R v GGS, 2016 MBCA 109

Citation: R v GGS, 2016 MBCA 109 Date: 20161124 Docket: AR15-30-08497 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN : HER MAJESTY THE QUEEN ) R. N. Malaviya ) for the Appellant ) Appellant ) M. S. Bhangu ) for the Respondent - and - ) ) Appeal heard: G. G. S. ) September 7, 2016 ) ) Judgment delivered: (Accused) Respondent ) November 24, 2016 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code ). CAMERON JA Introduction [ 1 ] After a trial before a judge alone, the accused was convicted and sentenced to a period of two years’ imprisonment to be suspended as well as three years’ supervised probation to be served concurrently for sexual assault (

section 271 of the Criminal Code (the Code )), assault with a weapon (

section 267 (

a) of the Code ) and forcible confinement ( section 279(2) of the Code ). The Crown applies for leave to appeal and, if successful, appeals the sentence. [ 2 ] In my view, the sentence is illegal. Further, the sentencing judge was misinformed as to the nature of the accused’s prior criminal record and his convictions for domestic violence offences against the same complainant. The misinformation led the sentencing judge to conclude that the incident did not occur in the context of an ongoing, abusive, domestic relationship.

This affected her approach to sentencing and the weight that she placed on the rehabilitation of the accused, thereby resulting in an unfit sentence. [ 3 ] In light of the above, I would grant leave and allow the appeal. On the count of sexual assault, I would sentence the accused to 48 months’ imprisonment with credit for 13 and one-half months’ pre-sentence custody, leaving 34 and one-half months to be served on a go-forward basis. With respect to the assault with a weapon count, I would sentence the accused to 12 months’ imprisonment concurrent.

Similarly, I would impose a concurrent sentence of 12 months’ imprisonment for the count of forcible confinement. Facts and Proceedings [ 4 ] At the time of the offences, the complainant and the accused were involved in a common-law relationship. On the day of the incident, the accused became angry when the complainant, who was still recovering from childbirth, refused to have sex with him. He forced her face down on the bed and burned her lower back in two places with a lighter. He restrained her by tying her ankles to a nearby crib in which her newborn son was sleeping.

He pulled down her pants, restrained her hands and forced vaginal and anal intercourse on her. In spite of the complainant telling him that it hurt and to stop, he persisted in his actions for approximately five to ten minutes. After he was finished, he untied the complainant and told her that she was a “good lay”. [ 5 ] At the sentencing hearing, the Crown (not the same counsel as on the appeal) (the trial Crown) asked for five years’

imprisonment for the sexual assault, one year consecutive for the assault with a weapon and one year concurrent for the forcibleconfinement, for a total of six years.

It then asked that the Court give the accused credit for 13 and one-half months of pre-sentencecustody (which reflected a credit of 1.5:1). [6] Counsel for the accused (the same counsel as on the appeal) initially requested that the Court impose a two-yearconditional sentence for the sexual assault, and that the time spent in pre-sentence custody be apportioned between the assault with aweapon and the forcible confinement. [7] The sentencing judge reserved her decision.

However, prior to sentencing the accused, she reconvened the Court todiscuss, among other things, the legality of the sentence requested by counsel for the accused. The sentencing judge confirmed that, ineffect, counsel was asking for a total sentence of three years’ imprisonment less one day (inclusive of the time spent in pre-sentencecustody).

She questioned whether this was available in light of the “law on blended sentences when a conditional sentence is involved”(see R v Fice, 2005 SCC 32, [2005] 1 SCR 742; and subsequent case law). [8] In view of the comments of the sentencing judge and further research conducted by counsel for the accused, herequested that the Court impose a suspended sentence and a period of probation with conditions similar to those imposed whenconditional sentences are ordered. [9] Unfortunately, throughout the sentencing proceedings, the trial Crown mistakenly advised the sentencing judge thatnone of the prior convictions for offences of violence on the accused’s criminal record were related to the complainant.

In fact, theaccused had a dated prior conviction for assault with a weapon relating to this complainant for which he was sentenced to three months’imprisonment followed by two years’ probation (the prior assault).

Further, he was convicted and sentenced to 30 days’ pre-sentencecustody, a one-day court appearance and two years’ supervised probation for an assault he committed on the complainant that post-datedthe charges that are the subject of this appeal, but pre-dated the sentencing on them (the subsequent assault). [10] At the hearing of this appeal, counsel for the accused stated that, while he was aware that the subsequent assault relatedto the same complainant (both he and the trial Crown were counsel on that matter as well), he also mistakenly neglected to draw this tothe attention of the sentencing judge.

He agreed that this Court could take into account that the two above-mentioned convictionsrelated to the same complainant. Decision of the Sentencing Judge [11] In her reasons for decision, the sentencing judge characterized the incident as “a spontaneous act of violence betweentwo people involved in an ongoing intimate relationship”. She said that she was taking into account the delay in the proceedings (albeitshe admitted that she did not have all of the details as to why there was significant delay). She took into account the Gladue factorsrelative to the accused (see R v Gladue, (SCC), [1999] 1 SCR 688).

She noted that, despite the fact that he was nolonger in a relationship with the complainant, the accused continued to share in the parenting of his children. Also, he worked alongside,and was later employed by, his uncle who was an elder in the community. She observed that he had attended an anger managementcourse and was preparing to attend a residential treatment program for alcohol and substance abuse. In short, she found that he hadbecome a productive member of the community.

All of the above led her to place significant weight on the rehabilitation of the accused. [12] In determining that a suspended sentence was an appropriate disposition, the sentencing judge stated that the 13 andone-half months of credit for time spent in pre-sentence custody, as well as restrictions in the probation order that included a punitiveaspect, were sufficient to account for the principles of denunciation and deterrence.

Thus, she stated that she was “suspending a sentenceof two years’ imprisonment” and placing the accused on “a period of supervised probation of three years.” In addition to the mandatoryconditions found in

section 732.1(2) of the Code, she ordered that he complete a residential treatment program for alcohol and substanceabuse. Following that, he was to maintain a curfew for 18 months as well as comply with other conditions such as counselling. Issues and Positions of the Parties [13] The Crown maintains that the sentence imposed was illegal in that, when imposing a suspended sentence, the courtcannot fix a sentence and then suspend it. It further argues that the sentencing judge erred in her assessment of the mitigating andaggravating factors.

Specifically, the Crown states that the sentencing judge put too much emphasis on the delay in the proceedings andthe rehabilitative steps taken by the accused. Finally, the Crown argues that the sentence imposed was unfit. [14] Counsel for the accused contends that the sentencing judge merely misspoke when she imposed a fixed sentence ofimprisonment. He argues that, even if fixing the sentence before suspending it was illegal, a suspended sentence was still an availableoption.

He contends that, in imposing such a sentence, the trial judge considered all of the relevant principles of sentencing and herdecision is entitled to deference. In support of his position, he relies on the cases of R v Henderson (JA), 2012 MBCA 9, 275 ManR (2d)168; and R v Peters (RN), 2015 MBCA 119, 323 ManR (2d) 237, wherein this Court upheld suspended sentences in situations that wouldnormally call for terms of imprisonment where unusual circumstances existed.

Analysis Legality of the Sentence [15] The legality of a sentence is a question of law to be reviewed on the standard of correctness. [16] Section 731(1) of the Code provides: Making of probation order

(1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the natureof the offence and the circumstances surrounding its commission, (

a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on theconditions prescribed in a probation order; or (

b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender complywith the conditions prescribed in a probation order. [emphasis added] [17]

Section 732.2(2)(

b) of the Code provides: 732.2(2)(

b) no probation order shall continue in force for more than three years after the date on which the order came into force. [18] Clayton C Ruby, Gerald J Chan & Nader R Hasan, in Sentencing, 8th ed (Markham: LexisNexis Canada, 2012),explain a suspended sentence as follows (at para 10.3): Canadian criminal courts suspend not the sentence itself but its passing. Therefore, a court cannot set a fixed term and thereafter suspendit, as the English statute and practice permits.

Indeed, a court should not even mention any fixed term of proposed imprisonment, for todo so might place the court in the position of binding itself should the offender subsequently be brought before that court for sentence.

Also see R v Switzki (1930), (SK CA), 54 CCC 332 (Sask CA); R v Blain (1950), (SK CA), 99 CCC152 (Sask CA); R v Tippett, Ex p Morris (1955), (NB CA), 112 CCC 47 (NBSC (AD)); R v Giffen (1959), (ON CA), 125 CCC 113 (Ont CA); Regina v Sangster (1973), (QC CA), 21 CRNS 339 (Qc CA); and R v Tuckey(1977), (ON CA), 34 CCC (2d) 572 (Ont CA). [19] Contrary to the accused’s position that the sentencing judge merely misspoke, a review of the exchanges betweencounsel and the sentencing judge reveals that she clearly intended to impose a sentence of two years’ imprisonment and then order itssuspension.

Thus, the sentence is illegal. Pursuant to section 731(1) of the Code, supervised probation can be ordered to follow a periodof imprisonment for a term not exceeding two years. A suspended sentence with release on the conditions prescribed in a probationorder is also provided for in section 731(1). In either case, the maximum period of probation is three years. However, in my view, forthe reasons that follow, neither of the above options would have been fit. [20] Aside from the issue of legality, the sentence imposed in this case also resulted from an error in principle and is unfit.

Fitness of Sentence Standard of Review [21] The standard of review on a sentence appeal is that, absent an error in principle or a demonstrably unfit sentence, theappeal court is to review on the standard of deference. An error in principle includes failing to consider a relevant factor, taking intoaccount an irrelevant factor, failing to give sufficient weight to a relevant factor or overemphasizing an appropriate factor.

See R vLacasse, 2015 SCC 64 at para 41, [2015] 3 SCR 1089. [22] In Lacasse, Wagner J, writing for a majority of the Supreme Court of Canada, held that, where an error in principle hasbeen made by the sentencing judge, appellate intervention will be justified “only where it appears from the trial judge’s decision thatsuch an error had an impact on the sentence” (at para 44). Appellate intervention is therefore limited to cases of material error. [23] A demonstrably unfit sentence is one that falls outside the acceptable range of sentences imposed under similarcircumstances.

See R v M (CA), (SCC), [1996] 1 SCR 500; R v Ruizfuentes (HS), 2010 MBCA 90 at para 7, 258 ManR(2d) 220; and R v Gabriel (QJ), 2013 MBCA 45 at para 17, 291 ManR (2d) 291. [24] However in Lacasse, Wagner J noted (at para 11): The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention. Ultimately, except wherea sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary thesentence unless it is demonstrably unfit.

[25] He further stated (at para 52): It is possible for a sentence to be demonstrably unfit even if the judge has made no error in imposing it. As Laskin J.A. mentioned,writing for the Ontario Court of Appeal, the courts have used a variety of expressions to describe a sentence that is “demonstrably unfit”:“clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a “substantial and markeddeparture” (R. v.

Rezaie (1996), (ON CA), 31 O.R. (3d) 713 (C.A.), at p. 720). [26] Thus, only substantial disparity between sentences for similar offenders committing similar offences can justifyappellate intervention (R v Reader (M), 2008 MBCA 42 at para 13, 225 ManR (2d) 118). The Error in Principle Affected the Sentence [27] As I earlier stated, the sentencing judge was misinformed about the prior offences of domestic violence that the accusedhad committed against the complainant. [28] Indeed, the transcript of proceedings confirms that the history of involvement between the parties was important to thesentencing judge.

On four occasions during the submissions of counsel, she either asked questions or made comment concerning hislack of prior convictions for violence-related offences involving the complainant, stating that “it is of some moment to me”. [29] When sentencing the accused, she distinguished the cases relied on by the Crown on the basis that those cases involvedmore serious acts of violence or ongoing abusive relationships.

She characterized this incident as a “spontaneous act of violence”,stating, “There was no evidence before me, however, that this was a part of a cycle or pattern of violence on the part of the accused.” [30] As I said, the convictions of the accused for prior offences of domestic violence against the complainant both pre-datedand post-dated this incident.

Thus, it is apparent that this misunderstanding affected the sentencing judge’s appreciation of thecircumstances of the predicate offences, the moral blameworthiness of the accused and his ability to be rehabilitated. [31] However, while it is clear that the error affected the sentence imposed, it is also important to consider whether thesentence is one that is unfit. Thus, it becomes necessary to examine sentencing ranges for the offences in question. Sentencing Range for Sexual Assault [32] The sexual assault committed in this case is a major sexual assault as defined in R v Sandercock, 1985 ABCA 218, 62AR 382.

That case provides a starting point of three years’ incarceration as a guideline for a major sexual assault upon an adult victim. This presumes a mature accused with no criminal record and prior good character.

Also see R v Borkowsky (H), 2008 MBCA 2, 225ManR (2d) 127; R v L (JC), 2009 MBCA 52; R v JMF, 2009 MBCA 109, 251 ManR (2d) 3; R v Geary (R), 2010 MBCA 33, 251 ManR(2d) 258; and R v Cook (N), 2014 MBCA 29 at para 38, 303 ManR (2d) 235. [33] In Ontario, in R v JES, 2011 ONCA 564, 283 OAC 18, the Court imposed a sentence of two years’ imprisonment on theaccused for one count of sexual assault on his former wife. In that case, after the complainant visited the accused’s residence at hisrequest, he refused to allow her to leave unless she had sexual intercourse with him.

When her protests were unsuccessful, she ultimatelycomplied with his demand. At the time of conviction, the accused did not have a record for violence-related offences. At the time ofsentencing, the incident dated back approximately 22 years. [34] In reaching its decision in JES, the Court relied on three cases of sexual assault involving forced intercourse with aspouse or former spouse, stating that sentences for such offences generally ranged from 21 months’ to four years’ imprisonment.

See R vBSR (2006), (ON CA), 215 OAC 14; R v DJ, 2010 ONSC 3910 (QL); R v BM, 2008 ONCA 645 ; R vNolan, 2009 ONCA 727 ; and R v NT, 2011 ONCA 114 . In most of these cases, the accused was a first time offender. [35] In R v BS, 2013 ONCA 579, 311 OAC 70, the accused was convicted of threatening death, assault, sexual assault andbreach of probation regarding a woman with whom he previously had an intimate relationship.

The Court held that, in light of the factthat the accused had a prior record for domestic violence offences related to the same complainant, a total period of five years’incarceration would be appropriate.

However, in light of the rehabilitative efforts made by the accused, including that he haddiscontinued his use of drugs, substantially reduced his alcohol consumption and had developed a plan to remove himself from anycontact with the complainant by obtaining employment in another city, the Court imposed a total sentence of three years, eight and one-half months’ incarceration. [36] In R v JJW, 2012 NSCA 96, 321 NSR (2d) 298, the Nova Scotia Court of Appeal overturned a sentence of five months’imprisonment where the accused forced anal intercourse on his wife.

At some point after the sexual assault, he also assaulted her. Infinding the sentence to be demonstrably unfit, the Court examined ranges of sentences for sexual assaults involving spouses or formerspouses.

After conducting a review of approximately eight cases (including this Court’s decision in R v Cook (CJ) (1994), (MB CA), 92 ManR (2d) 231 (CA), which I later discuss), it concluded that the lowest sentence imposed in those cases was twoyears less a day. [37] It also canvassed other jurisdictions, noting that the starting point approach for a major sexual assault enunciated inSandercock had been followed in Saskatchewan. See also R v Iron (LJ), 2005 SKCA 84 at para 12, 269 SaskR 51.

The Court observedthat the range of sentencing for serious sexual assault with intercourse in Newfoundland was found to be three to five years. See also R vVokey (HA), 2000 NFCA 14, 186 Nfld & PEIR 1; and R v Freake (J), 2012 NLCA 10, 318 Nfld & PEIR 305. While it declined to

endorse a starting point approach to sentencing, it agreed with the Crown that the appropriate sentence would have been two and one-half years’ incarceration. However, based on the circumstances of the accused, and the fact that he had already served his sentence, itdeclined to reincarcerate him. [38] In Manitoba, in Cook (CJ), Scott CJM dismissed the accused’s appeal of a sentence of four years’ imprisonment forsexually assaulting his common-law wife. The assault was described as horrific and degrading. The incident involved forced oral andanal intercourse, and a knife was “featured” in the assault (at para 1).

There is no mention of whether the accused had a criminal record. The mitigating factors included an early guilty plea, remorse, abstention from alcohol consumption and participation in counselling. [39] In R v AJB, 2007 MBCA 95, 220 ManR (2d) 8, the accused choked his common-law wife, forced her to perform oralsex on him, threatened her and forced anal intercourse on her while he digitally penetrated her. Two of her children walked into theroom on two occasions during the assault and the accused told them to leave. The complainant was seven and one-half months pregnantat the time of the incident.

Fortunately, she was not rendered unconscious and did not suffer any lasting physical injuries. A review ofthe decision of the sentencing judge shows that the accused had two prior convictions for assaulting the complainant and one forassaulting her father (see [2006] MJ No 518 (QL) (Prov Ct)). The accused was on probation at the time of the incident and had failed totake domestic violence counselling as directed by his probation officer. He was sentenced to 52 months’ incarceration in addition to 20months of pre-sentence custody.

This Court dismissed the accused’s sentence appeal, rejecting his argument that such a sentence (whicheffectively amounted to six years’ imprisonment) was unfit. [40] In R v Moise (KK), 2015 MBQB 37, 316 ManR (2d) 120, the accused was convicted after trial of a number of domesticviolence offences that occurred over a period of several months against the complainant, with whom he was in an “on again off again”relationship (at para 2). The offences included uttering threats, pointing a firearm, assault causing bodily harm and culminated in asexual assault.

The sexual assault offence started as consensual sex but turned into something unwanted. When the accused refused tostop, contrary to the complainant’s wishes, she grabbed him by his testicles. He responded by punching her multiple times causing ablack eye and bruising. The accused had a significant prior record and poor compliance with probation orders. On the other hand, theaccused was a young Aboriginal male to whom numerous Gladue factors were applicable. He took steps while in custody to change hislife.

He was sentenced to four years’ imprisonment for the sexual assault. [41] I have chosen the above cases involving domestic sexual assaults in an effort to find similar fact situations and similaroffenders. In choosing such cases, I do not intend to suggest that violent assaultive behaviour that occurs in the context of a domesticrelationship (regardless of whether the victim chooses to continue in the relationship or not) should be treated any less seriously thanviolent assaults perpetrated by acquaintances or strangers.

See Cook (CJ) at para 2; and Hoegg JA, dissenting in part, in R v Squires(PJ), 2012 NLCA 20 at paras 104-121, 320 Nfld & PEIR 39. [42] In my view, a fit sentence will be arrived at by taking into consideration the starting point for a major sexual assault inlight of relevant aggravating or mitigating factors in a given case. Where, as is the case here, considerable violence is used in thecommission of a sexual assault in a domestic relationship, where violence has occurred in the past, a significant sentence will be calledfor.

Sentencing Range for Domestic Violence Assaults [43] In R v Francisco (EN), 2005 MBCA 110, 201 ManR (2d) 30, Hamilton JA observed (at para 22): Cases demonstrate varied sentences for domestic violence, ranging from suspended sentences to incarceration. This is so because aspecific sentence must be crafted for the specific circumstances of the offence and the specific offender. For a small sampling, see R. v.Pashe, [2002] M.J. No. 231 (Prov. Ct.) (two-year suspended sentence for first offence); R. v.

Brown (P.G.) (2004), 2004 NSCA 51, 222 N.S.R. (2d) 393; 701 A.P.R. 393; 2004 NSCA 51 (upheld consecutive conditional sentences of eight months and tenmonths followed by 18 months’ supervised probation); R. v. Helstrom (R.L.), [1999] Man.R. (2d) Uned. 25; [1999] M.J. No. 122(C.A.) (on appeal imposed six-month conditional sentence); R. v. Brown (B.J.) (2000), 2000 NSCA 147 , 190 N.S.R. (2d) 116;594 A.P.R. 116; 151 C.C.C. (3d) 85; 2000 NSCA 147 (upheld 15-month sentence for offender on parole for prior assault); R. v.

Belluk(1991), (MB CA), 71 Man.R. (2d) 238 (C.A.) (upheld nine-month sentence for first offender). [44] In JES, Epstein JA wrote (at para 86): The jurisprudence of this court suggests that a sentence of one to two years will generally be appropriate for a conviction for commonassault based on facts such as those comprising count ten, committed against a spouse or domestic partner in the context of a lengthypattern of domestic abuse: see R. v. Petrovic (1984), (ON CA), 47 O.R. (2d) 97 (C.A.), R. v. Inwood (1989), (ON CA), 32 O.A.C. 287 (C.A.), R. v. R.(B.S.) (2006), (ON CA), 81 O.R. (3d) 641 (C.A.), R. v.

Sidhu,2011 ONCA 139, R. v. States (2006), (ON CA), 214 O.A.C. 106 (C.A.). [45] The maximum punishment for the offence of assault with a weapon is 10 years’ imprisonment. When sentencing forthe offence of assault with a weapon, the sentence will vary depending on the nature of the weapon and the injuries inflicted. Sentencing Range for Unlawful Confinement [46] The maximum sentence for forcible confinement is 10 years’ imprisonment. The definition of forcible confinement is

such that it “will capture a variety of situations of restraint of a victim, some more serious than others” (Cook (

N) at para 64). [47] A few recent cases involving forcible confinement committed during the course of a sexual assault are: R v JWB, 2014SKCA 36, 433 SaskR 300 (six months’ imprisonment); R v CBK, 2015 NSSC 62, 356 NSR (2d) 190 (one year); R v BDN, 2016 ONSC1740 (12 months); and R v MH, 2016 BCCA 230, 387 BCAC 255 (three years). Conclusion [48] Based on the above, in consideration of the circumstances of the offences and the circumstances of this offender, thesentence imposed by the sentencing judge was unfit.

Allowing the accused credit for 13 and one-half months’ pre-sentence custody, theimposition of a suspended sentence for the sexual assault offence in combination with the offences of assault with a weapon and forcibleconfinement demonstrates substantial disparity between sentences for similar offenders committing similar offences. The sentence beingunfit, deference need not be shown, thereby leaving this Court free to impose an appropriate sentence. Sentence [49] The facts in this case call for the accused to be sentenced for multiple offences arising from one ongoing incident.

Aswas noted by Mainella JA in Cook (N) (at para 27): Sentencing an offender for separate serious offences in one inter-related incident, such as this case, is a difficult challenge. The sentenceimposed must be proportionate taking into account the moral blameworthiness of the offender, the gravity of the offence(

s) and society’scensure for the criminal conduct and the harm caused (R. v. Nasogaluak (L.M.), 2010 SCC 6 , [2010] 1 S.C.R. 206; 398 N.R.107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, at para. 42). [50] In situations such as this, where the offences are sufficiently interrelated and occur during the same general incident,concurrent sentences are commonly imposed. See R v Munilla and Santorelli (1986), (MB CA), 38 ManR (2d) 79 atpara 3 (CA); and R v Traverse (

L) et al, 2008 MBCA 110 at para 47, 231 ManR (2d) 123, quoted with approval in R v Wozny (CP), 2010MBCA 115 at para 12, 262 ManR (2d) 75. [51] Where a judge determines that it is proper to impose concurrent sentences, a higher sentence can be imposed to reflectthe fact that a number of separate serious offences were committed together. See Cook (

N) at para 35, citing R v Maroti (M), 2010MBCA 54 at para 28, 255 ManR (2d) 115; R v Duerksen (JA), 2012 MBCA 41 at para 5, 280 ManR (2d) 84; R v Taylor (MA), 2010MBCA 103 at paras 12-13, 262 ManR (2d) 43; R v GWR, 2011 MBCA 62, 268 ManR (2d) 204; and Wozny at para 70. [52] Indeed, failure to take into account the fact that multiple offences were committed can lead to an error in principle(Duerksen at para 5). [53] In my view, this is an appropriate case for the imposition of concurrent sentences. The most serious offence committedby the accused was the sexual assault.

Thus, in determining the sentence for the sexual assault, I would take into account the offences ofassault with a weapon and forcible confinement. [54] In R v Wishlow (AC), 2013 MBCA 34, 291 ManR (2d) 149, Steel JA stated that, “Domestic violence is a seriousproblem in our society and the paramount sentencing principle for assaults of this nature should be deterrence and denunciation” (at para6). [55]

Section 718.2(a)(ii) of the Code deems the abuse of spouses or common-law partners to be aggravating circumstances. [56] The circumstances of the sexual assault involved vaginal and anal penetration. Prior to the assault, the accused burnedthe complainant. The sentencing judge accepted that the burns caused pain and scarring. The complainant was forcibly confined in amanner that prevented resistance. She was tied to the crib where her child was sleeping, thereby also placing the child at risk. Theoffence was committed during the course of an ongoing abusive relationship.

In my view, these circumstances would call for a sentenceof six years’ incarceration. [57] I disagree with defence counsel’s submission that the circumstances of the accused, the Gladue factors, the delay inthese proceedings and the resultant rehabilitative steps taken by the accused in this case constitute unusual circumstances, as found inHenderson and Peters, that would justify a suspended sentence.

On the other hand, the circumstances of the accused do temper whatwould have otherwise been a lengthier sentence. [58] The sentencing judge found that, during the time he was on judicial interim release for these offences, the accused madesome effort toward rehabilitation. I would note that this effort was only made after he had been required to take counselling pursuant tothe probation order that he was subject to as a result of the subsequent assault. He also quit drinking and abusing substances.

Morerecently, as a result of the suspended sentence that he was placed on for these matters, the accused attended a residential treatmentprogram for alcohol and substance abuse, he has continued counselling and continues to work and be a productive member of hiscommunity. Since the time of his sentence, he has complied with a strict curfew.

He has not breached any of the other conditions of theprobation order, nor has he been charged with any other offences. [59] While he does not benefit from the mitigating consideration of having entered a guilty plea, he did express remorsewhen he said that he did not recall attacking the complainant, but that he was sorry for the harm he caused her. [60] Consideration must also be had for the Gladue factors present in this case. The accused attended a residential school

from the ages of six to 15, where he was subject to physical, verbal and sexual abuse. During his childhood, both of his parents were addicted to alcohol. He has lost his parents and several siblings, and suffers the resultant grief for which he has obtained counselling. On the other hand, courts have repeatedly stated that the more serious a criminal offence, the less likely the sentence will be different for Aboriginals and non-Aboriginals.

See R v RCH , 2013 MBCA 108 at paras 64-65 , 303 ManR (2d) 39 . [ 61 ] The mitigating factors must be balanced by the fact that the accused’s previous record for violence, including violence against this complainant, disentitles him to leniency. [ 62 ] Considering all of the above, for the offence of sexual assault I would impose a sentence of 48 months’ imprisonment with credit for 13 and one-half months of pre-sentence custody and 12 months’ imprisonment concurrent on each of the charges of assault with a weapon and forcible confinement.

Reincarceration [ 63 ] The accused asked that, should this Court determine that a further period of imprisonment be appropriate, the remaining custodial portion of the sentence be stayed. [ 64 ] In R v Veysey (JM) , 2006 NBCA 55 , 303 NBR (2d) 290 , Larlee and Robertson JJA in joint reasons for the Court analyzed the jurisprudence regarding the issue of reincarceration. They concluded (at para 32): We find nothing inherently harsh or oppressive in jailing a person who has served a sentence that was demonstrably unfit.

The fact that the original sentence has been fully served does not, by itself, warrant special consideration. At the same time, we are left with the Supreme Court’s caution that to require an accused to serve a fit sentence after having completed an unfit one may lead to an injustice. Thus, one must be prepared to recognize that in certain instances reincarceration could work an injustice. The difficult task is to identify the circumstances in which reincarceration would work such a result. In short: What constitutes special circumstances?

Having regard to the jurisprudence discussed above, we have isolated four factors that one could reasonably consider relevant to the issue of whether a stay should be granted. This is not to suggest that the list is exhaustive. Other pertinent factors may exist.

However, for purposes of deciding this appeal, we are content to examine the following: (1) the seriousness of the offences for which the offender was convicted; (2) the elapsed time since the offender gained his or her freedom and the date the appellate court hears and decides the sentence appeal; (3) whether any delay is attributable to one of the parties; and (4) the impact of reincarceration on the rehabilitation of the offender. [ 65 ] In that case, the Court refused to stay the remaining custodial portion of the sentence of 18 months’ imprisonment despite the fact that the accused had already served the 7-month sentence that had been originally imposed. [ 66 ] In R v McMillan (BW) , 2016 MBCA 12 at para 36 , 326 ManR (2d) 56 , Chartier CJM adopted the

summary of non- exhaustive factors listed in Veysey that are to be considered when determining whether an offender should be reincarcerated. [ 67 ] In this case, significant time has elapsed since the offence was committed (approximately 10 years, due, in part, to delay in reporting the offences). At the hearing of this appeal, the accused agreed that responsibility for the delay in the Court of Queen’s Bench sentencing and in this appeal was a neutral factor.

The accused has made measurable progress in his rehabilitation while he has been out of custody. [ 68 ] However, the circumstances of the offence are very serious, involve domestic violence and can only be described as demeaning and degrading. The accused has not yet finished serving his sentence, including the curfew of 18 months. [ 69 ] In JJW , Oland JA reviewed cases where reincarceration was ordered when required in the interests of justice. For example, in R v Escott (1985), 10 OAC 89 , the accused was originally sentenced to 90 days’ intermittent for one count of aggravated assault.

After a night of drinking, he choked a sex trade worker until she lost consciousness and left her on the road with a belt tied around her neck. The accused was 29 years of age at the time of the offence and had no prior record. He had rehabilitated himself by going to university and becoming employed during the intervening year. He also abstained from the consumption of alcohol, which appeared to “underlie the commission of the offence” (at para 9).

The Court reincarcerated the accused, noting (at para 13): An appellate court is always reluctant to re-incarcerate an accused after he has served the sentence imposed by the trial judge and will only do so where the sentence is so inadequate that the interests of justice require the court’s intervention. [ 70 ] Oland JA also summarized the case of R v DGF , 2010 ONCA 27 , 259 OAC 364 , wherein the Court determined that an effective sentence of four years’ imprisonment was unfit for a number of significant sexual offences involving children. The Court varied the sentence to one of seven years.

Writing for the Court, Feldman JA refused a request to stay the remaining custodial portion on the basis that the original sentence was so inadequate that the interests of justice required intervention (see para 34). Also see R v Leo- Mensah (P) , 2010 ONCA 139 , 259 OAC 196 , leave to appeal to SCC refused, [2010] SCCA No 170 (QL); and R v Birchall (RD) , 2001 BCCA 356 , 155 BCAC 273 . [ 71 ] In the recent case of R v HE , 2015 ONCA 531 , 336 OAC 363 , Benotto JA reincarcerated an offender who sexually assaulted his wife, stating (at para 56):

In determining whether to recincarcerate an offender as a result of an increased sentence, courts have considered a number of factors. Those factors lose their significance when the original sentence imposed utterly failed to reflect the principles of denunciation and deterrence and the applicable precedents. This was not a sentence that was slightly outside of the appropriate range. It was far outside the range. On this basis alone, a stay is inappropriate.

A consideration of the other factors confirms this result. [ 72 ] As I said, the sentencing judge was misinformed of the accused’s prior domestic violence convictions involving this complainant. This significantly affected her approach to sentencing. The sentence imposed in this case was illegal and based on an error in principle, which resulted in it being demonstrably unfit.

Despite the intervening time and the rehabilitative steps taken, the circumstances of the offence and the nature of the original sentence imposed lead me to conclude that the request for a stay should be dismissed on the basis that the interests of justice require the Court’s intervention. I note that the sentence that I would impose has already been reduced to account for the rehabilitation of the accused and the fact that he has already served time in custody and has served some of his suspended sentence.

Decision [ 73 ] For all of the above reasons, I would grant leave to appeal, allow the appeal and impose the following sentence: • Sexual assault—48 months’ imprisonment minus 13 and one-half months’ pre-sentence custody, leaving 34 and one-half months to be served; • Assault with a weapon—12 months’ imprisonment concurrent; • Forcible confinement—12 months’ imprisonment concurrent. JA I agree: JA I agree: JA