R. v. G.G.M. Date:, 2013 BCPC 128

Citation: R. v. G.G.M. Date: 20130208 2013 BCPC 0128 File No: [deleted for publishing] Registry: [deleted for publishing] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON PUBLICATION 486.4(1) CCC RESTRICTED ACCESS REGINA v. G.G.M. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: C.S. Proteau

Counsel for the Defendant: C.H. Beckingham Place of Hearing: [deleted for publishing] , B.C. Date of Judgment: February 8, 2013 [ 1 ] THE COURT (orally): G.G.M. is before me on Court File [deleted for publishing]. That information contains a single count. It alleges as follows: G.G.M., on or about the 22nd day of April, 2012, at or near Nanaimo, in Province of British Columbia, did sexually assault C.A., contrary to

Section 271 of the Criminal Code . [ 2 ] G.G.M. has entered a plea of guilty with respect to that single count. [ 3 ] I will say for the purposes of my reasons for judgment, I will use the complete name of the complainant from time to time; however, any transcript of these proceedings will be edited such that the name of the complainant or other names that may give rise to her identity will be replaced with initials or otherwise amended in a similar fashion. [ 4 ] Having entered a plea of guilty on the index offence, an order was made to produce a pre-sentence report and also for G.G.M. to undergo a psychiatric assessment.

Both the pre-sentence report dated the 1st day of February 2013 and the psychiatric assessment dated December 13, 2012, are before the court. [ 5 ] The pre-sentence report was completed by C. Blais, a probation officer with the [deleted for publishing] Community Corrections office. The psychiatric assessment report was completed by BC Mental Health & Addiction Services, Forensic Psychiatric Services Commission. The author is Dr.

Deanne Breitman, a consulting psychiatrist with the Forensic Psychiatric Services Commission, [deleted for publishing] Clinic. [ 6 ] I will say at the outset that both the pre-sentence report and the forensic psychiatric assessment are thorough, they are complete, and they provide significant guidance to the court in terms of dealing with the matter before me. [ 7 ] The circumstances surrounding the offence have been put before me by Crown. There is no significant issue taken with the factual circumstances as between Crown and the defence.

The psychiatric assessment provides some additional background information. Quoting from page 4 of the psychiatric assessment, the following is indicated under the heading "Index Offence" [as read in]: The index offence as outlined in the report to Crown counsel will not be reviewed in detail. Briefly, on April 22nd, 2012, G.G.M. reported sexually assaulted his cousin, C.A., the daughter of his ex-common-law girlfriend L.M., who had been staying at the residence. She was reportedly asleep on the couch and woke up to G.G.M. rubbing the outside of her vagina with his hand.

During the current interview, G.G.M. related that he was "somewhat" intoxicated. He stated that during the day previously, he had had a few drinks of sherry and that evening he consumed a 26-ounce bottle of sherry to himself. He stated that they had all gone to sleep, and he arose during the night to go to the bathroom. He stated that the thought came to his mind and he impulsively found himself "touching C.A." He stated that she was visiting and her kids were in the bedroom. G.G.M. stated that he had been attracted to her since an incident years earlier.

He stated that when the tall ships were in [deleted for publishing], they were both at a family gathering and she was intoxicated. He stated that she told everybody that she wanted to be with him even though they were related, and since that incident, he began thinking about her romantically and an attraction developed over time. G.G.M. denied masturbating or achieving an erection at the time of the alleged incident.

He stated that it lasted for a couple of minutes until she woke up. [ 8 ] The question that I put to counsel was whether or not there was direct body contact between G.G.M.'s hand and the complainant's vagina. It is common ground that there was no penetration; as I understand the defence position is that G.G.M. reached in under the outer pant garment of the complainant and was rubbing the vagina of the complainant over her underpants.

That appears to be somewhat consistent with the statement given by the complainant to the police. [ 9 ] Crown's sentencing position that has been presented to the court for consideration may be described and summarized as follows. [ 10 ] First, Crown says that this matter requires jail incarceration for a period within a range of six months to one year. [ 11 ] Second, Crown says there should be a two-year probation order with conditions in the form suggested under the pre-sentence report. [ 12 ] Third, Crown says there should be a DNA order made with respect to this offence. [ 13 ] Fourth, Crown indicates that there should be an order to comply with the Sex Offender Information Registry requirements and that that order would be a lifetime registration which, in the Crown's submission, is mandatory. [ 14 ] Fifth, Crown is seeking a s. 109 lifetime ban on firearms. [ 15 ] Sixth, Crown is seeking that there be a non-communication order with the victim while the accused is incarcerated; that order is

pursuant to s. 743.21(1) of the Criminal Code . [ 16 ] The defence’s position is that this matter should be dealt with by way of something in the nature of a suspended sentence such that G.G.M. can obtain treatment at a residential treatment facility in [deleted for publishing]. As I understand it, it is common ground that the counsellor who has been attending upon G.G.M. has been trying to get him into residential treatment. Apparently, arrangements are in place such that he could attend that treatment centre right away.

That information has been passed on to the probation officer; however, that is a recent event and that information is not specifically contained within the pre-sentence report or within the psychiatric assessment. [ 17 ] Simply put, Crown's position is that this is a case where deterrence and denunciation must be the prime sentencing considerations. Defence indicates that while those are important, that the rehabilitation of the offender is something that must be given proper weight. [ 18 ] The pre-sentence report contains a number of important pieces of information concerning the accused.

I have before me a copy of a CPIC report, together with a sheet prepared by Crown counsel entitled "Entries not on CPIC." The record of G.G.M. has been admitted. The pre-sentence report on pages 3 and 4 provides a

summary of G.G.M.'s criminal history. That history commences in 1995. G.G.M. was convicted of assault causing bodily harm, contrary to s. 267 of the Criminal Code . He received 14 days in jail. [ 19 ] In 1998, G.G.M. was convicted of two counts of assault, contrary to s. 266 of the Criminal Code , and two counts of failure to attend court, contrary to s. 145(2) (

b) of the Criminal Code . The disposition of that matter was one day custody on each charge to run concurrent. [ 20 ] In 1999, G.G.M. was convicted of a sexual assault, contrary to s. 271 of the Criminal Code . For that, a conditional sentence order for a duration of one year and 29 days was imposed upon him. In addition to that, he was required to perform 50 hours of community work service. [ 21 ] In 2006, G.G.M. was convicted of assault causing bodily harm, contrary to s. 267 of the Criminal Code . That was a spousal assault.

The matter was dealt with by way of a probation order for a duration of one year. [ 22 ] In 2008, G.G.M. was convicted of mischief, $5,000 or under, contrary to s. 430(4) of the Criminal Code . The matter was dealt with by way of a probation order for one year and an order for restitution in the amount of $600. [ 23 ] In 2008, G.G.M. was convicted of breach of probation, contrary to s. 733.1(1) of the Criminal Code . He received a fine of $200 and was ordered to pay a victim surcharge of $30. [ 24 ] In 2009, G.G.M. was again convicted of assault, contrary to s. 266 of the Criminal Code .

That was a spousal assault. The disposition of that matter was a conditional sentence of 30 days and probation of 11 months. [ 25 ] On January 8, 2010, G.G.M. was convicted of four counts of breach of probation, contrary to s. 733.1(1) of the Criminal Code .

For that, he received a conditional sentence order of three months on each count concurrent, a probation order of eight months on each count concurrent, community work service of 40 hours allocated between the various offences. [ 26 ] On September 26, 2011, G.G.M. was back before the court, at which time he entered into a s. 810 peace bond, and that was dealt with by a recognizance after the allegation.

The amount of the recognizance was $500 and it was in effect for a period of one year. [ 27 ] As noted on page 5 of the pre-sentence report under the heading "Assessment" [as read in]: G.G.M. is 41 years of age and he comes before the court for the sentencing. G.G.M. has a lengthy record which includes a number of violent offences. This history includes one previous sexual assault, two spousal assaults (one causing bodily harm), and three other assault convictions.

G.G.M. is currently bound by a recognizance after an allegation under s. 810(1) of the Criminal Code . [ 28 ] With respect to the first conviction for sexual assault, the pre-sentence report makes the following observation under the heading "Behaviour, Emotional Status": G.G.M. expressed at his interview that he felt he had been led on by both this victim and the victim of his previous conviction for sexual assault. Both victims are considerably younger than G.G.M.. In the case of the first victim, he said that she had lied about her age.

As the current victim is the daughter of his girlfriend, he knows how old she is but says that she has expressed wanting to have sex with him when they have been drinking. [ 29 ] The psychiatric assessment also deals with G.G.M.'s first conviction. Under the heading of "Criminal History," it details the following information: In 1999, he was convicted of sexual assault. G.G.M. stated that a "young girl" who was 13 years of age told him she was 16 years of age, came to his home, and they had sexual intercourse. G.G.M. stated that he received probation and attended a men's group for one year.

He stated that in the men's group, they talked about what happened and helped each other deal with what they had done. He stated that he had been drinking alcohol earlier in the day when he met the victim, but he was "almost" sober when she came over. When questioned about his feelings about the incident, he stated, "I shouldn't have let her in" and "It was my bad." [ 30 ] The pre-sentence report also contains some important information. Specifically, under the heading "Attitude and Understanding

Regarding Offence," the report indicates as follows [as read in]: G.G.M. is somewhat ambivalent in his feelings regarding the offence before the court. On one hand, he says that the victim led him on verbally by indicating in the presence of others that she would like to have sex with him or that she found him attractive. On the other hand, he acknowledges he should not have behaved as he did, and it was thoughtless and stupid. He says that he does not deny that he should not have done what he did, but he wants others to understand what led him to behave as he did.

He does not fully acknowledge the breach of trust between himself and the victim, who is the daughter of his long-time girlfriend and sometimes common-law partner L.M. He also does not acknowledge the breach of trust between himself and L.M. but portrays her at times as negative and says that takes himself away from her when she is this way.

Although G.G.M. acknowledges that alcohol has been a factor in all of his criminal offences and was a significant factor in this one, he has not been committed to taking any concrete type of action to address the issue. [ 31 ] G.G.M. is, as detailed in the pre-sentence report and in the psychiatric assessment, a member of the [deleted for publishing] Band, formerly the [deleted for publishing] Band. G.G.M. was raised on a reserve located [deleted for publishing], British Columbia.

He presently resides in [deleted for publishing], as I understand it, on reserve. [ 32 ] When he was growing up, G.G.M. was essentially in the care of his grandparents on his maternal side. The psychiatric assessment report indicates as follows under the heading "Background Information" [as read in]: G.G.M. was born in [deleted for publishing] to his biological mother who was 16 years of age at the time of his birth and his biological father who he has never known.

Given his mother's young age, he was raised by his maternal grandparents on the [deleted for publishing] reserve across the bay from [deleted for publishing]. He describes his early childhood growing up on the reservation as "good," surrounded by family, including cousins, aunts, and uncles. He recalled being the peacemaker between his cousins. He has indicated that his grandfather kept him at home rather than making him attend the residential school with his nieces and nephews, many of whom had been abused both sexually and emotionally.

He described developing a strong affinity with his culture as a result. [ 33 ] The report goes on to detail some of the family history. That includes confirmation that G.G.M. was a good student in school; however, he left school after completing approximately his eleventh grade because of what the psychiatric assessment describes, in its self-reporting by G.G.M., as boredom. [ 34 ] The report also confirms that after he left school, he has mainly supported himself as an artist selling aboriginal carvings. He has also had some background in the commercial fishing industry. The report prepared by Dr.

Breitman describes G.G.M. as a talented artist who has been able to easily sell his artwork during the tourist season but has more difficulty during the winter months. [ 35 ] The report also confirms that G.G.M. has a history of participating in cultural activities of his native community. He has been one of the lead singers for ceremonial songs. He has also participated recently in the preparation of a memorial totem pole which I understand is in progress at present time. As I further understand it, the present status of the totem pole, is approaching completion.

G.G.M. is one of the prime carvers along with two elders. [ 36 ] The psychiatric assessment also provides significant insight into G.G.M.'s substance use history. On page 3 and 4 of the report, it indicates as follows: G.G.M. used alcohol at 15 years of age, but heavy use started at 19 years of age. Since then, there has been periods of sobriety with long periods of binges. He reported that his alcohol use was at its worst when he was in his early twenties and he was drinking excessive amounts of beer on a daily basis. He reported that his longest period of sobriety was for eight months 12 years ago.

He stated that he simply decided that he did not want to drink anymore and, on his own, without any treatment or court order, remained sober. He recalled this as being a good period in his life and was able to buy his own vehicle. He could not recall what triggered him to start drinking again. G.G.M. has attended residential treatment in the past, six to seven years ago. He attended a six-week residential family treatment centre on [deleted for publishing]. He stated that this facility is for aboriginal individuals and is family-oriented.

He found the treatment helpful, and he remained sober for six months following his release. He stated that he attended Alcoholics Anonymous as part of his discharge planning through the treatment centre, although he did not find AA helpful because he did not like to speak about his drinking when he was trying to stay away from alcohol. G.G.M. stated that he has used cannabis since 15 years of age, smoking one to two joints a day. He stated that he does not buy or pay for cannabis but simply smokes it when it is offered. He does not feel that cannabis is a problem for him.

He denied any history of use of any other illicit drugs. [ 37 ] The report goes on to indicate that at the present time, G.G.M. is a moderate drinker. [ 38 ] The report prepared by Dr. Breitman also provides a risk assessment of G.G.M. as it relates to alcohol and the offence that is before this court. The report itself indicates that alcohol was certainly a factor in the offence before the court. The psychiatric assessment notes that G.G.M. appears to have some insight into the presence of an alcohol use disorder and the need for treatment.

The report specifically says as follows: G.G.M. appears to have some insight into the presence of an alcohol use disorder and the need for treatment and partial insight into his risk in the community should he continue to use alcohol. His insight into his risk of re-offending sexually is also partial. He presents as an impulsive individual, and his history of violence, including the alleged offence, has tended to be impulsive, and this impulsivity is increased by the use of alcohol.

G.G.M. has a history of responsiveness to treatment for his substance use disorder but also a history of relapse which is typical of individuals with severe substance use disorder who often suffer relapses and require prolonged treatment for their disorder.

[ 39 ] The report does also point to the fact that G.G.M. has expressed some interest in receiving sex offender treatment within the community.

With respect to his propensity to re-offend, the report indicates that based on two different tests, that G.G.M. appears to be in a low risk category for re-offending; however, a different approach and assessment tool would place him in a moderate risk range to offend. [ 40 ] The concluding risk assessment in the psychiatric assessment reads as follows: The current index offence occurred in the context of acute alcohol intoxication, as have most of G.G.M.'s past criminal behaviours.

Based on currently available information, there is no evidence that suggests that G.G.M. presents with sexual deviance and his sexual violence history is not prominent. However, he does have troubles with social adjustment and self-regulation, including problems with intimate relationships, employment, problem-solving, impulsivity, and supervision, which relate to some extent to underlying alcohol dependence. These issues increase his risk of sexual and nonsexual violence in the community.

In order to reduce G.G.M.'s risk in the community, it is my psychiatric recommendation that he remain abstinent from alcohol and illicit substances. I respectfully recommend that he receive treatment for his substance use disorder, preferably at a residential treatment program from which he has benefited in the past. [ 41 ] I note that the author of the pre-sentence report was unable to contact the victim in order to obtain a victim impact statement regarding the offence against her. [ 42 ]

Section 718 of the Criminal Code , under the heading "Purpose," indicates as follows with respect to sentencing: 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. [ 43 ]

Section 718.1 of the Criminal Code , under the heading "Fundamental Principle," provides as follows: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 44 ] Under s. 718.2, below the heading "Other Sentencing Principles," the Criminal Code provides as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances; (

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, with particular attention to the circumstances of aboriginal offenders. [ 45 ]

Section 718.2 (

e) is considered as not a codification of existing sentencing principles but is intended to be remedial in nature. [ 46 ] The Supreme Court of Canada in R. v. Gladue , [1991] 1 S.C.R. 688 , set out the principle that with respect to aboriginal offenders, a number of factors must be taken into consideration. The 2013 Martin's Annual Criminal Code , Judicial Edition, at page 1451 makes the following point, and this is with respect to paragraph (e) : Paragraph (

e) is not simply a codification of existing jurisprudence. Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prison, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. It directs sentencing judges to undertake the sentencing of aboriginal offenders individually, but also differently, because the circumstances of aboriginal people are unique. The judge must therefore consider the unique systemic or background factors that may have played a

part in bringing the offender before the court and the types of sentencing procedures and sanctions that may be appropriate in the circumstances because of the offender's heritage or connection. While judges may take judicial notice of the broad systemic and background factors and the priority given to restorative justice, the court should be provided with case-specific information by counsel or in the pre-sentence report.

Whether the offender resides on a reserve, in a rural or an urban area, the judge must be made aware of alternatives to incarceration that exist whether inside or outside the aboriginal community. This paragraph should not, however, be taken as a means of automatically reducing the prison sentence of aboriginal offenders. The sentence imposed will depend upon all the factors that must be taken into account in each individual case.

It is unreasonable to assume that aboriginal people themselves do not believe in the importance of the objectives of denunciation, deterrence and separation. [ 47 ] The Gladue principles were recently reaffirmed by the Supreme Court of Canada in the case of R. v. Ipeelee , 2012 SCC 13 . Again, quoting from Martin's: In R. v. Ipeelee , 2012 SCC 13 , the Supreme Court of Canada reaffirmed the special sentencing approach in respect of aboriginal offenders and, in particular, addressed the application of those principles to the breach of a long-term supervision order.

This provision requires the court to use a different method of analysis in determining a fit sentence for aboriginal offenders. A judge must consider (

a) the unique systemic or background factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information must come from counsel and from the pre-sentence report.

Courts must take judicial notice of such matters as the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for Aboriginal peoples. While these factors, on their own, do not necessarily justify a different sentence for an Aboriginal offender, they provide the requisite context for considering the case-specific information.

Failing to take these circumstances into account would violate the fundamental principle of sentencing that requires the sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender. To the extent that the application of the Gladue principles leads to different sanctions for Aboriginal offenders, thereby implicating the parity principle contained in s. 718.2, those differences will be justified based on the unique Aboriginal circumstances. [ 48 ] In submissions on sentencing, Crown has referred me to the case of R. v.

Williams , a decision of our Court of Appeal cited at [2011] B.C.J. No. 777 . That case arose out of a sexual assault of a 14-year-old girl in the Port Alberni area. Both the offender as well as the victim were aboriginal. The facts of that particular case are set forth by Madam Justice Newbury speaking on behalf of the court found at paragraph 1: Mr. Williams, aged 41, appeals his sentence of two years' imprisonment imposed after he pleaded guilty to the sexual assault of a 14- year-old girl, who was unconscious at the time. Mr.

Williams got into bed with her, removed her underpants, and had his hand in her vagina when he was discovered by friends of the victim. She did not really wake up until she was at the hospital, where she was found to have a vaginal tear, and white fluid in her vagina. [ 49 ] The pre-sentence report in the Williams matter indicated that there was a drinking problem that had been acknowledged by Mr. Williams.

The victim impact statement in that matter indicated that the victim had been seriously affected, and she blamed herself for the incident. [ 50 ] The following paragraph I think bears both review as well as consideration by me. Paragraph 5 reads as follows: 5 The sentencing judge reviewed Mr. Williams' personal circumstances and the circumstances of the offence in his reasons. He agreed with the Crown that the main concern in this case was denunciation and deterrence, especially given the victim's age.

He then said this: [17] Another very important aspect of my decision today is based on me and my personal experience in coming to this community almost

every month for the last 17 years. Over that period of time there have been a large number of cases where women had consumed toomuch alcohol, went to bed, fell deeply asleep or passed out, and were then taken advantage of by a male and sexually assaulted in the bedin the home in which they felt safe. For a very long time now I have been treating this very seriously and trying to deter people from thisbehaviour. I have to admit, in the last few years it seems that we have had fewer of these cases.

It probably does not have anything to dowith me, but a recognition in the communities that this has been a problem, but it does occur from time to time and in this case it didoccur. It is exactly the same pattern as we have seen a number of times, except that I have to admit in this case, with the victim onlybeing 14 years old, that is a special aggravated factor. [18] I have felt that for years, that when considering the provisions in the Code in regards to aboriginal offenders and the Gladue case, (SCC), [1999] 1 S.C.R. 688, I also have to consider the aboriginal communities in this area.

I have had very manyaboriginal people, citizens and leaders, speak to me and say that they are equally concerned about some of the things that a very few oftheir members perpetrate against their own people, and they are as concerned about their children as non-aboriginal people, and as onesaid to me years ago, "It doesn't matter if my child is attacked or abused by an aboriginal offender or by a non-aboriginal offender, mychild still suffers." So I feel that in these kinds of sentencings, I need to speak to those aboriginal communities and to the aboriginalparents and say to them, "I will do everything that is in my power to deter people from inflicting themselves in this manner on yourchildren." [51] Based on the decision of the Court of Appeal, the words of the learned Provincial Court judge in the Williams matter were foundto be accurate, and the court found that the learned Provincial Court judge had properly taken into account the Gladue principles indetermining an appropriate sentence in that particular matter.

Madam Justice Newbury, at paragraph 9, makes the followingobservation, starting with the second sentence: We may not interfere with a sentence unless a sentencing judge has committed an error of law or the sentence is unfit. There is much tobe said for the sentencing judge's concern for the protection of Aboriginal victims such as this child, and for the role of deterrence in theAboriginal community. [52] The factual situation in the Williams matter is clearly different than the one before me.

The fact that it involved a 41-year-oldman forcing himself on an unconscious 14-year-old girl certainly is a highly aggravating factor and was certainly a factor that gave rise tothe sentence that was imposed upon Mr. Williams, being two years' imprisonment. [53] In the matter before me, as I am required to do, there are aggravating factors which must be taken into consideration.

First of all,the age of the victim in the matter before me; it involved a young person in her early twenties. [54] The second aggravating factor is that that person was a cousin of G.G.M., and by the sexual assault perpetrated upon her, therewas both a breach of trust of his position as it relates to the victim and also the breach of trust as against the victim's mother who wasfrom time to time the common-law spouse of G.G.M. [55] The third aggravating factor that I am taking into consideration is the violation of the victim's safety while she was in hermother's home. [56] The fourth consideration is that at the time the offence occurred, the victim was sleeping. [57] The fifth aggravating factor is that there were young children of the victim in or around her at the time that the offence tookplace, those children being of tender years of one and three. [58] The sixth aggravating factor is the fact that G.G.M. has a prior conviction for sexual assault.

I must remark that the prior sexualassault is more egregious than the one that is before me. [59] I must also take into account mitigating circumstances. In that regard, I note, first, that G.G.M. has entered a plea of guilty withrespect to the charges. [60] The second mitigating factor is he has some insight into the offence and has expressed some remorse for it. [61] The third factor is that he has struggled with alcohol addiction for a significantly lengthy period of time. [62] The fourth factor is that G.G.M. has taken some steps to return to and actively participate in his native heritage.

He is seekingguidance and apparently receiving guidance from elders within his community. [63] The fifth factor is that while this sexual assault was very upsetting to the victim, there was no violence or injury accompanyingthe sexual assault. [64] The sixth factor that I am taking into consideration, that while acknowledging the distress caused to the victim, the sexual assaultin this matter falls within the lower range of what amounts to sexual assault. [65] I acknowledge the defence's position that G.G.M. is an individual who very clearly needs the opportunity to seek and to enter intoresidential treatment in order to deal with his alcohol addiction.

That is a very important factor. Rehabilitation of all offenders isimportant, but in particular, in this matter, G.G.M. is an individual who must seek and must obtain the appropriate treatment for hisaddiction. If he fails to do so, there is a concern expressed both in the reports as well as in the eyes of this court that he is at risk to re-

offend. [ 66 ] I agree with Crown's position that rehabilitation can occur as part of a properly crafted probation order. [ 67 ] Taking into account all of the above, I am of the view that it is important to implement a sentence which deals first of all with denunciation and deterrence. I am also aware that it is essential in this matter that rehabilitation also be a factor. [ 68 ] Accordingly, the sentence which I believe in this matter is fit is a sentence of four months of jail time, which is less than what Crown is seeking. From a rehabilitative perspective, I am going to impose a longer probation order. It will run for the maximum permitted under s. 732.2(2) (

b) of the Criminal Code , which will be three years. [ 69 ] Crown has asked for and I will make an order that G.G.M. provide a DNA sample. [ 70 ] I am going to make the order of compliance under the sex offender information registration. That will be lifetime in duration. [ 71 ] There will be a s. 109 lifetime ban on firearms, et cetera. [ 72 ] I will impose the condition of non-communication under the non-communication order provisions of s. 743.21(1) such that there will be no communication by G.G.M., while he is incarcerated, with the victim. [ 73 ] I will now turn to the probation order.

G.G.M. will have the following probation conditions attached to the three-year probation order. [ 74 ] The first condition is that he will keep the peace and be of good behaviour and attend court when required to do so by the court. [ 75 ] Within 72 hours of his release from jail, he is to report to and be under the supervision of a probation officer.

That reporting will be in person here in [deleted for publishing] at the address that will be provided to him, and he is to report thereafter as directed. [ 76 ] He will notify the court or his probation officer of his current residential address, and he is not to change that address without the prior permission of his probation officer. [ 77 ] I am going to make a further stipulation.

The residence in which G.G.M. resides must be a residence approved by his probation officer, and that residence is not to change without the prior written permission of the probation officer. [ 78 ] I am going to make a further order that he must attend, participate in, and complete any psychological assessment and/or counselling as directed by a probation officer. [ 79 ] I am going to make a further condition that he must attend, participate in, and complete a sex offender treatment program to the satisfaction of his probation officer. [ 80 ] The next condition is he must attend, participate in, and complete treatment for substance misuse, including residential treatment if directed, and all to the satisfaction of his probation officer. [ 81 ] I am going to impose a further condition that he must not be in the company of anyone under the age of 16 years without a supervisor approved of in writing by his probation officer. [ 82 ] I am going to impose a condition that he is not to have any contact, directly or indirectly, with the victim, C.A., or her children, and he must further abstain from attending at her residence, place of work, or school. [ 83 ] I am going to impose a condition that he must not consume, possess, or use any alcohol whatsoever or any other intoxicating substances. [ 84 ] I am going to impose a condition that he is not to be found on the premises of any pub, nightclub, tavern, or other establishment where alcoholic beverages are the prime commodity for sale. [ 85 ] I am going to impose a further condition that he must abstain absolutely from the use, possession, or consumption of any illicit or illegal substances as defined by the Controlled Drugs and Substances Act unless with a valid medical prescription. [ 86 ] I am going to say to G.G.M. that those conditions are court-ordered conditions.

They cannot be regarded by you as a suggestion. They are things that you must do. They are being imposed upon you by this court both for the protection of the community but also with the hope that they will provide some structure in order that you can deal with your alcohol addiction issue.

If you breach any of those conditions, there is a very high likelihood that Crown will bring you back before the court for the purposes of seeking further punishment against you for breach of any of those conditions. [ 87 ] I wish you well in terms of your recovery and in terms of your continued progress within your community and the contributions that you are making to your community. I recognize that your absence from the community in order to serve out the custodial portion of your sentence will require others to step forward to complete the memorial totem pole for victims of the residential school system.

However, having said that, it is my hope as the sentencing judge that once you are released you will return and again be providing a positive contribution to your community and will teach other young men the skills that you have obviously so well developed in terms of carving and also in terms of pursuing your aboriginal heritage. [ 88 ] That concludes my sentence with respect to this matter. [ 89 ] MS. PROTEAU: Your Honour, there is a second information, the 2A, failing to appear. Crown would direct a stay of proceedings on that.

[ 90 ] THE COURT: Stay of proceedings recorded on that information. [ 91 ] MS. PROTEAU: Thank you. [ 92 ] THE CLERK: Your Honour, could I just clarify the DNA? Is that primary or secondary? [ 93 ] THE COURT: Primary. [ 94 ] MS. PROTEAU: Primary, in the circumstances. [ 95 ] THE CLERK: Primary? And the surcharge, Your Honour? [ 96 ] THE COURT: Oh, in these matters, I am going to waive the victim surcharge. [ 97 ] MR. BECKINGHAM: Thank you. (REASONS CONCLUDED)