S.C.C. No. 02712
IN THE SUPREME COURT OF NOVA SCOTIA
APPEAL DIVISION
Clarke, C.J.N.S., Chipman and Roscoe, JJ.A.
Cite as: R. v. R.S.R., 1993 NSCA 41
BETWEEN:
R. S. R. ) the appellant appeared in person
)
appellant ) Gordon S. Gale, Q.C.
) for the respondent
- and - )
) Appeal Heard:
HER MAJESTY THE QUEEN ) January 26, 1993
)
respondent ) Judgment Delivered:
) January 28, 1993
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Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
THE COURT: Appeal dismissed from sentence for sexual assault per reasons for judgment of Clarke, C.J.N.S.; Chipman and Roscoe, JJ.A. concurring.
CLARKE: C. J.N.S.
The appellant pled guilty to a charge of sexual assault of his then estranged wife, D. R.. It is from the sentence imposed of two years less a day that he now appeals.
The appellant and his wife have two children. At the time of this offence the children were 8 and 6 years of age and the parents had been separated for some 14 months. Mrs. R. had custody of the children. On June 15, 1991, the children were visiting the appellant. Crown counsel explained to the sentencing judge that the appellant brought the children back to his wife's home between 3 and 4 a.m. The appellant at that time was in an agitated state. Mrs. R. sent the children to bed. An argument ensued between the parents. When one of the children appeared Mrs. R. persuaded the appellant to go outdoors with her to continue the discussion in order that the children not be upset. Outside his rage escalated. He physically assaulted her, knocking her down and pulling down her jeans. Then suddenly he left her and drove off in his car. She fled in an attempt to go to a neighbour's house for help, but the accused returned, again physically assaulted her, removed her clothes and engaged in forced sexual intercourse. Crown counsel told of the force used and the terror experienced by Mrs. R. and submitted that an aggravating factor was that one of the children was nearby when some of the assaults occurred.
Defence counsel's explanation to the sentencing judge was in part:
"With respect to the circumstances giving rise to this matter, Mr. R. indicates to me that while he has entered a guilty plea with respect to the offence of sexual assault, he indicates that the offence was without violence, was without threat of violence, but that intercourse was obtained recklessly."
When he addressed the sentencing judge, the appellant reiterated that "there was no violence in this matter" and that he resented any indication that he would do anything which would harm his children.
At time of sentencing the appellant was 44 years old and had grade 12 education. The pre-sentence report has both good and bad features. His one previous conviction was for a common assault of his wife in 1991. There was a difference of opinion expressed by Crown counsel and the appellant as to whether the charge was indictable or summary. For that offence he was fined $110.00.
A report from a psychiatrist was introduced into evidence by the Crown. The appellant has had five admissions to the Nova Scotia Hospital. He is suffering from "a Bipolar Affective Disorder - Manic Type, with alcohol abuse".
After setting out the Crown's view as to both the aggravating and mitigating circumstances, which I have not set out in detail here, Crown counsel submitted that the appropriate sentence would be a term of imprisonment for 2 years less a day - the sentence ultimately imposed.
Both Crown and defence counsel submitted that the appellant's mental condition should be taken into consideration in mitigation of sentence.
Defence counsel took exception to several comments made by Crown counsel in addition to those previously mentioned.
There can be no doubt that the sentencing judge took into consideration and reached conclusions respecting some of the disputed submissions. He should not have done so. In R. v. Gardiner (1982), 68 C.C.C. (2d) 480 (S.C.C.), Dickson, J. (as he then was), speaking for the majority set out the principles of sentencing, saying in part at pp. 513-4:
"Sentencing is part of a fact-finding, decision-making process of the criminal law. Sir James Fitzjames Stephen, writing in 1863 said that 'the sentence is the gist of the proceeding. It is to the trial what the bullet is to the powder" (quoted in Olah, "Sentencing: The Last Frontier of the Criminal Law", 16 C.R. (3d) 97 (1980), at p. 98). The statement is equally true today.
One of the hardest tasks confronting a trial judge is sentencing. The stakes are high for society and for the individual. Sentencing is the critical stage of the criminal justice system, and it is manifest that the judge should not be denied an opportunity to obtain relevant information by the imposition of all the restrictive evidential rules common to a trial. Yet the obtaining and weighing of such evidence should be fair. A substantial liberty interest of the offender is involved and the information obtained should be accurate and reliable.
It is a commonplace that the strict rules which govern at trial do not apply at a sentencing hearing and it would be undesirable to have the formalities and technicalities characteristic of the normal adversary proceeding prevail. The hearsay rule does not goven the sentencing hearing. Hearsay evidence may be accepted where found to be credible and trustworthy. The judge traditionally has had wide latitude as to the sources and types of evidence upon which to base his sentence. He must have the fullest possible information concerning the background of the accused if he is to fit the sentence to the offender rather than to the crime.
It is well to recall in any discussion of sentencing procedures that the vast majority of offenders plead guilty. Canadian figures are not readily available but American statistics suggest that about 85% of the criminal defendants plead guilty or nolo contendere. The sentencing judge therefore must get his facts after plea. Sentencing is, in respect of most offenders, the only significant decision the criminal justice system is called upon to make.
It should also be recalled that a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Beyond that any facts relied upon by the Crown in aggravation must be established by the Crown. If undisputed, the procedure can be very informal. If the facts are contested the issue should be resolved by ordinary legal principles governing criminal proceedings including resolving relevant doubt in favour of the offender.
To my mind, the facts which justify the sanction are no less important than the facts which justify the conviction; both should be subject to the same burden of proof. Crime and punishment are inextricably linked. 'It would appear well established that the sentencing process is merely a phase of the trial process' (Olah, ibid., at [p. 107). Upon conviction the accused is not abruptly deprived of all procedural rights existing at trial: he has a right to counsel, a right to call evidence and cross-examine prosecution witnesses, a right to give evidence himself and to address the court."
He continued at p. 515:
"In my view, both the informality of the sentencing procedure as to the admissibility of evidence and the wide discretion given to the trial judge in imposing sentence are factors militating in favour of the retention of the criminal standard of proof beyond a reasonable doubt at sentencing (Olah, ibid., at p. 121:
'Because the sentencing poses the ultimate jeopardy to an individual enmeshed in the criminal process, it is just and reasonable that he be granted the protection of the reasonable doubt rule at this vital juncture of the process.'"
The disputed submission by the Crown should not have been considered by the sentencing judge here unless proven beyond a reasonable doubt.
Sexual assault is a crime of violence. This court has said on many occasions that, with such crimes, general deterrence must be given primary consideration. Sexual assault requires condemnation by the courts both by language and by the sentencing process. The primary mitigating factor here is the appellant's mental condition. That was recognized by Crown and defence counsel and the sentencing judge. As the judge said in conclusion "...but for the submission of the Crown, I would have imposed a longer sentence requiring imprisonment in a federal institution". If the aggravating circumstances had been properly established, the sentence could have been longer.
I have examined and weighed the admissible evidence. In my opinion, leave to appeal should be granted and the appeal should be dismissed. If it were not for the mitigating circumstances recognized by the sentencing judge the sentence for this crime would not be fit.
C.J.N.S.
Concurred in:
Chipman, J.A.
Roscoe, J.A.