R. v. Yusuf

2011 BCSC 626 R. v. Yusuf

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Yusuf, 2011 BCSC 626 Date: 20110401 Docket: 25163 Registry: Vancouver Regina v. Mohammed Yusuf Ban on Disclosure 486.4(1)(2) CCC There is a ban on the publication in any document or the broadcast or transmission in any way of information that could identify the complainant Before: The Honourable Madam Justice Griffin Oral Reasons for Sentence Counsel for the Crown: L. Rupert‑Bailey Counsel for the Accused: A. Glouberman Place and Date of Submissions: Vancouver, B.C. April 1, 2011 Place and Date of Judgment: Vancouver, B.C. April 1, 2011 [1] THE COURT: Overview [2] On January 21, 2011, Mr. Mohammed Yusuf was convicted of having committed sexual assault causing bodily harm to the complainant, A.G., on June 10, 1993. He has today appeared for sentencing. [3] There is a ban on publication in any document or the broadcast or transmission in any way of information that could identify the complainant. The Facts (a) Circumstances of the offence [4] The circumstances of the offence are set out in my Reasons for Judgment indexed at 2011 BCSC 69. [5] In summary, in the early morning hours of June 10, 1993, Mr. Yusuf picked up a woman who was hitchhiking on Main Street, the victim, A.G. He took her to a basement suite. A.G., who was a sex trade worker, initially consented to sexual activity. [6] Mr. Yusuf was on top of A.G., engaging

in intercourse for some time, when A.G. decided to call an end to it. Instead of allowing A.G. to stop the activity, Mr. Yusuf grabbed her, pinned her back to the ground, and punched her in the face so hard that it knocked her out briefly. When A.G. woke up, she found out that he was still having intercourse with her. She told him she had AIDS and he then stopped. [7] A.G. reported the incident to police and was taken to the hospital by ambulance. There the doctor noted that she flinched in pain when her face was touched. She had a gaping seven-millimetre fresh cut on her upper lip, and abrasions on her neck and chest. There were broken blood vessels on her neck, and tender and swollen marks and scrapes on her chest. She was crying, upset, and in pain when she initially came to the hospital. [8] DNA samples taken from the victim and tested many years later ultimately led to Mr. Yusuf, whose DNA matched the semen found in the victim. The complainant had also accurately reported Mr. Yusuf's licence plate to the police on the day of the incident. (b) Circumstances of the offender [9] Mr. Yusuf is 54 and he was 37 at the time of the incident. He is originally from Fiji, coming to Canada in 1981. He has worked as a cook and as a mechanic in Canada. Mr. Yusuf has been in a common-law relationship with his common-law spouse since 1984. Together they have three children, ages

approximately 16, 23, and 24. [10] Mr. Yusuf's common-law wife and his three children have written letters of support for him in respect to this sentencing. They all attest to the fact that he has been a good father and family man, working hard to support his family and to instil good values and the importance of education in his children. They also attest to the fact that, from his family's perspective, the circumstances of this offence were very much out of character. His family has not known him to consume excessive amounts of alcohol or to consume drugs or to associate with prostitutes. He has no criminal record other than this offence. [11] His family members say that it would be devastating for Mr. Yusuf to receive a custodial sentence, and indeed his common-law wife says that they could lose their home without Mr. Yusuf providing for them. (c) Impact on the Victim and/or Community [12] As for the victim, there was no victim impact statement tendered. From her testimony at trial, I can conclude that the victim suffered short-term physical injuries. Her evidence did not suggest that she suffered lasting emotional trauma caused by the assault. I do not refer to this to minimize what occurred, because it was a serious violation of her person; however, in order to render a sentence that is fair in comparison to other sentences for other criminal offences, I do take note of

the fact that the effects on the victim in this case do not appear to have been as serious as the effects on victims in some other cases where the violence is more severe. Legal Parameters and Positions of the Parties [13] The maximum sentence for a sexual offence causing bodily harm, pursuant to s. 272(c) of the Criminal Code, is 14 years. [14] This is a somewhat unusual case because of the fact that the offence was committed so many years ago. Mr. Yusuf has not re-offended. Both the Crown and defence have agreed on a joint submission as to sentence. They submit that an appropriate sentence would be two years less a day, to be served as a conditional sentence, with Mr. Yusuf under house arrest for the duration of the sentence, subject to certain limited exceptions. Principles of Sentencing [15] The Criminal Code, R.S.C. 1985, c. C-46 [Criminal Code] sets out the principles that must guide a judge in imposing a sentence for a criminal offence. These principles are set out in s. 718, s. 718.1, and s. 718.2. [16] Section 718 of the Criminal Code states 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 just sanctions that have the objectives of denunciation of unlawful conduct, deterrence of the offender and other persons, separation of offenders where necessary, rehabilitation,

reparation, and to promote a sense of responsibility in offenders. [17] The law also requires the court to impose a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Criminal Code. Here the offence is extremely grave and the offender's moral blameworthiness is quite clear. [18] Further, the law requires the court to take into account that a sentence should be increased or reduced to take into account any relevant aggravating or mitigating circumstances: s. 718.2 of the Criminal Code. [19] A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances: s. 718.2(b) of the Criminal Code. [20] As well, an important principle of law which the court is required to apply is that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances: s. 718.2(d) of the Criminal Code. [21] One question that arises in this case is whether or not the conditional sentence regime is available for Mr. Yusuf, if I was to consider an appropriate sentence as being less than two years. [22] At the time Mr. Yusuf committed the offence, the Criminal Code did not have a conditional sentencing regime. In 1996, the Criminal Code was amended to include a scheme for sentences to be served in the community. The

principles applicable to conditional sentences are outlined in the Criminal Code at s. 742.1 and in R. v. Proulx, 2000 SCC 5 [Proulx]. [23] The conditional sentence regime in place at the time the Proulx judgment was released read as follows: 742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court (a) imposes a sentence of imprisonment of less than two years, and (b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of a conditional sentence order made under section 742.3. [24] This conditional sentencing regime was, at the time it was introduced, available for sexual assault causing bodily harm. However, the Criminal Code was later amended so as to exclude some offences, including sexual assault causing bodily harm, from the conditional sentencing regime. [25] As of December 1, 2007, s. 742.1 of the Criminal Code was amended to read: If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under section 742.3. [26] The offence of which Mr. Yusuf has been convicted is a serious personal injury offence and carries a maximum term of imprisonment of more than 10 years. [27] There is no doubt that had Mr. Yusuf committed his offence after December 1, 2007, a conditional sentence would not be available to him. However, one must be mindful of the Charter protection which entitles an accused to the benefit of the lesser of the punishment if the punishment has been varied since the time of the commission of the offence and the time of sentencing. [28] Section 11(i) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act,

1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter] states: Any person charged with an offence has the right ... (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. [Emphasis added.] [29] The authorities are clear that the conditional sentencing regime is considered a "lesser punishment" than a custodial sentence for the purposes of applying s. 11(i) of the Charter: see R. v. B.S.B., 2008 BCSC 1526 at para. 53, aff'd 2010 BCCA 40; R. v. R.A.R., 2000 SCC 8. [30] Mr. Yusuf committed his offence in 1993. Charter rights are to be interpreted liberally. Reading s. 11(i) of the Charter liberally and in favour of the accused, it is clear that the punishment for Mr. Yusuf's crime has varied between the time of commission of offence and the time of sentencing, such that between this time period there was once available the lesser punishment of a conditional sentence. I therefore conclude that the conditional sentencing regime is available to Mr. Yusuf if I otherwise find it to be appropriate. [31] I note in that regard that the conditional sentencing regime that was in place prior to the change on December 1, 2007, excluded offences that were punishable by a minimum term of imprisonment. This is not such an offence. Reasons [32]

I have reviewed a number of authorities which have applied the principles of sentencing enumerated in ss. 718 to 718.2 of the Criminal Code in relation to the crime of sexual assault causing bodily harm. Aggravating Factors [33] I have also taken into account certain aggravating factors. This was a more serious offence than simple sexual assault, as it involved the causing of bodily harm. The offender continued to engage in forced intercourse after he punched the complainant so hard that she lost consciousness. However, the violence appeared to be spontaneous and not planned, and it appears to have ended soon after it began. [34] I also take into account as an aggravating factor the fact that the offence was committed on someone particularly vulnerable to such violence, a sex trade worker: see R. v. D. R., 2004 BCSC 336. Mitigating Factors [35] As a mitigating factor, I find the fact that Mr. Yusuf is a first-time offender. The offence occurred over 17 years ago, and he has been a contributing member of society over those 17 years. Mr. Yusuf has glowing letters of support from his family members. [36] In terms of how similar offences have been treated by the courts, I note that the facts of this case, while reprehensible, do not involve the same degree of violence, nor was the victim here left with a severe and emotional or physical trauma as compared with some of the cases

where the sentences imposed were at the higher end of the range. [37] Crown and defence have both produced authorities that support a sentence of less than two years. As well, the defence has produced authorities where conditional sentence orders were imposed in circumstances where the facts of the offence were more violent than the facts of the present case. [38] Given the joint submission, I do not find it necessary to review the many authorities in my reasons, but I do confirm that the proposed sentence of two years less a day to be served conditionally is not inconsistent with case law precedents. I refer as an example to R. v. Nicholson, 2004 ABCA 310. Terms of Sentence [39] Mr. Yusuf, please stand up. Having considered the principles of sentencing, I conclude that while the offence is a very serious offence, you are not a danger to the community and you are unlikely to re‑offend. I conclude that a sentence of two years less a day to be served as a conditional sentence in the community would be appropriate and this will be my sentence. [40] I will now read to you the conditions of the sentence, and you may sit down as this will take some time. [41] Applicable are the compulsory conditions pursuant to s. 742.3(1) of the Criminal Code, namely that, Mr. Yusuf, you shall: (1) keep the peace and be of good behaviour; (2) appear before the court when required to do so by the

court; (3) report to a supervisor within two working days after this order. I understand that supervisor is located at 275 East Cordova Street, and then after that, you are to appear as directed by that supervisor; (4) you are to remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and (5) you are to notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation. [42] The additional conditions that I impose on you pursuant to s. 742.3(2) are: (6) you are to abstain from the consumption of alcohol or other intoxicating substances, or the consumption of drugs, except in accordance with a medical prescription; (7) you are to have no contact with the complainant; (8) you are to be subject to an area of restriction prohibiting you from going into an area in Vancouver which has the following boundaries: north of Powell Street, south of Terminal Avenue, on the west side of Carrall Street, which runs into Expo Boulevard and the east boundary is Dunlevy Street. You are prohibited from going into that area, except as might be required to comply with other terms of this order dealing with reporting to a conditional sentence supervisor or providing a DNA sample; (9) you are to remain under

house arrest 24 hours a day at your residence located at 4026 Fleming Street, Vancouver, or such changed address as you have notified your conditional sentence supervisor, with the only exceptions being as follows: (a) for any medical emergency for yourself or an immediate family member; (b) to report to your conditional sentence supervisor; (c) to travel to and attend at your place of employment in order to perform your employment duties. In this regard, you are to provide your employment schedule to your conditional sentence supervisor and obtain that supervisor's consent in advance; (d) you are also subject to such other exceptions as permitted by your conditional sentence supervisor, which permission must be obtained in advance and which may include such things as attendance at a religious service; (10) you must present yourself at the door of your residence or by telephone when requested to do so by a peace officer or a conditional sentence supervisor, to confirm your compliance with the house arrest conditions; and (11) you must attend and complete any counselling or treatment as directed by the conditional sentence supervisor. Ancillary Orders [43] There are also a number of ancillary orders which I will make. First, pursuant to what formerly was s. 100(2), R.S.C. 1985, c-46, and is now s. 109 of the Criminal Code, you are subject to a ten-year prohibition on possessing

any firearm or weapon or ammunition or explosive substance mentioned in s. 109(2)(a), and you are subject to a lifetime prohibition on possessing any firearm or weapon or ammunition or explosive substance mentioned in what is now s. 109(2)(b). [44] Second, the crime of which you have been convicted is a primary offence pursuant to s. 487.04 of the Criminal Code, and therefore I make an order pursuant to s. 487.051(1) of the Criminal Code in Form 5.03 authorizing the taking from you of samples for the purpose of forensic DNA analysis by means of the investigative procedure set out in s. 487.056 of the Criminal Code. [45] Third, this is a designated offence pursuant to s. 490.012 of the Criminal Code. I therefore order you to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 which will apply to you for 20 years, pursuant to s. 490.013(2)(b), given that the maximum term of imprisonment for your offence was 14 years. [46] In making these latter two orders, I note that they were not contested here and you have not established that the impact of either order on your privacy or security would be disproportionate to the public interest. [47] Fourth, you have been employed over the many years since this offence occurred, and I therefore order that you pay the victim fine surcharge pursuant to s. 737 of the Criminal Code in the statutory amount of $100 within 14

days of this order. [48] Lastly, I direct that the terms of the order be read to you by a justice of the peace. A justice of the peace shall explain it to you, including explaining the substance of the conditions of the conditional sentence and the procedure for applying under s. 742.4 for a change to the optional conditions. [49] That concludes my ruling. Any comments? [50] MS. RUPERT‑BAILEY: Yes, My Lady, I have completed a SOIRA form that requires a signature from the court. [51] THE COURT: Yes, and we should make some directions about where he is to report for the DNA. [52] MS. RUPERT-BAILEY: For the DNA, yes, I can assist you with that. [53] THE COURT: Obtain Mr. Yusuf's signature. [54] MS. RUPERT-BAILEY: I think that you will require a copy of this for the court file, so you can have your client sign this. And for the DNA order, Madam Clerk and I had a discussion regarding it. It's a Vancouver file. He should appear at the first floor, 3585 Graveley Street, Vancouver, B.C., on a Thursday at 10 o'clock, and ‑‑ [55] THE COURT: Which Thursday? [56] MS. RUPERT-BAILEY: So we need at least two weeks. [57] THE COURT: So what is the address, what number Graveley? [58] MS. RUPERT-BAILEY: It's the first floor, 3585 Graveley Street, Vancouver, B.C., and that is one block north of East 1st Avenue at Boundary Road. [59] THE COURT: So April 21st. [60] MS. RUPERT-BAILEY: That should be

enough time. [61] MS. GLOUBERMAN: Yes. [62] THE COURT: You are to report on April 21st to that address for the DNA sample. Do we have the signatures on the SOIRA order? [63] MS. GLOUBERMAN: Yes, we do. [64] THE COURT: All right. Anything overlooked, counsel? [65] MS. GLOUBERMAN: No, I think that that's all perfectly clear. I don't believe that my client will make it to his supervisor today. I'm concerned about his work schedule over the weekend. He won't, of course, have permission until he first attends. [66] THE COURT: Oh, yes, two working days, so the ‑‑ [67] MS. RUPERT-BAILEY: That should take it to Monday. [68] THE COURT: -- terms of the conditional sentence, in terms of ‑‑ he can certainly report to work and attend his work this weekend, yes. [69] MS. GLOUBERMAN: Okay. [70] MS. RUPERT-BAILEY: And it's understood that he should report by Monday. [71] THE COURT: Yes. Well, two working days. [72] MS. RUPERT-BAILEY: Tuesday perhaps. Tuesday perhaps. [73] THE COURT: And can he report on Monday or Tuesday then to ‑‑ [74] MS. GLOUBERMAN: He says he can report on Monday, he has a shift at work Monday morning, but he's going to go directly to the supervisor after work. [75] THE COURT: All right, so I will give him one extra day in case there is any weird hiccup in traffic or something. [76] MS. GLOUBERMAN: Thanks. [77] THE COURT: So he is to report to the conditional sentence supervisor by no later than April 5. "S. Griffin, J." The Honourable Madam Justice S. Griffin