The Crown is appealing a territorial court judge’s sentence for a man who sexually assaulted his friend at a party, arguing it is“demonstrably unfit.”

Judge Dennis Schmidt handed down a suspended sentence and two years’ probation to Ashton Rosenthal last month.

He found Rosenthal, 26, guilty of digitally penetrating his female friend while she lay in bed, asleep.

Schmidt ruled that although she and Rosenthal shared a bed after drinking and dancing with a group of friends at a house party, that did not imply her consent.

“Knowing Ashton would, at some point, crawl into the same bed does not imply any impropriety or consent, it was simply a matter of sleeping arrangements, and people would be quite at risk if the sharing of the bed was thought to be consent to sexual activity,” he said in his May decision.

“No two-man tent would ever be safe again.”

At the time, Crown prosecutor Noel Sinclair advocated for a 14- to 18-month sentence. The assault involved a breach of trust, he said.

Citing the pre-sentence report, Sinclair said Rosenthal mentioned in interviews that he felt the victim was “out to get me,” and that she was looking for attention.

“Those are not the words of a remorseful individual,” said Sinclair.

Rosenthal’s lawyer, Melissa Atkinson, told the court about her client’s difficult upbringing and a brain injury he suffered as a child.

Schmidt said aggravating factors in this case were that the victim was asleep and unable to provide consent, and that the assault involved penetration.

Mitigating factors were that Rosenthal had no record, that he had a low risk of reoffending, that he had expressed remorse and that he discontinued the assault when told by the victim to do so.

“The accused is neither a predator nor a violent offender,” he said.

During the sentencing hearing, Sinclair said the assault would have a lasting impact on the woman.

Schmidt said this was conjecture – without a victim impact statement from her, he said, this could not be known for certain.

This is one of the reasons cited for the Crown’s appeal: that Schmidt erred in declining to take notice of the fact that victims of sexual assault experience psychological harm as a result of these assaults.

Further grounds for the appeal are that the judge overemphasized the principle of rehabilitation; failed to consider adequately the principles of general deterrence and denunciation; and erred in declining to impose a firearms prohibition.

Sinclair said the appeal could be scheduled for the Yukon Court of Appeal’s sitting in Whitehorse in November or it may be heard in Vancouver.

A date has not yet been set.