Her Majesty The Queen v. J.W.S. DECISION ON SENTENCE Editorial Notice Identifying information has been removed from this electronic version of the judgment. JUDGE: The Honourable Anne S. Derrick, 2013 NSPC 7

IN THE PROVINCIAL COURT OF NOVA SCOTIA Cite as: R. v. J.W.S., 2013 NSPC 7 Date: January 25, 2013 Docket: 2311709, 2311710, 2311713 Registry: Halifax BETWEEN: Her Majesty The Queen v. J.W.S. DECISION ON SENTENCE Editorial Notice Identifying information has been removed from this electronic version of the judgment. JUDGE: The Honourable Anne S.

Derrick HEARD: January 18 and 21, 2013 DECISION: January 25, 2013 CHARGES: sections 271(1); 267(b); and 88(1)of the Criminal Code COUNSEL: Susan MacKay, for the Crown DEFENCE: Victor Goldberg, for the Defence, with Mark Mills, Articling Clerk By the Court: Introduction [ 1 ] On November 22, 2012 I found JWS guilty of the sexual assault of MLC on May 6, 2011, contrary to section 271(1) (

a) of the Criminal Code , guilty of biting MLC, causing bodily harm to her, contrary to

section 267(b), and guilty of unlawful possession of a knife for a purpose dangerous to the public peace, contrary to section 88(1). My reasons are reported at R. v. J.W.S., [2012] N.S.J. No. 620 . [ 2 ] For JWS’ sentencing I was provided with: a pre-sentence report dated January 11, 2013; a letter from his psychologist, Dr.

Maureen Sullivan, dated January 10, 2013; a translation into English of an apology letter written by JWS to MLC; a copy of an Exclusion Order dated July 3, 2012 issued against JWS; an email concerning parole eligibility; and cases from both Crown and Defence. [ 3 ] On January 22, I also received brief written comments by email and cases from the Crown and Defence on the issue of whether the lack of a prior record is a mitigating factor in sexual assault cases, and on the issue of deportation as a mitigating factor. I received a further email from the Defence on January 23.

Position of Crown and Defence [ 4 ] The Crown is seeking a penitentiary term for JWS of 4 – 5 years. It is Ms. MacKay’s submission that the emphasis in sentencing JWS has to be on denunciation and deterrence due to the violence used by JWS, the lack of mitigating factors, and the physical and psychological harm done to MLC. [ 5 ] Ms. MacKay submits that JWS’ offences are aggravated by the fact that he sexually assaulted his pregnant girlfriend.

This, she says, should be considered aggravating as it amounts to a breach of a position of trust. [ 6 ] The Defence submits that the mitigating factors in this case justify a sentence outside the range. It is the Defence position that JWS should not be subject to a custodial sentence. A variety of options were suggested: time served – the three days JWS spent in custody in May 2011 following his arrest; a suspended sentence, or a fine. Mr. Goldberg indicated that he had assumed a supervisory sentence

would essentially be meaningless as the court and probation services would have no jurisdiction in […] to supervise JWS. [ 7 ] I will be discussing the aggravating and mitigating factors in this case shortly. To conclude the issue of the Crown and Defence positions, I note the Defence is not objecting to the ancillary orders being sought by the Crown: a DNA order, a lifetime weapons’ prohibition order, and a 20 year SOIRA order.

Summary of Facts from the Trial Decision [ 8 ] I made detailed and specific findings of fact in my trial decision which I will not be reviewing here. In my trial decision, I summarized the essential facts as follows: 154 …on May 6 Mr. S. was angry at MLC because she had ignored his texts and calls. There was also the issue of the abortion which MLC was insisting on going ahead with. Mr. S. pushed around MLC's furnishings in anger, bit her in anger, went and took a knife from the kitchen in anger, tore her t-shirt in anger, tore her underpants in anger, and then had sex with her. Mr.

S. dominated MLC that night and did nothing to ensure that in spite of everything that had happened in the bedroom, she was a willing sexual partner. [ 9 ] I found that on May 6, 2011, JWS arrived at MLC’s apartment in an intoxicated state. Disinhibited by alcohol, JWS got out of control. ( J.W.S., paragraph 129 ) [ 10 ] MLC was frightened by JWS’ behaviour, including his holding the knife. She became subdued in the face of it. When JWS bit MLC on the forearm he broke the skin creating a painful and bloody wound.

MLC wanted to go to the hospital: JWS did not respond to her request. ( J.W.S., paragraphs 132 – 133 ) [ 11 ] I noted that when JWS noticed that MLC did not “seem happy” he stopped having sex with her. The sexual intercourse lasted less than 5 minutes. ( JWS, paragraphs 78, 79 and 153 ) Victim Impact Statement [ 12 ] Ms. MacKay advises that MLC did not wish to file a Victim Impact Statement. MLC’s evidence at trial did indicate how she was affected by what JWS did to her. While the events were unfolding in the bedroom, she was afraid of being hurt by him.

She was anxious about the bite on her arm and wanted medical care. She was ashamed by what happened. She didn’t want people to know. Afterwards, MLC was scared, emotional and exhausted. She felt stigmatized by having chosen a boyfriend who then behaved the way JWS did. The Offender [ 13 ] JWS is 28 years old. He comes from a close and supportive family: his mother has visited him since he was charged and his father flew from […] to attend his sentencing hearing. I understand JWS’ father speaks no English.

It was obvious to me how upsetting these proceedings are for him. [ 14 ] According to the pre-sentence report, JWS is a qualified […] although he has worked in the field only during a year’s conscription to the […] navy. He has an interest in working in sales. He came to Nova Scotia in 2009 on a study permit to learn English. When that expired, he applied for a travel visa. The travel visa expired as well while JWS was awaiting trial and JWS has no status now in Canada.

He is subject to a removal order in the form of an Exclusion Order issued by the Canada Border Services Agency and will, at some point, be deported as a result of his convictions and the fact that he has no status to stay in the country. [ 15 ] The expiry of JWS’ visa prevents him from working. He has not been able to do volunteer work as he cannot obtain a clear criminal record check. [ 16 ] JWS has been in a relationship with a university student, aged 25, for about a year. She is aware of the charges and is supportive of him.

She attended JWS’ sentencing hearing. [ 17 ] A cousin of JWS’ was contacted for the pre-sentence report. W.S. described being surprised and shocked over JWS’ offences. She characterized JWS as “very nice” and “considerate” and confirmed that he is very close to his family. She advised that JWS is very remorseful and feels he has learned from his actions.

Purpose and Principles of Sentencing [ 18 ] Parliament has articulated the fundamental purpose and principles of sentencing in sections 718 and 718.1 of the Criminal Code : 718 [Purpose] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law 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; (

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 and to the community. [19]

Section 718.2 recites the other principles that the sentencing court is mandated to take into consideration, which for the purposes ofthis case are: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender ... (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders ... [20] The proportionality principle set out in

Section 718.1 is also relevant to sentencing JWS: a sentence must be proportionate to thegravity of the offence and the degree of responsibility of the offender. Assessing proportionality requires a "complicated calculus" by thesentencing judge. (R. v. L.M., 2008 SCC 31 , [2008] S.C.J. No. 31, paragraph 22) [21] Sentencing has been explicitly recognized as a "profoundly subjective process." (R. v.

Shropshire, (SCC), [1995] 4S.C.R. 227, paragraph 46) Determining "a just and appropriate sentence is a delicate art" which requires the careful balancing of "thesocietal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence…” (R. v. C.A.M., (SCC), [1996] S.C.J. No. 28, paragraph 91) An appropriate sentence cannot be determined in isolation. Regard mustbe had to all the circumstances of the offence and the offender. (R. v.

Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206, paragraph44) It is a "profoundly contextual" process in which the sentencing judge has broad discretion. (L.M., supra, paragraph 15) [22] Sentencing includes a retributive aspect. Retribution is constrained by proportionality. It …represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moralculpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender,and the normative character of the offender's conduct.

Furthermore, unlike vengeance, retribution incorporates a principle of restraint;retribution requires the imposition of a just and appropriate punishment, and nothing more. (C.A.M.), paragraph 81) Aggravating Factors Circumstances of Offences [23] The circumstances of JWS’ offences are serious. He had non-consensual sexual intercourse with MLC, his pregnant girlfriend.While not in a position of trust or a spousal relationship with MLC, she was an intimate. She had admitted JWS to her apartment and herbedroom.

He assaulted her in her own home and when she requested medical attention for the bite wound, he was unresponsive.Although MLC was a stoic witness, it was apparent from her evidence that these were distressing events that have had an effect on her.The assault causing bodily harm was significant enough to have left MLC with a scar. Mitigating Factors Lack of Prior Record [24] JWS has no prior record, either in Canada, or in […]. (Pre-sentence Report, page 5) It is the Crown’s view that the absence of acriminal record is not uncommon in cases of sexual offences and that it should not be accorded “undue weight.” Ms.

MacKay submitsthat a significant sentence should be imposed for a major sexual assault even where the offender has no record. [25] I note that even in the context of a horrific, sadistic sexual assault on a stepdaughter, and an assault causing bodily harm to thatchild, and the aggravated assault of an infant son, lack of a prior criminal record was treated by the Ontario Court of Appeal as havingsome mitigating effect on the length of sentence. (R. v. J.B., (ON CA), [2004] O.J. No. 2559, paragraph 30) Remorse [26] The Crown submits that JWS’ expressions of remorse should be given little weight in mitigation.

The pre-sentence report notesthat JWS admitted responsibility for his actions and expressed remorse but took the view that JWS “minimized” his behaviour. This viewwas based on JWS indicating that he had not wanted to hurt MLC stating that “generally after they would argue they would intimately“make up” which is what he thought occurred.” (Pre-sentence Report, page 5) In the Crown’s submission JWS is doing nothing morethan admitting he had sex with MLC and that in any event, remorse expressed after a trial should be given minimum weight as amitigating factor at sentencing. [27] Ms.

MacKay is also dismissive of JWS’ apology letter to MLC. (Exhibit 2) She characterizes it as doing nothing more thanminimizing his actions and says it articulates a position that is very similar to JWS’ position at trial. [28] In his letter to MLC, JWS makes unequivocal statements about his wrongdoing.

He admits losing control and hurting MLC andsays: “I am really really sorry for that.” He also acknowledges that he had sex with her without her consent, saying: “…I should haveknown you did not want to have sex under that situation and for this and everything else I am very sorry.” He does not mince words: “Iam so sorry for my stupid and rough behaviour that day…” and he apologizes for losing control and biting her. He also acknowledgesthat his behaviour “terrified” her.

[ 29 ] JWS was similarly very apologetic in his comments at the end of the sentencing hearing. He had written a letter in […] ( Exhibit 5 ) which was read in English by Ms. C.. He spoke of being ashamed of, and deeply regretting, his conduct, losing control and harming MLC physically and emotionally. He gave an expansive apology – to MLC, to his family, the court, and Canada. JWS was clearly emotional during the reading of his statement, and I accept that his expressions of remorse are genuine. [ 30 ] Mr.

Goldberg reminded me that I heard evidence during the trial about the cultural significance for JWS of an apology letter. At the end of April 2011, in response to seeing MLC being kissed by another man, an event which upset JWS, he asked her to provide him with a written apology. MLC did so, even when he told her it was no longer necessary. It was a very fulsome apology which JWS accepted as sincere. That evidence does indicate to me that a written apology has a particular significance for JWS, drawn from cultural norms and practices.

Initiation of Counseling and Treatment [ 31 ] It is the Crown’s position that initiating counseling and treatment is of little consequence in cases where the sentencing emphasis must be on denunciation and deterrence. The Defence submits that it must not be marginalized even in such cases. [ 32 ] JWS began counseling sessions in October 2011 with Dr. Maureen Sullivan, a psychologist. At that time JWS reported difficulties with anger management which were worsened by alcohol consumption. These issues are apparent from the trial evidence. JWS indicated to Dr.

Sullivan that he was highly motivated to deal with them. [ 33 ] Dr. Sullivan’s report, ( Exhibit 1 ) advises that she initiated a course of cognitive-behaviour therapy with JWS to address the anger management problems. She found JWS to be “very engaged in therapy and…very receptive to the strategies discussed.” According to the pre-sentence report even though there has been a language barrier between Dr. Sullivan and JWS, treatment has been beneficial. [ 34 ] The role of alcohol in relation to JWS’ anger management issues was also targeted and JWS was strongly encouraged by Dr.

Sullivan to avoid alcohol consumption. It appears that JWS has voluntarily reduced his alcohol consumption very considerably. Mr. Goldberg advises that JWS no longer drinks with his friends to excess which was the case in May 2011. [ 35 ] JWS informed Dr. Sullivan about the charges and they reviewed “the characteristics of healthy relationships, and spoke of what constitutes consensual sexual activity.” Dr. Sullivan reports that JWS has been very receptive to these discussions. JWS expressed “great regret” to Dr. Sullivan over the May 2011 incidents.

He indicated that his present relationship is “very different, in a positive way…” from his relationship with MLC. [ 36 ] In his sessions with Dr. Sullivan JWS expressed his remorse about what he had done to MLC. She advised the author of the pre- sentence report that in her opinion JWS’ remorse is genuine. Language Problems [ 37 ] The first question I have to address before I consider the issue of whether language problems mitigate a sentence is whether JWS has language problems. Ms.

MacKay says she is not convinced there are significant language barriers in this case. [ 38 ] The pre-sentence report notes that there were language barriers in Dr. Sullivan’s therapeutic consultations with JWS although notwithstanding, the sessions have been beneficial. JWS attended for the pre-sentence report interview with an interpreter. Through the course of the trial and at sentencing, Mr. Goldberg has had to utilize the assistance of either Ms. C., the interpreter, or friends of JWS who speak […].

Everything that has occurred in court – testimony, submissions, decision-rendering, sentencing – has been done with full translation by Ms. C.. Mr. Goldberg has also indicated that JWS experienced considerable language difficulties when he was in custody in May 2011 with other prisoners making fun of him and correctional officers being frustrated. JWS apparently could not understand what was required of him and struggled to cope. [ 39 ] I am presuming that JWS’ English has improved somewhat since May 2011 as he was able to attend counseling sessions with Dr. Sullivan. However, Mr.

Goldberg’s experience of consistently needing help to communicate with his client satisfies me that JWS still has only very limited ability in English. [ 40 ] I note that information obtained from the Correctional Service of Canada ( Exhibit 4, January 17, 2013 email from Virginia Clark- Druhan ) indicates that in the federal prison system, programs are offered in English and French only. Access to an interpreter is on a case-by-case basis. Programs in the provincial correctional system are limited. [ 41 ] A lack of facility with English has been treated as a mitigating factor in sentencing: R. v.

Huang, [2005] O.J. No. 1855 (S.C.J.) , paragraph 21 ;R. v. Shaliwal, [2011] M.J. No. 213(Q.B.) , paragraph 41 ;R. v. Lim, [1990] O.J. No. 949 (H.C.J.) , page 3(Quicklaw version) Release Conditions [ 42 ] It is the submission of the Defence that JWS’ release conditions have, in effect, amounted to a significant restriction of his liberty. The Crown disagrees. [ 43 ] JWS has been on a recognizance with a surety for the past 20 months. On their face, his release conditions have not been onerous. The Crown characterizes them as liberal release conditions.

In addition to the usual condition to have no contact with the complainant and not to be near her residence, JWS was required to surrender his passport and placed on a condition to remain in Nova Scotia. [ 44 ] Mr. Goldberg’s submissions concern the effect of JWS’ release conditions: they have restricted JWS’ liberty to see his family or takes courses. He has been unable to visit his family without his passport. His family has had very limited ability to visit him – his mother came for a few weeks and had to leave as the stress exacerbated her heart condition.

JWS’ father was only able to come and see his son for the sentencing.

[45] Mr. Goldberg argues that JWS’s situation – an expired visa and no passport – have made it impossible for him to take courses. Hecould not even enroll in a language studies programme. [46] “Stringent bail conditions” are a factor to be considered in sentencing. They “…represent an infringement on liberty and are, to thatextent, inconsistent with the fundamental principle of the presumption of innocence.” (R. v. Downes, (ON CA),[2006] O.J.

No. 555 (C.A.), paragraph 29) While this principle has been recognized to have particular significance where there havebeen onerous house arrest conditions (Downes, paragraph 33), a sentencing judge’s responsibility is to assess how an offender’s libertywas affected by his or her conditions of release. The crucial consideration is whether an offender experienced a serious impact on theirpre-bail way of life.

Being cut off from family and friends and prevented from obtaining employment can represent dimensions of arestrictive bail. (Downes, paragraph 34) [47] Downes has subsequently had its scope narrowed, as is explained in R. v. Voeller, [2008] N.B.J. No. 354 (C.A.), paragraphs 15-20,and R. v. Knockwood, [2009] N.S.J. No. 448 (C.A.), paragraphs 29-32.

In Knockwood, the Nova Scotia Court of Appeal determined the"present state of the law to be such that the impact of strict release conditions may be considered or 'put into the mix', together with allother mitigating factors, in arriving at a fit sentence." (paragraph 33) [48] For bail conditions to be considered in mitigation, they must impose significant hardship and restrictions on liberty. (Voeller,paragraph 22) In Knockwood, it was held that the impact of the particular conditions of release upon the offender "must be demonstratedin each case." That has occurred here.

Immigration Status [49] JWS’ immigration status raises another issue that Mr. Goldberg submits should have a mitigating effect on his sentence. The issueis JWS’ parole eligibility. [50] Mr. Goldberg drew my attention to subsection 128(4) of the regulations to the Corrections and Conditional Release Act, S.C. 1992,c. 20. This

section of the regulations under the CCRA provides that an offender against whom a removal order has been made under theImmigration and Refugee Protection Act is not eligible for day parole or an Unescorted Temporary Absence until they are eligible forfull parole. However in the course of the sentencing hearing, Michel Gallant of the Canada Border Services Agency gave evidence. Hetestified that JWS was on his caseload and that he has no status in Canada as his visa expired while he was awaiting trial. The ExclusionOrder issued to JWS is a type of removal order.

JWS will be receiving a deportation order as a convicted foreign national. Mr. Gallantexplained what this means for a foreign national sentenced to imprisonment. [51] A foreign national sentenced to either a provincial or a federal term of imprisonment and served with an Exclusion Order does nothave access to early parole or day parole. The earliest release date for such an offender is his or her statutory release date.

At that time,the Canada Border Services Agency would serve a warrant of arrest, and would take the offender into custody and deport them. [52] JWS’ statutory release would occur at the point when he had served two-thirds of his custodial sentence. The CBSA relies on thecalculation made by the relevant correctional authorities – either Federal prison or provincial correctional authorities – for the date whenstatutory release is to occur. [53] Prisoners eligible for parole are entitled to be considered for day parole at six months before their Parole Eligibility Date.

Fullparole is possible at one-third of a sentence. [54] The Defence has submitted that JWS’ lack of access to parole should be treated as a mitigating factor in sentencing. Ms. MacKayargues that it is “cancelled out” by virtue of the fact that JWS will not be subject to any parole supervision: his sentence will effectivelycome to an end when he is deported, an action that will be taken at the time of his statutory release. [55] This issue was dealt with by the Appeal Division of the Prince Edward Island Supreme Court in R. v. Powell, [1989] P.E.I.J. No.97.

That court recognized that discrimination in sentencing should be avoided and held that: …Where, because of regulations that differently treat two prisoners who are similarly sentenced, the Court should recognize thatdifference and attempt to rectify it.

A disparity in the length of time that two persons are to serve in jail based on citizenship, should notbe tolerated… [56] Powell’s sentence of eighteen months for two counts of dangerous driving was reduced to nine months due to credit being affordedhim for six weeks he spent in pre-trial custody and the mitigating effect of Powell’s ineligibility for parole as a foreign national. It islikely Powell was given the standard credit for remand time of 2 for 1 which means that the halving of his sentence was not all due to theparole ineligibility factor.

Deportation [57] It is the position of the Defence that JWS’ inevitable deportation – which means no ability to return to Canada without specialMinisterial dispensation – should be treated as a mitigating factor. Ms. MacKay submits that it should not. She relies on R. v. Bratsensis,[1974] N.S.J.

No. 182, a decision of the Nova Scotia Supreme Court, Appeal Division where it was held that the probability ofdeportation should not affect sentence “except, perhaps, to permit a slight reduction of what would otherwise be proper.” The Court wenton to observe: …Deterrence of the criminal himself becomes less important as a factor if he leaves Canada and thus ceases to be a potential lawbreakerhere, although the need still would remain to set an example and deter others. (Bratsensis, paragraph 6) [58] In a more recent decision, Hill, J. of the Ontario Superior Court of Justice, noted that the question of whether deportation should be“a consideration capable of tempering the severity of the sentence to be imposed” has not been dealt with in a wholly consistent fashion.(R. v.

Critton, [2002] O.J. No. 2594, paragraphs 77 – 85) For Hill, J. the preferable view is that

…the accused’s deportation is a factor which can, in some circumstances, serve to mitigate the severity of the sanction imposed by thecourt…deportation is relevant to the sentencing function in at least three respects: (1) the risk of incomplete rehabilitation on release from custody is not a risk imposed upon the Canadian people; (2) frequently, the offender subject to deportation serves “harder time” in Canada because he or she is incarcerated a significant distancefrom family who are resident in a foreign country;

(3) Canadians are spared the expense of continued incarceration of the accused where the offender is deported. (Critton, paragraph 86) [59] As there is nothing to suggest that JWS would continue to be incarcerated beyond his statutory release date, Hill, J.’s third pointhas no application to this case. It is true that JWS’ inability to access parole due to being subject to a removal order will mean that hisincarceration will be more costly than if he could secure an earlier release.

However, I will deal with the significance of paroleineligibility as a stand-alone issue, not connected to deportation. [60] Hill, J. considered Critton’s “certain deportation” to be a mitigating factor in crafting an appropriate sentence. [61] I will make a couple of additional comments about the deportation factor. It is my understanding that JWS will not be deported forthe purpose of serving his sentence in […]. Mr.

Goldberg informed me about his inquiries with the […] Embassy in Ottawa and theConsulate in Toronto and was advised that there is no treaty between Canada and […] governing the transfer of prisoners to complete asentence. [62] Ms. MacKay fairly brought to my attention an excerpt from the Canadian Encyclopedic Digest on sentencing which contains anotation that a sentence of incarceration of two years’ or more will result in an offender losing the right to appeal a deportation order.

Theloss of this right has been held to be relevant to sentencing as it represents a disproportionately severe and unforeseen circumstance. (R. v.Alpine, 2009 BCCA 453 , [2009] B.C.J. No. 2172 (C.A.) However, I have nothing before me to indicate JWS has any intentionof appealing the deportation order he is guaranteed to receive: Mr. Goldberg advised me that JWS’ father has an earnest desire to take hisson home and JWS’s comments at the sentencing hearing left no doubt that he appreciates he will not be returning to Canada.

The issueof an appeal of the deportation order does not appear to be relevant in this case. [63] In all, I do not see JWS’ inevitable deportation as the primary focus for my assessment of what amounts to mitigation in thissentencing. The real issue is whether JWS’ parole ineligibility operates as a mitigating factor. JWS’ parole ineligibility would amount tohim doing “harder time” than an offender who is not subject to an Exclusion Order, “harder time” being one of the considerationsreferred to by Hill, J. in assessing deportation as having the potential to mitigate a sentence.

Assessing What Constitutes an Appropriate Sentence [64] Although I need to explain what I consider to be an appropriate sentence for JWS, I can indicate now that the sentence proposed byMr. Goldberg of time served, that is three days in custody after arrest, is wholly inadequate in view of the seriousness of JWS’ offencesand his degree of responsibility for them. Such a sentence would not reflect any emphasis on the principles of denunciation anddeterrence which must be accorded a robust role in this case. [65] JWS’ offences amounted to a serious violation of MLC’s body and her sexual autonomy.

Her physical and psychological integritywere violated as was her dignity and sense of personal security. And it is not only the harm done to MLC that must be addressed.Violence against women has to be strongly condemned by the courts. [66] A non-custodial sentence in this case as suggested by Mr. Goldberg in the alternative – a fine or a suspended sentence – would alsofail to satisfy the imperatives of sentencing for the offences committed by JWS.

The sentence options proposed by the Defence would beoutside the range and not in accordance with the principles and objectives of sentencing. (Nasogaluak, paragraph 44) [67] The issue therefore is what length of sentence should be imposed on JWS? This is where the mitigating factors, and the weight tobe given to them, come into play. But before I re-focus on these considerations, I must deal with the fact that any sentence ofincarceration imposed on JWS will be his first. The Crown’s view is that this is not a relevant consideration where the emphasis is ondenunciation and deterrence.

I do not believe the Crown’s position represents the law. [68] A first sentence of imprisonment is a relevant consideration in determining how long a custodial sentence should be. As the NovaScotia Court of Appeal noted in R. v. Colley, (NS CA), [1991] N.S.J.

No. 62: "If the need to protect society can bewell served by a shorter sentence as by a longer one, the shorter is to be preferred." The Ontario Court of Appeal has expressed a similarview: "... a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused[rather] than solely for the purpose of general deterrence."(R. v. Priest, (ON CA), [1996] O.J.

No. 3369) Thisconsideration is related to the principle of restraint in sentencing: that the court should impose “the least quantum that will achieve theoverall purpose of being appropriate and just.” (R. v. Best, [2005] N.S.J. No. 347 (S.C.), paragraph 25) [69] Generally, the sentencing of even serious, violent offences should be governed by this principle. The Colley case involved anaggravated assault committed to facilitate a robbery attempt. Best was a brutal home invasion. As Rosenberg, J. has indicated in R. v.Borde, (ON CA), [2003] O.J.

No. 354 (C.A.), at paragraph 36: …The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciationand deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought toproceed on the basis that the shortest possible sentence will achieve the relevant objectives… [70] At 28, JWS does not qualify as a “youthful” offender but he is still young and significantly, he is a first offender. The principle ofrestraint must be applied in his case.

[71] I have already indicated that JWS’ sentence must satisfy the fundamental principle of proportionality and reflect his moralblameworthiness and the gravity of his offences.

Even though he will be deported and no longer resident in Canada, he must be heldresponsible for his wrong-doing and subject to denunciation for it and the harm he has caused. (C.A.M., paragraph 81) Foreign nationalsshould not expect that their offending will make them subject only to deportation, allowing them to avoid a sentence that is consistentwith Canadian law. [72] However, denunciation and deterrence are not the only sentencing principles that must be served in fixing JWS’ sentence.

Asentence must be tailored to address both “the nature of the offence and the circumstances of the offender.” …No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit thegreatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push thesentence up or down the scale of appropriate sentences for similar offences.

The judge’s discretion to decide on the particular blend ofsentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to theoverarching guidelines and principles in the Code and in the caselaw. (Nasogaluak, paragraph 43) [73] In this case, the appropriate sentence for JWS will be different from the appropriate sentence for an offender whose offences aresimilar but whose personal circumstances are very different.

A sentence must reflect a proper weighing of any mitigating factors and Ifind there are a number of them applicable to crafting JWS’ sentence. [74] The following are mitigating factors in this case: JWS’ lack of prior record, his genuine remorse, his self-initiated engagement withcounseling and treatment and his achievements in this context, the restrictions on his liberty imposed by the nature of his releaseconditions, his ineligibility for parole due to being subject to a removal order, and the fact that his English language abilities are weak. [75] I view certain mitigating factors to have greater significance than others.

For example, JWS’ lack of prior record would, by itself,not be of particular consequence in determining a sentence for these particular offences. However, I do not agree with the Crown thatJWS’ expressions of remorse, which I find to be sincere and substantial, and his efforts to undertake rehabilitation, should be given littleweight. Rehabilitation is an important objective of sentencing and ultimately is the best assurance that the public will be protected. [76] JWS’ certain deportation should not have the effect of making his rehabilitation irrelevant.

The fact that he is remorseful for whathe has done and has taken steps to address the issues that led to him committing these serious offences are positive pro-socialdevelopments that will serve to protect women JWS has relationships with, wherever he encounters them and whatever nationality theymay be.

That should be a concern to a Canadian sentencing court, even though those relationships will not occur here. [77] My point is that JWS’ rehabilitation, which has been advanced by his remorse and the counseling he has engaged in with Dr.Sullivan, is a relevant mitigating factor notwithstanding the fact that JWS is unlikely to be back in Canada again. [78] I am satisfied as well that JWS’ bail conditions imposed a restriction on his liberty by preventing him from visiting or being withhis family and this should be reflected in his sentence. [79] Most significant in my view is the parole eligibility issue.

If I do not take JWS’ parole ineligibility into account in fashioning hissentence then he will be treated differently than an offender sentenced for similar offences who has the chance of securing parole and notbeing incarcerated until statutory release. This is a very relevant factor in the sentencing calculus. [80] I also find that JWS’ English language limitations should mitigate his sentence to some extent. Although he was able to participatein counseling with Dr.

Sullivan, apparently without an interpreter, and make progress, I accept that language barriers will make hisexperience of custody particularly challenging. Having said that, the correctional authorities are under an obligation to do whatever isnecessary to ensure that JWS’ well-being is safeguarded and he is not subject to harsh or punitive conditions because of his languagedeficits. [81] Mitigating factors “push the sentence…down the scale of appropriate sentences for similar offences.” (Nasogaluak, paragraph 43)The Nova Scotia Court of Appeal in R. v. J.J.W., 2012 NSCA 96 , [2012] N.S.J.

No. 522 held that, “Since sentencing is such anindividualized process and done in the context of the particular circumstances of each case, it is notoriously difficult to find cases that arefactually similar.” (paragraph 22) J.J.W. concerned the sentence imposed on an employed firefighter with no prior record who, inAugust, physically assaulted his wife, and in November anally raped her and then physically assaulted her.

The trial judge’s sentencewas overturned on the basis that J.J.W.’s personal circumstances had been given “excessive importance”, with inadequate attention todenunciation and deterrence. (paragraph 43) The Court of Appeal regarded two and a half years imprisonment as a fit sentence forJ.J.W.’s offences. (paragraph 75) It was noted that the evidence established a basis for the trial judge’s concern about J.J.W.’s“propensity towards violence.” (paragraph 69) [82] There is no evidence before me of JWS having a “propensity towards violence”.

His offences against MLC were serious but I havenot been persuaded that the Crown’s submission for a sentence in the 4 – 5 year range is close to being appropriate, especially in view ofthe mitigating factors that must be taken into account and the important principle of restraint. [83] JWS is being sentenced for three offences that all arose out of the same events on May 6, 2011. Given how closely related they are,I find that any sentences I impose should be concurrent to each other.

Taking into account the mitigating factors I have discussed, I amimposing a sentence of 12 months for the sexual assault, and a further 9 months for the assault causing bodily harm to be servedconcurrently. On the charge of possession of the knife for a purpose dangerous to the public peace, I am imposing a sentence of 2months concurrent to the other sentences. The total sentence therefore is 12 months. [84] JWS’ sentence reflects the balancing and weighing I have done of all the sentencing principles and factors I have been reviewing.This has been a complex sentencing.

The result has been influenced by the unique constellation of mitigating factors in this case,particularly, but not only, the parole ineligibility factor. [85] I will also grant the ancillary orders being sought by the Crown. I will not order a Victim Surcharge as it would represent an undue

hardship to do so as I am sentencing JWS to custody.