R. v. Hutchinson, 2011 NSSC 462

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Hutchinson, 2011 NSSC 462 Date: 20111202 Docket: CRH 328502 Registry: Halifax Between: Her Majesty the Queen versus Craig Jaret Hutchinson Restriction on publication: Restriction on publication of any information that could identify the complainant, pursuant to s. 486.4(1) of the Criminal Code Judge: The Honourable Justice C.

Richard Coughlan Heard: December 2, 2011, in Halifax, Nova Scotia Decision: December 2, 2011 (Orally) (Sentencing) Written Release of Decision: December 14, 2011 Counsel: Kimberley McOnie, for the Crown Patrick MacEwen, for the Defence Coughlan, J. : (Orally) [ 1 ] On September 28, 2011, Craig Jaret Hutchinson was found guilty of committing a sexual assault on N.C.

[ 2 ] I have read the pre-sentence report dated November 16, 2011, the submissions of counsel, the cases to which I was referred, and heard the submissions of counsel. [ 3 ] Mr. Hutchinson and Ms. C. were in an intimate personal relationship from January, 2006 to the end of October, 2006. During most of their relationship, they engaged in sexual intercourse three to four times a week. They used condoms during sexual intercourse as birth control to prevent pregnancy. They did not use condoms during Ms. C. ’ s menstrual period as it was her understanding she could not become pregnant while she was menstruating.

They always used condoms during times Ms. C. thought she could become pregnant. Until September 5, 2006, when Ms. C. had a positive result from a home pregnancy test, Ms. C. consented to have sexual intercourse with contraception (condoms) except during her menstrual period each month. Mr. Hutchinson knew Ms. C. did not want to become pregnant. Mr. Hutchinson sabotaged condoms by poking holes in them and then had sexual intercourse with Ms. C. using the damaged condoms. [ 4 ] Mr. Hutchinson told Ms. C. about the sabotaged condoms.

Prior to that, she was unaware of the sexual assault and it prevented her from possibly using the condoms again. [ 5 ] Mr. Hutchinson is currently 41 years of age. Employed as a chef, he has worked with the same employer for 22 years. He completed his high school equivalency by taking a night program. Married in 1993, he separated from his wife in April, 2006. There is one child of his marriage - a 16 year old daughter, who resides with her mother. Mr. Hutchinson says he maintains a healthy relationship with his wife and a very close relationship with his daughter. Mr.

Hutchinson has no prior criminal record. [ 6 ] In the pre-sentence report dated November 16, 2011, the author states: With regard to the present matter before the Court, the Subject does not seem to understand the seriousness of the matter, stating he does not take responsibility for what happened as the offence “did not happen the way it was described”. He reported not having any remorse, “not at all”. [ 7 ] The Crown seeks a sentence of two years incarceration, as well as a D.N.A. order, a Sex Offender Information Registration Act order and a weapons prohibition order.

The defence is seeking a suspended sentence and probation of two years; or, if the Court finds a custodial disposition is appropriate, a custodial sentence of six to nine months, to be served in the community, followed by a period of probation. [ 8 ] The purpose and principles of sentencing are set out in the Criminal Code . The principles relevant to this proceeding include: 718.

Purpose - The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and

(

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.l Fundamental principle - A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 Other sentencing principles - A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, . . . . (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; . . . . (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders ... [ 9 ] Sexual assault is a serious offence. Sentencing must be tailored to the facts of the offence and the individual offender. [ 10 ] Mr. Hutchinson ’ s actions were premeditated. Knowing his actions could result in Ms. C. ’ s becoming pregnant, he proceeded to sabotage the condoms by poking holes in them and then having sexual intercourse with Ms. C. with the sabotaged condoms. Such conduct is an aggravating factor. [ 11 ] Mr.

Hutchinson was in an intimate personal relationship with Ms. C. While not a traditional position of trust, such a relationship is based on trust and confidence. Mr. Hutchinson ’ s conduct breached the trust Ms. C. placed on him, and that is an aggravating factor. [ 12 ] The fact Mr. Hutchinson has no prior criminal record is a mitigating factor. [ 13 ] In distinguishing the facts of this case from R. v.

G.A.L. , 2001 NSCA 29 , in its submission the defence stated: The Defence would distinguish the case at bar with that cited above as the sexual assault for which G.A.L. was sentenced was one which was perpetrated against a sleeping complainant unbeknownst to her and against her will. ... [ 14 ] In fact here, Mr. Hutchinson had sexual intercourse with Ms. C. with damaged condoms, unbeknownst to her and without her consent.

[15] I have been asked to consider a suspended sentence, or in the alternative, a conditional sentence. A suspended sentence wouldbe totally inadequate considering the facts present here. In 2006, s. 742.1 of the Criminal Code provided: 742.1 Imposing of conditional sentence - Where a person is convicted of an offence, except an offence that is punishable by aminimum term of imprisonment, and the court (

a) imposes a sentence of imprisonment of less than two years, and (

b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistentwith the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purposes of supervising the offender’s behaviour in the community, order that the offender serve the sentence inthe community, subject to the offender’s complying with the conditions of a conditional sentence order made under

section 742.3. [16] In this case, the offence is not punishable by a minimum term of imprisonment. [17] The Criminal Code provides the offence has a maximum sentence of ten years imprisonment, but no minimum. [18] I am also satisfied, given the facts of the offence and Mr. Hutchinson, that an appropriate sentence would be less than twoyears. [19] Would a conditional sentence be consistent with the fundamental purpose and principles of sentencing? [20] Here, Mr. Hutchinson, while in an intimate personal relationship with Ms. C., had sexual intercourse with her using damagedcondoms. He was fully aware Ms.

C. did not wish to engage in unprotected sexual intercourse with him during times she thought shecould become pregnant. Considering the nature of the assault, general deterrence has to be stressed. [21] In dealing with a sentence appeal for sexual assault, Hallett, J.A., in giving the Court’s judgment in R. v. G.A.L., supra, statedat paras. 60 and 61: He (referring to Judge Embree) quoted from the decision of R. v. G. (T.V.) (1994), (NS SC), 31 C.R. (4th) 321where Justice Bateman stated at p. 323: In R. v.

M.(G.), a decision of the Ontario Court of Appeal dated November 2nd, 1992, [reported at (ON CA), 77C.C.C. (3d) 310], Justice Abella, writing for the court, explains the role of denunciation in sentencing sexual offenders. She says [atpage 131]: The public can logically be expected to infer from the nature of the sentence the extent to which a court views as serious, certain conductby a given individual ... Sentences which appear on their face to be exceptionally lenient in the circumstances can be presumed togenerate neither deterrence nor denunciation.

Judge Embree stated: It is clear when sentencing for crimes of sexual assault, the Court has to place particular emphasis on deterrence, both specific and

general. General deterrence in particular has to be stressed. [Emphasis added] [ 22 ] Under all of the circumstances of this matter, a conditional sentence here is not consistent with the fundamental purpose and principles of sentencing as set out in s. 718 to 718.2 of the Criminal Code . [ 23 ] This case requires a custodial sentence. Incarceration is the only suitable way to express society ’ s condemnation of Mr. Hutchinson ’ s conduct. [ 24 ] Mr. Hutchinson, would you please stand? [ 25 ] Considering the case law and legislation, the circumstances of the offender and the offence, I sentence Mr.

Hutchinson to incarceration for a period of eighteen months. [ 26 ] I have also considered whether this is a proper case for a prohibition order pursuant to s. 110 of the Criminal Code . Bearing in mind the circumstances of the offence and Mr. Hutchinson, I find it is not desirable in the interests of safety of any person to make an order pursuant to s. 110 . [ 27 ] I grant a D.N.A. order pursuant to s. 487.051 of the Criminal Code for a primary designated offence. [ 28 ] I grant an order pursuant to s. 490 of the Criminal Code requiring Mr.

Hutchinson to comply with the Sex Offender Information Registration Act for a period of twenty years. [ 29 ] Considering Mr. Hutchinson ’ s incarceration, I waive the victim surcharge. __________________________________ Coughlan, J.