R. v. Roberts, 2017 NWTSC 17 S-1-CR2015000026 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - RICHARD ROBERTS _________________________________________________________ Transcript of the Reasons for Sentence by The Honourable Justice S. H. Smallwood, at Yellowknife in the Northwest Territories, on January 5th A.D., 2017. _________________________________________________________ APPEARANCES: Mr. R. Clements: Counsel for the Crown Ms. A. Seaman: Counsel for the Accused ---------------------------------------- Charge under s. 271, 264.1 (x2) Criminal Code of Canada No information shall be published in any document or broadcast or transmitted in any way which could identify the victim or a witness in these proceedings pursuant to s. 486.4 of the Criminal Code of Canada
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1 THE COURT: Mr. Roberts was convicted, 2 on June 20th, 2016 after a trial, of sexual 3 assault and two counts of uttering threats. 4 It is now my task to sentence him for these 5 offences. 6 The facts of the offences, as I found 7 them, briefly, are this: 8 That on September 5th, 2014, the 9 complainant and her spouse were drinking at 10 their residence when they began to argue. The 11 argument escalated to the point that her 12 spouse phoned the police and another person, 13 Ms. Shannahan. While he waited for the friend 14 Ms. Shannahan to arrive, he had a conversation 15 with the accused outside of the residence. 16 Shortly after this, Ms. Shannahan pulled up to 17 the residence and she observed the accused, 18 Mr. Roberts, walking towards his truck or his 19 house, in that direction. 20 The complainant's spouse and the children 21 left the residence and they later returned 22 approximately half an hour later and 23 Ms. Shannahan went in to retrieve diapers for 24 the baby. At that time she spoke with the 25 complainant for 10 to 15 minutes, observed 26 that she was upset, mad and crying, before 27 leaving the residence.
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1 The complainant then went to bed and woke 2 up sometime later to Mr. Roberts on top of her 3 having sexual intercourse with her. She tried 4 to push him off, and he punched her in the 5 face five or six times, knocking her out, and 6 when she came to he was still having sexual 7 intercourse with her. She attempted to push 8 him off again. At that point, he got off of 9 her and got dressed, stating to her as he left 10 that if she told the cops, he would burn her 11 and the house down. 12 The Crown is seeking a sentence in the 13 range of three and a half to four and a half 14 years and argues that a four year sentence is 15 appropriate, less credit for remand time. The 16 defence is seeking a sentence of 32 months 17 imprisonment, less credit for remand time, 18 resulting in a sentence of two years less a 19 day, and to allow Mr. Roberts to serve his 20 sentence in the north and be closer to his 21 family. The defence is also requesting that a 22 two year probation order follow this, to allow 23 Mr. Roberts to continue with his 24 rehabilitation, and to further ensure the 25 safety of the public by ensuring that he is 26 under supervision for a longer period of time. 27 Two victim impact statements were filed by
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1 the complainant in this matter. One was 2 completed about a week after the offence and 3 the second was completed in April of 2016. 4 It is clear from the victim impact 5 statements that this offence has had an effect 6 on the complainant. Immediately after the 7 offence, she was scared to leave her home. 8 She was afraid because of the threats made by 9 the offender. She had to endure the sexual 10 assault examination and said that it made her 11 feel "weird", "scared" and "grossed out". She 12 was unable to eat well, unable to sleep well, 13 and blamed herself for what had happened. 14 Her second victim impact statement 15 (completed sometime later) reveals that the 16 offence had a lasting impact on her. She 17 continued to be scared, hurt and worried. She 18 continued to have trouble sleeping and was 19 scared in her own home. She was scared to be 20 alone and was afraid to live in Yellowknife. 21 This was a serious crime committed against 22 the complainant, a serious violation of her 23 sexual integrity, and the feelings that she 24 describes in her victim impact statement are 25 understandable. 26 Mr. Roberts has a criminal record which 27 consists of five convictions from 2010 - three
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1 convictions for failing to comply with release 2 conditions, an assault, and a driving 3 conviction. The sentence imposed for those 4 offences included a fine and an intermittent 5 jail sentence. 6 A fundamental principle of sentencing is 7 that the sentence must be proportionate to the 8 gravity of the offence and the degree of 9 responsibility of the offender. The Courts in 10 this jurisdiction have consistently said that 11 where there is an offence of sexual violence, 12 the paramount sentencing principles are 13 deterrence and denunciation. And that is not 14 to say that the other sentencing principles 15 are ignored; they are not. They are 16 considered but it is deterrence and 17 denunciation that are predominant. 18 The principle of denunciation involves 19 denouncing unlawful conduct, sending the 20 message that sexual violence will not be 21 tolerated by the people of this community or 22 the people of the Northwest Territories. 23 Deterrence involves deterring the specific 24 offender and other persons from committing 25 these types of offences. 26 Rehabilitation is also an important factor 27 because Mr. Roberts is still relatively young
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1 and has a minimal criminal record. 2 The principles of parity and restraint are 3 also applicable. 4 It has been said by this Court, and by 5 other Courts in this jurisdiction, that sexual 6 assault is an offence that occurs far too 7 frequently in the Northwest Territories. This 8 Court has commented on this fact many times 9 because this Court is regularly responsible 10 for sentencing individuals who have committed 11 sexual assaults. 12 These cases can occur in different 13 circumstances and differ in severity. They 14 are committed by individuals with no criminal 15 records and by those who have extensive 16 criminal records. They occur frequently in 17 situations where alcohol is involved but not 18 always. 19 There is no one demographic that sexual 20 assault is most associated with. The victims 21 and offenders are sometimes young, sometimes 22 adults, sometimes elderly. In any case, there 23 is no predicting who might be the victim or 24 the offender of a sexual assault. But as I 25 said, sexual assaults occur far too frequently 26 and they occur far too frequently where the 27 victim is passed out or asleep and is sexually
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1 assaulted. While it seems that there may be 2 no end in sight, this Court must continue to 3 emphasize the sentencing principles that have 4 been established for offences of sexual 5 violence. 6 Counsel have provided a number of cases 7 which I have reviewed and were very helpful. 8 I do not intend to review them but they 9 establish a sentencing range and reiterate the 10 applicable sentencing principles. 11 Offences of sexual violence, which are 12 major sexual assaults as contemplated in 13 Arcand, a starting-point has been acknowledged 14 to be three years for those types of offences. 15 From that starting-point, the range is 16 established taking into account the various 17 circumstances of each case and the mitigating 18 and aggravating factors that are unique to 19 each case. 20 In this case, a pre-sentence report was 21 prepared and also defence counsel provided two 22 letters of support, one from Mr. Roberts' 23 mother and one from his grandmother. 24 The pre-sentence report provides insight 25 into Mr. Roberts' background and his family. 26 It is apparent that he has a supportive 27 family. I have noticed that the family
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1 members have been present at most of the court 2 appearances. 3 Mr. Roberts himself is 36 years old and he 4 has three children with his ex-partner. His 5 eldest son was born with a serious medical 6 condition and in his life, he has had three 7 organ transplants and requires ongoing care. 8 He has serious health concerns. Those have 9 been a challenge for Mr. Roberts and for his 10 former partner to deal with, but they have 11 taken care of him and have learned what was 12 needed to provide care for their son. 13 It is also apparent that Mr. Roberts has 14 had issues with drugs and alcohol and that he 15 has struggled in the recent past to deal with 16 those issues. 17 Mr. Roberts has said in the pre-sentence 18 report that he wants to be there for his 19 children and that he is hoping to continue to 20 address his addiction issues. And I hope for 21 his children's sake that he continues to do so 22 as his children need to have their father 23 present in their lives and present in a 24 healthy and sober way. 25 Turning to the mitigating and aggravating 26 factors, there are no mitigating factors that 27 I am aware of. But as in the case of Minoza
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1 that was filed, there are things the Court can 2 consider that are not mitigating but can be 3 used to give particular effect to the 4 principle of restraint - the limited criminal 5 record of Mr. Roberts, his work record, and 6 that this offence is out of character for him. 7 There are a number of aggravating factors. 8 It is aggravating that this offence occurred 9 in the victim's home, in her bedroom while she 10 was sleeping. The victim was entitled to feel 11 safe in her home, in her bedroom. And she was 12 in a vulnerable position, being asleep or 13 passed out, such that she could not fend off 14 Mr. Roberts' advances. And when she did 15 awaken and began to struggle, she was punched 16 several times knocking her out and the sexual 17 intercourse continued. When she awoke again, 18 Mr. Roberts continued to sexually assault her. 19 So the offence involved violence beyond 20 that inherent in having sexual intercourse 21 with someone without their consent. It 22 involved the forcible subduing of the victim 23 and persistence and continuing with the 24 assault. And it also ended with the threats 25 that were made to prevent the victim from 26 going to the police. These aggravating 27 factors make the offence more serious than
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1 some of the cases which were provided, where 2 there was no additional violence or the 3 assault ended when the victim objected or woke 4 up or began resisting. 5 Looking first at the ancillary orders, the 6 Crown has sought a number of them and defence 7 counsel is not opposed to the orders that have 8 been sought. 9 The sexual assault results in a mandatory 10 SOIRA order, so there will be an order 11 pursuant to section 490.012 of the Criminal 12 Code that Mr. Roberts register in compliance 13 with the Sex Offender Information Registration 14 Act for a period of 20 years. 15 The sexual assault is a primary designated 16 offence so there will be a DNA order pursuant 17 to section 487.051 of the Criminal Code, that 18 Mr. Roberts provide a sample of his DNA for 19 submission to the DNA databank. 20 Sexual assault is also an offence for 21 which there is a mandatory firearm prohibition 22 order so there will be an order pursuant to 23 section 109(1)(a) of the Criminal Code so that 24 Mr. Roberts will be prohibited from possessing 25 a firearm. That order begins today and will 26 end ten years after his release from 27 imprisonment.
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1 There will be also the victim of crime 2 surcharge as stipulated. The time to pay will 3 be forthwith and any default time will be 4 served concurrent to the sentence I am about 5 to impose. 6 Mr. Roberts has been in custody and his 7 remand time amounts to 203 days. Counsel are 8 in agreement that there is no reason why he 9 should not receive enhanced credit of one and 10 a half days for every day in custody in 11 accordance with the Supreme Court of Canada's 12 guidance in Summers. Therefore, he will 13 receive credit for 304 days of pre-sentence 14 custody. 15 I have thought about what is the 16 appropriate sentence in this case, given the 17 circumstances of the offence, the aggravating 18 and mitigating factors, the personal 19 circumstances of Mr. Roberts, and the sentence 20 proposed by both counsel and the reasons for 21 each submission. 22 The four year sentence proposed by the 23 Crown is entirely reasonable and within the 24 range of sentences that have been imposed in 25 the past. 26 The 32 month sentence proposed by the 27 defence is one of less than three years (two
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1 years and eight months) and that is lower than 2 what has been imposed in similar circumstances 3 in this jurisdiction taking into account 4 factors such as this is a sentence imposed 5 after trial, the offence is at the more 6 serious end of the spectrum of sexual 7 assaults, and also taking into account Mr. 8 Roberts' age and limited criminal record. 9 Given Mr. Roberts' personal circumstances, I 10 do want to exercise restraint but I do not 11 think a sentence as low as what defence 12 counsel is urging is appropriate in the 13 circumstances. 14 Please stand, Mr. Roberts. 15 For the offence of sexual assault, I 16 sentence you to a period of imprisonment of 42 17 months. You will receive credit of ten months 18 for your remand time, leaving a sentence of 32 19 months to be served. A sentence of six months 20 concurrent on each of the uttering threats 21 charge will be imposed. 22 You may sit down. 23 There will be an endorsement on the 24 warrant of committal that the correctional 25 authorities give every consideration to allow 26 you to serve your sentence in the north. 27 Counsel, is there anything else in this
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1 matter? 2 THE ACCUSED: 42 months. 3 MR. CLEMENTS: There was the matter of -- 4 THE ACCUSED: -- get the fuck out of here. 5 THE COURT: Mr. Roberts, sit down. 6 THE ACCUSED: I am going back to my home, 7 the prison. 8 COURT OFFICER: Mr. Roberts -- 9 THE ACCUSED: -- don't say nothing to me. 10 Motherfucker. 11 (Accused re-seated) 12 THE COURT: Mr. Clements? 13 MR. CLEMENTS: Yes, Your Honour, there was 14 the matter of the order pursuant to section 15 742 of the Criminal Code. 16 THE COURT: There will be that order. 17 There will be no contact with the complainant. 18 Thank you, we will adjourn court. 19 ------------------------------------- 20 21 22 23 24 25 26 27
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1 2 Certified to be a true and accurate transcript pursuant 3 to Rules 723 and 724 of the Supreme Court Rules, 4
5 6 7 8 ____________________________ 9 Lois Hewitt, Court Reporter 10
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
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