SUPERIOR COURT OF JUSTICE - ONTARIO
HER MAJESTY THE QUEEN
RE:
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
[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
2010 ONSC 1531 (CanLII)
CITATION: R. v. Downey and Thompson, 2010 ONSC 1531
COURT FILE NO.: 2695/08
DATE: 20100315
-2her assailants learned she is the sister of a man they knew. She retains the
[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
2010 ONSC 1531 (CanLII)
physical and psychological scars of her ordeal to this day.
-3-
[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:
•
•
•
•
•
[8]
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)
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
2010 ONSC 1531 (CanLII)
• 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
-4best as he is able, the facts upon which the jury made its findings. In R. v.
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.]
2010 ONSC 1531 (CanLII)
Ferguson (2008), 228 C.C.C. (3d) 385 (S.C.C.), Chief Justice McLachlin said at
-5[11]
Applying the above principles and directives of the Supreme Court, I
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.
2010 ONSC 1531 (CanLII)
have set out below the relevant facts essential to the jury’s verdicts in this matter.
-6Thompson told her to take a shower. She did. He told her she didn’t know what
[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.
2010 ONSC 1531 (CanLII)
she had got herself into, but that it was a life and death situation.
-7[22]
Thompson forced her to fellate him three times. He pulled her pants
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
2010 ONSC 1531 (CanLII)
down and forced vaginal intercourse with her, using a plastic grocery bag as a
-8[26]
In R. v. Amara, 2010 ONSC 441 at para. 131, Durno J., in sentencing
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. 3252 (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.
2010 ONSC 1531 (CanLII)
one of the so-called ‘Toronto 18’, young men accused, and some convicted, of
-9a) To denounce unlawful conduct
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
2010 ONSC 1531 (CanLII)
[29]
-10-
[31]
Where it is apparent that the offender is a dangerous person, who is
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.
2010 ONSC 1531 (CanLII)
likely to compromise public safety if released, he should be detained for a period
-11e) To provide reparation for harm to the victim and the community
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
2010 ONSC 1531 (CanLII)
[33]
-12courses over a two year period before he was convicted, and continues to take
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.
2010 ONSC 1531 (CanLII)
them, and that he is consistent in his remarks of remorse for his victim. The
-13Aggravating Factors
a) Duration of the Offences
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
2010 ONSC 1531 (CanLII)
[37]
-14sentencing hearing. I decline to consider her unfortunate custodial situation an
(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.
2010 ONSC 1531 (CanLII)
aggravating factor to be considered when sentencing these offenders.
-15Mitigating Factors
(a) Age
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
2010 ONSC 1531 (CanLII)
[43]
-16be given some credit for his expressions in this regard, although the weight I give
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.
4591 (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.
2010 ONSC 1531 (CanLII)
it as a mitigating factor is minimal, given the seriousness of the offences
-17MacDonald, quite coincidently, both offenders received nine detentions in
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
2010 ONSC 1531 (CanLII)
segregation, five of which were punishments for misconducts.
-18will be considered in the analysis of the amount of credit for pre-trial custody that
[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 in-
custody 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.]
2010 ONSC 1531 (CanLII)
should be given.
-19[51]
I see no reason to depart from the practice of giving enhanced credit to
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.
2010 ONSC 1531 (CanLII)
Mr. Thompson on the grounds that he has taken advantage of the bible study
-20[53]
Finally, in R. v. Brown, 2009 ONCA 357, double credit was found to be
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
2010 ONSC 1531 (CanLII)
inappropriate for an offender who was found to be an unlikely candidate for
-21gunpoint to secluded location, wherein the female victim was sexually assaulted
[56]
The Crown also relies on R. v. L.D., [2002] O.J. No. 4695 (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. 4527 (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
2010 ONSC 1531 (CanLII)
by two offenders, involving the use of gratuitous violence and humiliation.
-22factors present in that case, including the offender’s intent to kill the victim of his
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
2010 ONSC 1531 (CanLII)
sexual assault and the fact that the victim was left to bleed to death in a remote
-23and 15 years, including; R. v. Tait, [1992] Q.J. No. 874 (Q.C.A); R. v. Caouette,
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
2010 ONSC 1531 (CanLII)
[1994] B.C.J. No. 2558 (C.A.); R. v. Clayton, [1994] N.S.J. No. 80 (N.S.S.C); R.
-24small initial steps he has taken toward rehabilitation. In the result, as explained
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.
2010 ONSC 1531 (CanLII)
below, the sentences for both offenders will be of equal length.
-25-
DATE:
March 15, 2010
2010 ONSC 1531 (CanLII)
__________________________
O’CONNOR J.
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
SENTENCING RULING
O’CONNOR J.
DATE:
March 15, 2010
2010 ONSC 1531 (CanLII)
CITATION: R. v. Downey and Thompson, 2010 ONSC 1531
COURT FILE NO.: 2695/08
DATE: 20100315