FASD & the Justice System
R. v. Esquega, [2009] O.J. No. 514; 2009 CanLII 4522

FACTS: Sentencing of accused who pleaded guilty to unlawful confinement, uttering death threats, stealing from and assaulting the victim, aggravated assault, two counts of breach of probation, and sexual assault. The accused came across the 80-year-old victim, a complete stranger, as she was eating lunch near her back door. He stepped into the kitchen, where she retrieved money for him. Then he pushed her, and struck her, causing her to fall down the stairs into the basement, where he savagely assaulted her with sticks and sexually assaulted her. He burned her with a hot iron and tied her up before threatening her and leaving.

The Crown sought a sentence of 20 years in prison, arguing that his was a home invasion deserving a lengthy prison sentence in order to reflect the principle of denunciation, the paramount principle given the serious level of violence and cruelty of the crimes. The defence sought a sentence of 10 years.

HELD: Accused sentenced to 13 years in prison on all counts save the two breaches of probation, for each of which he received an additional term of six months' consecutive. The court considered the accused's Aboriginal heritage and his background. There is some indication that Mr. Esquega may suffer from FASD. Advised of this possibility, Mr. Esquega has rejected testing believing that it would somehow betray his mother. His intellectual level spanned borderline to the low-average range. Mitigating factors included the guilty pleas, his youth (21 years old), and his tragic background and personal circumstances.

His prior criminal record was lengthy. Aggravating factors included that the victim was vulnerable, being an 80-year-old female, he showed no remorse, the attacks were senseless and extremely cruel, the acts committed contained elements of sadism and torture, and the victim was tied up and left in the basement where she could have died had she not managed to untie herself and call 911.

The paramount consideration was denunciation. His behaviour was so aberrant that it was to be denounced to express society's outrage and extreme disapproval. This was a case where the violence and seriousness of the crimes dictated that an appropriate sentence would not differ as between Aboriginal and non-Aboriginal offenders. The assessment report found he presented a high risk of recidivism due to his lack of cognitive abilities, impulsivity and a poor understanding of risk factors. He was to provide a DNA sample and register as a sex offender. He was given a 10-year weapons prohibition.

CanLII Link: http://www.canlii.org/en/on/onsc/doc/2009/2009canlii4522/2009canlii4522.html