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DANGEROUS AND LONG-TERM OFFENDERS - Long-term offender designation - Eventual control of risk in community

Friday, April 06, 2018 @ 8:52 AM  

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Appeal by Skookum from his designation as a dangerous offender and the sentence imposed of six years’ imprisonment and a 10-year long-term supervision order in relation to a sexual assault conviction. Skookum was 24 years old at the time of the predicate offence. The complainant was a 17-year-old female acquaintance with whom Skookum consumed an excessive amount of alcohol before going to Skookum’s father’s cabin, where the complainant passed out, fully clothed. She awoke to find Skookum on top of her, having non-consensual sex. She was unable to get up because Skookum was much larger than her. She was naked from the waist down and experiencing vaginal pain when she awoke again early in the morning. She attended hospital, where she underwent an examination. Skookum’s DNA was identified from a vaginal swab. He admitted to having unprotected vaginal intercourse with the complainant, who had no capacity to consent. Skookum had two previous convictions for sexual assault. In 2006, he pleaded guilty to sexually assaulting his girlfriend when he was 15 years old, and in 2011, he pleaded guilty to sexually assaulting a four-year-old child, whose home he had entered surreptitiously before getting into bed with her and her seven-year-old brother. He removed the child’s underwear and touched her genital area for a few minutes. Skookum also had a significant youth and adult record for crimes of violence. At his dangerous offender hearing, Skookum acknowledged that certain sexual assault offences he committed were wrong. The doctor who prepared a report for the hearing expressed concern over the extent to which Skookum could be out of control during an alcoholic blackout. Skookum testified he had no recollection of the 2011 sexual assault. He was a member of the Tahltan First Nation, who had experienced significant disadvantages in his childhood. His parents both struggled with alcoholism. His father committed suicide when Skookum was five years old. Skookum was taken into foster care at eight years old because of his mother’s substance abuse. She died of cirrhosis when Skookum was 15. His education was limited. He had been abusing alcohol and drugs since 10 or 11 years of age. He met the criteria for conduct disorder in 2007. In 2011, he was assessed as being high risk for future violent and sexual re-offending. The doctor concluded Skookum had anti-social personality disorder and substance abuse disorder. He considered it significant that Skookum did not deny the severity of his substance abuse problems. The doctor stated it was a reasonable expectation that Skookum’s risk could be reduced to the point he could be managed in the community in future. The judge accepted that Skookum was a high risk to re-offend violently without effective treatment. While he agreed that the test for the dangerous offender designation was whether a reasonable expectation of control in the community existed, he had no hesitation in finding Skookum a dangerous offender. Since being sentenced, Skookum had participated in intensive sex offender treatment.

HELD: Appeal allowed in part. The dangerous offender designation was set aside, and a long-term offender designation was substituted. The sentence imposed was confirmed. The judge erred in concluding that Parliament had established a fairly low threshold for a dangerous offender finding. He failed to consider Skookum’s treatment prospects at the designation stage, erring in principle. Skookum was not shown to be intractable, but was rather maturing, motivated to change, and, with the benefit of treatment, capable of surmounting the behavioural challenges and personality deficits that caused him to offend in the past. The court was empowered to substitute a long-term offender designation for the dangerous offender designation. In imposing the determinate sentence, the judge duly considered Skookum’s rehabilitative prospects and status as an Indigenous man with an unfortunate family history. The sentence imposed was fit, given Skookum’s moral culpability, his history of violent offending and the risk he posed to the public. Aggravating factors included the age of the complainant and her vulnerable position, the harm he caused her, and his lengthy related record. Mitigating was his guilty plea, his relative youth, and his goal of rehabilitation. Deterrence and denunciation remained paramount considerations given the complainant’s age.

R. v. Skookum, [2018] Y.J. No. 13, Yukon Territory Court of Appeal, K.C. Mackenzie, D.C. Harris and G.J. Fitch JJ.A., March 12, 2018. Digest No. TLD-April22018009