Dufresne, Schrager, Roy
Application for leave to appeal sentence. Granted. Appeal from sentence. Allowed in part.
The appellant was convicted of sexual interference, invitation to sexual touching, sexual exploitation and assault with a weapon against his spouse’s daughter. When the acts took place between 1996 to 2007, the victim was aged 6 to 18. Upon the appellant’s conviction on April 8, 2016, he was immediately incarcerated. On September 7 of that year, the trial judge ordered the appellant to serve a sentence of 73 months in prison.
The judge noted that the appellant had no criminal record, but he erred in stating that this was not a mitigating factor. However, the nature of the offences and the circumstances of their commission are such that the error does not justify the Court’s intervention. The sexual assaults were numerous and repeated over a long period of time. Moreover, the principles of denunciation and deterrence take precedence in cases of sexual offences against children (s. 718.01 of the Criminal Code (R.S.C. (1985), c. C-46)).
As for the delays, while they do not constitute a mitigating factor with any impact on the assessment of the gravity of the offence or the degree of the accused’s responsibility, they may be indirect consequences that should be considered when determining a fit sentence. In this case, the judge properly considered all the circumstance and correctly emphasized denunciation and deterrence in imposing the sentence, giving attention to the parity principle according to the range for sexual offences committed against children.
The judge erred, however, in the exercise of his discretion by not crediting at least one and a half days for each day of pre-sentencing incarceration because the appellant’s incarceration came about after the guilty verdict was rendered. The practice applicable to the time the offences were committed was to credit two days for each day of pre-sentencing incarceration. What is more, a lengthy sentence delays eligibility for parole. Finally, the evidence shows that during the pre-sentence incarceration, the appellant was separated from the general prison population for his protection and was thus deprived of the benefit of the usual prison facilities. Therefore, the appellant suffered prejudice arising from the insufficient credit granted by the judge. In the circumstances, his sentence should be reduced to 68 months, crediting the five months of pre-sentencing incarceration on a two-to-one basis.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca