R. v. T.B., 2015 ABQB 701

• Judge: Acton, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 22, 2015
• Citations: 2015 ABQB 701;[2015] A.R. TBEd. NO.053

R. v. Brightman (T.), [2015] A.R. TBEd. NO.053

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2015] A.R. TBEd. NO.053

Her Majesty the Queen (respondent/Crown) v. T.B. (appellant/accused)

(120369053S1; 2015 ABQB 701)

Indexed As: R. v. T.B.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Acton, J.

November 9, 2015.

Summary:

The accused was convicted after a trial of two counts of indecent exposure, and two counts of sexual assault, each resulting from separate events concerning his girlfriend's 11 year old daughter. The accused was convicted of exposing himself on two occasions to the 11 year old daughter of the woman with whom he was living at the time. Both occasions involved several seconds of exposure of his penis to the complainant who was in the same room, but not close to him at the time. He was dressed in a bathrobe sitting on the couch in the living room. The second two counts involved two slaps on the complainant's bottom. Both occurred as she passed the accused while he was sitting down. His hand was on her butt for a "second" each time. He told her on each occasion that her butt was firm. The trial judge sentenced the accused to four months on the first count of indecent exposure, the maximum six months consecutive on the second, two months consecutive for the first count of sexual assault, and two months consecutive for the second, for a total of 14 months. The trial judge also sentenced the accused to the maximum three years' probation with conditions. The accused appealed his sentence.

The Alberta Court of Queen's Bench allowed the appeal and substituted a sentence of 10 months' total incarceration plus two years' probation. This reflected sentences of four months consecutive on each count of indecent exposure, and one month consecutive on each count of sexual assault. The court held that the sentencing judge erred in principle in failing to provide counsel with the opportunity to make submissions with respect to a sentence outside of the proposed range, and in failing to provide reasons for exceeding the range proposed by the Crown. Further, the court held that the sentence of 14 months was demonstrably unfit, as it violated the principles of parity, restraint, and totality. The court stated that "the overall sentence was unduly harsh for offences consisting of two very brief exposures, and two 'butt slaps'."

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - See paragraphs 1 to 33.

Criminal Law - Topic 5804

Sentencing - Consecutive sentences - Reduced total term (totality principle) - See paragraphs 1 to 33.

Criminal Law - Topic 5801.2

Sentencing - General - Restraint in imposing incarceration - See paragraphs 1 to 33.

Criminal Law - Topic 5806.1

Sentencing - General - Sentencing parity - General - See paragraphs 1 to 39.

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences - See paragraphs 19 to 24.

Criminal Law - Topic 5849.7

Sentencing - Considerations on imposing sentence - Representations of counsel - See paragraphs 1 to 33.

Criminal Law - Topic 5856

Sentence - Indecent assault - See paragraphs 1 to 39.

Criminal Law - Topic 5932

Sentence - Sexual assault - See paragraphs 1 to 39.

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - See paragraphs 1 to 39.

Counsel:

Dane F. Bullerwell (Pringle Chivers Sparks Teskey), for the appellant;

Anders Quist (Alberta Justice), for the respondent.

This sentencing appeal was heard on October 22, 2015, by Acton, J., of the Alberta Court of Queen's Bench, who delivered the following decision on November 9, 2015.