Her Majesty the Queen - v. -, 2015 SKPC 19

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 019 Date: January 27, 2015 Information: 24501612 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Z.J.S. Appearing: Tyla Olenchuk For the Crown Dale Blenner-Hassett For the Accused Note: Pursuant to s. 486.4 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the complainant or a witness, and any information that could disclose the identity of the complainant or witness, shall not be published in any document or broadcast in any way.

SENTENCING DECISION I.J. CARDINAL , J Introduction [ 1 ] Mr. Z.J.S. (“Mr. S.”) has entered a guilty plea to sexually assaulting an 11 year old girl which occurred on January 10, 2013,

contrary to s. 271 of the Criminal Code . When the offence occurred, he had been staying with the child’s family, contrary to his probation order that required him to live in a certain place, resulting in a charge of breaching his probation order, contrary to s. 733.1(1) of the Criminal Code . He also has other matters for sentencing related to breaching his recognizance and probation order. [ 2 ] The sexual assault occurred when the parents were shopping and entrusted the accused to look after their children, including the 11 year old girl.

The 11 year old child approached the accused and asked him if he wanted to have sex with her. He touched the back of her neck and at that point she decided that this was not a good idea and did not want to go along with it. Sometime later that day, the accused was napping and woke up. He asked the victim to go down to the basement. She went downstairs and the accused followed. Although she was terrified, she denied being so when the accused asked her. She again asked him if he wanted to have sex with her and he said yes. He told her to pull down her clothes and then had sexual intercourse with her.

Circumstances of the Victim [ 3 ] The young victim and her parents filed Victim Impact Statements. The Pre-Sentence Report (PSR) notes that the child is undergoing counselling and was observed by her parents to be coming out of her shell since the offence occurred. She felt that she had to leave her home because of the memories associated with what had happened with the accused and went to live with her grandparents for a number of months. Her stress and emotional well-being improved after she received therapy.

The victim advises that therapy helped her to feel less angry and to be able to talk a little about what happened without crying. She has made new friends and is back to doing things she likes, like sports, drawing and is able to talk about it a little more with family and friends that she can trust. She is glad she didn’t have to go through the court process or see the accused. [ 4 ] The victim’s mother and father advise they had opened their home to the accused and treated him like another member of their family. They believe others think they are bad parents because of what happened.

They were close to their daughter but some of that closeness was lost when she moved away for a short time after the incident. Now “they are slowly overcoming their anger with the subject but are still shocked by the incident and feel betrayed by the young man they were helping, feeding and clothing”. The PSR notes that the victim’s “parents hope that the subject can receive the help he needs to ensure that he never hurts another child again”. Circumstances of the Accused [ 5 ] Mr. S. is a 22 year old male who was 21 years old at the time of the offence.

His limited criminal record indicates he had received a conditional discharge with 9 months probation on July 17, 2012 for two counts of breach of an undertaking and one count of obstructing a police officer. He was also ordered to pay $501.14 restitution which remains outstanding and is now the subject of a breach of probation charge. At the time of the sexual assault he was subject to that probation order which required him to live in Prince Albert and to not change that residence without the prior written permission of the Probation Officer. [ 6 ] He has one child, age 2, with a former girlfriend.

He hopes to reunite with her and eventually have custody of his son although she is not interested in having a relationship with him and is upset over these charges. She has also given custody of the child to her sister without consulting him which has also frustrated and depressed Mr. S. [ 7 ] Mr. S. currently has a close relationship with his mother and is in contact with her on a daily basis. Unfortunately while he was growing up she was not able to care for him and he spent his entire childhood in various foster homes and the care of extended family members around Alberta.

He reports that he was sexually molested by family members when he was about 5 years old but never told anyone nor received therapy to deal with the impact. [ 8 ] He returned to his mother’s residence when he was about 16 years old but left at the age of 19 to live with the victim and her family. He was only there short term and returned to his mother’s residence and began committing offences. Although the accused had started drinking at the age of 16 and increased his drinking activity around the age of 19, he quit drinking two months prior to the sexual assault. Drugs do not appear to be an issue.

[ 9 ] While Mr. S. completed his Grade 10 education, he dropped out of school because “the pressure to be the first member of his family to graduate gradually proved too much for him”. He has some safety certificates and other certificates (such as first aid/CPR) but is currently unemployed. Any employment he has had has been sporadic as he would quit when he received a pay cheque or became bored or dissatisfied.

Despite this he reports no significant concerns with finances over the past year although he does advise he has unpaid restitution owing. [ 10 ] With respect to Gladue issues, he is a status member of the First Nation and has a of history of being placed in foster care and with extended family members from a young age. He does not recall being the victim of “mental, verbal or physical abuse as a child”, other than the sexual assault when he was 5 years of age. He recalls times, both in and out of foster care, when there was no food and only bare necessities were provided.

People responsible for his care consumed excessive amounts of alcohol leaving him neglected. Other than two occasions when he felt he was treated harshly compared to the Caucasian children in foster care, he states that his ancestry has never negatively impacted his life. [ 11 ] He is also unaware of any negative effects from his father or uncle who both attended residential schools. He is proud to be aboriginal and believes he has a good head on his shoulders. He states that his grandfather taught him everything he knows and raised him to ride horses, work hard at his chores and respect women.

Unfortunately, his grandfather committed suicide a few years ago and his death immediately preceded a number of negative choices in Mr. S.’s life. [ 12 ] The Saskatchewan Primary Risk Assessment (SPRA) was employed to provide a probability of general criminal recidivism if Mr. S.’s risk factors are not addressed. His overall risk for general re-offending was assessed as being medium.

The major risk factors identified for him include: Residence, Stability, Employment, Family/Marital Relationships, Peers, Companions, Attitude and Self- Management. [ 13 ] The Static-99R Assessment and Stable 2007 Assessment were employed to assess his risk to recidivate sexually. Various tests are conducted to assess dynamic risk factors and identify treatment needs and targets. Using the two assessment tools in combination “enhances the predictability of estimates of sexual recidivism over four years”. As such, Mr. S.’s combined Static - 99R Assessment and Stable 2007 score place him in a range of moderate/low.

Position of the Parties [ 14 ] Pursuant to s. 271, and the Crown having elected to proceed by indictment, Mr. S. is subject to a minimum sentence of one year incarceration as he sexually offended against a person under the age of 16 years. The maximum sentence is 10 years imprisonment. [ 15 ] Both parties agree that the starting point for sentencing in a major sexual assault is three (3) years incarceration in a penitentiary.

The Crown urges the Court to impose a sentence of four (4) years while Defence counsel urges a sentence of three (3) years. [ 16 ] The Crown in its submissions stated that the four year sentence is warranted given the age of the child, the circumstances of the offence, and the position of trust Mr. S. held in relation to her. Defence counsel stressed that Mr.

S. is remorseful, did not use any violence toward the child, and is a young man with a minimal criminal record with no related convictions or convictions for violent offences. [ 17 ] While both agree the accused should receive credit for time already served while on remand, the Crown submits it should be on a 1:1 basis and Defence counsel submits it should be on a 1:1.5 basis. As of the date of sentencing, Mr. S. has pre-trial credit of 407 days.

Analysis [ 18 ] The Saskatchewan Court of Appeal has made it clear in R v Revet, 2010 SKCA 71 [ Revet ], that the starting point for a major sexual assault involving a child is three years incarceration in a penitentiary.

[19] Further, the Criminal Code contains provisions directly related to sentencing offenders who abuse children.

Section 718.01mandates that when a Court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall giveprimary consideration to the objectives of denunciation and deterrence of such conduct. [20]

Section 718.2 requires a Court that imposes a sentence to also take into consideration the following principles, which arerelevant in this case: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of 18 years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, ... shall be deemed to be aggravating circumstances. [21]

Section 718.2 also provides that: (

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

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. [22] With respect to the circumstances of aboriginal offenders such as Mr. S., I am also guided by the Supreme Court of Canadadecision in R v Gladue, (SCC), [1999] 1 SCR 688 and R v Ipeelee, 2012 SCC 13 , [2012] 1 SCR 433. [23] In Revet, a 39 year old man had consensual sexual intercourse with a 14 year old girl. He was sentenced to three yearsincarceration.

At issue was whether lack of violence against the victim was a mitigating factor or simply an absence of an aggravatingfactor. At para. 12, the Court noted: [12] There is certainly a difference between an assault against a child that involves force, violence, intimidation, or trickery and anassault against a child where the child actually consents to the activity or simply does not resist it. That being said, the whole purpose ofthe legislation is to protect children, who are not sufficiently mature to appreciate all of the consequences of sexual activities.

We agreethat a child’s willing participation is not, per se, a mitigating factor in the imposition of a sentence for sexual assault on that child. Itmeans nothing more than an absence of aggravating factors such as the use of force, violence, intimidation or trickery. [13] Furthermore, in this particular case, the child victim was neither mature for her age, nor knowledgeable or experienced in sexualmatters. In these circumstances, the trial judge made no error in refusing to give the appellant any credit for the fact that the child didnot resist the appellant’s advances.

[ 24 ] I give Mr. S. no credit for the fact that the 11 year old child did not resist his advances and initially encouraged them. She was, by law, unable to consent to this activity. She was a child of tender years and it ought to have been patently obvious to Mr. S. that the victim could not consent and that he ought not to have engaged in any sexual activity with her. [ 25 ] Further, a sexual assault by its very definition involves an element of violence. This violence manifests itself where an adult willingly has sexual intercourse with a vulnerable child.

Her sexual integrity and vulnerability were taken advantage of by Mr. S. He was in a position of trust toward her, having been taken in by her family and treated like a son by her parents. He was left in charge of her and her siblings while the parents were away. He used that to perpetrate the sexual assault by suggesting they go to the basement, while the other children remained upstairs. [ 26 ] While he entered a guilty plea, it was at the eleventh hour on the date set for trial when the complainant and Crown were ready to proceed with the matter.

However, the victim’s relief is palpable in the Victim Impact Statement that she did not have to testify or see the accused. Thus, there is some mitigation in the guilty plea, although it will not be assigned as much weight as it would if he had entered a guilty plea at an earlier date. [ 27 ] Otherwise, there is little by way of mitigation. While I recognize he has had a somewhat difficult life, for the most part he has not suffered from any disadvantage in the community or from his upbringing.

He has offended against a young aboriginal girl who now must carry with her the weight of his betrayal and abuse. [ 28 ] Further, the Court must stress its abhorrence for these types of assaults. Mr. S. and the public at large must know with certainty that a significant period of incarceration will result for those who decide to prey upon some of the most vulnerable members of our society. Sexual abuse of children will not be treated lightly.

Victims of abuse, and especially children who suffer sexual abuse, often carry the shame and trauma with them for years and it can have a very detrimental effect upon them well into adulthood. The courts must send a strong, consistent message that such offences will be condemned and the offenders will face severe consequences. [ 29 ] In all the circumstances, I find that a fit sentence for the offence of sexual assault is 40 months incarceration. [ 30 ] I find Mr. S. is not entitled to enhanced credit for the majority of time spent on remand as there is nothing in the circumstances that justify it.

He was remanded on January 29, 2013, on the charge of sexual assault. He was also on warrant status concerning four allegations of breaching his probation order in November 2012 through January 2013. He was remanded by consent until his release after a show cause hearing on February 19, 2013, when he was placed on the electronic monitoring program. He remained at large on his recognizance until April 10, 2013, when he was arrested for allegedly breaching the residence and curfew conditions.

He was remanded by consent until he was released on June 7, 2013, with the consent of the Crown again on the electronic monitoring program. On March 8, 2014, he was arrested for breaching his recognizance and consented to his remand to June 3, 2014. On June 3, 2014, he entered guilty pleas to some counts but the sexual assault charge was for trial on October 9, 2014 and he consented to his remand. On the day of trial for the sexual assault, he entered a guilty plea and the matter adjourned for the preparation of the PSR which was completed for sentencing on December 16, 2014. [ 31 ] Mr.

S. advised he was not subject to overcrowding although he was housed in a cell with another offender. He was able to access programming and he was not subject to any violence. He breached his probation order when he committed this offence and has other breaches of the probation order that occurred both before and after the sexual assault.

On March 14, 2014, he was remanded in custody by consent but given he had previously been released on the electronic monitoring program twice and violated those terms, it was unrealistic to expect he would be released again after having breached the clause by attending at the First Nation where he was specifically prohibited from being to avoid any contact with the victim. [ 32 ] I do find Mr. S. is entitled to remand credit at 1.5 times for the time spent on remand from December 16, 2014 to January 27, 2015 awaiting sentencing, being 43 days, giving him credit of 65 days for that time frame.

He will be given credit on a 1:1 basis for the remaining 364 days, which I will consider as one year. Thus he will receive a total remand credit of 14 months and 5 days. [ 33 ] I sentence Mr. S. to 40 months incarceration to be reduced by the 14 months and 5 days already served, resulting in a sentence today of 25 months and 25 days for the sexual assault.

[ 34 ] Pursuant to s. 490.011(a)(xvi), sexual assault is a designated offence requiring an order pursuant to s. 490.012(1). Therefore, pursuant to s. 490.013(2)(

b) I order Mr. S. to comply with the Sex Offender Information Registration Act for a period of 20 years. [ 35 ] Further, pursuant to s. 109, I find that the offence of sexual assault where the Crown proceeded by indictment is an offence in the commission of which violence against a person was used, threatened, or attempted and for which the person may be sentenced to imprisonment for 10 years or more pursuant to s. 109(1) (

a) of the Criminal Code .

Thus, I prohibit him from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of ten years after his release from imprisonment; and further, I prohibit him from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 36 ] This offence is also a primary designated offence for the purposes of bodily substances for DNA and therefore pursuant to s. 487.051(1), I make an order in Form 5.03 authorizing the taking of a number of samples for forensic DNA purposes.

The police agency shall have 30 days from today to obtain those samples. [ 37 ] Pursuant to s. 743.21, I prohibit the offender from communicating directly or indirectly with the victim or any member of her family during the custodial period of his sentence. [ 38 ] On count #4, which is a breach of probation contrary to s. 733.1 of the Criminal Code concerning the residence clause, I sentence him to six months incarceration concurrent to count #2 being the sexual assault, and to any other sentence.

Given his circumstances I waive the victim of crime surcharges on this Information #24501612 for both counts. [ 39 ] Mr. S. has a number of breaches of probation and one breach of recognizance for which he is also being sentenced today as follows: Information 40302244 - guilty pleas were entered to two counts of Breach of Probation. On November 16, 2012, Mr. S. changed his address but did not provide such information to the Probation Officer as he was required to do so.

Further, between November 5, 2012 and December 4, 2012, he continued to reside at a residence without advising the Probation Officer nor did he have any contact with them. He had been placed on probation for nine (9) months commencing July 17, 2012, which was to expire on April 17, 2013. During that time he had been ordered to attend for addiction services and employment but quit the employment and then quit attending to addiction services as well. I sentence him to 15 days on each count consecutive to each other and consecutive to the sentence on the sexual assault.

I waive the victim of crime surcharges in the circumstances. Information 30903093 - he entered a guilty plea to breaching his probation by failing to pay restitution on or before January 16, 2013. He had been ordered to pay $501.14 in restitution on the probation order from July 2012, but paid nothing. I sentence him to 15 days incarceration consecutive to any other sentence he is serving. I waive the victim of crime surcharges in the circumstances.

Information 33833089 - he entered a guilty plea to a breach of his recognizance on April 10, 2013 by failing to remain in his residence 24 hours a day contrary to s. 145(3) of the Criminal Code . Mr. S. had been residing at a residence but the person who was allowing him to stay there wanted him removed due to an incident at the residence. The landlord had given the person an ultimatum that either the accused was to move or they would both be evicted. A Probation Officer directed the accused to find an alternative residence and report, but he did not do so.

I sentence him to 30 days consecutive to any other sentence he is serving. Information 24501429 - a guilty plea was entered to breaching his recognizance by being within 30 kilometres of a named First Nation without lawful excuse, contrary s. 145(3) of the Criminal Code . Mr. S. had been arrested on January 28, 2013 and appeared in Court January 29, 2013 on all charges except that ending in 089 and 429. He was released on the electronic monitoring program after a show cause hearing on February 19, 2013.

Unfortunately after breaching that release he was arrested on April 10, 2013 and released again on the electronic monitor on June 7, 2013. On March 8, 2014, he was observed on the First Nation Reserve by the family of the victim riding around on an ATV. He was prohibited from attending the reserve to avoid any contact with the victim of the sexual assault. He had been granted a four hour pass by the Probation Officer and used that time to attend to the reserve. I sentence him to 60 days

incarceration consecutive to any other sentence. There will also be a $100.00 victim of crime surcharge. [ 40 ] In summation, as of today, taking into account the 14 months and 5 days already served, Mr. S. is sentenced to a further 30 months and 10 days incarceration in a federal penitentiary. _______________________ I.J. Cardinal, J