R. v. R.M., 2015 NSSC 189

Judge:Wright, J.
Court:Supreme Court of Nova Scotia
Case Date:July 13, 2015
Jurisdiction:Nova Scotia
Citations:2015 NSSC 189;(2015), 363 N.S.R.(2d) 154 (SC)
 
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R. v. R.M. (2015), 363 N.S.R.(2d) 154 (SC);

    1143 A.P.R. 154

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JL.048

Her Majesty the Queen v. R.M.

(Cr. No. 426521; 2015 NSSC 189)

Indexed As: R. v. R.M.

Nova Scotia Supreme Court

Wright, J.

July 13, 2015.

Summary:

The accused was found guilty of four counts: (1) sexual assault; (2) sexual interference with a minor; (3) invitation to a minor to engage in sexual touching; and (4) attempted incest. The complainant was the accused's daughter. It was acknowledged that the conviction for count 2 should be judicially stayed under the Kienapple principle.

The Nova Scotia Supreme Court sentenced the accused to six years' imprisonment for count 1, one year concurrent for count 3, and six years concurrent for count 4. The court also imposed a 10 year firearms prohibition order, a DNA order, a lifetime SOIRA order, an order prohibiting access to minors for 10 years, and a victim surcharge of $300.

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 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - The accused was found guilty of: (1) sexual assault; (2) sexual interference with a minor; (3) invitation to a minor to engage in sexual touching; and (4) attempted incest - The conviction for count 2 was judicially stayed under the Kienapple principle - The sexual abuse occurred over a span of eight years, when the complainant (the accused's daughter) was between the ages of six and 14 - The abuse was frequent and regular, involving fellatio, cunnilingus, simulated intercourse (the accused would rub his penis against his daughter's vagina until he ejaculated) and requests for vaginal penetration - Defence counsel and the Crown both recommended an overall sentence of six years' incarceration by concurrent sentences - The Nova Scotia Supreme Court imposed six years' imprisonment for count 1, one year concurrent for count 3, and six years concurrent for count 4 - The aggravating factors were abuse of a person under age 18, abusing a position of trust or authority, the significant impact on the victim, and the scope and magnitude of the sexual offences committed - There were no mitigating factors - The accused's belated expression of remorse came after putting his daughter through a trial - The court stated that while a coincident sentence recommendation made by counsel after a trial was to be given less weight by the sentencing judge than one arising from a genuine plea bargain, the judge should nonetheless give it careful and serious consideration - While the court considered that a term of six years' imprisonment was on the low side because of the many aggravating factors, it accepted it as within the established range of sentence for the main offences of sexual assault and attempted incest - The court was satisfied that it represented a fit and proper sentence - The court also imposed a 10 year firearms prohibition order, a DNA order, a lifetime SOIRA order, an order prohibiting access to minors for 10 years, and a $300 victim surcharge.

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - [See Criminal Law - Topic 5813 ].

Criminal Law - Topic 5833.1

Sentencing - Considerations on imposing sentence - Child abuse - [See Criminal Law - Topic 5813 ].

Criminal Law - Topic 5847

Sentencing - Considerations on imposing sentence - Remorse of accused - [See Criminal Law - Topic 5813 ].

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children - [See Criminal Law - Topic 5813 ].

Criminal Law - Topic 5849.7

Sentencing - Considerations on imposing sentence - Representations of counsel - [See Criminal Law - Topic 5813 ].

Criminal Law - Topic 5863

Sentence - Incest - [See Criminal Law - Topic 5813 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - [See Criminal Law - Topic 5813 ].

Criminal Law - Topic 5963

Sentence - Inviting sexual touching - [See Criminal Law - Topic 5813 ].

Cases Noticed:

R. v. E.M.W. (2011), 308 N.S.R.(2d) 15; 976 A.P.R. 15; 2011 NSCA 87, refd to. [para. 5].

R. v. Adams (P.F.) (2010), 291 N.S.R.(2d) 206; 922 A.P.R. 206; 2010 NSCA 42, refd to. [para. 18].

R. v. D.D. (2002), 157 O.A.C. 323 (C.A.), refd to. [para. 29].

R. v. H.S. (2014), 318 O.A.C. 299; 2014 ONCA 323, refd to. [para. 30].

R. v. J.B.C. (2010), 286 N.S.R.(2d) 380; 909 A.P.R. 380; 2010 NSSC 28, refd to. [para. 31].

R. v. D.B.S. - see R. v. States (D.B.).

R. v. States (D.B.) (2000), 185 N.S.R.(2d) 101; 575 A.P.R. 101 (S.C.), refd to. [para. 31].

R. v. R.R.D.G. (2014), 347 N.S.R.(2d) 1; 1098 A.P.R. 1 (S.C.), refd to. [para. 31].

R. v. F.H. (2015), 356 N.S.R.(2d) 60; 1126 A.P.R. 60; 2015 NSSC 43, refd to. [para. 32].

R. v. A.N. (2011), 300 N.S.R.(2d) 282; 950 A.P.R. 282; 2011 NSCA 21, refd to. [para. 34].

R. v. MacIvor (R.M.) (2003), 215 N.S.R.(2d) 344; 675 A.P.R. 344; 2003 NSCA 60, refd to. [para. 34].

Counsel:

Scott Morrison, for the Crown;

Peter Kidston, for the defence.

This matter was heard on July 13, 2015, in Halifax, N.S., before Wright, J., of the Nova Scotia Supreme Court, who delivered the following decision orally on July 13, 2015, and in writing on July 27, 2015.

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