R. v. Deck (B.S.),

• Judge: Hunt,Marshall,Watson
• Neutral Citation: 2006 ABCA 92
• Court: Court of Appeal (Alberta)
• Date: 28 March 2006
• Citation: (2006), 384 A.R. 106 (CA),2006 ABCA 92,384 AR 106,208 CCC (3d) 341,[2006] AJ No 333 (QL),69 WCB (2d) 88,(2006), 384 AR 106 (CA),[2006] A.J. No 333 (QL),384 A.R. 106

R. v. Deck (B.S.) (2006), 384 A.R. 106 (CA);

    367 W.A.C. 106

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. MR.145

Her Majesty The Queen (respondent) v. Brian Scott Deck (appellant)

(0403-0396-A; 2006 ABCA 92)

Indexed As: R. v. Deck (B.S.)

Alberta Court of Appeal

Hunt, J.A., Marshall and Watson, JJ.(ad hoc)

March 28, 2006.

Summary:

The 37 year old accused pleaded guilty to sexual interference with a person under age 14 and using a computer to lure a child under age 14 for the purpose of committing a sexual offence. The trial judge sentenced the accused to six years' imprisonment for sexual interference and a consecutive one year sentence for luring. The accused was given two years' credit for pretrial custody and six months' credit for his guilty plea. The net sentence was 4.5 years' imprisonment. The accused appealed the sexual interference sentence, submitting that the trial judge erred in using four years as a starting point sentence, erred in overemphasizing aggravating factors while not sufficiently emphasizing mitigating factors, and that the sentence was demonstrably unfit.

The Alberta Court of Appeal dismissed the appeal.

Criminal Law - Topic 5830.4

Sentencing - Considerations on imposing sentence - Guilty plea - [See Criminal Law - Topic 5950 ].

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle) - [See Criminal Law - Topic 5950 ].

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children - [See Criminal Law - Topic 5950 ].

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - The 37 year old accused met a 13 year old girl in an internet chat room - The girl was lured to the accused's car, where he had unprotected sex with her - The next day, the accused took the girl to his home, served her alcohol and initiated anal sex - The girl collapsed - They watched a movie, then had unprotected sex again - The girl had a lower than average IQ and a disorder that impaired her social judgment and reasoning skills - The accused was a former substitute teacher now working in the electrical business - He was divorced, with a 17 year old daughter, and had six prior convictions (1984-1993) for alcohol-related offences - The accused pleaded guilty to sexual interference with a person under age 14 and using a computer to lure a child under age 14 for the purpose of committing a sexual offence - The trial judge sentenced the accused to six years' imprisonment for sexual interference and a consecutive one year sentence for luring - The accused was given two years' credit for pretrial custody and six months' credit for his guilty plea - The net sentence was 4.5 years' imprisonment - The accused appealed the sexual interference sentence, submitting that the trial judge erred in using four years as a starting point sentence, erred in overemphasizing aggravating factors while not sufficiently emphasizing mitigating factors, and that the sentence was demonstrably unfit - The Alberta Court of Appeal dismissed the appeal - The judge did not err in balancing mitigating and aggravating factors - Although the trial judge erred in imposing a starting point sentence of four years absent a trust or near-trust relationship, the sentence was not demonstrably unfit.

Criminal Law - Topic 5950.1

Sentence - Luring a child - [See Criminal Law - Topic 5950 ].

Cases Noticed:

R. v. Sandercock (1985), 62 A.R. 382 (C.A.), refd to. [para. 12].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 13].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 13].

R. v. Cairns (R.S.) (2004), 197 B.C.A.C. 252; 323 W.A.C. 252; 2004 BCCA 219, leave to appeal refused (2005), 338 N.R. 398 (S.C.C.) , refd to. [para. 13].

R. v. Heatherington (D.M.) (2005), 380 A.R. 395; 363 W.A.C. 395; 2005 ABCA 393, refd to. [para. 17].

R. v. Martineau, [1990] 2 S.C.R. 633; 112 N.R. 83; 109 A.R. 321, refd to. [para. 17].

R. v. MacDougall (P.A.), [1998] 3 S.C.R. 45; 231 N.R. 147; 168 Nfld. & P.E.I.R. 83; 517 A.P.R. 83, refd to. [para. 17].

R. v. Wust (L.W.), [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236, refd to. [para. 21].

R. v. W.B.S.; R. v. M.P. (1992), 127 A.R. 65; 20 W.A.C. 65 (C.A.), refd to. [para. 22].

R. v. Bourdon (J.) (1996), 187 A.R. 302; 127 W.A.C. 302 (C.A.), refd to. [para. 22].

R. v. J.T.Q. (1999), 244 A.R. 369; 209 W.A.C. 369 (C.A.), refd to. [para. 22].

R. v. J.J.W. (2004), 348 A.R. 395; 321 W.A.C. 395; 2004 ABCA 50, refd to. [para. 22].

R. v. Stone (B.T.), [1999] 2 S.C.R. 290; 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1, refd to. [para. 24].

R. v. Pritchard (T.) (2005), 371 A.R. 27; 354 W.A.C. 27; 2005 ABCA 240, dist. [para. 27].

R. v. Lyons (E.J.) (2005), 371 A.R. 74; 354 W.A.C. 74; 2005 ABCA 258, dist. [para. 27].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161, refd to. [para. 29].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 30].

R. v. Baker - see Baker v. Canada (Minister of Citizenship and Immigration).

R. v. Folino (S.) (2005), 203 O.A.C. 258 (C.A.), refd to. [para. 31].

R. v. P.H., [2004] A.R. Uned. 596; 2004 ABPC 150, refd to. [para. 31].

R. v. G.C.F. (2004), 189 O.A.C. 29 (C.A.), refd to. [para. 32].

R. v. Harvey, [2004] O.J. No. 1389 (Sup. Ct.), refd to. [para. 33].

R. v. Carratt, [2005] A.J. No. 743 (Prov. Ct.), refd to. [para. 33].

Counsel:

James C. Robb, Q.C., for the respondent;

Harold R. Brubaker, for the appellant.

This appeal was heard on February 22, 2006, before Hunt, J.A., Marshall and Watson, JJ.(ad hoc), of the Alberta Court of Appeal.

On March 28, 2006, the following memorandum of judgment was delivered by the Court.