Mitigating factors ruled erroneous in appeal court, including aboriginal descent
Yellowknife (Jun 23/00) - It was ruled that an aboriginal man received too light of a sentence in the NWT Court of Appeal in Yellowknife Tuesday -- in part because of his native descent.
According to Crown counsel Louise Charbonneau, representing the Crown as the appellant, trial judge Justice C.S. Brooker incorrectly used a section of the criminal code, related to aboriginal defendants as one of the mitigating factors, in Richard Allen Andre's initial three-year sentence for sexual assault.
The panel of justices ruled in favour of an extended jail term, totalling five years, after Charbonneau presented the Crown's appeal, saying alcohol and remorse were also incorrectly applied in Brooker's decision.
"It is very much an error to treat alcohol as a mitigating factor," Charbonneau said.
"It is also an error to treat aboriginal descent of an individual as a mitigating factor."
She added that in Andre's own testimony at his trial last Spring remorse was interpreted, not for the victim but for the events of his past.
Section 718.2(e) of the Canadian Criminal Code states that all available sanctions aside from imprisonment should be considered for all offenders when reasonable, "with particular attention to the circumstances of aboriginal offenders."
Charbonneau argued that once jail is imposed there is no restorative factor therefore the section's service as a palliative measure in sentencing is futile.
Andre's counsel Thomas Boyd argued the context in which the judge made his decision adding, "The learned trial judge made a courageous judgement" and used case law to argue the section's broader jurisdiction.
Andre, who has a lengthy previous record involving sexual offenses, sexually assaulted a woman without consent and was sentenced April 2. in Inuvik.
Previous consensual sexual activity among both intoxicated parties also took place the same evening.
Justices Jean Cote, Connie Hunt and Virginia Schuler gave the Crown leave to appeal and allowed the appeal, ruling Andre's sentence be increased by two years.
He is currently serving it in Bowden's maximum security prison in Alberta.