Current & Curious: Unfit, yet undisturbed...

Mohammed Butt pleaded guilty to one count of sexual interference contrary to section 151 of the Code. Almost a year after his guilty plea he was sentenced to 14 days in jail, the mandatory minimum prescribed by the Code, and three years probation. The Crown appealed this sentence: 2012 ONSC 4326.

Butt had lured the twelve-year-old male victim off the street into his apartment under the pretext that he was a fortune-teller. Once at the apartment Butt began to read the victim’s palm and made notations on a notepad. Butt told the boy that he was lucky and invited him to lie down on a blanket so that he could read his feet. Butt then began to rub the boy’s genitals over his clothes making the young boy fearful. Butt performed fellatio on the boy. When the boy stated that he was late for camp, Butt removed his own shirt, cupped his breast and told the boy that he was a woman.

When the victim ultimately made his way to camp he notified the staff of what had just happened.

At the sentencing hearing the Crown filed a victim impact statement which had been prepared by the father of the victim; the impact on the child has been serious: he is fearful of sleeping alone, he dropped out of camp and refuses to attend outside activities.

The pre-sentence report revealed that Butt’s view was that this incident was meant to happen, and that it was God’s way of punishing him. A sexual behaviours assessment was conducted but was of little value as Butt prayed out loud during the phalometric testing and did not attend well to the stimuli. The report concluded that Butt likely suffered from pedophilia or hebephilia.

On appeal Code J held that the sentencing judge made four errors in principle and that the 14-day sentence was unfit.

First, Code J found that the sentencing judge misapprehended the sexual behaviours assessment. The sentencing judge referred to the report as a mitigating feature because it stated that the “risk of recidivism falls in the lower end of this range”. Code J found:

This part of the report was quoted out of context by the trial judge. Dr. Pearce was referring to a particular test result which placed Butt "in a moderate to high risk category" but within "the lower end" of that moderate to high risk category. There was no reasonable way to construe this part of the report, or the report as a whole, as a mitigating factor on sentence. The trial judge therefore erred in this regard [para17].

Second, Code J found:

[T]he trial judge failed to balance these legitimately mitigating factors with an appreciation of the significant aggravating features. At most, the trial judge referred indirectly to one aggravating feature when he acknowledged that sexual interference "with a person under eighteen years requires both denunciation and deterrence". He failed to mention and consider the following aggravating aspects of the case which the Crown had properly emphasized: Butt was a stranger who had lured a child off the street; he had used dishonesty and trickery, and had exploited the fact that both he and the child were of South Asian heritage, in order to befriend and entice the child; the assault was invasive and did not involve mere external touching or fondling over clothes, as seen in some less serious cases; and finally, Butt had no insight into his sexual deviancy and had significantly minimized the facts of the offence during the psychiatric assessment [para 18].

Third, Code J rejected the trial judge’s finding that this incident was at the low end of the range of gravity of sexual offences, Code J explained:

There are many far less serious offences of sexual assault and sexual interference than this one. In my view, this case fell somewhere in the mid-range of gravity and could not properly be characterized as "at the low end" [para 19].

Fourth, Code J found:

[T]he trial judge failed to apply the principle relating to mandatory minimum sentences set out by Arbour J. (McLachlin C.J.C. concurring) in R. v. Morrissey (2000), 148 C.C.C. (3d) 1 at para. 75 (S.C.C.). Although it is a concurring judgment of only two members of the Court, the point of law made by Arbour J. in the relevant passage does not differ from anything said in Gonthier J.'s reasons on behalf of the other five members of the Court who heard the appeal in Morrissey. Arbour J. stated the following:

To the extent possible, mandatory minimum sentences must be read consistently with the general principles of sentencing expressed, in particular, in ss. 718, 718.1 and 718.2 of the Criminal Code: Wust, [2000] 1 S.C.R. 455, supra, at para. 22. By fixing a minimum sentence, particularly when the minimum is still just a fraction of the maximum penalty applicable to the offence, Parliament has not repudiated completely the principle of proportionality and the requirement, expressed in s. 718.2(b), that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Therefore, in my view, the mandatory minimum sentences for firearms-related offences must act as an inflationary floor, setting a new minimum punishment applicable to the so-called "best" offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances. The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions. [Emphasis added].

Applying these principles to the case at bar, Butt was certainly not the "best" offender and the offence was not the least serious form of sexual interference. It was, therefore, inappropriate to impose the minimum sentence. Even defence counsel appeared to recognize this reality, in submitting that a range of fourteen to thirty days imprisonment would be appropriate.

In light of the above four errors in principle, I am satisfied that the sentence of fourteen days imprisonment was manifestly unfit. A range of sentence of six to twelve months would have been consistent with sentences imposed in reasonably comparable cases, after factoring in the inevitably different aggravating and mitigating factors in the individual cases. See: R. v. Hutchinson (2006), 69 W.C.B. (2d) 272 (Ont. C.A.); R. v. Levert (2001), 159 C.C.C. (3d) 71 (Ont. C.A.); R. v. Manjra (2009), 250 O.A.C. 257 (Ont. C.A.); R. v. Toten (1993), 83 C.C.C. (3d) 5 at pp. 11-12 and 49-50 (Ont. C.A.) [paras 20-22].

Despite this finding Code J ultimately dismissed what he found to be a meritorious Crown appeal because of the delays in the sentencing and the delays in pursuing the appeal.