2013 SKCA 54 Date:, 2013 SKCA 54

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 54 Date: 2013-05-15 Between: Docket: CACR2256 Liseo A. Carangan Appellant - and - Her Majesty the Queen Respondent PUBLICATION BAN: An order has been made pursuant to s. 486.4 of the Criminal Code prohibiting publication of any information that could disclose the identity of the complainant. Coram: Cameron, Ottenbreit, and Herauf JJ.A. Counsel: Appellant in person W. Dean Sinclair for the respondent

Appeal: From: QBNJ 25 of 2011, J.C. of Saskatoon Heard: April 4, 2013 Disposition: Dismissed Written Reasons: May 15, 2013 By: The Honourable Mr. Justice Cameron In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Herauf CAMERON J.A. [ 1 ] The appellant pled guilty to a charge of sexual assault with a weapon, contrary to section 272(1) (

a) of the Criminal Code , and was sentenced in consequence to a term of imprisonment of 34 months. He then appealed against the sentence, asking for a reduction of the term of imprisonment on the bases he is a first-time offender, has a wife and child to support, is extremely sorry for what happened, and thought the sexual activity giving rise to the charge was consensual.

He is particularly concerned about the welfare of his child, for he is from the Philippines, the child was born in Canada, and he now faces deportation. [ 2 ] The events that gave rise to the charge occurred in an apartment building in Saskatoon following an evening reception held in celebration of the accused’s recent wedding. He had been drinking, and so had the complainant, who was a co-worker and a guest at the party. As the party was drawing to a close late into the night, the two of them were in the area of the building near the entrance. By then she was said to have been “super hammered”.

She was unable to account for her purse, so the two of them went looking for it. They ended up in the games room for a few minutes. She had no recollection of what had happened before, during, or after their time there. But he recalled that they had engaged in some brief consensual sexual activity shortly before entering the games room and that, in an effort to further pleasure her sexually while they were there, he had inserted a shuffleboard rock into her vagina. But then he was unable to remove it, and there it stayed as they left the games room.

Given her level of intoxication, of course, she was incapable of consenting to this sexual act. [ 3 ] As it happened, she did not realize the rock was in her vagina until the following morning, when she then discovered it, was unable to remove it, and ended up in the hospital, where in consequence of its removal she sustained vaginal injury. Not long afterwards the accused admitted to having inserted the rock and pled guilty to the charge with the assistance of counsel.

In the meantime the complainant suffered from anxiety, experienced difficulty in the workplace, and had eventually to obtain counselling. [ 4 ] The accused’s central concern when he appeared before us was what would happen to his child were he to be deported. He did not want her to experience the deprivation he experienced growing up in the Philippines. His concern for her, as well as for his wife, who has forgiven him for what he did, was unmistakably genuine and profound, as was his sense of remorse.

Everyone, from the probation officer who prepared the pre-sentence report to the sentencing judge recognized this. Indeed the judge said she had never seen an offender display more genuine remorse for the impact of his actions upon others, particularly his family.

That being so, she went on to observe that she was not concerned in the circumstances with the prospect of his reoffending. [ 5 ] In the light of all of this, we undertook to look into his deportation status to see if anything in the way of an adjustment of sentence might serve to positively affect the matter, only to be told that the sentence as such is immaterial. [ 6 ] Despite the personal circumstances of the accused, we can see no tenable basis for interfering with the duration of the sentence.

The Crown acknowledged that the charge—sexual assault with a weapon—was perhaps misconceived and expressed its willingness to amend the charge to one of sexual assault causing bodily harm. We think it would be well to do this and leave it to the Crown, in consultation with the accused, to work out the details. We will make whatever order is appropriate in this regard.

But, even at that, we are unable to reduce the term of imprisonment imposed by the sentencing judge. [ 7 ] The sentence cannot be seen to be inconsistent with the fundamental principle of sentencing, namely that every sentence must reflect the gravity of the crime and the degree of culpability of the offender. Nor can the sentence be seen to be at odds with any of the other

principles of sentencing, including the principle of parity, which calls on the courts when imposing a sentence upon an offender to have regard for sentences imposed on similar offenders for similar crimes committed in similar circumstances. Nor can the sentencing judge be faulted for concluding that, while specific deterrence as an objective was of little or no concern here, achieving the objectives of general deterrence and denunciation were very much of concern. In short, the sentence cannot be seen to have been imposed in error.

Nor is it demonstrably unfit. [ 8 ] In other words there is no tenable basis for interfering with the decision of the sentencing judge. [ 9 ] Subject, then, to the possibility of altering the nature of the charge from one of sexual assault with a weapon to sexual assault causing bodily harm, the appeal will be dismissed. DATED at the City of Regina, in the Province of Saskatchewan, this 15 th day of May, A.D. 2013. “Cameron J.A.” ______________________ Cameron J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Herauf J.A.” Herauf J.A.