R. v. DeYoung, 2020 NSSC 242

SUPREME COURT OF Nova Scotia Citation: R. v. DeYoung , 2020 NSSC 242 Date: 20200904 Docket: CRH 473586 Registry: Halifax Between: Her Majesty the Queen v. Jeffrey William DeYoung SENTENCE DECISION PUBLICATION BAN: s. 486.4 , s. 486.5 and s. 539(1) of the Criminal Code Judge: The Honourable Justice Jamie Campbell Heard: September 4, 2020, in Halifax, Nova Scotia Oral Decision: September 4, 2020 Written Decision: September 14, 2020 Counsel: Robert Fetterly, for the Crown Patrick MacEwen, for the Defence By the Court (orally): [ 1 ] Jeffrey DeYoung was found guilty of committing sexual assault. Crown counsel and Mr.

DeYoung’s counsel have joined in a recommendation for the term of incarceration to be imposed. It is not a joint recommendation that was part of a negotiated guilty plea, nor was it a completely agreed upon sentence, but it is still significant that counsel have reached an agreement on an important component of the sentence itself. A joint recommendation will normally be accepted if it is within the range of appropriate sentences having regard to the circumstances.

I am satisfied here that the same principle should be applied and that the sentence as recommended is a fit and proper one. [ 2 ] The circumstances of the offence are as set out in the trial decision, R. v. DeYoung 2019 NSSC 401 . In

summary form, Mr. DeYoung had been invited to stay overnight at the home of an acquaintance after a night of drinking and partying. He was told to sleep on the couch but instead made his way into the complainant’s bedroom, where she was asleep. When she woke up, she found Mr. DeYoung in her bed attempting to penetrate her anus with his penis. [ 3 ] There had been no romantic interaction between Mr. DeYoung and the complainant and no sexual overtones to any actions taken or words spoken. This is not a situation in which there had been consensual sexual activity and in which Mr. DeYoung exceeded the

boundaries of the consent. [ 4 ] The Victim Impact Statement provided by the complainant indicates the ways in which her life was changed by being sexually assaulted. She says that she now requires significantly more “emotional space”. She cannot engage with people in the same way that she had before. She is hyper-aware and anxious much of the time. She had been taking a master’s degree and as she noted today, she withdrew from it. Victim Impact Statements can provide valuable insight into the impact of a crime.

They are limited by the requirement to reduce what might be a very complex set of emotions to written form. [ 5 ] Mr. DeYoung maintains his innocence. He is entitled to do that and it has no impact whatsoever on the sentence that he should receive. [ 6 ] The Pre-sentence Report prepared in this case indicates that he is 44 years old. He has no criminal record. He grew up in a family in which there was no abuse and no family dysfunction. Mr. DeYoung moved out of the family home when he was 21 to live with roommates. He eventually moved into a home with his then girlfriend. They broke up after 4 years.

He had another relationship that lasted 7 years. He now lives with a friend. He has never been married and has no children. [ 7 ] Mr. DeYoung completed Grade 9 then left school. He worked as a mover then worked with Sears for three years. He left to start his own company. He found work with a new company and worked in sales and operations for 5 years. After working as a long-haul trucker, he was hired by Dexter’s Municipal in sales and operations and has had that position for over a year. [ 8 ] It is not intended as a slight to say that Mr. DeYoung’s life so far has been quite normal and unremarkable.

He had an uneventful childhood and worked to be self-sufficient. He has never been in any trouble with anyone about anything. He has no addiction or major health issues. His friends appear to have been shocked to hear that he had got in trouble with the law. [ 9 ] The offence for which Mr. DeYoung was convicted appears to be entirely out of character. There is no insight into why it happened and any suggestion that it was brought about by intoxication would be speculation. [ 10 ] People make mistakes. Sometimes they have horrible and long-lasting consequences for others.

They can have criminal consequences for the people who make those mistakes. The use of the word “mistake” is in no way to minimize the seriousness of Mr. DeYoung’s actions and the impact of those actions on the complainant. It is to indicate that sometimes criminal acts are done by people who have no history of criminal behaviour and whose lives up to that point have been of unblemished character. The actions of one night or even one brief moment can fundamentally change the course of a number of lives. [ 11 ] Here, Mr.

DeYoung who by all accounts is someone whom one would never expect to be before a criminal court, after a night of drinking, acted in a way that changed the complainant’s life and will now change his as well. While no sexual assault can be described as “minor”, the offence is a broad spectrum one. It can go from a sexualized tap on the buttocks, to fondling, to forced vaginal or anal intercourse. This offence is not at the lower end of that spectrum.

It involved attempted anal intercourse with a person who had not consented and who was not at the time capable of consenting. [ 12 ] The range of sentences for sexual assaults involving complainants who were sleeping or otherwise unconscious at the time of the assault run from a low of 14 months to more than three years. The Nova Scotia Court of Appeal in R. v. J.J.W. 2012 NSCA 96 , provided a detailed review of many of the cases on sentencing for sexual assault.

Justice Oland in that case noted that since sentencing is such an individualized process and is done in the context of the particular circumstances of each case it is notoriously difficult to find cases that are factually similar. Nova Scotia has not adopted the “starting point” approach taken by some other jurisdictions. In other words, there is no minimum for certain kinds of sexual assaults or for sexual assault in general.

It depends on the facts of the case. [ 13 ] When considering a range that would generally apply in sexual assault cases, the fact that other provinces may have a starting point for sentencing has to be considered. The case law does suggest that the range runs from between 14 and 23 months at the lower end to more than three years at the higher end of the range. The factors that determine whether a case fits into the lower or higher end of the sentencing range are as numerous as the cases that have been decided. [ 14 ] There are a number of factors that would apply to almost all offences.

An expression of genuine remorse or a timely guilty plea can result in a lower sentence being ordered. The failure to express remorse is of course not an aggravating factor. The character of the offender is relevant. A person who has committed previous offences will obviously be treated more harshly than a first-time offender. Mr. DeYoung is a first-time offender and has no criminal record. [ 15 ] The nature of the relationship between the parties may be a relevant factor. That may involve the respective ages and circumstances of the offender and the victim. Mr.

DeYoung and the victim in this case were contemporaries and acquaintances. [ 16 ] If the offender took some action to incapacitate the victim by administering drugs or alcohol that would be an aggravating factor. That is not present here. Both the victim and Mr. DeYoung had been drinking but there was no suggestion that he did anything to cause her to fall asleep. [ 17 ] The nature of the assault is relevant. Sexual touching and digital penetration are serious but intercourse, whether vaginal or anal is more serious.

The assault here involved anal penetration with the penis. [ 18 ] It would be an aggravating factor if the sexual contact resulted in physical injury beyond the obvious psychological trauma. There is no evidence in this case of physical injury. [ 19 ] It would be an aggravating factor if, when the victim awoke or regained consciousness and made some expression to indicate the absence of consent beyond the absence of consent that would result from being unconscious in the first place, the offender continued with the assault. That is not present here. When told to stop, Mr.

DeYoung stopped and left promptly. [ 20 ] It is significant in these cases that there has been a betrayal of some trust. The complainant or victim allowed the offender to be present in a situation in which she was vulnerable. In this case, the victim allowed Mr. DeYoung to remain in her apartment, alone with her

overnight. He had a form of access to her by which she implicitly indicated her trust that he would respect her boundaries. He betrayed that trust by coming into her bed and sexually assaulting her. [ 21 ] This case is neither at the very lowest end of the range of sentences nor at the higher end of that range. It is of a kind that requires a sentence of imprisonment followed by a period of community supervision. [ 22 ] The period of incarceration jointly recommended by counsel in this case is 2 years in a federal institution followed by probation for 2 years.

I am satisfied here that the purposes of denunciation and deterrence can be achieved through that sentence.

The terms of probation will be as follows: • Keep the peace and be of good behaviour. • Appear before the court as and when directed. • Notify the Court or the probation officer in advance of any change in name, address, employment or occupation. • Report to a probation officer within 5 days of the expiration of your sentence of imprisonment and thereafter as directed by the probation officer. • Have no direct or indirect contact with H.J. or A.T. except through a lawyer. • Not to be within 100 metres of any residence or place of employment where H.J. or A.T. are known to be. • Attend for assessment, counselling or program as directed by the probation officer. • Participate and cooperate with any assessment, counselling or program as directed by the probation officer. [ 23 ] The victim fine surcharge is waived. [ 24 ] Mr.

DeYoung will be subject to the following ancillary orders: • Firearms prohibition for 10 years and restricted/prohibited weapons for life, s.109(2). • DNA order, s. 487.051. • SOIRA order for 20 years, s. 490.013(1)(b). [ 25 ] No communication with H.J. and A.T. while in custody (s. 743.21). Campbell, J.