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SENTENCING - Child pornography - Particular sanctions - Maximum or minimum sentence available

Thursday, December 20, 2018 @ 6:22 AM  


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Appeal by the Crown from a decision dismissing its appeal from a four-month conditional sentence and two years’ probation imposed on the respondent for possession of child pornography. The respondent pleaded guilty. The Crown argued the sentencing judge erred in finding that the mandatory minimum sentence of 90 days’ imprisonment under s. 163.1(4)(b) of the Criminal Code was unconstitutional as it applied to the respondent. The accused was 23 at the time of the offence and had no criminal record. At the time of the offence, the respondent lived with significant cognitive and intellectual impairment, as well as other mental health problems, including auditory hallucinations. Both psychologists who interviewed him were concerned that the respondent would not be able to tolerate incarceration. The sentencing judge held that the full context, including both the gravity of the offence and the respondent’s personal characteristics, satisfied him that a 90-day sentence would be grossly disproportionate.

HELD: Appeal dismissed. There was no dispute that the gravity of the offence was high. Absent a mandatory minimum sentence, a sentence to be served in the community under strict conditions would, however, satisfy all of the objectives and principles of sentencing, and would be a proportionate sentence. The sentencing judge correctly identified that attending at a prison to serve the sentence intermittently for many weeks would have a deleterious effect on the respondent. The judge properly concluded that a custodial sentence would be grossly disproportionate to the conditional sentence that he ultimately imposed on the respondent. Although the offence was extremely serious, it was ameliorated by the respondent’s personal situation. In his unusual circumstances, the mandatory minimum sentence was grossly disproportionate, and sending the respondent to prison, even to serve an intermittent sentence, would outrage the standards of decency of most informed Canadians. The mandatory minimum was also grossly disproportionate to reasonable hypothetical offenders. Sentence: Four months’ conditional sentence; two years’ probation.

R. v. Swaby, [2018] B.C.J. No. 3603, British Columbia Court of Appeal, E.A. Bennett, L.A. Fenlon and S.A. Griffin JJ.A., November 9, 2018. Digest No. TLD-December172018007