R. v. Barrett, 2012 NLCA 46

Date: 20120712 Docket: 10/126 Citation: R. v. Barrett , 2012 NLCA 46 Publication Ban:

Section 486.4 of the Criminal Code respecting the non-publication of the identify of a complainant or of a witness and any information from which they might be identified applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: HER MAJESTY THE QUEEN APPELLANT AND: AUBREY BARRETT RESPONDENT Coram: Barry, Harrington and Hoegg JJ.A. Court Appealed From: Provincial Court of Newfoundland & Labrador, Clarenville Appeal Heard: January 16, 2012 Judgment Rendered: July 12, 2012 Reasons for Judgment by Hoegg J.A. Concurred in by Barry and Harrington JJ.A. Counsel for the Appellant: Elaine Reid Counsel for the Respondent: Michael Ralph

Hoegg J.A.: BACKGROUND [ 1 ] This is a Crown appeal of sentence. [ 2 ] On October 18, 2010, Aubrey Barrett was sentenced for five offences – three sexual assaults and two breaches of probation. Mr. Barrett committed the sexual assaults on three girls aged 14, 14 and 12, respectively, on three separate occasions between May 1 and June 19, 2008. Two of the sexual assaults involved intercourse and the third involved digital penetration. Mr. Barrett was tried over a period of several months during 2009 and 2010, and convicted on July 7, 2010.

After three further appearances, a sentence of three years and three months incarceration was imposed. [ 3 ] When Mr. Barrett was sentenced on October 18, 2010, he was serving a five-year sentence for three other sexual assaults. These other sexual assaults had taken place on three separate occasions during the spring of 2010, and involved three other, different young women. Mr. Barrett pleaded guilty to these offences and was sentenced on July 21, 2010. [ 4 ] Mr.

Barrett appealed his five-year sentence for the three 2010 assaults on the basis that the sentencing judge had wrongly rejected a joint submission for a three-year sentence. After Mr. Barrett was sentenced for the 2008 offences on October 18, 2010, this Court heard (on November 19, 2010) and granted (on January 7, 2011) his sentencing appeal for the 2010 assaults, thereby reducing his term of imprisonment from five years to three years to accord with the joint submission. ( R. v.

Barrett , 2011 NLCA 5 .) [ 5 ] In this case, the trial judge arrived at the sentence of three years and three months in the following manner. He first decided individual sentences for the five offences, determining that consecutive sentences of two years, three years and one year for the three sexual assaults were appropriate and that consecutive one month and three-month sentences were appropriate for the two breaches of probation for a total of six years and four months incarceration.

He then reduced the six years and four months to four years and three months saying only that he believed an adjustment was required to “reflect the principle of totality”. Then, he further reduced the four- year three-month sentence to three years and three months “to reflect further the principles of totality”. The trial judge stated that the second totality adjustment was because Mr.

Barrett was already serving a five-year sentence for the 2010 offences, about which the trial judge knew no details, and when that five-year sentence was added to the four-year three-month sentence, the total period of incarceration – nine years and three months – was “unduly long and harsh” given Mr. Barrett’s “age, antecedents and prospects”.

In so deciding, the trial judge adverted to the fact that the five-year sentence for the 2008 sexual assaults was under appeal, and said: I wish to make it quite clear to all concerned, that if the accused had not presently been sentenced to five years imprisonment for the other offences, I would not have reduced sentence to be imposed in this case below four years and three months.

If for any reason the Court of Appeal deems it necessary to reduce the five-year sentence previously imposed, I wish the reasons in this sentence to be brought to their attention. (Transcript of proceedings of Oct. 18, 2010, page 9, lines 3 to 9.) THE APPEAL [ 6 ] The Crown appeals the three-year three-month sentence on grounds of error and fitness. The Crown argues 1) that the trial judge misinterpreted and/or misapplied the totality principle and the law respecting consecutive and concurrent sentences, and 2) that he erred in imposing a demonstrably unfit sentence in all of the circumstances.

More specifically, the Crown maintains that the trial judge erred by making two totality adjustments and imposing unfit sentences for two of the sexual assaults. [ 7 ] Mr. Barrett takes the position that the trial judge correctly applied the totality principle and the law respecting consecutive and concurrent sentences on the information available to him at the time. However, Mr.

Barrett submits that because this Court subsequently granted the sentence appeal concerning the 2010 offences, the correct disposition in this case is a sentence of four years and three months, which the trial judge determined was appropriate before doing the second totality adjustment. ISSUES [ 8 ] The issues are: (

i) whether the trial judge erred in how he applied the totality principle to Mr. Barrett’s sentencing; and (ii) whether the sentence the trial judge imposed on Mr. Barrett is demonstrably unfit. The first issue concerns the propriety of a sentencing judge considering a past sentence for other offences currently being served which are not before that sentencing judge as part of his or her totality analysis respecting a sentence for multiple offences which are before him or her.

The second issue concerns whether the factual consent of a minor who cannot legally consent to sexual activity is a mitigating factor on sentence. If the trial judge erred or imposed a demonstrably unfit sentence, then this Court must determine a fit sentence for Mr. Barrett. THE LAW The Totality Principle and Concurrent and Consecutive Sentences [ 9 ]

Section 718.2(c), added to the Code by S.C. 1995, c. 22, s.6, is a codification of the totality principle that had previously been developed in the jurisprudence: 718.2 A court that imposes a sentence shall also take into consideration the following principles: . . . (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; [ 10 ] R. v. Hutchings , 2012 NLCA 2 describes how

section 718.2(

c) is to be applied to sentencings. The case also provides an

historical and comprehensive explanation of the totality principle. At paragraph 67, Green C.J. explains when the principle is engaged: Of note, initially, is that s. 718.2(

c) requires consideration of whether a combined sentence is unduly long or harsh “where consecutivesentences are imposed”. On its plain reading, this means that considerations of totality are engaged in all cases involving the potentialimposition of consecutive sentences. … [11] At paragraph 84, the Chief Justice sets out the steps a court must follow in conducting a totality analysis. The first three stepsare: (

i) to identify a proper sentence for each offence; (ii) to consider whether these individual sentences should be made consecutive orconcurrent under normal sentencing principles; and then, if two or more sentences remain to be served consecutively, (iii) to take one lastlook at the combined sentence to determine whether it is “unduly long or harsh”, as directed by

section 718.2(c). The “unduly long orharsh” evaluation involves considering whether the combined sentence is disproportionate to the gravity of the offences for which theoffender is being sentenced and the offender’s degree of responsibility for them, taking into account and balancing the relevant factorslisted in clause 5 of the same paragraph. [12] Prior to the inclusion of

section 718.2(

c) in the Code, application of the totality principle was as is described by Lamer C.J. atparagraph 42 of R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500: [42] In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form ofthe “totality principle”. The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutivesentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D.A.

Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation tothe offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutivesentences, to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate". [13] The circumstances governing whether sentences for multiple offences should be served consecutively or concurrently weredecided by Goodridge C.J. of this Court in R. v.

Crocker (1991), (NL CA), 93 Nfld. & P.E.I.R. 222 (Nfld. C.A.). Atpage 227 the Chief Justice summarized: … consecutive sentences should be imposed unless there is a valid reason not to do so. Each sentence should be an appropriate one forthe offence. Concur​rent sentences may, but are not required to be, imposed where multiple convictions arise out of several offenceswhich constitute a single criminal adventure, and may also be imposed to achieve proper totality for mul​tiple convictions. [14] The Crocker principles have been consistently affirmed by this Court (see Hutchings, paragraphs 18 to 22). [15] R. v.

Tobin (1992), (NL CA), 106 Nfld. & P.E.I.R. 354 (Nfld. C.A.) also touches on the issue raised in thisappeal. In Tobin, this Court held that: It is generally inappropriate, when sentencing a convicted person to prison for an offence while that person is serving a sentence whetherin or out of prison in respect of an earlier offence, to allow the new sentence to be concurrent with any portion of the earlier sentence. [16] In R. v. McCarthy, 2005 NLCA 36, 248 Nfld. & P.E.I.R. 14, this Court considered the application of the totality principle to twoseparate sentencing appeals respecting the same offender.

The appeals were heard together, and thus presented an opportunity to thisCourt to order fair sentencing decisions while considering the facts of both cases. Mr. McCarthy had been convicted and sentenced attwo different times for two different groups of offences: on February 27, 2004 he was sentenced to eleven months incarceration for anumber of offences which had taken place in December 2003 and January 2004, and on April 30, 2004, he was sentenced to twenty-threemonths incarceration for ten offences which took place in 1999 and 2000.

The jointly heard appeals resulted in this Court increasing hissentence on the appeal relating to the offences which occurred during 1999 and 2000. [17] In R. v. Penney, 2005 NLCA 31, 247 Nfld. & P.E.I.R. 333, this Court considered the application of the totality principle in thecontext of an offender who was sentenced for an offence he committed while on parole and consequently was liable to return to prison toserve the remainder of his former sentence in addition to the new sentence. Mr.

Penney argued that his sentence should be reduced so asto give effect to the goal of rehabilitation pursuant to the totality principle. A majority of this Court refused to reduce Mr. Penney’ssentence. In so deciding, Welsh J.A. stated: [54] The seriousness of the offence and Mr. Penney’s extensive criminal record for theft and related offences, discussed in paragraphs3 to 5, above, indicate the continued need for specific and general deterrence, and protection of the public from Mr. Penney’s criminalconduct. Further, the Court was not directed to any evidence that Mr.

Penney has taken steps in the direction of, or exhibited anycredible potential for, rehabilitation despite his years of incarceration. [18] In Penney, the Manitoba case R. v. Saran (1996), (MB CA), 113 Man. R. (2d) 205 (MBCA) was discussed. In Saran, the offender was being sentenced for offences he committed while on parole. This situation caused his parole to be revoked,resulting in his having to serve the unexpired portion of his previous sentence in addition to his sentence for the offences before thecourt.

In applying the totality principle to this situation, Scott C.J.M. said at paragraph 16: … the sentencing tribunal should, as always, take into account the totality of the sentences to be served by an accused in determiningwhether a particular sentence is a fit and proper one. In doing so, the court must bear in mind, if the facts be so, that there is anunexpired portion of a previous sentence still to be served by the accused. [19] In Penney, Justice Welsh accepted that this kind of approach could potentially apply.

However, she identified the irrationalityin reducing a sentence based on totality in circumstances where the offender had committed a new offence while he was on parolewhereas there would be no such reduction if the offender had committed the offence after his parole had been completed. She cautionedthat care must be taken not to signal to offenders that there is a benefit (by way of sentence reduction) to reoffending while on parole.

She also observed that when an offender reoffends while on parole, it is a fair inference that rehabilitation has not been achieved by theformer sentence. [20] The totality principle has been applied in other cases similar to Saran. (See R. v. Breuger (1994), (BC CA),48 B.C.A.C. 266; R. v. Kubbernus, 2000 ABQB 605; and R. v. James, 2008 CarswellOnt 9143 (ONSC).) These cases and Penneyemerge from factual situations where the commission of the offence for which the offender is being sentenced has directly triggeredliability for additional incarceration due to a parole violation.

These cases form a unique category, and are distinctly different from casesinvolving sentences for the offences before the court only, and cases, like this one, in which an offender argues that his sentencing shouldinclude consideration of remaining incarceration unrelated to a parole violation or current offences. [21] The only case of which this Court is aware, and it was not submitted by the parties, which could be interpreted as support for asentencing court incorporating consideration of other offences and sentences not before it into a current totality analysis, is R. v. Markie,2009 NSCA 119.

In Markie, the trial judge had rejected a joint submission for a four-year sentence for the offences of breaking andentering and sexual assault with a weapon for an offender who was already serving a nine-year eight-month sentence for 12 robberiesand other offences. Counsel on the joint submission had submitted that if Mr. Markie had been sentenced for the offences of break andentry and sexual assault with a weapon at the same time as the other offences for which he was currently serving sentence, he wouldlikely have received a sentence in the 15-year range.

It was therefore argued that his sentence for the break and entry and the sexualassault charges before the trial judge should be only four years, so as to accord with what counsel thought would have happened had thematters all been heard together. [22] The trial judge rejected the joint submission argument saying that what the former sentencing judge would have done had all ofthe offences been before him was speculative and not helpful.

She went on to say that an appropriate sentence for the two offencesbefore her would be 12 to 15 years consecutive to time being served, and then reduced the sentence to 10 years consecutive to the timebeing served on the basis of the totality principle. [23] This decision was appealed on the basis that the trial judge had rejected the joint submission. The Nova Scotia Court of Appealupheld the trial judge’s rejection of the joint argument, and affirmed her sentence saying: 18 Her reasons indicate that she understood counsel’s argument as to how the principle of totality should be applied in this case.

Itwas their common position that Mr. Markie’s sentence for the two offences before her should be determined as if all of the offences hecommitted in March and April of 2005 were being sentenced together. The judge rejected this as speculative. Instead she determinedthe appropriate range of sentence for the two offences which was a total of twelve to fifteen years, and then took the principle of totalityinto account by considering the unexpired portion of the sentence he was then serving, reducing the sentence to ten years. She did notcommit reversible error in doing so.

ANALYSIS [24] A totality analysis pursuant to

section 718.2(

c) does not expressly address consideration of offences which are not before thesentencing court. In ordinary circumstances, a judge who is imposing sentence for multiple offences conducts his or her totality analysison considerations relating to sentencing for the multiple offences which are before him or her and does not usually consider a sentencepreviously imposed by another judge. This is not to say that consideration of an offender’s past convictions and sentences is not relevantto his sentencing for the current offences.

The circumstances of an offender are always relevant to sentencing, notably with respect to theprinciple of rehabilitation, and the fact that an offender is incarcerated and for how long is a factor which could be considered by asentencing judge. The issue is how consideration of this factor can be addressed when the circumstances of the case engage a totalityanalysis. The Legislation [25] There are several reasons why a totality analysis is ordinarily confined to the sentencing of only the offences which are beforethe sentencing judge.

The first is that the legislation does not provide for consideration of other offences. [26]

Section 718.2 reads: 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 offenceor 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. (Italics added.) [ 27 ] The purpose of

section 718.2, of which the totality principle is part, is to provide direction to sentencing judges who are ordering sentences with respect to offences which are before him or her. The italicized parts of the

section indicated above as well as the following points illustrate: (

a) The wording in the

preamble of

section 718.2, specifically, a court that imposes a sentence , is aimed at the sentencing judge who is in the process of imposing a sentence for crimes which are before his or her court; (

b) Subsection 718.2(

a) directs that the sentencing judge consider various mitigating and aggravating factors related to the offence or offender before him or her , and lists several circumstances relating to the offence before him or her for specific consideration; (

c) Subsection 718.2(

c) requires the sentencing judge, if he or she is imposing consecutive sentences for offences before him or her , to take a last look at the total so as to be sure it is not unduly long or harsh. The “unduly long or harsh” evaluation specifically relates to consecutive sentences that judge is imposing , and does not expressly address a sentence that was imposed at another time, whether or not the present sentence is made consecutive to one already being served. It cannot be otherwise, for the sentencing judge is in no position to assess the longevity or harshness of a sentence which he or she did not impose. [ 28 ] In addition to the language of the

section clearly applying only to the matter before the sentencing court, subsection 718.2(

b) directs the sentencing judge to be cognizant of the parity principle. The objective of the parity principle is uniformity in sentencing, i.e., that similar sentences should be imposed on similar offenders for similar crimes. While the sentencing of offenders is highly individualized, there is much to be said for treating like offenders in a like manner, for the fairness in that approach promotes respect for the law.

If an offender who commits theft is given a lesser sentence than another offender who commits a similar theft in similar circumstances, the second offender will be heard to cry foul, for it would fly in the face of the parity principle. While there may be legitimate reason to differentiate between two such offenders, it would be a perverse result if the fact that one of the thieves has remaining time to serve for other criminal behaviour operates to lower the sentence for his theft. Current Jurisprudence [ 29 ] I now turn to this Court’s decision in Hutchings .

In directing how the totality principle is to be applied, Chief Justice Green uses similar wording to that found in

section 718.2. In setting out the steps to be followed in conducting a totality analysis at paragraph 84, the Chief Justice uses the phrases, (i) “when sentencing for multiple offences” (ii) whether any of the [sentences for] individual offences can be made consecutive or concurrent” (iii) “whenever the imposition of two or more sentences is indicated to be served consecutively” and (iv) “to take one last look at the combined sentence”.

These phrases logically relate to the individual sentences (plural) the sentencing judge is imposing for the offences before him or her ; the language does not specifically address consideration of offences and sentences previously decided by another court. [ 30 ] In clauses 4 and 5 of the same paragraph, the Chief Justice says the sentencing judge must conduct a proportionality analysis between the gravity of the offence and the offender’s degree of responsibility for it, on the one hand, and on the other hand, the total of the combined individual consecutive sentences to be imposed, so as to ensure that the combined sentence is not unduly long or harsh.

This proportionality assessment can only be carried out by the judge who is imposing sentence for offences which are before him or her, for, as stated above in relation to

section 718.2(c), the sentencing judge is not likely to have the requisite knowledge of the past offences so as to assess their gravity and the offender’s degree of responsibility for them.

It would be impractical and inappropriate, and in some cases impossible, for a sentencing judge to incorporate into his or her proportionality analysis an assessment of the “gravity” of an offence and the offender’s “degree of responsibility” for it, when that offence is not before him or her. [ 31 ] Lastly, clauses 6, 7, 8 and 9 of paragraph 84 of Hutchings contemplate the sentencing judge adjusting one or more of the consecutive sentences if the combined sentence is found to be unduly long or harsh.

It goes without saying that such adjustments can only apply to sentences that a sentencing judge is imposing, for that sentencing judge is in no position to adjust a sentence previously imposed by another court. Historical Judicial Application [ 32 ] Chief Justice Lamer’s description and application of the totality principle in M.(C.A.) appear to confine sentencing for totality to considerations for the offences which are before that sentencing court.

The tenses and grammatical numbers used by the Chief Justice in paragraph 42 of M.(C.A.) , specifically his words “the sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender” are clearly directed to the sentences (plural) the sentencing judge is considering for offences before him or her, and do not contemplate consideration of a sentence imposed by another court at another time. Moreover, the words of D.A.

Thomas, which Chief Justice Lamer quoted with approval in the same paragraph, relate to reviewing the aggregate sentences that a sentencing judge is passing and do not suggest incorporating another court’s sentence into the review. Practical Considerations [ 33 ] Crown counsel suggested that the facts and circumstances of past offences could be brought before the current sentencing judge by way of agreement of counsel. I am not satisfied that such a proposition is workable, given that there may not be agreement on the facts and circumstances which led to the previous sentence.

Sentencing decisions, whether delivered orally or filed in writing, often do

not fully recount the facts and circumstances which the judge accepted and on which he or she based the sentence. Although judges mustgive reasons for their decisions so as to meet the parties’ “functional need to know” (see R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R.869), they are not obligated to refer to every landmark in a case and record all nuances and perceptions so as to permit a judge who didnot preside over the trial or sentencing to evaluate “gravity” and “degree of responsibility”.

If the matter is left to counsel, and counseldo not agree, what version of the facts and circumstances is to be presented to the current sentencing court?

Would a hearing be requiredto determine the facts and circumstances of the former offence so as to enable the sentencing court to assess its gravity and the offender’sdegree of responsibility for it? [34] Consideration of the facts and circumstances of offences not before the sentencing court would cause delays in sentencingsrespecting offenders who are already incarcerated resulting from attempts to gather information, coordinate schedules of differentsentencing courts and waiting for appellate decisions on previous sentencing cases respecting the same offender.

In principle, delaysmay be necessary in order to do justice. But the introduction of a system of delays, which is what would be necessary in all casesinvolving the sentencing of incarcerated offenders, would complicate the sentencing process in trial courts which are already heavilyburdened. Such a practice could also lead to multiple appeals, like in this case.

Aside from these practical problems, a currentsentencing judge’s assessment of a previous offence raises the spectre of past and current sentencing judges differing on the gravity of anoffence and an offender’s degree of responsibility for it, thereby adversely affecting judicial comity. [35] More important, though, as noted above and in Justice Welsh’s reasoning in Penney, is that there is an absurdity in granting anoffender a reduction in sentence for new offences because he or she is incarcerated for a previously committed offence.

Past convictionsand sentences, which comprise a criminal record, are usually considered to be aggravating factors on sentence (see R. v. Atkins (1988), (NL CA), 69 Nfld. & P.E.I.R. 99 (Nfld. C.A.)). A criminal record is often quite relevant on sentencing in that it mayshow the offender to be a scofflaw, or lead to an inference that he or she has not been rehabilitated or otherwise learned from pastmistakes.

A criminal record does not become a mitigating factor because service of the past sentence has not been completed by the timeof the current sentencing. [36] Although the Code provisions and jurisprudence do not expressly address a sentencing judge considering past offences andsentences in a totality analysis respecting multiple offences before him or her, this cannot be the end of the matter, for there may be caseswhich cry out for consideration of the total period of incarceration an offender is facing when part of the total period of incarceration isthe sentence an offender is already serving.

The principle that sentencing is an inherently individualized process was recognized in M.(C.A.), and in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, and recently confirmed in R. v. Nasogaluak, 2010 SCC 6,[2010] 1 S.C.R. 206 wherein the Court stated at para. 43: The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft asentence that is tailored to the nature of the offence and the circumstances of the offender. [37] In this case, the trial judge was of the view that the fact that Mr.

Barrett was already serving a lengthy sentence for otheroffences ought to be considered in his sentencing for the matters before the court. I am not prepared to say the trial judge was wrong torecognize Mr. Barrett’s incarceration for other offences as a factor. However, the trial judge twice reduced Mr. Barrett’ssentence; once as part of a general totality analysis, and a second time specifically for the reason that Mr. Barrett was already serving afive-year sentence for other offences, and he did so without any consideration of

section 718.2(

c) or totality jurisprudence. In this regard,he committed error by matter-of-factly adjusting the total sentence for totality without any explanation or analysis, and for adjusting thesentence a second time on the independent basis that Mr. Barrett was already serving a prison term. The fact that an offender is alreadyserving an incarcerating sentence does not independently support a second totality adjustment. Moreover, neither is an automaticdownward adjustment necessarily warranted.

The trial judge must assess whether an offender’s incarceration for previous offences is afactor which, with all of the other factors bearing on a totality analysis, warrants a downward adjustment in sentence, and if so, explainwhy. FITNESS OF SENTENCE [38] The Crown says that the sentence imposed by the trial judge respecting the assault of H.P. is demonstrably unfit. The Crownargues that it is below the acceptable range for sexual assault involving intercourse, minimizes the harm done to child victims and iscontrary to Parliament’s intention.

The Crown also argues that the assault on B.S. should attract a sentence of four years because itinvolved forced and unprotected intercourse. There is no challenge to the one-year sentence respecting the assault of A.H. [39] Mr. Barrett argues that the four-year three-month sentence the trial judge would have imposed before doing his “second”totality adjustment is the correct sentence to be imposed by this Court. [40] Mr. Barrett stands convicted of three sexual assaults and two breaches of probation.

The facts of the assaults were described bythe trial judge as follows: HP was 14 years of age at the time of the incident. She had been kicked out of her house by her parents and the accused offered her theopportunity to stay at his residence for the night. He asked her to have sex with him. She initially refused. However, after the accusedpersisted she did agree and HP and the accused had consensual sexual intercourse. BAS, who was aged 14 at the time of the offence, and the accused agreed to meet at a local park. Shortly thereafter the accused droveBAS on an ATV to a secluded vacant house.

They went in to the house and up to the bedroom. The accused began kissing BAS andattempting to remove her clothing. She told him to stop but, in her own words, he just kept going. Sexual intercourse occurred and theaccused ejaculated inside BAS. AH, who was 12 years of age at the time of the offences, and the accused were behind the restaurant where the accused worked. Theybegan hugging and the accused digitally penetrated AH. The two breaches of probation stem from the commission of the assaults on H.P. and A.H.

[41] The trial judge determined that the following sentences were appropriate: s. 271 re H.P. - 2 years s. 271 re B.S. - 3 years s. 271 re A.H. - 1 year s. 733.1 re H.P. - 1 month s. 733.1 re A.H. - 3 months for a total of 6 years and 4 months. [42] In his decision, the trial judge remarked that although H.P. was under the age of consent, and thus unable in law to consent tosexual intercourse with Mr. Barrett, she had willingly had intercourse with him. H.P. had testified that she had initially resisted Mr.Barrett’s advances respecting intercourse, but she eventually relented.

The trial judge recognized the assault of H.P. to be a seriousviolation of her bodily integrity, but nevertheless treated her eventual consent as a mitigating factor. He saw the offence respecting B.S.differently, in that intercourse with B.S. was forced and unprotected. The trial judge therefore imposed a two-year sentence for theassault involving H.P. and a three-year one for the assault involving B.S. [43] The trial judge thoroughly reviewed the evidence. He stated in his decision, and I agree, that “the culpability of the offender ishigh and the offences are serious.

The normal range of sentencing for sexual assault involving intercourse is three to seven years.” Healso noted that Mr. Barrett was 22 years old when he committed the offences, and considered a pre-sentence report which had beenprepared in relation to the 2010 charges but which had been put before his court by consent. He noted that it referenced Mr. Barrett’simmaturity and his struggles with family issues and educational challenges. He also observed that Mr. Barrett’s work history wasrelatively good and that he had sought counseling as a result of having been criminally charged. [44] Mr.

Barrett and the Crown differ with respect to the appropriateness of a two-year sentence for the sexual assault of H.P., who,as a 14-year old child, could not legally consent to the intercourse, yet factually consented to it. The Crown points out that H.P. had beenkicked out of her house the night of the assault and that her factual consent was “obtained only after [Mr. Barrett’s] persistence andignoring [H.P.’s] desire not to engage in sex”. The Crown argues that the activity between H.P. and Mr.

Barrett was not consensual andcannot be described as such. [45] This Court has previously addressed the issue of factual consent to illegal sexual activity. In R. v. Allen (1989), (NL CA), 77 Nfld. & P.E.I.R. 138 (Nfld. C.A.), Gushue J.A. stated the following: [10] The nature of the consent given by a person under the age of 14 years may be a factor to be weighed by the trial judge inmitigation of sentence. That of course depends on the circumstances.

A very young child may submit to sexual assault by a parent orother person in a position of parental authority because he or she does not appreciate the nature of the act. An older child may acquiescebecause he or she feels there is no choice but to do so. Obviously in such circumstances the consent of the child will not weigh in theoffender’s favour or sentencing. Where, however, the complainant is close to the statutory age of consent and, for example, isknowledgeable in sexual matters and/or initiates the sexual activity, the situation may be different.

The consent may well be amitigating factor. [46] A few years later, in R. v. Hann, (1992), (NL CA), 75 C.C.C. (3d) 355 (Nfld. C.A.) Justice Marshall came toa different conclusion. He made the following comment on the effect of a child complainant’s willingness to engage in illegal sexualactivity: [41] … The primary ground advanced for reduction of the sentence was the consensual aspect of the three incidents … [42] As to his main ground, with respect, in my view in an offence where the element of non-consent has been removed as acomponent of the crime, consent should have no direct bearing upon the sentence.

To do so would also make the young person’sconduct subject to examination and this would be contrary to the intent of the Code provisions creating the offence. [47] This was the position adopted by both the Alberta Court of Appeal and the Saskatchewan Court of Appeal in more recentdecisions: see R. v. Pritchard, 2005 ABCA 240, 371 A.R. 27; and R. v. Revet, 2010 SKCA 71. In Pritchard, Chief Justice Fraser stated atparagraph 7, that: … the sentencing judge overemphasized the willing participation of the young girl in these activities.

While there may well be adifference in degree between a perpetrator who uses force, as opposed to persuasion, on an underage victim to accomplish his objective,the fact remains that the end result is the same - a sexual assault on someone who cannot, in law, give consent. Put simply, a young girl'swilling participation is not a mitigating factor. And yet, the sentencing judge effectively treated it as if it were. The Saskatchewan Court of Appeal, in Revet, considered the position adopted by this Court in Allen and contrasted it with the positionadopted by the Alberta Court of Appeal in Pritchard.

Sherstobitoff J.A., for the majority, accepted the reasoning of Fraser C.J.A. inPritchard, stating: [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 upon that child. Itmeans nothing more than an absence of aggravating factors such as the use of force, violence, intimidation or trickery.

[ 48 ] While I am not prepared to say that factual consent can never be a consideration in the sentencing of an offender for the sexual assault of a minor, it is not a mitigating factor, as the trial judge stated in this case, nor can it be used to justify lowering a sentence below the normal range. While I prefer and adopt the reasoning in Hann , I note that H.P.’s eventual factual consent would also not be considered a mitigating factor on an Allen analysis.

Accordingly, the trial judge erred in imposing a two-year sentence for the sexual assault of H.P. [ 49 ] On the facts of this case, despite the fact that Mr. Barrett took advantage of H.P. while she was in a vulnerable state, a three-year sentence is appropriate. With regard to the sexual assault of B.S., also 14 years old at the time and unable to legally consent, a sentence of three years and six months is appropriate. The additional six months is to take account of Mr.

Barrett’s persistence in disregarding B.S.’s express desire not to engage in sexual intercourse and exposing her to the risks of pregnancy, as well as his “premeditation and planning”, as the trial judge described it, in driving B.S. to the secluded vacant house where the intercourse took place.

These sentences, being at the low end of the range, take account of the principles of sentencing listed in s. 718 of the Code , and in particular, the objective of assisting in the rehabilitation of offenders. [ 50 ] The trial judge did not give reasons for distinguishing between the two breaches of probation which relate to the offences involving H.P. and A.H, and none is obvious. In keeping with the law respecting sentencing for breaches of probation as set out in R. v. Murphy , 2011 NLCA 16 , consecutive sentences of one month for each of the breaches are appropriate.

The total of the individual sentences is therefore six years and eight months. [ 51 ] Given the multiple charges, totality must be considered under

section 718.2(c). Applying the Hutchings guidelines, the first consideration is whether the sentences for the five individual offences are to be served consecutively or concurrently. The three sexual assaults took place on three separate occasions and involved three different complainants. Under the normal principles of sentencing, these sentences must be served consecutively, as the trial judge determined. Sentences for the two breaches of probation must also be served consecutively to each other and consecutively to the sentences for the assaults, as directed by this Court in Murphy .

This is also as the trial judge determined. [ 52 ] I now “take one last look” at the six-year eight-month sentence for Mr. Barrett to determine whether it is unduly long or harsh. In so doing, I must take into account and balance the factors Green C.J. identified in Hutchings , including the gravity of the offences, Mr. Barrett’s responsibility for them, his record and the impact of the sentence on his prospects for rehabilitation. [ 53 ] Mr. Barrett is serving three years for the 2010 offences.

His record also includes one theft charge for which he received a suspended sentence and in respect of which he repaid the money stolen. While an inference that rehabilitation is not working can generally be drawn in the case of an offender who commits an offence after having been convicted and sentenced for previous offences, such an inference cannot be drawn against Mr. Barrett. The first incarcerating sentence imposed on Mr. Barrett in July 2010 was for the second group of sexual assaults he committed, and he had just begun to serve his earlier sentence when he was sentenced in this case.

This time sequence did not afford Mr. Barrett opportunity for rehabilitation, so it cannot be inferred from his record that rehabilitation had not worked for him or that he was not a good candidate for it. [ 54 ] It is with respect to Mr. Barrett’s prospects for rehabilitation that the fact that he is already serving an incarcerating sentence can be considered.

However, for all of the reasons stated earlier in this judgment, it is only the fact that he is serving an incarcerating sentence and its duration that can be considered. [ 55 ] The impact of a lengthy or harsh sentence is generally understood to mean that an offender must not be crushed by it such that he will be rendered unable to learn from his mistakes and will lose all motivation to successfully reintegrate into the community when released. That said, it cannot be forgotten that opportunities for rehabilitation exist within the prison system.

Addictions programs, behavioural therapy and skill training provide opportunities for an offender like Mr. Barrett to reflect, learn and move forward – in effect, to rehabilitate himself. [ 56 ] Mr. Barrett’s young age is also a consideration in relation to his prospects for rehabilitation. As a relatively young offender, he may be more likely to be able to be rehabilitated than an older, hardened offender.

As Green C.J. observed at paragraph 107 of Hutchings , an offender’s age is a factor in a totality analysis: “a substantial portion of [an offender’s] twenties [is] important to a young man who is still maturing and developing those things, like job prospects and relationships, that provide the base for a productive life”. Mr. Barrett was 22 when he engaged in this criminal conduct. He is still in his twenties. As such, his loss of opportunity for growth and maturity is of grave consequence to him, and to society.

I would not want to make his sentence so long as to preclude him from developing into a contributing member of the community with prospects for a happy and productive life. [ 57 ] On the other hand, as the trial judge noted, the seriousness of sexual assault on girls and boys, who are also immature, cannot be underestimated, for it is well established in law and social science that sexual assault can have profound and lasting effects on victims. So, the gravity of the sexual offences is high, and Mr. Barrett is responsible for committing them.

As well, regard must be had to the fact that offences are not “cheaper by the dozen”. Mr. Barrett has committed six distinct, serious sexual assaults, and that fact must be recognized in his sentencing. [ 58 ] Taking these factors into consideration, I arrive at Mr. Barrett’s sentencing in the following manner: For the assault on B.S. - 3 years 6 months For the related breach of probation - 1 month concurrent (changed from consecutive to concurrent for

totality) For the assault on H.P. - 1 year (changed from 3 years for totality) For the assault on A.H. - 6 months (reduced from 1 year for totality) For the related breach of probation - 1 month concurrent (changed from consecutive for totality) This five-year sentence does not fall below the length of the normal level of sentence for sexual assault with intercourse. It recognizes the gravity and the offences before the court, and pays due regard to Mr. Barrett’s prospects for rehabilitation including his age and all of the time he will be incarcerated.

COMMENT [ 59 ] I observe that the Crown brought this appeal on for hearing separately from the appeal of Mr. Barrett’s sentence for the 2010 offences. While I am reluctant to express disapproval on this approach without knowing the reason for it, it appears as though both matters could have been dealt with efficiently in one hearing, as was done in McCarthy , supra . DISPOSITION [ 60 ] In the result, I would grant leave to appeal, allow the appeal and vary Mr. Barrett’s sentence to a total of five years, to be served consecutively to any sentence Mr. Barrett is already serving. ____________________________ L.R.

Hoegg, J.A. I Concur: ___________________________ L. D. Barry J.A. I Concur: ____________________________ M. F. Harrington J.A.