J. 1993 C. R. 12836 IN THE SUPREME COURT OF NOVA SCOTIA HER MAJESTY THE QUEEN T.V.G. DECISION ON SENTENCING Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on January 27, 2008. HEARD BEFORE: The Honourable Justice Nancy J. Bateman (and Jury) in the Supreme Court of Nova Scotia on May 2, 3, 4, 1994 DECISION: June 24, 1994 (Orally) WRITTEN RELEASE August 5, 1994 OF ORAL: COUNSEL: Robert Fetterly, for the Prosecution Delores O'Neill, for the Defence BATEMAN, J. (Orally) T.V.G., you were convicted by a jury of sexually assaulting B.S., your common‑law spouse. The offence is contrary to s. 271(1) of the Criminal Code. The evidence presented to the jury was that you and Ms. B.S. had separated few days before this offence. She continued to reside in her home where you had lived together. You called her late in the night preceding the offence. As result of that call, she was afraid to remain in her home and took the children next door to her father's house. After spending the night there she came back to her residence to pick up some clothing before work. You had entered her house sometime during the night you confronted her forced her into the bedroom and raped her, despite her struggles. According to her evidence, during your repeated penetration of her you questioned her about other boyfriends. Ms. B.S. testified, as well, that before raping her, you said that you did not care if you went to jail for this. Clearly, you appreciated the nature of your conduct and the possible consequences. Sexual assault is crime of violence. In crimes of violence, general deterrence is the primary focus, although not the only consideration. General deterrence is usually effected through incarceration, although in exceptional circumstances, other dispositions have sufficed. The case law presented to me on similar offences overwhelmingly supports incarceration the significant question being the appropriate length. Any form of spousal assault is cowardly, violent crime of domination and intimidation. It speaks of control exercised by the physically stronger partner over the weaker. It has recently been referred to as 'domestic terrorism', and that is an apt term. It is crime which shows little evidence of abating. In R. v. McCraw, 1991 decision of the Supreme Court of Canada, Justice Cory spoke of the impact of sexual assaults upon the victim. He says: "For women rape under any circumstances must constitute profound interference with their physical integrity. As well, by force or threat of force, it denies women the right to exercise freedom of choice as to their partner for sexual relations and the timing of those relations. These are choices of great importance that may have substantial effect upon the life and health of every woman. Rape is not just sexual act but is basically an act of violence." He goes on to say: "Rape throughout the ages has been synonymous with an. act of forcibly imposing the will of the more powerful assailant upon the weaker victim. The victim has been forced to undergo the ultimate violation of personal privacy by unwanted sexual intercourse. The assailant has imposed his will on the victim by means of actual violence or the threat of violence. Violence and the threat of serious bodily harm are indeed the hallmarks of rape. While the bruises and physical results of the violent act will often disappear over time, the devastating psychological effects may last lifetime." In case of our Court of Appeal, R. v. Works, decision dated December 3rd, 1991, Justice Matthews writing for the court made the following comment: "Women must be free to walk the streets in safety. Even more so, women must, in circumstances such as before us, be able to trust men and if man violates that trust, then he must receive sentence commensurate with the offence and the offender." The impact of the crime on a victim is relevant to the sentence in two ways. In the general sense, the presumed impact of this type of crime on any victim is considered in the context of the gravity of the offence and the range of sanction it attracts. Additionally, the impact of this particular offense on this victim is also to be considered in fixing sentence, but is only one of many factors. Sentences must always be tailored to the individual. The goal of sentencing is protection of the public elements of general and specific deterrence as well as rehabilitation must be considered. must weigh factors particular to you, T.V.G, and particular to the circumstances of this crime. In any crime there may be mitigating and aggravating factors which bear on sentence. The sentence which impose, T.V.G.., is one which must reflect society's outrage generally at violent crime of any form, and outrage, specifically, at your assault on Ms. B.S.. In R. v. G.M., decision of the Ontario Court of Appeal dated November 2nd, 1992, Justice Abella, writing for the Court, explains the role of denunciation in sentencing sexual offenders. She says: "The public can logically be expected to infer from the nature of the sentence the extent to which court views as serious, certain conduct by given individual ......Sentences which appear on their face to be exceptionally lenient in the circumstances can be presumed to generate neither deterrence nor denunciation." The factors which am about to address T.V.G. are, in some cases, aggravating and in others mitigating and otherwise simply factors to which must turn my mind in fixing the proper sentence. In many instances they overlap and they are not necessarily cumulative. Sentencing is not scientific process of adding up debits and credits. In my view, the fact that you committed this assault on your former common‑law wife, someone with whom you had had longstanding intimate relationship and had fathered child, is aggravating. Surely this is of more serious nature than an assault on stranger. While the fact that you assaulted Ms. B.S., not stranger, may be relevant in assessing your danger to the community at large, the fact that she was close to you does not make the crime less serious. It was form of breach of trust and that is an aggravating factor. In passing sentence, it perhaps puts the matter into perspective to consider what would be an appropriate sentence had you entered the home of stranger and raped her. The pre‑sentence report indicates that you came from stable, hardworking family. You live with your mother and, notwithstanding this offense, continue to have her support. You have been source of support to her, presumably both emotionally and physically. You and Ms. B.S. have an eleven year old daughter. Ms. B.S. has fifteen year old daughter of another relationship. Ms. B.S. indicates in the pre‑sentence report that while you have never been abusive to the children, you are father in name only, as you have not provided necessities. According to Ms. B.S., you have cocaine abuse problem. You do not acknowledge that you abuse cocaine, although admitting you have tried it. Notwithstanding your denial of substance abuse, the probation officer concludes you would benefit from drug counselling. In fixing this sentence, have not emphasized your past unrelated record, although you do not come to the court as first offender. Ms. B.S. has filed victim impact statement. She indicates that since this rape, she and the children have continued to live at her father's home. Although they have tried to return to their home, they are afraid to spend the night there. Your daughter is afraid to go to bed alone and waits for her mother to go to bed. Ms. B.S. indicates that she is nervous and finds it difficult to sleep. It is aggravating that this offense occurred in Ms. B.S.' home the place, of all places, where person is entitled to feel safe. Nor can the offense be characterized as totally spontaneous, to the extent that you had previously entered the home and stayed until Ms. B.S. appeared. Indeed, you stayed even after she had fled, until apprehended there by the police. Had B.S. been reckless about her safety, that would not have been mitigating factor. It is worthy of mention, however, that she had, the night before, fled her home, with her children, for fear of what you might do. She took all reasonable steps to protect herself in the circumstances. She could hardly have sent her blind father, or one of the children, to collect her clothes in the morning. Notwithstanding the care that she took, she was brutally raped. In fixing sentence, find the older cases of less guidance, as the custodial term for such crime has been increasing of late in response to the number of cases appearing before the courts, and the recognition that past sentences have apparently had little deterrent effect. We have not, in this Province, endorsed starting point approach, as has been done in some of the Western provinces. However, find the comments in R. v. Sandercock, decision of the Alberta Court of Appeal, of assistance, and note that it has been referenced in decisions of our Court of Appeal in particular, R. v. Blackburn. The court in Sandercock categorizes rape, not surprisingly, as major sexual assault. In R. v. Blackburn, the court approved that classification by citing the following words from Sandercock: "This category, which we would describe as major sexual assault, includes not only what we suspect will continue to be called rape, but obviously also many cases of attempted rape, fellatio, cunnilingus, and buggery where the foreseeable major harm which we will later describe is present." Without question, T.V.G., you have committed a major sexual assault, and must be sentenced accordingly. The court in Sandercock describes at p.85 the effect of sexual assault on the victim. It says: "This harm includes not just the haunting fear of another attack, the painful struggle with feeling that somehow the victim is to blame, and the sense of violation or outrange, but also lingering sense of powerlessness. What we mean by this last is that, while we all are aware in an intellectual way about the fragility of normal existence, to experience sudden and real threat to one's well‑being, threat so intense that one must beg to be spared, tends to destroy that sense of personal security which modern society strives to offer and humanity so obviously wants." am mindful, given the frequency with which these cases are appearing in the courts, that there is risk of becoming desensitized to the horror and trauma sexual assault inflicts upon the victim and the fear that radiates to society generally from reports of such crimes. The court must take care not to underestimate the gravity of this offence. It carries possible maximum sentence of ten years. In R. v. Brooks, decision of the Nova Scotia Court of Appeal, in January of 1993, an offender who had raped his former common‑law wife received sentence of forty‑two months. There are some factors present in that case not present here he was on parole at the time, and had conviction for previously assaulting his wife. Defense counsel has indicated, as well, that Mr. Brooks had received prior sentence of three years for sexual assault on his wife. In R. v. Blackburn, the accused broke into the home of an eighty‑six year old woman and raped her. His sentence was increased on appeal from three to six years. The additional aggravating factor there, not present here, was the conviction for break and enter. T.V.G., you maintain your innocence, as you are entitled to do however, jury of twelve has found you guilty of sexual assault upon Ms. B.S.. You must understand what you have done. This was not stolen romantic moment with hesitant partner, but violent assaultive act, the effects of which will stay with Ms. B.S. always and what sad example for your daughter. Sir, I am persuaded that a fit and proper sentence for your crime, taking into account the circumstances of this offence and the requirements of denunciation and general deterrence, is a period of incarceration of two years and eight months, the total being thirty‑two months. In addition, under s.100(1) of the Criminal Code, I order that you shall not have in your possession any firearm, ammunition, or explosive substance for a period of ten years. In view of T.V.G.'s financial circumstances, and the fact that he is facing lengthy period of incarceration, am not going to impose victim fine surcharge.
The defendant was convicted by a jury of sexually assaulting his common law spouse. They had separated; she continued to reside in the home with the children. Because of his repeated phone calls, she became afraid to stay in the house. She took the children to her father's house. The defendant entered the house in the night and assaulted the complainant when she returned to pick up some clothes. Imposing a sentence of two years eight months, plus a ten year firearm prohibition, that this offence could be categorized as a major sexual assault. The principles of sentencing and the impact on the victim, especially in view of the fact that she was his common-law spouse, made this sentence fit.