SELECTED CASE LAW
In 2012 BCCA 454, Mr. W, who was a 51-year-old man at the time of sentencing, appealed his sentence for sexual assault.
Mr. W was charged with sexual assault, sexual exploitation, invitation to sexual touching, and sexual interference of his step-daughter, who was between 13 and 15 years old at the time.
Mr. W had helped raise his step-daughter since she was about 4 years old. Mr. W pleaded guilty to sexual assault, and the other three offences were stayed. Mr. W agreed that he had manipulated, groomed, kissed, and sexually touched her, had her masturbate him, exchanged oral sex with her, and rubbed his penis against the vagina of his stepdaughter but denied that he had sexual intercourse with her, penetrated her digitally, showed her pornography or used force against her. At a separate hearing, the court found that the Crown had proved that Mr. W had done all of these things beyond a reasonable doubt. She was able to describe the pornography he showed her and described the digital penetration and sexual intercourse.
At trial, Mr. W was convicted of sexual assault, and sentenced to four years in jail. Additional orders included a DNA order, a 10-year weapons ban, and a 20-year registration as a sex offender.
On appeal, the appeal court found that the judge had made a mistake by making certain observations that were not relevant in determining Mr. W’s reliability or truthfulness in relation to the types of sexual assault he allegedly committed against his step-daughter. Because of this mistake, Mr. W could only be sentenced on the allegations that he admitted, not the allegations that he disputed.
As a result, Mr. W should only have been sentenced to the allegations he admitted, which were less serious. However, the appeal judge found that his sentence was still a fair one, even only on the limited actions Mr. W admitted to. This was largely due to the relationship of trust that Mr. W exploited, the fact that his step-daughter was a teenager at the time of the offences, and the length of time the offences occurred over. The offence was still considered “egregious” by the appeal judge.
Also see: 2011 BCPC 462 (Sentence); 2011 BCPC 460 (Gardiner application).
Criminal Offence(s): Sexual Assault