The Crown has successfully argued the 18-month sentence of a Winnipeg man for the sexual assault of his brother’s teenage girlfriend wasn’t enough, convincing the Court of Appeal he should instead be imprisoned for three years.
The man, now in his early 20s, pleaded guilty to one count each of sexual assault and failing to comply with a recognizance in provincial court in March 2023, on the day his trial was to begin.
The Free Press is not identifying the man to avoid identifying the victim.
The Law Courts in Winnipeg in January. (MIKAELA MACKENZIE / FREE PRESS FILES)
The Crown prosecutor asked in March 2023 for the man to be jailed for five years, while his defence lawyer asked for a conditional sentence order to be served on house arrest.
Provincial court Judge Mary Kate Harvie said a conditional sentence would not be sufficient and gave the man 18 months of jail and two years of supervised probation.
Acting on behalf of the Crown, appeal counsel Rekha Malaviya took the case to the Court of Appeal, arguing to the higher court that 18 months of jail time for the sex assault was demonstrably unfit.
Malaviya told the appeal court that, at sentencing, Harvie made errors by failing to appreciate the harm caused by the man’s actions, misapprehending how morally culpable he was for the crime and the gravity of the offence.
The Court of Appeal concluded the sentencing judge made an error by focusing on the man’s personal circumstances — he is Indigenous, with limited knowledge of his cultural background, and grew up with drinking and violence in the home — and underemphasized how serious the assault was.
The man was 19 when he spent a night in June 2020 at the home he lived in with his brother, drinking and smoking cannabis with his sibling and his 16-year-old girlfriend.
The teenage girl was helped to a bedroom while intoxicated, where she passed out. When the man’s brother left to get food, the man went to the bedroom and sexually assaulted her using his fingers.
The girl awoke with no memory of what occurred and the man in the bed, with him telling her to pull up her underwear, as her genitals had bled significantly.
The man admitted to Winnipeg police that he had “digitally penetrated” the victim despite her being drunk and unaware of what was going on. He only stopped because his brother came home.
He was bound by a court order not to consume alcohol.
The Court of Appeal decision, made public online recently, was issued in mid-February, ahead of what would have been the man’s early release date in mid-March.
erik.pindera@freepress.mb.ca
Erik Pindera
Reporter
Erik Pindera reports for the city desk, with a particular focus on crime and justice.