Man who raped sleeping woman has sentence reduced by Ontario Appeal Court over planning issue

The Ontario Court of Appeal is seen in Toronto on Monday, April 8, 2019. Colin Perkel / The Canadian Press

TORONTO – A man convicted of raping a sleeping woman has had his sentence reduced because the judge wrongly decided he had planned the crime.

In its unanimous decision, the Ontario Court of Appeal rejected a bid by Saied Ghadghoni to overturn his conviction but said his 30-month sentence was too harsh.

Ghadghoni, then 22, and the complainant, whom he had met at a gym, offered starkly different accounts of what occurred. He insisted the sex they had at his home after visiting a nightclub where she drank alcohol – she threw up at one point – was consensual and that she was an enthusiastic participant.

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She said she had no memory of arriving at his home in the early hours. She complained that she awoke naked on his bed in the morning to find him “penetrating” her. She told him to stop and he did.

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In June 2017, Superior Court Justice Hugh O’Connell convicted Ghadghoni in Oshawa, Ont., of sexual assault. The sleeping woman, the judge found, could not have consented to sex. O’Connell sentenced him to 30 months.

Ghadghoni appealed, arguing the judge was too critical of his evidence while tolerating inconsistencies in hers.

The Appeal Court, however, found no reason to disturb the conviction given the “objective, relatively uncontroversial evidence, which went to the heart of whether he had intercourse with a sleeping woman.”

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At the same time, the appellate court found O’Connell had made an error in sentencing Ghadghoni, who suffered a head injury as a child that left him with serious cognitive deficits, court records show.

Medical evidence was that people with such an injury have poor impulse control and that the accused had difficulty recognizing social cues in interactions with others, and limited ability to learn from punishment.

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O’Connell said he would have given him a 36-month sentence but imposed 30 months after finding no link between the brain injury and the offence, but that prison would be difficult for someone with his mental disabilities.

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Ghadghoni argued the punishment was excessive because his disabilities reduced his moral blameworthiness. He also faulted the judge for concluding he had methodically planned his crime over a sustained time.

Writing for the Appeal Court, Justice Gladys Pardu said it could not be determined whether Ghadghoni had been impulsive in assaulting the woman or whether his “cognitive deficits” contributed to his offence. She rejected that ground of appeal. However, Pardu also rejected any suggestion he had methodically planned the assault, as O’Connell had found.

“The trial judge erred by finding an aggravating factor, that the appellant methodically planned to commit the offence from the time he left the club,” Pardu said. “This was not proven beyond a reasonable doubt.”

As a result, the Appeal Court cut Ghadghoni’s sentence to two years less a day from 30 months.

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