WARNING: Readers may find some details disturbing
A man who raped a woman he met on a dating website wasn鈥檛 given a long enough prison sentence, ruled Saskatchewan鈥檚 Court of Appeal Thursday.
In December 2019 Gioulian Nikdima was sentenced to three years for sexual assault causing bodily harm after raping a woman he met on dating website Plenty of Fish.
The unanimous three-judge panel increased Nikdima鈥檚 sentence to three years and six months.
In July 2020 Crown Prosecutors Erin Bartsch and Pouria Tabrizi-Reardigan had argued before Saskatchewan鈥檚 highest court that the presiding Court of Queen鈥檚 Bench Justice didn鈥檛 adequately consider the gravity of the crime, the need to protect the public from Nikdima, and that Nikdima hasn鈥檛 accepted responsibility for his crime.
In his written decision, Justice Peter Whitmore, in concurrence with Justice Brian Barrington-Foote and Madam Justice Lian Schwann, ruled that the trial judge made two errors in principle, which impacted the sentence.
鈥淚 am of the view the trial judge erred by treating the absence of aggravating factors, such as additional violence, as mitigating factors in considering the circumstances of the offence. This error, coupled with an emphasis of parity over proportionality, impacted the sentence the trial judge imposed, by leading him to impose an unfit sentence.鈥�
The trial
During a 10-day trial heard in Regina Court of Queen鈥檚 Bench in 2018 and 2019, the court heard that complainant A.M. met Nikdima through online dating website Plenty of Fish. They agreed to meet at a local coffee shop and then went for lunch. After lunch Nikdima took A.M. for a drive outside of the city. They went for a short walk at which point Nikdima kissed her.
The testimony of Nikdima and A.M. differed about what happened next.
A.M. testified that Nikdima forcefully pulled off her pants, forcibly penetrated her听anally and vaginally, and pushed her face down to perform oral sex on him.
She said she went to the Regina Sexual Assault Centre two days later and then she went to the hospital for an examination. A nurse testified A.M. had suffered an abrasion on her forehead and a tear to her anus.
Nikdima testified that the first kiss was mutual and that the two continued kissing. He testified that A.M. stated she wanted to go back to the vehicle to have sex, and that once in the vehicle, she removed her pants and again told him she wanted to have sex. Nikdima denied A.M. suffered any injuries and testified she did not complain of any injuries.
The court had found that A.M. suffered serious injuries.
Parliament is clear these offences serious
During the appeal hearing, Bartsch argued that not all victims of sexual assault have a physiological response to fight in response to a threat. Some instead freeze and don鈥檛 resist the听offending behaviour and instead, they submit out of fear.
The three-judge appeal court panel agreed.
鈥淚t is without question that it is an error in principle to suggest that victims of sexual assault must actively resist,鈥� wrote Justice Whitmore. 鈥淭he Supreme Court has specifically cautioned against judges instructing themselves not to fall prey to sexual assault myths yet perpetuating them later in their judgments.鈥�
Parliament has fixed the maximum sentence for these types of offences to 14 years.
鈥淧arliament has sent a message that this is a very serious offence,鈥� added Justice Whitmore.
That said, however, Justice Whitmore added that Nikdima has no prior criminal record and faces deportation.
鈥淎ll things considered, weighing the principles and objectives of sentencing, I would impose a sentence of incarceration of three years and six months.鈥�
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