R. v. Yamelst, 2013 BCSC 1689

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Yamelst, 2013 BCSC 1689 Date: 20130531 Docket: 92368-2 Registry: Kamloops Regina v. Kyle Andrew Yamelst Restriction on publication: Pursuant to s. 486.4(1) of the Criminal Code of Canada Before: The Honourable Mr. Justice Willcock Oral Reasons for Sentence Counsel for Crown: Christopher M. Balison Counsel for Defence: Donald G. Campbell Place and Date of Hearing: Kamloops, B.C. May 31, 2013 Place and Date of Sentence: Kamloops, B.C.

May 31, 2013 [ 1 ] THE COURT: The Conviction and Offence [ 2 ] Kyle Andrew Yamelst was found guilty by a jury on Saturday, January 12, 2013, of the offence described in the indictment in this case as follows: Kyle Andrew YAMELST, on or about the 30th day of December, 2010, at or near Spences Bridge, in the Province of British Columbia, did sexually assault [name redacted], contrary to Section 271(1) of the Criminal Code . [ 3 ] That provision of the Criminal Code reads as follows: 271.

(1) Every one who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding ten years . . . [ 4 ] A sexual assault is an assault within any one of the

definitions of that word in the Criminal Code which is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated. Purpose and Principles of Sentencing [ 5 ]

Section 718 of the Criminal Code sets out the fundamental purpose of sentencing. It is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[ 6 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 7 ] The court that imposes a sentence shall take into account the following principles: (

a) the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or to the offender; (

b) a sentence should be similar to sentences imposed on similar offenders for similar crimes committed in similar circumstances; (

c) an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; and (

d) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 8 ] The purpose of that last provision is not simply to set out a code that describes the existing case law but it is to improve and address the severe problem of the overrepresentation of aboriginal people in prison and to encourage sentencing judges to have recourse to a restorative approach to sentencing.

The Particulars of the Offence [ 9 ] The Crown's case against the accused was founded upon the evidence of the complainant. She testified that she awoke in bed at a house in Spences Bridge in the early morning hours of December 30, 2010, at which there had been a party earlier in the evening. It was her evidence that Kyle Yamelst was then on top of her and inside her. Her pants had been pulled down, and her top pushed up. Her pants and underwear were below her knees. Her bra, tank top, and sweater were pushed above her chest. It was

an act of sexual intercourse that was painful for her. She does not remember Mr. Yamelst getting off her. She felt she blacked out and later awoke with Mr. Yamelst passed out beside her in the same bed. She did not take steps to alert others because she thought that if she screamed, he might hurt her. I should note there is no evidence that the offender did anything to lead her to that belief, other than having non- consensual sex with her. [ 10 ] She was confused about what happened during the course of the evening but was adamant that she had not consented to sexual intercourse with Mr.

Yamelst. [ 11 ] In convicting Mr. Yamelst, the jury must have accepted that he had intercourse with the complainant when he found her in bed in a state of intoxication and took advantage of her. [ 12 ] There was evidence before the jury that at the time of the assault, Mr. Yamelst was so impaired as to have no reliable memory of events that took place. That was his own evidence. The fact he was very impaired was confirmed by Danielle Munro, who was sober and able to testify to Mr. Yamelst's demeanour. It was also confirmed by Jordan Yamelst.

The Circumstances of the Offender [ 13 ] The circumstances of the offender, Mr. Yamelst, and his heritage are described in detail in a very helpful report prepared for my consideration by Arthur Joseph Swan. [ 14 ] The offender was born on November 20, 1988. He is a member of the Cooks Ferry Indian Band. He is the son of Charlotte Yamelst, who tragically was killed in a car accident in 1992. Following the death of his mother, Mr. Yamelst was abandoned by his father and raised by his grandparents, Clifford and Barbara. They are now dependent upon Mr. Yamelst.

He works on the ranch and assists them by hunting and fishing. He spoke of that work when I asked if he wished to address the court. He mentioned their dependency on him. [ 15 ] The offender has an incomplete high school education. He has always worked at his grandparents' ranch and also works locally on small construction, roofing, and Band projects. He has been a volunteer firefighter. He hopes to finish his schooling and start a career as a heavy-equipment operator. [ 16 ] Unfortunately, the offender was raised in circumstances that led to early use of alcohol and drugs.

He started drinking alcohol at the age of 12 to 13 years, and through high school he drank alcohol almost every other day and every weekend. He has occasionally tried to stop drinking, unsuccessfully. [ 17 ] As described in the report prepared for the court by Mr.

Swan, the offender's life has been affected by a number of adverse impact factors that affect aboriginals in general, including the attendance of his grandparents in the Indian residential school system, witnessing alcohol abuse, engaging in substance and alcohol abuse himself, experiencing racism, family dislocation, unemployment, and a lack of employment opportunities. [ 18 ] He is described by his friends and family members as a patient and a kind person with a sense of humour.

He is said to be a hard-working man who has in the past displayed composure and integrity, by Ashley Stump; as a person who is relied upon by others and who has been doing better for himself, by Maynard Joe; as a soft-hearted person, by Burton Quinn; as a provider for his family and a caring and considerate man, by Marla Billy; as a caring person and a teacher, by Jordan Yamelst; as a person who stands in the position of the father to a six-year-old girl, by Toni-Lynn Michell; as a helpful, hardworking, and motivated person, by Ernest Michell; as a traditional person who is respectful of his elders, by Red Hawk Michell; as a helpful grandson, by Barb and Clifford Yamelst; and as a good ambassador for his family, by Sam Yamelst.

Analysis Aggravating Circumstances [ 19 ] As I mentioned earlier, a sentence should be increased to account for any relevant aggravating circumstances relating to the offence or the offender. [ 20 ] In this case, those include the fact that the assault included

an act of sexual intercourse. The victim was helpless, sleeping, and intoxicated. [ 21 ] Crown mentions the fact that the offender has a criminal record, and a copy of the record has been filed as an exhibit. He has been convicted of driving with more than the allowable level of alcohol in his blood on two occasions in 2009. I do not regard those convictions as aggravating factors. They say nothing significant about Mr.

Yamelst's character that ought to be considered on sentencing, in my view. [ 22 ] There is a victim impact statement in which the complainant eloquently describes the impact the offence has had on her on an ongoing basis. It has affected her confidence, her self-image, her ability to interact socially with others, and her intimate relationships. It has affected her in her dealing with her children and her employment. She needs and will seek counselling. Crown counsel advises the court she is seeking care for posttraumatic stress disorder and has been prescribed medication.

The impact statement makes clear to the court the profound effects of sexual assaults on their victims. I bear it in mind in considering the need for a sentence in this case that results in appropriate denunciation and deterrence. Mitigating Circumstances [ 23 ] The sentence should be decreased to account for any relevant mitigating circumstances relating to the offence or the offender. [ 24 ] Crown says there are no mitigating circumstances. In my view, there are some. [ 25 ] The offender appears to have been otherwise a peaceful member of society. He has no record of violence or sexual impropriety.

He is relatively young and was impaired when he committed this offence. There is support for him in the community. He is an individual who may well be treated for his alcoholism, who may contribute positively to his community, and who may not reoffend. His supporters believe that he has many admirable qualities. On his own behalf, when asked to address the court, he spoke of his desire to support his grandparents, to educate himself, and to find employment.

Comparable Sentences [ 26 ] As I said at the outset of these reasons, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Unfortunately, sexual assaults on sleeping and impaired or intoxicated women are so common that there are a considerable number of comparable cases to which I may look in order to determine what sentences have been imposed on similar offenders for similar offences. [ 27 ] The Crown has provided me with two cases: R. v. Rand , 2012 ONCA 731 ; and R. v.

Goodliffe , 2005 BCCA 426 . [ 28 ] In Rand , the accused engaged in sexual intercourse, oral sex, and anal sex with an intoxicated and unconscious victim who resisted and told him to stop. She was subsequently assaulted by the offender's friend. The accused was sentenced to four years' imprisonment. On appeal, the Court of Appeal refused to interfere with the sentence, and the court said this at para. 19: … The appellant took advantage of a vulnerable intoxicated young woman. He committed acts of unprotected anal and vaginal sex.

He has a prior criminal record dating back to 2004 that includes offences of dishonesty and also convictions for crimes of violence, including assault, assault with a weapon, and assault with intent to resist arrest. Two of the assault convictions, in 2004 and 2007, involved incidents of domestic violence. The sentence imposed by the trial judge in this case was well within the appropriate range. [ 29 ] The Rand case, for those reasons, is not particularly helpful. The assault is aggravated and involves numerous acts. It continued in the face of active resistance. The accused had a significant criminal record.

The Rand case is clearly one that warranted a more severe sentence than that which should be imposed in this case. [ 30 ] In Goodliffe , the court heard an appeal from a sentence imposed on an accused who appears to have provided the date-rape drug GHB to his victim. When she passed out, the offender had oral sex and sexual intercourse with the victim. There was a large age discrepancy between the accused and the victim. The victim was only 17 years old. The trial judge concluded that the sentence should emphasize denunciation and deterrence over rehabilitation and imposed a sentence of 30 months in jail.

The court found, on the basis of a psychological report, that the appellant was quite manipulative. He was resistant to sex offender treatment. The Court of Appeal held that there were no grounds on which it could interfere with the sentence imposed by the trial judge. [ 31 ] In my view, it is notable that the accused in that case, Goodliffe, did not have a criminal record. As in this case, it was the first offence for the accused.

But it is also noteworthy that there appears to have been planning and manipulation in the offence described in the Goodliffe case. [ 32 ] The accused's counsel provides the court with a decision of the Ontario Court of Justice in R. v. Casilimas , 2013 ONCJ 211 . The reasons for sentencing in that case reproduced a

summary of relevant cases relied upon by the Crown. That

summary of cases includes the Rand decision that I have described and, among other cases, the decision of the Yukon Territory Supreme Court in R. v.

White , 2008 YKSC 34 and a decision of the Supreme Court of Canada in R. v. Wells , [2000] 1 S.C.R. 207, 2000 SCC 10 . [ 33 ] The Casilimas case arose from a sexual assault upon a woman who was too drunk to consent. The accused was wilfully blind to her irrational and intoxicated state and had sex with her. Like the case at bar, that case involved little planning. The accused had been drinking. It was a first offence.

The trial judge, referring to some of the leading cases, said the following at para.13: This case does not have some of the more serious aggravating factors of aspects of breach of trust that were present in [certain of the cases], or the callous indifference of persisting with intercourse in the face of obvious protest as in Rand or a previous rejection as in [another case referred to]. [ 34 ] I should note that in the case at bar there is no breach of trust. The offender did not set up his victim or lead her into the circumstances in which he found her.

There does not appear to have been callous indifference in persisting with intercourse in the face of obvious protest, nor is there more than one sexual assault. [ 35 ] In R. v. White , Gower J. sentenced an offender who had been convicted by a jury of the sexual assault of a victim who had fallen asleep in his room while intoxicated. Like the victim in the case before me, she awoke finding the assault in progress. The offender was intoxicated at the time of the assault. He was a First Nations male with a history of alcoholism and drug abuse.

He had been raised in very difficult circumstances and affected by the social problems that often affect aboriginal communities. [ 36 ] Gower J. reviewed a range of case authorities from the Yukon and the Northwest Territories and many Canadian provinces. Among the authorities considered were decisions of Manitoba, Alberta, Saskatchewan, British Columbia, and Ontario courts of appeal. [ 37 ] In one of those cases, R. v.

Shalley , 2005 NBCA 150 , the Court of Appeal upheld a sentence of two years less a day imposed on an accused who had been convicted of having intercourse with a victim who had passed out at a house party.

The court held the appropriate range of sentence for sexual assault involving non-consensual intercourse with a woman asleep or unconscious, assuming an offender of previous good character who pleads guilty and expresses remorse, is two to three years' imprisonment. [ 38 ] Gower J. noted that British Columbia courts have been less willing than other provincial courts to embrace a starting point approach to sentencing in such cases, and he cited, among other cases, the Goodliffe case referred to earlier. [ 39 ] Mr. Justice Gower also refers to the decision of the Supreme Court of Canada in R. v. Wells .

In that case, the offender had been found guilty by a jury of a sexual assault. He attended a house party at the home of the 18-year-old aboriginal victim who was either asleep or unconscious from the effects of alcohol, and sexually assaulted her in her own bedroom. While the victim had no memory of the assault, she suffered hurt and humiliation when she learned of the event the next morning.

Taking into account the absence of planning or deliberation, the absence of gratuitous violence, and a generally favourable pre-sentence report including an examination of the offender's aboriginal background, the Supreme Court of Canada upheld the sentence of 20 months in jail. Available Sanctions [ 40 ] The Criminal Code requires me to consider all available sanctions.

An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. [ 41 ] The definition of a serious personal injury offence in the Criminal Code specifically includes an offence mentioned in s. 271 of the Code . There is, therefore, no jurisdiction to impose a conditional sentence in this case.

Because a conditional sentence is not available, I should therefore give careful consideration to whether society's interests will be served and protected by looking to a period of probation in addition to jail time as an available sanction. [ 42 ] In the Gladue report that has been prepared by Mr. Swan, he states that if a provincial sentence is appropriate, the offender has the opportunity to work with aboriginal justice staff, to identify appropriate aboriginal programs, to obtain support and access to resources.

He can participate in alcohol and drug counselling and psychotherapy and work with counsellors to apply to an aboriginal residential treatment program when released. Sentence [ 43 ] I turn now to the appropriate sentence in the circumstances of this case. Incarceration [ 44 ] In all comparable cases since the courts have been precluded from imposing a conditional sentence for this offence, the courts have imposed sentences including periods of incarceration. [ 45 ] Counsel have provided me with some cases that are of assistance in fixing an appropriate jail sentence.

The cases which most closely resemble the circumstances of the offender, the victim, and the offence in this case establish a range of appropriate sentences from approximately 16 to 30 months' incarceration. Those are cases that involve no breach of trust, no planning or manipulation, no persistence in the face of active resistance, no gratuitous violence, and no repetition of the assault. These cases are at the low end of the range considered by Gower J. in R. v.

White . [ 46 ] Taking all the circumstances into account in this case, I am of the opinion that a fit sentence is a period of incarceration of 18 months followed by a period of probation.

Probation [ 47 ] Where a person is convicted of an offence, the court may, in addition to sentencing the offender to imprisonment for a term not exceeding two years, direct the offender to comply with conditions described in a probation order, and I will address those conditions in a moment. [ 48 ] Before making a probation order, I am required to consider whether s. 109 or s. 110 of the Criminal Code are applicable, and counsel acknowledge that s. 109 is applicable. That

section provides that where a person is convicted of an indictable offence in the commission of which violence against a person was used and for which the person may be sentenced for imprisonment for 10 years or more, for the first time, the court that sentences the person shall, in addition to any other punishment that may be imposed, make an order prohibiting the person from possessing any firearm, other than a prohibited firearm, restricted weapon, ammunition, and explosive substances during the period that begins the day on which the order is made an ends not earlier than 10 years after the person is released from imprisonment after conviction, and to make an order prohibiting the person from possessing a prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.

There will be such an order. [ 49 ]

Section 490.012 of the Criminal Code provides that when the court imposes sentence on a person for the offence of sexual assault, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in the Code . That

section provides that the order begins on the day on which it is made and ends 20 years after it was made if the maximum term of imprisonment for the offence is 10 to 14 years, as it is for sexual assault. There will be an order requiring the offender to comply with the Sex Offender Information Registration Act for 20 years. [ 50 ]

Section 487.051 of the Code provides that the court shall make an order in Form 5.03 authorizing the taking of the number of samples of substances that is reasonably required for the purpose of forensic DNA analysis from a person who is convicted of an offence that is a primary designated offence. Sexual assault is such an offence. There will be an order in Form 5.03 in relation to the offender. [ 51 ] Turning to the terms of the probation, first as to its duration, I may make an order for up to three years from its coming into force. In light of the need to promote rehabilitation, I am of the view that 18 months' probation must follow the jail sentence in this case. [ 52 ]

Section 732.1 of the Criminal Code describes the compulsory conditions of a probation order. It is important, Mr.

Yamelst, that you pay attention to these terms of the probation order. [ 53 ] The Code provides that when there is a probation order, the court shall prescribe, as conditions of the probation order, that the offender do all of the following: first, keep the peace and be of good behaviour; second, appear before the court when required to do so by the court; and third, notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 54 ] In addition to those, there are optional conditions of the probation order, and I make the following additional orders as part of your probation order. [ 55 ] During the term of the probation, you shall no contact, directly or indirectly, with the complainant. [ 56 ] During the term of the probation order, you shall report to a probation officer within two working days, or such longer period as the court directs, after the making of the probation order and thereafter when required by the probation officer and in the manner directed by the probation officer. [ 57 ] You will remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the probation officer. [ 58 ] You will abstain from the consumption of alcohol or other intoxicating substances and the consumption of drugs except in accordance with a medical prescription. [ 59 ] In addition, you will attend at all such counselling or treatment to which you may be directed by your probation officer for the purpose of assessment and curative treatment in relation to your consumption of alcohol or drugs.

I direct the probation officer to require you to attend at a designated treatment centre for that purpose for such period as may be recommended by the centre and provide that such centres may include the Round Lake Treatment Centre in Vernon, British Columbia, the Tsow-Tun Le Lum Recovery Society on Vancouver Island, or the Maple Ridge Treatment Centre. [ 60 ] In light of the recommendations in the Gladue report, I will also direct the probation officer to consult with aboriginal justice staff to identify aboriginal programs which are culturally appropriate, and supports and resources that will assist you in connecting with your aboriginal culture, and direct you to attend at such programs as may be prescribed for you by the probation officer.

Victim Surcharge [ 61 ] Section 737(1) of the Criminal Code provides that an offender who is convicted of an offence shall pay a victim surcharge in addition to any other punishment imposed on the offender. The amount of the surcharge in respect of an offence is $100 in the case of an offence punishable by indictment. I am satisfied that imposition of that surcharge in this case would result in undue hardship to your dependents, and I will make an order excepting you from the application of the surcharge in this case. In my view, imposing that surcharge would only impose further hardship on your family, Mr.

Yamelst, who appear to be of limited means. [ 62 ] All right. If you could stand now, Mr. Yamelst. [ 63 ] You understand, then, Mr. Yamelst, that I have sentenced you to a period of incarceration of 18 months to be followed by a period of probation of 18 months. I have described the terms of the probation for you, and I hope you understand the terms of the

probation that have been imposed. [ 64 ] There are some other terms of your sentence that are technical and will be described to you by your counsel. [ 65 ] Are there any other matters, Counsel, that you wish to speak to? [SUBMISSIONS] [ 66 ] THE COURT: The no contact order imposed as a term of the probation will also apply while Mr. Yamelst is in custody. [SUBMISSIONS WITH RESPECT TO S. 113(1)(a)] [ 67 ] THE COURT: I have heard such an application brought following the imposition of a sentence on an offender's discharge from prison.

My recollection of the case is that there is authority for bringing on such an application following a term of imprisonment. It should be supported by material, in any event, because the offender needs to establish the need for the use of the weapon, and while I have some evidence of hunting and fishing, there is no evidence as to the degree to which that is necessary for sustenance and as part of the culture of the offender. So Mr.

Yamelst will have leave to make application pursuant to s. 113(1) for relief against the imposition of the sentence in relation to the possession of firearms, and that application may be brought on at such time as counsel deem it appropriate. [ 68 ] THE COURT: I do not have to be seized of that application. “P. Willcock J.” The Honourable Mr. Justice P. Willcock