R. v. Eisan (T.A.), 2015 NSCA 65

• Judge: Fichaud, Beveridge and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 26, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSCA 65;(2015), 362 N.S.R.(2d) 1 (CA)

R. v. Eisan (T.A.) (2015), 362 N.S.R.(2d) 1 (CA);

    1142 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JN.038

Thomas Anthony Eisan (appellant) v. Her Majesty the Queen (respondent)

(CAC 434637; 2015 NSCA 65)

Indexed As: R. v. Eisan (T.A.)

Nova Scotia Court of Appeal

Fichaud, Beveridge and Bryson, JJ.A.

June 26, 2015.

Summary:

The young adult accused pleaded guilty to sexual interference with a young person (Criminal Code, s .151). The offence involved two incidents in 2009. On both occasions, the accused unsuccessfully attempted to convince a 14-15 year old girl (who trusted the accused) to have sex with him. On the first occasion, the accused used the girl's hand to masturbate until he ejaculated. On the second occasion, when the accused had been drinking, he grabbed the girl's breasts over her clothing and tried to "grind" with her. The trial judge sentenced the accused to 14 months' imprisonment plus two years' probation, which included a condition that the accused abstain from alcohol. The accused appealed against sentence, arguing that the sentence was too harsh and that the alcohol abstention condition was unwarranted.

The Nova Scotia Court of Appeal dismissed the appeal.

Criminal Law - Topic 5723

Punishments (sentence) - Probation or probation order - Conditions - [See Criminal Law - Topic 5950 ].

Criminal Law - Topic 5848.9

Sentencing - Considerations - Sexual offences against children (incl. child pornography) - [See Criminal Law - Topic 5950 ].

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - The young adult accused pleaded guilty to sexual interference with a young person (Criminal Code, s .151) - The offence involved two incidents in 2009 - On both occasions, the accused unsuccessfully attempted to convince a 14-15 year old girl (who trusted the accused) to have sex with him - On the first occasion, the accused used the girl's hand to masturbate himself until he ejaculated - On the second occasion, when the accused had been drinking, he grabbed the girl's breasts over her clothing and tried to "grind" with her - The trial judge sentenced the accused to 14 months' imprisonment plus two years' probation, which included a condition that the accused abstain from alcohol and other intoxicating substances - The accused appealed against sentence, arguing that the sentence was too harsh and that the alcohol abstention condition was unwarranted - The Nova Scotia Court of Appeal dismissed the appeal - The accused identified no legal error - The sentence fell within the acceptable range - The fact that the accused could cite two cases where lesser sentences were imposed did not warrant a sentence reduction - The court stated that the sentence imposed "may be higher than I might have considered necessary to fulfill the goals and principles of sentence, but it is not manifestly excessive" - There was nothing unreasonable in the probation condition that the accused abstain from alcohol and other intoxicating substances - If the condition imposed hardship on the accused in the future, which was speculative only, he could apply to vary the condition.

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - [See Criminal Law - Topic 5950 ].

Cases Noticed:

R. v. Fraser (A.D.) (2010), 291 N.S.R.(2d) 193; 922 A.P.R. 193; 2010 NSSC 194, refd to. [para. 22].

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. 25].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 25].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351, refd to. [para. 25].

R. v. Nasogaluak (L.M.) (2010), 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 26].

Counsel:

Thomas Eisan, appellant in person;

James Gumpert, Q.C., for the respondent.

This appeal was heard on June 12, 2015, at Halifax, N.S., before Fichaud, Beveridge and Bryson, JJ.A., of the Nova Scotia Court of Appeal.

On June 26, 2015, Beveridge, J.A., delivered the following judgment for the Court of Appeal.