August 02, 2018
Rochette, Levesque, Ruel
Appeal from sentence. Dismissed, with dissenting reasons.
The appellant was sentenced to 30 months’ imprisonment after a jury convicted him of sexually assaulting a 15-year-old victim in the context of group sexual exploitation. The minimum five-year sentence was imposed on his two co-accused, who were found guilty of the offence of sexual assault causing bodily harm against a person under the age of sixteen, among others.
The judge was not bound by the parties’ joint submission of 12 months in prison after the appellant was found guilty by the jury.
In light of the group sexual exploitation aspect in which the events unfolded, the judge should have found that the fellatio and ejaculation constituted sexual assault even if the appellant was passive, because the use of force was the result of the sexual relation itself, and there was intentional contact between the appellant and the victim. The subsequent attempt at penetration was the continuation of a situation that took place during a short period of time, and the judge could also take it into consideration.
Moreover, the judge did not commit an error in principle in sentencing. He could accept that the appellant had not committed an abuse of trust or of authority but that he nevertheless exercised considerable influence over the victim due to his status as a singer and took advantage of the victim’s vulnerability. Furthermore, the judge was right to reject the appellant’s argument that he was a passive participant in the events, which occurred during a limited period of time, in a vehicle. Indeed, he witnessed sexual assault being perpetrated by his co-accused for almost an entire night and took part himself by assaulting the victim. In that context, the judge could – and should – take into consideration the general context of group sexual abuse in which the appellant took part.
Appellate courts must show deference to the decisions of trial judges in sentencing matters. The 30-month sentence imposed on the appellant, while harsh, is not demonstrably unfit. The judge favoured the objectives of denunciation and dissuasion because of the group sexual exploitation aspect and the great moral blameworthiness of the appellant, whose conduct reflects a profound lack of understanding of the gravity of the situation and the consequences of his actions on the young victim.
Rochette J.A., dissenting, would have allowed the appeal, quashed the sentence and substituted a 12-month prison sentence instead.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca.
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