R. v. A.J.P.J., (2011) 502 A.R. 174 (NWTCA)

• Judge: Schuler, Slatter and McDonald, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: January 18, 2011
• Jurisdiction: Northwest Territories
• Citations: (2011), 502 A.R. 174 (NWTCA)

R. v. A.J.P.J. (2011), 502 A.R. 174 (NWTCA);

      517 W.A.C. 174

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. MR.002

Her Majesty The Queen (appellant) v. A.J.P.J. (respondent/accused)

(A-1-AP2010000004; 2011 NWTCA 2)

Indexed As: R. v. A.J.P.J.

Northwest Territories Court of Appeal

Schuler, Slatter and McDonald, JJ.A.

January 18, 2011.

Summary:

The 50 year old accused had non-consensual sexual intercourse with the passed-out 20 year old victim, who was boarding in the accused's house and treated like a member of the family. A jury convicted the accused of sexual assault. The trial judge imposed a sentence of two years' imprisonment plus two years' probation. The Crown appealed, arguing that the sentence was demonstrably unfit.

The Northwest Territories Court of Appeal allowed the appeal and substituted a sentence of four years' imprisonment.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle) - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - The 50 year old accused had non-consensual sexual intercourse with the passed-out 20 year old victim, who was boarding in the accused's house and treated like a member of the family - A jury convicted the accused of sexual assault - The trial judge, in imposing a sentence of two years' imprisonment plus two years' probation, found the breach of trust to be an aggravating factor - He found the accused's "clean record" for the past 20 years, the lack of gratuitous violence and the accused's ceasing sexual intercourse when the victim awoke, to be mitigating factors that warranted a departure from the starting point sentence of three years' imprisonment - The Northwest Territories Court of Appeal allowed the Crown's sentence appeal and substituted a sentence of four years' imprisonment - The sentence was demonstrably unfit - A sexual assault on a sleeping or passed-out victim was usually treated as an aggravating factor - The judge did not do so - The accused's record, although dated, was an aggravating factor - His "clean record" for the past 20 years was relevant, but was not a mitigating factor - Although gratuitous violence was aggravating, the absence of gratuitous violence was neutral - The judge erred in considering the fact that the aboriginal accused had attended a residential school as mitigating, where no evidence was presented on the issue - The error in treating these aggravating or neutral factors as mitigating factors led to the judge reducing the sentence below the starting point of three years - Four years' imprisonment was a fit sentence.

Cases Noticed:

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 10].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 10].

R. v. Beaverho, 2009 NWTSC 50, refd to. [para. 12].

R. v. C.T.B., 2009 NWTSC 35, refd to. [para. 12].

R. v. Takazo, 2006 NWTSC 17, refd to. [para. 12].

R. v. Apples, 2004 NWTSC 29, refd to. [para. 12].

R. v. R.J.K., 2003 NWTSC 40, refd to. [para. 12].

R. v. J.L.M.A. (2010), 499 A.R. 1; 514 W.A.C. 1; 2010 ABCA 363, refd to. [para. 13].

R. v. Sandercock (1985), 62 A.R. 382 (C.A.), refd to. [para. 17].

Counsel:

J. Walsh, for the appellant;

T. Boyd, for the respondent.

This appeal was heard on January 18, 2011, at Yellowknife, N.W.T., before Schuler, Slatter and McDonald, JJ.A., of the Northwest Territories Court of Appeal.

On January 18, 2011, McDonald, J.A., delivered the following memorandum of judgment orally for the Court.