R. v. R.J.N. Date:, 2011 BCPC 159

Citation: R. v. R.J.N. Date: 20110408 2011 BCPC 0159 File No: 211774-1-K Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.J.N. EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. L. BAGNALL Counsel for the Crown: M. Donnelly Counsel for the Defendant: A. Mayes Place of Hearing: Vancouver, , B.C. Date of Judgment: April 8, 2011 [ 1 ] THE COURT: As a result of events which occurred on February the 1st, 2010, R.J.N. was charged with aggravated assault of K.H and with robbery of K.H.

Pleas of guilty to both counts were recorded before another judge on July the 29th, 2010. That judge ordered that certain reports be prepared. [ 2 ] The matter came before me for sentencing on February 23rd, 2011, and I heard submissions on that day. I reserved my decision respecting the appropriate sentence until March 16th, 2011, because a number of relevant decisions came to my attention after I heard submissions on February 23rd, significantly R. v. Ladue , which is found at [2011] B.C.C.A. 101. [ 3 ] This case was handed down on March 8th, 2011, two weeks after I heard submissions in the case at bar.

I therefore asked counsel to assist me by making further submissions. I heard those submissions on March 28th, 2011, and reserved my decision again respecting sentence until today. [ 4 ] These charges had originally been scheduled for trial in September, 2010. R.J.N. recorded pleas of guilty well in advance of the days set aside for trial. A Pre-Sentence report with a Gladue component and a psychiatric component was ordered when the guilty pleas were recorded.

Problems of various sorts arose with respect to the reports, resulting in the delay between the date the pleas were recorded and the date submissions were heard in February, 2011.

[ 5 ] The circumstances which gave rise to the charges are as follows. At the time in question R.J.N. and K.H. were involved in an intimate relationship. They had been dating since September or October, 2009. She is 25 years old and of First Nations descent. She has a son from a previous relationship who is four years of age. R.J.N. is 30 years of age, and he is also of First Nations descent. [ 6 ] On February 1st last year the couple had been arguing for a few days. R.J.N. was of the opinion that K.H. was being unfaithful to him.

On the 1st of February, 2010, it is known that K.H. picked up her welfare cheque in the morning, cashed the cheque and put some $375 in her purse. Some of it she was setting aside for her son. [ 7 ] Later in the day she and R.J.N. went out. The couple consumed a large amount of alcohol. She purchased a cell phone for him from the money that she had. At some point during the day she described him slapping her because she was being "mouthy," but ultimately they went to the movies. [ 8 ] During the time that they were in the theatre they were continuing their argument.

R.J.N. was heard to call K.H. a "whore", apparently continuing to express his opinion about her lack of fidelity. She fell asleep during the movie and he woke her up when the movie ended. They ended up walking along Burrard Street. He was at that point telling her to leave him alone. She refused, wanting to address the problem that they were having, in effect, wanting to continue the argument. [ 9 ] A surveillance camera which was in the area showed what occurred next. There was a struggle between the two where it appears that K.H. was trying to escape from R.J.N..

He dragged her into a bay in the lane running parallel to Burrard Street. As she was on the ground R.J.N. can be seen kicking towards her. It appears that he was wearing construction boots at the time. He then left the bay or alcove, carrying her purse. [ 10 ] A short time thereafter he returned and took the jacket she was wearing off her as she lay unconscious in the lane.

He then departed the area with her purse and the jacket, which apparently belonged to him, but which she had been wearing that evening. [ 11 ] Approximately 10 minutes later an employee of a business in the area who was closing for the day came to the lane to dispose of some garbage and discovered K.H. lying on the ground, unconscious. 911 was called and she was transported to hospital. Her injuries were very serious. The doctors who attended to her did not expect her to survive. She sustained multiple fractures to the bones of her face. There was bleeding in her brain. She had defensive wounds on her hands.

She had with her at the time no identification, because R.J.N. had taken her purse. It was not known who she was until February 3rd, 2010. [ 12 ] R.J.N. was arrested on that day. Blood was found on his clothing when he was arrested, and that blood was analyzed and it was determined to be K.H.’s blood. [ 13 ] These are in broad outline the circumstances that gave rise to these charges. [ 14 ] K.H. prepared a victim impact statement which has been filed as an exhibit on this sentencing. The impact of R.J.N.’s actions on K.H. would be difficult to overstate. She spent one and a half weeks in the hospital.

She suffered a brain injury. She needed to use a walker to move about for two to three weeks after her discharge from the hospital. She has had to have surgery to correct damage to one of her eyes. She experienced and continues to experience memory loss, pain, headaches, dizziness, loss of balance, a loss of the senses of taste and smell, enormous emotional trauma, fear of going out, fear of being alone, and stress all of the time. [ 15 ] She said in her victim impact statement: At first I felt like R. did kill me because of all of the pain and suffering and emotional injuries I had to go through.

Having my son see me like this has been really hard. My whole life has changed. [ 16 ] She also said: When R. gets out of jail I will feel completely unsafe to take public transit alone and to continue living in my home. I am so concerned about my safety when he gets out, that I worry about staying in Vancouver if he is allowed to be here. [ 17 ] K.H. was also contacted by the probation officer who prepared the Pre-Sentence report, and in that interview she expanded somewhat on the comments that are included in her victim impact statement.

As of October, 2010, she was still attending rehabilitation appointments to address problems with her balance and her ability to walk. She was still relying to a great extent on her mother to assist with the care of her son. She will also require rehabilitation to strengthen her arms and hands. She continued then to suffer from severe headaches. She was attending sessions with a therapist to deal with the trauma that resulted from the events. [ 18 ] K.H.’s mother also prepared a victim impact statement which has been filed as an exhibit on this sentencing.

In it she expressed her concern for her daughter's ongoing problems, and she described the impact that her daughter's difficulties have had on her life. She expressed her concern for the "next girl", as she expressed it, who comes into the offender's life, and she wondered how someone could hurt her daughter the way R.J.N. did and not even care about finding out if she was dead or alive. [ 19 ] R.J.N. has a criminal record.

As an adult, in 2001 he was convicted of assault for which he received a sentence of 10 days, and also assault with a weapon which resulted in a sentence of 60 days and probation for 18 months. The victim in those offences was the mother of his two children. He apparently put a knife to her throat and threatened to kill her. [ 20 ] In 2007 he was convicted of assault as a result of events which occurred in 2005. The victim in this case was his ex-common law spouse. He had been drinking and accused her of having affairs and called her a whore.

He clawed her face during the argument and she fled to a transition house, which resulted in the police being alerted to the situation. Ultimately, R.J.N. was sentenced to 14 days and placed on probation for one year with respect to this conviction. [ 21 ] While he was bound by that probation order the events occurred which resulted in a 2008 conviction for sexual interference. The victim in that case was an eight-year-old girl. There was drinking going on amongst the adults at the child's home. R.J.N. was one of the

guests in the home, and he was consuming alcohol with the other adults. He went to the child's bedroom, where she was in bed. He fondled her. He penetrated her with his fingers and he ejaculated on her bed.

He was interrupted or stopped by the child's mother, who came into the room. [ 22 ] There is some confusion about exactly what the sentence was, but it appears that he was sentenced ultimately to 16 months in custody with respect to this offence, and he was placed on probation for a period of three years. [ 23 ] In addition, R.J.N. has a conviction from 2008 for breaching an undertaking and two convictions for breaching other court orders from mid-2010.

These last two offences were waived to Vancouver from Prince Rupert since the time that R.J.N. was arrested and held in custody on the charges which concern me. [ 24 ] The probation order which was part of the sentence for the sexual interference charge which was handed down on November 14th, 2008, and which bound R.J.N.’s conduct when the events which gave rise to the charges that concern me, included conditions that he report to a probation officer, that he be assessed as a convicted sex offender, that he take counselling and treatment as directed, and that he not consume alcohol or other intoxicating substances. [ 25 ] R.J.N. has never reported to a probation officer as required by this order.

He has not engaged in any counselling. He was clearly consuming alcohol on February 1st, 2010. [ 26 ] The conviction for failing to comply with an order recorded in 2010 related to failure to comply with an order under the Sex Offender Information Registration Act. The conviction for breach of probation which was recorded in 2010 related to his failing to report as required by this probation order. He has been arrested with respect to that latter charge at least three times and released, and he has still never reported as required by that order. [ 27 ] A Pre-Sentence report was ordered and filed on sentencing.

It is apparent from the contents of that report that R.J.N.’s family was dysfunctional and that he had extreme difficulties as a child. He is connected to Native cultural beliefs, although he was not raised on a reserve. [ 28 ] His mother was consulted by the author of the Pre-Sentence report. She reported, among other things, that he was very abusive towards all of his girlfriends, with or without consumption of alcohol as a disinhibiting factor. [ 29 ] The violence that R.J.N. witnessed as a child made violence normal for him.

The alcohol consumption that he saw as a child allowed him to begin drinking at the age of 12, and he has used other drugs during the course of his life as well. [ 30 ] The victim of this offence, K.H., was interviewed by the author of the report, as I have indicated. She reported other incidents of physical abuse.

She said that at first R.J.N. was charming and treated her well, but there followed accusations of infidelity and serious problems respecting control in the relationship. [ 31 ] The Pre-Sentence report at page 6 under the heading "Attitude and Understanding Regarding Offence" includes the following comments: R. reports that some details of the offence are vague, as he admits that he and K.H., the victim, had consumed a large quantity of alcohol over the course of the day.

He states that he has not discussed the matter with anyone since it happened other than the psychologist who also interviewed him for this same matter. R. has no insight into his offending behaviour, nor did he demonstrate any remorse for his actions. He was not able to articulate his feelings and emotions with respect to the injuries he inflicted on K. or the subsequent pain and suffering he caused her, other than to say that she did not deserve it. Despite their arguing throughout the day he used the term "lost" in that he does not know which direction to go in to rectify his actions or in making amends to K.

He remarked on how K. was a good listener and would try to understand what was going on for him; further, that she would always make time for him even when it meant giving up time with her own friends. [ 32 ] A psychological report was also filed on sentencing. The doctor who prepared that report opined as follows at page 3 and 4 of the report. While R.J.N. expressed regret for assaulting the victim he appeared not to fully appreciate the extent of her physical and emotional trauma. I asked if he had seen the photos documenting her injuries.

He indicated that he had, and while he expressed regret his demeanour appeared to be rather detached and unemotional. R.J.N. admitted that considering his background he poses a significant risk for future violence. He expressed a willingness to attend whatever programs are recommended and to try to explore the issues that may underlie and support his violence. [ 33 ] Now, skipping ahead briefly: As mentioned above, R.J.N. did not appear very remorseful for the trauma he inflicted on the victim.

However, he is not generally antisocial and I do not believe that his demeanour regarding the offence reflects a lack of empathy on his part. Rather, it appears consistent with his reserved and guarded style, particularly in formal situations. I believe that R.J.N. represents a very high risk for future relationship violence. He has a pattern of such violence spanning about 10 years. He has thus far not received treatment, and he may continue to relapse and drink, which will diminish his controls and further escalate his risk.

While abstinence will reduce his risk, he must address the underlying issues associated with his anger. R.J.N. is a fairly attractive, bright and well-spoken individual. While these attributes are generally desirable, they also facilitate his meeting and becoming involved with potential victims, and thus they may serve to elevate his risk until he benefits from treatment. Further, he indicated that he is an accomplished boxer, and this was confirmed by earlier reports. He thus is very capable of inflicting serious injuries when he does become aggressive.

Another significant risk factor is his level of violence. According to the arrest report he apparently used potentially lethal force by kicking the victim in the head while he was wearing boots after she had fallen, and was particularly vulnerable. Finally, I understand that R.J.N. has a prior conviction for a sex offence and has not received treatment related to this. However, considering the details of that offence, his general history and his pattern of offending, I am far more concerned about his risk for relationship violence than for committing another sex offence.

However, he can certainly be offered various treatment options while in custody that address all aspects of his offending. If he is placed in the federal system he may be required to take sex offender treatment simply because of his conviction. [ 34 ] A Gladue Pre-Sentence report was also prepared and filed. For the purposes of that report the offender's mother was interviewed. She has not had contact with R.J.N. for over a year. She reported to the author of the report that R.J.N. was abused physically by his father and also by his older brother, and that she often had to attempt to protect him.

He in turn attempted to protect his sister, who was 11 years younger than he was and who was a very important person in his young life. He went so far as to beat their father for sexually abusing the sister, and a boyfriend for physically abusing her. [ 35 ] The Gladue report concludes with this comment: R.J.N. is a member of the Tsimshian Nation, whose territory is located in the northwest of British Columbia. R. is a prime example of someone who has been negatively impacted by colonization. R.’s father and his father before him both spent considerable time in Indian residential school.

As a result of at least two, now three including R. and his siblings' generations, exhibit the legacy of destruction so many Indian residential school survivors have had to live with. As well, R.’s mother J. reports sexual abuse while growing up was almost expected. She recalls being abused by several perpetrators throughout her life. Sexual abuse was normalized for J. Unfortunately, she was unable to protect her daughter from the same. The cycle continued with J. and R.'s union of 20 years of further damage to themselves and their children.

The intergenerational impact of physical, sexual, verbal and substance abuse as reported from this family has had a direct impact on the person who is R.J.N.. These destructive behaviours have been normalized for R., and indeed his siblings. [ 36 ] The report concludes with a list of "restorative-based" programs which would be available to R.J.N. once he is in the community. Most of these programs are located outside of the Lower Mainland. [ 37 ] The Pre-Sentence report also touches on some aspects of R.J.N.’s First Nations status at page 7 of the report.

R. is a status member of the Tsimshian Nation band in Fort Simpson, B.C., where his grandfather, B. H., is chief. He is registered under his mother's name. However, he is not interested in returning to his northern community. R. has not lived on reserve, but identifies with his culture and is by birthright a chief in waiting. He acknowledges that he will likely never become chief, in part because his older brother holds first position, and because of his involvement in the criminal justice system.

In the past he has attended sweats, engaged in outdoor fishing, hunting and survival activities, but for some time has not been a part of this lifestyle and culture other than doing some smudging. When discussing with his mother what would be available to R. with respect to programming on or off reserve, she was not able to provide any information. Traditionally it would be up to individuals who are in trouble to speak with elders to seek advice. The writer contacted Chief B. H. from R.'s reserve. However, due to health problems with the chief his wife M. H., R's grandmother, spoke instead with the writer.

She was not able to offer any insight with respect to what the reserve may be able to offer R. in terms of programs or support. [ 38 ] And then there is also this comment at page 6 of the report. R. reports that his support system is in Vancouver. He is not interested in returning to his northern community of either Prince George or Prince Rupert. He believes that funding may be available through his Band for education or program costs.

He is interested in involving himself in Native spirituality and cultural programming and reports that he has attended such programming while living in Prince George, and that he attends the Native Elder program currently in custody. He has also signed up to attend the Alpha program in custody. This program is about Christian basics, an opportunity for inquirers to learn about the Christian faith. R. cushioned his interest, however, in that it was an opportunity to be outside of his cell.

He went on to talk about how much of his remand time has been spent in lockup. [ 39 ] On the basis of all of the circumstances, the Crown takes the position that a sentence of five years is necessary. The maximum sentence for aggravated assault is 14 years, and the maximum sentence for robbery is imprisonment for life. The Crown also seeks certain ancillary orders. [ 40 ] R.J.N. has been in custody since February 3rd, 2010, a period of just over 14 months. He has been sentenced for two offences during that time, which takes into account two months of the time that he has been in custody.

The offence in question here, I note occurred three weeks before the Truth in Sentencing legislation became law. There is one year of pre-sentence custody that I must consider in determining the appropriate sentence today. [ 41 ] On behalf of the offender, it is said that he takes full responsibility for his actions. Mr. Mayes noted that the complainant pursued R.J.N. just before the assault began and that both parties had consumed a significant quantity of alcohol.

It is said that R.J.N. is now prepared to engage in counselling to address the issues that are at the root of his behaviour, his criminal behaviour, and that he is

prepared to obey orders of the court aimed at his rehabilitation and which would ultimately result in protection of the public from hiscriminal behaviour. [42] Mr. Mayes pointed out that Gladue and like cases direct the justice system to put an emphasis on "sharing the moral blame", ashe expressed it, for the fact that First Nations offenders are incarcerated more frequently than other offenders. Mr. Mayes suggested thatI should consider the time R.J.N. has been in custody as two days for each day because of the hardships associated with overcrowding atNorth Fraser Pretrial Centre. Mr.

Mayes suggested that an appropriate sentence would be two years less one day. [43] R.J.N. addressed the court himself, and I am going to read as part of these reasons what he said. My name's R. N., and it disturbs me to be before the courts for, for the things I'm here for. I'm very remorseful for everything that'shappened. In the past I never took my programs or all of my conditions because there was nothing to be up there for it.

I believed thatmy way of life wouldn't affect anybody but me, and now I see that it's affected my sister, my dying mother and my grandparents, andwant to stop it before it affects my kids too. I've spent this entire year thinking about the things that I've done, and I remember when my sister was born I promised her that I wouldprotect her from any violence that any person that tried to hurt her, and the man I most protected her from was very violent and hurtfuland I used myself as a shield to shield her from it.

And up until recently I thought that I would never become that person, but talking tothe lady who helped [and then there is something which was indiscernible] she informed me about the things that she talked about withmy family, and what they said. I was ashamed to realize that the person I fought so hard to protect my sister from is the person I'vebecome. In the past I've had nobody to help me and no real reason to recover. Now I've got people actually trying to reach out to me. My sisterwants me to ask her for help and talk to her, and my mom's reaching out.

Counsellors who don't even know me say nice things about me,and I'm not used to any of this. I know that the programs I've taken aren't anything to do with the help that I need, but it's all that I had at my disposal. No matter howmuch interest I expressed in programs that would help me with my recovery I didn't have access to them, but I talked to people who didhave access to them. I've got people willing to help me when, when I've done nothing for them and I've done nothing to earn, earn it.

I'd like to express my willingness and eagerness to identify and address the issues that contribute to all my violent tendencies, as well asfind solutions to my alcoholism and ways to abstain from relapse. My sons are quickly becoming young men. I want to be a part ofthose lives, but I don't want to be a part of those lives until I can offer them a positive male figure, one without violence and one withoutalcohol.

I've put thought into treatment centres and I've talked to other inmates about their experiences with them, and I believe I can pull moreout of my experiences with them if I ever make it to one simply because I have more in my life now than I've ever had before, and I don'twant to lose any of it. I know I can be a better person than the person I've been these past 10 years or so. All I can offer is my apologies to K. for the pain and suffering she's endured. I hope her and her family can overcome everything that'shappened and start living a better life that I suppose they all deserve.

Thank you for taking the time to listen. [44] There are certainly signs allowing a bit of optimism out of what R.J.N. said, but his comments have to be considered against thebackdrop of his behaviour over the last 10 years, and in particular his behaviour with respect to certain probation orders that have boundhis conduct and which have offered him as much help as the community has. [45] Listening to R.J.N. express a willingness to address the source of his criminal behaviour, I could not help but think that asrecently as December, 2009, just two months before the attack on K.H., he was in the community bound by conditions of a carefully-crafted probation order which offered him all of the assistance that is available in the community.

He had been declining to obey thatorder and take that assistance for over a year at the time that he assaulted K.H. [46] I regret to find it necessary to add that R.J.N.’s comments focused almost exclusively on the effect his actions have had onhimself and his immediate family. His apology to K.H. came almost as an afterthought. I was reminded when I listened to him speak ofthe opinion of the authors of the various reports respecting his level of empathy for his victim and his lack of remorse. R.J.N. can saythe words, but it is apparent that he does not feel empathy for K.H.

He simply does not understand. [47] Counsel for the Crown referred to the following cases: R. v. Gladue (SCC), [1999] 1 S.C.R. 688, R. v. Wells2000 SCC 10 , [2000] 1 S.C.R. 207, R. v. Irwin [2004] B.C.S.C. 458, R. v. Craig [2005] B.C.C.A. 484, R. v. Willier [2005]B.C.C.A. 404, R. v. Whitman [2006] B.C.S.C. 865, and R. v. Napesis [2010] B.C.C.A. 499. [48] Counsel for the offender referred to the following cases: R. v. Evers [2009] B.C.C.A. 500, and R. v.

Rush [2010] B.C.C.A. 293. [49] As I have indicated at the beginning of these reasons, I sought further submissions from counsel respecting some recent cases,and in particular the case of R. v. Ladue. That case involved an appeal of a decision of mine, a sentence that I handed down. [50] I have read and considered the following cases in addition to the cases referred to by counsel: R. v. Jack [2008] B.C.C.A. 437, R.v. Nasogaluak [2010] S.C.C. 6, R. v. Sunshine [2010] B.C.S.C. 578, R. v. Jacko [2010] O.N.C.A. 452, R. v. Charleyboy [2010] B.C.C.A.530, R. v. Collins [2011] O.C.A. 182, R. v.

Johnny [2011] B.C.C.A. 25, R. v. Stimson [2011] A.C.A. 59, R. v. Charles [2011] B.C.C.A.68, and of course R. v. Ladue [2011] B.C.C.A. 101. [51] The court in Ladue made the comment at paragraph 64: While the trial judge acknowledged his Aboriginal heritage, she did not give it any tangible consideration when sentencing Mr. Ladue. If effect is to be given to Parliament’s direction in s. 718.2(e), then there must be more than a reference to the provision. It must be given

substantive weight, which will often impact the length and type of sentence imposed. [ 52 ] I take the guidance that I must from this comment, but I take that guidance in the context of the clear statements by the Supreme Court of Canada that the

section does not require nor mandate an automatic deduction in sentence for Aboriginal offenders ( R. v. Gladue , paragraph 88 ). I also consider that in Gladue the court said the following at paragraphs 78 to 80: In describing the effect of s. 718.2(

e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe in the importance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases.

Clearly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant. Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender.

Generally, the more violent 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. As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offence, 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 his or her community? What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing?

What sentencing options present themselves in these circumstances? [ 53 ] In my view the decision in Ladue must be understood in light of the clear direction from the Supreme Court of Canada. These cases must be decided on a case-by-case basis. The weight to be given to the Aboriginal status of the offender must in part depend on the danger that the offender poses to society.

The higher that risk, the less significant the fact of the offender's Aboriginal status. [ 54 ] I am confident that the Court of Appeal in Ladue did not intend to communicate to sentencing judges that no matter how dangerous the offender is when in the community, that there should in all cases be a discount of the appropriate sentence for an Aboriginal offender. [ 55 ] I follow, therefore, the guide set out in paragraph 93 of Gladue , and as I do so I reach the following conclusions.

Given R.J.N.’s record and the circumstances of the offences for which I must sentence him, incarceration is a necessary part of the sentence. The defence indeed does not suggest otherwise. There is a clear connection between the violence which is part of a pattern for R.J.N. and the distress he endured growing up as a member of an Aboriginal family. [ 56 ] There is at present some hint of support for R.J.N. from his sister and his aunt, but they reside elsewhere in the province and he does not wish to leave the Lower Mainland. The support itself seems fairly theoretical.

Each of his sister and his aunt has provided him with an address where he might write to her, and that is all that has been offered. [ 57 ] There are rehabilitative resources available to R.J.N. once he is in the community. Again, many of them are outside of the Lower Mainland where he does not want to be, but he may only take advantage of those facilities and resources if he is obedient to court orders, which he has not been up until this point in time. [ 58 ] The victim does not wish any involvement with a restorative justice approach. She is frightened of R.J.N. and does not wish to see him.

This, of course, is not determinative of the issue, but it is a factor I must consider. [ 59 ] Having decided that a term of incarceration must form at least part of the sentence, I must consider whether a lesser jail term might be appropriate for R.J.N. than for a non-Aboriginal offender, and I will consider that. [ 60 ] The Supreme Court of Canada in Gladue ultimately said this at number 13 of paragraph 93, which is in effect the map for sentencing judges: It is unreasonable to assume that aboriginal peoples do not believe in the importance of traditional sentencing goals such as deterrence, denunciation, and separation, where warranted.

In this context, generally, the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non-aboriginal. [ 61 ] Mitigating factors here include the relative youth of the offender (he is 30 years old), that he entered pleas of guilty five months after the events and two months in advance of a scheduled trial, and that his background, as I have tried to describe, has been significantly troubled. [ 62 ] Aggravating factors include that he was in an intimate relationship with the complainant.

They were described by the complainant's mother as planning to cohabit at the time of the events. The victim was intoxicated, vulnerable, and ultimately kicked in the head with heavy boots until she was unconscious. The offender stole from her and left her, and then returned and took his jacket off her as she lay in the laneway. She would likely have died if she had not been discovered quickly. [ 63 ] R.J..N. has a serious and related criminal record. He has repeatedly victimized women with whom he is in intimate relationships.

He has not taken advantage of assistance offered to him and indeed ordered that he participate in the past through probation conditions. He was in breach of a probation order by consuming alcohol on the occasion in question. He has been assessed generally and by a number of authorities as at a very high risk of future violence. Indeed, R.J.N. agrees with that assessment.

[ 64 ] In my view the sentence suggested by the defence is not proportionate to the gravity of the offence and the degree of responsibility of the offender. In order to denounce his conduct, deter him and others from like conduct, to rehabilitate him -- and I say this because he has not been rehabilitated while he is in the community -- and ultimately to protect the public from his criminality, I am of the view that the following is the least restrictive sentence that is appropriate here. [ 65 ] R.J.N., you should rise now. Thank you.

The appropriate sentence here is one of five years with credit for one year in custody before sentencing, which I have considered at the elevated ratio. R.J.N. will therefore serve three years in custody on each count on the Information. These sentences will be concurrent one with the other. [ 66 ] In addition I am going to make an order of restitution under s. 738. The amount of $375 will be paid by R.J.N. to the Clerk of the Court, to be paid out to K.H. [ 67 ] I will make the order with respect to his DNA that has been requested, and I will make the order under s. 109 that has been requested.

The subsections set out what is required: certain items he may not possess for a period of 10 years; other items he may not possess for a period of his life. [ 68 ] There will be no surcharges with respect to this matter. Thank you. (PROCEEDINGS CONCLUDED)