R. v. Tuglavina, 2011 NLCA 13

Date: 20110127 Docket: 10/65 Citation: R. v. Tuglavina , 2011 NLCA 13 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : HER MAJESTY THE QUEEN APPELLANT AND : JONAS TUGLAVINA RESPONDENT Coram: Wells, Rowe and Harrington, JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Judicial Centre at Happy Valley-Goose Bay Appeal Heard: January 10, 2011 Judgment Rendered: January 27, 2011 Reasons for Judgment by Wells, J.A. Concurred in by Rowe and Harrington, JJ.A.

Counsel for the Appellant: Robin Fowler Counsel for the Respondent: Jason Edwards Wells, J.A.: [ 1 ] The Crown appeals the decision of a provincial court judge, suspending sentence and imposing probation for one year, following a guilty plea to a charge of sexual assault ( s. 271(1) (

a) of the Criminal Code ) involving sexual intercourse. The appeal raises several issues: the propriety of considering a range of sentences; parity for similar offences by similar offenders in similar circumstances; aboriginal status of the offender as a factor; and fitness of sentence in the “unique” circumstances of the offender. BACKGROUND [ 2 ] The incident occurred on May 30, 2008 and Mr. Tuglavina was charged on June 9, 2008. His first appearance in court was in September, 2008, and the following day he pleaded guilty.

There were delays which the Crown acknowledges was not in any manner attributable to delays on the part of Mr. Tuglavina. It appears that there were some efforts to have a full assessment of Mr. Tuglavina’s apparent intellectual limitations. After several adjournments to accommodate this intention the matter proceeded without it. The sentencing hearing took place on April 6, 2010. Thus, there was a period of nearly two years between charging and sentencing, during which Mr. Tuglavina was released on conditions. There is no indication he failed to honour any of the conditions. PRIOR PROCEEDINGS

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a) Agreed Facts [ 3 ] The transcript indicates that, at the outset of the sentencing hearing, Crown counsel read, and defence counsel accepted without comment, the following

summary of the facts: … The facts are that on Sunday afternoon the 1st of June 2008 the RCM Police in Hopedale in the Province of Newfoundland and Labrador attended the residence of T.K. on an unrelated matter, while at the residence T.K. informed the police that she was told by her son, H.O., that he had witnessed her being sexually assaulted by Jonas Tuglavina. T.K. attended the detachment provided a statement on her recollection of the details of the alleged assault which would have occurred on Friday night May 30th 2008.

In her statement T.K. said that she didn’t really recall any of the details of the incident and said that she only remembers that she was woken by J.K.. T.K. was unable to provide any details as if she had to redress herself after the alleged assault. She does recall being on the steps of the take out here in Hopedale and that her son, H.O., was there as well as Jonas Tuglavina. T.K. remembered leaving the area and she said that she continued to consume liquor for the rest of the evening. A statement was taken from J.K..

In the statement, J.K. said that he was walking by the steps of the take out with H.O. when he saw Jonas Tuglavina on the steps with T.O.. J.K. said that H.O. went over to check and this is when he saw that Hen-, he saw H.O. remove Jonas Tuglavina from on top of T.K.. J.K. said that he saw that Jonas had his pants down and that he advised he witnessed Jonas Tuglavina having sex with T.K.. also states that J.K. stated that he saw T.K. pull her pants back up. Moments after this Jonas ran off and they assisted T.K. in walking away from the area. A statement was taken from H.O. who is the son of T.K..

In his statement he informs the police that he and J.K. were walking around and they met up with some other individuals. They were told by the other individuals that H.O. or they told H.O. that there was someone over on the steps of the take out raping a lady. H.O. said that he went over and this is when he realized that Jonas Tuglavina was having sex with his mother. He was asked what they were doing and he said quote “Jonas was raping my mommy” end quote. H.O. said that he removed Jonas and fought with him, he then left the area and walked way with his mother and J.K..

H.O. described the incident, he said Jonas had his pants and shorts down and his mother’s pants were down and he was able to see her bare legs. T.K. was on her back and Jonas was on top of her. He said that his mother was passed out and she had to be woken up. H.O. said that they were the only two people on the steps at the time. On Sunday afternoon, June 1st 2008 Jonas Tuglavina was noted walking in the community. He was stopped and arrested for sexual assaulting T.K.. He was read his rights to counsel and police caution.

When asked if he understood he simply nodded yes and he was provided with the police caution as indicated. Jonas Tuglavina was asked why he done this to T.K. he simply said quote “I will tell her I’m sorry”. The police noted that Jonas Tuglavina is-, they consider him to be a mentally delayed adult. Mr. Tuglavina was returned to the Hopedale detachment and he was released on an undertaking before an officer in charge with a promise to appear. Those are the facts. (

b) Prior Record of Mr. Tuglavina [ 4 ] The Crown also submitted Mr. Tuglavina’s criminal record. It indicates three prior convictions. The most recent was a conviction for break and enter in September, 2007 in respect of which he was given a six month conditional sentence. There were two previous convictions, both on July 22, 2003, one for failure to comply with an undertaking and the other for break and enter. These resulted in a suspended sentence and probation for one year. The record indicates that Mr. Tuglavina has no conviction for violating any condition of either order. (

c) Pre-sentence Report [ 5 ] A pre-sentence report was also submitted. Significant excerpts include: When this writer interviewed the accused’s mother, Doris, she indicated to this writer that her son was “Delayed.” She further informed that his language skills are difficult to understand at times. Doris informed this writer that throughout her pregnancy with the accused, she consumed alcohol, however stated that her son has never been tested or diagnosed with FASD.

During this writers [sic] interview with the accused, his cognitive impairment was very noticeable and throughout this interview, many of the accused’s answers to his writers [sic] questions were inappropriate to the questions asked. The accused was unable to answer simple questions such as his age. … As mentioned previously, the accused’s mother informed this writer that her son was “Delayed” however, stated that he has never been diagnosed formally. The accused maintained that he is in good health and not subjected to any form of medication.

He reported that he has never had any suicidal history. … In describing his employment history, the accused stated that for the past two and a half years he has been employed ad DJ’s Gift Shop in Hopedale. He reported no other employment history. D.O. informed that the accused works every Sunday, Tuesday, Friday and Saturday. She informed that his employment hours varies each day stating that some days he works from 9:00 a.m. to 6:00 p.m. and other days from 4:00 p.m. to 10:00 p.m.

The accused stated to this writer, “I don’t want to lose my job.” Sam Aggek, Manager of the Amaguk Inn in Hopedale informed that he is responsible for the supervision of the accused who works at DJ’s Gift Shop which is also owned by his employer. He stated that the accused’s main job is stocking shelves. Mr. Aggek described the accused as being a “Very reliable friendly person … but a person who has challenges.” … Mr. Sam Aggek described the accused as “Helpful and friendly.” He stated that the accused don’t always have a good understanding of things but his intentions are always good and he means well. Mr.

Aggek stated that the accused is a person who is easily influenced by others. …

In relation to the present matter before this court, the accused stated; “I’m sorry for what happened … I told my mommy I was sorry.” The accused indicated to this writer that he is not aware that his actions were wrong. He was unable to comment any further on his actions, however asked this writer if he would be able to do weekends. [ 6 ] The author of the pre-sentence report summarized as follows: The accused was cooperative throughout the preparation of this report.

The disposition of both Probation and Conditional Sentence orders was explained to the accused who informed that he understood and would comply with such orders. The accused was previously subjected to both supervised probation and Conditional sentence orders in the past and as indicated by Provincial Court records, he has not been convicted of violating these orders. Adult Correction case management records indicate that throughout supervision, the accused was cooperative with this writer and conditions he was subjected to.

On these grounds, it would be the opinion of this writer that the accused is a suitable candidate for Probation or any other form of community supervision. Community service is not recommended. It is the policy of this agency that individuals who have been convicted of either past or current sex offences that they be excluded from participating in the Community Service Placement program. (

d) Submissions of Counsel at the Sentencing Hearing (

i) For the Crown [ 7 ] In its argument, the Crown emphasized that: … it’s a full intercourse sexual assault, that occurs with a complainant who is passed out and occurs in public in the community, you know, people can see this from the road side, so these are all significantly aggravating factors suggest… The Crown also acknowledged mitigating circumstances, including: … it would have been the day after his first appearance that he entered a guilty plea, so he entered -, he did enter a relatively early guilty plea although it has taken, unfortunately, over a year and a half to sentence him, so it does appear that he has, you know, taken responsibility for this particular matter and he didn’t give any grief to the police when they were dealing with him… [ 8 ] After reviewing relevant authorities, counsel summarized the Crown’s position as follows: … a starting point here would be around three years but given Mr.

Tuglavina’s, you know, his limited cognitive ability and what not a reduction in that I think would probably be appropriate, he doesn’t have a significant record, he entered a guilty plea first available opportunity but the public abhors at this if we want to talk about the Atkins factors is significant. These all lead to what the crown suggests would be an appropriate sentence here would be two years less a day… (ii) For Mr. Tuglavina [ 9 ] Defence counsel acknowledged, as an aggravating factor, that the sexual assault involved intercourse and was witnessed by a child of the complainant.

He noted however that both the complainant and Mr. Tuglavina were extremely intoxicated when this occurred. In mitigation, he emphasized that Mr. Tuglavina: had pleaded guilty; had been living on conditions for nearly two years and followed those conditions; did have significant cognitive impairment; showed remorse for the offence and has said that he is sorry for what happened to the complainant.

Counsel argued that the authorities cited by Crown counsel were distinguishable and suggested a sentence of “perhaps one year in custody followed by a lengthy three year probationary period which would ensure the safety of the public and ensure that he was following strict conditions”. (

e) Additional Submission [ 10 ] The sentencing judge reserved his decision and two days later the Court re-convened for him to deliver it. However, before he did so, Crown counsel asked that a Mr. Pottle, Mr. Tuglavina’s employer, be given an opportunity to be heard. The sentencing judge agreed. The salient points of Mr.

Pottle’s evidence can be listed as follows: ● Jonas is one of the best employees I got … ● … he’s not mentally disturbed, he’s slow. ● He made a mistake, maybe they both did on that day or that night whatever it happened but Jonas does not deserve to go to jail, you know, he’s a hard working man and if you tell Jonas to do something he’ll do it. ● … Jonas does not understand a lot of things but he understands right and wrong and he made a mistake and let’s leave it at that … When asked by the court, neither Crown counsel nor defence counsel had any questions for Mr. Pottle.

Neither sought to make any further submissions as a result of Mr. Pottle’s comments. (

f) Decision of the Trial Judge [ 11 ] Notwithstanding the submissions of both Crown and defence counsel, that a period of imprisonment (Crown two years and defence one year) plus two or more years probation was appropriate, the sentencing judge, immediately after hearing Mr. Pottle, stated: … I am going to tell you that my decision in this case is that I’m not going to send Jonas Tuglavina to jail nor am I going to put him under house arrest, nor am I going to have a weekend sentence and I’m going to tell you my reasons but there will be a long period, - reasonable period of probation… [ 12 ] The sentencing judge then identified, as aggravating factors:

● this was a sexual assault involving sexual intercourse; ● it took place in a very public place; ● one of the witnesses was the son of the complainant; and ● the complainant was passed out because of intoxication. [13] Stating that he was guided by the Supreme Court of Canada to find a sentence that “fits the offender, that fits the offence andfits the community”, he identified the factors on which he based his decision. Those factors included: ● [Mr.

Tuglavina] pled guilty at the first opportunity; ● The procedure, what happened from September [2008] until now [April 2010] … we end up having … a facts and sentencinghearing about a year and a half after Jonas pled guilty; ● Jonas had been on conditions all that time and actually more, it goes back to June when he was out on the undertaking before thepeace officer that’s almost two years ago; ● He said something like I will tell her I am sorry; and ● The pre-sentence report is a startling report in my view and this sets up a situation that is extraordinary and out of the ordinary[sic] in terms of Jonas’s slowness or his mental ability”. (Emphasis added.) [14] The sentencing judge then identified the inferences he drew from the pre-sentence report that caused him to express theconclusion that it was startling and extraordinary.

Those inferences include: ● … Jonas barely meets the minimum standard for fitness and he barely meets the minimum standard for being criminallyresponsible. ● … How uncomfortable Mr. Lyall [author of the pre-sentence report] was in conducting the interview because he was concernedabout the ability of Mr. Tuglavina at understanding. ● … The alcohol abuse and violence in his home in the early years… ● … [Mr.

Tuglavina’s mother] admitted drinking during the pregnancy… ● … His lack of ability to understand was very noticeable and that his answers to simple questions were off -, were almostinappropriate and one quote was “the accused was unable to answer simple questions such as his age”… ● … advanced to Grade 9 but … he was advanced with the other students of his own age without any real regard to his ability. ● Mr. Lyall asked what was Jonas’ income and he didn’t know. He said “My mommy knows”… ● … Mr.

Lyall quotes he says “I’m sorry for what happened, I told my mommy I was sorry”… ● [His] job strikes me from the pre-sentence report and certainly this is what Mr. Lyall is saying was the most important thing in hislife next to his family… ● … A simple statement he made in the pre-sentence report. I don’t want to lose my job. [15] With respect to Mr. Tuglavina’s criminal record, the sentencing judge observed that “another feature in this case is the veryminor criminal record that Jonas Tuglavina has. He has virtually no criminal record…”. [16] The sentencing judge considered the authorities cited by the Crown.

With respect to R. v. Rabesca, 2000 NWTSC 4, hecommented that it involved “someone who is like Jonas, who’s committed a serious sexual assault…”. However, he concluded that thetwo years less one day conditional sentence imposed “conditions that are usually found in a probation order”, apparently on the basis that“there was no standard clause of house arrest”. He expressed the view that “the judge dressed it up as house arrest but it was reallyprobation”. [17] With respect to R. v.

Zarpa, 2009 NLTD 175, a sexual assault case involving intercourse in which the offender was sentencedto 3 ½ years, the sentencing judge distinguished it on the basis that it involved a person of normal intelligence who also had a muchmore serious criminal record. [18] The sentencing judge also mentioned application of the principles, respecting treatment of aboriginal offenders, expressed in R.v. Gladue, (SCC), [1999] 1 S.C.R. 688 and R. v. Wells, 2000 SCC 10 , [2000] 1 S.C.R. 207.

However, hisassessment was limited and he commented only that these cases talk about sentencing principles in general and sentencing principles inaboriginal cases. He also expressed the view that the Wells case, in particular, expressed “significant criticism of the idea of settingminimum sentences and ranges of sentences…”. [19] Having expressed those considerations, and no others, he stated “I know the Crown’s position was I think two to three years injail and the defence is suggesting a year in jail and I can’t go along with either recommendation…”.

He effectively suspendedsentencing, without stating specifically that was what he was doing, and imposed a probation order for twelve months. The sentencing

judge also ordered the taking of a DNA sample and imposed an order that Mr. Tuglavina comply with the Sex Offender InformationRegistration Act, 2004 c. 10 (SOIRA) for a period of ten years. APPEAL [20] The Crown filed a notice seeking leave to appeal the sentence and indicating that, if leave is granted, the grounds wouldinclude that: (

i) the learned trial judge erred in law by imposing a sentence that was demonstrably unfit in all of the circumstances; and (ii) the learned trial judge erred in law by imposing a 10 year SOIRA order when a 20 year order is mandatory pursuant to s.490.013(2)(

b) of the Criminal Code of Canada. [21] In its factum, the Crown adds, as issues, whether the sentencing judge erred in equating a conditional sentence with a probationorder, and erred in concluding that sentencing ranges are no longer relevant. Counsel for Mr. Tuglavina concedes that the judge erred byimposing a ten year SOIRA registration, instead of twenty as the Code requires. It is not, therefore, necessary to further address thismatter. ISSUES [22] The appeal respecting the SOIRA order having been conceded the issues to be considered, as identified by the Crown andaddressed by both counsel, are: (

i) that the learned trial judge erred in law in his

interpretation of R. v. Rabesca, 1999 CarswellNWT 123, and its application to aconditional sentence; (ii) that the learned trial judge erred in law by stating that sentencing ranges are no longer relevant; and (iii) that the learned trial judge erred in law by sentencing the respondent to a sentence that was demonstrably unfit. To those three I would add: (iv) if the sentence imposed is unfit, what is a fit sentence?

ANALYSIS Issue 1: Whether the conditional sentence imposed in Rabesca equates to a probation order. [23] The trial judge in Rabesca relied on the decision in Gladue, and noted the comment of Cory and Iacobucci JJ., writing for theCourt, that “the availability of the conditional sentence of imprisonment, in particular, alters the sentencing landscape in a manner whichgives an entirely new meaning to the principle that imprisonment should be resorted to only where no other sentencing option isreasonable in the circumstances” (paragraph 40).

He then set out in detail his consideration of all of the circumstances and theapplication of the principles of sentencing. In the end he concluded that regular jail was not an appropriate place for the offender. Employing s. 742.1 of the Criminal Code, he imposed a sentence of imprisonment for two years less one day to be served on conditionsin the community. One of those conditions was that the offender “was not to be away from [his] residence between midnight and 7 a.m.without the permission of [his] supervisor”.

It should be noted, in passing, that the Rabesca case arose and was decided prior to theCriminal Code amendment that precluded the application of s. 742.1 to an offence under s. 271. [24] In his consideration of Rabesca, the sentencing judge first noted that “the sentence was a jail sentence but it was a house arrestsentence”, and then made additional comments including: It uses [the] language of house arrest but the conditions that the court set in that decision were really the conditions that you normallywould find in a probation order. … When you are setting a house arrest sentence you had to satisfy yourself that probation is not appropriate… that’s one of the features thejudge didn’t really address… … There was no standard clause of house arrest.

What there was, was effectively a curfew that the person had to remain inside his housefrom … eleven o’clock in the evening until 7 o’clock in the morning. That’s a curfew that’s not house arrest and so what the judgedressed up as house arrest was really probation. [25] The Crown submits that these conclusions are erroneous and argues that it was on the basis of these erroneous conclusions thatthe sentencing judge improperly suspended sentence and imposed a probation order. [26] Counsel for Mr.

Tuglavina argues that, in making the comparison he made, the sentencing judge was simply commenting onthe terms of the order, but was not equating a jail term to be served in the community with a probation order. [27] As the Crown argues, there is a distinction between imposing a conditional sentence pursuant to

section 742.1, and suspendingsentence and imposing a probation order pursuant to s. 731. In R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, Lamer C.J.C.,writing for the Court, at paragraph 23 wrote:

There has been some confusion among members of the judiciary and the public alike about the difference between a conditional sentenceand a suspended sentence with probation. This confusion is understandable, as the statutory provisions regarding conditions to beattached to conditional sentences (s. 742.3) and probation orders (s. 732.1) are very similar. Notwithstanding these similarities, there isan important distinction between the two.

While a suspended sentence with probation is primarily a rehabilitative sentencing tool, theevidence suggests that Parliament intended a conditional sentence to address both punitive and rehabilitative objectives. [28] At paragraph 36 of Proulx, in describing the kind of conditions that conditional sentences ought to contain, Chief JusticeLamer stated that “conditions such as house arrest or strict curfews should be the norm, not the exception”. The sentencing judge erredin concluding that the liberty restriction in a conditional sentence could not be a strict curfew but had to be house arrest.

Clearly, the factthat the condition in Rabesca contains a curfew instead of specific house arrest does not justify a conclusion that the sentence is theequivalent of suspending sentence and imposing a probation order. [29] As well, I am not persuaded that the sentencing judge was correct in concluding that “when you are setting a house arrestsentence you had to satisfy yourself that probation is not appropriate…”.

While conditional sentencing is not at issue in this case, Iwould note that probation is an additional order that may be made where the offender is sentenced to a term of imprisonment for lessthan two years, whether it is to be served in a penal institution or conditionally in the community. It may also be ordered if the courtdecides that the circumstances warrant suspending sentencing and imposing a probation order instead.

Issue 2: Whether sentencing ranges are relevant [30] Courts of appeal have employed comparison of the sentence appealed with a range derived from sentences for such an offenceimposed by courts across the country. It is employed as a tool in considering whether the sentence appealed conforms to the requirementof s. 718.2(

b) of the Criminal Code. That provision of the Code requires that: 718.2 A court that imposes a sentence shall also take into consideration the following principles: … (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; … [31] The acceptability of considering ranges of sentences, soundly derived from previous similar cases, has been recognized by theSupreme Court of Canada (see R. v. Stone, (SCC), [1999] 2 S.C.R. 290 at paragraph 244). Use of ranges of sentencefor that purpose has also been accepted by this Court (see R. Hunter (P.G.) (1994), (NL CA), 119 Nfld.&P.E.I.R.298 at paragraph 19; R. v. Jacobish (1997), (NL CA), 155 Nfld.&.P.E.I.R. 197 at paragraph 29; R. v.

R.G., 2003NLCA 73, 232 Nfld.&P.E.I.R. 273 at paragraph 3; and R. v. Helary, 2007 NLCA 47, 268 Nfld.&P.E.I.R. 267). In Helary, CameronJ.A., writing for the Court, at paragraph 7, wrote: The Supreme Court of Canada returned to the question of ranges of sentence in R. v. Stone (1999), (SCC), 173 D.L.R.(4th) 66, where Bastarache J. said the following at paras. 244-45: One function of appellate courts is to minimize disparity of sentences in cases involving similar offences and similar offenders; see M.(C.A.), [ (SCC), [1996] 1 S.C.R. 500] at para. 92, and McDonnell, supra, at para. 16, per Sopinka J.

In carrying out thisfunction, appellate courts may fix ranges for particular categories of offences as guidelines for lower courts. However, in attempting toachieve uniformity, appellate courts must not interfere with sentencing judges' duty to consider all relevant circumstances in sentencing;see McDonnell, supra, at para. 43, per Sopinka J.; and at para. 66, per McLachlin J. In Archibald, [(1992), (BC CA),15 B.C.A.C. 301], McEachern C.J. clearly stated, at p. 304, that it would be wrong to assume that there is any "precise range that willapply to every case".

In my opinion, this qualification reveals that the Court of Appeal in Archibald correctly intended for trial judges tobalance uniformity in sentencing with their duty to consider the circumstances of the particular case. This Court’s decision in McDonnell, supra, highlights the need for clarity on the part of appellate courts in setting ranges for offences. More specifically, McLachlin J., in dissent, stated that appellate courts must clearly specify what categories of offences are meant to becovered by a starting point (para. 104).

Although the majority, per Sopinka J., did not expressly identify this need for clarity in theclassification of offences, it did agree that appellate courts may set starting points as guides for lower courts. In my opinion, a clarityrequirement must be read into this appellate court authority because such guides would not be useful without a clear description of thecategory created and the logic behind the starting point appropriate to it. The same need for clear direction applies to ranges set byappellate courts.

The excerpts quoted above are concerned with the setting, by appellate courts, of ranges of sentences for categories of offences. It isclear that the setting of ranges is permissible provided that an appellate court must not interfere with a sentencing judge’s duty toconsider all relevant circumstances. As paragraph 244 of Stone emphasizes, the purpose of fixing ranges for categories of offences is tominimize disparity of sentences. [32] The Supreme Court of Canada re-stated its approval of the use of ranges of sentence in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206.

LeBel J. writing for the full Court, commented on the extent to which sentencing ranges, identified byappellate courts limit somewhat the broad discretion granted to sentencing judges. At paragraph 44 he wrote: The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in somecircumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions inaccordance with the principle of parity enshrined in the Code.

But it must be remembered that, while courts should pay heed to theseranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordancewith the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is notnecessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in

which the offence occurred. [33] Clearly, the sentencing judge was in error, in his response to Crown counsel’s suggestion that the range of sentencing for“sexual assaults involving intercourse … normally starts around three years…”, when he suggested that “the discussion of ranges [has]been overruled by the Supreme Court of Canada many times”. That error was repeated when he delivered his decision and, in referringto Gladue and Wells, expressed the view that “the Supreme Court of Canada is stating in those cases significant criticism of the idea ofsetting minimum sentences and range of sentences…”.

I am unable to find any such criticism in either of those decisions. The onlycomment that seems to bear on the issue is that contained at paragraph 47 of Wells where Iacobucci J. wrote: In this case, the trial judge did refer to “guideline cases binding on this Court”, an apparent reference to case law which outlined “startingpoint” guidelines for establishing sentences for serious sexual assaults. [34] Nothing in that comment supports the conclusion expressed by the sentencing judge that the Supreme Court of Canada hasbeen either critical of or has rejected consideration of sentencing ranges.

On the contrary, they have clearly approved of the use of rangeof sentences to, as LeBel J. wrote in Nasogaluak, “encourage greater consistency between sentencing decisions in accordance with theprinciple of parity enshrined in the Code”. He did, however, indicate that ranges are “guidelines” not hard and fast rules and can bedeparted from if the circumstances of a particular case so require. It is difficult to imagine how sentencing judges could meet therequirements of s. 718.2(

b) of the Code without consideration of a range of sentences derived from a review of sentences imposed “onsimilar offenders for similar offences committed in similar circumstances”. The sentencing judge erred in failing to give anyconsideration to the representations of Crown counsel respecting the appropriate range of sentences. Issue 3: Was the sentence imposed demonstrably unfit? (

a) Standard of Review [35] The obligation of appellate courts to show deference to the sentencing decisions of trial judges is well understood, is not indispute, and has been expressed innumerable times. In this case however, it may be helpful to re-state the approach this Court takes. That approach is to follow the guidance expressed by Chief Justice Lamer in R. v. M.(C.A.), (SCC), [1996] 1 S.C.R.500. He wrote: 89 In Shropshire, supra, this Court recently articulated the appropriate standard of review that a court of appeal should adopt inreviewing the fitness of sentence under s. 687(1).

In the context of reviewing the fitness of an order of parole ineligibility, Iacobucci J.described the standard of review as follows, at para. 46: An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to havebeen made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seenand heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence shouldonly be made if the court of appeal is convinced it is not fit.

That is to say, that it has found the sentence to be clearly unreasonable. [Emphasis added in R. v. M.(C.A.).] As my learned colleague noted, this standard of review traces part of its lineage to the jurisprudence of the British Columbia Court ofAppeal. As Bull J.A. described the nature of a trial judge's sentencing discretion in R. v.

Gourgon (1981), (BC CA), 58C.C.C. (2d) 193, at p. 197: . . . the matter is clearly one of discretion and unless patently wrong, or wrong principles applied, or correct principles appliederroneously, or proper factors ignored or overstressed, an appellate Court should be careful not to interfere with the exercise of thatdiscretion of a trial Judge. 90 Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, acourt of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

Parliament explicitlyvested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code. As s.717(1) reads: 717.

(1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposedis, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts the person who commits the offence. [Emphasis added in R. v. M.(C.A.).] 91 This deferential standard of review has profound functional justifications.

As Iacobucci J. explained in Shropshire, at para.46, where the sentencing judge has had the benefit of presiding over the trial of the offender, he or she will have had the comparativeadvantage of having seen and heard the witnesses to the crime. But in the absence of a full trial, where the offender has pleaded guilty toan offence and the sentencing judge has only enjoyed the benefit of oral and written sentencing submissions (as was the case in bothShropshire and this instance), the argument in favour of deference remains compelling.

A sentencing judge still enjoys a positionof advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. Asentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of ourcriminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which hassuffered the consequences of the offender's crime.

As such, the sentencing judge will have a strong sense of the particular blend ofsentencing goals that will be "just and appropriate" for the protection of that community. The determination of a just and appropriatesentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of theoffender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in thecommunity.

The discretion of a sentencing judge should thus not be interfered with lightly. 92 Appellate courts, of course, serve an important function in reviewing and minimizing the disparity of sentences imposed bysentencing judges for similar offenders and similar offences committed throughout Canada. See, e.g., R. v. Knife (1982), (SK KB), 16 Sask. R. 40 (C.A.), at p. 43; R. v. Wood (1979), 21 Crim. L.Q. 423 (Ont. C.A.), at p. 424; R. v. Mellstrom (1975),

(AB CA), 22 C.C.C. (2d) 472 (Alta. C.A.), at p. 485; R. v. Morrissette (1970), (SK CA), 1 C.C.C.(2d) 307 (Sask. C.A.), at pp. 311-12; R. v. Baldhead, (SK CA), [1966] 4 C.C.C. 183 (Sask. C.A.), at p. 187. But inexercising this role, courts of appeal must still exercise a margin of deference before intervening in the specialized discretion thatParliament has explicitly vested in sentencing judges. It has been repeatedly stressed that there is no such thing as a uniform sentence fora particular crime. See Mellstrom, Morrissette and Baldhead.

Sentencing is an inherently individualized process, and the search for asingle appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. Aswell, sentences for a particular offence should be expected to vary to some degree across various communities and regions in thiscountry, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in theparticular community where the crime occurred.

For these reasons, consistent with the general standard of review we articulated inShropshire, I believe that a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed bythe trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similarcrimes. (

b) Sentencing Judge’s Decision [36] It is obvious from the sentencing judge’s comments that he focused almost exclusively on what he described as the “unique”circumstances of Mr. Tuglavina. Undoubtedly, that is very important, in the particular circumstances of this case. However, there arestatutory provisions that require consideration of all other relevant factors. These the sentencing judge considered, if at all, in only a verysuperficial manner.

He mentioned only what he considered to be the aggravating factors: the sexual assault involved intercourse; it tookplace in a very public place; one of the witnesses was the son of the complainant; and the complainant was passed out because ofintoxication. [37] All other comments of the sentencing judge related only to the circumstances of Mr. Tuglavina. There was no indication thatthe sentencing judge considered denunciation or specific and general deterrence. There was no consideration of the victim or hercircumstances.

There was no consideration of the sentences imposed on similar offenders for similar offences committed in similarcircumstances. The sentencing judge did mention the two cases referred to by Crown counsel for guidance in determining the sentence. However, in respect of one of them, he equated the conditional sentence there imposed to a probation order, and in respect of the other,he concluded it was distinguishable on the facts. [38] The sentencing judge drew an inference that Mr. Tuglavina “barely meets the minimum standard for being criminallyresponsible”. That inference cannot be supported on the record.

No psychiatric or other medical or expert evidence was offered. Therecord contains several references to Mr. Tuglavina being “slow” or “delayed” and having “cognitive impairment”. His employer said“he’s not mentally disturbed, he’s slow”. His cognitive impairment was noted by his mother and the author of the pre-sentence report,and commented on by both counsel. All concerned recognized some cognitive impairment or intellectual slowness, but I could findnothing in the record to support the sentencing judge’s statement that Mr. Tuglavina barely meets the minimum standard for criminalresponsibility.

The sentencing judge overemphasized the circumstances of the offender and failed to give any consideration to mostother relevant factors, including denunciation and deterrence, and the gravity of the offence and responsibility of the offender. [39] The sentence imposed bears no relationship to the sentence normally imposed for this offence on similar offenders in similarcircumstances. That range of sentence is not really in dispute here. In this province, it has long been established that the “normal range”is three to seven years. As Mifflin C.J.N. said in R. v.

Noseworthy (1982), 40 Nfld.&P.E.I.R. 193: … The normal sentencing range for rape in this province is from three to seven years and it is our feeling that in light of the ages of theseyoung men and their highly favourable antecedents, a sentence at the lowest end of that scale is warranted, i.e., a period of three years… … We would add only that, by referring to the lowest end of the sentencing scale for rape as being three years, we are speaking ingeneral terms only and do not infer by this that there could never be a factual situation that could possibly warrant a lesser sentence.Three to seven years is simply the normal range.

That range has continued to receive recognition in this Court. (See R. v. Hunter, supra, (1994), (NL CA), 119Nfld.&P.E.I.R. 298 and R. v. R.G., supra). [40] It should not be overlooked that, at the sentencing hearing, counsel for Mr. Tuglavina acknowledged that imprisonment for oneyear, with three years probation would be a sentence appropriate to the circumstances. The sentencing judge did not specifically dealwith the submissions of either counsel. He simply overemphasized what he saw as the unique circumstances of Mr. Tuglavina to theexclusion of virtually all other considerations.

He erred in doing so. [41] Consequent upon those errors, he suspended sentencing and ordered probation for one year. That result is demonstrably unfit. In the words of Chief Justice Lamer in R. v. M.(C.A.), it “is in substantial and marked departure from the sentences customarily imposedfor similar offenders committing similar crimes”. Thus, this Court must set that sentence aside and, itself, determine the sentence that, inthe circumstances, is fit.

Issue 4: What is a fit sentence? [42] While the sentencing judge erred in failing to consider other relevant factors, he quite correctly gave full consideration to thecircumstances of Mr. Tuglavina, although he erred in over-emphasizing them. It is difficult, however, to describe those circumstances asunique, since similar circumstances appear in a number of other cases. In fact, the sentencing judge himself recognized this when hesaid “the case of Jonas Tuglavina is unique and yet here we effectively have two similar cases coming up in the same circuit, in the samecommunity…”.

Clearly, the mitigating circumstances described by the sentencing judge warranted imposing a sentence at the lower endor even below the lower end of the normal sentencing range. Those circumstances did not, however, warrant suspending sentencing. [43] The sentencing judge did not elaborate on its impact, but he quite correctly took into account the fact that Mr. Tuglavina isaboriginal. In Gladue, supra, Cory and Iacobucci JJ. did a detailed assessment of the approach sentencing judges should take inapplying the provisions of s. 718.2(

e) of the Criminal Code which requires that “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 ” [emphasis added]. They also described, in general terms, the import of

section 718.2(

e) in the following manner: 92

Section 718.2(

e) requires the sentencing judge to explore reasonable alternatives to incarceration in the case of all aboriginal offenders. Obviously, if an aboriginal community has a program or tradition of alternative sanctions, and support and supervision are available to the offender, it may be easier to find and impose an alternative sentence. However, even if community support is not available, every effort should be made in appropriate circumstances to find a sensitive and helpful alternative.

For all purposes, the term “community” must be defined broadly so as to include any network of support and interaction that might be available in an urban centre. At the same time, the residence of the aboriginal offender in an urban centre that lacks any network of support does not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment. (Emphasis added.) [ 44 ] As well as describing the general import of the section, Cory and Iacobucci JJ. enumerated thirteen principles, derived from their detailed discussion. It is not necessary to discuss all of them here.

Several, however, are particularly relevant and should be expressly considered. They are:

Section 718.2(

e) must be read and considered in the context of the rest of the factors referred to in that

section and in light of all of

Part XXIII. All principles and factors set out in

Part XXIII must be taken into consideration in determining the fit sentence. Attention should be paid to the fact that

Part XXIII, through ss. 718, 718.2 ( e ), and 742.1, among other provisions, has placed a new emphasis upon decreasing the use of incarceration. … 8. If there is no alternative to incarceration the length of the term must be carefully considered.

Section 718.2(

e) is not to be taken as a means of automatically reducing the prison sentence of aboriginal offenders; nor should it be assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed. 10. The absence of alternative sentencing programs specific to an aboriginal community does not eliminate the ability of a sentencing judge to impose a sanction that takes into account principles of restorative justice and the needs of the parties involved. … 12.

Based on the foregoing, the jail term for an aboriginal offender may in some circumstances be less than the term imposed on a non-aboriginal offender for the same offence. 13. It is unreasonable to assume that aboriginal peoples do not believe in the importance of traditional sentencing goals such as deterrence, denunciation, and separation, where warranted.

In this context, generally, the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non-aboriginal. [ 45 ] In the application of these principles to the sentencing of Mr. Tuglavina, it must be borne in mind that the sexual assault here was as much an abhorrent offence to the personal dignity of the complainant as if it had been an assault on any other woman in the country.

Notwithstanding that she did not provide a victim impact statement, it would be unreasonable, as the above quoted principle 13 indicates, to assume that the aboriginal complainant and the aboriginal community in which the offence occurred “do not believe in the importance of traditional sentencing goals such as deterrence, denunciation, and separation, where warranted.” This was a serious crime involving debasing physical action against an unconscious woman, and, consistent with the view expressed in Gladue , it would be difficult to justify a very substantially lesser punishment than would be imposed for the same offence on a similar offender who was not aboriginal. [ 46 ] Considering all of the foregoing and, in particular: the importance of denunciation and deterrence; the gravity of the offence and the responsibility of Mr.

Tuglavina; the other sentencing principles identified in

section 718.2 ; the indignity that the complainant must have felt upon subsequently discovering what had happened to her; the fact that Mr. Tuglavina has twice been convicted of the serious offence of breaking and entering but has no convictions for offences similar to the offence now before us; and, paying particular attention to all of the mitigating factors and personal circumstances of Mr. Tuglavina identified by the sentencing judge, a term of imprisonment clearly ought to have been imposed, together with an appropriate probation order.

The record indicates that both counsel were in agreement that, in the special circumstances of Mr. Tuglavina, the sentence ought to be below the lower end of the normal range for such an offence. That said, a term of two years imprisonment (as recommended by the Crown) would have been extremely lenient on the facts of this case. [ 47 ] The failure of the sentencing judge to impose a term of imprisonment at the time, and the fact that nine of the twelve months probation ordered by the sentencing judge has now expired with no breach by Mr.

Tuglavina of any of its conditions, coupled with the fact that the original sentencing was delayed (for reasons relating to the Crown) by more than eighteen months after Mr. Tuglavina entered a guilty plea, give rise to a further concern: in all of the circumstances, is it appropriate to now order that Mr. Tuglavina be imprisoned for the period that ought originally to have been imposed by the sentencing judge? [ 48 ] The circumstances in this case parallel those in R. v. Shaw [1977] O.J. No. 147 (Ont. C.A.) . In that case, two young men (first offenders) were convicted of trafficking in LSD. They pleaded guilty.

The trial judge suspended sentence and imposed strict probation conditions. The Crown appealed the sentence. The Ontario Court of Appeal held that a period of imprisonment should have been imposed. The offenders, however, had adhered to the terms of their probation and were seen as well on the road to rehabilitation. The question arose, should they be sent to prison? Dubin J.A., for the court, wrote:

[14] I do not think that the interests of society would be served by removing both these young men out of the positive environment inwhich they now are, and placing them in custody. (Regina v. Goodale, (ON CA), 21 C.C.C. (2d) 471 at p. 474) [15] Although as I have observed this was a case in which an appropriate sentence should have included the imposition of a custodialterm, in the circumstances which now confront this Court general principles are not paramount. [16] To impose a custodial term now would be a sentence far more crushing than it would have been if it had been imposed at the timeof the trial.

The destruction of the positive rehabilitation program presently in progress by the imposition now of a custodial term isapparent. In the end result I am satisfied that the public interest is best served by permitting the sentences imposed upon both therespondents to stand. [49] R. v. Shaw, supra, was applied by this Court in R. v. Paradis (1991), (NL CA), 92 Nfld. & P.E.I.R. 271, asit has been on a number of occasions in other jurisdictions, for example in R. v. Butler, 2008 NSCA 102. (See also from thisjurisdiction, R. v. J.(J.), 2004 NLCA 81 at paragraphs 75-79 and R. v.

Oates (1992), (NL CA), 100 Nfld. & P.E.I.R.289 (Nfld.C.A.) at paragraphs 68-69.) [50] I would say the same in this case as Dubin, J.A. said in Shaw. I note, especially, Mr. Pottle’s testimony in April 2010 (theoffence having been committed in June 2008) that Mr. Tuglavina understands that what he did was wrong, that he is not drinking and thathe is a diligent worker. Nothing before us indicates any change in his pattern of behaviour. [51] I hasten to add that such a disposition is unusual and quite dependent on the facts of each case.

Ordinarily, an offender who hashis sentence increased will be sent (back) to prison to complete the term of incarceration. [52] In my view, taking all of the provisions of s. 718 to s. 718.2 and the principles identified in Gladue into account, as well as theparticular circumstances of this case which indicate that Mr. Tuglavina is on the road to rehabilitation, it would not be appropriate to nowimpose a term of imprisonment on Mr. Tuglavina. It is, however, appropriate to increase to three years the period of probation imposedby the sentencing judge.

While that is not the sentence that ought to have been imposed in the first instance, it should make somecontribution to expressing denunciation, and promoting at least specific deterrence, while recognizing that it cannot be said to besufficient to reflect the gravity of the offence and the responsibility of the offender. [53] In

summary, leave to appeal is granted, the appeal is allowed, the order of the sentencing judge is varied by increasing to threeyears, from the one year imposed by the sentencing judge, the period of probation. The terms and conditions will remain as ordered bythe sentencing judge. In addition, the SOIRA order is also varied, by increasing to twenty years from the ten years ordered by thesentencing judge, the period of registration under the Act. Wells, J.A. I concur: Rowe, J.A. I concur: Harrington, J.A.