R. v. W.B.S.; R. v. M.P., (1992) 127 A.R. 65 (CA)

• Court: Court of Appeal (Alberta)
• Case Date: July 02, 1992
• Citations: (1992), 127 A.R. 65 (CA);1992 CanLII 2761 (AB CA);127 AR 65;15 CR (4th) 324;73 CCC (3d) 530;[1992] CarswellAlta 274;[1992] AJ No 601 (QL);16 WCB (2d) 558;20 WAC 65

R. v. W.B.S. (1992), 127 A.R. 65 (CA);

    20 W.A.C. 65

MLB headnote and full text

Her Majesty The Queen (appellant) v. W.B.S. (respondent)

(Appeal No. 12694)

Her Majesty The Queen (appellant) v. M.P. (respondent)

(Appeal No. 12684)

Indexed As: R. v. W.B.S.; R. v. M.P.

Alberta Court of Appeal

Major, J.A., McDonald and

Quigley, JJ.(ad hoc)

July 2, 1992.

Summary:

W.B.S. was convicted of two counts of sexual assault and sentenced to a total of three years' imprisonment. The victims were his stepson and stepdaughter. M.P. pleaded guilty to aggravated sexual assault of a young female relative and was also sen­tenced to three years' imprisonment. The Crown appealed the sentences in both cases. The appeals were heard together.

The Alberta Court of Appeal allowed both appeals. The court increased W.B.S.'s sen­tence to seven years' imprisonment and increased M.P.'s sentence to 5.5 years' im­prisonment. The court reviewed the appro­priate sentencing principles for major sexual assaults against children.

Criminal Law - Topic 5833

Sentencing - Considerations in imposing sentence - Deterrence - [See Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 5848.7

Sentencing - Considerations in imposing sentence - Denunciation - [See Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 5848.9

Sentencing - Considerations in imposing sentence - Sexual offences against children - The Alberta Court of Appeal stated that denunciation and general deterrence were the paramount sentencing considerations in cases of major sexual assaults on children - Rehabilitation was generally insignificant and not of para­mount concern - The court stated that for sentencing there was a separate category of major sexual assault of a child by a parent or person in a position of control and trust and the starting point sentence for a single major sexual assault on such a child was four years' imprisonment - The court then discussed aggravating and mitigating fac­tors that would increase or decrease the sentence - See paragraphs 3 to 42.

Criminal Law - Topic 5932

Sentence - Sexual assault - [See Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - The accused was convicted of two counts of sexual assault - The accused had repeated anal intercourse with his stepdaughter and stepson beginning when they were six and eight years old respectively - Threats were used - The offences were planned and deliberate - The accused had no crim­inal record and showed no remorse - Serious breach of trust - The trial judge sentenced the accused to three years' im­prisonment on each count (concurrent) - The Alberta Court of Appeal increased the sentences to seven years' imprisonment (concurrent) - See paragraphs 43 to 46.

Criminal Law - Topic 5933.1

Sentence - Aggravated sexual assault - The 20 year old status Indian accused pleaded guilty to aggravated sexual assault - The accused undressed a seven year old female relative, struck her in the head and body and had forced vaginal and anal intercourse with her - The accused was caught in the act, yet took the girl to a bedroom and repeated the acts - The girl was physically injured - The accused was allegedly drunk and had no criminal record - He spent three months in pretrial cus­tody - Little remorse was shown - The girl was a relative, so the element of breach of trust was present, as opposed to the case of a total stranger - The Alberta Court of Appeal set aside a sentence of three years' imprisonment and substituted a sentence of 5.5 years' imprisonment - See paragraphs 47 to 59.

Cases Noticed:

R. v. Sandercock (1985), 62 A.R. 382; 22 C.C.C.(3d) 79 (C.A.), consd. [para. 3].

R. v. McCraw (1991), 128 N.R. 299; 49 O.A.C. 47 (S.C.C.), refd to. [para. 4].

R. v. Winch, [1974] Crim. L.R. 487, refd to. [para. 16].

R. v. T.; R. v. S., [1983] 5 W.W.R. 558; 46 A.R. 87 (C.A.), refd to. [para. 17].

R. v. Moore (1979), 30 N.S.R.(2d) 638; 49 A.P.R. 638 (C.A.), refd to. [para. 17].

R. v. A.I.S. (1989), 98 A.R. 249 (C.A.), refd to. [para. 19].

R. v. A.B.C. (1991), 120 A.R. 106; 8 W.A.C. 106 (C.A.), refd to. [para. 20].

R. v. B. (1990), 36 O.A.C. 307 (C.A.), refd to. [para. 22].

R. v. B.D. (1988), 90 A.R. 373 (C.A.), refd to. [para. 24].

R. v. S.G.O.R. (1991), 113 A.R. 36 (C.A.), refd to. [para. 25].

R. v. A.S.D. (1991), 112 A.R. 159 (C.A.), refd to. [para. 27].

R. v. C.D. (1991), 75 Man.R.(2d) 14; 6 W.A.C. 14 (C.A.), refd to. [para. 29].

R. v. M.F.D. (1991), 75 Man.R.(2d) 21; 6 W.A.C. 21 (C.A.), refd to. [para. 29].

R. v. Tallman (1989), 94 A.R. 251 (C.A.), refd to. [para. 38].

R. v. D.L.R. (1990), 111 A.R. 317 (C.A.), refd to. [para. 45].

R. v. Ancelet (1986), 70 A.R. 263 (C.A.), refd to. [para. 56].

R. v. Newman (1988), 27 O.A.C. 141 (C.A.), refd to. [para. 57].

R. v. Campbell (1978), 26 N.S.R.(2d) 460; 40 A.P.R. 460; 4 C.R.(3d) 518 (C.A.), refd to. [para. 58].

Authors and Works Noticed:

Bailey, V., and S. McCabe, Reforming the Law of Incest, [1979] Crim. L.R. 749, generally [para. 16].

Browne, A., and D. Finkelhor, Impact of Child Sexual Abuse: A Review of the Research (1986), 99 Psychological Bul­letin, No. 1, generally [para. 10].

Counsel:

P.W.L. Martin, Q.C., for the appellant;

C.R. Clark, for the respondent, W.B.S.;

B.A.B. Broadhurst, for the respondent, M.P.

These appeals were heard before Major, J.A., McDonald and Quigley, JJ.(ad hoc), of the Alberta Court of Appeal.

On July 2, 1992, the following judgment was delivered by the Court.