A 19-year-old Keeseekoose man who has been in custody on remand for sexual assault since March will spend an additional two-and-a-half months in jail.
At a sentencing hearing June 26, Judge Ross Green sentenced James Keshane to six months less time-served for a December 2012 incident in which the young man made unwanted sexual advances to a 14-year-old girl.
The Crown, represented by Andy Wyatt, sought one year incarceration for the offence.
The prosecutor described for the Court that on the evening of December 16, 2012, the victim was washing dishes when Keshane came up behind her, grabbed her buttocks and whispered sexual things in her ear. The girl fled from the house and Keshane followed, but ultimately backed off.
Wyatt admitted that on the scale of sexual offences, this was on the lower end and that Keshane’s criminal record was not extensive and did not include any previous sexual offences, but argued there were several aggravating circumstances.
The first of these, he said, was that at the time of the offence, Keshane was already on a conditional release stemming from charges of assault causing bodily harm in Regina, a case that is still before the Court.
He referenced victim impact statements from both the girl and her mother that indicated the girl was terrified by the incident and remains fearful of Keshane.
Wyatt also referenced a pre-sentence report that predicted the young man is a high risk to reoffend in a general sense and a moderate-to-high risk to commit another sex offence. The pre-sentence report, he said, also brought into question whether Keshane was truly remorseful and had accepted full responsibility for his actions.
The prosecutor submitted a Court of Appeals decision as case law in which a 36-year-old man received a one-year sentence for sexual touching and verbal sexual advances to an off-duty female RCMP member. When she refused, he grabbed her by the neck causing bruising, but eventually relented, apologized and left.
Wyatt admitted that, in the case before the Court, the sexual touching did not go as far and the violence was not as significant, but said the “glaring difference” was that the victim was only 14 years old. Even a one-year sentence, he suggested, was on the lenient side considering new mandatory minimum sentences for sex offences and a trend toward stricter penalties in general.
Defence attorney Kim Stinson also referred to the pre-sentence report saying that the author alluded to Keshane suffering from Fetal Alcohol Spectrum Disorder (FASD), although he has never been formally diagnosed with the condition. He said his client’s lack of cognitive development (often a symptom of FASD) was a factor in his behaviour. He argued that the report indicated Keshane’s high risk to reoffend could be reduced by reducing risk factors.
These factors included getting Keshane away from the reserve where he tends to be subject to negative influences and getting the young man into treatment.
Stinson suggested his client did not need to go to jail to find the help he needs. In fact, he said, although in-custody programs for substance abuse and cognitive skills development are available, sexual offender treatment is not.
Stinson submitted his own piece of case law in which a 52-year-old man received no jail time. The defence attorney acknowledged this 2003 case was prior to the new mandatory minimums and the “shift in winds,” which he characterized as “political.”
Although he said neither he nor his client wanted to minimize the impact on the victim, he called the Crown’s case law much more serious.
“It is so far out of the realm of what we’re talking about here,” he said, concluding that in range of offences under sexual offences, “this has to be seen as the lowest possible end.”
He pointed out that the mandatory minimum sentence is 90 days and since his client had already served three-and-a-half months, “he has served his time.”
Judge Green disagreed.
In arriving at six months, the judge took into consideration the victim impact statements of the girl and her mother.
He said he was apprehensive about the pre-sentence report because it was equivocal on whether the accused had cognitive challenges.
As mitigating factors, Green considered Keshane’s age, the lack of violence in his previous criminal record and his guilty plea, but said the overriding aggravating circumstance was the age of the victim.
In addition to jail time, the judge imposed 12 months probation after Keshane’s release. On top of the statutory conditions, he will be required to live in a residence determined by a probation officer; must seek and maintain employment or educational opportunities; must complete sexual offender programming; and must not have any contact with the victim.
The judge also ordered Keshane to supply a DNA sample and placed him on the sexual offender registry for 10 years. These two orders are mandatory as sexual assault is a primary designated offence.