Judge decries but accepts ‘lenient’ proposed term in NWT rape case

Warning: This report contains descriptions of sexual assaults, as heard in court, that readers may find disturbing.

A Northwest Territories woman raped as she slept by a “trusted” friend was left unable to trust anyone, could not sleep, and felt suicidal after the 2018 assault.

Sentencing Tyler Smith Tsetta to 27 months in prison for a sexual assault in Yellowknife three years ago, NWT Supreme Court Justice Shannon Smallwood said attacks on sleeping or passed-out women are “prevalent” in the territory and victims share some of the same psychological wounds.

“The victim was asleep in her own home, a place where she should be safe. She should be safe to sleep without fear that she will be sexually violated by a friend she trusted,” Smallwood told a Yellowknife courtroom on Wednesday.

“The victim was vulnerable because [she] couldn’t stop or reject Mr Smith Tsetta.”

The judge was critical of the joint sentence recommendation presented to her by the Crown and defence lawyers. The Crown acknowledged the 27-month proposal was at the low end of the available range.

“While the proposed sentence is lenient, I’m not prepared to say … this joint submission would bring the administration of justice into disrepute, or is contrary to the public interest,” said Smallwood.

Under guidelines set out by an earlier Supreme Court of Canada decision, judges can only reject a joint submission for those reasons.

“Mr Smith Tsetta is still being sentenced to a period of imprisonment that is in the range for other offenders,” Smallwood decided.

Smith Tsetta’s criminal record contains five entries — two assaults, two breaches of court orders, and a sexual assault in 2010 when he was a youth.

“I do not know the circumstances of the previous sexual assault, but the sentence imposed [then] suggests that it was a serious sexual assault,” said the judge. “So in that sense, Mr Smith Tsetta’s criminal record is of concern.”

On June 10, 2018, the woman and a group of friends returned to her home after drinking “a significant amount of alcohol,” an agreed set of facts states.

The woman and Smith Tsetta were “very close friends” who had known each other for about three years. Eventually, everyone else left the residence except Smith Tsetta and another woman who had fallen asleep in the living room. 

The victim, fully dressed, laid on a couch in the living room and fell asleep. She awoke to find Smith Tsetta raping her.

Crown prosecutor Angie Paquin on Tuesday said Smith Tsetta later told RCMP he had no recollection of those events, other than being asked to leave and then finding himself cold and confused in the vicinity of the McDonald’s restaurant on Old Airport Road.

He texted the woman later that day and apologized for anything that had happened.

Defence lawyer Charles Davison told the court his client, now 29, has been diagnosed with a fetal alcohol spectrum disorder. He was adopted as an infant and raised in a loving home in Dettah by adoptive parents, who were in court on Wednesday for the decision.

Smith Tsetta graduated high school in Yellowknife and has since mostly worked in commercial kitchens.

Smallwood noted the starting penalty for what the court terms a serious sexual assault in the NWT is generally three years. However, the judge continued, there were several mitigating factors in Smith Tsetta’s case.

Even though his September 2 guilty plea came only after a preliminary inquiry – at which the victim had to testify – it eliminated the need for the victim to again relive the traumatic events in open court, in front of a jury, Smallwood said.

Smith Tsetta is Indigenous, meaning Gladue factors must be considered. The Gladue principle requires judges to consider the unique systemic or background factors that may have played a part in bringing an Indigenous offender before the courts.

Smallwood noted the victim was also considered a vulnerable person, as she is Indigenous and was asleep when attacked.

Smith Tsetta has been in custody for 162 days, translating to about eight months’ remand credit to be applied to his sentence. He has 19 months left to serve.

A DNA sample was ordered for the federal databank and Smith Tsetta will be on the national sex offenders’ registry for 20 years. He will be prohibited from possessing firearms for 10 years.