R. v. Norton (T.T.), 2016 MBCA 79

• Judge: Steel, Cameron and Pfuetzner, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: February 29, 2016
• Jurisdiction: Manitoba
• Citations: 2016 MBCA 79;(2016), 330 Man.R.(2d) 261 (CA)

R. v. Norton (T.T.) (2016), 330 Man.R.(2d) 261 (CA);

      675 W.A.C. 261

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. AU.016

Her Majesty The Queen (appellant) v. Timothy Todd Norton (accused/respondent)

(AR 14-30-08309; 2016 MBCA 79)

Indexed As: R. v. Norton (T.T.)

Manitoba Court of Appeal

Steel, Cameron and Pfuetzner, JJ.A.

August 11, 2016.

Summary:

The accused pleaded guilty to sexual interference and was sentenced to 15 months' imprisonment plus one day. The Crown applied for leave to appeal and, if successful, appealed.

The Manitoba Court of Appeal granted leave to appeal, allowed the appeal and substituted a sentence of three years' imprisonment. The court stayed the remaining custodial portion of the 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 a restriction on publication under s. 486.4 of the Criminal Code and Maritime Law Book's editorial policy.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle and sentencing ranges) - The accused pleaded guilty to sexual interference and was sentenced to 15 months' imprisonment plus one day - The accused was 20 years old at the time of the offence and about 3.5 months over the five-year age difference exception found in s. 150.1(2.1)(a) of the Criminal Code - The sexual acts engaged in by the complainant, a 17 year old male and the accused, at the accused's suggestion, were "major" - At the time of sentencing, the accused was sentenced for other serious offences, including possession of a firearm without a licence and criminal harassment (involving his ex-partner) - He was also sentenced for breaching the recognizance that he had entered into when he was originally charged with this offence (he took a 15 year old female out to lunch) - He had 17 prior convictions composed of breaches of court orders, obstructing justice, property-related offences and weapons related offences - He expressed remorse and some insight into the consequences of his behaviour - He was released from prison after serving 19 months of his total sentence of 20 months - His actions had a profound effect on the complainant and her family - The Manitoba Court of Appeal allowed the Crown's appeal - Cases involving similar sexual acts and circumstances suggested a starting point in the range of three years - This assumed a mature accused with a clean record and good prior character - While the sentencing judge correctly stated that the complainant's willingness was not mitigating factor, she equated the Crown's failure to prove a lack of factual consent as a circumstance that prevented her from considering the three year starting point - She erred in reaching that conclusion by overemphasizing whether the complainant was a willing participant - The court substituted a sentence of three years' imprisonment - Considering all the relevant factors, including the following (i) had the three year sentence been imposed, the accused would have already been out of prison; (ii) he had made successful steps toward community reintegration which would likely be impeded if he were reincarcerated; and (3) he was successfully completing his two-year probation, the court stayed the remaining custodial portion of the sentence.

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children - [See Criminal Law - Topic 5846.5 ].

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - [See Criminal Law - Topic 5846.5 ].

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court full or partially served - [See Criminal Law - Topic 5846.5 ].

Counsel:

R.D. Lagimodière and C.T. St. Croix, for the appellant;

T.T. Norton, on his own behalf.

This application and appeal were heard on February 29, 2016, by Steel, Cameron and Pfuetzner, JJ.A., of the Manitoba Court of Appeal. Cameron, J.A., delivered the following judgment for the court on August 11, 2016.