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SENTENCING - Sexual offences - Particular sanctions - Imprisonment - Conditional sentence - Sentencing considerations - Deterrence - Denunciation - Offences involving breach of trust - Sexual offences against children

Thursday, January 11, 2018 @ 8:37 AM  

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Appeal by the Crown from a conditional sentence of 21 months imposed on the respondent for one count of sexual assault, two counts of sexual touching and one count of sexual exploitation relating to historical offences committed against four victims, and from a consecutive sentence of 75 days’ imprisonment imposed on the respondent for a subsequent sexual assault committed more recently on a fifth victim for which a conditional sentence was not available. The respondent was a well-known and highly regarded piano teacher. The complainants were his students. The offences took place during piano lessons and consisted of touching the students’ breasts over their clothes and, in respect of two of the students, under their clothes. Two of the students were kissed by the respondent in an unwanted fashion. The 69-year-old respondent suffered from major depression resulting from the charges and convictions and had been shamed and humiliated in his community. The sentencing judge concluded that exceptional circumstances existed such that general deterrence and denunciation did not require a jail sentence but rather would be met by a suitable conditional sentence order.

HELD: Appeal dismissed. The sentencing judge was alive to the objectives of denunciation and general deterrence. Whether these factors received sufficient weight was a question on which the sentencing judge must be accorded significant deference, particularly where the sentencing judge had also been the trial judge. Even if the sentencing judge erroneously considered certain factors as mitigating, the sentence was driven more by the sentencing judge’s view of proportionality than any individual factor that she might have regarded as mitigating in the circumstances. While the sentence imposed was at the low end for offences of this nature, the sentence was proportionate, having regard for the gravity of the offence and the moral blameworthiness of the offender and was thus not unfit.

R. v. Chen, [2017] B.C.J. No. 2500, British Columbia Court of Appeal, D.F. Tysoe, P.M. Willcock and J.J.L. Hunter JJ.A., December 1, 2017. Digest No. TLD-January82018007