R. v. E.L.D., (1992) 16 B.C.A.C. 184 (CA)

• Judge: McEachern, C.J.B.C., Legg and Hollinrake, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: July 29, 1992
• Jurisdiction: British Columbia
• Citations: (1992), 16 B.C.A.C. 184 (CA)

R. v. E.L.D. (1992), 16 B.C.A.C. 184 (CA);

    28 W.A.C. 184

MLB headnote and full text

Regina (respondent) v. E.L.D. (appellant)

(CA015123)

Indexed As: R. v. E.L.D.

British Columbia Court of Appeal

McEachern, C.J.B.C., Legg and Hollinrake, JJ.A.

July 29, 1992.

Summary:

A 16 year old youth pleaded guilty in adult court to three counts of break and enter and one count of sexual assault with a weapon. The trial judge sentenced the youth to four years' imprisonment for sexual assault with a weapon and three months' imprisonment for each break and enter (consecutive to each other and to the four years), for a total of four years nine months' imprisonment. The youth appealed the sentences.

The British Columbia Court of Appeal, McEachern, C.J.B.C., dissenting in part, allowed the appeal. The court reduced the total sentence to four years' imprisonment, by making the break and enter sentences concurrent.

Criminal Law - Topic 5802.1

Sentencing - Consecutive sentences - Reduced term - [See Criminal Law - Topic 5933 ].

Criminal Law - Topic 5851

Sentence - Break and enter - [See Criminal Law - Topic 5933 ].

Criminal Law - Topic 5933

Sentence - Sexual assault with a weapon - A 16 year old accused pleaded guilty to three counts of break and enter and one count of sexual assault with a weapon - He was sentenced to a total of four years and nine months' imprisonment (four years for sexual assault and three months consecutive for each break and enter) - Accused spent three months in pretrial custody - Drug user - Dysfunctional family - Previous convictions for property offences - The accused broke into a residence and was discovered by the female victim - He raped her at gunpoint notwithstanding she was six months' pregnant - Forced her to perform fellatio - The British Columbia Court of Appeal stated that given the accused's youth and the brief time span between the offences, the total sentence was excessive - The court reduced the total sentence to four years' imprisonment by making the break and enter sentences concurrent.

Cases Noticed:

R. v. Smit (1992), 11 B.C.A.C. 139; 22 W.A.C. 139 (C.A.), refd to. [para. 36].

R. v. Sandercock (1985), 62 A.R. 382; 40 Alta. L.R.(2d) 265 (C.A.), refd to. [para. 41].

R. v. Sweeney (1992), 7 B.C.A.C. 1; 15 W.A.C. 1 (C.A.), refd to. [para. 49].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 731(1)(b), sect. 738(1)(b), sect. 738(2)(b) [para. 51]; sect. 738(3) [para. 54].

Young Offenders Act, R.S.C. 1985, c. Y-1, sect. 16 [para. 6].

Counsel:

G.D. McKinnon, for the appellant;

A. Budlovsky, for the respondent.

This appeal was heard on July 15-16, 1992, at Vancouver, B.C., before McEachern, C.J.B.C., Legg and Hollinrake, JJ.A., of the British Columbia Court of Appeal.

On July 29, 1992, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Hollinrake, J.A. (Legg, J.A., concurring) - see paragraphs 1 to 26;

McEachern, C.J.B.C., dissenting in part - see paragraphs 27 to 57.