R. v. Alainga, 2014 NUCJ 34

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Alainga, 2014 NUCJ 34 Date: 20140715 Docket: 08-13-399-1 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Paul Alainga ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): Jay Potter Counsel (Accused): Stephen Shabala Location Heard: Iqaluit, Nunavut Date Heard: July 15, 2014 Matters: Criminal Code, s. 271 ; s. 718 ; s. 719(3) REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication) DISCLAIMER PAGE Restriction on Publication:

By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” I. INTRODUCTION [ 1 ] Paul Alainga is before the Court for sentencing on a sexual assault charge. Mr. Alainga pled guilty to the charge. However, there was no agreement on the facts so the matter proceeded to a Gardiner hearing. The complainant did not testify at the hearing. [ 2 ] Mr. Alainga had sexual intercourse with an intoxicated and unconscious complainant. The incident occurred in the living room of the residence where Mr.

Alainga lived. The incident came to an end when friends of the complainant pulled Mr. Alainga off of her and took him out of the house. Mr. Alainga has very little recollection of the incident due to his own level of intoxication. II. POSITIONS OF PARTIES [ 3 ] The Crown seeks a sentence of 3 years. The Defence does not dispute that a 3 year sentence is within the appropriate range for sentencing. However, he argues that Mr. Alainga should be given some credit for pre-sentence custody and that the sentencing principle of totality mitigates the sentence. III. CIRCUMSTANCES OF OFFENDER [ 4 ] Mr.

Alainga is 30 years old and single. He has a grade 12 education. He was raised by his grandmother from the age of 7. By all accounts his grandmother provided a good home. She is now in the Elders home, suffering from dementia, and does not recognize Mr. Alainga. [ 5 ] Following the commission of this offence but prior to being charged, Mr. Alainga moved to Winnipeg to live with his biological mother. This arrangement did not work out well. His mother struggles with alcohol. It was while he was in Winnipeg that Mr.

Alainga was convicted of a number of offences; some very serious and which resulted in penitentiary terms. Since being convicted in December of 2011, he has been in custody continuously except for a period of 6.5 months, during which time he was on parole and living at the halfway house in Iqaluit. While at the halfway house he worked as a cleaner and as a housing maintainer. He had just registered for the carpentry program at Arctic College when his parole was revoked. IV. ANALYSIS A. Principles of Sentencing [ 6 ]

Section 718 of the Criminal Code codifies the principles of sentencing that must be considered in determining an appropriate sentence. Counsel acknowledges that the primary sentencing principles in this matter are denunciation and deterrence. The offence is serious and a lengthy period of incarceration is the only sentencing option realistically available to the Court. [ 7 ] Mr. Alainga is to be considered a first offender for the purposes of sentencing as he did not have a criminal record at the time of the commission of the offence.

However, the criminal record which he subsequently accrued disentitles him from a claim of general good character or a finding that this offence was out of character for him. [ 8 ] Mr. Alainga was highly intoxicated at the time of offence and has no recollection of it. This does not mitigate sentence. He is still responsible for his actions. It does, however, suggest that the offence was opportunistic and impulsive rather than planned and

premeditated. [ 9 ] It is aggravating that the offence occurred while the complainant was unconscious. In such a state, she was at her most vulnerable, unable to defend herself or seek assistance. B. Impact of Parole Revocation [ 10 ] Mr. Alainga's remand situation is unusual. The sexual assault for which he is to be sentenced occurred on June 13, 2009, however, the charge was not laid for several years. In the intervening period, Mr. Alainga was convicted of two offences, including a robbery for which he received a sentence of 33 months.

It was while he was on parole in relation to the robbery that he was charged with the sexual assault. He was placed on an undertaking in relation to the sexual assault and his parole was not revoked. He was then charged with an assault, at which time his parole was revoked. He was acquitted of the assault.

However, his parole was not reinstated. [ 11 ] The chronology of events is set out below: June 13, 2009 -Sexual assault offence date July 6, 2011 -Convicted of simple assault & breaches -Sentenced to 1day jail, 18 months’ probation December 19, 2011 -Convicted of armed robbery & related offences -Sentenced to 33 months April, 2013 -Paroled June 3, 2013 -Charge laid for sexual assault arising June 13, 2009 -Released on an undertaking October 28, 2013 -Charged with assault, parole revoked Jan.30, 2014 -Acquitted on assault April 22, 2014 -Pled guilty to sexual assault -Matter set over for sentencing Sept. 19, 2014 -Release date on parole revocation C.

Case Law

[12] I have reviewed a number of cases that speak to the impact of parole revocation on sentence. Although most of the cases areinstances where the offender is being sentenced for an offence committed while on parole and which led to the parole revocation, therelevant principles are applicable to this matter. [13] It is difficult in the circumstances of this case to find that parole revocation leads to the conclusion that the offender should begranted credit for time in custody pursuant to section 719(3) of the Criminal Code.

Section 719(3) provides that the Court can take intoaccount time spent in custody as a result of the offence. Mr. Alainga's parole was not revoked when he was charged with this offence.His parole was revoked when he was charged with offences alleged to have occurred while he was on parole.

The fact that his parole wasnot reinstated when he was ultimately acquitted on the subsequent charges does not lead to the conclusion that he was in custody becauseof these charges. [14] Further, even in instances where parole is revoked because of offences committed while on parole, the courts are cautious aboutgranting credit for this time in custody. As stated by the Supreme Court of Canada in R. v. Shubley, (SCC), [1990] 1SCR 3, 52 CCC (3d) 481, parole does not shorten a sentence.

Rather, it is a privilege that is earned by good conduct while in prison.There is the potential for inconsistent approaches if, on the one hand, commission of an offence while on parole is considered anaggravating factor and, on the other hand, loss of parole is considered a mitigating factor (see R v Bueger, (BCCA),[1994] BCJ No 2198 [Bueger]). [15] Having said that, there is authority for the proposition that loss of parole should be considered in determining a fit and appropriatesentence because of the impact it will have on the global sentence to be served (see: Bueger, R v Trudell, 1984 ABCA 257, [1984] AJNo 932; R v Lavallee, 2006 ABCA 324, 214 CCC (3d) 223; R v Manybears, 2009 ABCA 82, [2009] AJ No 214). [16] The theory behind this approach is that the global sentence impacts on the sentencing principles of protection of the public andrehabilitation.

The loss of parole results in the offender being in prison for longer than he might otherwise be. This keeps him separatedfrom society for a longer period and allows him greater opportunity to take programming to assist in his rehabilitation. [17] The same principles apply in relation to Mr. Alainga but in a somewhat different way, given that the offence he is to be sentencedfor pre-dates the offences for which he was on parole. Several factors about the case at bar are important to note here. First, Mr. Alaingahas not accrued any new convictions since being paroled.

He was also working and had enrolled in school at the time of his parolerevocation. [18] Arguably, the global sentence to be imposed might be less than what it might otherwise be because the programming he took whilein custody and the supervision he was under while on parole appeared to be successful. The sentencing principles of protection of societyand rehabilitation have, therefore, arguably already been achieved. V. CONCLUSION [19] The global sentence to be imposed must address the sentencing principles of denunciation and deterrence.

However, it must not beso lengthy as to crush the spirit of the offender and undermine any desire or motivation to change. [20] On December 19, 2011, Mr. Alainga was sentenced to 33 months custody. In my view an appropriate sentence on the charge ofsexual assault is 2 years, consecutive, resulting in a global sentence of 4 years and 9 months. [21] There will be a DNA order. [22] The offender will comply with the Sexual Offender Information Registration Act (SOIRA) for a period of 20 years. [23] There will be a

section 109 firearms prohibition for 10 years.

Dated at the City of Iqaluit this 15th day of July, 2014 ___________________ Justice S. Cooper Nunavut Court of Justice