Her Majesty the Queen - v. -, 2012 SKPC 047

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 047 Date: March 8, 2012 Information: 24398760 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tyrell Julian Martell Appearing: M. Pilon For the Crown I. Wagner For the Accused JUDGMENT H. M. HARRADENCE , J I. INTRODUCTION [ 1 ] Tyrell Martell, a 20 year old member of the Waterhen First Nation, with no previous criminal convictions, has pled guilty to a charge of sexual assault on an adult female which occurred on May 8, 2011, at Elk Ridge Resort.

A sentencing hearing was held on March 1, 2012, at Montreal Lake Cree Nation. As part of this hearing I heard submissions from counsel for the Crown and defence, and the offender addressed the Court, as he is entitled to, pursuant to s. 726 of the Criminal Code . Prior to the sentencing hearing I read and considered the pre-sentence report prepared by Evan Chabot, dated February 27, 2012, and I also reviewed the case law provided by

counsel in support of their respective positions. I was informed by Crown counsel that the victim was provided with a Victim Impact Statement form but she did not return it. [ 2 ] The Crown has suggested a sentence of two years less one day, together with ancillary orders under sections 109, 487 and 490. Significant to this position is that an election was made by the Crown to proceed by Indictment. As I understand it the defence agrees that the ancillary orders are mandatory, in the circumstances and therefore does not oppose them.

The defence does agree that, given the Crown election, a conditional sentence order is not available. They suggest that an appropriate sentence would be a short period of incarceration, followed by a lengthy period of probation. However, the defence maintains that a suspended sentence is available. II. THE FACTS [ 3 ] The facts are critically important to any sentencing. In this case the facts are not in dispute. The offender and the victim were attending a wedding at Elk Ridge Resort on May 7, 2011. They were known to one another, as the victim’s boyfriend is related to the former girlfriend of the offender.

Both the victim and the offender were staying at a rented cabin. After the wedding a drinking party took place at this cabin. The victim estimates she drank six alcoholic drinks. Over the course of the evening the offender estimates he drank 15 alcoholic drinks. The victim was in the hot tub. I am unclear as to whether the offender was in the hot tub at the same time. At approximately 3:00 a.m. the victim went to her bedroom to sleep. She took off her bathing suit and fell asleep naked on the bed beside her boyfriend.

It is unclear to me how many individuals were sharing the cabin, or how many individuals were present at the cabin. The accused says he entered the bedroom at approximately 4:00 a.m. His purpose, according to him, was to rouse the victim’s boyfriend to give his assistance to evict someone from the cabin. He says he entered the bedroom twice. He was unsuccessful in his attempts to wake the victim’s boyfriend and presumably on his second entry into the bedroom he approached the naked sleeping victim. He began fondling her breasts, he removed his pants, and was on top of her when she awoke.

There is some indication that she participated until she realized it was not her boyfriend. At that point the activity immediately stopped and the offender tried to calm the victim. The victim attempted to awaken her boyfriend. [ 4 ] Shortly after the incident the offender left the cabin. The victim was able to wake up her boyfriend. He gave chase to the offender and was able to locate him outside. He administered a beating to the offender. According to the offender he did not resist.

My understanding is that later that morning at approximately 6:00 a.m. the offender was located by police at the trailer court located at Elk Ridge. He was cooperative and told the police he had made a big mistake. III. ANALYSIS [ 5 ] There are several sections of the Criminal Code which I have relied upon, including sections 718 , 718.1 and 718.2 (e). These sections are as follows: 718.

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. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: … (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[6] The Crown relies upon the Saskatchewan Court of Appeal decision in R. v. M.J.H., specifically the following paragraphs: [15] We believe the trial judge erred in assessing the gravity of the offence. It was a significant sexual assault. The respondent enteredthe aunt’s house after being denied entry.

Although the trial judge made no finding as to who removed the victim’s clothes, it isnonetheless clear that the respondent took full advantage of the unconscious victim, his half-sister, by climbing on her naked body,lowering his pants and “humping” her. [16] The reasons given by the trial judge for discounting the gravity of the offence below the level of what might attract a penitentiaryterm are not particularly compelling.

First, the fact that the respondent did not enter the house for the purpose of assaulting the victimdoes nothing to undercut the central reality that, once in the house, he did intend to get into her bed and did intend to assault her for hissexual gratification. Second, even accepting the trial judge’s view that there was no attempted intercourse, the respondent’s actions werea substantial and gross violation of the victim’s sexual and personal integrity. Third, the fact that there was no violence beyond theassault itself, seen from the perspective of the victim, is of little comfort.

Care must be taken to avoid seeing these sorts of assaults in away which would effectively reward an accused for taking advantage of an unconscious and helpless victim rather than one who is in aposition to resist the assault. See: R. v. Cappo (1993), 116 Sask. R. 15 (Sask. C.A.) at para. 13. [17] There are several precedents which are helpful here. Although these cases do not control the potential availability of a conditionalsentence order in any particular situation, they are broadly instructive in assessing the gravity of the offence committed by therespondent. In R. v. Bird (1993), (SK CA), 105 Sask.

R. 161 (Sask. C.A.), a 19 year old man had sexual intercoursewith his cousin, an adult female, while she lay sleeping on a couch. The assault came to an end when the victim woke up and startedscreaming and striking the accused. At trial, the accused was sentenced to two years less one day. This Court increased the sentence tothree years. [18] In R. v. Cappo, supra, a 22 year old man with no previous criminal record attempted to have sexual intercourse with a woman whohad passed out from over consumption of alcohol.

When she awoke, she discovered that her pants had been pulled down and the accusedwas on top of her trying to penetrate her. He ignored her demand that he stop and the incident ended when she vomited. This Courtincreased a sentence of 22 months to three years. [19] In R. v. [R. (W.S.)] (SK CA), (1995), 128 Sask. R. 158 (Sask. C.A.), the accused was a 30 year old man with noprevious record. He got into bed with his female cousin and her boyfriend after a night of heavy drinking. The boyfriend awoke to findthe accused with his pants down rubbing himself against the victim’s bottom.

The victim had no memory of the incident and the trialjudge was not satisfied that penile penetration had occurred. This Court increased the sentence from six months, followed by ninemonths of electronic monitoring and two years of probation, to 30 months. It did so on the basis that the accused had committed a majorsexual assault.

The Court noted that there was only an attempt at sexual intercourse and gave the accused some credit for his personal circumstances, his genuine remorse, his efforts at self-help and his low risk to re-offend.[1] [7] The Crown has also tendered a number of excerpts from the Court of Appeal Sentencing Digest, including: Kasokeo, J.R.; Charles, A. D.; Iron (L. J.); H. (M. J.); L. (A. F.); Frank (H. C.); Custer (J. A.); and Roberts (W. S.).[2] All of these summaries I havereviewed. [8] The defence relies upon the recent decision of the Saskatchewan Court of Appeal in R. v.

Tuffs.[3] In that case Justice Lanereversed the suspended sentence imposed by the trial judge, after a trial, and imposed a jail sentence of 12 months. In Tuffs, JusticeLane, writing for the Court, notes the short duration of the assault, and the minor nature of the physical injuries to the victim. JusticeLane indicated the following: [11] In our view, the sentencing judge erred by overemphasizing the circumstances of the respondent and sentencing him on the basis ofhis status in the community.

The harsh effect on a convicted accused’s family and the stigma of conviction are not uncommonconsequences of a conviction and sentence. The fact the accused is a pillar of the community can be both a mitigating factor but also anaggravating factor as an accused may be in the position where he or she ought to know better. It is noted the respondent is now 37 yearsof age with no prior criminal record. [12] However, we agree with the trial judge this was a case of sexual assault on the lower end of the scale.

Although there was a claimof bruising, the testimony of the investigating officer said it was slight and there was more of a “redness.” The duration of the incidentwas very brief, perhaps as little as 30 seconds and, after the complainant pushed off the respondent and told him to go upstairs, he said hewas sorry and left. This is not to minimize the effect on the complainant who filed a victim impact statement stating she was required totake time off work and was afraid of noises or movement when sleeping as such would scare her out of her sleep.

She said she wasforced to see a psychologist and hated being left alone in the house. She said she found it extremely hard to leave the house on her own and she feared people around her, all as a result of the assault.[4] [9] The Saskatchewan Court of Appeal has previously noted a broad range of sentencing for sexual assault, which is of someassistance: [30] There are many other reported decisions of this Court, including many involving sex offences against children. Collectively theydemonstrate this Court’s view of what amounts to a fit or an unfit sentence, depending on the circumstances.

In general, what these otherdecisions demonstrate is this: In instances such as the one now before us, neither a suspended sentence nor a conditional sentence is fit.The following cases serve to make the point: R. v. V.M.W. (1989), (SK CA), 76 Sask. R. 299; R. v. A.S.U. (1990),

(SK CA), 86 Sask. R. 191; R. v. S.M.W. (SK CA), (1997), 158 Sask. R. 205; R. v. Creber, supra;R. v. D.L.M. 2001 SKCA 39 , (2001), 207 Sask. R. 228; and R. v. E.S., supra. The circumstances varied from case to case, ofcourse, so the sentences imposed by the Court ranged through nine months, to one or two years, to three years. But in none was asuspended or conditional sentence found to be fit. These cases span the last decade or more and are generally consistent with the decisions of the Supreme Court of Canada in R. v. R.A.R.; R. v. R.N.S.; and R. v. L.F.W., cited earlier.[5] [10] The defence also filed R. v.

Chrispen,[6] in which Madam Justice Hunter conducts an extensive review of sentencingprinciples relating to the imposition of a conditional sentence. The defence does acknowledge that this decision is of limited relevance asin these circumstances a conditional sentence is unavailable. [11] There can be no doubt that sentencing is an individualized process, based on the individual circumstances of the offence, andthe offender. In R. v.

Proulx, Chief Justice Lamer states this unambiguously: 82 This Court has held on a number of occasions that sentencing is an individualized process, in which the trial judge hasconsiderable discretion in fashioning a fit sentence. The rationale behind this approach stems from the principle of proportionality, thefundamental principle of sentencing, which provides that a sentence must be proportional to the gravity of the offence and the degree ofresponsibility of the offender.

Proportionality requires an examination of the specific circumstances of both the offender and the offenceso that the “punishment fits the crime”. As a by-product of such an individualized approach, there will be inevitable variation insentences imposed for particular crimes. In M. (C.A.), supra, I stated, at para. 92: It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. . . .

Sentencing is an inherentlyindividualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be afruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to some degree acrossvarious communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.[7] [12] It is therefore necessary to consider, evaluate and determine the individual factors relevant to this sentencing. I have done so,and for clarity, I find the following: 1. The evidence presented before me is that this assault lasted 20 seconds; 2.

The victim was asleep when the assault started, but woke up and participated in the incident only briefly; 3. When the victim indicated she was not a willing participant the assault immediately stopped. This fact is notably different from the facts in R. v. Cappo.[8] 4. There is no evidence of any form of penetration; 5. There is no evidence of any physical injury; 6. Given the nature of the assault, psychological injury is to be presumed, however, there is no evidence of any specific psychologicalinjury as in Tuffs.

On page 4 of the pre-sentence report it mentions some counseling taken by the victim and some emotional discomfortexperienced by the victim. There was no Victim Impact Statement filed. 7. I am satisfied, after having considered the facts, the contents of the pre-sentence report, having watched the offender throughout thesentencing hearing, and heard him, that he has genuine and significant remorse for his actions. This remorse was expressed on themorning of the incident and has been consistent throughout.

I am further satisfied that he entered a guilty plea at the first availableopportunity, notably this was not the circumstance before the Court of Appeal in Tuffs.

8. This offender is Treaty, his home community is Waterhen First Nation. Although his experience of racism is limited, according to the pre-sentence report, I am required to consider s. 718(2)(

e) as part of the sentence. 9. This offender has no previous criminal convictions. He does have a conditional discharge in relation to a charge under s. 266. According to the pre-sentence report he has a supportive and stable family. He has achieved his Grade 12. The pre-sentence report, based on a actuarial table, rates the offender as a medium risk to reoffend. 10. Given my observations of the offender and my review of the facts, I am satisfied that specific deterrence should not be a prime consideration in this sentencing.

The offender knows what he has done is wrong and he is willing and able to take whatever steps are necessary to ensure it never happens again. I am satisfied that this conduct was an aberration for this offender. He was heavily intoxicated. According to the pre-sentence report he has completely abstained from the use of alcohol since May 2011. 11. I appreciate that a conditional sentence is not available for this offence.

However, I am satisfied that this offender is not a danger to the safety of the public. [ 13 ] I am satisfied, after having reviewed all of the circumstances of this offence, that even with the victim initially asleep, taking into account the fact that there was no physical force, the limited duration, and the fact that the accused immediately stopped when the victim told him to, that this assault should not be classified as a major sexual assault. [ 14 ] In relation to this offender’s youth I am guided by the statement of principle in R. v. Morrisette .

In that case Chief Justice Culliton stated the following in regard to the sentencing of a youthful offender, and to my knowledge, his comments remain applicable: 11 In my view, the public can best be protected by the imposition of sentences that punish the offender for the offence committed, that may deter him and others from committing such an offence and that may assist in his reformation and rehabilitation. If the offender is one for whom reformation is beyond question, then the public can be protected only by depriving him of his freedom.

In the case of other offenders, and particularly young offenders, the principal element for consideration, consonant with the maintenance of public confidence in the effective enforcement of the criminal law, should be the offender's reformation and rehabilitation. [9] IV. CONCLUSION [ 15 ] The Court must impose a sentence which effectively denounces this unlawful conduct, and is, to the extent possible, consistent with other sentences.

When I consider the circumstances here, with the circumstances in Tuffs , in addition to the fact that Tuffs was sentenced after trial, and there was physical violence, and also consider this offender’s young age, his First Nations descent, his remorse, and prospects of his rehabilitation as outlined in the pre-sentence report, I conclude that a sentence lower than the sentence in Tuffs is appropriate and warranted. [ 16 ] In addition to a term of incarceration, I am of the view that a lengthy period of probation will not only assist in this offender’s rehabilitation, but will also provide a measure of control over this offender’s behaviour, [10] which will serve to protect the public far greater, over the long term, than a lengthy period of incarceration. [ 17 ] I find, in all of the circumstance, a jail sentence on the lower end of the range, identified in R. v.

S. M. , [11] followed by a period of probation, is a fit sentence. The offender will be sentenced as follows:

a) He will be ordered to serve nine (9) months in custody at a Provincial Correctional Centre. I wish it to be endorsed on the Warrant of Committal that he be considered to serve this sentence at a community training residence as soon as possible. (This, in part, is to allow him to enroll in sexual offender treatment in the community as outlined in the pre-sentence report.)

b) In addition he will be placed on probation for a period of two (2) years, with conditions, in the standard form, as follows:

I) Mandatory conditions:

i) Keep the peace and be of good behaviour. ii) Appear before the Court when required to do so by the Court. iii) Notify the probation officer or the Court in advance of any change of name or address. iv) Promptly notify the probation officer or the Court of any change of employment or occupation. II) Optional conditions:

i) Report to a probation officer within 24 hours of release from incarceration and thereafter as required to do so by his probation officer. ii) Maintain a residence and not change that place of residence without the prior approval of the Court or the written permission of the probation officer. iii) Abide by a curfew from 10:00 p.m. to 7:00 a.m. daily, for the first 12 months of his probation. iv) Refrain absolutely from the use, possession or consumption of any alcohol/beverage alcohol;

v) Refrain from attending any premises where the primary function is the sale or consumption of alcohol; vi) Take such assessment/counseling or treatment for alcohol/drug abuse, if any, including treatment in-residence, if so ordered, as the probation officer may order in writing; vii) Attend such Sexual offender treatment programs as arranged and directed by the probation officer; viii) Perform 100 hours of community service, as arranged and directed by and to the satisfaction of the probation officer, to be completed with the first 12 months of the order; ix) To have no contact, direct or indirect, with S. D., the victim of this offence. [ 18 ] The ancillary orders will be as follows:

a) That he shall not be in possession of any firearms, ammunition or explosive substances for a period of ten (10) years pursuant to s. 109 of the Criminal Code .

b) That he will be required to submit a DNA sample pursuant to s. 487.051 of the Criminal Code . This is a primary designated offence.

c) That he will be required to register and report, as required, to the sexual offender registry, pursuant to sections 490 , 490.12 and 490.13 of the Criminal Code . This order is for 20 years.

d) That he will be required to pay $300.00 as a victim surcharge pursuant to s. 737(3) of the Criminal Code . Such surcharge to be paid by December 31, 2012. [ 19 ] Dated at the City of Prince Albert, in the Province of Saskatchewan, this 8 th day of March, 2012. ______________________________ H. M. Harradence, J