Her Majesty the Queen - v. -, 2014 SKPC 31

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 031 Date: February 4, 2014 Information: 24487082 Location: Tisdale _____________________________________________________________________________ Between: Her Majesty the Queen - and - Robert Sawchuk Appearing: Ms. Lori O ’Connor For the Crown Mr. Todd Parlee For the Accused 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the complainant or a witness, and any information that could disclose the identity of the complainant or witness, shall not be published in any document or broadcast in any way.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 ] On December 16, 2013 Robert Sawchuk pled guilty to sexually assaulting an adult female acquaintance. The assault, which occurred on June 17, 2012, was video recorded by Mr. Sawchuk with his cell phone camera over the space of approximately 11 minutes. At one point in the video, Mr. Sawchuk is visible. The video was played in court when the plea was entered.

[ 2 ] While Mr. Sawchuk has entered a guilty plea to the sexual assault, there is an issue concerning what activity constitutes the sexual assault. The Crown asserts the sexual assault involved touching her breasts, undoing her pants and placing his hand inside her pants. Defence submits that his hand did not actually touch the victim’s breasts but merely hovered over it and as such does not constitute part of the sexual assault. Counsel also contends that no touching inside her pants occurred but Mr.

Sawchuk did undo her buttons and zipper. [ 3 ] Counsel agreed the Court should review the video (Exhibit P-1) and decide these issues prior to sentencing. I was directed to view a certain video file on the exhibit as it contained other information that is not relevant. I did carefully review file MOV062 dated June 17, 2012 and only that file in determining these issues. Counsel advised, and the video shows, that at certain parts it is a black screen and nothing is visible but that is part of the video and not a computer malfunction. FACTS [ 4 ] The victim and the accused are known to each other.

On June 17, 2012, she had previously told the accused to come over to her house but later advised him not to attend. The victim was alseep on the couch in her living room when the accused came into her house. While she slept, he videotaped her and touched her body. The victim awoke and saw the accused overtop of her with his cell phone. She grabbed the phone, threw it and then ran to her bathroom and locked herself inside. The accused left the residence. [ 5 ] The video may not have come to light but for the actions of the police. They attended to Mr.

Sawchuk’s residence on October 19, 2012 in relation to a drug investigation and seized a cell phone. During the analysis of the cell phone, the RCMP Technological Crime Unit retrieved a video that had been deleted. After some investigation, they were able to determine the identity of the victim. The victim did not realize the accused had sexually assaulted her as she was unconscious when it occurred. [ 6 ] Having carefully reviewed the video, I find as a fact that the accused did touch the victim’s breasts overtop of her clothing. Within the first 20 seconds, the video shows Mr.

Sawchuk’s left hand on her breast area, over top of her fleece shirt , and during the course of the assault he touches this area twice and also moves his hand over top of her clothing above her waist. [ 7 ] The video illustrates at the start that the victim’s shirt was covering the top of her pants, such that the two brass buttons and zipper that close her pants are not visible. At minute 1:50, it is clear her zipper on her pants is closed. Over the course of the video, Mr. Sawchuk focuses the camera on her crotch area and breast area.

Approximately two minutes into the video, it shows his hand slightly inside her shirt near her waist and a few seconds later shows his hands at the buttons on her pants. At this point, the buttons and zipper on her pants are fully closed. At 2:15 his right hand is shown reaching under her fleece shirt at her waist. [ 8 ] From approximately 2:20 - 3:40 the video is black, although there are bursts of movement it is difficult to discern what is happening. At 3:40 Mr. Sawchuk puts the cell phone down such that it is facing upward and filming the ceiling.

He appears in and out of the video, to the right of the screen, and is moving to the right and looks down toward the camera and to the right on occasion. At 5:18 he picks up the phone and is again filming the victim . [ 9 ] I find as a fact that Mr. Sawchuk put the phone down so as to use both hands to manoeuver the clothing of the victim for his purpose of sexually assaulting her. I say this as at approximately the 5:50 minute mark it shows his right hand at her waist area. Her pants are undone and her shirt is pushed up.

Her stomach is bare, and the tips of the fingers on his right hand are resting on her bare stomach, with the back of his hand against the waistband of her panties and pants. I find that he is using his hand to push aside her panties and pants. [ 10 ] Approximately one minute later, he brings the camera in close to her open zipper in what I find is an effort to film inside her underwear. The video continues and I find as a fact thatat approximately 7:15 his hand is on her right thigh on the outside of her clothing. Within a few seconds his hand is briefly on her arms, which are crossed over her stomach.

[ 11 ] I find the sexual assault is comprised of touching her breasts; unbuttoning and unzipping her pants and placing his fingers under her shirt at her waist; moving her panties and pants with his hand inside her pants; and briefly placing his hand on her thigh area near her crotch over her clothes. [ 12 ] I find it is a further aggravating factor that the accused filmed this incident and was trying to look inside her pants while doing so. [ 13 ] Crown counsel submits the accused had kept the video as a trophy and photographed himself as confirmation or proof that it was he who committed this act.

Defence counsel submits that the filming of himself was inadvertent. As this is an aggravating fact, the Crown must prove it beyond a reasonable doubt. [ 14 ] Having reviewed the video, I find the accused inadvertently filmed himself when he put the camera down so he could use both hands to facilitate the sexual assault. Thus, I find the Crown has not proven this aggravating factor beyond a reasonable doubt and accept the accused inadvertently captured himself in the video. [ 15 ] The evidence established that the video was deleted by Mr.

Sawchuk and was recovered by the RCMP Technological Crime Unit while looking for information unrelated to this matter. There is no information before the Court as to when the video was deleted. It could have been deleted immediately after he made it or shortly before the phone was seized in October 2012. Without evidence as to when the video was deleted, I am not prepared to make a determination the accused kept the video as a trophy. CIRCUMSTANCES OF THE OFFENDER [ 16 ] Mr.

Sawchuk is a a 55 year old man who has maintained employment steadily through the years, when not incarcerated, whether as a carpenter or working for a company which operates hotels. He owns a home and has not consumed alcohol in four years. [ 17 ] He and the victim are known to each other as she is a morphine user and Mr. Sawchuk provides drugs to her. [ 18 ] His criminal record reflects a criminal lifestyle commencing in 1978 with a theft and ending in 2012 with simple possession of cannabis marihuana for which he was fined.

Of his 30 convictions, most are property related (theft, false pretenses, possession of stolen property) and driving while under the influence. There is a gap in his record from 1990 to 1995, 2002 to 2008, and 2008 to 2012. Of significance is a conviction in July 1984 for sexual assault for which he received four years incarceration. CIRCUMSTANCES OF THE VICTIM [ 19 ] No victim impact statement was filed with the Court. The victim was initially reluctant to proceed but was prepared to testify as she was concerned for others who may come into contact with the accused.

She is a young woman in her late 20's, and, as noted above, a morphine user. There is no other information before the Court as to the impact this offence has had upon her. POSITION OF THE PARTIES [ 20 ] The Crown submits a sentence of four years incarceration in addition to the time already served is appropriate. She notes the offence happened while the victim was asleep and vulnerable. Further, it occurred in her own home, a place where she should feel safe and not be concerned with someone inappropriately touching her.

While the Crown acknowledges the assault is at the low end of the spectrum, she argues the circumstances and his previous

conviction for sexual assault warrant a penitentiary sentence. [ 21 ] Mr. Sawchuk has been on remand since July 12, 2013. Defence counsel submits he ought to be given credit at 1.5 times for the first 30 days on remand as he was housed in the “chapel”, an overflow unit which had no running water or baths. Those services were available, just not on the unit. In this case, I decline to grant the accused credit for remand at the enhanced rate of 1.5 times for every day already served. Section 719 (3) of the Criminal Code provides that the maximum of one to one credit for each day spent in custody shall be imposed.

Section 719 (3.1) allows the Court to grant a maximum of 1.5 days credit for each day spent in custody if the circumstances justify it “unless the reason for detaining the person in custody was stated on the record under subsection 515 (9.1)...” [ 22 ] Section 515(9.1) states: Despite subsection (9), if the justice orders that the accused be detained in custody primarily because of a pervious conviction of the accused, the justice shall state that reason, in writing, in the record. [ 23 ] I reviewed the recording of the court proceedings held on July 23, 2013 where Mr.

Sawchuk was held in custody after a show cause hearing. I find the record indicates Mr. Sawchuk was detained in custody primarily because of his previous criminal convictions. Thus, he is not eligible for enhanced credit. Even if I am mistaken, I would still decline to grant Mr. Sawchuk enhanced credit at 1. 5 days for each day served on remand as all offenders in the unit were inconvenienced by the lack of facilities in the ‘chapel’ and it was not something that only impacted upon Mr. Sawchuk. He is granted credit of 7 months time already served. [ 24 ] Mr.

Parlee submits that in the circumstances, a fit sentence of 6 months to one year incarceration, in addition to time already served, is appropriate. Taking into account the credit of 7 months time already served, this would make the sentence one of 13 months to 19 months. He notes the sexual assault is at the low end of the sentencing spectrum and the criminal conviction for sexual assault was entered nearly 30 years ago.

DECISION [ 25 ] While a guilty plea is recognized as a factor in mitigation, it is diminished in this case as the plea was entered on the day of trial after the complainant had attended court in order to testify. Mr. Sawchuk’s criminal record, while aggravating, does contain significant breaks where it appears he has been able to avoid criminal behaviour. However, it also includes a previous conviction for sexual assault, and while dated, it is a significant factor. Further, he assaulted the victim in her own home while she was vulnerable.

The assault occurred over a period of 11 minutes and was recorded by the accused. Although he did not penetrate or physically injure the victim, the video recording of the assault is highly intrusive. [ 26 ] Such assaults are no less disturbing because the victim is asleep than if the victim were awake. As noted by the Saskatchewan Court of Appeal in R v. Tuffs 2012 SKCA 6 sexual assaults of this nature call for a period of incarceration. (See also R v Kasokeo 2009 SKCA 48 at para.5) [ 27 ] Sentences for these types of offences must stress general and specific deterrence as well as denunciation. Mr.

Sawchuk’s moral culpability is high. He and others must realize that sexual assault is a serious offence, even where there is no penetration and no outward injury to the victim. Protection of the public, and public confidence in the administration of justice demand that our courts send a strong, consistent message that those who abuse others in a sexual manner will face significant consequences. [ 28 ] In all of the circumstances I find that a fit sentence of 30 months is appropriate. Giving Mr. Sawchuk credit for 7 months time already served, he is sentenced to a further 23 months incarceration.

ANCILLARY ORDERS [ 29 ] The following orders are all mandatory. Pursuant to s. 109 of the Criminal Code I impose a firearm prohibition for a period of 10 years following his incarceration. This is a primary designated offence for the purposes of a DNA order, and pursuant to s. 487.051 I make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of DNA analysis from Mr. Sawchuk. Pursuant to

section 490.012 of the Criminal Code , I order that Mr. Sawchuk comply with the Sex Offender Information Registration Act for life in accordance with s. 490.013(2.1) as this is his second conviction for a sexual assault. I.J. Cardinal, J