R. v. M.T., 2018 NLSC 195

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. M.T. , 2018 NLSC 195 Date : October 3, 2018 Docket : 201601G4454 Her Majesty The Queen v. M. T. Restriction on Publication: Pursuant to subsection 276.3(1) of the Criminal Code , the contents of the application made under

section 276.1 , the evidence taken, the information given and the representations made at that application, or upon a hearing pursuant to

section 276.2, the decision of the justice under subsection 276.1(4), and the determination made and the reasons provided under

section 276.2, shall not be published, broadcast or transmitted in any manner. AND: Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published, broadcast, or transmitted in any manner. Before: Justice Robert P. Stack Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: September 11, 2018 Appearances:

Dana Sullivan Appearing on behalf of the Crown Mark Gruchy Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. M.T., 2018 NLSC 131; R. v. Moorcraft, (NL CA), [1985] 160 A.P.R. 80, 54 Nfld. &P.E.I.R. 80 (Nfld. C.A.); R. v. P. (D.E.D.), (NL SC), [2002] 214 Nfld. & P.E.I.R. 234, 55 W.C.B. (2d) 361,(N.L.S.C.(T.D.)); R. v. Young, (NL SC), [1994] 121 Nfld. & P.E.I.R. 227, 24 W.C.B. (2d) 416 (Nfld. S.C.(T.D.)); R.v. Bruno, 2016 ABCA 283; R. v. Sutherland, 2016 ONCA 674; R. v. Alexander, 2013 ABCA 231; R. v. Quvianaqtuliaq, 2017 NUCJ 1;R. v. Shackleton, 2017 ONSC 2998; R. v.

F.(G.M.), 2016 MBQB 208; R. v. Richards, 2016 ONSC 2940; R. v. Gibbons, 2007 MBPC 33;R. v. Purcell, 2017 NLTD(G) 82; R. v. McLean, 2014 PECA 10; R. v. Lausberg, 2013 ABCA 72; R. v. Turtle, 2010 ABCA 334; R. v.McCarthy, 2005 NLCA 36; R. v. Riggs, 2016 NLTD(G) 214; R. v. Peddle, [2012] 333 Nfld. & P.E.I.R. 348, 104 W.C.B. (2d) 1063 (NLProv. Ct.); R. v. Hunt, 2007 NLTD 204; R. v. Boudreau, 2018 NBCA 14; R. v. Schneider, 2017 ONCJ 444; R. v. Best, 2014 NLTD(G)108; R. v. M., 2017 BCSC 1234; R. v. N. (B.D.), 2016 ONSC 1740; R. v. Smith, (ON CA), [1999] 123 O.A.C. 228, 43W.C.B. (2d) 187 (Ont. C.A.); R. v.

Smith, 2015 ONSC 3330; R. v. Burke, 2014 BCSC 2082; R. v. McCarthy, 2004 NLSCTD 84; R. v.Nolan, 2009 ONCA 727; R. v. H. (J.), 2012 NLTD(G) 174; R. v. McKinnon, 2011 ONSC 3160; R. v. P. (G.W.), 2006 NLTD 136; R. v.Squires, 2012 NLCA 20; R. v. Huson, 2009 BCSC 1825; R. v. Moise, 2015 MBQB 37; R. v. Q. (M.), 2012 ONCA 224; R. v. A. B., 2015NLCA 19; R. v. Hutchings, 2012 NLCA 2; R. v. A.T.S., 2004 NLCA 1. STATUTES CONSIDERED: Canada Evidence Act, R.S.C., 1985, c. C-5; Criminal Code of Canada, R.S.C. 1985, c. C-46; SexOffender Information Registration Act, S.C. 2004, c. 10.

REASONS FOR JUDGMENT Stack, J.: INTRODUCTION [1] Following a trial, the Offender was convicted of the following offences against his former spouse: a. Count No. 1 - assault causing bodily harm, contrary to

section 267(

b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46; b. Count No. 5 - sexual assault with a weapon, contrary to section 272(1)(

a) of the Criminal Code; c. Count No. 7 - assault causing bodily harm, contrary to

section 267(

b) of the Criminal Code; d. Count No. 8 - uttering threats to cause death or bodily harm contrary to

section 264.1(1)(

a) of the Criminal Code; and e. Count No. 10 - pointing a firearm at the Victim, contrary to section 87(1) of the Criminal Code. [2] After changing his plea to guilty, the Offender was also convicted on Count No. 4 - careless storage of a firearm, contrary tosection 86(1) of the Criminal Code. facts [3] The facts upon which I found the Offender guilty of each of the offences are set out in detail in R. v. M.T., 2018 NLSC 131,and are briefly summarized as follows. [4] The Offender and the Victim began a relationship when she was fifteen years old and he was approximately 19.

They had ason when the Victim was 16 or 17. They began living together at some point and eventually married. Theirs was always a challengingrelationship, marred by substance abuse by both parties. The Offender is an alcoholic who has had an addiction to OxyContin and whohas regularly used marijuana, cocaine and Valium. The Victim is a heavy drinker of alcohol. She also takes sleeping pills and an anti-depressant. [5] The Offender, who invoked

section 5 of the Canada Evidence Act, R.S.C., 1985, c. C-5, was, at the times material to these

offences, a trafficker in marijuana in large quantities and for large amounts of money. [ 6 ] Beginning in 2013, the precarious lifestyle and relationship enjoyed by the parties began to unravel. This may have been precipitated by the tragic death of the Offender’s brother in a car accident. The Offender became depressed and was unable to function properly thus affecting his ability to earn a living from the drug trade.

He also became more dependent on drug use and, ultimately, resumed consuming alcohol in May of 2015. [ 7 ] I found that leading up to and following his resumption of alcohol abuse in May of 2015, the Offender appears to have had some kind of major psychological set-back. In addition to his depression and the violent behaviour that forms the basis of the charges against him, around the time of the alleged sexual assault he also wrote bizarre and self-aggrandizing messages on the wall of the spare bedroom in which he often slept in the matrimonial home.

He wrote things such as “[I am] God”, “No one only us”, “Pray”, “Don’t pray”, “There is no devil”. The Victim asked the Offender why he did that and he responded, “Because I am”; she asked, “You’re God?” and he answered, “Yes, I am”. She testified that he had a really strange laugh when he said that. Assault causing bodily harm [ 8 ] On the night of June 7, 2015, after a night of drinking alcohol, the Offender assaulted the Victim by choking and attempting to smother her. He caused significant bruising to her face, chest, legs and arms. He kneeled on her, restrained her and assaulted her.

He broke two of her ribs. The Offender was found guilty of assault causing bodily harm. Sexual assault with a weapon and assault causing bodily harm [ 9 ] Another night, after returning to the matrimonial home, the Offender sexually assaulted the Victim by inserting a dildo into her vagina. He threatened her with a knife that he used to cut her clothing. In the course of doing so he cut her finger which caused significant bleeding and left a scar. After she was cut the Offender stopped threatening the Victim with the knife but continued to threaten her with the dildo.

He wanted oral sex and said that if she did not perform it he would stick the dildo into her anus. I found that the cut to her finger minimally met the definition of bodily harm. The Offender was therefore found guilty of sexual assault with a weapon as well as assault causing bodily harm. The firearms offences [ 10 ] As mentioned, the Offender pleaded guilty to careless storage of a firearm, contrary to section 86(1) of the Criminal Code of Canada , R.S.C. 1985, c. C-46.

In essence, a shotgun was kept in the closet of the master bedroom of the house that the offender and the Victim shared. [ 11 ] The other firearm related offence is more serious, however. One day in the summer of 2013 the Victim and the Offender had been arguing. She was in the kitchen and the Offender went into the bedroom and came out with a handgun saying, “I’m going to shoot you”. He chased her into the yard with the gun and finally she turned around and said, “Well just shoot me”. Afterwards he said to her, “Your nagging almost got you shot, you know”.

The Offender chased the Victim, pointing the gun at her, and at least two times said that he was going to shoot her. [ 12 ] The Offender was found guilty of uttering threats to cause death or bodily harm, contrary to

section 264.1(1) (

a) of the Criminal Code , and of pointing a firearm at the Victim, contrary to section 87(1) of the Criminal Code . the pre-sentence report [ 13 ] At the instance of the Court a Pre-Sentence Report (PSR) was prepared. I will go through it in some detail. Social History [ 14 ] The Offender was born in 1973 and was brought up in a small Newfoundland community.

He described his family life positively and stated there was never any violence or abuse in the family home and he had good relationships with his brothers and parents who all attended religious services regularly. [ 15 ] The Offender reported that he began to use alcohol and cannabis during his teenage years but this did not pose any problems for him initially. When he was about 19 years of age his then 16 or 17 year-old girlfriend, the Victim, became pregnant resulting in the birth of their son who is now 25 years of age.

The Offender recalled that after this time he was under a lot of pressure, feeling trapped with the responsibilities of parenthood. In response, his alcohol use increased over the next couple of years. [ 16 ] In 1998 or 1999 the Offender and the Victim moved to St. John’s with their son. The Offender stated that he began to sell cannabis marijuana as the major source of income over the next few years. He recalled that he and his spouse lived an extravagant lifestyle with an expensive home, sports cars and motorcycles, as well as regularly eating out at expensive restaurants.

His father acknowledged his son’s lavish lifestyle. [ 17 ] The Offender claims that arguments with the Victim became more frequent as a result of her excessive spending habits and her daily alcohol abuse, along with his own stressors related to leading a criminal lifestyle and experiencing alcohol and opiate addictions himself. He reported that these stressors were compounded after his son’s 16 year-old friend, who had spent a lot of time with the family for many years, died by suicide. The Offender reported that this event negatively affected the family and the Victim began to use alcohol more frequently.

He acknowledged that he developed an addiction to opiates and struggled with anxiety and depression. He claims that in 2011 he began to wean off opiates and was making progress in addressing his addictions. He had some success with attending Alcoholics Anonymous in the past and reported he had abstained from alcohol use for many years. However, the tragedy of his brother being killed in an automobile accident in 2013 started a spiral of depression and anxiety which was exacerbated by renewed alcohol and drug abuse.

[ 18 ] The Offender stated that he sought medical help and was prescribed antidepressants and sleep medication. He claims that he stopped use of sleep medication in 2014, ceased illegal drug use in 2015, and has not taken any antidepressant medication since 2016. The author of the PSR has not been able to confirm this with the Offender’s former physician. [ 19 ] The Offender added that after the death of his brother he made a decision to stop selling illegal drugs, but in or around 2013 his crime partner and good friend for many years stole about 76 pounds of cannabis from him, causing him financial problems.

The Offender claimed that the Victim put pressure on him to rectify the situation by becoming violent with the man but he refused to do so. [ 20 ] After being charged with the current matters before the Court, the Offender returned home to his family home around the bay. His parents had legally separated and his mother is struggling with dementia.

His father reported that the Offender “has been very caring and compassionate with his mother, who has Alzheimer’s.” The Offender has spent time cooking meals for his mother and looking out to her general well-being until she was placed in a senior citizen’s home a few months ago. [ 21 ] A woman whom I refer to as A.B. has been in an intimate relationship with the Offender since July of 2017. She described their relationship as close. She has observed him providing care for his mother.

A.B. reported to the author of the PSR that she is aware of the Offender’s past marital problems and criminal lifestyle but stated that she has never observed him using alcohol or illegal drugs. She stated, “[The Offender] has been a gentle and warm individual. When we have a difference of opinion he just goes out doors or watches TV. He has never been violent or aggressive. When he talks to his father, mother, or brother he’s even keel.” [ 22 ] The Offender’s son reported that his family was never without food or material things when he was being raised as a child and teenager.

He lived with his parents until they separated in 2015 and then lived with his mother until a year ago. He described the Victim as, “An active alcoholic; in denial and not a nice person.” He reported that his parents would argue frequently and that his father was physically violent at times when he was drinking alcohol. The Offender’s son reported that his mother was not physically violent but mentally abusive. [ 23 ] The Offender acknowledges that he has experienced anxiety throughout his life but he believes that his current anxiety and depressive feeling are to be expected given his current life predicament.

Criminal Record [ 24 ] In 2016 the Offender was convicted of a breach of an undertaking in relation to the charges that are currently before the Court. Other than that, his only other conviction was in 1999 for a drug related offence. Education and Employment [ 25 ] The Offender completed grade 12 in 1991. He attended college and completed a millwright trade in 1997 or 1998. Nevertheless, he reported that his main source of income had been through selling cannabis between about 1999 and 2013.

He told the author of the PSR that since 2013 he has not been selling drugs or employed very much, and has lived on the proceeds of his past criminal lifestyle. Risk Assessments Level of Service/Case Management Inventory [ 26 ] The PSR reports that the Level of Service/Case Management Inventory (LS/CMI) (Andrews, Bonta and Wormith) is a risk/need assessment tool which assesses the research literature’s “central eight” risk/ need factors.

These are: 1) Criminal History. 2) Education/ Employment. 3) Family/ Marital. 4) Leisure/ Recreation. 5) Companions. 6) Alcohol/ Drug Problem. 7) Pro-criminal Attitude/ Orientation. 8) Antisocial Pattern. [ 27 ] The results of this inventory are used in formulating a case management plan for an offender including level of supervision and the characteristics that contribute to such risk which may be addressed through various modes of intervention. [ 28 ] The LS/CMI was administered on the Offender and it was determined that his identified risk/needs factors equate with offenders who are deemed to be a medium risk to reoffend for general offences. [ 29 ] The risk factors identified in the assessment are: education/employment, leisure/recreation, and pro-criminal attitude.

In addition, the issue of domestic violence is significant. During interviewing with the author of the PSR, the Offender was not prepared to discuss his current offences stating he has been advised not to do so by legal counsel. As a result, the author reports that it appears he does not accept responsibility for actions currently before the Court although he was respectful during interviewing. Static 99

[30] In consideration of the particular risk factors associated with potential for sexual reoffending, the Static 99 assessment tool(Hanson and Andrews, Department of the Solicitor General Canada, 2001) was also administered on the Offender in order to determinethe level of risk that he presents to the community with respect to relapse of sexual offending behaviour or deviance.

He was deemed tobe at low risk to commit another sexual offence. [31] The identified risk factor which influences sexual recidivism that was determined to contribute to this level of risk for theOffender is limited to non-sexual violence during the commission of the offences.

Contributing to the assessed low risk for further sexualoffending are the following: having lived with a lover for more than two years; being older than 25 years of age; no prior non-sexualviolence convictions; no prior sexual offence convictions; no convictions for non-contact sexual offences (e.g. voyeurism); no unrelatedvictims; no stranger victims; and, no male victims. [32] It is the professional opinion of the author of the PSR that the issue of domestic (including sexual) violence would require anassessment beyond the scope of the PSR.

Available treatment services (including psychiatric) relative to the risk/needs of the Offender [33] The PSR reports that the Offender’s sexually violent behavior may be addressed through Sex Offender Moderate IntensityProgram (SOMIP) while incarcerated at Her Majesty’s Penitentiary. In the community he could participate in the CommunityMaintenance Program – Sex Offender offered through the John Howard Society at St. John’s.

He would need to be assessed by theagency prior to acceptance into such programs. [34] The Offender’s education/employment needs could be addressed through referral to a career counsellor at the Department ofAdvanced Skills, Education and Labor. Employment could be achieved if he were to pursue a business opportunity with his father. Healso reported that he may be able to work on a contractual basis in the oil industry.

Suitability for service of a sentence in the community or community service [35] The author of the PSR reports that the Offender’s lack of willingness to discuss the matters before the Court and his denial ofcommitting sexually inappropriate actions against his estranged spouse are of concern.

His lack of acceptance of responsibility for hisactions leads the author to suggest that he is not a suitable candidate for probation or other community supervision at this time. [36] Similarly, the PSR notes that it is the policy of the Corrections & Community Services Division of the Department of Justiceand Public Safety that individuals with such offending behavior are not recommended for Community Service work. LETTERS OF SUPPORT [37] Letters to the Court were submitted on behalf of the Offender’s father, his son and his new romantic partner.

They all stressthat the Offender is no longer abusing alcohol or other substances and the commitment and care he has bestowed on his mother whosuffers from Alzheimer’s disease. The letters are very positive about the Offender’s demeanor and his non-confrontational approach toresolving any conflicts that arise in his relationships. victim impact statement [38] The Victim provided a victim impact statement in which she described being left with nightmares, anxiety and panic attacksbecause of the actions of the Offender.

She reports that she has availed of counselling and has been diagnosed with acute anxiety andpost-traumatic stress disorder. The crimes committed by the Offender have had a profound impact on her personal sense of security andwell-being. CROWN CASES [39] The Crown has submitted a number of sentencing authorities. [40] R. v. Moorcraft, (NL CA), [1985] 160 A.P.R. 80, 54 Nfld. & P.E.I.R. 80 (Nfld.

C.A.), is an older casewhere the offender entered the victim’s apartment, threatened her with a knife, choked her to unconsciousness and sexually assaulted her.On appeal by the Crown, his sentence was increased to five years. [41] In R. v. P. (D.E.D.), (NL SC), [2002] 214 Nfld. & P.E.I.R. 234, 55 W.C.B. (2d) 361, (N.L.S.C.(T.D.)), theoffender pleaded guilty to using a knife in the sexual assault of his common law spouse and a separate sexual assault on her daughter.O’Regan, J. imposed a sentence of three years for the sexual assault with a weapon and two years for sexual exploitation.

It seems thatcredit for six and a half months that the offender was in custody was taken into consideration, but it is not exactly clear from the decisionhow this was applied to the sentences. [42] In R. v. Young, (NL SC), [1994] 121 Nfld. & P.E.I.R. 227, 24 W.C.B. (2d) 416 (Nfld. S.C. (T.D.)), theoffender had been convicted on 15 counts of sexual and non-sexual assaults against eight victims over a four year period. All of thevictims were strangers to the offender.

For non-consensual intercourse with violence, Mercer, J. would have sentenced the offender tofour years in prison but for the principle of totality (which I will discuss below). [43] R. v. Bruno, 2016 ABCA 283, involved the dismissal of an appeal by an aboriginal offender who was sentenced at trial to tenyears in prison for sexual assault with a weapon. The assault was upon a sixteen year-old and was particular violent and prolonged. [44] R. v. Sutherland, 2016 ONCA 674, was a case where the Ontario Court of Appeal upheld a sentence of six years for anoffender.

The offender banged the victim’s head against a wall causing her an injury. Then, exhorting compliance with a knife, he had

sexual intercourse with her. [ 45 ] R. v. Alexander , 2013 ABCA 231 , is another Alberta Court of Appeal decision. There, the offender met a sex trade worker who he sexually assaulted while holding a knife. He also stole money from the victim. On appeal, the sentence was reduced from six years to five years. [ 46 ] R. v. Quvianaqtuliaq , 2017 NUCJ 1 , involved an intoxicated aboriginal offender who had sex with a woman while threatening to shoot her with a long gun. The offender had a lengthy criminal record and was on probation at the time.

Based upon a joint submission, the offender was sentenced to 72 months for the sexual assault with a weapon. [ 47 ] In R. v. Shackleton , 2017 ONSC 2998 , the offender and the victim were in an intimate relationship. The offender repeatedly assaulted her, threatened to kill her and sexually assaulted her. One incident involved the complainant being duct taped for seven to eight hours while sexual assaults occurred. The offender was sentenced to eight years for forcible confinement (less credit for time served), five years for sexual assault and two years for assault causing bodily harm. [ 48 ] R. v.

F.(G.M.) , 2016 MBQB 208 , involved an aboriginal offender who seriously assaulted his romantic partner and who held a knife to her while committing a sexual assault. For the sexual assault with a weapon he was sentenced to nine years. [ 49 ] R. v. Richards , 2016 ONSC 2940 involved an offender who, among other things, used a knife in the commission of a sexual assault against a sex worker who asked for payment in advance, for which he was sentenced to six years. [ 50 ] R. v.

Gibbons , 2007 MBPC 33 , is a provincial court decision from Manitoba where the offender was sentenced to 42 months for sexually assaulting his girlfriend, stabbing her in the thigh, and choking her until she was unconscious. [ 51 ] In R. v. Purcell , 2017 NLTD(G) 82, following a guilty plea, I sentenced an offender to 30 months’ imprisonment and 30 months of probation for assault causing bodily harm against his intimate partner. The injuries were horrific, caused principally by the offender biting her head and face. The offender suffered from post-traumatic stress disorder and major depression. [ 52 ] R. v.

McLean , 2014 PECA 10 , saw a sentence of two years less a day reduced to 14 months for assault causing bodily harm against the offender’s romantic partner. [ 53 ] R. v. Lausberg , 2013 ABCA 72 , involved an offender with no previous criminal record who pleaded guilty to assault causing bodily harm against his former long-term partner after the relationship ended. In increasing the sentence to two years less a day, the Alberta Court of Appeal emphasized the seriousness of the assault and the fact that it occurred in a post-relationship domestic context. [ 54 ] In R. v.

Turtle , 2010 ABCA 334 , the Alberta Court of Appeal lowered a sentence to 32 months where the offender attacked and injured his paraplegic common law spouse and threatened to kill her. The offender’s guilty plea had not been taken into account by the trial judge. [ 55 ] R. v. McCarthy , 2005 NLCA 36 , saw the Court of Appeal increase the offender’s sentence to 40 months (reduced from 48 months on the basis of totality) for pointing a firearm, uttering threats and eight counts of assault against his common law spouse. [ 56 ] R. v.

Riggs , 2016 NLTD(G) 214, involved a man with a long history of alcohol abuse relapse after 12 months. After drinking all night he went to his girlfriend’s home and loaded a shotgun. He held it against her neck and threatened and assaulted another victim with the shotgun. A 15 month sentence was imposed. [ 57 ] R. v. Peddle , [2012] 333 Nfld. & P.E.I.R. 348, 104 W.C.B. (2d) 1063 (NL Prov. Ct.) is a decision of the Newfoundland and Labrador Provincial Court. Following a guilty plea, the offender was sentenced to seven years’ for kidnaping using a firearm, aggravated assault and pointing a firearm. [ 58 ] R. v.

Hunt , 2007 NLTD 204 , involved an 18 year-old who pleaded guilty to committing an armed robbery on a chicken takeout in rural Newfoundland. He was convicted of robbery, pointing a firearm in the commission of an offence, and other offences. In respect of the pointing a firearm offence the offender was sentenced to nine months. [ 59 ] R. v.

Boudreau , 2018 NBCA 14 , saw a 50 year-old first-time offender who pleaded guilty sentenced to four years for a nighttime home invasion during which, while armed with a loaded shotgun, he confined his former spouse and terrorized her with death threats and acts of intimidation and violence. [ 60 ] R. v. Schneider , 2017 ONCJ 444 , involved a man who pointed a sawed off shotgun at his romantic partner with whom he was in a troubled relationship. He pulled the trigger but the gun was not loaded.

He pleaded guilty to pointing a firearm, possession of a firearm while prohibited, possession of a loaded prohibited firearm and other charges. He had prior convictions for domestic violence. He was sentenced to three years for pointing the firearm emphasizing that exemplary sentences may be imposed for “truly criminal conduct” in relation to firearms. DEFENCE CASES [ 61 ] The Defence also submitted a large number of cases for my consideration. [ 62 ] R. v. Best , 2014 NLTD(G) 108, involved an offender who assaulted his common law partner on four occasions.

The most serious was a punch to the face which drove the victim’s teeth through her upper lip leaving a permanent scar. An aggravating factor was that the offender had three prior convictions for against his former girlfriend. He was sentenced to none months for assault causing bodily harm. [ 63 ] R. v. M. , 2017 BCSC 1234 , involved the offender committing sexual assault, assault with a weapon, uttering threats and assault

against his former common law spouse. The former three offences occurred at the same occasion where the offender threatened to hurthimself with a knife, forced the victim to have sex with him and he made threats against her and her dog. The assault occurred threeweeks earlier when the offender caused the victim to suffer a bloody nose and he pulled out some of her hair. The offender had a lengthycriminal record and a psychiatric history that made him a high risk to reoffend.

He was sentenced to two years for the sexual assault, sixmonths concurrent for assault with a weapon, 60 days concurrent for uttering threats and five months concurrent for assault. [64] In R. v. N. (B.D.), 2016 ONSC 1740, the offender pleaded guilty to sexual assault with a weapon and forcible confinementagainst his estranged wife. She was lured to the matrimonial home where her hands and feet were bound with a rope, she was whippedwith a leather belt, her pubic hair was shaved and the offender forced intercourse on her.

In sentencing the offender to two years’imprisonment, the sentencing judge noted that the mitigating factors included that this was a first time offender with a supportive familywho was not likely to reoffend – even the victim was prepared to speak well of him. [65] R. v. Smith, (ON CA), [1999] 123 O.A.C. 228, 43 W.C.B. (2d) 187 (Ont. C.A.), involved a Crown appealagainst sentence. The offender pleaded guilty to one count of pointing a firearm, two counts of assault causing bodily harm, and threecounts of assault. The trial judge sentenced him to a nine month conditional sentence.

The offences were perpetrated against his spouseover several years. He displayed remorse and sought help before being charged. Because general deterrence remained a primconsideration, especially in a case spousal abuse, however, on appeal the sentence was changed to nine months of incarceration. [66] In R. v.

Smith, 2015 ONSC 3330, following a jury trial, the offender was sentenced to a global sentence of five years’imprisonment including four years for aggravated sexual assault, four years for two counts of sexual assault with a weapon, six monthsfor each common assault conviction, six months for threatening to cause death, and one year for assault causing bodily harm. [67] R. v. Burke, 2014 BCSC 2082, involved an offender who forced his common law partner to degrade herself. He threatened tokill her and painful anal sex was forced upon her. A knife and a belt were used in the attack.

The offender was convicted of two counts ofassault, two counts of threatening, two counts of assault with a weapon, one count of sexual assault, and one count of assault causingbodily harm. The offender had nine prior convictions, including for violent offences. Including sexual assault with a weapon. Hepresented as a high risk for future intimate partner violence and was sentenced to six years’ imprisonment. [68] R. v. McCarthy, 2004 NLSCTD 84, saw an offender sentenced to 23 months’ incarceration for pointing a firearm and eightcounts of assault against his common-law wife.

He had tried to convince the court that the victim fabricated or exaggerated herallegations and that she had some sort of psychological disorder. [69] R. v. Nolan, 2009 ONCA 727, saw an appeal from sentence allowed where the offender pleaded guilty to sexual assault andforcible confinement and was initially sentenced to 100 days in custody and probation for one year. He tied his wife down on the bed,covered her mouth with duct tape, punched her in the face, cut her underwear off and threatened to cut her vagina. An appropriatesentence was found to be 21 months. [70] In R. v.

H. (J.), 2012 NLTD(G) 174, following a trial, the offender was sentenced to six months in custody for forcibleconfinement, six months for assault causing bodily harm, and 33 months for sexual assault, to be served concurrently. The Offender hadno prior record. The victim had just ended her relationship with him. The sentencing judge noted that in the circumstances of that case asentence in the low end of the range for sexual assault was appropriate to achieve the principle of specific deterrence. [71] In R. v.

McKinnon, 2011 ONSC 3160, the 20 year-old offender, with no previous record, pleaded guilty to assault, utteringthreats, pointing a firearm, possession of a firearm for a dangerous purpose and mischief. While intoxicated, the offender grabbed hisgirlfriend, pointed a handgun at her and struck her in the face with a rifle butt. When the police arrived he threatened to kill the officersand himself. He discharged firearms inside the residence causing damage. The offender had a strong academic record and soughtcounselling. He was sentenced to a 90 day global intermittent jail term.

The lack of premeditation, brief nature of the assaults, influenceof alcohol and lack of serious injury to the victim were seen by the trial judge as mitigating factors. [72] In R. v. P. (G.W.), 2006 NLTD 136, a sentence of 28 months in custody was found to be appropriate following a finding of guiltby a jury on five counts of assault, one count of assault with a weapon, one count of assault causing bodily harm, one count of sexualassault, and one count of uttering a threat, all against the offender’s wife.

Because the offender was given four months’ credit for remandtime, he was also placed on probation for three years. [73] In R. v. Squires, 2012 NLCA 20, following an appeal, the following sentences were imposed: three months for commonassault; 12 months for assault causing bodily harm; thirty months for each of two convictions of sexual assault, all to be servedconcurrently. Applying totality, however, the sentence was reduced to three years and three months’ imprisonment. The victim was aromantic partner of the offender. [74] R. v.

Huson, 2009 BCSC 1825, involved a guilty plea in relation to offences against the offender’s then spouse, includingassault, pointing a firearm, uttering a threat, and using a firearm while attempting to commit an indictable offence. He was sentenced toconcurrent sentences of ten days in custody for assault, 45 for pointing a firearm, 21 days for uttering threats, and eight months for usinga firearm. He was also placed on probation for two years. [75] In R. v. Moise, 2015 MBQB 37, the offender and the victim were in an on-again off-again relationship. The victim told theoffender that she was going to leave him.

He threatened to kill her niece and held a knife to her throat. After they broke up, the offenderpunched her in the face. On another occasion he forced intercourse on her and punched her several times when she resisted. He wassentenced to four and a half years’ imprisonment. The victim suffered significant emotional trauma. The 28 year-old offender hadsupported himself by selling rugs. Concurrent terms of four years were imposed for sexual assault, assault causing bodily harm, anduttering threats.

Concurrent term of two years was imposed for assault causing bodily harm and 18 months each for assault with aweapon and possession of a weapon for a dangerous purpose. [76] R. v. Q. (M.), 2012 ONCA 224, was an appeal from sentence for an offender who was convicted of the following offencesagainst his spouse: sexual assault, two counts of assault with a weapon, and common assault. A global sentence of five years in custody

was found not to be unfit. analysis Principles of Sentencing [ 77 ] The principles for imposing sentencing are set out in sections 718.1 to 718.2 of the Criminal Code and are well known. In respect of sexual assaults, the Newfoundland and Labrador Court of Appeal has provided updated sentencing guidance in R. v. A. B. , 2015 NLCA 19 , by listing several factors to be considered in respect of the particulars of the offence. To those factors, I would add the presence of any other factor specifically referred to in

section 718.2 of the Criminal Code . Most of these additional factors are likely covered in the A.B. list, but others may not be. For certainty, therefore, I would expand the list of factors to be considered to refer to

section 718.2 so that in imposing sentence I will consider such other factors as: whether the offence was motivated by racial prejudice; whether the offender abused his or her spouse or common-law partner; whether the offender abused a person under the age of eighteen years; whether the offence was committed in the context of a criminal organization; whether the offence was a terrorism offence; whether the offence was committed while the offender was subject to a conditional sentence order or released on parole, statutory release, etc.; or whether the offender is an Aboriginal person. [ 78 ] I will therefore consider the following factors in imposing sentence to the extent that they have application to the matters before me: 1) Whether the offender was in a position of trust or authority towards the victim; 2) The age of the victim; 3) Any disparity in the ages of the offender and the victim; 4) Whether there was manipulation of the victim, including grooming; 5) Any planned or calculated conduct by the offender; 6) Knowledge of and acting on the victim’s vulnerability; 7) Any continuation of illegal conduct after being warned; 8) Any particular impact on the victim; 9) Any failure by the offender to accept responsibility; 10) The previous criminal record of the offender, if any; 11) The offender’s prospects of rehabilitation and the risk of re-offending; 12) Any insights provided by the Pre-Sentence Report; 13) Whether there was a guilty plea; 14) The willingness of the offender to participate in counselling or treatment programs: and 15) Any other factor specifically referred to in

section 718.2 of the Criminal Code . [ 79 ] The foregoing factors are not exhaustive but will form the basis for analysis in most circumstances. I will identify and address each of the relevant factors in turn. Whether the Offender was in a position of trust or authority towards the Victim [ 80 ] The Offender and the Victim were in a tumultuous marriage. Nevertheless, there is an inherent trust that spouses share. This factor, however, is covered by

section 718.2 (a)(ii) of the Criminal Code , which I will discuss below. Any planned or calculated conduct by the Offender [ 81 ] There was no suggestion that the assaults or other criminal activities here were planned or calculated. Knowledge of and acting on the victim’s vulnerability [ 82 ] Other than the inherent vulnerability a person may have to their spouse, there was no specific preying on the Victim by the Offender. Any particular impact on the Victim [ 83 ] We have seen that the crimes have had a profound impact upon the Victim.

Any failure by the Offender to accept responsibility [ 84 ] The Offender continues to deny responsibility and to blame the Victim for his plight. His denial of culpability and his not guilty pleas are not aggravating factors, however. They simply do not amount to a mitigating factor.

The previous criminal record of the Offender, if any [ 85 ] The Offender has no record of domestic or other violent criminal behaviour. The Offender’s prospects of rehabilitation and the risk of re-offending [ 86 ] Under the LS/CMI assessment the Offender was determined to be at a medium risk level for general offences. The Offender was assessed as a low risk potential for sexual reoffending according to the Static 99 assessment tool. [ 87 ] The Offender can be rehabilitated. He has a plan for when he is released from prison.

If he can manage his substance addictions, there is no reason why he cannot become a contributing member of society. Any insights provided by the Pre-Sentence Report [ 88 ] There were no particular insights provided by the PSR. The Offender’s life seems to have been uneventful as a young person. His circumstances became more precarious as he began abusing drugs and alcohol and entered the drug trafficking trade.

It appears that events in and around 2013, including the deaths of some people close to him, became the impetus for a downward spiral that culminated in the crimes for which the Offender is being sentenced. Overall in the PSR the Offender tells the same tales that he told at his trial – denying culpability and blaming the Victim. [ 89 ] Further insights were provided by letters written on behalf of the Offender by his father, his son and his current girlfriend as outlined above. Whether there was a guilty plea [ 90 ] As we have seen, that there was no guilty plea is not an aggravating factor.

Every accused person has the right to have the Crown prove its case against him or her. The willingness of the Offender to participate in counselling or treatment programs [ 91 ] The Offender has not agreed to participate in any counselling or treatment programs. Because he has been advised by his lawyer not to discuss the matters that I am dealing with, I have not taken this factor into account. Any other factor specifically referred to in

section 718.2 of the Criminal Code [ 92 ] Here, the Offender and the Victim were in an intimate relationship. That is an aggravating factor pursuant to

section 718.2 (a)(ii) of the Criminal Code . The sentence imposed must be one that sends a message that the courts will strive to protect anyone who makes himself or herself vulnerable to an intimate partner. This principle applies whether or not a victim is in a position of dependency on an offender, although its effect will depend on the particular circumstances of the relationship. Often domestic crimes, occurring as they do behind the closed doors of a person’s home, do not get reported. In this case, but for their son calling 911, these offences may never have come to light.

SENTENCING WITH RESPECT TO THE SPECIFIC CHARGES Sexual assault with a weapon and assault causing bodily harm [ 93 ] In respect of the sexual assault with a weapon and assault causing bodily harm which occurred in July of 2015, the principle consideration for sentencing is deterrence – both of this Offender and of others in the community who may inflict violence upon their intimate partners. [ 94 ] Because the Offender is to be sentenced on a number of offences, the principles set out in R. v. Hutchings , 2012 NLCA 2 , apply.

The convictions for sexual assault with a weapon and assault causing bodily harm both arise out of the same “criminal adventure”, to use the unfortunate phrase developed in the case law. This invokes the sentencing principle that a sequence of events involving the same victim, although resulting in separate convictions, normally also results in those sentences being served concurrently ( R. v. A.T.S. , 2004 NLCA 1 ).

Such a result is not meant to minimize the severity of the matters before me or their effect upon the Victim, or to suggest that the Offender should not be punished for them. [ 95 ] These were serious crimes committed against a vulnerable person. The Victim found herself unsafe in her own bed. The assault was not brief and had elements of terror. It is difficult to imagine the trauma that would come from a person brandishing a knife and a sex toy and demanding sex under threats.

The cutting of the Victim’s clothing and of her finger must have enhanced the terror, as would the threat to inflict a more invasive sexual assault if the Victim did not comply with the Offender’s demands for fellatio. [ 96 ] We have seen from the cases submitted that for a penetrative sexual assault with a weapon sentences can range from three to five years, and can be as high as seven, depending on the circumstances.

The use of a weapon is not an aggravating factor, however, as it is inherent in the charge – but it does mean that the sentence imposed should be higher than for a similar sexual assault where no weapon was used. The Offender’s crimes in this regard were serious but they are far from the worst outlined in the cases – whether as to violence or depravity. [ 97 ] Aggravating factors include the level of violence used, the progression of offences, and that these offences were perpetrated against the Offender’s wife.

Mitigating factors include that these are the Offender’s first convictions for any type of violent crime and that he has a supportive family and girlfriend. [ 98 ] The Crown is seeking a sentence of six years for the sexual assault with a weapon and a sentence of thirty days, to be served

concurrently, for the assault causing bodily harm. Counsel for the Offender submits that a sentence for the sexual assault with a weapon of from four to five years would be appropriate and that any sentence for assault causing bodily harm be ordered to be served concurrently. [ 99 ] I am satisfied that a custodial sentence of five years for sexual assault with a weapon is appropriate for this Offender, given the gravity of the offence and the responsibility of the Offender.

Although the Offender was going through a difficult time when the offences occurred, and substance abuse played a factor in their commission, these do not derogate from his culpability. [ 100 ] As to the assault causing bodily harm arising from the Victim’s cut finger, I found that it minimally meets the definition of bodily harm. Furthermore, it was part of the sexual assault with the weapon and appears to have been inflicted inadvertently. I am therefore prepared to accede to the Crown’s request for a sentence of one month in custody, to be served concurrently with the sentence for sexual assault with a weapon.

Assault causing bodily harm [ 101 ] The assault upon the Victim in June of 2015 was a serious one and the injuries, although not life-threatening, were severe. The same aggravating and mitigating factors apply. Considering the cases referred to above, a sentence of one year in custody as recommended by the Crown is appropriate. [ 102 ] Although not committed on the same night as the sexual assault with a weapon, which occurred the following month, I am satisfied that the crimes committed on these two occasions are sufficiently clustered so as to warrant concurrent sentences.

The resumption of alcohol abuse by the Offender started at the end of May. He assaulted his wife in June and again in July. During the same time period he exhibited bizarre behaviour, including writing self-aggrandizing messages on a bedroom wall. These events share sufficient commonality as to the Victim and the circumstances of the crimes so as to amount to a single criminal adventure. I would therefore order that that the sentence for assault causing bodily harm in which the Victim suffered significant bruising and broken ribs be served concurrently with the sentence for sexual assault with a weapon.

Pointing a Firearm and Uttering Threats [ 103 ] These offences, even though they occurred in 2013, have elements in common with the subsequent offences that I have just discussed. They are similar as to the Victim and the derogation from the sanctity of the safety of a marriage.

Nevertheless, there is not sufficiently commonality with the 2015 offences such that they would normally be subject to sentences concurrent with the sentence for sexual assault with a weapon. [ 104 ] In Huson we saw the offender, following a guilty plea, sentenced to 45 days for pointing a firearm and 21 days for uttering threats in relation to his then spouse. He was also placed on probation for two years. In McKinnon , the 20 year-old offender, with no previous record, pleaded guilty to assault, uttering threats, pointing a firearm, possession of a firearm for a dangerous purpose and mischief.

He was sentenced to a 90 day global intermittent jail term. McCarthy saw an offender sentenced to 23 months’ incarceration for pointing a firearm at his common-law wife. In Hunt , the offender was sentenced to nine months for pointing a firearm in commission of an offence. [ 105 ] I am satisfied on the facts of this case, taking into account all of the factors that I have outlined above, that the Offender be sentenced to six months in custody for pointing a firearm at the Victim. This sentence is to be served consecutively to the sentence for sexual assault with a weapon.

He is also sentenced to three months for uttering threats, to be served concurrently with the sentence for pointing a firearm. Careless storage of a firearm [ 106 ] The Offender pleaded guilty to keeping a shotgun in the master bedroom of the matrimonial home in contravention of section 86(1) of the Criminal Code . I impose a sentence of 15 days’ incarceration for this offence, to be served consecutively to the sentence imposed for pointing a firearm.

Totality [ 107 ] Is the combined sentence unduly long or harsh in that it is not proportionate to the gravity of the offence and the degree of responsibility of the Offender? [ 108 ] The total of the sentences that I would impose of five years, one month, one year, six months, three months and 15 days add up to six years, ten months and 15 days if they were all to be served consecutively. Because I have determined that certain of the sentences would be appropriately served concurrently, the result would be a period of incarceration of five years, six months and 15 days.

The Crown has suggested a global sentence of eight years reduced to six based on totality. Counsel for the Offender suggests a sentence, based upon totality, of between four and five years. [ 109 ] In Hutchings , at paragraph 84 , Green, C.J.N.L. set forth the following list of guidelines to be applied to achieve an appropriate and fit total sentence: 1. When sentencing for multiple offences, the sentencing judge should commence by identifying a proper sentence for each offence, applying proper sentencing principles. 2.

The judge should then consider whether any of the individual sentences should be made consecutive or concurrent on the ground that they constitute a single criminal adventure, without consideration of the totality principle at this stage.

3. Whenever, following the determinations in the first two steps, the imposition of two or more sentences, to be served consecutively, is indicated, the application of the totality principle is potentially engaged. The sentencing judge must therefore turn his or her mind to its application. 4. The approach is to take one last look at the combined sentence to determine whether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender. 5.

In determining whether the combined sentence is unduly long or harsh and not proportionate to the gravity of the offence and the degree of responsibility of the offender, the sentencing court should, to the extent of their relevance in the particular circumstances of the case, take into account, and balance, the following factors: (

a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved; (

b) the number and gravity of the offences involved; (

c) the offender’s criminal record; (

d) the impact of the combined sentence on the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing; (

e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender’s degree of responsibility. 6. Where the sentencing judge concludes, in light of the application of those factors identified in the previous step that are deemed to be relevant, that the combined sentence is unduly long or harsh and not proportionate to the gravity of the offences and the offender’s degree of responsibility, the judge should proceed to determine the extent to which the combined sentence should be reduced to achieve a proper totality.

If, on the other hand, the judge concludes that the combined sentence is not unduly long or harsh, the sentence must stand. 7. Where the sentencing court determines that it is appropriate to reduce the combined sentence to achieve a proper totality, it should first attempt to adjust one or more of the sentences by making it or them concurrent with other sentences, but if that does not achieve the proper result, the court may in addition, or instead, reduce the length of an individual sentence below what it would otherwise have been. 8.

In imposing individual sentences adjusted for totality, the judge should be careful to identify: (

a) the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, without considerations of totality; (

b) the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and (

c) the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are, for this purpose, to be made concurrent or to be otherwise reduced. 9. Finally, the sentencing judge should indicate whether one or more of the resulting sentences should be further reduced to reflect any credit for pre-trial custody and if so, by how much. [ 110 ] Here, I have concluded that the total sentence imposed would not be unduly long or harsh and that it would not be disproportionate to the gravity of the offences and the Offender’s degree of responsibility.

I arrive at this conclusion after considering: a. the sentence when taking into account the number of offences and number of victims – a limited number of serious offences but perpetrated against a single victim; b. the Offender’s record - short, dated and non-violent; c. the impact of the sentence on the Offender’s prospects for rehabilitation - although I have emphasized other sentencing factors more than rehabilitation, the Offender is still a relatively young man and will one day be released; the sentence imposed must provide him with a reasonable prospect of a fresh start; and

d. other factors, including society’s disapprobation of sexual and other violent crimes committed within the bounds of an intimate relationship. [ 111 ] These offences were serious but took place over a relatively short period of time - especially the most serious of the offences. The sentence for his most serious crime, the sexual assault with a weapon, would be five years.

Combined with the other sentences that I have ordered be served consecutively, the sentence is still less than six years and is within the range of sentences for sexual assault with a weapon. [ 112 ] I note here that if I had not otherwise ordered that the one year sentence for assault causing bodily harm from the events of June 2015 be served concurrently, I would have done so at this totality stage of the analysis. [ 113 ] After considering the foregoing, a custodial sentence of five years, six months and 15 days is a fit and proper sentence.

Credit for pre-sentencing custody [ 114 ] The Offender has spent the following periods of time in custody pending trial and, subsequent to his conviction, this sentencing decision: a. July 25 to August 7, 2015 – 14 days; b. January 8, 2016 to June 2, 2016 – 147 days; and c. June 28, 2018 to October 3, 2018 – 98 days. [ 115 ] From the total of 259 days spent in custody must be deducted 20 days because the Offender was sentenced to 30 days’ time served for a breach of an undertaking based upon enhanced 1.5 times credit.

That leaves 239 days for which he is entitled to 1.5 times credit, or 359 days, to be applied against the sentence that I have imposed by this decision. ancillary orders [ 116 ] The Offender is subject to an order in Form 5.03 and must provide samples of bodily substances that are reasonably required for the purpose of forensic DNA analysis pursuant to

section 487.051(1) of the Criminal Code . [ 117 ] The Offender is subject to a 10 year Firearms Prohibition Order pursuant to section 109(1) (

a) of the Criminal Code . [ 118 ] The Offender is subject to an order in Form 52 pursuant to

section 490.012(1) of the Criminal Code in respect of the Sex Offender Information Registration Act, S.C. 2004, c. 10, for 20 years. [ 119 ] It is ordered pursuant to

section 490.1 (

a) of the Criminal Code that all offence-related property seized upon the search of the Offender’s residence be forfeited to Her Majesty the Queen in Right of Newfoundland and Labrador and disposed of by the Attorney- General for Newfoundland and Labrador in accordance with the law. [ 120 ] The Offender is subject to an order pursuant to

section 743.21 of the Criminal Code that he not communicate, directly or indirectly, with the Victim or her family, other than their son, while in custody pursuant to the sentence imposed by this decision. disposition [ 121 ] The Offender is sentenced as follows: a. Count No. 1 assault causing bodily harm – one year of incarceration to be served concurrently with the sentence for Count No. 5; b. Count No. 4 careless storage of a firearm – 15 days of incarceration to be served consecutively to the sentence for Count No. 10; c. Count No. 5 sexual assault with a weapon – five years of incarceration; d.

Count No. 7 assault causing bodily harm – one month of incarceration to be served concurrently with the sentence for Count No. 5; e. Count No. 8 uttering threats – three months of incarceration to be served concurrently with the sentence for Count No. 10; f. Count No. 10 pointing a firearm – six months of incarceration to be served consecutively to the sentence for Count No. 5;

g. The Offender shall receive credit for 359 days pre-sentencing custody, based upon a factor of 1.5. h. The Offender shall subject to the ancillary orders referred to above. _____________________________ Robert P. Stack Justice