R v. J.T.K., 2017 NSSC 345

Supreme Court of Nova Scotia Citation: R v. J.T.K., 2017 NSSC 345 Date: 20170410 Docket: Syd No. 451627 Registry: Sydney Between: Her Majesty the Queen v. J.T.K. Library Heading Judge: The Honourable Justice Patrick J. MurrayHeard: April 10, 2017, in Sydney, Nova ScotiaWritten Decision: April 10, 2017 in Sydney, Nova ScotiaSubject: Sentencing. Joint Recommendation.

Summary: JTK plead guilty to the offence of sexual assault, contrary to

section 271 of the Criminal Code. Crown and Defence submitted a joint recommendation on sentence. Result: Court granted the joint recommendation sought consisting of a 2-year period of incarceration and a 1year period of probation with the conditions agreed upon forming part of the probation order. Inaddition, the Court directed that JTK take advantage of any vocational training available to him and toenroll in any such course while serving his time in a federal institution. [1] Court granted ancillary orders sought as part of the joint submission including the SOIRA order of20 years, a DNA order; and a

section 109 prohibition order of 10 years. Cases cited: R v. M, 2000 BCSC 683; R. v. Lewis, 2013 ONSC 3181; R v. Anthony-Cook, 2016 SCC 43; R v.Gladue, (SCC), [1999] 1 SCR 688. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THEDECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: R v. J.T.K., 2017 NSSC 345 Date: 20170410 Docket: Syd No. 451627 Registry: Sydney Between: Her Majesty the Queen

v. J.T.K. Restriction on Publication:

Section 468.4 Judge: The Honourable Justice Patrick J. Murray Sentencing Decision: April 10, 2017 in Sydney, Nova Scotia Counsel: John MacDonald, for Her Majesty the Queen Tony Mozvik, Q.C., for the Defendant, JTK

Section 486.4 - Order restricting publication — sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(

i) to (iii). Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or (b), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. Child pornography

(3) In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. Limitation

(4) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. By the Court (Orally): [ 2 ] Mr. K is before me charged with the offence of sexual assault, contrary to

section 271 of the Criminal Code . [ 3 ] Sexual assault by its very nature is a violent offence. Mr. K has pled guilty to the offence thereby avoiding the necessity of a trial. He has owned up to the charge against him. [ 4 ] Sentencing is an individual exercise. The Court must consider a number of factors in arriving at a fit and proper sentence. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Deterrence and denunciation are often important factors in cases such as this. [ 5 ] These are not the only factors. Mr.

K is still relatively young at age […], and he has the support of his family and his partner. He has family of his own and is an expecting father. Although he is not working, his pre-sentence report is generally positive. He is hoping to work in the fishing industry. [ 6 ] Mr. K has been in a three year relationship with SP.

In the pre-sentence report she said that he is making positive improvements and could benefit from some type of training. [ 7 ] Sentencing principles mention as one objective the need to provide reparation for harm to victims, and to impose sentences that will contribute to respect for the law and deter others from committing similar offences. In addition, the Court should attempt to impose a sentence that is similar to those imposed for similar offences in similar circumstances. [ 8 ] Mr. K has a prior record. He has a youth record for offences when he was age […] and […] in 2004 and 2005.

Again in 2010, after just turning […], he has further offences. These include a number of breaches and failing to comply with court orders. There were two previous assaults, but no previous charges of sexual assault. I have not received any victim impact statements in this matter, but have been informed that the victim BMN, did express relief upon learning that Mr. K had plead guilty to the offence. [ 9 ] I have considered the circumstances relating to the assault, as described by the Crown, which involved sexual intercourse without consent. I find that Mr.

K has admitted to the essential elements of the offence. [ 10 ] Mr. K is aboriginal. It has been pointed out that these factors are present in this case, even if it’s not readily apparent from the pre-sentence report. Defence counsel and the Crown have stated there are factors referred to therein that would be considered “ Gladue factors”. Mr. K resides at […] First Nation in […], Nova Scotia, with his father. [ 11 ] Among other factors, the serious nature of the offence and Mr. K’s record are significant factors but there are others. Mr.

K’s guilty plea and the support he has from his family are certainly relevant, as is his age in terms of the potential for rehabilitation. An appropriate level of denunciation to express society’s abhorrence for this type of offence is required in my view. [ 12 ] In this case, I have been presented with a joint recommendation from counsel with respect to the sentence that I should impose.

Crown and Defence believe the joint recommendation of two years incarceration, coupled with a period of probation for one year is appropriate and reflects those principles and values I have referred to, including the principles of sentencing under the Criminal Code in

section 718 , 718.2 . [ 13 ] Although I am not bound to accept the joint recommendation, I must give it serious consideration and reject it only if I have cogent reasons for doing so. [ 14 ] I have considered the cases provided to me by the Crown in R v. M , 2000 BCSC 683 and in R. v. Lewis , 2013 ONSC 3181 . Those cases reflect that the range of sentence suggested here is in keeping with the principles of sentencing for these types of offences, certainly in those particular provinces. [ 15 ] In Nova Scotia our Appeal Court has has not adopted a starting point approach.

Rather, the Appeal Court has chosen to remain focused on the principles of sentencing as set out in the Criminal Code and on the Supreme Court of Canada’s guidance. [ 16 ] In the recent Supreme Court of Canada case of R v. Anthony-Cook , 2016 SCC 43 , the court held that the proper test is the public interest test. That is the test in determining whether to accept a joint recommendation.

The court held it is a stringent test that best reflects the many benefits that joint submissions bring to the criminal justice system. [ 17 ] Applying this test, I should only depart from a joint submission on sentence if what is proposed would bring the administration of justice into disrepute or is otherwise contrary to the public interest. [ 18 ] In this case the recommendation is being made by two experienced counsel. As such I believe that it must be given serious weight.

It has been pointed out that there are considerations as between counsel that the Court isn’t necessarily aware, or at least aware of all of them, and those include challenges that the Crown may face in presenting it’s case. In this case the Defence is certainly aware of those and so is Mr. K in entering his plea. [ 19 ] In this case I find the joint recommendation of 2 years of federal imprisonment to be a fit and proper sentence and reasonable in the circumstances because it combines the principles of denunciation and deterrence with rehabilitation.

It could be higher as pointed out but the Court must be able to use its discretion in applying the principles of sentencing that I have referred.

[20] Balancing them in this way, I do not think it would be appropriate for the Court to interfere with what counsel has broughtbefore the Court, on a reasonable basis, with explanations given for the joint recommendation itself. Even though it might be below whatmight be considered a range, there are factors individual to Mr. K, including his circumstances growing up, that the caselaw indicatesthis Court ought to consider, including the case of Gladue. (R v.

Gladue, (SCC), [1999] 1 SCR 688) [21] Applying those factors is measured still given this type offence, but on balance I do not think accepting the submission in thesecircumstances would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. [22] Mr. K still has a chance to turn things around. Societies interest are met in that it provides the opportunity for Mr.

K torehabilitate himself while also reflecting society’s rejection of this type of behaviour with the imposition of a 2 year federal term ofincarceration. [23] In keeping with the joint recommendation therefore, I will impose a 2 year period of incarceration with a 1 year period ofprobation with the conditions agreed upon forming part of the probation order. In addition, the Court would like to see Mr.

K takeadvantage of any vocational training that is available to him so I would direct that he enroll in any such course while serving his time in afederal institution. [24] In terms of the other orders sought, they are part of the joint submission including the SOIRA order of 20 years, the DNAorder; and a

section 109 prohibition order of 10 years. I will impose those orders and sign them when they are presented to me. [25] This concludes my sentencing decision. Murray, J.