Supreme Court

R.v.Casaway, 2002 NWTSC 42
Date: 20020604
Docket: S-1-CR-2001/094

IN THE SUPREME COURT OF THE NORTHWEST TEPRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- v -


ALBERT CASAWAY


Transcript of the Oral Reasons for Sentence of The Honourable Justice V.A. Schuler, sitting in Yellowknife, in the Northwest Territories, on the 8th day of May, A.D. 2002.


APPEARANCES:

Ms. B. Schmaltz:  Counsel for the Crown

Mr. J. Brydon:   Counsel for the Defence


THE COURT:   All right. Well, I have to, I think, start from the -- looking at this as a very serious offence obviously.

The victim of the offence was 12 years old at the time. She was a visitor in Mr. Casaway's home. There is an aspect of breach of trust there. She was there with his daughter, they were asking to stay the night. So, in those circumstances, she is a guest in the home, was entitled to feel that she would be safe, that nothing would happen to her, and obviously because of her young age and Mr. Casaway being the adult who was there, she was in a vulnerable situation.

The point that was raised by Mr. Brydon about whether if deterrence is to be served in a case like this, what one is really seeking to deter is intoxication. I know this has been raised in other cases and some people say that when a person gets so intoxicated that they're out of control, there is really no deterrence. But it seems to me that it also has to be looked at from the point of view that when a person realizes that when they drink to excess they can do things that are very wrong, they can commit crimes, that when they realize what the penalty for that is, that that may, in fact, serve the goal of deterrence. In other words, you can't get so intoxicated that you're out of control and

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then say, Well it wasn't really my fault because I was out of control and it won't really help anyone else or deter anyone else because when they're out of control they're not going to be thinking about the fact that they may go to jail.

Now, obviously the courts are limited in what they can do to deal with the problem of people drinking until they're out of control, until they do things that they probably would never otherwise do, but this is one way of dealing with it is to impose a significant term of incarceration so that other people know that that is not an excuse. It's not a justification for what happened. It's not an excuse. It doesn't somehow make the offence less serious.

I accept that there was no real planning with respect to this offence and, as I said, and if I didn't say it, obviously a conviction will be entered on Count 2 in the indictment. It's not -- wasn't clear from the evidence exactly how the sexual assault started, but the important factor, in my view, is that Mr. Casaway was 37 years old; as I said this is his young daughter's young friend who is staying over night, and even if she was so out of control that she might have been doing things that one might not expect of a 12-year-old, he, as the adult, is obliged to stop the situation. And I say, if she was doing things,” I'm not making a finding

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that she was doing things, but he's the adult, he's in control of the situation first of all, and he is the one with the responsibility for stopping it. That's one of the roles that adults have to play with children is to make sure that they don't do things that they might otherwise do whether because of their young age or because they are intoxicated or because they don't understand what the consequences are.

Neither counsel has referred really to the guilty plea and obviously in this case the guilty plea doesn't carry a lot of weight. The victim still had to testify. The guilty plea only came at the very end of the Crown's case, but I acknowledge it, it is worth something obviously. It's an indication that Mr. Casaway finally is taking responsibility for what he did, so I do give some consideration to the fact that he has pleaded guilty.

With respect to the remand time, as I understand it from what counsel have said, there is somewhere between four and five months of remand time, time that he has spent in pretrial custody that is not attributable to a sentence that was imposed on him.

Now, how that remand time is to be dealt with obviously is within my discretion. I think that there is a basis to differentiate between the situation where a person is detained from day 1 on arrest and can't make bail and is not released from

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custody, and the situation where someone is released and then ends up in custody because they have been charged with breaching the terms of their release or other offences which isn't th~ case in this case other than the failing to appear.

In any event, I do give some credit to the remand time, to the nonsentence remand time. I also take into account Mr. Casaway's record. Some of it is 20 years old; two of the offences on it or convictions on it are 20 years old, and one is approximately 11 years old, 11 or 12 years old. The more recent ones all essentially result from the process he was on as a result of this charge. But, again, they're unrelated. There are no assaults, there are no sexual offences of any kind on the record so the record doesn't really affect, in my view, the sentence that should be imposed and I have to note obviously, as well, that the more recent offences all occurred after the offence that I have to sentence him for now.

I take into account that it does appear that he has worked hard in the past to support his family. take it from what's been said that the family situation, not only the separation from his wife but also the circumstances, the involvement of Social Services, has not been a very easy one. It is to his credit that he has made efforts and he has taken on

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the responsibility of supporting his children. I have to agree with the Crown that the main aggravating circumstances in this case is the age of the complainant and she was obviously very young. 12 years old, in my view, is very young and the circumstances of her actually being in the home also aggravates the situation.

Stand up please, Mr. Casaway. Having given consideration to all of the factors, the sentence I am going to impose and I do impose on you is one of three years in jail. I am going to have the warrant endorsed with the recommendation that you be permitted to serve your time in the Northwest Territories.

I am obliged, because of the offence, to make a firearm prohibition order, and I will make that order in the usual terms. It will commence today and it will expire ten years from your release from imprisonment, but pursuant to Section 113 of the Criminal Code, I also authorize the appropriate firearm -- and I can't think of the name of the position.

MR. BRYDON:  It's the firearms officer.

THE COURT:   Firearms officer to issue the necessary certificates and other documentation to you so that you may have the use of a firearm for purposes of hunting for your family.

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I'm also obliged to make a DNA order, do you have a draft order, Ms. Schmaltz.

MS. SCHMALTZ:  I do have a draft order, Your Honour, I was just looking at it though and there is a mistake in it. If I could provide the Court and my friend -- I'll seek his consent on a draft order to provide to the Court.

THE COURT:   All right, that's fine. If there is a problem you can always bring the matter back before me, but otherwise I assume -- I'll assume that you will submit it through the registry.

MS. SCHMALTZ:  Yes.

THE COURT:   All right. You can have a seat, Mr. Casaway. The victim of crime surcharge will be waived in the circumstances. Is there anything else that I need to deal with?

MS. SCHMALTZ:  Nothing from the Crown.

MR. BRYDON:  I know of nothing.

THE COURT:   All right. All right, we'll close court then.


Certified pursuant to Practice Direction #20 dated December 28, 1987.

Sandra Burns R.P.R, C.R.R.
Court Reporter

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