The Yukon’s court of appeal has overturned the sentence of a man given probation for sexually assaulting a woman.
Ashton Rosenthal has now been sentenced to 14 months in jail.
The court of appeal ruled that judge Dennis Schmidt made a mistake when he gave Rosenthal the lighter sentence last August.
Justice Virginia Schuler said Schmidt’s original ruling was “unfit” and outside the range of sentences that are usually given in cases like these, even though it was the man’s first offence. The other judges who heard the appeal agreed.
Rosenthal was convicted last year after a trial. He and a group of friends were having a party, dancing and drinking. The woman asked if she could stay the night, rather than go home at that hour. She asked to stay in Rosenthal’s bed and he agreed.
When she woke up he was digitally penetrating her.
She moved over and he removed his hand. She said she was not interested in sex and got up and dressed and went home.
When he found Rosenthal guilty, Schmidt ruled that just because the woman was in bed doesn’t mean she gave consent: “it was simply a matter of sleeping arrangements, and people would be at quite a risk if the sharing of the bed was thought to be consent to sexual activity. No two-man tent would ever be safe again,” he said.
In his sentencing, Schmidt said the 26-year-old “is neither a predator nor a violent offender.”
But the court of appeal disagreed with his sentence.
Sentences in the Yukon for cases like this, when the victim of the sexual assault is sleeping or unconscious, range from roughly 12 to 30 months’ imprisonment, the appeal judge said.
“There is no logical basis on which to exclude assault by digital penetration from the range, it being a serious and invasive form of sexual assault, as recognized by the trial judge.”
She called Schmidt’s decision to give Rosenthal a suspended sentence and two years probation a significant departure from the range identified.
“A suspended sentence does not serve the principles of denunciation and deterrence, which are especially important given the prevalence in Yukon of sexual assaults on sleeping or unconscious victims.”
She noted that Schmidt did not identify any factors that would take the sentence outside the established range in the Yukon.
The cases he used to come up with the sentence were all from outside the territory. These cases are also different because the accused in three of the cases entered a guilty plea, and the accused in the fourth case was partially successful at trial, Schuler wrote.
On top of the jail sentence, Rosenthal was given a 10-year firearms prohibition. He was ordered to surrender to police 48 hours after his lawyer received the decision.
This is not the first time that one of Schmidt’s Yukon decisions has been overturned.
Last year a 12-month suspended sentence he gave to a Whitehorse bouncer was bumped up by the Yukon Supreme Court to house arrest. A Mayo man given six months probation for cocaine possession and a probation violation also had his sentence increased to 30 days house arrest with a curfew.
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