Her Majesty the Queen - v. -, 2013 SKPC 099

IN THE PROVINCIAL COURT O F SASKATCHEWAN Citation: 2013 SKPC 099 Date: June 24, 2013 In f ormation: 24339013 Location: F ort Qu'Appelle _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kristopher Brady Appearing: K. Kaip F or the Crown M. Pelletier F or the Accused JUDGMENT B.

TOMKINS, J [ 1 ] Kristopher Brady is be f ore the Court today f or sentencing f or the o ff ence o f sexual assault as follows: On or about the 27 th day of July, A.D. 2009 at or near Peepeekesis First Nation, in the Province of Saskatchewan, did commit a sexual assault on [M.D.L] contrary to section 271(1) of the Criminal Code . [ 2 ] The circumstances o f the o ff ence are not disputed.

A. THE OFFENCE [ 3 ] At the time o f the o ff ence, Mr. Brady was 24 years old. He and an 11 year old girl were watching a movie. They were teasing each other and eventually Mr. Brady tickled the young girl. Then he went back to the couch where he had been sitting but shortly a f ter, he pushed the young girl onto the couch, grabbed her legs and started to tickle her again. She told him to stop but he didn't. He then slid his hand through the leg o f her shorts and touched her vagina with his f ingers.

The young girl told him to stop and he did. [ 4 ] While there was no penetration, the young girl said her genital area was sore f or a couple o f days a f terward. B. PERSONAL CIRCUMSTANCES [ 5 ] Mr. Brady is now 28 years old. He was raised in an apparently stable home where there was no domestic violence, substance abuse or child abuse. He quit school and le f t home when he was 17 years old and had completed grade 10. Since then, he has been steadily employed; although he has had a number o f di ff erent jobs, his longest period out o f work was about one month.

He is described by his current employer as a good worker with a good attitude. [ 6 ] He has resided in a common-law relationship f or f our years and is the f ather o f one child. With his partner, he also cares f or her child by a prior relationship. His partner describes him as a good husband and f ather. He works very long hours and spends most o f his time o ff work with his partner and children. He attends church and is a community volunteer. [ 7 ] Mr. Brady had an alcohol problem when he was younger and was twice convicted o f drinking and driving o ff ences.

He attended the Impaired Driver Treatment Program as a consequence o f his second conviction and a f ter that, completed addictions counselling success f ully in 2012. He says alcohol is not a concern f or him now and his common-law partner con f irms this. There is no suggestion that alcohol was a f actor in the o ff ence be f ore me. [ 8 ] Mr. Brady's criminal record is not extensive. Aside f rom the drinking and driving convictions, he was as a youth convicted o f robbery in about 1999 and assault sometime be f ore 2004.

It is submitted that there was a sexual aspect to the assault but counsel did not provide in f ormation about that o ff ence or the sexual aspect o f it. In regard to that o ff ence, Mr. Brady was required to attend a Sexual O ff ender Relapse Prevention Program; he did attend brie f ly but is reported not to have engaged in the program. [ 9 ] He is assessed as at medium risk to re-o ff end generally and at medium-high risk to re-o ff end sexually. [ 10 ] He said he has tried very hard to create and maintain a good home f or his partner and f amily and it appears that he has.

He enjoys the support o f f amily, f riends and his employer. [ 11 ] While he pleaded guilty to the charge, his plea came after the preliminary hearing had commenced and after the young girl had attended Court and been prepared to testify. C. POSITIONS OF THE PARTIES [ 12 ] The Crown seeks a sentence o f 12 months incarceration f ollowed by 18 months probation, as well as ancillary orders. In support o f its submission, the Crown notes the age o f the victim and the f act that Mr. Brady has a prior sexually-related o ff ence f or which he did not gain the bene f it o f programming.

Especially given his assessed risk to re-o ff end and the nature o f the o ff ence, the Crown submits that deterrence and denunciation should take priority among the sentencing considerations.

[ 13 ] Mr. Brady submitted that this was an impulsive act and a f leeting touch only. There was no penetration. He reminded me that he does not have a prior sexual o ff ence on his record, although he did admit that the assault on his youth record was sexual in nature. In all the circumstances, he concedes that a custodial sentence is appropriate but argued that it should be ordered to be served in the community by way o f a conditional sentence order. D. ANALYSIS [ 14 ] The Crown proceeded by

summary conviction in this matter. The maximum penalty is 18 months incarceration and, at the time o f the o ff ence, there was no minimum prescribed penalty. However, a review o f cases regarding sentences f or sexual assaults against children shows that a sexual o ff ence o f this nature will attract a custodial sentence and counsel are agreed that this one does as well. The questions are what period o f custody is appropriate and whether that sentence can be served in the community. 1. Conditional Sentence [ 15 ] The prerequisites for the imposition of a conditional sentence of imprisonment are set out in

section 742.1 of the Criminal Code . In July 2009, when Mr. Brady's offence was committed, the

section read as follows: 742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752 , a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 , the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s compliance with the conditions imposed under

section 742.3 . [ 16 ] R. v. Proulx [1] and R. v. Laliberte [2] deal with the process for determining whether a conditional sentence should be imposed. First, the Court must determine, of course, that a custodial sentence is appropriate; as noted above, it is agreed that a custodial sentence is required in this case. It is also apparent that the sentence will not exceed two years since the charge has proceeded summarily and the maximum sentence available is 18 months. [ 17 ] At the date of Mr.

Brady's offence, there was no minimum penalty prescribed and therefore a conditional sentence of imprisonment is available. [ 18 ] Thus, a conditional sentence will be available if I am satisfied that the safety of the community would not be endangered should Mr. Brady serve his sentence in the community and that a sentence served in the community would be consistent with the fundamental purpose and principles of sentencing set out in

section 718 to 718.2. 2. Community Safety [ 19 ] In accordance with Proulx , the safety of the community requires two considerations: the risk that Mr. Brady might re-offend and the gravity of the damage that might ensue if he does. [ 20 ] Mr. Brady was raised in and currently maintains a stable home free of violence and the complications of addictions. He is a father to two children and is a partner in a stable relationship. He is and has been steadily employed since he was 17 years old. He is well connected to his community and well supported by family, friends and his employer. [ 21 ] On the other hand, Mr.

Brady has committed a sexual offence against a young child in circumstances that cause me concern. While he says that the act was unplanned and impulsive, he did not hesitate to take advantage of circumstances when he held the young girl’s legs and realized, as he must have, that he had ready access to her genital area. That he impulsively took the opportunity he created suggests an inclination to such conduct.

[ 22 ] Mr. Brady's risk to re-offend generally has been assessed as medium but to re-offend sexually as medium-high. [ 23 ] Further, I must consider that Mr. Brady has previously been convicted for an offence that involved sexually-related conduct - albeit with a girl near his own age - and was not actively committed to programming to which he was referred. Perhaps now that he is considerably matured, his attitude to rehabilitative programming will be better. [ 24 ] Mr.

Brady came late to accepting responsibility for this offence and has not, even since his guilty plea was entered, taken any steps such as counselling or programming to address his risk factors. In so stating, I am mindful that he completed addictions counselling in 2012; however, the offence before me is not alleged to involve alcohol consumption. [ 25 ] Notwithstanding these concerns, I am satisfied that the risk Mr. Brady poses to the community could be managed by strict conditions and close supervision afforded through a conditional sentence order. [ 26 ] The gravity of the damage that might ensue if Mr.

Brady were to re-offend is difficult to assess. The nature of his sexual offence, while serious, is on the lower end in gravity of this kind of offence and is less likely to cause serious damage than a more serious sexual offence would. There is nothing before me which suggests that he has a pattern of offending or that the nature of his offending might escalate.

Particularly if he is subject to strict conditions including sex offender programming, I am satisfied that the gravity of damage in the event of future offending is also on the lower end of the scale. [ 27 ] For these reasons, I am satisfied that placing Mr. Brady on a conditional sentence would not endanger the safety of the community. 3. Purpose and Principles of Sentencing [ 28 ] The purpose and principles of sentencing, set out in

section 718 of the Criminal Code , are denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, reparation for harm to the victim and community and the promotion of a sense of responsibility in offenders, as well as acknowledgement of harm done. [ 29 ] Additional guidance is found in

section 718.01 which states that for offences involving the abuse of children under 18 years old, primary consideration must be given to the objectives of denunciation and deterrence. Offences involving the abuse of children under 18 years is also stated to be an aggravating factor under section 718(2)(ii.1). Clearly, this factor is of significant influence in this case. [ 30 ] I consider the following to be mitigating factors: a. Mr. Brady was not in a position of trust toward the young girl; b. Mr. Brady did not groom the child but acted impulsively; c. There was only one offence and one incident; d.

There was no violence beyond that inherent in the offence; e. There was no digital penetration; f. Mr. Brady discontinued his actions as soon as the young girl objected; g. Mr. Brady has a stable life, steady work and support in his community; h. Mr. Brady pleaded guilty which, although the young girl was required to attend for preliminary hearing and prepare to testify, relieved her of the necessity of testifying; and i. Mr. Brady expresses remorse for his actions.

[ 31 ] I consider the following to be aggravating factors: a. The offence was committed against an 11 year old girl; b. Mr. Brady has previously been convicted of an offence having a sexual aspect; and c. The offence involved skin-to-skin contact. [ 32 ] The Saskatchewan Court of Appeal, while not foreclosing a conditional sentence for a sexual offence against a child, has not yet upheld one, save in circumstances where a respondent had served a substantial portion of a conditional sentence on restrictive conditions before his appeal was heard.

This is because society's abhorrence of sexual offending against children must be respected by the imposition of sentences that properly denounce the conduct and deter others from similar behaviour. Our Court of Appeal clearly views sexual offences against children as offences of significant gravity, pursuant to

section 718.1. Denunciation, deterrence and recognition of the gravity of the offence have therefore been held generally to require sentences of institutional custody. [ 33 ] I have not found circumstances in this offence or this offender which would render him the exception that the Court of Appeal contemplates. In so concluding, I have considered the cases submitted by counsel for Mr. Brady. [ 34 ] In R. v. Clark, [3] the accused was convicted of three counts of sexual assault and four counts of breach of release conditions.

For each of the sexual assaults, which proceeded summarily and are briefly described as not including actual or attempted penetration but involving an accused who was in a position of trust, the accused was sentenced to 18 months incarceration concurrent. It was ordered that the sentence be served in the community by way of a conditional sentence order. [ 35 ] On appeal to the Court of Queen's Bench, the judge held that the sentencing judge had properly considered the relevant provisions of the Criminal Code and took guidance from Proulx and for this reason, the sentence was upheld.

Unfortunately, the decision provides virtually no information about the nature of the offences for which Mr. Clark was convicted and virtually no information about the judge's reasons for imposing a conditional sentence. [ 36 ] Other than establishing that a conditional sentence can be available in cases involving sexual offences against children, it is difficult to consider or apply the Court's decision in Clark . [ 37 ] In R. v. Chrispen , [4] the Court of Appeal substituted a conditional sentence of imprisonment for one of institutional imprisonment. However, Mr.

Chrispen's offence was against an adult woman, not a child.

Section 718.01 and 718.1 did not apply to his offence as they do in this case. [ 38 ] In R. v. L.T.W. , [5] the accused was convicted of sexual assault for touching and squeezing the breasts of a 13 year old girl who, with her mother, was a customer in his shop. He was sentenced to three months imprisonment, followed by probation. On appeal, the Court of Queen's Bench upheld the length of sentence but ordered that it be served in the community. [ 39 ] The offence in L.T.W. was over clothing and did not involve the child's genitals.

The sentence was significantly influenced by the accused's personal circumstances which included advanced age, ill health and responsibility for the support of a disabled child. These distinguish L.T.W. from the case before me. [ 40 ] Mr. Brady's counsel also provided two cases from Nova Scotia, being R. v. Mebrate [6] and R. v. Calnen . [7] I do not find these helpful. Neither decision provides any information about the offences for which the accused were convicted and, in Calnen , nothing about the accused's personal circumstances. More information about Mr.

Mebrate's circumstances was included in the decision and that information suggests unique circumstances of culture and educational opportunity. [ 41 ] Further, I am, of course, bound by the decisions and guidance of our Court of Appeal. I am not convinced that the Nova

Scotia decisions are consistent with the approach taken in this province. [ 42 ] For these reasons, I am satisfied that a conditional sentence in this case would not be consistent with the purpose and principles of sentencing and particularly, the objectives set out in

section 718.01 and 718.1. Therefore, a conditional sentence is not appropriate in this case. SENTENCE [ 43 ] In determining an appropriate sentence for Mr. Brady, I have considered the factors aggravating and mitigating his offence, the purpose and principles of sentencing (as they were in July 2009 when the offence was committed) and cases and oral submissions of counsel. In addition, I have canvassed various decisions of our Court of Appeal regarding sexual offences against children and sentences therefor. [ 44 ] The Crown seeks a sentence of 12 months incarceration followed by 18 months probation.

My review of relevant cases satisfies me that the sentence sought is appropriate. [ 45 ] Sentences beyond this are generally imposed where: • the victim is a child of the accused or where the accused otherwise stood in a position of trust; • the accused had a significant record, a record for similar offences or a record for offences involving violence; • there were repeated incidents; • the child was required to touch the accused; or • there was actual or attempted penetration, digital or other. None of these factors apply in Mr.

Brady's case. [ 46 ] Relatively few cases support sentences lower than 12 months where the victim was a young child. Those that do are frequently based on particular circumstances of the accused or voluntary steps taken toward rehabilitation or both. Again, these do not apply in Mr. Brady's case. [ 47 ] Therefore, Kristopher Brady will be sentenced to a period of 12 months incarceration, followed by 18 months probation. Dated at Fort Qu'Appelle, Saskatchewan this 24th day of June, 2013. ______________________________ B. Tomkins, J