R. v. Branton, 2013 NLCA 61

Date: 201310 22 Docket: 12/103 Citation: R. v. Branton , 2013 NLCA 61

Section 486.4 of the Criminal Code respecting the non-publication of the identity 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: JEREMY BRANTON RESPONDENT Coram: Rowe, Barry, and Hoegg JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador St. John’s Appeal Heard: June 14, 2013 Judgment Rendered: October 22, 2013 Reasons for Judgment by Hoegg J.A. Separate Concurring Reasons by Rowe J.A.

Separate Concurring Reasons by Barry J.A. Counsel for the Appellant: Iain R. W. Hollett Counsel for the Respondent: Kenneth Hollett

Hoegg J.: Introduction [ 1 ] On December 4, 2012, Jeremy Branton was sentenced to nine months incarceration for sexual assault plus one consecutive month for breaching his probation order. The Crown seeks leave to appeal his sentence, and if granted, appeals it on the basis that the sentencing judge committed errors in imposing it and that it is demonstrably unfit. Facts [ 2 ] Mr. Branton entered guilty pleas to the two offences on the basis of the following Agreed Statement of Facts: On July 26, 2012, at 8:45 pm police responded to a call of a residential break and enter in progress at [address] in St. John’s.

On arrival police noted a large crowd gathered in the area of [address]. Police went inside and located a male, identified as Jeremy Branton, inside the premises. Mr. Branton advised that he was staying at the residence with his boyfriend. It was his boyfriend’s mother’s house. Mr. Branton reported that he came home and someone kicked the door in. He hid in a bedroom until they left and then closed the front door.

Outside the residence police spoke to several parties including a 13 year old boy, [A. (pseudonym)], and his parents, … Police learned that [his parents] had gone to the residence to confront Jeremy Branton after their son, [A.], told them he had been sexually assaulted by Jeremy Branton. Police were advised that the assault included fondling of the genitals, oral sex and anal intercourse. [A.] was accompanied by his parents to the Janeway Hospital to be examined. At 12:55 a.m. on July 27, 2012, Cst. Kelsey Aboud and Cst. Monica Murphy conducted an audio-video taped interview with [A.].

They learned that [A.] was born on [day] and is 13 years old. [A.] reported that he only knew Jeremy Branton for a few days. [A.] had been getting Jeremy to buy him cigarettes the last few days. On July 26, 2012, Jeremy Branton bought [A.] cigarettes at White’s Store in Buckmaster’s Circle. Then they both went [address] where Jeremy was staying at the time. [A.] told police that they were sitting on the couch when Jeremy asked [A.] if he wanted to touch him and [A.] said no.

Then [A.]’s pants were down and he was exposed and Jeremy started to give [A.] a “hand job” (slang for masturbation). [A.] said that he pulled away. Then Jeremy sat on [A.] and put [A.]’s “bird” up his bum. [A.] tried to get Jeremy off of him but he couldn’t. [A.] told him to stop and Jeremy got up. [A.] reported that when Jeremy got up he “jizzed” (slang for ejaculated) all over the mat in the living room by the coffee table. After that [A.] stated that he left the residence and went to the park with his friends.

A short time later he went home and told his mother what had occurred. [A.]’s interview ended at 1:25 am on July 27, 2012. At 1:45 am on July 27, 2012, Cst. Aboud and Cst. Murphy conducted a cautioned audio-video taped interview with the accused, Jeremy Branton. Jeremy was born on July 21, 1992, making him 20 years old at the time of the offence. Jeremy confirmed that [A.] had been asking him to buy him cigarettes for a couple of days. On July 26, 2012, Jeremy bought [A.] cigarettes then they went back to the house where he was staying in Buckmaster Circle. Jeremy went upstairs and [A.] followed him.

They went into the living room and Jeremy went on the play station. Jeremy stated that he told [A.] he had a piercing on his penis called a “Jacob’s ladder” and he showed [A.] where it used to be. Jeremy then asked [A.] to show him his penis. Jeremy said he touched [A.]’s penis and “it just went from there”. [A.] put his penis away and Jeremy asked him to see it again and then asked [A.] if he had ever had oral sex. Jeremy said that he gave [A.] a “BJ” (slang for oral sex). He said he wouldn’t really call it a BJ but it started off like one.

Jeremy told police he then let [A.] try to “screw” him referring to anal intercourse. Jeremy said it was very awkward because [A.]’s penis was not fully erect. Jeremy told police he tried sitting on [A.]’s penis in an attempt at anal penetration. Jeremy also indicated that he ejaculated on the mat in the living room. Jeremy said that [A.] then asked him if he would still buy him cigarettes and [A.] also said, “We are never doing that again”. At the time Jeremy Branton was bound by a Probation Order dated May 17, 2012 with a condition to keep the peace and be of good behavior.

Leave to Appeal [ 3 ] The Crown’s appeal, brought pursuant to section 676(1) (

d) of the Criminal Code , requires leave from this Court. The test for leave, set out in R. v. Edmunds, 2012 NLCA 26 , 322 Nfld. & P.E.I.R. 337 at para. 4 , is “whether the appeal is frivolous in the sense of having no arguable basis or sufficient merit.” [ 4 ] Mr. Branton does not dispute the issue of leave. As will be seen later in this judgment, the Crown’s appeal has an arguable basis and sufficient merit to warrant the granting of leave. Accordingly, leave is granted.

The Appeal [ 5 ] The Crown appeals on the grounds that the sentencing judge: 1. misapprehended the facts and the submissions made by counsel; 2. erred in law by misinterpreting the Court of Appeal’s decision in R. v. Squires; 3. erred in principle by

a) failing to give primary consideration to the principles of denunciation and deterrence as required by s. 718.01 of the Criminal Code ; and

b) by overemphasizing the accused’s mental health issues without considering how those issues related to the commission of the offences; and 4. imposed a demonstrably unfit sentence. Misapprehension of the Facts and Counsel’s Submissions [ 6 ] The Crown argues that the sentencing judge’s description of the sexual assault shows that she did not appreciate its full extent,

which encompassed “masturbation, oral sex and anal sex”. The Crown also contends that the judge considered it relevant that A.penetrated Mr. Branton as opposed to Mr. Branton having penetrated A., and argues that an assault is no less serious when a victimpenetrates the offender than it is when the victim is penetrated by the offender. Such a distinction, the Crown maintains, would affordless protection to male victims of sexual assault than to female victims.

The Crown also contends that the judge misapprehended bothCrown and Defence counsels’ submissions with respect to the appropriate length of an incarcerating sentence for Mr. Branton. [7] The Agreed Statement of Facts contains two accounts of the sexual assault: Mr. Branton’s account of it and A.’s account of it. They differ. A.’s account did not reference oral sex, and he said that anal intercourse took place when Mr. Branton sat on him. Mr.Branton’s account referenced oral sex. He said that he gave A. a “B.J. (slang for oral sex)” although he “wouldn’t really call it a B.J. butit started off like one”. Mr.

Branton described the anal intercourse incident as “an awkward attempt”. [8] The judge’s description of the sexual assault in her sentencing decision shows that she accepted Mr. Branton’s description ofthe oral sex incident as “not really a ‘B.J.’”, as well as his version of the anal intercourse incident.

To the extent that the agreed factssupporting a charge are inconsistent, it was open to the judge to accept the version more favourable to the accused. [9] Accordingly, the judge’s description of the sexual assault, including her comments about the oral sex and anal intercourseaspects of it, is in accordance with the evidence that was open to her to accept, and cannot be said to be a misapprehension. [10] A.’s uncontradicted account of the anal intercourse incident is that Mr. Branton sat on him, and A. “couldn’t get him off” andtold him to stop. These and other agreed facts clearly show that Mr.

Branton was the aggressor. Nothing in the facts supportscharacterizing the anal intercourse incident as less serious than it would be if Mr. Branton had penetrated or awkwardly attempted topenetrate A. For the purposes of this appeal, there is no distinction between this case and those cases where the victim is penetrated. While the judge remarked on the distinction at paragraph 66 of her decision, she does not express it as a factor influencing her view onsentence stated in paragraph 67. [11] It appears from the record that the judge misstated both counsels’ submissions in her written decision.

She said that Crowncounsel’s submission on range of sentence was “three years” when Crown counsel had submitted the appropriate range to be “three-to-five years” and she said Defence counsel requested a sentence of “less than two years” when he had sought a sentence “in the range oftwo years so that a period of probation could also be imposed”. [12] A judge’s misstatement of a party’s position may reflect a misunderstanding of that party’s position, and such amisunderstanding may directly affect an outcome.

Accordingly, it is preferable that judges, when giving their decisions, accurately statethe positions of parties which have appeared before them. In this case, however, the judge’s inaccurate statement of Crown counsel’sposition and her characterization of defence counsel’s position were not material to her decision. The statements were neither “an error inprinciple, the failure to consider, or the over-emphasis of a relevant factor” that would justify interference by this Court (R. v.Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 46). Misinterpretation of R. v.

Squires [13] The Crown argues that the judge misinterpreted this Court’s decision in R. v. Squires, 2012 NLCA 20, 330 Nfld. & P.E.I.R. 39as shown by the following statement at paragraph 41 of her decision: …. our Court of Appeal in R. v. Squires, 2012 NLCA 20 , [2012] N.J. No. 101, appears to have recently reduced the bottomend of that range from three years to 18 months in certain instances… and by her quotations in support of that statement from paragraphs 76 and 77 of Welsh J.A.’s decision in Squires. [14] This Court’s judgment in Squires reduced Mr.

Squires’ sentence from four to three years for several assaults, of which two weresexual assaults involving intercourse which had occurred in the context of an ongoing intimate relationship. Justice Welsh’s decisionsupports lowering the range of sentence for sexual assault involving intercourse when the assault occurs in the context of an ongoingsexual relationship. Rowe J.A. agreed with Justice Welsh that Mr.

Squires’ sentence should be reduced to three years, but he wrote ashort separate decision stating that he did not agree with paragraphs 76 to 78 of Justice Welsh’s analysis which favoured reducing therange of sentence for sexual assault involving intercourse in the context of an ongoing sexual relationship. I wrote a dissent in which Idisagreed with lowering Mr. Squires’ sentence and disagreed with paragraphs 76 to 78 of Justice Welsh’s decision.

Justice Welsh’sdecision was only one of three respecting this issue, and it should be read as relating to cases where the assault occurs in the context ofan ongoing sexual relationship. As such, it is not correct to say that the Court of Appeal “appears to have recently reduced the bottomend of the range from three years to 18 months in certain instances” on the basis of Squires. Consideration of

section 718.01 of the Criminal Code [15] The Crown argues that in sentencing Mr. Branton the sentencing judge failed to give primary consideration to the objectives ofdenunciation and deterrence as required by

section 718.01.

Section 718.01 states: When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primaryconsideration to the objectives of denunciation and deterrence of such conduct. [16] In order to engage the application of

section 718.01, it must be established that the offence involved abuse of a person and thatthat person was under the age of 18. There is no denying that sexual assault is a form of abuse and that A., being 13 years old when hewas sexually assaulted by Mr. Branton, was under 18 years of age when the offence occurred. Accordingly, the criteria for applicationof the

section are met and the judge was obliged to give primary consideration to the sentencing objectives of denunciation anddeterrence in sentencing Mr. Branton. [17] What does it mean “to give primary consideration” to these particular sentencing objectives, and how does a judge do it? R. v.Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 provides some guidance as to how the principles and objectives of the sentencing

framework set out in the Criminal Code operate. At paragraphs 39 to 46, LeBel J. explained that

section 718 directs judges to “considerthe fundamental purpose of sentencing as that of contributing … to ‘respect for the law and the maintenance of a just, peaceful and safesociety’” when they impose sentences, and that their sentences must be “‘just sanctions’ that reflect the usual array of sentencingobjectives, as set out [in

section 718]: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation,and … the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and thecommunity.” However, Justice LeBel made clear that, no matter what weight a judge may wish to accord to any of the

section 718objectives, the principle of proportionality is fundamental in any sentencing and must be respected. The proportionality principlerequires that every sentence must reflect “the gravity of the offence and the degree of responsibility of the offender”, but must not exceed“the degree of censure required to express society’s condemnation of the offence” or punish the offender more than is necessary. JusticeLeBel characterized the sentencing principles codified in

section 718.2, including the principles of parity and totality, as secondarysentencing principles. Of note is his statement that no one sentencing objective trumps another, although this statement was madewithout consideration of

section 718.01, which was not engaged in Nasogaluak. [18] It is worth restating that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offenceand the circumstances of the offender and that a sentencing judge has the discretion to decide on the particular blend of sentencing goalsand the weight to be given to relevant aggravating or mitigating factors to decide each particular case (R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 91 and Nasogaluak at para. 43).

However, this discretion is constrained by statute and fettered bybinding jurisprudence, as the Nasogaluak court recognized in deciding that a judge’s discretion does not extend so far as to override aclear statement of legislative intent (paragraph 45). The effect then of

section 718.01 is to direct a court to give primary consideration todenunciation and deterrence when weighing and balancing the objectives of sentencing. [19] By enacting

section 718.01, Parliament has recognized that offences involving the abuse of children and young persons call forspecial attention. Abuse which constitutes criminal conduct is wrong no matter what the age of the victim, but criminal abuse of personsunder 18 years of age is particularly serious because young persons are less able than mature adults to withstand assaults to their personsbecause of their physical, mental and emotional immaturity. They are also more likely to be more vulnerable to emotional scarring, asthey are still “finding themselves” in these formative years.

For this reason offenders who criminally abuse young people areparticularly deserving of society’s denunciation. They must be made to realize, or to be reminded, that what they have done is wrong. This denunciation also affords some reparation to young victims, who need reassurance that they are not to be blamed for what hashappened to them so that they can move on with their lives.

Offenders and like-minded others who abuse young people must also bedeterred from repeating or engaging in the criminal abuse of young persons by the knowledge that sentences involving such conduct aregoing to be treated seriously by the justice system. [20] This Court referred to

section 718.01 in R. v. W.E., 2010 NLCA 4, 293 Nfld. & P.E.I.R. 52 and R. v. R.J.H., 2012 NLCA 52,325 Nfld. & P.E.I.R. 67. Both of these cases concerned sexual offences involving the abuse of children, although neither turned on theinterpretation or application of

section 718.01. [21] How a court applies the provisions of

section 718.01 has been considered by other Canadian appellate courts. In R. v. K.M.,2012 SKCA 95, 338 Sask. R. 234 the Saskatchewan Court of Appeal considered the

section in deciding a Crown sentence appeal for afemale offender who had had sexual relations with three 14-year-old boys, who were friends of her son, at various times during a four-month period. In increasing the offender’s sentence from two to three years, Jackson J.A. stated that “Parliament has made its intentionvery plain that sexual assaults of children in this age group are to be met with significant penalties” (paragraph 16). [22] In R. v.

Allen, 2012 BCCA 377, 104 W.C.B (2d) 970 the British Columbia Court of Appeal considered the application ofsection 718.01 when tasked with deciding the fitness of a sentence for an offender convicted of possession of child pornography for thepurpose of distribution or sale and sexual assault. In Allen, the sentencing judge had first considered denunciation, but had gone on toconsider rehabilitation as an equally important objective. The Court found that this approach was based on an incorrect premise.

Inincreasing the offender’s sentence from 39 months to six years, on a particularly sordid set of facts, Ryan J.A. stated that the sentencingjudge had been “bound to give primary consideration and importance to the objectives of denunciation and deterrence in fashioning hersentence on both counts and, at least with respect to the assault count, was bound to find that the age of the victim was an aggravatingfactor” (paragraph 51). [23] In R. v. Archibald, 2012 ABCA 202, 533 A.R. 188, the Alberta Court of Appeal considered the application of

section 718.01 toa case of historical sexual assault of three 14-to-15-year-old boys. Despite very strong reasons for according significant weight torehabilitation as a sentencing factor such that there would be no incarcerating sentence imposed, the Court resolved the tension betweenthe directive in

section 718.01 and the sentencing principle of rehabilitation by imposing a one-year incarcerating sentence when, “hadhis guilty pleas [occurred after a certain earlier time] [the offender’s] sentence would have been guided by a four-year starting point”(paragraph 10). The sentence reflects the need for a longer sentence in order to give effect to the requirements of

section 718.01, as wellas considerable reduction to reflect rehabilitation considerations. I would note that this Court has not adopted the Alberta practice ofsentencing by reference to “starting points”, but rather has consistently adhered to the use of sentencing ranges. [24] The approaches taken by the Saskatchewan, British Columbia and Alberta courts of appeal to the application of

section 718.01to a case involving the abuse of a person under the age of 18 can be described as requiring a court to give substantial weight to theobjectives of denunciation and deterrence when weighing and balancing the objectives of sentencing that best reflect the facts of a caseand the circumstances of the offender. I agree with this approach, but hasten to add that this does not mean that either denunciation ordeterrence trumps other sentencing objectives.

It does mean, however, that there must be a focus on ensuring that denunciation anddeterrence are properly vindicated as sentencing objectives in the balancing exercise. [25] This focus on denunciation and deterrence requires an appreciation of these objectives in the context of the facts of the casebeing decided, which involves an appreciation of the seriousness of the particular offence and the offender’s degree of responsibility. Italso involves an appreciation of how and why denunciation and specific and general deterrence are important in the context of theparticular case.

For example, if the abuse is of a minor nature in circumstances which are unlikely to repeat themselves, the degree ofemphasis given to deterrence and denunciation would be less. On the other hand, if the abuse is more serious and the offender has ahistory of committing such offences, deterrence and denunciation would require greater emphasis. In

summary, giving “primary

consideration” to the objectives of denunciation and deterrence requires a meaningful assessment of how the facts of the offence and the circumstances of the offender relate to denunciation and deterrence and an acknowledgement that substantial weight must be given to these objectives so that they are properly vindicated in the sentencing process. [ 26 ] The sentencing judge delivered an oral sentencing decision and subsequently filed her written decision. In her oral decision, she did not mention

section 718.01, directly or by implication. In her written decision, she referred cursorily to

section 718.01, saying: [71] Although I recognize that under s. 718.01 of the Criminal Code , denunciation and deterrence are of primary consideration in the sexual assault of a minor, I must also consider that deterrence is less important where there are mental health issues such as those that have been well documented in this case. She did not discuss the principles of denunciation and deterrence in relation to the facts of the case or Mr. Branton’s circumstances. Rather, she simply stated that deterrence is less important in cases involving an accused with mental health issues like Mr.

Branton, and went on to refer to this Court’s jurisprudence which considered an accused’s mental health issues on sentence. She then listed aggravating and mitigating circumstances, and concluded by saying: [78] At present, the accused is 20 years old and has expressed a desire to take counseling and medications to keep himself on the straight and narrow. I must seriously consider his expressed desire to rehabilitate which, in my opinion, will provide the best protection for society against him reoffending. [ 27 ] The judge’s acknowledgement of

section 718.01 in her written decision was no more than a passing reference to the sentencing objective of deterrence before she dismissed it as being less important than rehabilitation. She did not acknowledge the objective of denunciation at all. It is clear from both her oral and written decisions that she sentenced Mr. Branton in accordance with her view that his rehabilitation was the paramount sentencing objective in the case. By any measure, the sentencing judge did not give primary consideration to the objectives of denunciation and deterrence as she was required to do.

In this respect, she committed an error in principle. Overemphasis of Mr. Branton’s Mental Health Issues [ 28 ] The Crown argues that the sentencing judge overemphasized Mr. Branton’s mental health issues by according them significant weight without considering how they related to the commission of the offences. [ 29 ] Two child and adolescent psychiatrists, Dr. W. Bonnell and Dr. C. Snelgrove, authored reports which were part of the documentation before the sentencing Court. Dr. Snelgrove said in a report to Mr.

Branton’s family physician in relation to “behaviours which were sexual in nature” that had prompted the assessment, that Mr. Branton’s “behaviours were not psychiatric in nature” and “[t]here is no medication or other psychiatric intervention that can prevent these behaviours from happening” and “[t]hey are behavioural problems … [and] he needs to recognize the inappropriateness of the behaviours and the reality of the consequences of them”. Dr. Bonnell stated in his report to the court sentencing him for the sexual offences of which he was convicted in 2008 that Mr.

Branton “was not suffering from a psychiatric illness … to make him not responsible for these actions”. [ 30 ] Mr. Branton’s mental health issues, as garnered from the sentencing documentation, are that he has Attention Deficit Hyperactivity Disorder (ADHD) (diagnosed at age six), and Borderline Intellectual Functioning (BIF) and “Conduct Disorder” (CD) (diagnosed by Dr.

Bonnell in 2007). (The CD diagnosis superseded a diagnosis of “Oppositional Defiant Disorder” following the doctor’s consideration of other illegal actions unrelated to sexual behaviour.) [ 31 ] Nothing in the documentation (or in any other evidence) linked Mr. Branton’s diagnoses of ADHD, BIF and CD to his sexual assault of A., and there is no suggestion in the documentation that Mr. Branton had not appreciated that his sexual behaviour which led to previous convictions was wrong. Moreover, Dr.

Bonnell said that because of “Jeremy’s limited intelligence, he is more dependent on experienced based learning … [a]nd therefore any illegal acts should be met with charges and the appropriate legal consequences. Leniency will be interpreted as endorsing these acts.” [ 32 ] In her sentencing decision, the judge stated at paragraphs 75 and 78: The accused has behavioural and medical issues which have been well documented for years. All of the professionals indicate that if his issues are not addressed, the likelihood that he will reoffend will increase.

He has not been properly treated and the scenario that was predicted by the experts appears to be the exact one that is evolving. … At present, the accused is 20 years old and has expressed a desire to take counseling and medications to keep himself on the straight and narrow. I must seriously consider his expressed desire to rehabilitate which, in my opinion, will provide the best protection for society against him re-offending … [ 33 ] In so deciding, the judge relied on this Court’s decisions in R. v. Peters , 2000 NFCA 55, 194 Nfld. & P.E.I.R. 184 ; Edmunds , and R. v.

Lundrigan , 2012 NLCA 43 , 324 Nfld. & P.E.I.R. 270 to support her view that because Mr.

Branton was suffering from mental health issues, he required support to assist in his rehabilitation. [ 34 ] The general principle articulated in Peters , Edmunds and Lundrigan is that an offender’s mental health issues are a relevant factor in his or her sentencing when there is an established connection between an offender’s mental health issues and the commission of his or her crimes. [ 35 ] Mental illness covers a broad spectrum of behaviours, and it does not, by itself, absolve an offender of responsibility for an offence (outside of the provisions of

section 16 of the Criminal Code ) or automatically justify a lighter sentence than would otherwise be appropriate. When an offender has mental health issues, treatment can sometimes be provided to him or her while incarcerated and if

probation is ordered, through the imposition of conditions directing that the offender seek medical assistance, participate in treatment programs, and so forth. Such conditions are designed to assist in the offender’s rehabilitation and supervise him or her with the objective of preventing him or her from reoffending.

These probationary conditions are “blunt tools”, as Crown counsel put it in argument, and they do not guarantee results. [ 36 ] In this case, the offender’s record for sexual offences is documented in the several medical and professional reports dating from November 2006 to May 2008 as well as in two pre-sentence reports dated April 25, 2008 and May 15, 2012 respectively. The bulk of the documentation concerning Mr. Branton’s mental health issues and the pre-sentence report dated April 15, 2008 were generated as a result of the justice system’s interventions when Mr.

Branton was charged, at the age of 15, with sexual assault, sexual interference, exposing himself and breaching his probation, for which he received a six-month secure custody and three-month open custody sentence and probation. The second pre-sentence report was prepared following his conviction for inviting sexual touching in May 2012, for which he was sentenced to 30 days incarceration and two years’ probation. [ 37 ] The sentencing judge drew the conclusion from the documentation that Mr. Branton had longstanding and well documented behavioural and medical issues, for which he had not been properly treated.

It is apparent from her decision that she was concerned that Mr. Branton have the opportunity to rehabilitate himself. However, she did not seem to appreciate that Mr. Branton had had previous medical and other professional interventions which addressed the very kind of behaviour which had brought him before her. The previous interventions included three to four counseling sessions per week over a period of one and one-half years “to help with [Mr. Branton’s] sexually aberrant behaviour” while he was living at Waypoints, as well as lengthy periods of probation with conditions.

Review of the sentencing documentation does not support the trial judge’s view that Mr. Branton has not been properly treated. Rather, it shows that several medical and other professional people have attempted to deal with him and his behaviour through assessment, counseling and other treatment, and probation. There was no evidence suggesting that Mr. Branton was not properly treated, nor was there evidence as to what constitutes proper treatment for Mr. Branton’s criminal conduct and what degree of success can be expected to be achieved by it. [ 38 ] In

summary on this issue, Mr. Branton’s medical diagnoses are part of his personal circumstances and were therefore a legitimate consideration for the sentencing judge in the same way an offender’s health is often a sentencing consideration. However, they were overemphasized and afforded great weight when there was no connection established between them and the offences committed, and no recognition that Mr. Branton had been assessed and counselled in relation to his behaviours in the past and that despite same, he has continued to offend. [ 39 ] In the result, the sentencing judge erred in principle by failing to give primary consideration to denunciation and deterrence as mandated by

section 718.01 and in her treatment of the evidence respecting Mr. Branton’s mental health issues. Accordingly, Mr. Branton’s sentence of nine months for sexual assault must be set aside. It falls to this Court to impose a fit sentence for his offence ( R. v. Provost , 2006 NLCA 30 , 256 Nfld. & P.E.I.R. 205, at para. 12 ). [ 40 ] It is not necessary to deal with the Crown’s argument that Mr. Branton’s nine month sentence was demonstrably unfit as a separate ground of appeal, for it will be apparent from this Court’s imposition of sentence that it was.

A Fit Sentence [ 41 ] The sentencing judge’s one-month consecutive sentence for Mr. Branton’s breach of probation is not contested, and it is in accordance with the principles set out by Welsh J.A. in R. v. Murphy , 2011 NLCA 16 , 304 Nfld. & P.E.I.R. 266. I would let it stand. [ 42 ] A fit sentence for Mr. Branton’s sexual assault of A. must be one that is “proportionate to the gravity of the offence” and to Mr. Branton’s degree of responsibility. It must not exceed what is just and appropriate, but it must hold Mr.

Branton responsible for his actions and properly reflect society’s condemnation of what he did ( Nasogaluak , paragraphs 40-42 ). [ 43 ] Mr. Branton’s assault of A. involved masturbation, oral sex and a determined attempt at anal intercourse. The fact that anal intercourse was not fully effected was not due to any attack of conscience on Mr. Branton’s part. The entire assault ceased only when Mr. Branton was ready to end it. Mr. Branton preyed upon a young boy whom he had met only days before when Mr. Branton moved to or visited the neighbourhood in which A. lived. Mr.

Branton ingratiated himself to A. by purchasing cigarettes for him, and subsequently invited A. into the house where he (Mr. Branton) was staying and where the assault took place. While a single incident, the assault cannot be characterized as minor or fleeting. By any measure, it was serious. [ 44 ] In R. v. Noseworthy (1982), 40 Nfld. & P.E.I.R. 193 (Nfld. C.A.) this Court stated that the range of sentence for sexual assault involving intercourse was three to seven years. This range was restated in R. v. Barrett , 2011 NLCA 5 , 303 Nfld. & P.I.E.R. 139 at para. 28 . In R. v.

Vokey , 2000 NFCA 14, 186 Nfld. & P.E.I.R. 1 , Cameron J.A. stated the range for sexual assault involving intercourse to be three to five years, and in R. v. Freake , 2012 NLCA 10 , 328 Nfld. & P.E.I.R. 305, Justices Rowe and Welsh stated that the range of sentence applicable to that case, which was the sexual assault of an adult woman involving intercourse, was three to five years. In R. v.

Payne , 2012 NLCA 72 , 330 Nfld. & P.E.I.R. 181 Welsh J.A. said at paragraph 8, “A review of the case law leads to the conclusion that a three year term of imprisonment for sexual assault of a 13 year old girl involving intercourse is at the low end of the range”.

While the top of the range is unclear, the bottom is not (see Squires , at paras. 76, 91 and 123-126 ). [ 45 ] Cases involving intercourse are regarded as more serious than cases without intercourse, for intercourse, in addition to violating one’s physical and psychological integrity at a most intimate level, carries with it the risk of disease transmission and, in cases involving a female of child-bearing age, the risk of pregnancy. This case involves a determined attempt at anal intercourse with a 13-year-old boy.

While the risk of disease transmission is uncertain in this case, pregnancy clearly was not a risk due to the male gender of both the offender and the victim, regardless of it not being “fully effected”. That said, the physical and psychological integrity of men and boys, including a male who has been caused to penetrate an offender, is no less deserving of the protection and reparation which the criminal law affords to victims than that of women and girls. [ 46 ] The range of sentence for serious sexual offences short of intercourse can be said to be lower than the range for offences involving intercourse.

This does not mean that the top of the range of sentence for serious sexual assault short of intercourse is always

lower than the low end of the range for sexual assault involving intercourse. Nor does it mean that such a sentence should always belower than the top of the range. The particular facts and circumstances of an offence and an offender can always justify sentences bothabove and below the range, for sentencing ranges are guidelines, not rules, and “[a] judge can order a sentence outside [a] range as longas it is in accordance with the principles and objectives of sentencing” (Nasogaluak, at para. 44). [47] Mr.

Branton’s sentence must reflect society’s denunciation of the abuse he inflicted on A. and send a message to Mr. Brantonthat if he continues to engage in the sexual assault of others he will be at risk of being reincarcerated for longer periods of time. Hissentence must also be such as to send a message to like-minded others that such behavior will attract serious sentencing consequences. [48] Keeping the provisions of

section 718.01 in mind, I move to the other objectives of sentencing. Of these, rehabilitation isimportant, as the trial judge recognized. It is especially important in this case given Mr. Branton’s age. Age is an appropriateconsideration in relation to an offender’s prospects for rehabilitation, as Green C.J. recognized in R. v. Hutchings, 2012 NLCA 2, 316Nfld. & P.E.I.R. 211 at para. 107. [49] Mr. Branton was 20 years old at the time of the offence and is now 21. While he is not a first offender, he is still in his earlytwenties.

The twenties are important to a young person “who is still maturing and developing those things, like job prospects andrelationships, that provide the base for a productive life” (Hutchings, at para. 107). As well, a young person has more time to mend hisways than an older offender does, and a better opportunity to do so for his or her “ways” may not be as set as they may be in olderoffenders. If an offender’s “ways” are not so set, they may be more susceptible to rehabilitation.

Even when aggravating factors arepresent, there is good reason to give further opportunity for rehabilitation to young adult offenders (See also R. v. Barrett, 2012 NLCA46, 324 Nfld. & P.E.I.R. 246 at para. 56). [50] Mr. Branton’s guilty pleas serve as mitigating factors, in that they have spared A. from direct involvement in a protracted andemotionally taxing legal proceeding and alleviated some strain on the administration of justice by negating the need for a preliminaryinquiry and trial. [51] Also helpful to Mr.

Branton is his stated willingness to seek help with his behavioural issues. [52] On the other hand, Mr. Branton’s record is an aggravating factor. He has a history of committing sexual offences, and heassaulted A. while he was on probation for previous sexual offences. Such a record weighs in favour of the imposition of a lengthiersentence than would be imposed on a first offender. [53] Another aggravating fact is that A. was only 13 years old when Mr. Branton assaulted him. A. was a young person within themeaning of

section 718.01, and he was significantly under the age of legal consent. [54] Balancing all of the above factors including the additional weight ascribed to denunciation and deterrence as compared withother sentencing objectives, I would sentence Mr. Branton to a period of incarceration of 23 months less a day incarceration for thesexual assault of A., plus one month consecutive for breaching his probation, and three years’ probation. The time Mr. Branton hasalready served in custody and on probation is to be deducted from this sentence.

The DNA, Firearms Prohibition, SOIRA and section161 orders imposed by the sentencing judge will remain in place, as will the conditions of probation she imposed. L. R. Hoegg J.A.

Concurring Reasons by Barry J.A.: [55] I agree for the reasons given by Hoegg J.A. that leave to appeal should be granted, that the sentencing judge misinterpreted thisCourt’s decision in Squires, and that she imposed a demonstrably unfit sentence. [56] On the effect of s. 718.01 and the requirement to give “primary consideration” to the objectives of denunciation and deterrence,in the circumstances of this case, I would only say that the sentencing judge properly considered the comments of Rowe J.A. in R. v.Lundrigan, [2012] N.J. No. 23, where he stated at paragraph 24: What then is a fit sentence?

It is one that takes account of the circumstances of the offences and the offender. A key consideration is theprospect for Mr. Lundrigan’s rehabilitation. It is important to recall that the best protection for society is that the offender not re-offend. [57] The protection of society is recognized as the fundamental purpose of sentencing by s. 718 with its reference to contributing torespect for the law and “the maintenance of a just, peaceful and safe society”, achieved by “just sanctions” which have one or more ofthe objectives of denunciation, deterrence, rehabilitation and others noted by Hoegg J.A.

Intimately tied to this fundamental purpose ofsentencing is the fundamental principle of proportionality: a sentence must be proportionate to both the gravity of the offence and thedegree of responsibility of the offender: R. v.

Ipeelee, 2012 SCC 13 , [2012] 1 S.C.R. 433, at para. 36. [58] I have reservations about whether sanctions which impeded rehabilitation because of a “primary consideration” being given todenunciation and deterrence, pursuant to s. 718.01, would properly promote that fundamental purpose of protecting society or properlygive effect to the fundamental principle of proportionality if insufficient consideration were given to the degree of responsibility of theoffender.

I note that in Ipeelee, the Court had to consider a statutory direction to give “paramount consideration” to the protection ofsociety but the majority concluded the prospect for rehabilitation remained a relevant factor.

[59] I need not resolve this difficulty in the present case, however, because I agree with Hoegg J.A. that in the circumstances thesentencing judge could have given adequate consideration to the objectives of denunciation and deterrence, while promoting therehabilitation of Mr. Branton, and she did not do this. This was an error and arose because, as Hoegg J.A. noted, the sentencing judgeoveremphasized mental health issues where no connection had been established between them and the offences committed andinsufficient recognition was given to the fact that, despite past assessments and counseling, Mr.

Branton had continued to offend. [60] I agree that the nine month sentence was inadequate and, for the reasons given by Hoegg J.A., a fit sentence is incarceration fortwenty-three months less a day for the sexual assault plus one month consecutive for the breaching of probation, less time served incustody and on probation. I also agree with the three years’ probation and the DNA, Firearms Prohibition, SOIRA and

section 16 ordersremaining in place with the same conditions of probation. ___________________________________ L. D. Barry J.A. Concurring Reasons by Rowe J.A.: [61] Like monetary policy, the key decision in sentencing seems straight forward. In monetary policy, the key decision is the primerate of interest. In sentencing, the key decision is the term of incarceration (at least for serious offences). Underlying both these keydecisions are a myriad of considerations, many in tension with one another.

In the end, it is a matter of “judgment” as to how to treatcompeting factors. [62] The purposes, objectives and principles of sentencing arose through the common law. In Canada, these have been codified inrelevant provisions of the Criminal Code, being s. 718 et seq. Landmark decisions, such as R. v. M.(C.A.), (SCC),[1996] 1 S.C.R. 500 and R. v.

Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, offer guidance as to the relationship among purposes,objectives and principles, but they do not, indeed they cannot, resolve in a definitive way the tensions inherent among them. [63] I share the concerns expressed by my brother Barry in his concurring reasons. However, I am content with what my sisterHoegg has written. I concur in her reasons and in the result. M. H. Rowe J.A.