R. v. Jean (E.J.)

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Newbury, Bauman and Groberman, JJ.A.
• Citation: 2008 BCCA 465,(2008), 265 B.C.A.C. 80 (CA)
• Date: 04 November 2008

R. v. Jean (E.J.) (2008), 265 B.C.A.C. 80 (CA);

    446 W.A.C. 80

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. FE.035

Regina (respondent) v. Edward John Jean (appellant)

(CA034794; 2008 BCCA 465)

Indexed As: R. v. Jean (E.J.)

British Columbia Court of Appeal

Newbury, Bauman and Groberman, JJ.A.

November 5, 2008.

Summary:

The accused was convicted of sexual assault and sentenced to eight years' imprisonment. The accused applied for leave to appeal, and if leave was granted, appealed the sentence.

The British Columbia Court of Appeal granted leave to appeal and dismissed the appeal.

Criminal Law - Topic 5842

Sentence - Considerations on imposing sentence - Previous criminal offences (incl. repeat, dangerous or long-term offenders) - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - In 1982, the accused was convicted of attempted rape, forcible confinement, indecent assault, and gross indecency in connection with two separate incidents - He was declared a dangerous offender in 1983, and given an indeterminate sentence of imprisonment - In March 1993, he was released on full parole - For 13 years, he led a law-abiding life - On April 3, 2006, he picked up a prostitute, brought her to a secluded area, forcibly removed her clothes and forced her to perform oral sex on him and he digitally penetrated her anus and vagina - He was arrested - As he was still subject to the indeterminate sentence imposed in 1983, his parole was suspended immediately - He remained in custody for 10 months - He was convicted of sexual assault and sentenced to eight years' imprisonment - The accused appealed, asserting that the sentencing judge erred in not giving him credit for time in custody prior to the imposition of the sentence - The accused asserted that fairness demanded that he receive credit for his remand time - The British Columbia Court of Appeal dismissed the appeal - The court was not convinced that fairness demanded that the accused be credited for his remand time - The accused was not in prison simply to await disposition of charges - His imprisonment was fully justified as a proper penal sanction in respect of the 1982 offences and the breach of his parole conditions - See paragraphs 15 to 24.

Criminal Law - Topic 5848.7

Sentence - Considerations on imposing sentence - Denunciation or repudiation of conduct - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5848.10

Sentence - Considerations on imposing sentence - Sexual offences - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault (incl. by multiple parties) - In 1982, the accused was convicted of attempted rape, forcible confinement, indecent assault, and gross indecency in connection with two separate incidents - He was declared a dangerous offender in 1983, and given an indeterminate sentence of imprisonment - In March 1993, he was released on full parole - For 13 years, he led a law-abiding life - On April 3, 2006, he picked up a prostitute, brought her to a secluded area, forcibly removed her clothes and forced her to perform oral sex on him and he digitally penetrated her anus and vagina - He was convicted of sexual assault and sentenced to eight years' imprisonment - The accused appealed, asserting that the trial judge over-emphasized denunciation and separation of the accused from the society in fixing the sentence - He asserted that the trial judge did not adequately consider the possibility of rehabilitation - The British Columbia Court of Appeal dismissed the appeal - This crime was an egregious one that resembled the crimes the accused committed in 1982 - The accused undertook programs aimed at rehabilitation during his imprisonment on those earlier offences, yet those efforts did not prevent the accused's more recent crime - The trial judge's emphasis on denunciation and separation of the accused from society was justified - The sentence was a severe one, lying at or very near the upper end of the range for this type of offence - However, it was not unfit - See paragraphs 25 to 27.

Cases Noticed:

R. v. Zinck (T.R.), [2003] 1 S.C.R. 41; 300 N.R. 201; 257 N.B.R.(2d) 1; 674 A.P.R. 1; 2003 SCC 6, refd to. [para. 12].

R. v. Orr (C.) (2008), 251 B.C.A.C. 303; 420 W.A.C. 303; 2008 BCCA 76, refd to. [para. 16].

R. v. Steele (A.) (2007), 234 B.C.A.C. 158; 387 W.A.C. 158; 2007 BCCA 12, refd to. [para. 19].

R. v. Mooney (F.W.) (1993), 23 B.C.A.C. 274; 39 W.A.C. 274 (C.A.), refd to. [para. 27].

Counsel:

B. Martland, for the appellant;

L. Ruzicka, for the Crown, respondent.

This appeal was heard on November 4, 2008, at Victoria, B.C., by Newbury, Bauman and Groberman, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered orally by Groberman, J.A., on November 5, 2008.