R. v. P.H., 2019 NLSC 154

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. P.H. , 2019 NLSC 154 Date : August 16, 2019 Docket : 201808G0026 Her Majesty The Queen v. P.H. 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Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.

AND: Restriction on Publication: By court order made under subsection 539(1) of the Criminal Code , the evidence taken at the preliminary inquiry shall not be published in any document or broadcast or transmitted in any way until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial. Before: Justice Frances J. Knickle Edited Transcript of Oral Reasons on Sentence Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Date of Hearing: August 16, 2019 Date of Oral Judgment: August 16, 2019

Summary:

The offender was found guilty of sexual assault causing bodily harm. Both the offender and victim were indigenous and lived in thesame indigenous community. He forced intercourse upon the victim, punching her repeatedly in the head and face when she tried toresist, causing serious bruising and abrasions. The offender, because of his drinking, had no recall of the incident. The victim also hadbeen drinking on the evening in question. While the offence was serious, there were several mitigating factors on sentence.

Theoffender had good antecedents, a supportive family, and no history of violence nor previous criminal history for violence. On the otherhand, he had issues with alcohol, and did not take full responsibility for what happened. The offender was sentenced to four yearsimprisonment. Appearances: Stephen A. Anstey Appearing on behalf of the Crown Jeffrey C. Young Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Lacasse, 2015 SCC 64; R. v. A. (K.J.) (1988), (NL CA), 69 Nfld. & P.E.I.R. 99, 4W.C.B. (2d) 348 (Nfld. C.A.); R. v. N. (T.), 2005 NUCJ 16; R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688; R. v. Anderson,2018 NLCA 41; R. v. Tuglavina, 2011 NLCA 13 ; R. v. Zarpa, 2009 NLTD 175; R. v. Nadli, 2014 NWTSC 71; R. v. Leon, (2014)BCSC 202; R. v. Audet, (NL SC), 1989 78 Nfld & P.E.I.R. 123, 244 A.P.R. 123 (S.C.(T.D.)); R. v. E. (J.J.), (1986) (NL CA), 57 Nfld. & P.E.I.R. 204, 170 A.P.R. 204 (Nfld. C.A.); R. v. P. (D.E.D.), (2002) (NLSC), 214 Nfld. & P.E.I.R. 234, 642 A.P.R. 234 (N.L.S.C.(T.D.)); R. v. Butt, 2016 NLTD(G) 163; R. v. Wyatt, 2017 ONCJ 390 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46; Sex Offender Information Registry Act, S.C. 2004, c. 10 REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] P.H. was found guilty, after a trial before judge alone, of sexual assault causing bodily harm against C.D. contrary to section272(1)(

c) of the Criminal Code, R.S.C. 1985, c. C-46. This is the decision on sentence. The facts are presented in detail in the judgmenton verdict (R. v. P.H., 2019 NLSC 125) and will not be repeated here, except to explain the decision on sentence. PRINCIPLES OF SENTENCING [2] The principles of sentencing are codified under the Criminal Code at sections 718 to 718.2. Under

section 718.1, a sentencemust be commensurate with the gravity of the offence and the degree of responsibility of the offender, sometimes referred to as the levelof “moral blameworthiness” of the offender, or the “proportionality principle.” Wagner, C. J. in R. v. Lacasse, 2015 SCC 64, explainedthe proportionality principle in sentencing, at paragraph 12: In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposedon an offender.

The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier thesentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also onthe moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. …

[3] The proportionality principle includes a consideration of the kinds of sentences that have been imposed for similar offenders insimilar circumstances, referred to in the above quote as the “parity” principle. However, as stated by Wagner, C.J., first and foremost,the sentence must “fit” the offender and the circumstances. It is ultimately an individualized process. [4] The fit or proportionate sentence must reflect the fundamental principle under

section 718: 718. Purpose The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for thelaw 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 and the harm done to victims or to the community that is caused by 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 or to the community. [5] The sentence imposed must also promote respect for the law, and a just and peaceful society as stated in

section 718. [6] In R. v. A. (K.J.) (1988), (NL CA), 69 Nfld. & P.E.I.R. 99, 4 W.C.B. (2d) 348 (Nfld. C.A.) at paragraph 32,the Newfoundland Court of Appeal provided useful guidelines as to the considerations in determining the appropriate sentence for sexualassault.

These guidelines assist how the sentencing judge gives effect to the principles codified in the Criminal Code and include, butare not limited to, the following: • The extent of the assault; • The degree of violence or force used; • The impact of the crime on the victim, family, and the offender; • The degree of trust; • Public abhorrence; and • The circumstances of the offender including his or her age, attitude towards the offence, his prospects for rehabilitation, and hisantecedents. [7] The considerations in A. (K.J.), as well as other considerations as they relate to the circumstances of this case, are addressedbelow.

The Extent of the Assault and the Degree of Violence Used [8] The offence of sexual assault causing bodily harm under

section 272(

c) of the Criminal Code encompasses the broad range ofconduct as contemplated by sexual assault simpliciter under

section 271 but with the aggravating component that bodily harm hasoccurred. The sentences vary accordingly with the circumstances including the degree of bodily harm and the nature of the sexualconduct. [9] This assault was an opportunistic act. Early in the morning after an evening of socializing, while walking home, C.D. bychance came upon P.H. and S.T. and stopped to chat. Her home was only a minute or two away from where she stopped to chat. WhenS.T. left, P.H. made advances toward C.D. and ignored her refusals for any kind of sexual contact with him. He then chased C.D. whenshe tried to leave.

P.H. forced C.D. to the ground, punching her repeatedly until she succumbed to his assault and he had intercourse withher. The assault stopped only because M.B. arrived on the scene, also by chance. C.D. was badly bruised, swollen and scratched in thefacial area, and also had a bruise on her leg. The pictures tendered at trial of the injuries to C.D. and the state of her clothes speak forthemselves.

The photos of the area where the assault occurred also appeared to have blood on the ground. [10] While I accept that in terms of the spectrum of bodily harm the injuries may not be as serious as in other circumstances, thecircumstances indicate a high level of violence by P.H. in his effort to subdue C.D. Indeed, when C.D.’s friend M.B. came upon the two,

he did not recognize C.D. because of the swelling to her facial area. I find the circumstances of the assault to be serious. The sentence I impose must adequately reflect this gravity. The Degree of Trust [ 11 ] P.H. was not in a position of authority toward C.D., nor was C.D. in a relationship of dependence upon the offender, as defined in the Criminal Code , but he was known to her as a friend. He was the boyfriend of her sister. He was someone with whom she was entitled to feel safe. Yet, he took advantage of her trust in him in this regard, and violently attacked her and forced her to have intercourse.

In that sense, P.H. violated C.D.’s trust ( R. v. N. (T.) , 2005 NUCJ 16 ). This also supports a serious view of this offence. Public Abhorrence of the Offence [ 12 ] The perpetration of violent sexual offences, as occurred here, is appropriately the object of public abhorrence. This abhorrence requires an emphasis on deterrence and denunciation.

This is because the perpetration of this kind of violence is the antithesis of a just and peaceful society. [ 13 ] In support of its position of the need for the emphasis on deterrence and denunciation the Crown provided statistics from Statistics Canada showing the prevalence of sexual assault in this community in Labrador when compared to the province more broadly. The statistics show, sadly, that the prevalence of sexual violence in this small coastal community is nothing short of shocking.

I am cautious as to the extent to which these statistics are a precise measurement of the state of affairs in this community. One must be careful with statistics. I accept this information underscores the need for an emphasis on deterrence and denunciation as a means of promoting a just and peaceful society, and the overarching aim of protection of the public, in particular, protection for the potential victims of sexual assault not only in this community, but in all communities. [ 14 ] Having said that, I must be careful that P.H. is not sentenced as a statistic.

He is an individual and his sentence must be tailored to his circumstances. The sentence must be proportionate not only to the gravity of the offence, but to the degree of responsibility of P.H. or his “moral blameworthiness.” While I take into account the need for an emphasis on deterrence, including because of the prevalence of the offence, I cannot ignore P.H.’s individual circumstances. The Impact on C.D. [ 15 ] C.D. did not file a victim impact statement, but I have no difficulty in accepting that such a crime has had an impact on her, and would have a lasting impact on any victim.

C.D. was a reluctant witness, but showed no ill will toward P.H. Her candid testimony (unlike other witnesses, in particular her own father who downplayed the seriousness of the event) is an indicator of her personal strength of character. She was willing to testify as to what happened; to “tell it like it is,” even though she had no wish to do wrong to P.H. and has forgiven him for what happened. My understanding from the Crown was that she just wanted “it all to be over.” THE CIRCUMSTANCES OF THE OFFENDER

a) The Pre-Sentence Report [ 16 ] According to the Pre-Sentence Report (PSR) filed by consent, P.H. has lived most of his life in this community and is Inuk. He is a beneficiary of the Nunatsiavut Government. He is now 29 years of age. As was testified to at trial, he is in a long-term relationship with C.D.’s sister, albeit with several break ups. They also have three children together. [ 17 ] While much of P.H.’s background is positive, there are undeniably moments of tragedy. His father committed suicide and there was undue consumption of alcohol in the home at times. According to P.H. there was no abuse.

P.H.’s upbringing was relatively stable; although he also attempted suicide in 2010. He also experienced medical issues during his childhood, such as an irregular heartbeat and asthma. But he has led a relatively healthy life as an adult. P.H. finished Grade 11, and subsequently obtained his Grade 12. He has also obtained a diploma in carpentry from the College of the North Atlantic. He has maintained employment and supports both his immediate family, as well as his extended family; often purchasing groceries for the household.

His employer described him as “reliable and hardworking” whom he would be prepared to rehire once released from prison. [ 18 ] His sister also provided a letter to the Court expressing her clear support for him. She spoke to his commitment to his family. These positive aspects to P.H.’s circumstances support an emphasis on rehabilitation and mitigate against the need for a more severe sentence.

b) The Role of Alcohol [ 19 ] There is no doubt alcohol may have played a role in the commission of this offence. P.H. himself conceded to the author of the PSR that if he has an issue with substances, it is alcohol. He was candid that he began drinking at age 15. The evidence at trial, which P.H. conceded to the author of the PSR, is that he does not drink often, but when he does drink it is often to excess. P.H.’s mother told the author of the PSR that she does not want to be around P.H. when he is drinking.

Given that P.H.’s abuse of alcohol may be one of the influences that inclines him toward criminal behavior, and that his conduct is generally positive when sober, I accept the commission of this offence may be out of character for him. He has no previous history of violence of which I am aware. The role alcohol may have played may explain the violent behavior. It does not excuse the behavior. [ 20 ] If there is any prospect for P.H.’s rehabilitation, he must establish control over his relationship with alcohol.

P.H. seems to recognize this, and I am satisfied that he would be amenable to programming or counselling that would assist him in addressing this issue.

c) The Criminal History [ 21 ] P.H. possesses a criminal history, although he has never served a lengthy period of incarceration. He was convicted of impaired

driving in 2013 and received a fine of 1000 dollars with the usual driving prohibition. In 2009, he was convicted of committing a breakand enter into a dwelling house, for which he received nine months’ probation. He was also convicted in 2018 of failing to appear incourt. This offence is subsequent to the sexual assault causing bodily harm. [22] I do not see this record as particularly aggravating. It is brief and the offences are relatively far apart. I do see the convictionfor impaired driving as relevant to the determination of sentence, to the extent it is a further indication of P.H.’s issues with alcohol.

d) The Attitude of the Offender [23] At trial, P.H. denied committing the offence, and still does not seem to understand why he was found guilty; despite the strengthof the evidence that he was responsible for the offence. His denial at trial included suggesting that S.T. was the perpetrator even thoughit was P.H.’s DNA that was found on C.D. At the same time, there was also evidence that he apologized to C.D. in the presence of herfather soon after the incident. Significantly, C.D. has accepted P.H.’s apology and has continued to have a relationship as a friend withP.H. [24] At the hearing, when given the opportunity P.H. had no comment for the Court.

SECTION 718.2(

e) CONSIDERATIONS [25]

Section 718.2(

e) requires that all available sanctions be considered as appropriate and relevant in the circumstances, taking intoaccount, in particular, P.H.’s indigenous circumstances and background.

Section 718.2(

e) states: 718.2 … (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [26] In many circumstances, the background and circumstances of an indigenous accused has played a role in how that particularaccused comes to be before the court, and it is appropriate and necessary to acknowledge such circumstances as mitigating (R. v. Gladue, (SCC), [1999] 1 S.C.R. 688).

As stated in Gladue (at para. 80): As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For thisoffence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and hisor her community? What combination of systemic or background factors contributed to this particular offender coming before the courtsfor this particular offence?

How has the offender who is being sentenced been affected by, for example, substance abuse in thecommunity, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter ordenounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals betterachieved through healing? What sentencing options present themselves in these circumstances? [27] In this case, as stated, P.H. identifies as Inuk and is a beneficiary of the Nunatsiavut Government.

There are events reported inthe PSR as familiar systemic problems seen in indigenous communities: his father committed suicide, P.H. himself has attempted suicide,and that alcohol seems to be a negative but persistent influence in his behavior and social interactions. As stated in R. v. Anderson, 2018NLCA 41 (at para. 43), “the Court is required to be conscious” of these systemic realities of aboriginal communities in finding the fitsentence for P.H. (see Anderson, also at para. 30). [28] On the one hand, as discussed earlier, his upbringing and circumstances have been, for the larger part, positive.

Despite thepresence of these known systemic issues that must be acknowledged, when sober at least, P.H. has been a contributing and productivemember of his community. He has been fortunate in that regard. He also has the support of his family, and employer. [29] I must take into account his aboriginal circumstances, but I must not ignore that aboriginal women (or any victim of sexualassault), are also part of that community. They are entitled to the same protection from the law as any citizen of this country (R. v.Tuglavina, 2011 NLCA 13 at para. 45).

As pointed out in Gladue at paragraph 79, while a court must exercise restraint in the sentencingof aboriginal offenders, as a practical reality, the more serious the circumstances of an offence, the less weight may be accorded suchindigenous considerations in mitigation of sentence: Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances thelength of the sentence of an aboriginal offender may be less and in others the same as that of any other offender.

Generally, the moreviolent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. (See also R. v. Zarpa, 2009 NLTD 175 at paragraphs 35 and 36, citing R. v. Wells, 2000 SCC 10 at paragraph 42). [30] In R. v.

Nadli, 2014 NWTSC 71, in taking into account that the offender was aboriginal, and that his background revealed thetypical and tragic systemic influences to the circumstances of aboriginal persons, Charbonneau, J. stated at paragraph 59: His victim is an aboriginal woman with struggles of her own. This offence took place on the Hay River reserve, an aboriginalcommunity. Mr. Nadli's community is an aboriginal community.

The principle of restraint is important and it is particularly importantwhen dealing with aboriginal offenders, but Courts must be cautious not to apply that principle in a way that results in the people who

live in those aboriginal communities not being adequately protected, or in a way that fails to reflect the seriousness of the harm that isdone to them when crimes are committed in their communities. [31] I must find the balance between the proper emphases on the mitigating circumstances for P.H. individually, and as an aboriginaloffender, without losing sight of deterrence and denunciation because of the abhorrent nature this crime and the right for all aboriginalvictims to be protected from such violence.

As a violent and serious offence, and as per Nadli, and Tuglavina, the relevant circumstancesinclude that C.D. is also a member of this community and is also the product of those same systemic realities of aboriginal communities.

RANGE OF SENTENCE AND POSITION OF THE PARTIES The Sentencing Range of Sexual Assault Causing Bodily Harm [32] The maximum available sanction for sexual assault causing bodily harm as dictated by the Criminal Code is fourteen years’incarceration. [33] The Crown submits the appropriate sentence is, in this case, five years stressing the need for deterrence and denunciation giventhe prevalence of the offence in the community as well as the violence involved.

The Crown submits the range for this offence isgenerally between five and eight years. [34] Counsel for P.H. submits the appropriate sentence is three years taking into account that this will be P.H.’s first period oflengthy incarceration, and his positive antecedents. Counsel submits his circumstances as an aboriginal person need to be acknowledgedin addressing his overall moral blameworthiness. [35] In assessing the cases discussed below, it is important to remember that ranges are just that, ranges.

They are not fixed pointsor “straightjackets” from which a sentencing judge may never deviate (Lacasse, at para. 57). I have reviewed all the cases provided bycounsel. The following are discussed below. [36] R. v. Leon,

(2014) BCSC 202, involved an indigenous offender. The offender was convicted after a jury trial. The offenderforced himself upon the victim, beating her severely and causing severe injury to her vaginal area. He was bound by three probationorders at the time. He possessed a criminal history, including a conviction for sexual assault. The offender showed little insight into hisbehavior but also apologized in his statement to the police. He had a very difficult childhood and was exposed to violence in hisindigenous community. He had attempted suicide twice.

The court found that the appropriate range was three and one-half to five years;however the court was of the view that probation was needed in this case to facilitate rehabilitation. Allowing fourteen months credit forthe time spent on remand, the offender was sentenced to two years’ incarceration coupled with three years’ probation, effectivelyimposing a sentence of three years, two months and eight days. [37] In my view, this sentence is at the lower end of the range, given the nature of the offence and the circumstances of the offender,particularly when viewed in comparison with other decisions.

There was a significant emphasis on rehabilitation of the particularoffender and the court was presented with specific evidence that led it to conclude that the best prospects for rehabilitation included aperiod of probation (see paras. 83-85). For this reason it imposed a sentence even below what it had determined was the appropriaterange. [38] In R. v. Audet, (NL SC), 1989 78 Nfld & P.E.I.R. 123, 244 A.P.R. 123 (S.C.(T.D.)), O’Regan, J. imposed asentence of three years for sexual assault causing bodily harm. The offender attacked a victim late at night while she was leaving a club.

The sexual assault did not involve intercourse but the offender forced her to perform fellatio. The victim was able to escape. The victimsuffered what the court described as a “severe beating” from the offender. The offender immediately showed remorse once the victimescaped. The offender was youthful, married with two small children, pleaded guilty and possessed a good work record. He had nocriminal record. [39] In R. v. E. (J.J.), (1986) (NL CA), 57 Nfld. & P.E.I.R. 204, 170 A.P.R. 204 (Nfld.

C.A.), the NewfoundlandCourt of Appeal upheld a three-year sentence for a violent rape by a youth offender upon a woman who had been jogging. The offenderpled guilty and was remorseful. At paragraph 8, the Court of Appeal acknowledged that the trial judge was cognizant of the range ofsentence; of which the trial judge had described as being between three and seven years. [40] In R. v. P. (D.E.D.), (2002) (NL SC), 214 Nfld. & P.E.I.R. 234, 642 A.P.R. 234 (N.L.S.C.(T.D.)), O’Regan,J. imposed a sentence of three years for a violent sexual assault by the offender against his common-law spouse.

The offender hadforced sexual intercourse while threatening her with a knife. The offender was 27, and possessed a minor and unrelated criminal record. The offender pleaded guilty. [41] The above three decisions from our jurisdiction include the significantly mitigating factor of the guilty plea by the offenderswhich could be taken into consideration by the sentencing judge. While it is never an aggravating factor that an offender has not pledguilty, its absence means that mitigating factor is not available to be considered.

Nadii, supra is good illustration of the mitigating effectof a guilty plea. [42] In Nadli, Charbonneau, J. sentenced an aboriginal offender with a criminal history, to five years imprisonment, less time served,for sexual assault causing bodily harm. The circumstances were similar to the present case. The offender, known to the victim, attackedher in her own home, punching her repeatedly, and forcing intercourse upon her. In that case, albeit not at the earliest stage, the offenderalso pleaded guilty.

The sentencing judge was clear that in the event of a conviction in the absence of the guilty plea, the sentencingwould have been “much higher” (at para. 56). [43] In R. v. Butt, 2016 NLTD(G) 163, Goodridge, J. agreed to a joint submission of five years’ incarceration for sexual assaultcausing bodily harm of an 11-year-old girl that included several assaults occurring over a four-week period. The acts included attemptedanal and vaginal intercourse and caused injuries and severe trauma to the girl. The offender pleaded guilty.

As this was a joint sentence,its value as an indicator of the appropriate sentence is limited. Goodridge, J. considered the sentence to be at the low end, but was

satisfied, in light of the circumstances that it was appropriate. While there were serious aggravating factors because of the violence andthe young age of the victim, there was also evidence before the court that the young victim was very reluctant, and even may have beenunable, to testify. The guilty plea with the joint submission saved a great deal of further trauma to the already traumatized victim.

Therewas a legitimate “quid pro quo” in this case for the joint submission. [44] Despite its limited assistance in determining the appropriate range of sentence because there was a joint submission, Buttperhaps illustrates the low end of the spectrum for violent sexual assaults that cause bodily harm involving a young victim as well as themitigating effect a guilty plea can have on sentence; particularly when presented with a joint submission. Further, a mandatory minimumof five years was required in this case because of the age of the victim. [45] In R. v.

Wyatt, 2017 ONCJ 390, a 39-year-old offender was sentenced to eight years, less time served, for an unprovoked violentsexual assault that caused bodily harm upon an 18-year-old girl walking home on New Year’s Eve. Mr. Wyatt pleaded guilty. Mr.Wyatt possessed an unrelated criminal record and was intoxicated at the time. He also had a long history of substance abuse. His insightwas poor, and he had a dismaying history of failing to comply with court orders or rehabilitative programming put in place for him. Atthe time of the offence his mental health was “spiraling” out of control.

There was significant lasting impact on the victim. Atparagraph 30, the court noted: Our Court of Appeal has repeatedly directed that first-time offenders committing sexual assaults involving forced vaginal intercourseagainst strangers will ordinarily attract a substantial penitentiary sentence: R. v. A. (S.), 2014 ONCA 266 , [2014] O.J. No. 1609(Ont. C.A.).

The necessity for a lengthy penitentiary sentence is heightened when, as in this case, bodily harm, threats, or weapons areadditionally involved. [46] In Wyatt, at paragraphs 58-61, the court reviewed several cases that I have also considered, involving allegations of sexualassault causing bodily harm.

While they do not appear to involve circumstances of aboriginal offenders, they provide an illustration ofthe kinds of sentences that are generally imposed for this type of offence: lengthy federal terms of imprisonment. [47] Keeping the above in mind, the appropriate sentence in this case should be in the mid-lower range of sentences imposed for thisoffence. While I do not accept, as per Leon, that the appropriate sentence in these circumstances is three years, the sentence does notneed to be as high as that imposed in the Wyatt decision, of eight years.

There were many aggravating factors in those circumstances notpresent here. [48] The circumstances here are more akin to that of Nadli, where a five-year sentence was imposed. [49] In aggravation, there is a need for an emphasis on denunciation and deterrence given the circumstances, the level of violence,the harm suffered by C.D., and the prevalence of this kind of crime, not only in this community, but generally.

I also consider that P.H.betrayed the trust of C.D. as his friend. [50] I accept that P.H. has apologized to C.D., but that apology is tempered by his lack of insight into his conduct, and hisunwillingness to take responsibility because of little recall as to the events. I find this apology neutral in the determination of the fitsentence. I am concerned that he does not yet have insight into his conduct; although I accept that C.D. has forgiven P.H. [51] In mitigation, I am giving significant weight to the positive antecedents of P.H.

I am also giving significant weight to P.H.’scircumstances as an aboriginal offender, and the role the systemic influence on his community may have played in his being before theCourt. Even with those systemic influences, he has good prospects for rehabilitation and re-integration into his community – if he canaddress his issue with alcohol. He has the support of his family, including C.D., and his employer is prepared to rehire him.

How P.H.wishes to address his issues with alcohol is in his hands. [52] Balancing the mitigating and aggravating factors in these circumstances, and considering the range of sentence as stated in theCriminal Code and as interpreted in the jurisprudence reviewed above, the fit sentence for sexual assault causing bodily harm - in thesecircumstances - is four years’ incarceration. ANCILLARY ORDERS Order Authorizing the Taking of Bodily Substances for Forensic DNA Analysis [53]

Section 272 of the Criminal Code is a primary designated offence under

section 487.04(a)(xi.3). As a primary designatedoffence, a DNA Order is mandatory under

section 487.051(1). It is ordered that a peace officer be authorized to take or cause to be takenfrom P.H. the number of samples of bodily substances that is reasonably required for forensic DNA analysis, provided that the persontaking the samples is able, by virtue of training or experience, to take them by means of the investigative procedures described insubsection 487.06(1) of the Criminal Code and that, if the person taking the samples is not a peace officer, they take them under thedirection of a peace officer. Firearms’ Prohibition [54] Section 109(1)(

a) of the Criminal Code requires a mandatory prohibition where the conviction for the indictable offence is tenyears or more, and I order that such is imposed in this case. P.H. is prohibited from possessing any firearm, other than a prohibitedfirearm or a restricted firearm (for which another prohibition is made therein), and any crossbow, restricted weapon, ammunition, andexplosive substance for ten years. Order to Comply with Sex Offender Information Registration Act (SOIRA) [55] Under

section 490.011(a)(xvi),

section 272 of the Criminal Code is a designated offence.

Section 490.012(1) requires an

offender be subject to the Sex Offender Information Registry Act , S.C. 2004, c. 10 ( SOIRA ) and an Order in Form 52 for a designated offence. I order that P.H. is subject to such an Order for a period of twenty years, as per

section 490.013(2)(b). CONCLUSION [ 56 ] P.H. is sentenced to four years imprisonment for having committed the offence of sexual assault causing bodily harm. The necessary ancillary orders are imposed accordingly. _____________________________ Frances J. Knickle Justice