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Abstract: Transcript of the Oral Reasons for Sentencee
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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 --------------------------------------- Charge under s. 271 Criminal Code of Canada Publication Ban pursuant to s. 486.4 of the Criminal Code Official Court Reporters 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 Official Court Reporters 1 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 Official Court Reporters 2 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 Official Court Reporters 3 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 Official Court Reporters 4 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 Official Court Reporters 5 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 Official Court Reporters 6 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 Official Court Reporters 7 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 Official Court Reporters 8 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 Official Court Reporters 9 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 Official Court Reporters 10 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. 18 ----------------------------- 19 20 Certified to be a true and accurate transcript, pursuant 21 to Rules 723 and 724 of the Supreme Court Rules. 22 23 _____________________________ 24 Joel Bowker Court Reporter 25 26 27 Official Court Reporters 11
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