R. v. C.D., (1991) 75 Man.R.(2d) 14 (CA)

• Judge: Philp, Twaddle and Lyon, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: June 04, 1991
• Jurisdiction: Manitoba
• Citations: (1991), 75 Man.R.(2d) 14 (CA)

R. v. C.D. (1991), 75 Man.R.(2d) 14 (CA);

    6 W.A.C. 14

MLB headnote and full text

Her Majesty The Queen (appellant) v. C.D. (respondent)

(Suit No. 466/90)

Indexed As: R. v. C.D.

Manitoba Court of Appeal

Philp, Twaddle and Lyon, JJ.A.

October 8, 1991.

Summary:

The accused pleaded guilty to a charge of repeated sexual assault upon his stepdaugh­ter. He was sentenced to two years' impri­sonment and three years' supervised proba­tion. The Crown appealed sentence.

The Manitoba Court of Appeal allowed the appeal and substituted sentence of four years' imprisonment.

Criminal Law - Topic 5846.5

Sentencing - Considerations - Starting point approach - The Manitoba Court of Appeal discussed the starting point approach to sentencing for major sexual assault formulated in R. v. Sandercock (1985), 62 A.R. 382; 22 C.C.C.(3d) 79 - The majority (Lyon, J.A., dissenting) held that the starting point for major assault within the family unit where the victim is a young child and serious sexual acts are repeated over a period of time should be four to five years - See paragraphs 7 to 16, 30 to 33.

Criminal Law - Topic 5932

Sentence - Sexual assault - The accused pleaded guilty to sexual assault upon his stepdaughter over a period of three and a half years from the time the complainant was 12 years of age - Accused remorseful, foregoing alcohol and receiving counselling - No background of childhood abuse to explain the conduct - Complain­ant and two other children apprehended and in care - Complainant residing in a group home and receiving counselling and therapy, but over­dosed three times and blamed herself for the situation - Restora­tion of the family unit problematical - The Manitoba Court of Appeal increased sen­tence of two years' imprisonment to four years' imprisonment.

Cases Noticed:

R. v. Sandercock (1985), 62 A.R. 382; 22 C.C.C.(3d) 79 (C.A.), consd. [para. 7].

R. v. Tallman (1989), 94 A.R. 251; 48 C.C.C.(3d) 81 (C.A.), refd to. [para. 15].

R. v. R.J.P. (1987), 2 Y.R. 221 (C.A.), refd to. [para. 19].

R. v. Galli (1983), 2 O.A.C. 396, refd to. [para. 20].

R. v. M.F.D. (1991), 75 Man.R.(2d) 21; 6 W.A.C. 21, refd to. [paras. 25, 34].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 246.1 [para. 9].

Criminal Code, R.S.C. 1985, c. C-46, sect. 271 [para. 9].

Counsel:

R.A. Saull, for the appellant;

M.K. MacDonald, for the respondent.

This appeal was heard on June 4, 1991, before Philp, Twaddle and Lyon, JJ.A., of the Manitoba Court of Appeal. On October 8, 1991, the decision of the Court of Appeal was delivered and the following opinions were filed:

Philp and Twaddle, JJ.A. - see paragraphs 1 to 29;

Lyon, J.A., dissenting in part - see para­graphs 30 to 34.