Decision Content
R v Allen, 2020 NWTSC 15 S-1-CR-2019-000038
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
-v-
RANDY ALLEN
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Transcript of the Reasons for Sentence delivered by the Honourable Justice S.H. Smallwood, sitting in Yellowknife, in the Northwest Territories, on the 2nd day of March, 2020.
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APPEARANCES:
A. Paquin: Counsel for the Crown
R. Clements: Counsel for the Defence
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Charge under s. 271 of the Criminal Code
There is a ban on the publication, broadcast or transmission of any information that could identify the complainant pursuant to s. 486.4 of the Criminal Code.
I N D E X
PAGE
RULINGS, REASONS
Reasons for sentence 1
MONDAY, MARCH 2, 2020
THE COURT: Randy Allen has pled guilty to a sexual assault and it is now my responsibility to sentence him for that offence. Mr. Allen entered his guilty plea on February 24th, 2020, one week before his jury trial was to commence before me today.
The Crown and defence have jointly submitted that an appropriate sentence for this offence would be two-and-a-half years' imprisonment less credit for pre-trial custody, followed by 18 months of probation. Mr. Allen has been in custody since June 28, 2019.
I have considered the submissions of counsel and I am prepared to implement the joint submission. It is within the range of appropriate sentences, and I think that it is an appropriate sentence for Mr. Allen in the circumstances. Because I am going along with the joint submission, I am not going to say as much as I might in other cases and this allows me also to conclude this sentencing today so that Mr. Allen can begin serving his sentence.
There was an Agreed Statement of Facts filed which detailed the sexual assault. The victim was in Yellowknife for a medical appointment and she was here from Nunavut. While here, she visited a friend at Mr. Allen's residence. She saw Mr. Allen that day and she had met him before.
On the evening of November 17th, 2018, the victim was out drinking, and when she returned to the medical boarding home she was denied entry because she had been drinking. The victim was then walking on the street and encountered Mr. Allen. He offered to take her to his residence as she did not have a place to stay. The victim accepted and expected that Mr. Allen's family would be at the residence, as they were on the previous occasion.
When they got to the residence, Mr. Allen took the victim to a bedroom, closed the door and removed his clothes. They then struggled before Mr. Allen punched the victim on her right eye. At this point, the victim ceased struggling. Mr. Allen then removed her clothes and had sexual intercourse with her without her consent.
The sexual assault ended when the victim hit Mr. Allen in the face, causing a nosebleed. She then grabbed her clothes and fled the apartment, leaving behind her coat, clothing, cellphone and other items.
As a result of this offence, the victim suffered bruising. A Victim Impact Statement was provided this morning and it is clear that the offence had an impact on the victim, and I think that that is not unexpected.
The cases filed by the Crown on the sentencing and past experience demonstrate that serious sexual assaults like this inevitably have an impact on the victim and they leave a lasting mark on the victims. The victim wrote of being sad and hurt and scared, and I think those are common reactions and not surprising that she feels this way even after the passage of time.
The Crown has filed three cases: Kiktorak, Romie and Michel, all sentencing decisions of this court. I will not review them in detail as counsel did this morning, but they establish that the proposed joint submission is within the range of sentence for similar cases.
Mr. Allen has a criminal record which consisted of eight convictions prior to this offence. He has since accumulated more convictions in 2019. There are a couple of offences of violence on his criminal record but, overall, Mr. Allen's criminal record is not significant and he has never received a significant period of incarceration.
Mr. Allen is an aboriginal male, which requires me to consider the Gladue and Ipeelee factors and section 718.2(e) of the Criminal Code, and I have heard from counsel about Mr. Allen's background and some of the background factors which played a part in bringing him before the Court today. I do not think it will add anything for me to repeat what counsel has said about Mr. Allen and his background, and I probably cannot do it justice to try, but Mr. Allen has endured loss in his family over the years which has had a significant impact on him emotionally. He has abused alcohol to cope with his problems, which has also had an impact, a negative impact, on his life.
He has had mental health issues over the years. All of this tells me that Mr. Allen has issues to deal with, ones that are longstanding, and his attendance at counselling while incarcerated and the steps he has taken while awaiting trial give me hope that he has begun the process to heal himself and address his issues.
Deterrence and denunciation are primary sentencing principles in cases of sexual assault. The prevalence of sexual assault in this jurisdiction means that the Court must continue to take these violations of sexual integrity seriously and express society's condemnation of these offences and these activities.
Rehabilitation and restraint are also important factors in Mr. Allen's circumstances. His limited criminal record and the strides he has made in counselling and accepting responsibility for his actions make it even more important that Mr. Allen's rehabilitation be encouraged.
I have heard that Mr. Allen decided to plead guilty after he took counselling while in custody. Through counselling, he came to a realization about his actions and decided to change his plea. That realization and acknowledgment of responsibility by pleading guilty are deserving of significant credit.
While the plea is a late one, it is still significant because Mr. Allen came to this point on his own, and his actions in taking responsibility have had a significant impact. A trial does not need to be held. The victim and others do not have to travel to Yellowknife for the trial. The victim does not have to testify. There is certainty in this resolution, in this guilty plea. All of these factors highlight the importance of a guilty plea whenever it comes.
Mr. Allen's apology today also has meaning. It is an expression of his remorse, and it is clear that he takes responsibility for his actions.
There are also aggravating factors. This was a sexual assault on a vulnerable woman who had accepted Mr. Allen's offer of hospitality because she had nowhere else to stay that night. The sexual assault is a serious one. I consider it a major sexual assault according to the decision in Arcand, and the sexual assault itself involved violence by Mr. Allen to overcome the victim's resistance.
The sexual assault itself only ended when the victim began to fight back and hit Mr. Allen in the nose. There are serious aggravating factors in this sexual assault that need to be considered as well.
Dealing first with the ancillary orders sought by the Crown, they are mandatory. So first there will be a DNA order as this is a primary designated offence. There will also be a SOIRA order for a term of 20 years, and there will be a firearms prohibition order pursuant to section 109 for a period of ten years following Mr. Allen's release from imprisonment.
Mr. Allen has sought an exemption pursuant to section 113 of the Criminal Code to allow him to apply for a licence for hunting or sustenance purposes. The Crown is opposed to this request, citing concerns about his history of violence and his conviction for possession of a weapon contrary to section 88 in 2008.
I have considered Mr. Allen's criminal record and the other factors referred to in section 113. Mr. Allen's criminal record does have offences of violence on it and a weapons conviction, but overall his criminal record is not significant. His criminal convictions for the offences of violence did not result in significant periods of incarceration and some of the convictions are quite dated.
I have also heard that he engages in hunting and other activities on the land. He was raised and learned those traditions from relatives and he had engaged in those activities as an adult prior to moving to Yellowknife in 2016. I have heard that Mr. Allen hopes to resume those activities when he returns to Kugluktuk where he is from, following his release from imprisonment.
Overall, while there are some concerns regarding Mr. Allen, I am satisfied that an exemption is appropriate in his circumstances.
Therefore, taking into account Mr. Allen's personal circumstances, the circumstances of the offence and the joint submission that has been proposed by counsel, and the applicable sentencing principles, I am prepared to impose the joint submission. So please stand up, Mr. Allen.
For the offence of sexual assault, I sentence you to a period of imprisonment of 30 months, so the two-and-a-half years proposed by counsel. You will receive credit of 12 months and one week for the period of time that you have been in custody so far, leaving a sentence of 17 months and three weeks to be served.
There will also be a probation order that will be imposed following your period of imprisonment, and that will be a period of 18 months, and you will have the statutory conditions plus additional conditions that you have no contact with the victim directly or indirectly, that you take counselling as directed and report to the probation officer within three days of your release from custody and thereafter as directed. Do you understand those conditions?
THE ACCUSED: Yes, Your Honour.
THE COURT: Okay. Well, Mr. Allen, you can have a seat. Like I say, I have heard some very good things that you have made significant progress while in custody, and I hope that you continue to take programs and continue to take counselling and that you continue as well when you are on probation once you are released from custody. Thank you.
(PROCEEDINGS CONCLUDED)
CERTIFICATE OF TRANSCRIPT
Neesons, the undersigned, hereby certify that the foregoing pages are a complete and accurate transcript of the proceedings transcribed from the audio recording to the best of our skill and ability.
Dated at the City of Toronto, in the Province of Ontario, this 23rd day of March, 2020.
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Kim Neeson
Principal