FASD & the Justice System
R. v. Obed, 2006 NLTD 155; [2007] 2 C.N.L.R. 355

FACTS: Sentencing of the offender, Obed, following his guilty plea and conviction for sexual assault, assault, and breach of probation. The offender lured the victim into a secluded area with the promise of alcohol, punched and kicked her, and sexually assaulted her. He had been released from prison 12 days earlier and was on probation. The offender, an Aboriginal male, age 34, suffered from FASD. He had 50 previous convictions, including seven for sexual assault and five for assault. His parents were abusive chronic alcoholics. The pre-sentence report stated that the offender was sexually victimized as a youth and was unsuitable for probation or a conditional sentence. An expert witness concluded that without significant monitoring and programming, the offender's mental disorder rendered him incapable of governing his behaviour and learning from past experiences with the judicial system.

HELD: Obed was sentenced to 10 years' imprisonment, less credit for time served. The sexual assault conviction carried a 10-year term. The assault conviction carried a three-year concurrent term, and the breach of probation conviction carried a one-year concurrent term. The prior record of the offender, the seriousness of the offence and the associated violence, made the principles of separation, denunciation, and deterrence fundamentally relevant. Therefore, the offender was not afforded any different sentencing considerations by virtue of his Aboriginal heritage. The offender's pattern of criminal behaviour was unlikely to change. Rehabilitation and deterrence were unrealistic due to the lack of available treatment for the offender's mental disorder. He presented a significant threat of committing further related offences. The offender was ordered to provide a DNA sample and comply with the Sex Offender Registration Program.

In regards to FASD as a social problem, the judge stated that this "case is like the canary in the coal mines. It's a warning that we will be incarcerating more and more people in our society for criminal matters, serious criminal matters unless immediate steps are taken to study this issue more carefully and to develop programs that have a meaningful way of dealing with them."

CanLII Link: http://www.canlii.org/en/nl/nlsctd/doc/2006/2006nltd155/2006nltd155.html