R. v. D.H.E., 2012 NSSC 260

IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. D.H.E. , 2012 NSSC 260 Date: 20120709 Docket: CRP-346270 Registry: Pictou Between: Her Majesty the Queen - and - D.H.E. Restriction on publication: PUBLISHERS OF THIS CASE PLEASE NOTE THAT THERE IS A PUBLICATION BAN SUBJECT TO A s.486.4(1) ORDER DIRECTING THAT THE IDENTITY OF THE COMPLAINANTS AND ANY INFORMATION THAT WOULD DISCLOSE THEIR IDENTITY SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY. Judge: The Honourable Justice N.M.

Scaravelli Oral Decision: July 9, 2012, Pictou, Nova Scotia Counsel: Patrick Young, for the crown Doug Lloy, for the defence By the Court : [ 1 ] The offender appears for sentencing having entered a plea of guilty to a sexual assault on the victim, contrary to

Section

271 of the Criminal Code . [ 2 ] By way of brief background, the offender made arrangements to meet his niece and the victim near the Sampson Trail in New Glasgow. The offender had prepared a make-shift tent arrangement with a sleeping bag. He supplied liquor, consisting of vodka coolers and rum, some of which he contaminated with a drug that renders one helpless. The alcohol was consumed, causing both girls to eventually pass out. While unconscious, the offender had non-consensual intercourse with the victim who later complained of bruises and marks on her body, and soreness. She attended the hospital next day.

The toxicology reports from samples taken from the victim and liquor bottles at the scene revealed the presence of a drug known as Oxazepam ® , a depressant apparently that causes drowsiness and dizziness, especially if mixed with alcohol. [ 3 ]

Section 718.1 of the Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 4 ] The maximum penalty for the indictable offence of sexual assault is 10 years imprisonment. [ 5 ] I am required to consider the purpose and principles of sentencing as set out in

Section 718 of the Code. [ 6 ]

Section 718.01 dealing with offences against children provides that 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 primary consideration to the objectives of denunciation and deterrence of such conduct. [ 7 ] Other relevant sentencing principles are set out in

Section 718.2, which provides that 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. ... (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, ... shall be deemed to be aggravating circumstances. (

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

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; [ 8 ] A Victim Impact Statement has been filed with the court. The repercussions suffered by the victim are significant. She describes having suffered from depression requiring medication. She is currently taking prescription medication for panic attacks and anxiety. She has undergone counselling.

[ 9 ] A Pre-Sentence Report reveals the offender is now 50 years of age, is unmarried, has no children and resides with his mother. He is self-employed in the construction industry and is in good health. Although accepting responsibility for the offence by way of guilty plea, he attempts to minimize his involvement by stating that he should have said no to the victim, given her age. The offender has an unrelated criminal record dating back to 1995. [ 10 ] The crown submits that a sentence of at least three years imprisonment is appropriate.

The defence submits the appropriate range of sentence is two to three years imprisonment. [ 11 ] The mitigating circumstance in this case is that the offender entered a guilty plea, thereby avoiding trial and placing the victim in a position of having to testify. [ 12 ] The crown acknowledges the offender eventually cooperated with police and gave a statement admitting having sexual intercourse with the victim. [ 13 ] The aggravating circumstances are:

(1) The victim was a person under 18 years of age at the time of the offence.

(2) The offender was 49 years of age at the time. The victim was 17.

(3) The offender inserted a drug into the alcohol he provided to the victim that rendered her helpless.

(4) The offence was premeditated.

(5) The offence involves sexual intercourse while the victim was unconscious. [ 14 ] Despite the age difference, I do not believe the offender was in a position of trust, as submitted by the crown. A trust relationship normally results in a relationship of dependency as between the victim and the offender. This incident involved two persons who were strangers to each other prior to the assault. [ 15 ] On the other hand, I disagree with the defence counsel submission that the fact the offender did not ejaculate is significant.

This sexual assault involves sexual intercourse. [ 16 ] Both the crown and defence submitted case authority establishing a range of sentence for similar offences committed with somewhat similar circumstances. [ 17 ] In R. v. E.M.W. , 2011 NSCA 87 , the court addressed ranges of sentences: [28] ...

Sentences range from conditional sentences to federal prison terms of six years. Those at the higher end of the sentencing range havetended to involve intercourse or oral sex. They have included case [sic] where abuse has been ongoing over a period of years. Sexualtouching in various forms generally attract sentences ranging from conditional sentences to two to three years of incarceration. Wherethe touching is over clothing or is a single incident or happens in an unplanned way in the context or [sic “of”] wrestling or horseplay,the sentence is more likely to be toward the lower end of the range.

Where the touching involves masturbation and touching of the penis,the sentence is likely to be toward the higher end of the range. Where the perpetrator has a record of similar offences, the sentences havecertainly tended toward the more severe end of the range. Where the abuser is a person in a position of trust, the sentence has reflectedthat. [29] The statutory maximum term of imprisonment for an offence under s. 271 of the Code is ten years. But that does not mean theeffective “range” for parity purposes in E.M.W.’s sentencing has a ceiling of ten years. In R. v. Cromwell, 2005 NSCA 137 ,[2005] N.S.J.

No. 428 (C.A.), para 26, Justice Bateman discussed the meaning of “the range”: [Counsel] broadly defines the range of sentence, in these circumstances, as all sentences that might be imposed for the crime of impaireddriving causing bodily harm. I disagree. In my opinion the range is not the minimum to maximum possibilities for the offences but isnarrowed by the context of the offence committed and the circumstances of the offender (“...sentences imposed upon similar offendersfor similar offences committed in similar circumstances...” per MacEachern, C.J.B.C. in R v.

Mafi (2000), 2000 BCCA 135 ,142 C.C.C. (3d) 449 (C.A.)). The actual punishment may vary on a continuum taking into account aggravating and mitigating factors,the remedial focus required for the particular offender and the need to protect the public. This variation creates the range. To similar effect R. v. A.N., 2011 NSCA 21, para 34: Unless expressed in the Code, there is no universal range with fixed boundaries for all instances of an offence: R. v. M.(C.A.), para. 92;R. v. McDonnell ( (SCC), [1997] 1 S.C.R. 948), para. 16; R. v. L.M., para. 36.

The range moves sympathetically withthe circumstances, and is proportionate to the Code’s sentencing principles that include fundamentally the offence’s gravity and theoffender’s culpability. [18] I have reviewed the following relevant cases on sentencing: R. v. Marshall, 2008 NSSC 132 , [2008] N.S.J. No. 209;R. v. Field, [2010] Y.J. No. 44; R. v. Laz-Martinez, 2011 ONCJ 115 , [2011] O.J. No. 1190; R. v. Goodlifee, [2005] B.C.J. No.1896 (C.A.); R. v. S.S., 2009 ONCA 353; and R. v. Bonnetrouge, [2009] N.W.T.S.C. 61.

These cases indicate a range of two—threeyears imprisonment. [19] Looking at the nature of the offence and the offender’s degree of culpability, he pre-planned and performed sexualintercourse on the victim while she was drug-induced into a helpless state and then left her to fend for herself. This constitutes a serioussexual assault. [20] Considering all of the circumstances as well as the principles and objectives of sentencing, I am satisfied that three yearsimprisonment is an appropriate sentence in the present case.

Accordingly, I sentence the offender to three years imprisonment in afederal institution. [21] As the offence is a primary designated offence, there shall be a DNA Analysis order pursuant to

Section 485.051 of theCriminal Code. [22] As the sexual assault was

an act of violence, there shall also be a mandatory firearms prohibition order pursuant to

Section 109for a period of 10 years and life, respectively. [23] As well, there shall be a Sex Offender Registration Order for a period of 20 years.