R. v. B.A.J.C., (2015) 464 Sask.R. 89 (QB)

Judge:Gabrielson, J.
Court:Court of Queen's Bench for Saskatchewan
Case Date:January 16, 2015
Jurisdiction:Saskatchewan
Citations:(2015), 464 Sask.R. 89 (QB);2015 SKQB 21
 
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R. v. B.A.J.C. (2015), 464 Sask.R. 89 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JA.057

Her Majesty the Queen v. B.A.J.C.

(2010 CR No. 49; 2015 SKQB 21)

Indexed As: R. v. B.A.J.C.

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Gabrielson, J.

January 16, 2015.

Summary:

The accused was found guilty of sexual assault (Criminal Code, s. 271) and being unlawfully in a dwelling house with intent to commit an indictable offence (s. 349(1)). The Crown applied to have the accused declared a dangerous offender and sentenced to detention in a penitentiary for an indeterminate period.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2014), 464 Sask.R. 67, allowed the application and ordered that the accused be placed in a penitentiary for an indefinite period for the sexual assault.

The Saskatchewan Court of Queen's Bench sentenced the accused to a concurrent three year sentence for being unlawfully in a dwelling house with intent to commit an indictable offence.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Courts - Topic 2186

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - Prosecutions or criminal trials or matters - An accused was found guilty of sexual assault (count 1) and being unlawfully in a dwelling house with intent to commit an indictable offence (count 2) - Pursuant to an application by the Crown, Gabrielson, J., declared that the accused was a dangerous offender and sentenced him to an indeterminate period of detention in a penitentiary for count 1 - The sentencing decision did not deal with count 2 - The Crown asked Gabrielson, J., to issue a sentence respecting count 2 - Defence counsel submitted that Gabrielson, J., was functus once he had rendered a decision respecting count 1 and failed to mention count 2 - The Saskatchewan Court of Queen's Bench, per Gabrielson, J., stated "I am not functus officio until such time as I have passed a valid sentence in respect to each count for which [the accused] was found guilty by the jury. There has been no request that I reconsider the jury's verdict or the sentence which I rendered in respect to Count 1 and therefore, I find that I am not functus officio." - See paragraph 2.

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences - [See Criminal Law - Topic 5929 ].

Criminal Law - Topic 5847

Sentencing - Considerations on imposing sentence - Remorse of accused - [See Criminal Law - Topic 5929 ].

Criminal Law - Topic 5929

Sentence - Being in a dwelling with intent - The 43 year old accused entered the bedroom of a sleeping 16 year old girl and stood partly naked beside her bed - When the victim started screaming, the accused put his hand over her mouth and told her to be quiet - He then left the room - The accused was found guilty of sexual assault and being unlawfully in a dwelling house with intent to commit an indictable offence - He was declared a dangerous offender and sentenced to an indeterminate period of detention in a penitentiary for the sexual assault - The Saskatchewan Court of Queen's Bench sentenced the accused to a concurrent three year sentence for being unlawfully in a dwelling house with intent - The fact that the accused was not only unlawfully in the dwelling house, but in the victim's bedroom, was an aggravating factor which placed the offence at the upper end of offences under s. 349(1) of the Criminal Code - It was also aggravating that the accused had not shown any remorse or empathy for the victim, and he had a prior conviction in 1990 for a sexual assault that took place in similar circumstances.

Cases Noticed:

R. v. Ominayak (R.D.) (2007), 443 A.R. 1; 2007 ABQB 442, refd to. [para. 2].

R. v. Carvalho (N.) (2006), 209 O.A.C. 19; 2006 CanLII 12959 (C.A.), refd to. [para. 6].

Counsel:

Buffy L. Rodgers, for the Crown;

Peter A. Abrametz, for the accused.

This matter was heard before Gabrielson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following supplementary reasons for judgment on January 16, 2015.

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