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Abstract: Transcript of the Reasons for Sentence
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R. v. Blake, 2013 NWTSC 49 S-1-CR2011000174 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - DONOVAN ARLEN BLAKE _________________________________________________________ Transcript of the Reasons for Sentence by The Honourable Justice W. Grist, at Inuvik in the Northwest Territories, on June 10th A.D., 2013. _________________________________________________________ APPEARANCES: Mr. B. MacPherson: Counsel for the Crown Mr. C. Davison: Counsel for the Accused ---------------------------------------- An order has been made banning publication of the identity of the Complainant/Witness pursuant to Section 486.4 of the Criminal Code of Canada Official Court Reporters 1 THE COURT: The accused was convicted of 2 sexual assault after a trial by jury on 3 December the 13th, 2012. 4 The evidence led by the Crown, and 5 accepted by the jury, was that on August 6th, 6 2011, after a nightlong drinking party, the 7 victim and a number of others were sleeping at 8 the house where the party had occurred. She 9 and a boyfriend were sleeping, fully clothed, 10 on a bed in the spare bedroom. When she awoke 11 very early that morning, she found that her 12 pants and underwear had been lowered to her 13 ankles and the accused was engaged in sexual 14 intercourse with her. She struggled and 15 pushed him off and he left the room. 16 The accused had been at the party the 17 evening before, had gone to a bar and returned 18 to the house later, early the next day, 19 shortly before he committed the offence. 20 Both the victim and the accused are young 21 adults. The accused was 20 years of age at 22 the time. The accused was intoxicated at the 23 time of the offence. 24 With respect to the offender's background, 25 Donovan Blake resides with his mother in 26 Whitehorse. He grew up in various places in 27 the north but for the last six or seven years Official Court Reporters 1 1 has lived in Whitehorse. He was in Inuvik on 2 the day of the offence attending a family 3 wedding. Mr. Blake did not complete school in 4 a conventional setting however he has attained 5 Grade 12 equivalency through a work-life 6 experience life skills program at a Whitehorse 7 secondary school. Notwithstanding this 8 achievement he has difficulties with reading, 9 writing and communication. 10 A pre-sentence report was prepared in this 11 matter. It is dated February 26th, 2013. The 12 report appends a previous pre-sentence report 13 from May 5th, 2009. This in turn references a 14 psychologist's report and the material 15 includes two progress reports from 2010 and 16 2011. These earlier reports relate to an 17 offence committed by Mr. Blake in 2009 when he 18 was 17 and dealt with as a youth offender. 19 The circumstances of the 2009 offence are 20 markedly similar to what occurred in this 21 case. Mr. Blake, while intoxicated, engaged 22 in sexual intercourse with the victim who was 23 also intoxicated and vulnerable to his 24 actions. The youth sentence imposed was six 25 months deferred custody which, from the 26 description in the report, involved community 27 supervision, participation in the work-life Official Court Reporters 2 1 experience life skills program and a 2 subsequent adult offender's program. 3 Mr. Blake performed reasonably well during 4 the two years or so he was under the 5 management of court and probation officers. 6 He completed the education program and with 7 the exception of one incident of alcohol 8 abuse, he complied with the regulatory terms 9 of the sentence. Unfortunately, only a number 10 of weeks after he completed his term of 11 probation he committed the offence now before 12 the Court. 13 The psychological assessment, although 14 somewhat dated, provides some insights. 15 Mr. Blake is identified as a fairly 16 amiable individual but of low intelligence. 17 He has a history of substance abuse and 18 although there was no evidence of sexual 19 deviance or predation, to quote from the 20 report, "it is probable that he does not 21 always consider the consequences of his 22 actions prior to embarking on them". After 23 the event he genuinely appears remorseful but 24 nonetheless, now on two occasions, has 25 violated a defenceless victim in a very 26 similar manner. 27 Mr. Blake retains family support. His Official Court Reporters 3 1 family background has, at times, been 2 difficult, with alcohol abuse and violence 3 being a past feature of his family life. He 4 now has two children, one of whom has often 5 been resident with him at his mother's 6 residence and to whom he has been a caregiver. 7 Mr. Blake is a Tetlit Gwichin First Nation 8 person. He himself has not been directly 9 subject to systematic treatment that might 10 have influenced his behaviour. But it is 11 clear from the letters provided by his mother 12 and aunt, the family has a history of children 13 of previous generations being taken from their 14 homes to be confined in residential schools. 15 The legacy of this treatment, the often 16 evident decline into substance abuse and 17 victimization of other family members, often 18 persists into subsequent generations. 19 However, it is also notable that the 20 victim is of First Nations heritage. And, as 21 has been commented on in a number of 22 authorities, similar offences are all too 23 common, often elevating denunciation and 24 deterrence to the predominant sentencing 25 principles to be applied in order to try to 26 provide some protection for other women who 27 might be similarly victimized. Official Court Reporters 4 1 The comments of Mr. Justice Vertes in 2 R. v. Kodzin are apposite. From paragraph 3, 3 Many times the Courts in this jurisdiction have commented on the 4 prevalence of this type of crime, specifically sexual assaults 5 committed against women while they are either asleep or otherwise 6 unconscious. Courts have repeatedly said that since this 7 particular type of sexual assault is so frequent, sentencing must 8 emphasize deterrence, denunciation, and a promotion of a 9 sense of responsibility in the offender. 10 11 The victim impact statement provided by 12 the young woman assaulted in this case 13 provides a graphic account of her struggle to 14 live with the consequences of violation. 15 With respect to the authorities, R. v. 16 Arcand establishes a starting point of three 17 years incarceration for like incidents of 18 major sexual assault. From Arcand, 19 Sexually assaulting an unconscious victim elevates an offender's 20 degree of responsibility for the crime beyond the norm contemplated 21 by the three-year starting point. An offender who sexually assaults 22 a person who is asleep or passed out is treating that person as if 23 the person were an object to be used and abused at will. Since 24 the offender knows full well that the person is not consenting, this 25 reveals an enhanced degree of calculation and deliberateness by 26 the offender. Further, at that point the person is at their most 27 vulnerable, unable to defend themselves in any way and unable Official Court Reporters 5 1 to call for help from others. The offender knows this too, adding 2 further to the high level of moral blameworthiness for the illegal 3 conduct. 4 The offence in Kodzin was committed in 5 similar circumstances to those that existed 6 here. 7 In that case, the accused was 25 years of 8 age, employed, without a criminal record and 9 otherwise of good character. In sentencing 10 Mr. Kodzin, Mr. Justice Vertes considered as a 11 mitigating factor, that the accused was a 12 relatively young offender, 22 at the time of 13 the offence. Mr. Blake, although with a 14 record for a similar offence, was 20 years of 15 age at the time and now is 22. Notwithstanding 16 the aggravating influence of the previous 17 youth conviction here, I think that the age of 18 the offender still has a moderating effect. 19 There is also the fact that the accused 20 did relatively well while under probation 21 supervision and the prospect of rehabilitating 22 his conduct by imposition of similar terms as 23 he was previously under remains, in my view, 24 viable. 25 The Crown submits a sentence of three to 26 three and a half years incarceration in a 27 penitentiary is appropriate, a sentence that Official Court Reporters 6 1 may have the dislocating effect of relocating 2 the accused to a prison in the south. The 3 defence suggests a sentence which would avoid 4 a penitentiary term with the addition of a 5 long period of probation. 6 In weighing the factors, I think the best 7 accommodation of these various considerations 8 is a significant period of incarceration but 9 one that allows for a lengthy period of 10 probation. Probation in these circumstances, 11 although imposed to promote a rehabilitative 12 objective, nonetheless adds to the punitive 13 effect of the sentence and overall length of 14 time the accused is subject to state 15 supervision. 16 Accordingly Mr. Blake, I sentence you to 17 two years less one day imprisonment to be 18 followed by two years probation on the terms 19 indicated on page 8 of the pre-sentence report 20 with the exception, and counsel, I exclude the 21 terms indicated in paragraphs 11 and 12 in 22 that listing of terms as this was not an 23 offence committed on a young victim, nor was 24 it one that had elements of predation. 25 There are additional terms: 26 First of all, there will be registration 27 for a term of 20 years, a registration Official Court Reporters 7 1 indicated by the SOIRA legislation, Sexual 2 Offender Information Registration Act. 3 Mr. Blake will provide a sufficient sample to 4 identify his DNA profile. And there will be 5 an order made under Section 109 of the 6 Criminal Code prohibiting Mr. Blake from 7 having in his possession the items indicated 8 in that section but most notably firearms, 9 ammunition, or explosives, for a period of ten 10 years. 11 I note from one of these cases, Mr. 12 Davison, that there was allowance given for 13 exception to that particular prohibition, in 14 the case of subsistence hunting. 15 MR. DAVISON: Yes, and we would ask for 16 the similar allowance be granted under 17 Section 113, please. 18 THE COURT: Do you take any exception to 19 that exception? Mr. MacPherson? 20 MR. MacPHERSON: No, Your Honour. 21 THE COURT: All right, that will be 22 included. 23 MR. DAVISON: In the circumstances, we 24 would ask as well the victim impact penalty be 25 waived here, please. 26 THE COURT: Yes. Well, hearing nothing 27 in reply to that, in the circumstances as I Official Court Reporters 8 1 know them, that will be waived. 2 THE CLERK: That was the victim crime 3 surcharge, sir? 4 THE COURT: Yes, the surcharge is 5 waived. 6 Now in addition to that, there is the 7 present circumstances of his grandmother 8 having died and a funeral being likely in the 9 near future. I will make the recommendation 10 that classification consider him for 11 compassionate leave to attend the funeral but 12 that matter will have to remain with 13 classification as to whether or not they deem 14 that appropriate. 15 Does that leave anything more, counsel? 16 MR. DAVISON: Not that I can think of. 17 MR. MacPHERSON: No, thank you, Your Honour. 18 THE COURT: All right then, we will 19 stand down. 20 (ADJOURNED) 21 ------------------------------------- 22 Certified to be a true and accurate transcript pursuant 23 to Rules 723 and 724 of the Supreme Court Rules, 24 25 26 ____________________________ 27 Lois Hewitt, Court Reporter Official Court Reporters 9
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