R. v. Sandercock, (1985) 62 A.R. 382 (CA)

• Judge: Laycraft, C.J.A., McDermid and Kerans, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 06, 1985
• Citations: (1985), 62 A.R. 382 (CA);1985 ABCA 218;[1986] 1 WWR 291;40 Alta LR (2d) 265;62 AR 382;22 CCC (3d) 79;48 CR (3d) 154;[1985] CarswellAlta 190;[1985] AJ No 817 (QL);15 WCB 82

R. v. Sandercock (1985), 62 A.R. 382 (CA)

MLB headnote and full text

R. v. Sandercock

(No. 17265)

Indexed As: R. v. Sandercock

Alberta Court of Appeal

Laycraft, C.J.A., McDermid and Kerans, JJ.A.

September 6, 1985.

Summary:

The accused pleaded guilty to sexually assaulting a sixteen year old girl contrary to s. 246.1(a) of the Criminal Code of Canada and was sentenced to three years' imprisonment. The Crown appealed against sentence.

The Alberta Court of Appeal allowed the appeal and increased the sentence to 4.5 years' imprisonment. The court stated that this case was to be used as a guideline for the starting-point approach to sentencing in cases involving major sexual assaults.

Courts - Topic 8

Stare decisis - Precedents - Court of Appeal - Weight - Judgments from the bench - The Alberta Court of Appeal stated that its judgments from the bench, which lacked detail because often only one issue was raised and dealt with, had no significant precedential value - See paragraph 21.

Criminal Law - Topic 5801

Sentencing - Uniformity - The Alberta Court of Appeal stated that "justice requires that two offenders in identical life-circumstances who commit identical crimes should receive identical sentences. Such a twinning is rare, but the sentence process must be such that the reason for any apparent disparity is clear" - See paragraph 3.

Criminal Law - Topic 5830

Sentencing - Considerations on imposing sentence - Starting-point approach - The Alberta Court of Appeal stated that the starting-point approach was to be used in imposing sentence - The court stated that the approach involved "first, a categorization of a crime into 'typical cases', second, a starting sentence for each typical case, third, the refinement of the sentence to the very specific circumstances of the actual case" - See paragraph 7.

Criminal Law - Topic 5830.4

Sentencing - Considerations on imposing sentence - Guilty plea - The Alberta Court of Appeal stated that a guilty plea was a "special and major mitigating factor" - The court stated that aside from showing remorse, "an accused should receive substantial recognition either for sparing the victim the need to testify or to wait to testify, or for waiving some of his constitutional rights in deference to expeditious justice" - See paragraph 23.

Criminal Law - Topic 5834

Sentencing - Considerations on imposing sentence - Circumstances tending to increase sentence - The Alberta Court of Appeal gave examples of aggravating circumstances tending to increase an accused's sentence for sexual assault - The court stated that the aggravating circumstances included protracted forcible confinement or kidnapping, repeated assaults or other acts of degradation, committing the offence in the victim's home, display or use of a weapon and where there was more than one victim - See paragraph 24.

Criminal Law - Topic 5837

Sentencing - Considerations on imposing sentence - Mitigating circumstances - An accused was convicted of sexual assault - The Alberta Court of Appeal stated that mitigating circumstances could include a guilty plea, remorse, immaturity and the global effect of several sentences for several matters - The court stated that drunkenness was generally not a mitigating factor, but "the fact that an assault is totally spontaneous can offer mitigation, and sometimes drunkenness is a factor in determining whether the attack is spontaneous or whether the likely consequences were fully appreciated" - See paragraphs 24, 27.

Criminal Law - Topic 5848

Sentencing - Considerations on imposing sentence - Provocation - The Alberta Court of Appeal stated that "provocation of the offender by the victim is an obvious mitigating factor" - See paragraph 29.

Criminal Law - Topic 5848.1

Sentencing - Considerations on imposing sentence - Negligence of victim - The Alberta Court of Appeal held that negligence of the victim as to his or her own safety is generally not relevant in sentencing, because it does not diminish the blameworthiness of the offender - See paragraph 30.

Criminal Law - Topic 5848.5

Sentencing - Considerations on imposing sentence - Proper considerations - Character of victim - An accused was convicted of sexual assault - The Alberta Court of Appeal stated that "the circumstances in life of the victim, if known to the offender, can affect the assessment of the foreseeable pain to the victim" - The court stated that the foreseeable risk of psychological injury, for example, was less where the victim was a prostitute, rather than a woman who lived a sheltered life - The court stated that "in this limited sense, the life circumstances, or 'character', of the victim might be relevant to sentencing" - See paragraph 28.

Criminal Law - Topic 5932

Sentence - Sexual assault - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 246.1 - The Alberta Court of Appeal stated that the starting point for sentences for major sexual assaults was three years' imprisonment - The court stated that major sexual assault included rape, attempted rape, fellatio, cunnilingus and buggery, where it was foreseeable that the victim would suffer lasting emotional or psychological injury - The court stated that the starting point was based on a mature accused of previous good character, with no previous criminal record, who committed a nonpremeditated sexual assault - See paragraphs 10 to 20.

Criminal Law - Topic 5932

Sentence - Sexual assault - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 246.1 - The 26 year old accused, who had been drinking, forced a 16 year old girl to drive to an isolated area and have sexual intercourse with him - He then drove her home - Previous record for minor offences - At the time of the offence, the accused was on mandatory supervision respecting a one year sentence for an earlier sexual assault - The accused pleaded guilty, but only after the victim testified at the preliminary inquiry - The Alberta Court of Appeal increased the accused's sentence from three to 4.5 years' imprisonment - See paragraphs 31 to 37.

Cases Noticed:

R. v. Taylor, 36 Alta. L.R.(2d) 275, refd to. [para. 11].

R. v. R.P.T. (1983), 46 A.R. 87; 7 C.C.C.(3d) 109 (Alta. C.A.), refd to. [para. 11].

R. v. Croft, [1979] Alta. D 7505-02; 22 A.R. 224, refd to. [para. 12].

R. v. Wood, [1976] 2 W.W.R. 135; 1 A.R. 35 (Alta. C.A.), refd to. [para. 14].

R. v. F. (1982), 20 Alta. L.R.(2d) 90, refd to. [para. 15].

R. v. Cardinal, [1983] Alta. D 751501; 48 A.R. 319 (Alta. C.A.), refd to. [para. 17].

R. v. Hastings (1985), 58 A.R. 108, refd to. [para. 18].

R. v. Brown (1983), 41 A.R. 69; 26 Alta. L.R.(2d) 328, refd to. [para. 20].

R. v. Oakley (1977), 4 A.R. 103, refd to. [para. 20].

R. v. Craig (1975), 28 C.C.C.(2d) 311, refd to. [para. 24].

R. v. Beauregard (1982), 38 A.R. 350, refd to. [para. 24].

R. v. Sweitzer (1980), 26 A.R. 208, refd to. [para. 24].

R. v. Henry (1983), 44 A.R. 242, refd to. [para. 24].

R. v. Sinitoski (1983), 46 A.R. 206, refd to. [para. 24].

R. v. Brown & Murphy (1982), 41 A.R. 69, refd to. [para. 24].

R. v. Graham, [1984] Alta. D. 751501, refd to. [para. 24].

R. v. Harper, [1982] Alta. D. 751502, refd to. [para. 25].

R. v. Clay, [1984] Alta. D. 7517-04, refd to. [para. 25].

R. v. Leech, 10 C.C.C.(2d) 149, refd to. [para. 25].

R. v. Jacobs (1982), 39 A.R. 391, refd to. [para. 28].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 246.1.

Authors and Works Noticed:

Nadin-Davis, Sentencing in Canada (1982), p. 234 [para. 19].

Thomas, D.A., Principles of Sentencing (1970), p. 109 [para. 19].

Counsel:

Bruce Duncan, for the Crown/appellant;

J.D. James, for the respondent.

This appeal was heard before Laycraft, C.J.A., McDermid and Kerans, JJ.A., of the Alberta Court of Appeal.

On September 6, 1985, Kerans, J.A., delivered the following judgment for the Court of Appeal.