Ice Caps & Stupefying Substances: inferring and denouncing high doses

Mullins was convicted of sexual assault and administering a noxious substance. The young victim was 18 at the time of the offence and a close friend of Mullins’ daughter. Mullins elected to have a trial in the Superior Court of Justice before a judge and no jury. Mullins was convicted; in the reasons for sentence, 2015 ONSC 1724, Molly J summarized the crimes as follows.

Using his daughter’s upcoming birthday as a ruse to enlist the help of AS, the victim, to shop for a gift, Mullins lured the victim into his truck. He offered her an iced cappuccino and a marijuana cigarette – one or both of which was laced with enough benzodiazepines to knock her out.

For over 12 hours he held her in the truck, brutally and violently raping her. When he was done, he dropped her off at her father’s home, beaten and still feeling the effects of the drugs. AS had little recollection of the vicious and prolonged attack; she testified of flashes of memory which involved a bed, a shower and Mullins’ voice.

Once home AS was still weak and disoriented. She was covered in injuries she could not recall having sustained.

The most significant injuries were the bruising and abrasions to both hips, the extensive bruising at the front of both feet, and the jagged tear at the entry to the vagina.  The vaginal injury had long term sequelae, including an infection and problems that were ongoing even as of the date of trial, five years after the attack. [@ para 8].

Mullins’ semen was in AS’ vagina and had prescriptions for 2 of the 3 types of benzos AS had been drugged with. 

Mullins testified in his own defence; his evidence of consensual sexual encounters with AS was unequivocally rejected.

The Crown sought a penitentiary sentence in the upper single digits. The defence proposed a range of 3-6 years.

Molloy J noted that there were no strong mitigating factors [@para 17]. There were however a large number of particularly aggravating factors.

One of the disputed factors was whether Mullins was in a position of trust in relation to AS. After reviewing the governing principles Molly J held that:

in assaulting A.S. as he did, Mr. Mullins abused his position of trust in relation to her.  There are no air-tight compartments as to what may constitute a position of trust.  The factual context is the most important part of the analysis.  Mr. Mullins was 47 years old at the time of this offence; nearly 30 years older than A.S.  He was the father of her close friend, and A.S. thought of him in that sort of parental role.  He had no actual authority over her, but she frequently spent nights and weekends at his home with her friend Katlyn, and in that sense was from time to time under his control.  He befriended her at a time when he knew she was particularly vulnerable due to the breakdown of her parents’ marriage.  He gave her gifts, joked around with her, shared marijuana with her, and their relationship evolved into one where she trusted him.  It was as a result of that trust that he was able to lure her into his truck with a story about shopping for a birthday present for his daughter.  Completely unsuspecting and having absolute trust in her friend’s father, A.S. was tricked into a position of vulnerability and then horribly abused.  In my view, these circumstances fall squarely within the notions of “trust” referred to in Audet, and within the purpose and intention of this sentencing provision in the Criminal Code. @para 26

An additional aggravating factor in this case was the endangerment of AS’s life through the use of drugs to perpetrate the assault. Notwithstanding the fact that there was no way to establish from the tests done on AS which specific drugs were administered nor in what dosage, Molloy J used the unchallenged evidence of the forensic toxicologist to draw a number of conclusions:

First, the greater the dosage of benzodiazepines, the greater the possibility of anterograde amnesia.

Second, in excessive quantities benzodiazepines cause on a spectrum, drowsiness, lack of consciousness, coma and can be fatal.

Third, since AS lost consciousness so quickly it is likely that initial dose was high.

Fourth, since she had no memory of what occurred over the span of 12 hours and given the extent of the injuries, the initial dose must have been “extraordinarily massive or else subsequent doses were administered”. [@para 35]

Fifth, although not possible to say whether AS was comatose or just how close to death she came, Mullins endangered her life with his administration of such a high dose or doses. This is a “seriously aggravating factor” [@para 36].

Molloy J also treated the fact that the intercourse was unprotected as an aggravating feature as it left her vulnerable to disease and pregnancy. [@para 39].

After reviewing a number of sentencing decisions Molloy J concluded that a fit sentence was one of 9 years on the sexual assault and 4 years to be served concurrently on the administering of a stupefying substance.

Molloy J held that:

sexual assault is often, by its nature, a difficult offence to prove because it is committed in private and rarely has corroborative evidence.  The use of drugs to stupefy the victim of a sexual assault frequently results in a victim who believes she has been abused but is unable to describe what has happened to her because her memory is completely missing.  Often by the time she gets to a hospital there is no longer any trace of the drug in her system, which makes it an even more difficult case to prove.  Not only are assaults committed in this manner difficult to prove and therefore attractive to their perpetrators, they are also extremely dangerous for the victims.  For this reason, general deterrence is of particular importance in sentencing crimes of this nature. @para 68