‘This would be considered a major sexual assault’
Crown seeks three-year prison term for Brayden Paczay, 23, of Chipman, while defence pushes for community-based sentence for non-consensual intercourse two years ago
Warning: This story features graphic descriptions of sexual assault.
A Chipman man will learn later next month if he’ll end up behind bars or be allowed to serve time at home for just assuming the woman he had sex with in 2021 was OK with it.
Fredericton provincial court Judge Lucie Mathurin found Brayden Paczay, 23, of Red bank Drive in Chipman, guilty in June of an indictable count of sexual assault that occurred two years ago.
At trial, court heard Paczay quietly slipped into a female friend’s bedroom at her family home July 28, 2021, touched her sexually, penetrating her vagina with his fingers, and then got on top of her in her bed and had intercourse with her.
There’s a court-ordered publication ban protecting the woman’s identity.
She testified she never consented to the contact, never said anything to suggest it and specifically told Paczay “it wasn’t a good idea.”
When he violated her with his fingers, the woman said, she froze.
In her decision, Mathurin said Paczay essentially admitted there had been no communication regarding consent, as he testified “he just assumed” the victim was into the sex.
The offender was back before the judge Tuesday for his sentencing hearing.
Crown prosecutor Nina Johnsen said case law indicates Paczay’s crime was a significant one on the scale of such offences, given the vagina penetration with his penis.
“This would be considered a major sexual assault,” she said.
Paczay hasn’t taken responsibility for his crime, the prosecutor said, pointing to his pre-sentence report interview in which he still maintains his innocence.
The victim has sustained a clear psychological trauma, Johnsen said, noting “a penetrative sexual assault” represents a grave instance of violence.
Furthermore, she argued, such crimes affects the community at large, instilling fear in women that it could happen to them.
While Paczay has no prior criminal history, Johnsen recommended a sentence of three years in prison, with mandatory ancillary orders including a weapons ban for 10 years, a 20-year sex-offender registration order and a requirement to submit a DNA sample.
‘He’s never been in trouble with the law before’
Defence lawyer Robert Digdon countered that given his client’s clean record and good character, a conditional sentence, to be served in the community, would be the appropriate sentence.
He said Paczay is a youthful offender, and in such cases, sentencing judges have been directed to focus on rehabilitation as opposed to denunciation of the crime or general deterrence.
The defence lawyer noted the law calls on judges to refrain from incarceration if less restrictive penalties can still promote respect for the law and the need to deter people from such crimes.
“He’s never been in trouble with the law before,” Digdon said of Paczay, noting his client has been deterred.
The offender has learned from the experience, he said, and will always ask for overt consent in all future encounters.
Digdon filed 10 letters of character reference with the court, arguing his client has an unusually strong work ethic and respect for others that might not be typical of a man of his young age.
“He has a positive attitude towards people in general,” the defence counsel said. “He’s a person of great sincerity.”
Digdon noted that a defendant’s decision to maintain his innocence even after a guilty finding isn’t an aggravating factor and is his right.
“On that note, your honour, Mr. Paczay apologizes to [the victim],” he said, adding his client now acknowledges he could have taken additional steps to ascertain if the young woman wanted to go ahead with the sexual encounter.
He has strong community and family support, Digdon said, and he’s working two jobs to meet his financial commitments.
Digdon said Paczay had been drinking the day of the offence and his judgment may have been impaired.
A conditional sentence would limit Paczay’s freedom in the community, the defence lawyer argued, and would send the right message that such crimes won’t be tolerated.
“I would suggest that he is not a danger to the public,” Digdon said.
He noted the offender has been subject to the conditions of a police undertaking since October 2021 and hasn’t violated any of those conditions since that time. That’s a sign Paczay would also comply with the terms of a conditional sentence, the defence counsel argued.
A court can only consider a conditional sentence as an alternative to incarceration if the total term would be less than two years.
“I’m deeply sorry, your honour,” Paczay told the court Tuesday.
Mathurin said she needed time to consider the Crown and defence arguments and to review the precedents submitted in support of their positions.
She reserved her decision on sentence to Oct. 30 and ordered Paczay to return to court at that time.
Don MacPherson can be contacted at ftonindependent@gmail.com.
He needs jail time . I'm tired of these people raping and the pedophiles getting nothing other then house arrest . Time for jail --