R. v. Thompson, 2012 NSSC 263

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Thompson , 2012 NSSC 263 Date: 20120622 Docket: CRH No. 350857 Registry: Halifax Between: Her Majesty the Queen v. Blaine Albert Jr. Thompson aka Downey Restriction on publication:

Section 486.4 C.C.C. (Sexual Assault) Judge: The Honourable Justice M. Heather Robertson Heard: June 22, 2012, in Halifax, Nova Scotia Decision: June 22, 2012 (SENTENCING) Written Release of Decision: July 17, 2012 Counsel: Alicia Kennedy, for the Crown Gordon W. Blackmore, for the Defence Robertson, J. : (Orally) [ 1 ] This is the sentencing of Blaine Thompson who has been found guilty of sexual assault pursuant to s. 271 of the Criminal Code of Canada in a trial by judge and jury.

[ 2 ] The facts of the case were clearly articulated in the Crown brief, which set out the facts upon which a jury made a verdict of guilty. They are as follows: The sexual assault occurred in the early morning hours of Christmas Day on December 25, 2009. Ms. S. left her home to walk the short distance to her friends’ home so that she would not be alone for the holidays. It was a walk she had taken many times before, and usually took about 10 minutes. As she reached Albro Lake Road, she was approached by the accused, who was a complete stranger to her.

He asked her a series of questions and she pieced together that they had a mutual acquaintance. He asked her to come and speak with him further but she declined. He said that he had been drinking all day. He then crossed the street to where she was standing, grabbed her by the upper arms, and pulled her back in behind a shed close to the Medical Centre. Ms. S.s’ back was against the wall of the building and the accused was standing in front of her, preventing her from leaving. He began to forcefully undo her pants. She tried to do them back up. He continued.

He put his hands down her pants, placing them under her underwear and touching the outside of her vagina. She told him to stop, that it hurt. She kept trying to pull her pants back up. The accused had his penis hanging out of his pants throughout. When he turned to look at a light that had come on in a nearby building, Ms. S. got away and went across the road to her friend’s apartment building. The accused followed her. As she was entering the main door of the building, he caught the door and trailed her inside. She yelled at the accused that they were not doing anything.

He went past her and blocked her from proceeding up the stairs. Ms. S. took out her cell phone to call for help. The accused took the phone from her and told her she wasn’t making any calls. He pushed her over a railing and against a wall. He again tried to remove her pants. She struggled to pull her pants up. She asked him, “Why are you doing this, I already told you no?” She was scared and thought that because she couldn’t stop him, she had to give in or else she would get hurt. She could feel his elbow pinned to her back and her hands were pinned between the railing and the wall.

He removed her pants and penetrated her vagina with his penis. He did not use a condom and did no ejaculate. Ms. S. suffered physical injuries as a result of the sexual assault. She had bruising to the top of her vagina, bruising on the inside of both legs, and petechia on her cervix. [ 3 ] The position of the Crown today is that there should be incarceration in a federal penitentiary for a range of 3 to 4 years, as well as the relevant SOIRA Order, the DNA Order and a s. 109 Prohibition Order. [ 4 ] We have heard Mr.

Blackmore, defence counsel ’ s position that the disposition should involve a 6 month custodial sentence, with 3 years of probation and proposed terms respecting curfews and directions to a probation officer. [ 5 ] In crafting a sentence, my first duty is to consider the principles and purposes of sentencing which are set out in s. 718 of the Criminal Code , s. 718.1 and 718.2 . 718.

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 acknowledgement of the harm done to victims and to the community. And a fundamental principle of sentencing is described in s. 718.1 when it says: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [6] In sentencing involving sexual offences, the Supreme Court of Canada gives us guidance in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, particularly at paragraphs 39 and 40: [39] . . .

The objectives and principles of sentencing were recently codified in ss. 718 to 718.2 of the Criminal Code to bring greaterconsistency and clarity to sentencing decisions. Judges are now directed in s. 718 to consider the fundamental purpose of sentencing asthat of contributing, along with crime prevention measures, to “respect for the law and the maintenance of a just, peaceful and safesociety”.

This purpose is met by the imposition of “just sanctions” that reflect the usual array of sentencing objectives, as set out in thesame provision: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation, and a recent addition:the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community. [40] The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be “proportionate to the gravity ofthe offence and the degree of responsibility of the offender”.

Thus, whatever weight a judge may wish to accord to the objectives listedabove, the resulting sentence must respect the fundamental principle of proportionality.

Section 718.2 provides a non-exhaustive list ofsecondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity andtotality, and the instruction to consider “all available sanctions other than imprisonment that are reasonable in the circumstances”, withparticular attention paid to the circumstances of aboriginal offenders. [7] Counsel has also provided me with citations of cases that they rely on. The gravity of the offence is really the significantissue before me.

Defence counsel have characterized the offence as being on the low end and have provided some case law: R. v. R.H., (NL SCTD) – repeated sexual assaults of a 14 year old who had befriended the accused’s daughter. There was a 9month sentence to be served in the community under strict conditions and 3 years probation; R. v. R.W.B. 2000 NFCA 13 – 18month jail sentence was upheld in a situation where there was fondling and sexual intercourse; R. v. Cromien, (ONCA) – a term of 12 months in jail imposed involving touching, masturbation, anal penetration and oral sex; R. v.

Farrell (1988), (NS CA), 89 N.S.R. (2d) 91 (NSCA) – a 90 day sentence in circumstances where a 36 year old sexually assaulted two 15year old stepdaughters on a number of occasions by indecently fondling them; R. v. M.K., (ON CA) – a forced sexualintercourse on a vulnerable 17 year old victim, in which a two year sentence was imposed. [8] The Crown, however, urges the court to consider this to be an offence which is really on the greater end of the continuum anda more serious sexual assault with violence. The Crown relies on the case R. v. White, [1989] N.S.J.

No. 32 (C.A.) one of the more highend cases where the Court overturned an initial sentence in R. v. White and increased the sentence from 3 years to 5 years, incircumstances where the victim was walking home from work and was attacked and dragged into a secluded area and raped. They alsorefer to the case of R. v. P.W. B., [1991] N.S.J. No. 276 (C.A.). The Court of Appeal upheld an 8 year sentence where a woman wasraped who had met her assailant for the first time.

I note that knives were used in both of those offences and they are on the higher endof the scale. [9] I am also required to give consideration to mitigating or aggravating factors. I have read the pre-sentence report and I cannotsay that it is filled with mitigating factors. I note some good points. I agree, Mr. Blackmore, it is important to look at the whole man andlook at his life and see what it amounts to and to consider what his future might be, because one has to consider rehabilitation.

I wouldnot say it is mitigating however that his family and friends would support him and think that this was conduct out of character. I do notethat it is a positive thing that he is gainfully employed and it is a positive thing that he is in a relationship. I note that he has 24 childrenin all and has a positive relationship with some of them, particularly the girls. I also noted that he has a criminal record. It is notextensive. There are no past sexual offences, however, there is a previous offence involving a domestic assault.

While there are notmany mitigating factors, I have looked at him as a whole and realized he is gainfully employed and as a 47 year old man he wishes tosupport his family in the future.

[ 10 ] However, it is my duty to consider the gravity of the offence and consider the victim. I have read the victim impact statement. I have heard the victim again today speaking to the harm that was done to her and in my view the gravity of the offence is on a more severe end of the scale, particularly because Mr. Thompson was a stranger to the victim. He pursued the victim and he deprived her of her liberty while he committed the assault.

He did do harm as we have heard and it continues to be a persistent and continuing harm to the victim. [ 11 ] Accordingly, having considered all of the range of cases before me and these sentencing principles, I sentence Mr. Thompson to 3 years in a federal penitentiary with credit to be given for the approximately 135 days he has now spent in incarceration. I will also sign the requested orders, the SOIRA Order, DNA and

Section 109 Orders. Justice M. Heather Robertson