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SENTENCING - Sexual assault - Breaking and entering - Imprisonment

Tuesday, August 13, 2019 @ 6:41 AM  

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Appeal by the offender, Pete, from a sentence for breaking and entering a dwelling house, and sexual assault. The victim, age 13, awoke after midnight to find the offender, age 18, in bed with her, kissing and touching her. The offender had been drinking. He left the premises when the victim threatened to call her father or brother. The incident was disclosed to police the following day. The offender and victim were cousins who resided in the same community and had a close relationship prior to the offences. In the 2.5 years between the offences and trial, the offender was arrested and convicted of a sexual assault that occurred when he was a youth. He was also convicted of three counts of breaching bail conditions, and an assault that arose from pushing his grandfather. The Crown sought a four-year sentence. The defence sought a disposition of time served plus 18 months' probation. The offender was sentenced to three years' imprisonment, less 12 months' credit for pre-sentence custody, plus probation. The offender appealed.

HELD: Appeal allowed. The reasons for sentence did not clearly indicate whether the offender was treated as a first-time offender in the face of the offences that occurred following the subject offences. The sentence imposed suggested that a harsher sentence was imposed due to the subsequent offences. The offender was a young indigenous person with rehabilitation prospects. The circumstances of the offence were toward the lower end of the spectrum for similar offences. A three-year sentence was above the lower end of the applicable range. The sentence imposed thus resulted from a material error in principle. Based on the record, the availability of appropriate treatment programs in federal versus provincial institutions was not a factor in determining the appropriate length of sentence. The sentencing judge's calculation of credit for time served in the face of the subsequent offences involved two off-setting errors that resulted in seven days of extra unentitled credit. The appropriate sentence, having regard to the principle of rehabilitation, was two years, reduced to time served, with two years' probation. Sentence: 358 days, time served; two years' probation.

R. v. Pete, [2019] B.C.J. No. 1244, British Columbia Court of Appeal, G. Dickson, S.A. Griffin and G.B. Butler JJ.A., July 5, 2019. Digest No. TLD-August12019004