IN THE SUPREME COURT OF NOVA SCOTIA
Citation: R. v. McAuley, 2005 NSSC 87
Date: 20050330
Docket: CR 234698
Registry: Halifax
Between:
Her Majesty the Queen
v.
Scott A. McAuley
|
Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
Restriction on Publication: 486.3
Judge: The Honourable Justice Felix A. Cacchione
Heard: March 30th, 2005, in Halifax, Nova Scotia
Written Decision: April 20th , 2005
Counsel: Paul Carver and Catherine Cogswell, for the Crown
Joel E. Pink, Q.C. and David Wallbridge a/c, for the defendant
By the Court: (Orally)
[1] I will at the commencement of these reasons apologize for what may appear to be a disjointed judgment. It is not my practice to determine penalty before I have heard the submissions of counsel. In the short time that I have had, I have put together these reasons for judgment.
[2] Let me begin by saying that the situation we are dealing with today is in fact a parent’s worse nightmare. When I speak of parent, I speak of both parents of Ms. G. and those of Mr. McAuley. Every parent of a daughter lives in fear that something such as this will happen to their child and pray that it does not. Every parent of a male child fears the loss of their child to alcohol or drugs and fears what that child will do when under the influence. Unlike many offenders who appear before this court Mr. McAuley, you have the benefit of having very supportive parents and family. I would urge you to continue to rely on their support and encouragement to achieve the goals which were underlined earlier today in your submissions to this Court and to turn your life around. It may not appear to you at this stage, or perhaps it does, that your life was perhaps still is in somewhat of a downward spiral. You can effect change to that spiral.
[3] Mr. McAuley entered a guilty plea on December 9th, 2004 to the offence that he on or about the 3rd day of July 2004 at or near Halifax did in committing a sexual assault on S. G. wound S. G. thereby committing an aggravated sexual assault contrary to s.273(2)(b) of the Criminal Code.
[4] This offence carries with it a maximum penalty of life imprisonment.
[5] In the early morning hours of July 3rd Ms. G., who had been in town to attend a fund raising function and to have an evening with some friends, was grabbed from behind while walking along one of Halifax’s streets. She was dragged behind a residence where she was brutally beaten and sexually assaulted. During that sexual assault the accused told her to shut up or he would kill her.
[6] As a result of this attack, and apart from the emotional and psychological injuries suffered by Ms. G., she also suffered severe facial injuries requiring surgical intervention. I will not list in medical terminology the injuries, save to say that the left side of her face looked like a punching bag. There were broken bones including a broken nose and the eye socket.
[7] Mr. McAuley who had been in Halifax at the time visiting some friends left the Province of Nova Scotia and was subsequently arrested on the 5th of October 2004 at his residence in New Brunswick.
[8] The presentence report is favourable. He is at this stage 21 years of age, has no prior criminal record, either as an adult or as a young offender.
[9] The presentence report notes that he enjoyed a good family home life during his formative years and was not subjected to any type of abuse, unlike many of the people who appear before these courts. His parents separated when he was approximately 10 years of age and he continued to reside with his mother and sister, although he did continue regular contact with his biological father. Mr. McAuley denied any negative consequences as a result of the separation and divorce of his parents.
[10] He has been on remand since October 5th, 2004 and during that remand period has kept in daily telephone contact as well as weekly or biweekly visits from his family. As I have indicated the family remains supportive of him.
[11] The accused’s mother notes in the presentence report that her son was a great kid, however he became involved in drugs and alcohol approximately 3 years ago and his use continued to escalate. Apart from the issues of alcohol and substance abuse she noted that he never presented any other problems or concerns to his family. She says that today “she sees a new kid” and that he has begun to see the effects of his drug and alcohol use.
[12] His parents were shocked and devastated when they learned of the offence. His mother believes that her son appears to be making a big turn in his life and that he presents as being more determined to get back and give back and complete his education. She says that he echoed these comments in his submissions earlier today that he wants to redeem himself and that he has the continued support of family and friends. She describes the offence as being totally out of character for her son and cannot understand how it happened.
[13] The information provided by the accused’s mother was confirmed by his father who continues to be supportive of him. I would note that both parents are presently in the court, as is the mother of Ms. G..
[14] Mr. McAuley’s father indicated that he was not aware of the full extent of his son’s use of alcohol and drugs and that it was not until after his son commenced living in Nova Scotia that he and Mr. McAuley’s mother spoke and concerns were expressed about the increase in substance abuse and the amount of partying that was going on. The accused’s father has never seen him exhibit any type of violent behaviour toward anyone or anything and confirms as well the continued support of the family.
[15] Mr. McAuley completed High School and at the time of his arrest was attending a Community College in St. John, New Brunswick enrolled in a Business Technology Program. His goals as stated are to earn a Business Degree and run his own business.
[16] His prior employment history consisted of mostly short term jobs held during the summer vacation from school. A former employer with Canon Security who worked with Mr. McAuley from July to October 2004 described him as being a great guy, outgoing, positive, funny, easy to get along with and punctual. That employer also reported that he had never seen any signs of aggression or any types of behaviour that might be of concern during Mr. McAuley’s period of employment.
[17] The offender self reported that prior to his arrest he was consuming alcohol, mostly beer and spirits, every three days and that he would consume approximately 10-11 beers and 3/4 of a pint of alcohol. He would drink to get drunk and had been drinking since the age of 16. His consumption increased in Grade 12, however he did not, prior to the commission of the offence, recognize that his substance and alcohol abuse was a problem. He was also using marijuana on a daily basis at the time of this offence. He has indicated that since being on remand he has not used drugs, although he has had the opportunity to do so.
[18] Mrs. Susan Arsenault, a mother of a friend of the accused who has known him since the age of 5 or 6 described him as having been a typical teenager and that when he was around her he was easy-going, polite, fun-loving and just like another son to her. She was shocked to hear of the offence and had never seen any type of behaviour like that in him. She never observed in him any signs of violence or disrespect towards women.
[19] A former basketball coach and former Chief of the St. John Police Department described the accused as being physically talented and very quick to grasp concepts. He saw no signs of any criminal behaviour or substance abuse in the accused, but noted that outside of the basketball court he really did not know the accused.
[20] During the interview, in preparation for this presentence report, Mr. McAuley was cooperative, answered all questions asked of him and expressed remorse and recognized that many people have been affected for the rest of their lives by his actions. He indicated in the report, as he did today, that he feels worthy of punishment although he does not want it and believes that if he was not drinking he would not have offended. He also indicated that he does not blame the alcohol and says that he now has more motivation in his life, wants to redeem himself and believes that he can still be productive and achieve things in his life. He is a very young man.
[21] The probation officer, as well as some of the other professionals who saw him, indicated that he might benefit from substance abuse assessment and counselling, as well as treatment for any sexual deviancy, although the expert reports do not seem to indicate a sexual deviancy.
[22] Dr. Angela Connors, a forensic psychologist, prepared a comprehensive psychological presentence assessment. She noted, as did Dr. Kronfli of the East Coast Forensic Psychiatric Hospital and Dr. Hucker, a forensic psychiatrist, that Mr. McAuley lacked anxiety in the interview process to the point that his composed assurance was notable. All of them found that this was particularly striking given Mr. McAuley’s relatively young age, his lack of experience with the criminal justice process and the gravity of the offence for which he pled guilty. Dr. Connors indicated that his overall approach was that of an individual who had made an unfortunate mistake which although, nonetheless regrettable, he was now already looking past. He showed to her no evidence of either major mental illness nor of a well defined personality disorder and Dr. Hucker confirms that in his assessment which was report dated March 20th of this year. I should note that Dr. Connors’ assessment was prepared in early January of this year and Dr. Hucker saw the accused two times in February of this year.
[23] A battery of psychological tests were completed by the accused and Dr. Connors indicates that the results of all tests reflected his tendency to place himself in an unrealistically positive light, downplaying even the shortcomings and foibles of the average person. She says that the tests suggest that he tends to be unaware of his own shortcomings and thus is not an accurate identifier of such.
[24] He does not suffer from a perceptual disturbance typical of a psychotic process. His confidence and capacity to remain unperturbed even from physical signs of stress and anxiety was found to be quite remarkable given his young age, lack of experience with the criminal justice system and the gravity of the offence.
[25] The results of the testing show that he is a sociable individual, quite outgoing, enjoys the company and attention of others. In relationships he is likely to be viewed well by others on first meeting, given his capacity to be socially adept and charming. However, test results also suggest that in long-term intimate relationships he may be seen as more impatient. Some may find him to be a bit insensitive to their needs and to periodically react with sarcasm.
[26] Test results also suggest that he has little experience conducting himself in the serious side of life such that he is likely to discount and downplay any life problems that he may have.
[27] Of note is Dr. Connors comment that individuals with personality profiles similar to that of the accused typically do not seek treatment voluntarily. They do not see themselves as possessing a problem even if they are faced with life problems or interpersonal difficulties. Thus, although Mr. McAuley voiced willingness to attend for whatever treatment is recommended and it is believed that he is genuine in this statement, he will still have to overcome the fact that his willingness to attend is based on external demand characteristics not from an internal motivation to change himself.
[28] I desperately hope that the motivation to change does come from within you Mr. McAuley because if it does not, it will show and unfortunately you will be back before the courts.
[29] Testing on Mr. McAuley also indicated that he does not possess a deviant sexual preference.
[30] Dr. Connors was of the view that the accused was not particularly remorseful for his actions, nor particularly empathic regarding the victim. Who am I to say? He has expressed remorse to the court both through his counsel and himself in his submission. Dr. Connors had the benefit of testing. I can only accept at face value Mr. McAuley’s remorse and expressed intention to abide by any treatment program recommended.
[31] Of interest is the comment in Dr. Connors’ report that she viewed letters of support sent by two females who had had relationships with Mr. McAuley indicating in those letters that he had not exerted any pressure regarding sexual contact with him nor did he subject them to any form of violence. Her observation was that it does not necessarily follow that the same attitudes and actions would be expected of a female who was a stranger to Mr. McAuley and who was seen by him from a particular perspective, that is a sexual and disparaging perspective, and this coincides with Dr. Hucker’s comments with regard to the Madonna/whore view of women.
[32] Mr. McAuley did not display a preference for non-consenting sexual activity with adult females and there is no evidence that he possesses a sadistic sexual attraction.
[33] I can tell you Mr. McAuley that in preparing for this sentencing many of the things that I read brought back memories of an individual slightly older than you that I sentenced a few years ago as a dangerous offender, and he thought that he was God’s gift to women and that he could use them for his own purposes. He had certainly much more profound psychological disturbances. Nonetheless he was sentenced as a dangerous offender to an indeterminate term or incarceration. I would hope and pray that the narcissistic tendencies that were mentioned in the report are such that they can be addressed and that they can be changed. No means no. You cannot take what is not yours unless it is given to you.
[34] Dr. Connors noted that the presence of semen on the victim in this matter indicated that he is quite capable of being sexually aroused in a situation in which significant violence is being perpetrated. Her conclusion was that he does not possess a strong preference for non-consenting sexual activity and it was assumed that he was not primarily motivated by a sadistic sexual preference in the commission of this offence. That view was corroborated by Dr. Hucker who indicated, and I will refer to his report in greater detail momentarily, to a sense of entitlement and an anger/rape situation.
[35] Dr. Connors indicates that Mr. McAuley’s understanding of his crime cycle presently involves nothing personal to himself, only the external fact of excessive alcohol consumption. She posits that it is likely that his attitudes towards women and sexuality also played a significant role in combination with his tendencies towards self-indulgence, entitlement and self-centered reasoning and it seems to me, Mr. McAuley, being the father of not only of two daughters but a son who is just a bit younger than you are, that you may not be as old as your chronological age. It seems to me that teenagers seem to think that the world ends at the end of their nose and that is what that report basically is saying and you have to understand that the world is larger than you and that you are part of it.
[36] On the Psychopathy Checklist Revised he was in the 18th percentile which means that 82% of offenders would score higher than he would. So it means that he is not a psychopath. His score, according to Dr. Connors, could be considered indicative of a low range psychopathy and of a low to moderate risk for violence associated with psychopathy. Dr. Hucker’s assessment recorded even lower and said that he is not a psychopath. I take it that that is conceded. He is not a psychopath. Individuals who score in the range which Mr. McAuley did are more likely to both remain in and show success as a result of treatment that is intensive and offered within an institutional environment and that really is the glimmer of hope at the end of a very long tunnel for you Mr. McAuley. She is saying that you can change, that it is not so much a part of your character that nothing, no matter how intense the therapy is, will change you. So, it bodes well.
[37] On the Sexual Offender Risk Assessment Guide, she scored him in the 40th percentile meaning that 60% of the incarcerated forensic sexual offenders would score higher. This, when reduced to statistical form, indicates a 39% probability of violent recidivism within 7 years of release, 59% within 10 years of release and the conclusion is that he is a moderate to high risk for future violent recidivism.
[38] Dr. Connors states:
Overall, Mr. McAuley’s risk for future violent recidivism appears at least moderate, rising to moderate-high over the long term. His risk for sexually violent behaviour in particular would be considered to be at a substantial increase should he fall back into a self-indulgent and directionless lifestyle, fail to address his additional attitudinal crime cycle variables, allow himself to become excessively intoxicated, and be with a stranger female whom he considers a potential sexual conquest.
[39] The doctor recommends that he attend specialized treatment programs for sexual offenders at the moderate to high level of intensity offered by professionals trained in this field. The high intensity treatment is available only within the federal penitentiary system whereas a moderate intensity treatment is available both within the institution as well as to individuals on parole. Dr. Hucker seems to be of the opinion that it is only, and I quote:
...Based on my interviews with Mr. McAuley and my overall assessment of him I do not think sufficient progress could be expected in any less intensive programme as he would be likely to regress back into denial and minimization, for example; placed first in a community based programme.
[40] Dr. Connors, as well as Dr. Hucker, also recommend appropriate programs targeting substance abuse, plans for further education, career preparation and anger management programs.
[41] In conclusion Dr. Connors stated:
Personality testing has reflected a confident socially adept individual who may not be fully aware of his shortcomings in addition to engaging in impression management. His self-indulgent history was also reflected in personality traits suggesting impulsivity, short-sighted hedonism, and difficulties with self discipline and embracing responsibility.
[42] I think what she is saying there Mr. McAuley is that you have to grow up. Individuals with that profile typically do not seek treatment voluntarily as they often believe they can handle things on their own.
[43] He possesses a moderate to high risk for violent re-offending, a risk that will rise over time without effective intervention in the variables comprising his crime cycle and those are substance abuse, lack of structure, lifestyle instability, self-indulgence, sexual drive and attitudes towards women and sexuality. She recommends, as does Dr. Hucker, that a moderate to high intensity sexual offender treatment program offered by Correctional Services Canada as well as substance abuse programs and anger management programs be completed.
[44] The Crown is seeking a term of incarceration of 8 years. The defence is seeking a term of 5 years with a credit for time served on remand on a two for one basis, bringing the sentence to one of 4 years. Both Crown and defence agree that credit is due for the time spent on remand. The cases indicate that the reasons why that is the case (i.e. credit for remand time) are in particular lack of programming and lack of earned remission.
[45] I will not go through the numerous cases offered by both Crown and defence, other than to say that the Crown cases presented ranged in sentence really from 9 years to 12 years. All of those cases Patey, Broekaert, Huxtable, McNamara and Eakin can be distinguished on their facts. In most of those cases the offender had a record, some longer records than others. Some of the offences, Broekaert for example, where the accused had a minor prior record. He got 11½ years for an aggravated sexual assault are actually distinguishable, a screwdriver was used. The complainant was penetrated, suffered a colostomy and required a great deal of surgical intervention.
[46] Cases offered by the defence range anywhere from 5 to 7 years.
[47] I have read all the cases. I have considered them, but as has been noted in many Appeal Court decisions, not only is sentencing the most difficult task a judge undertakes, it is also one which is very, very individualistic in the sense that each offender must be dealt with on his or her own merits regarding the circumstances of the offender and the circumstances of the offence.
[48] I would like to deal in short order with Dr. Hucker’s report. There were comments in there that were troubling as well as comments in there that were hopeful. He indicated that Mr. McAuley is still using memory loss as a shield for avoiding responsibility. When reviewing Dr. Connors’ report with Dr. Hucker, Mr. McAuley’s responses were mostly based on what he felt were attacks on himself or his character or portrayals of him as fake. He perceived himself as a good guy and has continuing difficulty coming to terms with the stark barbarism of his actions. He has no serious personality pathology. The motivation for the crime remains unclear, and it may be, according to Dr. Hucker, because he has not given the fullest account of his motivations or because his motives are a combination of factors. Only through intensive intervention that we can get to the bottom of that.
[49] There are elements of entitlement rape and anger rape, but no evidence that the aggression increased his sexual arousal which would be the case in a sadistic rape situation. Anger rapes, according to Dr. Hucker, tend to be driven by impulsive grasping of opportunity often combined with impaired judgment due to intoxication, as was the case here, and I think that that is the closest that we can come, given what we know at this stage, to what and why it happened.
[50] Mr. McAuley has developed an attitude, not apparent to everyone who knows him, that treats most women with respect and courtesy; the Madonnas. But others who act in certain ways that suggest easy virtue as potential sexual preys; whores. This is not uncommon among some males especially those with strong masculine identification. He cites for example, jocks or athletes. Mr. McAuley has this attitude and it is compounded by underlying personality characteristics of narcissism. That means egocentric, focussed on self-gratification.
[51] From a statistical standpoint there is no doubt that he is at increased risk for sexual and violent reoffending. Substance abuse, Dr. Hucker found, was clearly a major dynamic risk, that is one of the variable risks that can be addressed. He does note that Mr. McAuley recognizes need for attention regarding substance abuse. He notes, as well, lack of stability in schooling or occupation would increase that risk. The impulsivity which Mr. McAuley acknowledged is present in his personality and is also a characteristic that he needs to control. It is one which would be aggravated by alcohol and drug consumption. Attitudes towards women are of concern. The “Madonna/whore dichotomy is present in his thinking and will further contribute to his risk by allowing him to consider to view certain females in an entitled way.
[52] He notes that the risks for sexual or violent reoffending is moderately high and would increase substantially if he was intoxicated and if the characteristics noted remain untreated. He has, to his credit, shown some ability to shift his stance according to Dr. Hucker, open up more with respect to his motivations and feelings than he did at the outset of his contact with the professionals who assessed him. This is a good sign and it suggests an ability to work with professionals more than was thought of initially.
[53] However, his degree of denial, lack of concern and expressed remorse in the circumstances bode rather poorly.
[54] I think you should take to heart what he says, Mr. McAuley. He says there is a lot of work to be done and you are really going to have to bear the brunt of that work. It is not going to be easy. If your intentions, as stated today, are true then you will make a concerted effort to deal with these problems. If you do not, you will find yourself back in a very similar situation. The reality is that more likely than not if there had not been an intervention or for some reason if you had not stopped, Ms. G. would dead and you would be facing a murder sentence and there is no parole. So it is up to you.
[55] I am cognizant of the principles of sentences as outlined in s.718 to s.718.2 of the Criminal Code. The fundamental purpose of sentencing is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society. This is done by imposing sanctions which have one or more of the following objectives: to denounce unlawful conduct; to deter the offender and others from committing offences; to separate the offenders from society where necessary; to assist in rehabilitation of offenders; provide reparations for the harm done to victims or the community and to promote a sense of responsibility in offenders and acknowledgment of the harm done to the victim and to the community.
[56] The sentence must be proportionate to the gravity of the offence and similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. An offender should not be deprived of his or her liberty if less restrictive sanctions may be appropriate. I am also mindful of the common law cases that direct sentencing judges not to use a cookie cutter approach in sentencing an individual. Each offender must be dealt with in light of the circumstances of the offence and his or her own personal circumstances.
[57] In this case it is my opinion that the factors to be emphasized are as follows: denunciation of this offence; deterrence to Mr. McAuley and others who might think it open season on young women who are walking the streets late at night; an acknowledgment of the harm done not only to the victim, Ms. G., but also to the community; and finally, the reformation and the rehabilitation of the offender.
[58] Both Crown and defence counsel, both experienced counsel, agreed that the gravity of this offence requires a term of incarceration in a federal institution. They differ only in quantum. I share their view that this offence and the circumstances of its commission requires a federal term of incarceration. I cannot adequately verbalize the abhorrence and the disgust felt by this community and by society at large at such cowardly and vicious acts of violence. What Mr. McAuley did to Ms. G. was demeaning contemptible and outrageous. It stole from her security of person. It changed her life forever. Not only did his actions change her life irreparably it also altered his life as well.
[59] Nothing that this Court does by way of sentencing Mr. McAuley will ever return to Ms. G. what was taken from her. It is hoped that the sentence will give her some closure and some security. It is also hoped that the sentence will allow Mr. McAuley the opportunity to address and correct the factors which led to the commission of this offence, in particular his alcohol and substance abuse, his views on women and his self-gratifying lifestyle. The sentence must be one which indicates not only to Mr. McAuley but to others in no uncertain terms that this type of behaviour will not be tolerated in our community. Like-minded individuals must be made aware that gratuitous violence and self-gratification at the expense of others comes at a very high price.
[60] I considered, as well, the victim impact statement filed by Ms. G.’s mother. I will not repeat it verbatim, save to say that it contains what one would expect to be the reaction of the mother of a person who is savagely beaten and left on the street. She has difficulty sleeping. She thinks about her daughter every waking moment, does not go to sleep until her daughter returns; makes herself available at all times so that she can drive her daughter. One can only imagine how difficult that is.
[61] Your actions, Mr. McAuley, not only violated Ms. G.’s person and her spirit, they also violated the trust that your parents and this community had in you. This community I refer to, the trust that it had, was that it is considered a safe place to live. Your actions will be forever on the minds of all of those who have been affected and no doubt will be on the minds of all young women who are walking home at night, alone or perhaps in the company of friends. All that can be done by this Court today is to segregate you from the community in hopes that you will receive the treatment that you require so that you can be reintegrated into society as a productive and law-abiding individual. You must, and I underline the word must, take this opportunity to rehabilitate yourself. If you do not, you will be facing a future marked by stays in penal institutions, no doubt longer stays.
[62] It is the opinion of this Court that a fit and proper sentence for this offence, taking into account the circumstances of the offence itself and the circumstances of this offender is that the offender be incarcerated in a federal institution for a period of 7 years. Mr. McAuley has spent almost 6 months, just a few days shy of 6 months, in pretrial custody and I calculate that on a 2 for 1 basis. I am accordingly reducing his sentence to one of 6 years incarceration.
[63] There will be, as well, orders granted under the Sex Offender Information Registration Act, a firearms prohibition, prohibiting him from possessing any firearms, ammunition or explosives for a period of 10 years and an order as well that he provide DNA samples.
[64] I would also recommend and urge that Correctional Services Canada not delay in the implementation of a treatment plan for Mr. McAuley and that the plan should include intensive sexual offender programs, anger management and substance abuse programs, as well as career counselling and problem solving courses.
[65] I have not verbalized this, but I have taken in mitigation of sentence his plea of guilty at the earliest possible opportunity, his lack of prior criminal record and his age. In aggravation, one can only refer to the brutality involved in this offence and it speaks volumes.
[66] You may not be aware of this Mr. McAuley but under the dangerous offender provisions of the Criminal Code one act of brutality may be sufficient to have someone designated as a dangerous offender, which would mean an indeterminate term of incarceration. What you perpetrated that evening comes very close, if not crossing that line. I recognize that you may not consider yourself a lucky man right now, but I think that you are because you could be facing a lot longer term.
[67] Good luck to you Mr. McAuley
____________________
Cacchione, J.