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Abstract: Transcript of the Oral Reasons for Sentencee
Decision Content
R. v. Thwaites, 2010 NWTSC 11 S-1-CR-2009-000065
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- V -
DONALD IAN THWAITES
_________________________________________________________
Transcript of the Oral Reasons for Sentence by The
Honourable Justice V. A. Schuler, sitting in Hay River, in
the Northwest Territories, on the 21st day of January,
A.D., 2010.
_________________________________________________________
APPEARANCES:
Ms. T. Nguyen: Counsel for the Crown
Mr. L. Sebert: Counsel for the Defence
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Charge under s. 271 Criminal Code of Canada
Publication Ban pursuant to s. 486.4 of the Criminal Code
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1 THE COURT: Donald Ian Thwaites has been
2 convicted of sexual assault and it is now my duty
3 to sentence him. The events in question occurred
4 on May 19th, 2009, and partly in the late hours
5 of May 18th, here in Hay River.
6 From the jury's verdict it is clear that the
7 jury must have had no reasonable doubt about what
8 happened and they must have accepted the evidence
9 of the victim. She testified that she had no
10 interest in Mr. Thwaites. She testified that
11 although she and he were drinking with others she
12 was rude rather than friendly to him. She passed
13 out on a bed alone and then woke to find him
14 turning her over. She told him no, told him to
15 go home, and that she would tell the police, and
16 she tried to fight him, but despite that he had
17 sexual intercourse with her.
18 In her evidence at trial the victim spoke of
19 how she was overwhelmed and traumatized by this
20 sexual assault. Her victim impact statements
21 clearly describe how anger, depression, and other
22 negative emotions have plagued her since the
23 sexual assault, emotions that are routinely
24 described by other sexual assault victims, and
25 that often lead to alcohol and drug abuse or
26 increased alcohol and drug abuse, and a downward
27 spiral in the individual's ability to cope with
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1 life. The victim in this case describes
2 essentially that as having happened to her.
3 It was also very clear from her demeanor in
4 court that the victim was extremely upset when
5 testifying about the sexual assault. The Court
6 can only hope that with the trial now over she
7 will be able to focus on what can be done to help
8 her deal with this terrible event. She is only
9 24 years old, and unfortunately this event will
10 no doubt be part of and will probably affect the
11 rest of her life.
12 Mr. Thwaites is 38 years old, originally
13 from Ontario. He has a grade 11 education and
14 took a gas fitters course at a community college.
15 In 1996 he moved to Alberta where he worked for
16 nine years, and after meeting his spouse there he
17 moved with her to her home community of Trout
18 Lake here in the Northwest Territories. They are
19 currently separated and have a six-year-old
20 daughter.
21 Mr. Thwaites admits to having an alcohol
22 problem. He has had treatment or counselling for
23 it, he took the 28-day course here in Hay River,
24 but he continued drinking. On May 10th, 2009, he
25 was released on an undertaking after being
26 charged with spousal assault and another offence.
27 One of the conditions of that undertaking was
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1 that he abstain from the consumption of alcohol.
2 On May 19th, nine days later, he was drinking
3 alcohol and committed the sexual assault for
4 which I must now sentence him.
5 Mr. Thwaites has a lengthy criminal record
6 dating back to 1989 when he was convicted of
7 assault in Ontario. Since then he has been
8 before the Courts quite regularly in Ontario,
9 Alberta and the Northwest Territories, for
10 offences such as failing to appear, theft,
11 driving with more than the legal limit of alcohol
12 in his blood, mischief, careless use of a
13 firearm, and various breaches of promises to the
14 Court.
15 In March, 2008, Mr. Thwaites was put on a
16 peace bond for a period of up to 12 months for
17 four offences, which included two assaults and
18 uttering threats. Even though these did not
19 result in criminal convictions and even though
20 they may have been minor, and that may be why the
21 result was only a peace bond, they do indicate
22 that Mr. Thwaites has used violence against
23 another person or persons.
24 In August of 2009, after this sexual assault
25 was committed, Mr. Thwaites was convicted of a
26 spousal assault and forcible confinement,
27 resulting in a sentence of ten months total in
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1 jail and two years probation. Despite the
2 lengthy record these were his first jail
3 sentences. All of his previous offences were
4 dealt with by way of fines and/or probation. The
5 date of the offences for which he was convicted
6 in August, 2009, and his arrest on those offences
7 pre-date the sexual assault and were the reason
8 that he was on an undertaking at the time of the
9 sexual assault.
10 What the record indicates to me sadly is a
11 recent and increasing use of violence by
12 Mr. Thwaites, which is somewhat surprising given
13 his age and the absence of any violent offences
14 on his record from 1990 to 2007. I do not know,
15 because it was not put before me, whether the
16 conviction for careless use of a firearm in 2005
17 involved anything that might be called violence.
18 However, the increasing and recent use of
19 violence has to be of concern to the Court
20 because it indicates that people need protection
21 from Mr. Thwaites.
22 Although he was arrested and has been in
23 custody since May 19, 2009, no submission was
24 made that the remand time should be taken into
25 account since it was considered when he was
26 sentenced for the assault and forcible
27 confinement in August. Therefore, there is no
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1 remand time applicable.
2 Sexual assault is an offence for which
3 Parliament has decided the maximum punishment is
4 ten years in jail; there is no minimum
5 punishment. Sentences for sexual assault
6 involving forced intercourse are almost
7 invariably jail sentences in the three to
8 four-year range in the Northwest Territories,
9 sometimes less than that where the offender is a
10 young adult, but sometimes more when there are a
11 number of aggravating circumstances. Each case
12 is different and must be judged according to its
13 particular circumstances.
14 The aggravating factors in this case are,
15 firstly, the fact that the victim was passed out,
16 she was extremely intoxicated. Mr. Thwaites took
17 advantage of that, of her vulnerability.
18 Mr. Thwaites's actions show a callous disregard
19 for the victim's personal and sexual integrity
20 and also for the law. That is at least in part
21 reflected very clearly in the part of her
22 testimony where the victim said that she told
23 Mr. Thwaites she would call the police, and his
24 response was "well, it will still be worth it."
25 In my view, it is also aggravating that
26 there were children in the home when these events
27 happened. Whether or not the children were aware
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1 of what Mr. Thwaites did to the victim, and there
2 is no evidence that they were aware of it, the
3 fact that he was drinking to the point of passing
4 out, swearing and arguing with the victim
5 according to the evidence of the mother of the
6 children, and then committed a crime in their
7 home is, in my view, an aggravating circumstance.
8 Children learn from the behavior of the adults
9 around them. Mr. Thwaites has a child of his own
10 and he should know that. His actions show a
11 total disregard for the wellbeing of the children
12 in that house.
13 Now, obviously there were other adults in
14 that house who were also behaving, not the same
15 as Mr. Thwaites, but they were behaving in a way
16 that children should not be exposed to. So I do
17 not say that this is entirely Mr. Thwaites's
18 responsibility, but he does bear responsibility
19 for his actions. It is also an aggravating
20 factor that at the time he committed this offence
21 Mr. Thwaites was on the undertaking that I have
22 already referred to.
23 It is not an aggravating factor that
24 Mr. Thwaites insisted on his right to a trial.
25 That simply means that he does not get the
26 mitigation that he would otherwise get had he
27 pleaded guilty. There are no real mitigating
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1 circumstances in this case. The fact that the
2 trial was brought on quite quickly compared to
3 what we often see is somewhat mitigating, but it
4 is not of much weight because the victim still
5 had to testify at the preliminary inquiry and the
6 trial.
7 This type of sexual assault on a vulnerable
8 drunk or passed out woman is very prevalent in
9 the Northwest Territories, as has been noted in
10 many cases decided in this Court. Whatever
11 punishment is imposed has to signal that society,
12 the community, the people, denounce and reject
13 Mr. Thwaites's actions and sexual assault in
14 general, and the punishment should be significant
15 enough to deter, to stop others who might be
16 inclined to engage in this behavior.
17 As far as Mr. Thwaites himself is concerned,
18 the sentence I impose should also seek to deter
19 him from committing further crimes at all, and
20 particularly crimes of violence. I have already
21 referred to the fact that now, in his late 30s,
22 he is exhibiting violent behavior, whereas prior
23 to that his only assault conviction was 20 years
24 ago. His record as a whole shows a long-standing
25 and consistent disregard for the law. He is not
26 a young man, he has had years and years to learn
27 about life and to put his own life on track, and
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1 only he can make sure that happens.
2 I have no doubt that he has been told time
3 and time again that he has to stop drinking, that
4 he has to do something about his alcohol problem,
5 and I have no doubt that time and time again he
6 has said he will do that. The fact that he was
7 drinking and drinking very heavily, only nine
8 days after promising in an undertaking to the
9 Court that he would not drink at all, and also at
10 some point before that, it was not clear when on
11 the evidence, having taken up a spot in the
12 28-day program seeking to treat him for his
13 problems, all of that suggests that Mr. Thwaites
14 needs to try much harder than he has in the past.
15 So having said all of this, it is very clear to
16 me that the sentence I impose must be significant
17 enough to deter Mr. Thwaites.
18 One of the principles of sentencing is that
19 the sentence imposed must also be proportionate
20 to the gravity, in other words the seriousness of
21 the offence, and the degree of responsibility of
22 the offender. Sexual assault is a serious
23 offence because, as I said, it is a breach of the
24 physical and sexual integrity or privacy of
25 another person, and because it invariably results
26 in psychological trauma or distress to the
27 victim, the effect of which is often felt for a
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1 long time, and those words accurately describe
2 this case.
3 As to the degree of responsibility of the
4 offender, Mr. Thwaites is a mature middle-aged
5 man. To the extent that he blames alcohol for
6 his actions, alcohol is not an excuse and he must
7 be aware of that by now. He must also be well
8 aware of the affect alcohol has on him. So he is
9 fully responsible for this offence.
10 Counsel are in agreement that this offence
11 calls for a sentence of incarceration and they
12 are certainly accurate as far as that goes.
13 Crown Counsel seeks a sentence of four to four
14 and a half years, and defence counsel submits
15 that a sentence of three and a half to four years
16 would be appropriate.
17 There are a number of ancillary orders that
18 I have to consider and I will deal with those
19 now. There will be a DNA order under Section
20 487.051 of the Criminal Code. Sexual assault is
21 a primary designated offence, and therefore
22 Mr. Thwaites's DNA is to be collected and put in
23 the DNA database according to the procedure and
24 if it is not already there.
25 Under Section 490.012 I make an order that
26 Mr. Thwaites comply with the Sex Offender
27 Information Registration Act. The prosecutor has
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1 applied for that order and Mr. Thwaites has not
2 sought to establish that the impact of such an
3 order on him would be grossly disproportionate to
4 the public interest in the protection of society
5 through such an order. Therefore, the order will
6 issue, and he will report under the Act to the
7 applicable registration centre within ten days of
8 his release from jail, for a period of 20 years,
9 which will start today.
10 Pursuant to Section 109 of the Criminal
11 Code, as this is a sexual assault and it does
12 involve violence by its very nature and the
13 maximum term of imprisonment is ten years, a
14 firearm prohibition order must issue. So that
15 will issue, it will commence today and expire ten
16 years after Mr. Thwaites's release from
17 imprisonment. The victim surcharge will be
18 waived in the circumstances. Stand please,
19 Mr. Thwaites.
20 Having regard to all of the factors that I
21 have referred to I sentence you to a term of
22 imprisonment of four years consecutive to the
23 term that you are currently serving. I hope,
24 Mr. Thwaites, that you will have learned
25 something from these events and that you will
26 learn something from this sentence, which is not
27 a short sentence. If you do not learn it looks
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1 to me like you are running a very great risk of
2 spending most of the years of your middle age in
3 a jail cell, and I am sure you do not want that.
4 At the very least you should think about your
5 daughter. You should think about whether you
6 want her to grow up thinking that drinking and
7 violence are what makes for a normal life. I am
8 sure you do not want her to think that, but only
9 you can make it so that she does not think that.
10 So please give that some thought while you are
11 serving your four years. You can have a seat.
12 Is there anything further, counsel?
13 MS. NGUYEN: Not from the Crown, Your
14 Honour, thank you.
15 MR. SEBERT: No, Your Honour.
16 THE COURT: Thank you very much for your
17 work in this case, and we will close court.
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20 Certified to be a true and
accurate transcript, pursuant
21 to Rules 723 and 724 of the
Supreme Court Rules.
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24 Joel Bowker
Court Reporter
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