R. v. Sam (D.R.), 2013 ABCA 174

• Judge: Fraser, C.J.A., Hunt and Watson, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 19, 2013
• Citations: 2013 ABCA 174;(2013), 553 A.R. 118

R. v. Sam (D.R.) (2013), 553 A.R. 118; 583 W.A.C. 118 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. MY.097

Her Majesty the Queen (appellant) v. Dario Roy Sam (respondent)

(1201-0113-A; 2013 ABCA 174)

Indexed As: R. v. Sam (D.R.)

Alberta Court of Appeal

Fraser, C.J.A., Hunt and Watson, JJ.A.

May 22, 2013.

Summary:

The accused pled guilty to sexual assault. He was 18 years of age on the date of the offence which involved a single act of intercourse with a 13 year old girl.

The Alberta Provincial Court, in a decision reported at [2012] A.R. Uned. 343, sentenced the accused to five months of imprisonment followed by 18 months of probation. The Crown appealed the sentence. The accused's term of imprisonment had been completed.

The Alberta Court of Appeal held that while the reasoning of the sentencing judge involved errors of principle, in light of the circumstances and the passage of time, it was not persuaded that it should substantially interfere with the result. The court allowed the Crown appeal to the extent of lengthening the probation order by a further 12 months upon the conditions specified by the sentencing judge.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle) - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - The 18 year old accused gave the 13 year old complainant his phone number - She contacted him and they agreed to meet - The accused and the complainant were watching movies in the complainant's room, and he asked her if he could touch her vaginal area - She initially objected, but eventually removed her pants and allowed him to touch her - He then persuaded her (again, over her initial objection) to have sexual intercourse with him - The accused pled guilty to sexual assault - He had been diagnosed in childhood as suffering attention deficit disorder and some form of fetal alcohol spectrum disorder - His birth mother came from a Chilcotin region Indian Band - He was raised by foster parents - The accused was sentenced to five months' imprisonment followed by 18 months' probation - The Crown appealed the sentence - The term of imprisonment had been completed - The Alberta Court of Appeal held that the sentencing judge's disposition was not proportional to the offence and was grounded on erroneous reasoning - In effect, the sentencing judge took it upon himself to write a guidance decision for sentencing without having an adequate record upon which to properly pursue that objective - Further, to the extent the sentencing judge suggested a range of 45 days to 18 months' imprisonment, he erred - The 18 month top end was the maximum available for the summary conviction version of this offence - The limits of a summary conviction range did not dictate what an indictable sentence should be - It was also not correct for the sentencing judge to devise his own starting point by reading down a starting point decision of the Court of Appeal - The case examples which he named did not substantiate the range he proposed - That said, it had been more than two years since the offence - In addition, the court now had before it a detailed Gladue report outlining the considerable problems and challenges that the accused had had in life - Over the previous two plus years, he had accepted responsibility for his behaviour, participated in counselling, matured considerably, and engaged in pro-social activity - It would be counterproductive to reverse the accused's course of rehabilitation at this point - In the result, the court allowed the Crown appeal to the extent of lengthening the probation order by a further 12 months.

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 6212

Sentencing - Appeals - Variation of sentence - Considerations - Rehabilitation of accused pending appeal - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court fully or partially served (incl. appeal delay) - [See Criminal Law - Topic 5932 ].

Cases Noticed:

R. v. Bjornson (B.J.) (2012), 536 A.R. 1; 559 W.A.C. 1; 2012 ABCA 230, refd to. [para. 24].

R. v. King (V.A.) (2013), 542 A.R. 43; 566 W.A.C. 43; 2013 ABCA 3, refd to. [para. 24].

R. v. Solowan (K.S.T.), [2008] 3 S.C.R. 309; 381 N.R. 191; 261 B.C.A.C. 27; 440 W.A.C. 27; 2008 SCC 62, refd to. [para. 29].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 32].

R. v. Prince, [1986] 2 S.C.R. 480; 70 N.R. 119; 45 Man.R.(2d) 93, refd to. [para. 32].

R. v. Pritchard (T.) (2005), 371 A.R. 27; 354 W.A.C. 27; 2005 ABCA 240, refd to. [para. 33].

R. v. Feng (C.J.) (2011), 505 A.R. 229; 522 W.A.C. 229; 2011 ABCA 172, refd to. [para. 33].

R. v. Pudwell (M.J.D.) (2013), 544 W.A.C. 175; 567 W.A.C. 175; 2013 ABCA 88, refd to. [para. 33].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 2012 SCC 13, refd to. [para. 35].

R. v. Gladue (J.A.J.) (2012), 522 A.R. 254; 544 W.A.C. 254; 2012 ABCA 118, refd to. [para. 35].

Counsel:

B.R. Graff, for the appellant;

J.M. Blumer and J.A. Edgett, for the respondent.

This appeal was heard on March 19, 2013, before Fraser, C.J.A., Hunt and Watson, JJ.A., of the Alberta Court of Appeal. The Court of Appeal delivered the following memorandum of judgment which was filed on May 22, 2013.