A first offender’s Aboriginal status triggered a Gladue analysis. She was sentenced to 33 months imprisonment after pleading guilty to sexual interference involving a 14 year old child.
Native Law Centre Case Watch Blog
The Offender pled guilty to sexual interference contrary to s 151 of the Criminal Code [“CC”]. She was 22 years of age and older than the 14 year old victim by 8 years. In this matter, the issue is the determination of a fit and just sentence for the Offender considering the circumstances of this offence. The Crown submits that a term of imprisonment of three years with mandatory ancillary orders is appropriate and is at the low end of a sentence for sexual intercourse with a child under the age of 16 years. The Defence requests a term of imprisonment of two years plus a day be imposed on the basis of Gladue considerations support a sentence outside the range (R v Gladue, [1999] 2 CNLR 252).
S 718.01 of the CC states that when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, primary consideration should be given to the objectives of denunciation and deterrence of such conduct. S 718.2 (ii.1) requires that the abuse of a person under the age of 18 years be deemed an aggravating circumstance. S 718.2 provides a non-exhaustive list of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity and totality. There is also the instruction to consider all available sanctions other than imprisonment that are reasonable in the circumstances, with particular attention paid to the circumstances of Aboriginal offenders.
The extent of the sexual interference on the victim is very grave and on the high end of the scale. The victim’s unwillingness and distress should have been obvious to the Offender. She took full advantage of the opportunity to sexually abuse the child when she entered the room. The traumatic and long-lasting effects of sexual abuse on children are well known. The victim was only 14 years old, was very upset during the incident which was partially witnessed by two persons who came to his assistance. The victim was also required to testify at a Preliminary Inquiry.
The mitigating factors for the offender is that she is a youthful first offender, she entered a guilty plea to the charge and has expressed remorse. The offender was not in a position of trust with respect to the victim. There was no violence on the part of the offender to perpetrate the offence or evidence of planning to have sexual intercourse with the victim.
The offender is Mi’kmaq and member of the Miawpukek First Nations Band of Conne River. She has a positive attitude towards employment and is very receptive to counselling. She agrees that a Federal term of incarceration would be in her best interests given the available programs. The offender’s upbringing was extremely unstable, as she endured physical violence and mental abuse for many years. She has physical and mental health problems requiring daily medication. While this is not offered at all as an excuse to sexually abuse a child, it does give an understanding of this young Aboriginal woman, how it has impacted her and the offence as Gladue requires. The Court believes her prospects for rehabilitation are positive.
If not for her high degree of intoxication on the date of the offence, the Offender may not have committed this offence, but the facts are very grave. Denunciation and deterrence remain the primary considerations. Other than the Gladue factors, this is not a case where a sentence would be on the low end of the scale. The sentence would be three and a half years imprisonment as imposed in R v Barrett, 2012 NLCA 46. Given the compelling pre-sentence report and a thorough Gladue analysis, that sentence has been reduced to a sentence of 33 months.