant's prostitution. As well, the Court found that the trial judge conflated the elements of the two offences and did not properly assess whether the facts supported the distinct elements of the two offences. These were legal errors that required a new trial. [9] In the result, the respondent makes a reasonable argument that the fact that the appellant stands convicted of four offences rather than six, and has been sentenced for four offences rather than five, should make no difference in the length of the appellant's

sentence. The respondent makes the point that it is the appellant's conduct that is being punished. Apart from the living on the avails charge, the facts underlying the four rather than the five offences remain the same. To that extent the respondent makes a convincing argument that all of the offences with which the appellant was charged flow from the extortion - through the use of cruelty and humiliation the appellant took all that the complainant had -- autonomy over her body, and the money she could earn with it. [10] That said, the appellant does not now carry convictions for compelling the complainant to engage in prostitution offences or for living on the avails. This fact must be taken into account in assessing whether the appellant's sentence can still be said to be fit. In fashioning the sentence, the trial judge considered the global sentence to ensure that it did not violate the totality principle. As a result, the sentence for the prostitution offence and the assaults were made concurrent. But the fact of the convictions was not irrelevant. While it is true that the Criminal Code punishes conduct, it does so through the vehicle of convictions. For example, had the appellant been charged and found guilty of the extortion alone the fact of his abuse of the complainant through sexual and other assaults and forcing her to commit acts of prostitution would have been

relevant to the seriousness of the extortion. The underlying facts would have put the appellant on the high end of the range for extortion, but nonetheless he would be sentenced only for that offence and that sentence would be lower than one imposed for convictions on all the offences no matter how the sentence was constituted. Sentences reflect not only conduct but convictions. Of course much depends on the circumstances, but in this case where the sentence is already at the high end of the range, it is my view that with two fewer convictions (albeit one was stayed on the Kienapple principle) the sentence imposed in the case at bar is no longer fit. [11] I would grant leave to appeal and vary the sentence by reducing the sentence for extortion to one of four years to be followed by the sentence of two years for sexual assault. [12] MACKENZIE, J.A.: I agree. [13] KIRKPATRICK, J.A.: I agree. [14] RYAN, J.A.: Leave is granted and the sentence is varied accordingly. "The Honourable Madam Justice Ryan"