P.E.I. Crown appealing 'demonstrably unfit' sexual assault sentence for jailed offender
Island man has outstanding matters that Crown intends to keep in provincial court
The P.E.I. Crown Attorney's Office is appealing the recent sentence of an Island man who was sent to jail for 14 months for sexually assaulting his former spouse, arguing that the sentence was "demonstrably unfit."
Wabaningosi Dingwell, who also goes by the first name Tim, has been in jail since his sentence was handed down in P.E.I. Supreme Court last month.
He was found guilty after a trial during which his ex-wife testified about an incident in 2008, saying Dingwell began sexually assaulting her while she slept. She was 21 at the time, while he was 27.
During the trial, she told the court there were similar incidents over the course of their marriage and she was terrified of him for much of their partnership. She left him in 2021.
Now the Crown is asking that a judge in the Court of Appeal review how the sentencing judge landed on 14 months of incarceration for Dingwell.
"The learned sentencing judge erred by imposing a sentence that was demonstrably unfit," read the notice of appeal prepared by the Crown's office.
The Crown had originally proposed a sentence of three to four years in a federal prison, while Dingwell's lawyer proposed something closer to a house arrest arrangement.
During the sentencing in March, Justice Gregory Cann said he did not think Dingwell serving out his sentence in the community was in the interest of public safety.
He also spoke about how he came to his decision of 14 months in jail: balancing the crime Dingwell committed with the difficulties he had faced in his life, including those outlined in a Gladue Report, prepared specifically for Indigenous offenders.
According to the documents filed in the Court of Appeal earlier this month, the Crown believes mistakes were made in this calculation.
"The learned sentencing judge erred in his assessment of the offender's moral culpability by overemphasizing mitigating factors relating to the offender, to the exclusion of the aggravating factors," the document reads.
The notice of appeal was served to Dingwell last week. The Crown has requested a transcript of Dingwell's proceedings, and there will be a hearing on the issues raised in the appeal at a later date.
Crown downgrades charge
Meanwhile, Dingwell is also facing two newer charges from events alleged to have occurred last year: sending an indecent text message, and committing voyeurism, which is to observe someone in a private place for sexual purposes.
The alleged victim had no involvement in Dingwell's previous matters before the court.
This new person's identity is protected by a publication ban. Dingwell's ex-partner had her publication ban removed, allowing CBC News to share details about that sexual assault that would otherwise not be made public.
Few details about the new charges have emerged in court and none of the allegations have been proven.
Both of the charges were indictable, so due to their seriousness, Dingwell was given the choice of staying in provincial court or electing for his case to be heard in the Supreme Court of P.E.I.
Our intention was to go to Supreme Court on these matters … it's certainly not something we're agreeable to.— Julia O'Hanley
His legal aid lawyer, Julia O'Hanley, had requested off-docket time set for Wednesday, which typically means the accused intends to enter guilty pleas to at least some of the charges, resolving the matters without a trial.
But on Wednesday, O'Hanley told the court Dingwell had decided to elect Supreme Court and asked for an adjournment to Thursday so that she could clarify whether he wanted his case heard by judge alone or by a judge and jury.
On Thursday, John Diamond appeared for the Crown and told the judge they were seeking to downgrade the indictable charges to summary offences.
This is something the Crown can do at any point in the process. It lowers the maximum penalties for the crime and means it can be dealt with only in provincial court — effectively blocking Dingwell's election to the higher court.
"Our intention was to go to Supreme Court on these matters … it's certainly not something we're agreeable to," O'Hanley said, adding that Dingwell had instructed her to elect a jury trial.
"The Crown is not prepared to wait 18 months to have this file be finalized," Diamond replied. "It took over two years to get the man sentenced."
Twice as likely to re-offend: report
Dingwell's sexual assault case faced several delays after he elected for the case to be Supreme Court the last time, including a pause so that he could be evaluated for sexual deviancy. That report concluded he was twice as likely to re-offend, compared to others.
Chief Judge Jeff Lantz suggested the switchup to summary offences would be to Dingwell's benefit and said O'Hanley should consult about the change with her client, who was not in court Thursday.
"It wasn't the Crown that asked for an off-docket adjournment," Diamond said, adding that the impression was given that the matter would be resolved this week.
"That was certainly our expectation as well, but here we are," O'Hanley said, adding that dealing with this case was unlike anything else she had been involved with.
"We are taking steps to resolve it by amending it to summary conviction," Diamond said.
Lantz adjourned the matter to next week.
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