R. v. R.M., (2008) 435 A.R. 388 (PC)

• Judge: Daniel, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: January 24, 2008
• Citations: (2008), 435 A.R. 388 (PC);2008 ABPC 22

R. v. R.M. (2008), 435 A.R. 388 (PC)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. FE.147

Her Majesty The Queen v. R.M. (070161120P10101-0103; 2008 ABPC 22)

Indexed As: R. v. R.M.

Alberta Provincial Court

Daniel, P.C.J.

January 24, 2008.

Summary:

The 21 year old accused sexually assaulted the seven year old daughter of a co-worker. The accused was a downstairs tenant in the co-worker's home. The accused forced the daughter to masturbate him to ejaculation. The Crown sought a custodial sentence. The accused sought a conditional sentence.

The Alberta Provincial Court sentenced the accused to one year's imprisonment, followed by two years' probation.

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 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - The 21 year old accused was a tenant in the downstairs of the home owned by a co-worker - The accused sexually assaulted the co-worker's seven year old daughter by forcing her to masturbate him to ejaculation - The accused had prior convictions as a youth for uttering threats and assault with a weapon - The accused came from India with his family at age 13 - Although he pleaded guilty, he was not particularly remorseful - The accused was a social drinker and marijuana user - He had no motivation or use for any counselling or treatment - The accused's submission to the court concerned how the offence had negatively affected his life, showing no concern or empathy for the victim - A psychiatric assessment opined that the accused had limited insight into his behaviour, acted impulsively, has possible problems with intimate relationships and non-sexual criminality and that counselling was needed to reduce the risk of re-offending to low to moderate - An aggravating factor was that the accused abused a position of trust - This was a "serious" sexual assault - Moral blameworthiness was high, as the daughter was in a position of extreme vulnerability - The Alberta Provincial Court sentenced the accused to one year's imprisonment - The court declined to impose a conditional sentence, as the accused posed a danger to the community and, in any event, denunciation and deterrence required a custodial sentence.

Cases Noticed:

R. v. Sandercock (1985), 62 A.R. 382; 1985 CarswellAlta 190 (C.A.), refd to. [para. 14].

R. v. G.C.K. (2004), 357 A.R. 264; 334 W.A.C. 264; 2004 CarswellAlta 1449; 2004 ABCA 348, refd to. [para. 14].

R. v. W.B.S.; R. v. M.P. (1992), 127 A.R. 65; 20 W.A.C. 65; 1992 ABCA 274, refd to. [para. 14].

R. v. D.K. (1994), 155 A.R. 269; 73 W.A.C. 269;1994 CarswellAlta 584 (C.A.), refd to. [para. 14].

R. v. L.A.C. (2005), 386 A.R. 102; 2005 CarswellAlta 1122; 2005 ABPC 217, refd to. [para. 14].

R. v. D.R.G. (1994), 159 A.R. 161; 1994 CarswellAlta 641 (Prov. Ct.), refd to. [para. 14].

R. v. D.M.B.; R. v. S.E.W. (1993), 141 A.R. 307; 46 W.A.C. 307; 1993 CarswellAlta 638 (C.A.), refd to. [para. 14].

R. v. Cuthbert (D.A.) (1998), 101 B.C.A.C. 147; 164 W.A.C. 147; 1998 CarswellBC 161 (C.A.), refd to. [para. 14].

R. v. D.A.C. - see R. v. Cuthbert (D.A.).

R. v. L.J.S. (1997), 101 O.A.C. 34; 1997 CarswellOnt 1896 (C.A.), refd to. [para. 14].

R. v. H.P.P. (1996), 113 Man.R.(2d) 271; 131 W.A.C. 271; 1996 CarswellMan 586 (C.A.), refd to. [para. 14].

R. v. D.B.L. (1995), 83 O.A.C. 374; 1995 CarswellOnt 988 (C.A.), refd to. [para. 14].

R. v. West (D.J.), [2007] A.W.L.D. 876; 401 A.R. 320; 391 W.A.C. 320; 219 C.C.C.(3d) 207 (C.A.), refd to. [para. 14].

R. v. P.M.B., [1991] A.J. No 1036 (C.A,), refd to. [para. 14].

R. v. B.C.H. (1991), 71 Man.R.(2d) 239 (C.A.), refd to. [para. 14].

R. v. A.O.K. (1996), 191 A.R. 247 (Prov. Ct.), refd to. [para. 14].

R. v. P.S., [1993] O.J. No. 704 (Gen. Div.), refd to. [para. 14].

R. v. B.W.B. (2007), 412 A.R. 182; 404 W.A.C. 182; 2007 ABCA 199, refd to. [para. 15].

R. v. L.K.C., 2006 BCPC 117, refd to. [para. 15].

R. v. C.O. (2006), 397 A.R. 324; 384 W.A.C. 324; 2006 CarswellNWT 45 (C.A.), refd to. [para. 15].

R. v. Cordeiro, 2006 CarswellOnt 4115 (Gen. Div.), refd to. [para. 15].

R. v. J.P.F., [2002] B.C.T.C. 756; 2002 BCSC 756, refd to. [para. 15].

Counsel:

Gloria Froese, for the Crown;

J. Steve Virk, for the accused.

This case was heard at Calgary, Alberta, before Daniel, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on January 24, 2008.