Her Majesty the Queen - v. -, 2013 SKPC 80

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 080 Date: June 17, 2013 Information: 24418364 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - R.L. Appearing: Andrew Davis For the Crown Robert Grimsrud For the Accused SENTENCING DECISION K.

BAZIN , J Note: Pursuant to s. 486(3) of the Criminal Code , the Court made an order directing that the identity of the complainant or a witness, and any information that could disclose the identity of the complainant or witness, shall not be published in any document or broadcast in any way. [ 1 ] This decision was given orally on June 3, 2013 and at the time I indicated that I would follow with a written decision. This is the written decision.

[2] R.L. has pled guilty to assault, s. 266, by which the Crown had proceeded by way of indictment. R.L. entered a guilty plea tothe March 5, 2010 charge, the guilty plea being entered five months after a consent committal was given. [3] The assault which is of a sexual nature was perpetrated on a female youth, 17 years of age and just two months short of her 18th birthday. R.L. was 58 years of age, was an uncle to the victim, and prior to the incident, the victim looked up to him and viewedhim as a father figure.

The pre-sentence report indicates that the victim and R.L. hung out a lot, and R.L. was nice to the victim andwould help her with her homework. [4] The assault occurred at R.L.’s house, when they were sitting on a couch looking at pictures. R.L. grabbed the victim,pushed her down on the couch and attempted to take off her clothes. The victim was crying and then stopped as she felt there wasnothing she could do. R.L. attempted to undo her zipper on her pants and was on top of her.

R.L. touched her vagina and breasts overthe top of her clothes, while he had his hand in his own pants touching himself as he was assaulting the victim. [5] The victim reached for her phone and R.L. threw it away across the floor. The victim managed to push R.L. away and left. R.L. told her that she had provoked him, and as well the victim stated R.L. did not appear to be intoxicated at the time. [6] The Crown argues for a penitentiary term of two years, and has referred to the following cases:

a) R. v. Bird, 2008 SKCA 65

b) R. v. Kasokeo, 2009 SKCA 48

c) R. v. S.G.T., 2011 SKCA 4 [7] The defence argues for a conditional sentence order and has referred to R. v. Chrispen, 2009 SKCA 63 . [8] One issue that arose was the effect on sentencing when the facts can be characterized as a sexual assault, but the accused hasonly been charged with and pled guilty to common assault. On this issue it is a question relating to the sentencing principle of parity asset out in R. v. Mann, 2010 ONCA 342 : [15] The principle of parity of sentences is explicitly set out in s. 718.2 of the Criminal Code: 718.2 A court that imposes a sentence shall also take into consideration the following principles: . . . (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; [16] The rationale for the principle is stated concisely in Clayton Ruby’s Sentencing, 7th ed. (Markham: LexisNexis Canada Inc.,2008) at para. 2.21: The principle of parity has developed to preserve and ensure fairness by avoiding disproportionate sentences among convicted personswhere, essentially, the same facts and circumstances indicate equivalent or like sentences. [9] As such it is the similar facts and circumstances that one primarily needs to look at.

There may be maximum and minimumsentences that may apply to a certain charge, as well as different consequences related to ancillary orders, but the focus as to parity is thefacts and circumstances. [10] The facts of this case places it out of casual touching but in an aggressive assault involving sexual touching for a sexual

purpose. [11] The cases referred to by both counsel demonstrate a wide range of penalties from fines to penitentiary terms. [12] In looking for guidance of a range, the Saskatchewan Court of Appeal has stated in R. v. Revet, 2010 SKCA 71 : [24] This Court has repeatedly held that in major sexual assaults involving adult offenders and victims, three years would beconsidered a starting point from which a sentencing judge should start, increasing or decreasing the term according to the aggravatingand mitigating factors: R. v. A.W.C., 2007 SKCA 87 , 2007 SKCA 87, 304 Sask.

R. 224, and the cases cited therein. [26] There is no reason why the same starting point should not be used in a case such as this. Sexual assaults upon children are atleast as high in terms of gravity, if not higher, than sexual assaults upon adult persons. [13] The Court of Appeal also stated in Revet at para. 20 to 23: [20]

Section 718 sets out the objectives of sentencing which include denunciation, deterrence, separation of offenders from society,rehabilitation of offenders, reparations for harm to the victim and community, and the promotion of a sense of responsibility in offendersas well as acknowledgment of harm done. [21]

Section 718.01 of the Code requires a sentencing court, when imposing a sentence for an offence involving abuse of a personunder the age of 18 years, to give primary consideration to the objectives of denunciation and deterrence. [22]

Section 718.2(a)(ii.1) requires a court to increase or decrease a sentence for aggravating or mitigating circumstances respectively,and makes the abuse of a person under the age of 18 years deemed to be an aggravating circumstance. [23] The latter two provisions which require the primary objectives of sentencing in such cases to be denunciation and deterrence, andwhich deem abuse of a young person to be an aggravating circumstance attracting an increased sentence, indicate clearly that Parliamentintended such offences to be treated as high on the scale of gravity. [14] Revet involved a case where a 39 year old man with no record had consensual intercourse on two occasions with a 14 year oldgirl with reduced mental capacities.

The Court of Appeal sentenced Revet to three years. [15] As to the primary consideration of denunciation, this sentence must denounce the unlawful assault upon this 17 year oldvictim. Denunciation is a communication of society’s values. This was noted by the Supreme Court of Canada in R. v. Latimer, 2001SCC 1, [2001] 1 S.C.R. 3: 86 …Denunciation of unlawful conduct is one of the objectives of sentencing recognized in s. 718 of the Criminal Code. As noted by theCourt in R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 81: The objective of denunciation mandates that a sentence should communicate society’s condemnation of that particular offender’sconduct.

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct shouldbe punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. [Emphasis inoriginal.] [16] This sentence must denounce that Canadian society does not accept assaults of a sexual nature upon youth under 18 years ofage. [17] Deterrence has an individual and general aspect. This sentence must deter R.L. as well as others from committing similaroffences.

On this point R.L. has a lengthy, although dated record for assaults, gross indecency, indecent assault on a female, sexualassault, and assault causing bodily harm. As such a deterrent goal would be more focused on general deterrence so that other membersof society would be deterred from similar unacceptable behaviour.

[18] In the pre-sentence report, R.L. denied the circumstances of the offence and blamed the victim, and minimized the impact onthe victim. This indicates that past sentences for assault and sexual assaults have not deterred him, and equally the sentence may haveminimal individual deterrence. [19] In this matter it is not a question of whether or not this offence in R.L.’s position should draw a period of jail. The question iswhether or not a conditional sentence is appropriate, being that the term of jail could be served in the community. [20]

Section 742 of the Criminal Code sets out the considerations for a conditional sentence. The first factor is that the sentencemust be under two years. Based on the sentencing principles, the facts of this matter, and the case law provided, I find that a sentencewould be less than two years. This leaves the questions of (

a) would the sentence endanger the community; and (

b) would the sentenceserved in the community be consistent with the fundamental purposes and principles as set out in s. 718 to 718.2 of the Criminal Code? [21] The following are the aggravating and mitigating factors. Aggravating [22] In this matter R.L. is an uncle to the victim. The victim described in the pre-sentence report their close relationship and thatshe viewed him as the father figure in her life. The Saskatchewan Court of Appeal in R. v.

L.D.H., 2009 SKCA 135 stated inpara. 11: [11] In most instances, if the position of trust is the defining feature of the family relationship, the courts consider the familial connectionbetween an offender and complainant as an aggravating factor. [23] I find R.L. abused the position of trust as per s. 718.2 of the Code and this is an aggravating factor. [24] The victim was under 18 years of age.

Additional Aggravating Factors • R.L. had similar offences on his record. • Other custodial sentences have not deterred him. • R.L. in the pre-sentence report minimizes his past offences and indicates that the justice system and the RCMP should have helped himto stop drinking, and he would not have then continued to re-offend. • He stated as to this offence he should not have been charged in the first place. • He denies the circumstances of the offence, but acknowledges his guilty plea. • He has 23 prior Criminal Code convictions, four sexual assault related as set out previously, and assaults and assault causing bodilyharm. • He believes he is the victim in this offence. • He minimizes the impact on the victim. • He has a medium risk of general re-offending, and is in the high risk category for being charged or convicted of another sexual offence.

Mitigating Factors • No criminal convictions since September 1993, a 17 year gap before this offence. • Has not drank or used drugs for 16 years and has been attending counselling. • Charges - common assault, not sexual assault. • Has had a stable residence for 16 years. • Last assault charge being a sexual assault which he received 15 months incarceration was in 1984, being 26 years before the present offence. • R.L. assists his community and is a valued carpenter, and is self-employed in the construction trade. • The offence was over three years ago and there have been no further offences or breaches of his release conditions.

Gladue Factors [ 25 ] The pre-sentence report covers the Gladue factors R.L. suffered from; poverty, violence, alcoholism and abuse at home. His father died of alcohol poisoning in 1970 when R.L. was 15. He also attended residential school and relates that this had a negative impact on him, to which he is now attending counselling to assist him in dealing with issues from the residential school experience. He indicates he has suffered racism and felt he had to always fight in school and was looked down on in school. Impact on the Victim [ 26 ] The victim was just two months short of 18 when the assault occurred.

She states in the pre-sentence report that she was shocked and could not believe what was happening to her. She says she continues to be distraught and humiliated over the incident. She states the assault was painful both physically and emotionally. She states that she left the Whitebear community and her family because of the emotional scars from the incident and has a fear of being in the same area as R.L. Objective of Separation [ 27 ] Despite R.L.’s 26 years since a sexual assault conviction, he is still rated as a high risk to re-offend sexually.

This, I find, combined with R.L.’s lack of remorse, lack of insight into the offence, blaming of the victim and not accepting responsibility for the offence requires that an aspect of the sentence is that he needs to be separated from society for a period of time. Rehabilitation [ 28 ] The objective of rehabilitation, is confronted with the fact that R.L. in effect, despite his ultimate guilty plea, five months after his committal after his preliminary inquiry, still does not accept responsibility. This removes from him the mitigating factor of remorse.

Rehabilitation can be addressed in a period of probation, as he has been receiving counselling related to his residential school experiences. [ 29 ] An objective of the sentence is to promote a sense of responsibility and acknowledgment of the harm done to the victim and community. This objective is difficult to achieve when R.L. does not acknowledge the harm done nor accept responsibility. Gap Principle

[30] The gap principle is the concept that the Court should take into consideration the rehabilitative efforts of individuals whohave a long period of time between criminal offences. R.L.’s 16 year gap appears to be related to his stopping of the use of alcohol. Hisassaults and sexual assaults have a 26 year gap. R.L. has made a significant improvement in his life since stopping drinking, whichcoincides with his last offences. [31] In R. v. Littlecrow, 2011 SKQB 393 at paragraph 20, Justice Gabrielson states: This appears to be a case where the “gap principle” would apply when considering Ms.

Littlecrow’s previous record. In the text Clayton C. Ruby, Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008) at para. 8.83, Mr. Ruby refers to what he calls “the gapprinciple” and states: §8.83 Since both sentencing and crime are human endeavours, it is natural for the courts to give credit to someone who has made anhonest effort to avoid conflict with the criminal law. In the nature of things, an effort such as this will not always be completelysuccessful, but if a substantial period of time passes without convictions, this is often a matter which will be taken into consideration. ... See also R. v.

Kennedy, reflex, (SK CA), [1972] 2 W.W.R. 547 (Sask. C.A.) and R. v. Crookedneck, supra. I thereforedo not consider the four prior drinking and driving convictions warrant the more serious sentence that they would if they had been morerecent. Parity [32] I have reviewed the cases put forward by counsel, and my own review as follows: 1) R. v. Chrispen, 2009 SKCA 63 2) R. v. Toupin, 2005 SKPC 31 3) R. v. Kasokeo, 2009 SKCA 48 4) R. v. Revet, 2010 SKCA 71 5) R. v. S.G.T., 2011 SKCA 4 6) R. v. Bird, 2008 SKCA 65 7) R. v. A.B., 2013 SKQB 56 8) R. v. K.M., 2012 SKCA 95 9) R. v.

Tuffs, 2012 SKCA 6 [33] Taking into consideration the principle of parity and then considering the various sentencing objectives and principles a fitsentence would be 14 months jail. Conditional Sentence [34] I am not satisfied that a conditional sentence would adequately address the primary objectives of denunciation and deterrence,or the secondary objectives of promoting a sense of responsibility and acknowledgment of the harm done to the victim. In addition R.L.is assessed at a high risk to re-offend sexually, and despite his gap in his record, this offence occurred when he was not drinking alcohol.

Conclusion [ 35 ] In conclusion R.L. will be sentenced to a term of 14 months incarceration, followed by a term of probation for 12 months, as set out in Appendix “A”. [ 36 ] A DNA order pursuant to s. 487.051(1) of the Criminal Code in Form 5.03, authorizing the taking of samples from the accused for the purpose of forensic DNA analysis. K.

Bazin, J APPENDIX A - Keep the peace and be of good behaviour. - Appear before the Court whenever required to do so by the Court. - Notify the probation officer or Court in advance of any change of the offender’s name or address and promptly notify the probation officer or Court of any change of the offender’s employment or occupation. - Report to a probation officer at 1302 - 3 rd Street, Estevan, Saskatchewan (Phone (306) 637-4538) within two working days of your release from jail and after that as told to do so by your probation officer or designate. - Live at a residence approved by your probation officer and not change that residence without the prior written permission of your probation officer or designate or the Court. - Participate in assessment(

s) and complete programming for: sexual offending and personal counselling as told to do so by your probation officer. - Have no contact of any kind in any way, directly or indirectly, with the victim except through a lawyer. - Have no contact directly or indirectly with any person under the age of 16 unless you are in the company of an adult who has been approved for such purpose by your probation officer.