Supreme Court

R. v. Sayine, 2003 NWTSC 53
Date: 20031007
Docket: S-0001-CR-2002000009

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- vs. -


ROBERT LOUIS SAYINE


Transcript of the Oral Reasons for Sentence by The Honourable Justice V.A. Schuler, at Fort Providence, in the Northwest Territories, on September 11th, A.D. 2003.


APPEARANCES:

Ms. C. Carrasco:  Counsel for the Crown

Mr. H. Latimer:   Counsel for the Accused


Charge under s. 271 Criminal Code of Canada


Ban on Publication on Complainant/ Witness Pursuant to Section 486 of the Criminal Code


THE COURT:   Robert Louis Sayine has been found guilty today by a jury of sexually assaulting the victim in this case, who was in bed with her boyfriend when this occurred.

Obviously, from the verdict, the jury must not have believed Mr. Sayine's evidence and must have believed the evidence of the victim and her boyfriend and have been satisfied beyond a reasonable doubt that the assault occurred as they said. In other words, that Mr. Sayine entered the bedroom and had sexual intercourse with the victim while she was sleeping; that she woke up while he was doing that; she grabbed her boyfriend, who then pulled Mr. Sayine off the bed. It is tragic that a young woman cannot sleep safely and undisturbed even with her boyfriend and even after putting a table against the door to prevent intruders.

Unfortunately, this is yet another example of the many cases like this that this Court hears about where in a small community like Fort Resolution, as in this case, a young girl or young woman is not safe in circumstances where she should have been safe and she should have been able to feel safe. She was, as Crown counsel has pointed out, a vulnerable victim because she was sleeping, and that is an aggravating factor.

Mr. Sayine is 34 years old now. So at the time of the offence he was 32 and the victim was 15.

I have reviewed the victim impact statement that

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was filed. The victim expresses feelings similar to those of so many other victims of sexual assault; that she is uncomfortable, hurt, humiliated and upset when she sees Mr. Sayine. Now, that statement appears to have been completed in October, 2001. However, even now, as the victim testified, it is clear that the memory of what happened upsets and hurts her. With the support of her family and friends, perhaps she can move forward with her life now that the trial is over and in some way deal with this terrible experience.

As I said, Mr. Sayine is now 34 years old. He is Metis. I accept that he is of Aboriginal background. From the character witnesses I heard at trial and on the sentencing and the character references submitted, I accept that he is a good worker, that he is well thought of by his supervisors at Renewable Resources, and that he is highly regarded by his family and very caring towards his grandmother and helpful to her.

He has, from the information provided, had a difficult family life in some respects. He has also lived a traditional life for much of his youth with his grandparents. I also must take into account that Mr. Sayine does have a criminal record. The only related conviction was 10 years ago in 1993, that being assault with a weapon, for which he received a fine and probation. His only other convictions are all in 1995 and are for what we would term somewhat minor and

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unrelated offences.

I referred to the fact that Mr. Sayine is Aboriginal. However, I also note that there is no evidence that it is because of that or because of his background that he is here in court on this charge. There is no indication that there are any systemic or other factors that bring him before the Court, and with an offence of this nature, his being Aboriginal does not mean that he should be treated any differently from others who might commit this type of offence.

It is very clear, and it's been said many, many times by this Court and others, that the principles that apply in sentencing in a case of this nature, the main principles that apply are denunciation and deterrence, meaning that the sentence that is imposed must show how society, how the community denounces, condemns this type of behaviour, and, also, that the sentence should aim at deterring others from committing similar offences.

Mr. Sayine did speak briefly at this sentencing. He said that he did not do anything. It is clear from that that he does not accept the jury's verdict and does not show any remorse. Nevertheless, I do take into account that he did waive the Preliminary Inquiry, which meant that the Complainant did not have to testify on that occasion. As defence counsel has pointed out, the length of time that this case has

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taken is because the first trial ended in a hung jury, which is not because of anything that Mr. Sayine or anyone else, for that matter, involved in the case did.

I accept that this offence is out of character for Mr. Sayine, who seems to have made an effort to be responsible to his family and his community in the last several years. The fact that he had a lot to drink on the night in question is, of course, not an excuse. There cannot be anyone who does not know that when people consume a lot of alcohol, they do things that they might otherwise not do. The only solution, of course, is simply not to drink like that.

Although there were no physical injuries to the victim, there was obviously psychological injury to her, as there always is in these cases. Her testimony was that there was intercourse, and, accordingly, this is a serious sexual assault, a serious violation of her personal and sexual integrity.

It is regrettable when people who are generally good and responsible commit serious offences, and sentencing such people is always difficult, as is sentencing generally. It is often said that it is one of the most difficult tasks that a Judge has.

I have considered the submissions that have been made. The Crown seeks a term of imprisonment of three years, which I think it is fair to say is generally the

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range that is imposed for offences of this nature in this jurisdiction. The defence seeks a term of two years less a day and a period of probation.

I thought very carefully about those submissions and where an appropriate sentence would lie. I do have to take into account that when Mr. Sayine committed this offence he was not a kid. He was a mature man.

Stand up, please, Mr. Sayine. First of all, with respect to the order requested under section 109 of the Criminal Code, the firearm prohibition order, I am going to grant such an order. But in light of the evidence that I have heard about Mr. Sayine's hunting activities, and I am satisfied that it is an important part of his existence, I am also going to make an order under section 113 that the Chief Firearms Officer may issue a permit or license or registration certificate to Mr. Sayine for sustenance or employment purposes.

With respect to the DNA order requested, I note that this is a primary designated offence, and having heard no submissions as to why such an order ought not to be made, I am satisfied that it should, and so such an order will go, as well.

With respect to the sentence in this case, every case is different. There does have to be some consistency in sentencing, and, in my view, considering other similar cases and considering the particular facts of this case, an appropriate sentence is three

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years' imprisonment.

The victim of crime surcharge will be waived in the circumstances.

You may sit down, Mr. Sayine. Is there anything else, counsel, that I need to deal with?

MR. LATIMER:  I was just wondering about a recommendation that it be served in the Northwest Territories.

THE COURT:   Yes. I am sorry. I had meant to do that. I will direct the Clerk to endorse the warrant that the sentence be served in the Northwest Territories.

MS. CARRASCO:  As far as the exhibits are concerned, can there be an order that they be released after the appeal period?

THE COURT:   That would be the usual order. I take it, Mr. Latimer, that would --

MR. LATIMER:  Yes.

THE COURT:   -- be satisfactory to you? All right. There will be an order, then, that the exhibits be held -- they are all paper exhibits, aren't they?

MS. CARRASCO:  Yes.

THE COURT:   All right. They be held by the Court until the expiry of the appeal period or the determination of any appeal that is taken.

Is there anything further that I need to do?

MS. CARRASCO:  No, Your Honour. I don't believe

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so.

THE COURT:   Mr. Latimer?

MR. LATIMER:  No, there's nothing.

THE COURT:   All right. Thank you very much.

(AT WHICH TIME THE ORAL REASONS FOR SENTENCE CONCLUDED)


Certified to be a true and accurate transcript pursuant to Rules 723 and 724 of the Supreme Court Rules.

Jill MacDonald, CSR(A), RPR
Court Reporter

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