Regina v. Sackanay [Indexed as: R. v. Sackanay]

47 O.R. (3d) 612

[2000] O.J. No. 885

No. C32663

Court of Appeal for Ontario

Laskin, O'Connor and Sharpe JJ.A.

March 23, 2000

Criminal law -- Sentencing -- Aboriginal offenders -- Accused pleading guilty to aggravated sexual assault and aggravated assault -- Offences separated by several hours but accused in continuous state of extreme intoxication -- Sentencing judge giving accused credit for 19 months spent in pre-trial custody and imposing consecutive sentences of three and one-half years for aggravated sexual assault and two and one-half years for aggravated assault -- Sentencing judge failing to give sufficient weight to direction in s. 718.2(e) of Criminal Code to sentence aboriginal offenders differently -- Sentencing judge not considering nexus between two offences -- Appeal allowed and sentences made concurrent rather than consecutive -- Criminal Code, R.S.C. 1985, c. C-46, s. 718.2(e).

The accused, who was aboriginal, pleaded guilty to aggravated sexual assault and aggravated assault. The offences involved two different victims and were committed several hours apart, but the accused was in a continuous state of extreme intoxication caused by his consumption of alcohol and crack cocaine. Giving the accused credit for 19 months spent in pre- trial custody, the sentencing judge imposed consecutive sentences of three and one-half years' imprisonment for aggravated sexual assault and two and one-half years' imprisonment for aggravated assault. The accused appealed.

Held, the appeal should be allowed.

The sentencing judge did not give sufficient weight to the direction in s. 718(2)(e) of the Criminal Code to sentence aboriginal offenders differently. While sentences should not automatically be reduced for aboriginal offenders, a different approach to sentencing aboriginals is mandated because of the systemic or background factors that play a part in bringing them before the court. The hardships which the accused had suffered should have been taken into account in determining a fit sentence. Moreover, the sentencing judge did not consider the nexus between the two offences, a nexus attributable to the accused's consumption of drugs and alcohol, which in turn was related to the systemic disadvantages he had suffered. The sentences for each offence should be concurrent rather than consecutive.

APPEAL by the accused from a sentence.

R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, 171 D.L.R. (4th) 385, 238 N.R. 1, 133 C.C.C. (3d) 385, 23 C.R. (5th) 197, folld Other cases referred to R. v. Wells (2000), 182 D.L.R. (4th) 257, [2000] S.C.J. No. 11, 2000 SCC 10 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 718(2)(e)

David Sackanay, in person. Renee M. Pomerance, for the Crown, respondent.

[1] BY THE COURT: -- This is an inmate sentence appeal. In the early morning hours of August 31, 1996, the appellant David Sackanay sexually assaulted a male prostitute. Nineteen hours later, he assaulted a taxi driver. At the time of both offences he was heavily under the influence of alcohol and crack cocaine. He pleaded guilty to aggravated sexual assault and aggravated assault. The trial judge sentenced him to six years' imprisonment, three and one-half years for the sexual assault and two and one-half years consecutive for the assault. The appellant had already served 19 months in pre-trial custody, for which the sentencing judge gave him 30 months' credit. Thus, the appellant, effectively, was sentenced to eight and one-half years, or if the usual two for one credit had been given, to over nine years.

Background

[3] The facts surrounding these offences are horrific. Both victims were subjected to gratuitous and serious acts of violence.

[4] The appellant attacked his first victim, a male prostitute, in a stairwell at 3:00 a.m. on August 31, 1996. When the victim refused sexual intercourse, the appellant assaulted him with a broken bottle and then penetrated him anally. When the victim resisted, the appellant hit him in the face, forced him to perform fellatio, took $65 from his jacket pocket, and then fled. The victim suffered a lacerated upper lip and broken jaw; his face was badly bruised and he lost four teeth.

[5] At 10:30 p.m. that evening, the appellant attacked a second victim, a taxi driver, with a broken bottle. This victim suffered four stitches to his nose, three stitches to his lip, and minor lacerations to his forehead.

[6] The appellant is addicted both to alcohol and crack cocaine, and when he committed these offences he had been on a "24 hours a day drinking and drugs bender for almost nine months". He blacked out during the sexual assault, not remembering what he had done, and the incident with the taxi driver "was a blur" in his mind.

[7] The appellant was 26 years old when he committed these offences. He has a long criminal record, which began when he was 14, and which includes several offences of violence. His longest previous adult sentence was one year in custody.

[8] At trial the appellant not only pleaded guilty but sent a letter of apology to each victim. The sentencing judge gave detailed and thoughtful reasons in which he considered the principles of denunciation and specific deterrence to be paramount. He observed that but for an optimistic report from METFORS, he would have sentenced the appellant to an even longer penitentiary term.

Discussion

[9] The sentence imposed by a sentencing judge is, of course, entitled to deference from this court. Nonetheless, we think that the sentencing judge's failure to give sufficient weight to the direction in s. 718.2(e) of the Code and his failure to consider the nexus between the two offences justify our intervention.

[10] Section 718.2(e) of the Code provides:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

The sentencing judge did refer to the appellant's aboriginal ancestry and recognized his "horrific personal and family background." But the sentencing judge did not have the benefit of the Supreme Court of Canada's decision in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, 133 C.C.C. (3d) 385. In Gladue, the Supreme Court stated for the first time that s. 718.2(e) was more than a reaffirmation of existing sentencing principles, that it recognized the unique circumstances of aboriginal offenders, and that it directed sentencing judges to sentence aboriginal offenders differently.

[11] Admittedly, both Gladue and the later Supreme Court of Canada decision in R. v. Wells, 2000 SCC 10, [2000] S.C.J. No. 11, 182 D.L.R. (4th) 257 acknowledge that sentences should not be automatically reduced for aboriginal offenders, and that for more serious and violent offences sentences are likely to be similar whether the offender is aboriginal or not. Still, Gladue mandates a different approach to sentencing aboriginals because of the systemic or background factors that play a part in bringing them before the court. The appellant's background is a poignant example of just how much the upbringing of an aboriginal can differ from that of most Canadians. The appellant was born in Moose Factory. When he was an infant his natural father was killed. Both his mother and his stepfather who raised him were alcoholics. Domestic violence permeated the household. When the appellant was eight years old, he tried to commit suicide. When he was nine, he resorted to drinking to relieve the tension and loneliness of his upbringing. He often tried to run away from home. He spent most of his adolescent years in group homes or in custody. He has a grade 10 education and few skills. He has suffered from the effects of alcohol and drug abuse. Although the appellant's crimes warrant a jail sentence, the hardships he has suffered should be taken into account in determining a fit sentence. In our view, the sentencing judge did not do so.

[12] Moreover, the sentencing judge did not consider the nexus between the two offences, a nexus attributable to the appellant's consumption of drugs and alcohol, which in turn is related to the systemic disadvantages the appellant has suffered. The appellant did commit two distinct offences, separated in time, against two different victims. But in doing so, he was in a continuous state of intoxication. The sentencing judge's failure to consider that these offences had an element of continuity bears on the question of the totality of the sentence.

[13] We think that in the light of s. 718.2(e) of the Code and in the light of the nexus between the two offences, a sentence of eight and one-half years (including pre-trial custody) was unreasonably long. In our view, we can achieve a more appropriate sentence by making the two and one-half year sentence for aggravated assault concurrent instead of consecutive. By doing so the appellant effectively receives a sentence of six years (giving the same credit for pre-trial custody as did the trial judge). In imposing this sentence we have also taken into account the appellant's genuine expression of remorse both at trial and in this court, and the reports from the institution where he is residing that he has taken positive steps to rehabilitate himself and that generally he is doing well.

[14] Therefore, leave to appeal sentence is granted, the appeal is allowed and the sentence is reduced by making the sentence for aggravated assault concurrent instead of consecutive.

[15] Finally, we wish to express our appreciation for the excellent written submission prepared on behalf of the appellant by the Queen's University Correctional Law Project under the supervision of Mr. Goddard, and for the helpful submissions by Mr. Lacey who acted as duty counsel and by Ms. Pomerance for the Crown.

Appeal allowed.