R. v. N.H.S., 2023 MBKB 168

Date: 20231127 Docket: CR 19-02-01949 (Brandon Centre) Indexed as: R. v. N.H.S. Cited as: 2023 MBKB 168 COURT OF KING'S BENCH OF MANITOBA B E T W E E N: ) ) ) Jonathan Mays HIS MAJESTY THE KING, ) for the Crown ) and ) ) Anthony Dawson N.H.S., ) ) for the accused accused. ) ) ) ) Judgment delivered: ) November 27, 2023 RESTRICTION ON PUBLICATION: Pursuant to s. 486.4 of the Criminal Code , any information that could identify the complainant or the accused shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence. LEVEN J.

Summary [ 1 ] The offender was convicted of two counts of sexual assault on one adult victim between July and August 2018. The first count involved one incident of penile penetration. The second count involved five incidents of the offender touching the breasts and vagina of the victim beginning while she was sleeping. [ 2 ] Both counsel submitted that incarceration would be appropriate. The Crown asked for five years for Count 1, plus three years consecutive for Count 2, to be reduced to seven years after a “totality” analysis. Defence asked for three to four years for Count 1, and two years concurrent for Count 2.

[ 3 ] After considering the relevant principles, facts and cases, I sentence the offender to four and a half years for Count 1, and three years concurrent for Count 2. Facts [ 4 ] After a trial, the offender was convicted of two counts of sexual assault. The victim did not recall if the offender wore a condom. [ 5 ] The offender had no criminal record, and had Gladue factors. The Pre-Sentence Report (PSR) described him as an average risk of being charged or convicted of another sexual offence.

The PSR said he would be a viable candidate for a community-based disposition. [ 6 ] He was 26 at the time of the offences. He has a Grade 12 education and a good work history. Since being charged in August 2018, he has complied with all release conditions. He expressed no remorse. [ 7 ] In a victim impact statement (VIS), the victim explained her severe emotional distress, anxiety, depression, panic attacks and difficulty sleeping. Law [ 8 ] The Crown relied on R. v. Y.G.K., MBQB 2022, unreported (“ YGK ”).

In that case, the offender committed sexual assault on one adult victim, including penile penetration without a condom. He had no criminal record. The victim experienced severe negative effects including panic attacks. The offender expressed no remorse. On the contrary, he actually blamed the victim. The Crown asked for five years, and the defence asked for probation. The court imposed a five-year sentence and certain ancillary conditions. [ 9 ] In YGK , the court quoted from R. v. Friesen , 2020 SCC 9 (“ Friesen ”) , and from R. v.

Bunn , 2022 MBCA 34 (“ Bunn ”) . [ 10 ] In Friesen , at paragraph 118 , the court pointed out that “our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened.” [ 11 ] Bunn was a recent decision of Manitoba’s Court of Appeal. The offender had vaginal intercourse with the sleeping victim. The offender was HIV positive. Both parties were intoxicated. The offender had a lengthy criminal record, including violent offences. Several Gladue factors were very relevant. After a trial, the offender was convicted of sexual assault.

The appeal court relied on Friesen . At paragraph 72, the appeal court observed that Friesen should not be limited to cases of sexual offences against children. [ 12 ] In the end, the appeal court showed deference to the sentencing judge and declined to increase the sentence of 28 months. The sentence also included two years of supervised probation. At paragraph 127, the appeal court commented that the sentence was on the low end of the appropriate range. [ 13 ] Bunn , at paragraph 31 , mentioned R. v. Sandercock , 1985 ABCA 218 (“ Sandercock ”) .

In Sandercock , at paragraph 14 , the court expressed its view that the “paramount sentencing factors for a major sexual assault must be deterrence and what has been called denunciation”. At paragraph 17, the court commented that the starting point for a major sexual assault should be a sentence of three years of incarceration for a mature offender with previous good character and no criminal record. Of course, Sandercock is a much older decision. [ 14 ] The Crown relied on R. v. K.N.D.W. , 2020 MBCA 52 (“ KNDW ”) . KNDW considered Friesen .

The offender brutally sexually assaulted the victim in front of her young children, despite her pleas not to continue in front of the crying children. The offender had previously sexually assaulted a young woman. The PSR said the offender was a medium risk to reoffend generally, and an above- average risk for being charged or convicted of another sexual offence. There were Gladue factors. The Crown asked for six years, and the defence asked for less than two years. The appeal court concluded that five years was fit. [ 15 ] The Crown relied on R. v. Peters, 2023 MBKB 13 (“ Peters ”) .

The offender digitally penetrated the victim while she was sleeping. He had a somewhat dated criminal record, including assault cause bodily harm. The PSR said the offender was a medium risk to reoffend generally, and an above-average risk for another sexual offence. The offender was on release at the time of the offence. There was no VIS. The Crown asked for three years, and the defence asked for 14 to 18 months plus probation. The court sentenced the offender to three years, plus 20 days concurrent for a fail to comply offence. [ 16 ] Among the many cases summarized in Peters was R. v.

Jovel, 2018 MBQB 111 (“ Jovel ”) . Many sexual assault sentencing cases characterize the relevant physical acts as “major” or “not major”. In Jovel , a doctor performed vaginal and breast examinations on the victim for sexual purposes. Counsel disagreed about whether the acts in that case were “major” or not. The court concluded that, whether or not the acts were “major”, they were abhorrent. In other words, courts should not be obsessed with whether or not to apply the “major” label to a particular sexual act. The doctor was sentenced to 30 months (2.5 years). [ 17 ] Peters also summarized R. v.

G.S. , 2022 MBCA 35 (“ GS ”) (the companion case to Bunn ) . The offender was sentenced to four years for sexual assault with a weapon (a knife), 18 months concurrent for choking, and 12 months concurrent for uttering threats. The appeal court noted that four years is at the low end of the range for sexual assault with a weapon. [ 18 ] Peters summarized R. v. Derksen , 2022 MBQB 118 . There were multiple sexual acts including oral, anal and vaginal intercourse, and a condom wasn’t used. The offender was 25 at the time and he expressed remorse. The sentence was 42 months (3.5 years). [ 19 ] Peters summarized R. v.

Arcand, 2010 ABCA 363 . This case pre-dated Friesen. The offender was only 18 and had no criminal record. The sentence was two years less a day. [ 20 ] The Crown relied on R. v. Pettitt, 2021 ABQB 773 ( Pettitt ) . The offender sexually assaulted three victims over several years.

The assaults consisted of touching the victims’ vaginas and breasts, and digitally penetrating one of the victim’s vaginas. The offender was a tattoo artist and the victims were his clients. The offender had a significant but dated and unrelated criminal record. The Crown asked for 18 months for one victim, plus three years consecutive for the second victim, plus four years consecutive for the third victim (8.5 years total). The defence asked for 14 to 18 months for the first victim, and nine months concurrent for the second, and nine months concurrent for the third.

As the offender had already spent time in custody, for practical purposes the defence asked for time already served. The court accepted that the offender was truly remorseful. He had prospects of rehabilitation. The court concluded that the sentence should be 12 months, plus 30 months consecutive, plus 36 months consecutive (78 months, or 6.5 years, total). The Criminal Code [ 21 ] Relevant sections of the Criminal Code , R.S.C. 1985, c.

C-46 (the Code ) include: Purpose 718 The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community. … Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [underlining added] Other sentencing principles 718.2 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.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, … 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; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

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 and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. … Degrees of punishment 718.3

(1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence. … Cumulative punishments

(4) The court that sentences an accused shall consider directing (

a) that the term of imprisonment that it imposes be served consecutively to a sentence of imprisonment to which the accused is subject at the time of sentencing; and (

b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively, including when i. the offences do not arise out of the same event or series of events, ii. one of the offences was committed while the accused was on judicial interim release, including pending the determination of an appeal, or iii. one of the offences was committed while the accused was fleeing from a peace officer. Decision [ 22 ] Counsel agreed that certain ancillary orders would be mandatory and/or appropriate.

These are a primary DNA order, a 10-year weapons prohibition (section 109), a 20-year SOIRA order, and an order prohibiting communication with the victim while the offender is in custody. Defence counsel asked that the weapons prohibition include an exception for subsistence hunting (the offender is Indigenous). The Crown took no positon. These ancillary orders, including the subsistence hunting exception, will form part of the sentence.

[ 23 ] As noted, the Crown asked for seven years after a totality reduction. The defence asked for three to four years total. [ 24 ] The proportionality principle is paramount. Denunciation and deterrence are very important. Rehabilitation should not be completely ignored. Gladue factors must be considered. Parity (like cases should be treated alike) is always important. [ 25 ] It is common ground that Friesen changed the sentencing landscape for sexual offences, even those against adult victims.

Pre- Friesen cases can be relevant, but should be used with some caution. [ 26 ] Of the cases cited, the most severe sentences involving a single victim were in KNDW and YGK. In KNDW , from 2020, the offender brutally sexually assaulted the victim in front of her young children. The offender had previously sexually assaulted a young woman. The PSR said the offender was a medium risk to reoffend generally, and an above-average risk for another sexual offence. The sentence was five years. [ 27 ] In YGK , the offender committed a sexual assault on one victim, including penile penetration without a condom.

He had no criminal record. The victim experienced severe negative effects including panic attacks. The offender expressed no remorse. On the contrary, he outrageously blamed the victim. The court imposed a five-year sentence. [ 28 ] By way of comparison, the offender in our case, over the course of a summer, the offender touched the vagina and breasts of the victim on five occasions and penetrated her vagina with his penis on one occasion. She was asleep when each incident began. The offender had no criminal record. The offender was Indigenous, so Gladue must be considered.

The PSR said he was an average risk for sexual offences and a candidate for a community sentence. The VIS made it clear that the victim suffered very serious emotional effects. [ 29 ] Although no two cases are identical, a reasonable comparison of our case with KNDW and with YGK strongly suggests that a sentence of more than five years for our offender would be inappropriately harsh. [ 30 ] I note again that, of the cited cases involving a single victim, KNDW and YGK involved the harshest sentences. [ 31 ] There are no rigid rules about concurrent and consecutive sentences.

Where a more significant offence is tried together with a less significant offence (e.g. fail to comply), the sentence for the less significant offence is sometimes made concurrent (as in Peters ). [ 32 ] Where sexual assaults on multiple victims are tried together (as in Pettitt ), the sentences are often made consecutive. [ 33 ] I also note that, in GS , a Manitoba Court of Appeal decision, the sentences for sexual assault with a weapon, choking and uttering threats were made concurrent. [ 34 ] Taking into consideration both the offender and the offence, our case calls for a sentence that is significant but less severe that the five years imposed in KNDW and YGK. [ 35 ] In conclusion, a sentence of four and a half years (four years and 182 days) for Count 1, and three years concurrent for Count 2 would be fit and proportionate.

This will be combined with the ancillary orders cited above. [ 36 ] I thank counsel for their courtesy. ____________________________ J.