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SENTENCING - Criminal Code offences - Sexual interference - Seriousness of offence

Thursday, October 10, 2019 @ 6:24 AM  

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Appeal by the Crown from a sentence of six months’ imprisonment to be served intermittently for sexual interference. The 15-year-old complainant and 22-year-old respondent were drinking and doing drugs together with friends in a trailer park. There was evidence of three sexual encounters between the complainant and the respondent. The least culpable version of events that was consistent with the jury verdict was that the respondent had believed the complainant was over 16 but did not take reasonable steps to confirm her age, and that they had engaged in a single incident of de facto consensual intercourse. Mitigating factors were the respondent’s lack of criminal record, the support of his parents and the mother of his young child, his meaningful work history, and his sincere efforts toward rehabilitation to address a problem of alcohol dependence. The aggravating factors were that there were two incidents of sexual contact, one of which involved unprotected sexual intercourse, that the respondent had supplied alcohol to the complainant, and that she was severely intoxicated at the time of both incidents, that the effects of the offence on the complainant were profound, and that the respondent was in breach of an undertaking prohibiting him from purchasing, possessing or consuming alcohol. The Crown argued that the sentence was demonstrably unfit because it unreasonably departed from the fundamental principle of proportionality and from the acceptable range of sentence for similar offences committed in similar circumstances by similar offenders.

HELD: Appeal allowed. The six-month sentence imposed by the trial judge was too lenient. The sentence did not adequately reflect the objectives of deterrence and denunciation, key in sentencing offences of this kind. The sentence also was not proportionate to the offender’s level of moral culpability and the serious circumstances of the offence. The circumstances of this case were highly aggravating. The respondent ought to have received a substantial reformatory sentence. Considering the post-sentence report and the submissions of counsel, it was appropriate to stay the execution of the balance of the respondent’s sentence. While the respondent served an inadequate sentence for this serious offence, the principles of deterrence and denunciation, which were the primary sentencing objectives for this offence, could be addressed without further incarceration. Sentence: 18 months’ imprisonment; two years’ probation; DNA order; 20-year sex offender registration; 10-year weapons prohibition.

R. v. E.C., [2019] O.J. No. 4460, Ontario Court of Appeal, P.D. Lauwers, K.M. van Rensburg and G.T. Trotter JJ.A., September 4, 2019. TLD-October72019011