Youth Justice Court

   R. v. T.C, 2006 NWTSC 19               S-1-YO-2005000001



                IN THE YOUTH JUSTICE COURT OF THE NORTHWEST TERRITORIES



                IN THE MATTER OF:







                              HER MAJESTY THE QUEEN



                                      - and -



                               T.C. (A Young Person)



                _____________________________________________________

                Transcript of the Oral Reasons for Sentence delivered

                by the Honourable Justice V.A. Schuler, sitting at

                Yellowknife, in the Northwest Territories, on March

                17th, A.D. 2006.

                _____________________________________________________

                    BAN ON PUBLICATION OF COMPLAINANT/WITNESS
                    PURSUANT TO SECTION 486 OF THE CRIMINAL CODE




                APPEARANCES:

                Mr. J. MacFarlane:          Counsel for the Crown

                Mr. S. Shabala:             Counsel for the Young Person

                      (Charges under s. 271 Criminal Code)





       Official Court Reporters




1     Although we are sitting in Supreme Court, this Court is sitting as a Youth Criminal Justice Court, and, accordingly, I just want to indicate for the record that under section 110 of the Youth Criminal Justice Act there is a prohibition on publication of the name of the offender, and, because the offences are sexual assault, there is also a publication ban on the names of the victims and any information that would tend to identify the victims.

2     T.C. pleaded guilty to a charge of sexual assault in this court, the Youth Justice Court, which is count 1 in the indictment, and he was found guilty on another sexual assault charge after a trial, and that was count 2 in the indictment. He is now before me for sentencing on both charges.

3     The facts on count 1 are that Mr. C. -- and when I say Mr. C. I mean T.C. -- was asked to come to Yellowknife from Hay River to babysit his nine-year-old cousin while her mother attended a workshop. He was 16 at the time. He and his cousin were in the hotel room and he told her to lick his penis and forced her to put it in her mouth while he moved her head up and down. He ejaculated in her mouth and told her not to tell anyone.

4     On a second occasion, when he was 17 years old, Mr. C. was at his parents' home where his 12-year-old cousin, not the same cousin in count 1, was staying. Mr. C. went into the room where she was sleeping and she woke up to find him sitting on the bed. He grabbed her hand and made her rub his penis under his boxer shorts. Although she pulled away a couple of times, he grabbed her hand again and continued the rubbing, although she did say in her evidence that it did not last very long. The incident ended when he left the room.

5     Although Mr. C. is now 20 years old, under section 160 of the Youth Criminal Justice Act the provisions of that Act apply. The Crown does not seek an adult sentence for Mr. C.

6     A very comprehensive pre-sentence report has been filed outlining Mr. C.'s background and family circumstances. Certain things are very clear about his family. They have had their problems in the past -- for example, with alcohol abuse -- but they have made efforts to overcome those problems and they are very supportive of Mr. C.

7     The background is very important, in my view, because there is an indication in the pre-sentence report that when he was a child and his parents were drinking a lot Mr. C. saw certain behaviour at parties by some adults at the parties that might give him the idea that abusing women or girls, especially when they are in a vulnerable state, is something that adults do; that maybe it is behaviour to be expected.

8     Neither the things that Mr. C. saw, as described in the pre-sentence report, nor what he has done himself, as reflected in the charges before the Court, can be described as "sexual indiscretions", the term that was used by defence counsel. These are sexual assaults. At one point in the pre-sentence report Mr. C. refers to seeing younger girls being raped by older men when the girls are passed out.

9     This case illustrates the way in which alcohol abuse has devastating repercussions for the younger generation in our society, for the children who see the behaviour, and, I am sure, when they see it do not understand it and do not quite know what to make of it. Unfortunately, it is behaviour that this Court hears about in almost every trial.

10     I have to say that in constantly hearing evidence about drunken parties it occurs to me to wonder on occasion, where are the children when all of this is going on? Well, this case is a good illustration. The children, unfortunately, are there watching and learning from the behaviour that they see.

11     I am not pointing the finger specifically at T.C.'s parents. I am talking about adults in general, adults drinking too much and having parties. When adults do not control themselves, do not control their drinking and do not control their actions, children do not learn self-control. They see the example that is set for them and then they adopt that kind of behaviour. So this is really a terribly tragic illustration of that problem in our society.

12     Mr. C. has a grade nine or ten education and he has had some employment, although it appears to have been somewhat sporadic. He recently obtained his class 3 driver's license and employment as a truck driver.

13     It is also unfortunate, and it is not surprising, again, in light of his experiences as a child, that, as the pre-sentence report says, Mr. C. turns to alcohol and drugs as a coping mechanism for difficulties in dealing with his emotions and lack of self-esteem. His involvement in alcohol and drugs and the fact that he has a lot of friends who drink and do drugs is not a good sign. He needs to leave those friends behind, because they are only going to bring him down with them.

14     The family support that he has and the indication that the family have improved their communication and are prepared to work with T. is a good sign, as is his cooperation in the preparation of the pre-sentence report. The fact that since his arrest on these charges he has got his license and has pursued work as a truck driver is to his credit, and it indicates that he is thinking about his future and acting responsibly.

15     I also take into account that he does not have any prior criminal record. He is a first offender.

16     Any sexual assault on a child is serious and is a significant threat to the child's well-being. Although there is no victim impact statement from the victim on count 1, the information in the pre-sentence report makes it clear that the victim has encountered problems not just in dealing with what happened to her, but also because of the negative reaction of some family members towards her. There is no question that forcing a little girl to do what Mr. C. made her do would have a long-term, traumatic effect on her.

17     The victim on count 2 speaks in her victim impact statement about feeling scared and feeling that she was a bad person, in other words, blaming herself, which, of course, and tragically, is something that victims often do and which then compounds the difficulty that they have in dealing with the situation.

18     So the victim on count 2 obviously has suffered, as well, and she says that she has lost one of her favourite aunties because she disclosed what happened. So, again, there has been a negative impact on the family relationships, and all of this, of course, is because of what T.C. did.

19     Both Crown and defence counsel agree that because of the seriousness of the offence on count 1 a term of custody in the form of a custody and supervision order is appropriate. The Crown and defence both say that it should be between 12 and 15 months in length. Where they differ is on count 2, the Crown saying that the sentence on that count should be 12 to 15 months consecutive and that the global sentence on both counts 1 and 2 should then be adjusted to somewhere in the range 18 to 24 months and one year probation to follow; whereas defence counsel says that on count 2 the sentence should be lengthy probation rather than custody because it is not a serious sexual assault.

20     For custody to be an available disposition on either of the offences under the Youth Criminal Justice Act, I have to find under section 39(1) that each is either a violent offence or an exceptional case where the aggravating circumstances are such that imposition of a non-custodial sentence would be inconsistent with the principles of the Act.

21     In my view, forcing someone to engage in sexual activity of the kind in both of these offences is a form of violence. So both offences do fall within section 39. So a custodial sentence can be considered on both of them, and I bear in mind the parameters that apply to that in section 42 of the Youth Criminal Justice Act.

22     I have to consider the aggravating and mitigating factors. On count 1, certainly the early guilty plea is a substantial mitigating factor. The fact that the young victim did not have to testify at all means that she was saved more trauma, and it indicates that Mr. C. is genuinely sorry for what he did and prepared to take his punishment.

23     On count 1, the age of the victim at the time of the offence, nine years old, is an aggravating factor. So is the fact that she had been placed in Mr. C.'s care. In other words, her parents had trusted him to look after her and he broke that trust by abusing her. The nature of the sexual activity he had her perform, fellatio, is serious and is comparable to sexual intercourse.

24     On count 2, the fact that he did not plead guilty is not aggravating. He simply does not get the benefit, the mitigating benefit of a guilty plea. The age of the victim in that case, 12 years old, is aggravating. I do note that the offence, forcing her to masturbate him, seems not to have lasted very long and is less serious than the offence on count 1. By that I mean that it is a less intrusive form of sexual assault. It is aggravating, however, that this was Mr. C.'s second sexual assault, and it may be that having got away with the assault on his nine-year-old cousin he decided then to assault the 12-year-old.

25     I must also take into account that Mr. C. himself was 16 and 17 years old at the time of these assaults. The law is that it is his age at the time of the offences that determines his level of blameworthiness and not his age now. In my view, that is an important factor, especially considering the sexual behaviour that he witnessed when he was younger, including what he says he experienced himself. Still, in light of the age of the victims and the circumstances of the offences, T.C. does bear a pronounced degree of blameworthiness.

26     Section 38, which incorporates section 3 of the Youth Criminal Justice Act, sets out the principles of sentencing for youth. Counsel have already referred to some of them, so I will not repeat those. But I note that included in them are 3(a)(i), preventing crime by addressing the circumstances underlying a young person's offending behaviour; and subsection (ii), rehabilitating young persons who commit offences and reintegrating them into society; and, while ensuring the sentence is proportionate to the seriousness of the offence and the degree of responsibility of the offender, making sure the sentence is the least restrictive that is capable of attaining the goal of holding the young person accountable and imposing meaningful consequences on him.

27     I am also required under section 39(2) to consider all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances. No alternative has been proposed to a custodial sentence on count 1, and, in my view, there is no reasonable alternative because of the seriousness of that offence in any event.

28     My assessment of Mr. C., having heard him testify at the trial and having read the pre-sentence report, is that a custodial sentence will be a meaningful consequence for him, particularly since he is a first offender.

29     On count 2, looking at it in isolation, it seems to me that if it was the only offence I was dealing with it is not inevitable that custody would be the only appropriate sanction in all the circumstances. I do have in mind when I say that the variety of sentences that are imposed even on adults for that sort of offence. So I have had to come to a sentence that will reflect all of these various factors.

30     It is also my view that Mr. C. certainly needs, along with the support of his family, professional help and guidance. His behaviour with these very young girls indicates, obviously, that he has some problems that he needs to deal with, and there is no question that he needs help and supervision to ensure that he does not engage in this sort of behaviour again.

31     I think it is important to note that his family, as I have said, is very supportive, but the pre-sentence report does give rise to some troubling concerns; for example, the marijuana use apparently with his father. Marijuana is still an illegal substance and everyone should be aware of that, and encouraging T.C. to use it or turning a blind eye to his use of it is not going to help him at all.

32     I also note that the pre-sentence report says that T.C.'s younger brother -- and I don't think there was an age given in the report, but it is his younger brother, in any event -- looks up to him. So I hope that T. will think about that and try to help his brother by setting a good example for him and showing him that despite the difficult family life they have had in the past he can move beyond that and become a good and productive member of his community.

33     I have reviewed the cases submitted by Crown counsel, and I note that they do show a wide range of sentences for sexual assault where the offence involves sexual intercourse. For example, in the case of R. v. B. (K.G.) [2005 CarswellNB 605 (N.B. C.A.)], a decision of the New Brunswick Court of Appeal, six months custody was imposed followed by three months' supervision. In the decision of R. v. C. (V.I.) [2005 CarswellSask 534 (Sask. C.A.)] from the Saskatchewan Court of Appeal there was a sentence of 21 months' custody and supervision, in other words, combined, imposed where there were multiple acts of intercourse against a six-year-old.

34     The cases reflect the way in which sentences must be tailored to the individual circumstances of the offender and the circumstances of the offence.

35     Stand, please, Mr. C. On count 1, which is, as I have said, the more serious of the two offences, I think the range of sentence that has been suggested by counsel is appropriate, and my order is that you serve a 12-month custody and supervision order with the first eight months of that to be custody and the last four months under supervision in the community subject to conditions to be set.

36     Under section 42(4) I am required to tell you that if you breach any of the conditions while you are under supervision in the community, you may be brought back into custody and required to serve the rest of the second period in custody, as well; in other words, the four months after the eight months of custody.

37     You should also be aware that under other provisions of the Youth Criminal Justice Act a court could require you to serve the second period in custody, as well.

38     The periods in custody and under supervision in the community may be changed if you are or if you become subject to another sentence. So that is the sentence on count 1.

39     On count 2 of the indictment, I am going to impose a period of probation for 18 months to be consecutive to the sentence on count 1; in other words, to start at the end of the period of supervision on count 1. The conditions of the probation will be the statutory conditions that, first, you keep the peace and be of good behaviour. That means don't get into trouble. That you appear before the Youth Justice Court when required to do so. That you have no contact of any kind, direct or indirect, with the victims of the offences except that in conjunction with your probation officer you may write letters of apology to the victims, which your probation officer is then to arrange for delivery of.

40     You are not to be alone with any child under the age of 14 unless you are in the presence of another adult who is sober. You are to attend alcohol and drug abuse counselling and sexual offender counselling as directed by your probation officer. You are to report to your probation officer within five days after the term of probation commences and after that as required by your probation officer. You are to make every effort to obtain and maintain employment or attendance in an educational program. Do you understand those conditions, Mr. C.?

41     THE YOUNG PERSON: Yes.

42     THE COURT: All right. You may have a seat, then.

43     The mandatory DNA order will issue. Do you have an order, counsel?

44     MR. MacFARLANE: Unfortunately, I don't, Your Honour. I will make arrangements to get that done as soon as possible.

45     THE COURT: All right. Well, just so that it doesn't fall through the cracks, as these things sometimes seem to have a tendency to do, I am going to direct that the order be submitted to me within 30 days of today's date. So I will ask counsel both to cooperate in making sure that it is presented within the 30 days.

46     Now, is there anything else, counsel, that I need to address in this case?

47     MR. SHABALA: As I expect Mr. C. will be availing himself of the counselling for sexual issues, could I request that a copy of the pre-sentence report be amended to the custody order?

48     THE COURT: I don't know whether that is -- that may be the usual procedure, in any event, but that's fine.

49     MR. SHABALA: Thank you.

50     THE COURT: A copy of the pre-sentence report, Madam Clerk, I will ask you to attach that to the warrant or order, then, that goes to the correctional facility.

51     THE COURT CLERK: As amended or --

52     THE COURT: Oh, I'm sorry. When you used the word "amended", I thought you meant to say "appended" --

53     MR. SHABALA: I'm sorry. I might have used "amended".

54     THE COURT: -- Mr. Shabala. I'm sorry. I misunderstood you.

55     MR. SHABALA: Yes.

56     THE COURT: Well, I don't know that I can amend the report.

57     MR. SHABALA: Yes. I am just looking for an appendix, pardon me. To have the pre-sentence report affixed to the warrant of committal so when he arrives at the institution, does take that counselling, a copy of that pre-sentence report would be available.

58     THE COURT: But you are talking about the pre-sentence report as is?

59     MR. SHABALA: That's right.

60     THE COURT: You are not concerned about the various comments --

61     MR. SHABALA: No.

62     THE COURT: -- that you had made?

63     MR. SHABALA: No.

64     THE COURT: All right. That's fine, then. Just the report as is will be appended.

65     THE COURT CLERK: Ma'am, is it secure or open custody?

66     THE COURT: Madam Clerk has raised an issue which I had not considered and counsel had not actually addressed, and that is whether it is secure or open custody. Now, I am not sure whether under the legislation that is a decision the Director makes or whether I have to direct that.

67     MR. MacFARLANE: It depends on the jurisdiction, Your Honour. My understanding in this jurisdiction, it's the Court that makes that decision. So the Crown position yesterday was asking for secure custody for Mr. C. To be practical, as you noted section 89, it seems that because he is 20 he will be serving the sentence at North Slave. So that may be a moot point. But the Crown position is that it should be secure custody reflecting the seriousness of the offence and perhaps the danger to the community.

68     THE COURT: Mr. Shabala?

69     MR. SHABALA: I adopt My Friend's position on that matter, Your Honour. I believe it should be closed.

70     THE COURT: All right. The custody in the circumstances and, again, considering the nature of the offence, will be secure custody. Is there anything further that I need to deal with?

71     MR. MacFARLANE: No, Your Honour.

72     MR. SHABALA: Nothing further, Your Honour.

73     THE COURT: All right. Mr. C., I have made all these conditions. I am sure that you will be given the opportunity for counselling in the correctional facility and, obviously, while you are on probation. And I hope that you do very seriously take that counselling and learn from that counselling, because these are serious offences that you have committed and any more behaviour like this is guaranteed to land you in jail, and I am sure you don't want to spend the rest of your life in and out of jail. So you have got to do a lot of thinking and you have got to do a lot of work. Do you understand?

74     THE YOUNG PERSON: Yeah.

75     THE COURT: All right. Thank you. We will close court, then.
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                                      Certified to be a true and
                                      accurate transcript pursuant
                                      to Rules 723 and 724 of the
                                       Supreme Court Rules.



                                       ______________________________

                                      Jill MacDonald, CSR(A), RPR
                                      Court Reporter