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SENTENCING - Sexual assault – Particular sanctions - Leniency - Joint submissions

Wednesday, June 23, 2021 @ 4:34 PM  

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Appeal by the accused, CRH, from a sentence for five counts of sexual assault. The accused, age 42, was a licensed practical nurse with no prior convictions. In 2019, the accused’s cousin disclosed an incident of sexual touching by the accused in 1995 after the accused apologized to the complainant for the incident through Facebook. The accused was charged as a youth in connection with that offence. Three of the remaining four counts related to children who lived next door to the accused in an arrangement akin to extended family. The accused admitted the offending to his wife who in turn reported his admissions to police. The offending involved multiple incidents of sexual touching of children between the ages of 11 and 14, including one child who suffered from a mental disability. The final count related to a child, age 14, that the accused took to a hotel room and engaged in sexual touching. The accused pled guilty. A joint submission proposed a global sentence of two years less a day plus three years’ probation, including 12 months’ concurrent probation for the youth count. The sentencing judge rejected the joint submission and imposed a sentence of four consecutive one-year custodial terms, plus a concurrent 60-day open custody sentence for the youth count. The accused appealed. The Crown consented to the appeal and requested imposition of the original joint submission.

HELD: Appeal allowed. No error arose through improperly reverse engineering the joint submission. The judge sentencing judge did not reject the joint submission because it was an unfit sentence. Instead, the judge reasoned that even in view of the benefits of the joint submission process, the result would be viewed as a breakdown in the proper functioning of the criminal justice system. Some degree of comparison of a fit sentence and that contemplated by the joint submission was an acceptable part of the analysis. However, the sentencing judge erred by failing to provide cogent reasons for departing from the joint submission, as the analysis did not undertake a full consideration of the benefits of the joint submission process in the specific context of the predicate case. Specifically, the judge failed to address the specific context of vulnerabilities in the Crown’s case, the number of young complainants, the procedural consequences of the pandemic, and the constraints associated with the specific sentence proposed. The sentence contemplated by the joint submission was imposed. Sentence: two years’ imprisonment; three years’ probation.

R. v. C.R.H., [2021] B.C.J. No. 950, British Columbia Court of Appeal, R.J. Bauman C.J.B.C., M.E. Saunders and R. Goepel JJ.A., May 4, 2021. Digest No. TLD-June212021005