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CALGARY -- Placing his genitals on the face of a passed out minor wasn't simply a prank, a judge said yesterday in jailing a former Calgary man.

Justice Peter McIntyre dismissed a defence suggestion the practice, known as tea-bagging, has become a commonplace way for partygoers to make fun of those who overindulge.

McIntyre said Trevor Byron Niebergall's act goes far beyond a practical joke.

"Your friends were very casual with what has been described as tea-bagging, this was no writing on somebody's forehead with a crayon," McIntyre said. "I don't accept that this is somehow the norm at parties."

Defence counsel Patrick Flynn had sought probation for Niebergall, 21, arguing his client was taking the fall for a group of individuals committing "punkish" behaviour.

"Mr. Neibergall was not the first person, nor will he be the last, to in essence embarrass someone who has passed out," Flynn said. "Mr. Niebergall is going to have to take the fall, so to speak."

"I don't accept that. That's not you taking the fall, you did the act," McIntyre told Niebergall sentencing him to 90 days behind bars. "I think deterrence is a primary consideration ... so people of like mind don't do the same thing ..."

Crown prosecutor Susan Kennedy had sought such a sentence, arguing Niebergall took advantage of his 14-year-old victim while she was in a vulnerable state. He placed his genitals on the girl's face and took a picture of the act during a Dec. 31, 2005, party at his home, at which he plied her with alcohol.

McIntyre earlier ruled he had a reasonable doubt as to whether the girl was too drunk to consent to sexual intercourse she testified occurred before she passed out.

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Cellmate #1: Hey Trev, show us them balls.

Trevor Byron Niebergall: No.

Cellmate #2: Hey Bitch, he said, show us 'em balls!

Trevor Byron Niebergall: Leave me alone.

Cellmate #1: what you say bitch?

Trevor Byron Niebergall wimpers

Cellmate #2: Looks like we gonna have ta see 'em balls on our own

Trevor Byron Niebergall begins to cry

fade to black.

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