Her Majesty the Queen - v. -, 2013 SKPC 134

IN THE PROVINCIAL COURT OF SASKATCHEWAN Date: July 31, 2013 Citation: 2013 SKPC 134 Information: 36654892, 43172772 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - David Natomagan Appearing: Frank Impey For the Crown Grant Crookshanks For the Accused SENTENCING DECISION M.L. GRAY , J Circumstances of the Offence [ 1 ] Mr. Natomagan entered guilty pleas to three counts of common assault and an attempted theft, all of which proceeded summarily. Further, guilty pleas were entered to the indictable offences of sexual assault and breaching an undertaking by consuming alcohol.

[ 2 ] The first of these offences occurred on December 1, 2012. Mr. Natomagan entered a vehicle that was parked on the street with the engine running. When he attempted to put the car in motion, a passenger in the back seat began to scream; he turned and punched her in the face. The owner of the vehicle pulled the accused out of the car whereupon Mr. Natomagan continued up the street where he encountered the next two complainants. One of them was helping his mother out of a parked car when the accused approached and said he was cold.

The accused pushed the woman who pushed him back; the accused then swung at her with a closed fist. The second complainant intervened and he, too, was punched by the accused. Police were called and the accused was arrested a short distance away in a highly intoxicated state. [ 3 ] He was released on an undertaking on December 3, 2012 with a condition that he abstain from alcohol. [ 4 ] On December 7, 2012 the accused was again arrested after a sexual assault on a 52-year-old woman. She was walking down the street at about 7:30 a.m. when the accused approached and asked her for money; she said she had none.

He then followed her, and in the complainant’s words “he grabbed me underneath my bum.” He then pulled her to the ground and got on top of her. He demanded that she perform fellatio, he put his hand on her vagina beneath her clothing, and underwear and tried to put his penis in her mouth. She struggled while the accused kept kissing her and trying to pull off her pants. He forced his penis into her mouth, moving it in and out for about two minutes.

He stopped, tried to drag her up some stairs, and told her in a very crude way that he wanted sexual intercourse. [ 5 ] The complainant was screaming and trying to wave down traffic. Eventually a vehicle stopped and the accused pulled up his pants and walked away. The Good Samaritan who had stopped, followed him and held him for the police. The accused appeared very intoxicated, and stated, “I’m blacking out”. Circumstances of the Accused [ 6 ] A Pre-sentence Report was prepared and sets out the background and personal circumstances of this accused. It describes, in some detail, the breakdown of his family unit.

At a very young age the accused was physically abused by his father and was sent to live with his grandmother. At the age of four he moved to Saskatoon to be with his mother; her home was characterized by both substance and physical abuse. He would run away from home, and was placed in foster care on occasion. [ 7 ] The accused began drinking at age 14, and has experienced blackouts and alcohol poisoning in the past. He acknowledges his alcohol abuse has contributed to his legal problems. He uses marijuana regularly beginning at the age of 8.

He has also used cocaine and crack cocaine. [ 8 ] In spite of all this, he is seven credits short of completing Grade 12, and, since 2008, has worked at a variety of jobs. [ 9 ] Mr. Natomagan has been on remand for 239 days including December 1 and 2, 2012, and today. [ 10 ] He has expressed remorse to the author of the Pre-Sentence Report, and showed some insight as to how his actions might have affected the victims. He apologized in court and indicated that he had no recollection of the circumstances of the offences.

He told the Court about some involvement with the Sandy Lake RCMP that I find irrelevant to these proceedings and to which I attach no weight. Sentence [ 11 ] The task of this Court is to fashion an appropriate sentence keeping in mind the circumstances of the offences, the circumstances of the accused and the sentencing principles set out in s. 718 , 718.1 and 718.2 of the Criminal Code . Briefly stated, the

purpose of sentencing is to contribute to respect for the law and a just and safe society by imposing sanctions for criminal conduct.

Those sanctions must address one or more of the following objectives: to denounce unlawful conduct, to deter offenders, to separate themfrom society where necessary, to assist in their rehabilitation, to provide reparation for harm done and to promote a sense ofresponsibility in the offender. [12] A fit and proper sentence must also be proportionate to the gravity of the offence and the degree of culpability of the offenderand must take into account any mitigating or aggravating circumstances.

As set out in s. 718.2 of the Criminal Code, a sentence shouldbe increased or decreased to account for any relevant aggravating or mitigating circumstances relating to the offence or to the offender. Further, any sentence imposed must be similar to sentences imposed on similar offenders in similar circumstances. Finally, s. 718.2(e)requires that all available sanctions other than imprisonment that are reasonable in the circumstances must be considered for alloffenders with particular attention to the circumstances of aboriginal offenders. [13] In R. v.

Ipeelee 2012 SCC 13, the Supreme Court of Canada confirmed that R. v. Gladue (SCC), [1999] 1S.C.R. 688 was the governing authority on s. 718.2 (

e) of the Criminal Code. [14] I find the following comments made by the Supreme Court of Canada in Gladue (supra) at para. 78 and 79 instructive: . . . we do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives thegreatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation and separation...there aresome serious offences and offenders for which and for whom separation, denunciation and deterrence are fundamentally relevant.

Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances thelength of the sentence of an aboriginal offender may be less and in others the same as that of any other offender.

Generally, the moreviolent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts in sentencing. [15] After reviewing and considering the circumstances of these offences and of this accused, I find the following to beaggravating factors in relation to the sexual assault: 1. Sexual assault is a serious offence for which Parliament has provided a maximum sentence of 10 years; 2. This was a brazen attack on a stranger in a public place; 3.

The assault involved a significant degree of force; 4. Although no victim impact statement was provided, one can only conclude that this was a traumatic experience for the victim; 5. The offence occurred within days of the accused being released from custody on court ordered conditions; 6. The PSR rates the accused as a high risk to re-offend both generally and sexually; and 7. The accused has a prior criminal record. [16] In mitigation, I note that criminal record does not include any prior offences of violence. Secondly, the accused entered aguilty plea, albeit in the face of a strong case against him.

Nonetheless, the complainant was spared the further indignity of having totestify to these events in a public forum. Finally, the accused has expressed remorse by entering a guilty plea and by apologizing for hisbehaviour.

[17] As was pointed out in R. v. Arcand 2013 SKCA 75 at para. 41: “The starting point for sentences for serious sexual assault isthree years and assumes an offender of good character and no criminal record (R.v. Cappo (1993),116 Sask. R. 15, R. v. Jackson (SK CA), [1994] 3 W.W.R. 125 (Sask. C.A.)).” In Arcand, the accused was sentenced for both sexual assault and unlawfulconfinement, and had 36 prior entries on his criminal record, some for violence.

The nature of the sexual assault consisted of theaccused pinning the unconscious complainant on the ground with her hands above her head while he attempted vaginal penetration.When she awakened and began screaming, he let her go.

The Court found that a sentence of four years for the sexual assault by itselfmight have been appropriate but the global sentence of five years for the sexual assault and unlawful confinement was not demonstrablyunfit. [18] Turning first to the matter of the sexual assault which is before the Court, I find that given the degree of force used and thedegree of intrusion inflicted, this is a major sexual assault. In comparing the case at hand to the Arcand case, I note that Mr. Natamagonhas a limited criminal record, but the degree of violence and intrusion was greater than in Arcand. Mr.

Natomagan’s position is alsoaggravated by the fact that he was on conditions of release for offences of violence. Further, both this accused and Mr. Arcandexperienced similar Gladue factors. [19] Although rehabilitation must always be considered, this Court finds that the principle objectives to be met in this case are todenounce the conduct, to deter this offender and like-minded others and to protect the public. Although the Court must acknowledge thenegative impact that Mr. Natomagan’s upbringing and life experiences have had, that does not mitigate the moral culpability for such anoffence of violence.

After weighing and considering the circumstances of this offence, the circumstances of this accused, the purposesand principles of sentencing as set out in the Criminal Code as well as the guidance provided by our Court of Appeal, I have concludedthat a sentence of four years is the appropriate disposition with respect to the sexual assault. [20] With respect to the offences of December 1, 2012 I note that these assaults also were perpetrated on unsuspecting membersof the public for no reason other than the drunkenness of the accused.

The principles of deterrence, denunciation and protection of thepublic apply and I find that a short period of incarceration is warranted on each count. [21] On the three counts of common assault and the attempted theft, there will be a sentence of 90 days time served leaving 149days of remand credit. With respect to the sexual assault, there will be a sentence of four years, with five months credited for theremaining remand time, for a sentence of 43 months. In relation to the accompanying breach of undertaking, there will be a sentence of30 days concurrent.

All surcharges are waived. [22] Further, in relation to the conviction for sexual assault, there is an order to provide a sample of DNA for inclusion in the DNAData Bank pursuant to s. 487.051 of the Criminal Code. In addition, pursuant to s. 490.012 of the Criminal Code, there is an order tocomply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for a period of 20 years.

Finally, there is an order pursuantto s. 109 of the Criminal Code prohibiting the accused from possessing any firearm, cross-bow, prohibited weapon, restricted weapon,prohibited device, ammunition, prohibited ammunition and explosive substance for 10 years plus any period of imprisonment. _____________________ M.L. Gray, J