R. v. T.G., 2023 NLSC 69
Opinion
court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. T.G. , 2023 NLSC 69 Date : May 3, 2023 Docket : 202101G2676 His Majesty The king v. T.G. 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Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Sandra R. Chaytor Edited Transcript of Oral Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: April 28 and May 3, 2023 Date of Oral Judgment: May 3, 2023
Summary: The offender pled guilty and was convicted of one count of sexual assault involving intercourse against a 19-year-old in her own home. On sentencing, the Court accepted a joint submission of four years’ incarceration less time served plus ancillary orders. Appearances: Jeffrey A. Summers Appearing on behalf of the Crown
Jonathan E. Noonan, K.C. Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Anthony-Cook , 2016 SCC 43 ; R. v. Parranto , 2021 SCC 46 ; R. v. Lacasse , 2015 SCC 64 ; R. v. Friesen , 2020 SCC 9 ; R. v. W.(D.R.) , 2012 BCCA 454 ; R. v. Murphy , 2011 NLCA 16 ; R. v. Barrett, 2011 NLCA 5 ; R. v. Freake , 2012 NLCA 10 ; R. v. Squires , 2012 NLCA 20 ; R. v. Snelgrove, 2021 NLSC 149 ; R. v. Kennedy , 2021 NLCA 42 ; R. v. Percy , 2021 NSSC 353 ; R. v. Pettitt , 2021 ABQB 773 ; R. v. Sium , 2022 SKQB 24 ; R. v. Bunn , 2022 MBCA 34 ; R. v. GS , 2022 MBCA 35 ; R. v. G.F , 2022 ONCA 44 ; R. v.
Goldfinch , 2019 SCC 38 STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46 ; Sex Offender Information Registration Act , S.C. 2004, c. 2004, c.10 REASONS FOR JUDGMENT Chaytor, J.: INTRODUCTION [ 1 ] T.G. was originally charged in a three-count indictment with the following offences: one count of sexual assault contrary to
section 271 of the Criminal Code , R.S.C. 1985, c. C-46 (the “ Criminal Code ”); one count of sexual assault with choking, suffocation or strangling contrary to section 272(1) (c.1) of the Criminal Code ; and one count of uttering threats to cause death or bodily harm contrary to
section 264.1(1) (a) - 264.1(2) of the Criminal Code . [ 2 ] All of the charges stemmed from the same set of circumstances that occurred on November 2, 2019 and involved the same complainant, P.H. [ 3 ] Mr. T.G. pled guilty to the charge of sexual assault. [ 4 ] An Agreed Statement of Facts pursuant to section 606(1.1) of the Criminal Code signed by Mr. T.G., his counsel, and the Crown was filed and read into the record. A police statement given by Mr.
T.G. was attached as an appendix to the Agreed Statement of Facts. [ 5 ] I was satisfied based upon the Agreed Statement of Facts and the appendix that the Crown had proven all elements of the offence of sexual assault and a conviction was entered. The other two counts were subsequently withdrawn by the Crown. [ 6 ] The sole issue for determination is the imposition of an appropriate sentence for the offence committed by Mr. T.G.. the crown and defence position [ 7 ] The Crown and the Defence made a joint submission on sentence.
The submission is for a term of imprisonment of four years with credit for pre-sentence custody pursuant to section 719(3.1) of the Criminal Code at one and a half days for each day spent in custody. [ 8 ] In addition, the following ancillary orders (some of which are mandatory) were proposed as part of the joint submission: 1. A firearms’ prohibition Order pursuant to
section 109 of the Criminal Code ; 2. An Order authorizing the taking of bodily substances from Mr. T.G. for forensic DNA analysis; 3. An Order for Mr. T.G. to comply with the Sex Offender Information Registration Act , S.C. 2004, c. 10 for a period of 20 years; and 4. An Order prohibiting communication with P.H. and her mother, S.R during the period of incarceration.
the facts [ 9 ] The facts are as set out in the Agreed Statements of Facts, as follows: 1. T.G., herein after referred to as “the accused”, was the former intimate partner of S.R., who is the mother of victim, P.H.. The accused is the father of a daughter, H., shared with S.R. who is P.H.’s half-sister. 2. At the time of the alleged offence, the accused was 27 years old and the victim P.H. was 19 years old. 3. On the night of November 1st and into the early morning hours of November 2nd, 2019, the accused was at the residence of S.R. to take care of their shared daughter while S.R. worked an overnight shift.
P.H. was not under the accused’s supervision and was asleep in her own room. 4. Shortly after 1:00 a.m. on November 2, 2019, the accused entered the room of P.H., waking her up. The already naked accused got on top of P.H. and started to struggle with her, with the accused attempting to pin P.H.’s hands and when P.H. started kicking and screaming, the accused put his hands on her mouth and on her neck. The accused told P.H. he was “going to be dead by the end of the night so just let it happen” and continued to struggle with P.H. who told him to stop.
The accused then forcibly raped P.H. with his penis and ejaculated in her vagina. 5. After he finished, the accused took P.H.’s phone and told her he “couldn’t believe he had done this” and went to the washroom. P.H. then waited for a while for the accused to leave, wiped herself off with a sock, found her phone in the washroom and left her house while barefoot, going to a neighborhood friend’s residence. (A substance found on a sock seized from P.H.’s bedroom by the RNC was subsequently forensically tested and matched to the accused’s DNA). 6.
P.H. then texted her friend and called her mother about what had happened as well as told her neighborhood friend’s family. 7. After being contacted by P.H., S.R. immediately left work, called the police and then called the accused while driving home. After the accused answered his phone, S.R. repeatedly told him that he had “raped her kid” to which the accused replied that he was “the world’s biggest druggie” and “I’m a nobody” and “Don’t worry about it I already slit my throat”. 8. Upon S.R.’s arrival, an ambulance and police members were already on scene outside of her house with both P.H. and H..
S.R. then informed the RNC members present that the accused had slit his throat and was likely in her basement. Police and paramedics subsequently entered the residence basement and found the accused alive but unresponsive lying face down in a significant pool of blood on a mattress. The accused was then transported by ambulance to the Health Science Centre. 9. The accused then underwent emergency surgery for his wounds and was stabilized by hospital staff. By the afternoon of November 2, 2019, staff members told the RNC that the accused was now awake and able to speak with members of the RNC. 10.
Shortly after 4 p.m., Cst. Jessica Brown and Cst. Glen Cunningham attended the HSC and arrested the accused. After his arrest, the accused made a series of admissions under caution that he had “raped P” after spending all of his money and consuming a large quantity of crack cocaine and that he had then attempted to kill himself in despair. [A transcript of this statement was attached as an appendix to the Agreed Statement of Facts]. 11. The parties agree that they can adduce other evidence as necessary to supplement the facts herein agreed to.
ANALYSIS Joint Submission on Sentence: The Applicable Test [ 10 ] Although the parties have made a joint submission, it nonetheless is to be assessed by the court. [ 11 ] In R. v. Anthony-Cook , 2016 SCC 43 , guidance was provided to trial judges as to the proper legal test to be applied in assessing a joint submission. That test is the public interest test. [ 12 ] Under the public interest test, I should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest.
[ 13 ] For joint submissions to be possible, the parties must have a high degree of confidence that they will be accepted. The public interest test reflects the many benefits that joint submissions bring to the criminal justice system and the corresponding need for a high degree of certainty in them. [ 14 ] It is a stringent test and for good reason as the Crown and Defence counsel are well placed to arrive at a joint submission that addresses the interests of both the public and the accused. Joint submissions on sentence are important to the proper functioning of the justice system.
They allow a degree of certainty for both the Crown and the accused in the outcome. The acceptance of joint submissions save court time for other matters that are not as conducive to resolution. [ 15 ] Therefore, the joint submission is not to be rejected lightly and I should only do so where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system. [ 16 ] Let me state before I go further that I find the sentence as proposed is an appropriate disposition of this matter in the circumstances.
I will continue and provide, for the purpose of the record, the reasons for my decision. Sentencing Parameters and Principles [ 17 ] In assessing the appropriateness of the joint submission, as in any sentencing, consideration must be given to the principles set out in
section 718 of the Criminal Code . The sentence must contribute to respect for the law and the maintenance of a just, peaceful, and safe society. It should meet one or more of the following objectives: denunciation, deterrence, separation of offenders from society (where necessary), rehabilitation, reparation, and general promotion of a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community. [ 18 ] Deterrence (both specific and general) and denunciation are primary considerations in an offence of this nature.
Although rehabilitation plays a secondary role in such cases, it is nonetheless an important objective of our criminal justice system particularly in cases such as this involving a relatively youthful offender with a limited criminal record. [ 19 ] Overall, the goal is to achieve a fair, fit and principled sentence. In R. v. Parranto , 2021 SCC 46 , the Supreme Court, at paragraph 10, reinforced that proportionality is the fundamental principle in reaching this goal.
All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Although individualization is a secondary principle, it is central to the proportionality assessment. This is because each offence is “committed in unique circumstances by an offender with a unique profile” ( R. v. Lacasse , 2015 SCC 64 , at para. 58 ). Victim Impact Statement [ 20 ] P.H. provided a victim impact statement which was read into the record by the Crown.
I have taken this into consideration in my assessment of the appropriateness of the joint submission. [ 21 ] In her statement, P.H. described the impact Mr. T.G.’s criminal act has had upon her. The impact has understandably been significant. [ 22 ] Prior to the offence, P.H. used to enjoy spending time with friends, her mother, and her sister. She enjoyed going out, shopping, and the comfort of her own home. [ 23 ] P.H. now struggles with anxiety. This includes anxiety related to leaving her home or doing normal everyday tasks such as shopping.
She describes herself as guarded and being afraid most of the time. [ 24 ] P.H. feels she has been robbed of time that she had planned to continue her education. She has not been employed since the event. Her anxiety does not allow her to interact with the public. [ 25 ] P.H. wrote that she has trust issues and questions the motives of people around her. She feels she was violated in the worst possible way. She feels like she is smothering when she thinks about the night of the sexual assault.
She wonders if she will ever be – in her words - “normal” again. [ 26 ] Recently, P.H. has begun seeing a counselor for help with her psychological issues. As she states she is seeking help ‘so she can one day escape the mental agony she has lived in.’ Circumstances of the Offence [ 27 ] The facts and specific circumstances surrounding the commission of this offence are as detailed above in the Agreed Statement of Facts. Aggravating factors [ 28 ] While all sexual assaults are abhorrent in nature, it is well established that forced intercourse constitutes what is termed in the
jurisprudence as a “serious” sexual assault. [ 29 ] Other aggravating factors in this case include: (1) the degree of physical interference and restraint in the forced sexual intercourse as described in the Agreed Statement of Facts; (2) the fact that P.H was assaulted in her own home where she would have an expectation of security; and (3) the significant impact on P.H. considering her relatively young age and the circumstances described in her Victim Impact Statement including: she is undergoing counselling over 3 years since the offence for the psychological consequences of the assault; and has not been employed since the assault due to her anxiety of interacting with the public.
I accept this as evidence pursuant to
section 718.2(a)(iii.1) of the Criminal Code . [ 30 ] The Crown further submitted that Mr. T.G. was in a position of trust (but not authority) over P.H. at the time of the sexual assault and this should be considered as an aggravating factor pursuant to
section 718.2(a)(iii) of the Criminal Code . Defence counsel submitted that breach of trust need not be considered in assessing the reasonableness of the joint submission as a period of four years’ incarceration on the facts of this matter is within the range whether or not a breach of trust can be established. [ 31 ] In R. v. Friesen , 2020 SCC 9 , at paragraphs 125 and 126 , the Supreme Court offered guidance on the abuse of a position of trust factor stating that it makes sense to refer to a “spectrum” of positions of trust. The spectrum of relationships of trust is relevant to determining the degree of harm.
The court noted that any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence. The Supreme Court cited Saunders J.A. in R. v. W.(D.R.) , 2012 BCCA 454 that the focus should be on “the extent to which [the] relationship [of trust] was violated.” [ 32 ] The facts are sparse regarding the relationship between Mr. T.G. and P.H. at the time of the offence. There is no evidence of him having fulfilled a step-father role to her or evidence as to the length of time he had been connected to P.H.’s family or whether they had ever resided as a family unit.
What is known is that Mr. T.G. was the former intimate partner of P.H.’s mother, S.R. He is the father of P.H.’s younger half-sister, a child he shares with S.R. Mr. T.G. was at the residence of S.R. on the evening of the assault to take care of his daughter. P.H. was not under Mr. T.G.’s supervision. [ 33 ] There is no doubt that Mr. T.G. breached P.H.’s safety and security within her own home in committing this devastating assault. The fact that he did so when trusted by S.R. to be in her home to provide care to their child, is an aggravating circumstance.
I find it difficult however on the limited facts to conclude that Mr. T.G., in committing the offence, abused a position of trust in relation to P.H. as contemplated by
section 718.2(a)(iii) of the Criminal Code . In any event, I accept Defence counsel’s submission that I do not need to make this determination for the purpose of assessing the joint submission. Mitigating Factors [ 34 ] Relevant mitigating factors include:
(1) Mr. T.G. pled guilty. This saved witnesses including the complainant from having to testify and re-live, through her testimony, the horrific experience. It also saved valuable court time and resources.
(2) The guilty plea also demonstrates that Mr. T.G. takes responsibility for his actions. Mr. T.G. addressed the Court at the sentencing hearing and conveyed his remorse and apologized for his actions. I accept that he is sincere in his expressed remorse. Circumstances of the Offender [ 35 ] In determining the appropriateness of the joint submission, it is important to consider the offender’s personal circumstances. I do not have the benefit of a Pre-Sentence Report, however counsel for Mr. T.G. submitted that: • Mr. T.G. is now 30 years of age.
He is a relatively youthful offender being 27 years of age at the time of committing this offence. • He is not a first time offender. His criminal record however is limited, dated, and he has no record of offences of this nature. This offence was out of character for him. • He has a high school education and a trade as a welder. He has a good work history and an extra class on his driver’s license. He is employable and has been consistently employed over his adult years. He is interested in serving his offence and getting back to being a productive member of society. • Mr.
T.G. was severely addicted to drugs and heavily using drugs at the time of committing the offence. • He expressed remorse for his actions almost immediately after the offence and committed a significant attempt at suicide. He was left unresponsive and had to undergo emergency surgery. • He has to live with his actions for the rest of his life. Prescribed Sentence under the Criminal Code [ 36 ] In assessing the reasonableness of the joint proposal on sentence, I have considered what is statutorily prescribed by the Criminal Code with respect to the offence for which Mr. T.G. has been convicted.
Having been convicted of sexual assault, Mr. T.G. is liable to a term of imprisonment of not more than ten years.
Case Law and Range of Sentence [ 37 ] The task of finding factually similar cases in the context of sexual assault is difficult. [ 38 ] Counsel submitted that the range of sentence for sexual assault in the circumstances of this case is three to five years’ incarceration and that there was quid pro quo in coming to the joint submission of four years. [ 39 ] The parties submitted case law in support of the joint submission. I will briefly review these cases: • In Friesen , the offender had pled guilty to sexual interference with a young child and attempted extortion of the child’s mother.
The sentencing judge determined that a six-year global sentence was appropriate. The court of appeal reduced the sentence to four and one-half years. The Crown appealed to the Supreme Court of Canada. The appeal was allowed and the six-year sentence restored. In doing so, the Supreme Court addressed the factor of the abuse of a position of trust noting that a child will likely suffer more harm from sexual violence where there is a closer relationship and higher degree of trust between the child and the offender. • In R. v.
Murphy , 2011 NLCA 16 , the offender was convicted, after a jury trial, of one count of sexual assault and of breaches of probation. He was sentenced to 54 months imprisonment for the sexual assault. The Court of Appeal allowed the offender’s appeal on sentencing. If found that the trial judge had erred by considering as aggravating factors that the complainant was punched in the face and choked without having applied section 724(2) (
b) of the Criminal Code and been satisfied those facts had been proven beyond a reasonable doubt. The Court of Appeal imposed a sentence of three and one-half years imprisonment for the sexual assault. • In R. v. Barrett , 2011 NLCA 5 , the offender pleaded guilty to three counts of sexual assault including one count which involved sexual intercourse with a 17-year-old girl. The trial judge rejected a joint submission of three years imprisonment concluding that five years in custody was appropriate.
The joint submission was based on three years for the forcible sexual intercourse which was noted as being at the lower end of the accepted range for that offence. The other two assaults were not as grave and the sentence jointly proposed with respect to each was a one year sentence to run concurrently with the three year sentence. The Court of Appeal allowed the appeal and accepted the joint submission.
In doing so, at paragraph 28, the court stated that it accepted the submission of the Crown that three to seven years is the appropriate range of sentence for forcible sexual assault involving intercourse. • Defence counsel submitted that the factual circumstances of the sexual assault in R. v. Freake , 2012 NLCA 10 , was the most similar to this case. In Freake , the offender, a former boyfriend of the complainant, was staying at her apartment. He admitted to engaging in sexual intercourse, but testified it was consensual.
The trial judge accepted the complainant’s evidence that it was nonconsensual and that during the sexual intercourse the offender held his hand over her mouth. A sentence of four years was imposed. The Court of Appeal upheld the sentence stating, at paragraph 23, “The range of sentence for sexual assault involving intercourse in circumstances such as this would be three to five years.” • In R. v. Squires , 2012 NLCA 20 , the offender was convicted, following trial, of four assaults including two sexual assaults involving intercourse against a woman with whom he was in a sporadic relationship.
The trial judge imposed a sentence of four years imprisonment for each of the sexual assaults. The majority of the Court of Appeal found that the four-year sentence was excessive and reduced the sentence to thirty months for each of the sexual assaults. Hoegg J.A. dissented. She would have upheld the four-year sentence. In doing so, she noted that the Court of Appeal had stated in Freake , that the sentence for sexual assault involving intercourse in such circumstances would be three to five years imprisonment. • In R. v. Snelgrove , 2021 NLSC 149 , the offender was a police officer.
He was convicted by a jury of sexually assaulting a young woman in her home who had sought assistance from him to get home. The sexual assault included vaginal and anal intercourse. In imposing a sentence of four years’ incarceration, the Court found that the offender was in a position of authority owning to his occupation. The fact that he was an on duty police officer was an aggravating factor. • In R. v.
Kennedy , 2021 NLCA 42 , the Court of Appeal upheld a sentence of three and one-half years imprisonment imposed on an offender convicted of sexual assault where the offence included oral sex and vaginal intercourse while the victim was intoxicated. In finding that the sentence was appropriate, the Court of Appeal referenced its decision in Freake and reiterated that the range of sentence for sexual assault involving intercourse in such circumstances is three to five years. • In R. v. Percy , 2021 NSSC 353 , the offender pled guilty to sexually assaulting a friend.
The guilty plea was entered after the trial had begun and the complainant had given her evidence in chief. The sexual assault occurred in the complainant’s home and involved intercourse. Further aggravating factors included the presence of physical violence beyond the sexual assault itself which resulted in physical injuries. The court accepted a joint recommendation on sentence of imprisonment of five years consecutive to the time the offender was serving in relation to another sexual offence. • In R. v.
Pettitt , 2021 ABQB 773 , a 60-year-old offender was convicted following a jury trial, of three counts of sexual assault. The offences occurred at his tattoo studio while he was applying tattoos to the victims. Two offences involved digital penetration of the victim’s vagina. For those offences, he was sentenced to 30 months imprisonment and 36 months imprisonment. The latter offence occurred in the presence of another customer of the tattoo studio. • In R. v. Sium , 2022 SKQB 24 , an offender was found guilty following trial and sentenced to 42 months for sexual assault involving intercourse.
The 19-year-old complainant was an acquaintance of the offender who was intoxicated at the time of the offence. The offender took her to a hotel and initiated sexual activity while she slept and after she awoke continued the assault in disregard to her lack of consent. Aggravating factors included the offender’s criminal record, the planning that went into the offence, taking advantage of her in a helpless condition and the harm caused to the complainant. A mitigating factor was that he was a contributing member to society for a number of years. • In R. v.
Bunn , 2022 MBCA 34 , an Indigenous offender was convicted of sexual assault and sentenced to 28 months imprisonment. The victim had fallen asleep at the offender’s residence and awoke to find the offender having intercourse with her. The offender had a lengthy criminal record. The victim was aware at the time that the offender was HIV-positive. The appellate court found that it was an
error for the trial judge not to consider the psychological harm caused to the complainant regarding knowledge of the offender’s HIV status. It determined however that the error was not material. Although the appellate court found the sentence was low, it upheld the sentence. In doing so, it noted that the trial judge placed significant weight on the offender’s Gladue factors, and therefore was not convinced that the sentence was unfit. • In R. v. GS , 2022 MBCA 35 , t he accused was convicted after trial of three offences against his wife including sexual assault with a weapon (holding a knife to her neck).
He was sentenced to four years’ imprisonment for the sexual assault with a weapon. In upholding the sentence, the appellate court stated that while the four-year sentence is low for sexual assault with a weapon in the circumstances, it was not convinced that the sentence was the result of a material error or was clearly unreasonable. • In R. v. G.F , 2022 ONCA 44 , two offenders were convicted after trial of sexually assaulting a 16-year-old complainant at a campground. The offenders were friends of the complainant’s parents who had permitted the complainant to sleep at the offenders’ trailer.
One of the offenders provided the complainant with alcohol and she was intoxicated at the time of the offence. The trial judge imposed sentences of three years and three and one-half years’ imprisonment. In doing so, the trial judge found an element of breach of trust in the circumstances. The appellate court upheld the sentences stating that it was open to the trial judge to find there was an element of breach of trust in the circumstances. [ 40 ] Although sentence ranges are of assistance as guidelines, each case has its own unique facts and offender.
Sentencing as noted in Lacasse must be an individualized process. [ 41 ] Furthermore, the acceptable range of a sentence on a joint submission must be such that the accused has an incentive to plead guilty. This may mean an adjustment down from the normal range of sentence to account for the accused having forgone his right to a trial. [ 42 ] It could also mean a sentence on the higher end on a charge in consideration of the Crown withdrawing other charges. In this regard, Mr. T.G. was originally charged with three counts.
Two counts were withdrawn by the Crown upon the conviction on the sexual assault count. [ 43 ] The quid pro quo of Mr. T.G.’s guilty plea included a forfeiture of his right to a trial and chance to be found not guilty. This is particularly of significance in this case where there was a pending application on the voluntariness of Mr. T.G.’s police statement. In addition, there was an issue regarding the inadvertent disclosure of a portion of Mr. T.G.’s medical records to the Crown. This issue could have resulted in Mr. T.G. seeking a further remedy. [ 44 ] Furthermore, Mr.
T.G.’s guilty plea relieved P.H. from the difficult task of testifying, which is not to be underestimated given the nature of the charge and her relatively youthful age. It further alleviated strain on precious legal and judicial resources.
Conclusion [ 45 ] In order for the sentence proposed on a joint submission to be rejected it would have to be so inordinately lenient or unacceptably harsh that it would be contrary to the public interest and would otherwise bring the administration of justice into disrepute to agree to impose it. [ 46 ] In Friesen , at paragraph 89 , the Supreme Court stated all forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender – the offender is treating the victim as an object and disregarding the victim’s human dignity. [ 47 ] In Friesen and R. v.
Goldfinch , 2019 SCC 38 , the Supreme Court reminded sentencing judges in sexual assault matters of the importance of considering the impact of the offence on the victim. P.H. was only 19 years old when Mr. T.G. committed this horrific violation of her personal and sexual autonomy and integrity. In addition, he did so within the confines of P.H.’s home – a place where she should feel safe and secure. P.H. continues to suffer the psychological consequences of Mr. T.G.’s actions. [ 48 ] Given the nature of the offence, I find Mr. T.G.’s moral blameworthiness and degree of responsibility to be high.
His conduct must be strongly denounced and the sentence imposed must reflect society’s absolute intolerance of such repugnant criminal conduct. [ 49 ] On the facts and overall circumstances of this case, and after considering the range of sentence for this offence, the quid pro quo and counsel’s submissions, I am of the view that the joint submission of a four year custodial sentence is not so lenient or harsh or markedly out of line that r easonable and informed persons would view the sentence as a breakdown in the proper functioning of the justice system . [ 50 ] The sentence is within the three to five year range articulated by the Newfoundland and Labrador Court of Appeal for a serious sexual assault of this nature.
It is a substantial custodial sentence in the circumstances of this case. It reflects the seriousness of the offence committed and the impact it has had on the victim. [ 51 ] Therefore, I am satisfied that acceptance of the joint submission woul d not bring the administration of justice into disrepute or otherwise be contrary to the public interest. [ 52 ] I accept the joint submission. imposition of sentence [ 53 ] Mr. T.G. please stand while I impose your sentence. Period of Incarceration and Credit for Time Served
[ 54 ] Because you committed a sexual assault in breach of
section 271 of the Criminal Code , you are sentenced to a period of incarceration of four years. This period is less time already served on the following basis: The joint submission, which I have accepted, included credit for pre-trial custody pursuant to section 719(3.1) of the Criminal Code at a rate of one and a half days for each day served. Four years is equivalent to 1461 days. You have spent 531 days in pre-trial custody up to today. To be excluded from this amount is 20 days spent for time served for a separate offence of breach of recognizance which occurred after this offence.
Therefore, you have served 511 days for which you are to be given credit at a rate of one and a half days for each day served. Therefore you are credited with 766.5 days served. This is to be deducted from the four year term of imprisonment for a total period of 694.5 days left to serve. Ancillary Orders [ 55 ] In addition to the term of incarceration, I make the following ancillary Orders: 1. Firearms’ Prohibition Order Section 109(1) (
a) of the Criminal Code requires a mandatory prohibition where the conviction for an indictable offence is ten years or more. I order that such is imposed in this case. Pursuant to section 109(2) of the Criminal Code , you are prohibited from possessing any firearm, other than a prohibited firearm or a restricted firearm (for which another prohibition is made therein), and any crossbow, restricted weapon, ammunition, and explosive substance for ten years. 2. Order Authorizing the Taking of Bodily Substances for Forensic DNA Analysis
Section 271 of the Criminal Code is a primary designated offence under
section 487.04 (a)(xi.3). As a primary designated offence, an order that you provide a suitable sample of his DNA is mandatory under
section 487.051(1). It is therefore ordered pursuant to
section 487.051 that a peace officer be authorized to take, or cause to be taken, from you, the number of samples of bodily substances that is reasonably required for forensic DNA analysis, provided that the person taking the samples is able, by virtue of training or experience, to take them by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code and that, if the person taking the samples is not a peace officer, they take them under the direction of a peace officer. 3. Order to Comply with Sex Offender Information Registration Act
Section 271 is a designated offence under subsection 490.011(1)(a)(xvi) of the Criminal Code . Given this,
section 490.012(1) of the Criminal Code requires you to be subject to the Sex Offender Information Registration Act and I so order. Pursuant to
section 490.013(2)(b), the duration of the order shall be 20 years. 4. Non-Communication Order Pursuant to
section 743.21(1) of the Criminal Code , you are prohibited from contacting P.H. directly or indirectly for any purpose during the custodial period of your sentence. Further, you are prohibited from contacting S.R. during the custodial period of your sentence for any purpose other than in accordance with any other court order pertaining to the parenting or support of your child. Victim Surcharge [ 56 ] Defence counsel requested that the victim surcharge be waived. I am prepared to waive it in the circumstances given that Mr. T.G. will be incarcerated for a lengthy period of time with no means of income.
Concluding Remarks to Offender [ 57 ] Mr. T.G., you are still a young man. You have committed a heinous crime but you have time to turn your life around. You have
a trade and have been employed in the past. Your counsel has stressed on your behalf that you wish to serve your time and get back to being a productive member of society. I trust you will use your time incarcerated towards self-growth and reflection to help you change the direction of your life and to fully understand the gravity of your actions and the impact it has had on the victim of your crime. Take advantage of any programs that you can avail of to get at the root of any underlying issues that may have contributed to where you find yourself today.
Apply yourself to the best of your abilities to ensure that when you are released you may once again become a productive member of society. DISPOSITION [ 58 ] T.G. is sentenced to four years imprisonment less time served (as calculated above) for having committed the offence of sexual assault. The necessary ancillary orders are imposed accordingly. _____________________________ Sandra R. Chaytor Justice
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