Focus On

SENTENCING - Sexual assault - Specific deterrence - Previous record - Dated - Domestic abuse  

Friday, October 08, 2021 @ 6:08 AM  

Lexis Advance® Quicklaw®
Appeal by the accused from a sentence of 24 months’ imprisonment for sexual assault. The complainant was his spouse YZ. They were separated at the time but working on reconciling. The accused entered the home through an unlocked door to the garage and entered her bedroom. YZ was asleep and awoke to find his fingers in her vagina. The appellant was subject to no contact conditions. He was convicted of having repeatedly breached his no contact undertaking and of assaulting YZ, and had a prior, although highly dated, conviction for sexual assault. The trial judge found that the offence was at the lower end of the range of what would qualify as a major sexual assault. The trial judge found the breach of the no contact order was mitigated considerably by his finding that YZ had invited him over. The trial judge found that denunciation and deterrence were the major sentencing considerations, and that specific deterrence had some relevance because of the prior sexual assault.

HELD: Appeal dismissed. The trial judge did not err in principle by overemphasizing specific deterrence. The trial judge reasoned that specific deterrence had some relevance because of the appellant’s prior conviction for sexual assault, but also described that prior conviction as very, very dated. This language, considered in the context of the sentencing decision as a whole, did not demonstrate an overemphasis on specific deterrence. The trial judge did not err by failing to consider the impact of COVID-19 restrictions on the conditions of incarceration. Even if the impact of COVID-19 protocols could properly be considered in determining a fit sentence, the question of whether it should result in a reduction of the term of incarceration must turn on the evidence relating to the nature of those protocols and the extent to which they impacted the offender. There was no such evidence relating to the protocols adopted in the correctional institutions where the appellant spent time on remand or would serve his sentence, or the extent to which they would impact him. The sentence was not demonstrably unfit. It was proportionate to the gravity of the offence and the degree of responsibility of the offender. It did not constitute a substantial and marked departure from the sentences imposed on similar offenders committing similar crimes. Sentence: 24 months’ imprisonment.

R. v. A.B., [2021] S.J. No. 383, Saskatchewan Court of Appeal, N.W. Caldwell, B. Barrington-Foote and J.D. Kalmakoff JJ.A., September 7, 2021. Digest No. TLD-October42021009