R. v. J.B.O., (2013) 334 N.S.R.(2d) 1 (CA)

Judge:Fichaud, Beveridge and Farrar, JJ.A.
Court:Nova Scotia Court of Appeal
Case Date:September 05, 2013
Jurisdiction:Nova Scotia
Citations:(2013), 334 N.S.R.(2d) 1 (CA);2013 NSCA 97
 
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R. v. J.B.O. (2013), 334 N.S.R.(2d) 1 (CA);

    1059 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. SE.006

Her Majesty the Queen (appellant) v. J.B.O. (respondent)

(CAC 407492; 2013 NSCA 97)

Indexed As: R. v. J.B.O.

Nova Scotia Court of Appeal

Fichaud, Beveridge and Farrar, JJ.A.

September 5, 2013.

Summary:

The 70 year old accused pleaded guilty to touching his five year old granddaughter for a sexual purpose (Criminal Code, s. 151) and exposing his genitals to his nine year old granddaughter for a sexual purpose (s. 173(2)). He was sentenced to 90 days' imprisonment plus three years' probation for the sexual touching offence and a consecutive nine month conditional sentence on the exposure offence. The Crown appealed the sentences on the ground that they inadequately reflected denunciation and general deterrence and/or were unfit.

The Nova Scotia Court of Appeal dismissed the appeal, with the exception of reducing the nine month conditional sentence to six months, as the exposure offence was a summary conviction offence (maximum six month sentence).

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

Criminal Law - Topic 5848.9

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

Criminal Law - Topic 5939

Sentence - Indecent acts (incl. exposure) - [See Criminal Law - Topic 5950 ].

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - The 70 year old accused pleaded guilty to touching his five year old granddaughter for a sexual purpose (Criminal Code, s. 151) and exposing his genitals to his nine year old granddaughter for a sexual purpose (s. 173(2)) - Neither offence involved one-time incidents, but were repeated multiple times - He was sentenced to 90 days' imprisonment plus three years' probation for the sexual touching offence and a consecutive nine month conditional sentence on the exposure offence - The accused confessed, expressed remorse, had a positive pre-sentence report and was assessed as a low risk for future violence (including sexual assaults) - The accused sought counselling early in the process and was the sole source of financial and emotional support for his wife of 40 years, who was in ill health - The Nova Scotia Court of Appeal dismissed the Crown's sentence appeal, with the exception of reducing the nine month conditional sentence to six months, as the exposure offence was a summary conviction offence (maximum six month sentence) - The trial judge considered the relevant factors and gave appropriate weight to denunciation and general deterrence - The sentences imposed, while at the lower end of the scale, were not demonstrably unfit - The sentences did not constitute a "substantial and marked departure from the sentences customarily imposed for similar offenders committing similar offences" - Appellate intervention was not warranted.

Cases Noticed:

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. 9].

R. v. Knockwood (S.J.) (2009), 283 N.S.R.(2d) 156; 900 A.P.R. 156; 2009 NSCA 98, refd to. [para. 10].

R. v. A.N. (2011), 300 N.S.R.(2d) 282; 950 A.P.R. 282; 2011 NSCA 21, refd to. [para. 15].

R. v. Proulx (J.K.D.) (2000), 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 19].

R. v. E.M.W. (2011), 308 N.S.R.(2d) 15; 976 A.P.R. 15; 2011 NSCA 87, refd to. [para. 24].

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. 28].

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. 28].

Authors and Works Noticed:

Renaud, Gilles, The Sentencing Code of Canada: Principles and Objectives (2009), p. 228 [para. 21].

Counsel:

Mark A. Scott, for the appellant;

Roger A. Burrill, for the respondent.

This appeal was heard on May 30, 2013, at Halifax, N.S., before Fichaud, Beveridge and Farrar, JJ.A., of the Nova Scotia Court of Appeal.

On September 5, 2013, Farrar, J.A., delivered the following judgment for the Court of Appeal.

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