Q.B.C.R.N.J. No. 3147 J.C. M.J. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF MOOSE JAW BETWEEN: HER MAJESTY THE QUEEN and ACHIEL VAN DE WIELE Walter A. Wall for the Crown Michael Megaw for the accused JUDGMENT SCHEIBEL J. September 25, 1996 [1] The accused has been convicted of sexual assault. [2] The Crown, in seeking sentence of 1/2 to years, categorizes this offence as rape. They indicate there was no prior romantic connection between the victim and the accused, and that she pleaded with him not to do this. The Crown point out the victim suffered bruising and soreness from the incident. [3] The Crown submit that the victim incurred the displeasure of the community and lost her job because the community chose the accused's interest over hers. In addition, the Crown states the victim was harassed and had her property damaged and was forced to go for counselling. [4] The accused claims the victim lost her job because of her inability to satisfactorily perform her duties and that it had nothing to do with the sexual assault. They state the property damage and vandalism has no connection to this case. In any event, the defence claims the Crown has failed to prove this assertion. [5] The accused refers to the new sections in the Criminal Code with respect to alternative measures of sentencing and requests that he be given a non-custodial sentence. [6] Section 718.1 of the Criminal Code reaffirms the principle that sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [7] Section 718.2 states the sentence passed must also take into consideration that sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [8] The Criminal Code goes on to say that sentence for similar offences committed in similar circumstances. In series of decisions, the Saskatchewan Court of Appeal have stated that there is three year threshold sentence for sexual assault where there is penetration. The sentence is to be increased or decreased from the three year term based on the circumstances of the individual case. [9] However, s. 718.2(d) of the Criminal Code provides that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. In addition, the Criminal Code states that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. [10] Prior to these new provisions being enacted the Saskatchewan Court of Appeal held in R. v. Roberts (1995), 1995 CanLII 3924 (SK CA), 128 Sask.R. 158, that where there was sexual assault with no proof of actual penetration, electronic monitoring was not an option. In that case the Court of Appeal held that electronic monitoring is permitted only in cases involving offences which are non-violent and do not carry the presumption of incarceration. This principle was also advanced in R. v. McLeod (R.G.) (1992), 1992 CanLII 8279 (SK CA), 109 Sask.R. 8; 42 W.A.C. 8; 81 C.C.c.(3d) 83 (C.A.). [11] It is necessary to consider whether the new provisions of the Criminal Code change the established range of sentences for sexual assault. [12] All sexual assaults are serious crimes of violence and as such must be strongly denounced by the Court. sentence other than custodial term for this type of sexual assault would not meet the fundamental principle referred to in s. 718.1, that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [13] Nor would non-custodial sentence, in case such as this, meet the general principle of sentencing established over the years for such crimes. [14] This case arose in small town and virtually the entire community has lined up in support of either the victim or the accused. Those in support of the accused feel the accused should not be incarcerated. Those in support of the victim feel long term of imprisonment is justified. [15] It is clear that any sentence imposed will be viewed by one side or the other as too lenient or excessively high. [16] It is my duty to pass sentence that reflects the seriousness of the offence, that punishes the accused for his actions, that will deter the accused and others from committing such offences and one that will protect the public and maintain the public's confidence in the administration of justice. In addition, must pass sentence that is conducive to the rehabilitation of the offender and one that does not seek vengeance. [17] The accused is 58 years old. He has no prior criminal record. Until this event he appears to have led an exemplary life. Clearly alcohol was not only the major factor in the commission of this offence, but am satisfied the offence would not have occurred if the accused had not been drinking. Even though have concluded there was no actual penetration, nevertheless this was serious sexual assault. [18] The actions of the accused are totally out of repeated. Since the incident, the accused has abstained from alcohol and states he will never consume it again. The accused, in his address to the Court, gave serious heart- wrenching apology for his actions. He apologized to the victim, to his family and to the Court for his actions. He is deeply sorry for his involvement. [19] He is currently under doctors care and taking medication. His actions have affected him so gravely that he is on the verge of nervous breakdown. am firmly of the view that the accused will never re-offend in the future. [20] On the other hand, I cannot ignore the impact upon the victim. In addition to the assault she has lost her job in the community and is ostracized in the town. She is also currently on medication as result of this incident and is taking counselling. This offence has had grave consequences for her because some people appear to treat her as the offender rather than the victim. [21] This incident has been tragic for both parties, however, must not loose sight of the fact that it was the punished accordingly. [22] In the absence of mitigating factors, sentence in the range of three years would be just and fair. The following factors lead me to the conclusion that a lower sentence is justified in this case. 1. The accused has no prior criminal record; 2. This offence was motivated by alcohol and the accused has, since the incident, voluntarily quit using alcohol; 3. The accused was a model citizen until this offence; 4. The accused immediately removed his finger from the victim's vagina when she asked him not to do this and did not pursue the assault; 5. There was no penile penetration; 6. The accused has publicly apologized to the victim and to the Court for his actions and is genuinely filled with 7. The accused will loose his job as result of this incident; 8. The accused is suffering from serious health problems; 9. There is virtually no chance that the accused will ever commit another criminal offence; 10.A lengthy sentence will seriously affect the accused's ability to rehabilitate. [23] Taking all of the factors of sentencing into account, it is the sentence of this Court that you serve a term of 18 months in a provincial correctional centre. [24] Having imposed a custodial sentence of less than two years, I must now deal with s. 742.1 of the Criminal Code which permits the court to allow the accused to serve his term in the community. This section has just recently come into force. am not aware of any judicial cases applying this section in sexual assault cases. Indeed, electronic therefore I am of the view that given the seriousness of the offence, it would be contrary to the administration of justice to permit the accused to serve the sentence in the community even though the accused appears to meet the requirements of s. 742.1(a) and (b) of the Criminal Code. am left with no alternative. Therefore, the sentence must be served in a provincial correctional centre. [25] In addition, pursuant to the mandatory terms of s. 100 of the Criminal Code, the accused is prohibited from having any fire arms, ammunition or explosive substances for period of ten years from his release from prison.
The accused, convicted of sexual assault, requested a non-custodial sentence pursuant to s742.1 of the Criminal Code. HELD: The accused was sentenced to 18 months in a provincial correctional institution. 1)It would be contrary to the administration of justice in view of the seriousness of the offence to allow the accused to serve his sentence within the community even though he appeared to satisfy the requirements of s.742.1(a) and (b) of the Code. There were numerous adverse impacts on the victim. 2)Mitigating circumstances included the absence of a criminal record; his abstinence from alcohol since the assault; the absence of penile penetration; his remorse and apology to the victim and to the court; his serious health problems; his ability to rehabilitate and the fact that he was a model citizen prior to the assault.