What happens if there is a youthful first offender accused of sexual assault for an offence that he allegedly committed over 5 years ago?
An interesting decision was recently released by the court of appeal in Ontario on precisely this point.
In R v RV, 2019 ONCA 834, the accused was 20 years old while the complainant was 15 years old. They were both cousins.
The conduct involved was a single act as a result of which the complainant became pregnant. The act took place on the floor of the shower in the men’s washroom at a campground after the appellant had led the complainant there on the pretext of wishing to speak with her alone. Both the appellant and the complainant had previously consumed alcohol.
The Ontario Court of Justice found him guilty on the counts of sexual interference and sexual assault. He was sentenced to four years. The accused appealed this sentence.
The Ontario Court if Appeal enunciated The principles of sentencing in a case involving a youthful first offender.
What are the meeting mitigating factors?:
In mitigation, the trial judge took into account that the appellant was a youthful first offender who had worked steadily since leaving school in Grade 9. He had a supportive family, and a spouse with whom he had a child. The pre-sentence report was generally positive. He had been on judicial interim release for a lengthy period prior to trial without apparent incident.
What were the aggravating factors?:
The trial judge also took into account some aggravating factors. Among those he considered were:
i. the statutory factor in s. 718.01 of the Criminal Code, which assigns primacy to the principles of denunciation and deterrence, for offences involving the abuse of a person under 18 years of age;
ii. the nature of the relationship between the parties, akin to, but not necessarily the equivalent of, a trust relationship; and
iii. the consequences to the complainant involving the pregnancy, its termination and the loss of educational opportunities and valued personal relationships.
Analysis by the Court of Appeal:
“The range of sentence identified by the trial judge was apt. This case involved extremely intimate contact, akin to intercourse, with an underaged relative of the appellant whom he had inveigled into a place away from other family members, there to commit the offence of which he stands convicted. The offence has had significant consequences for the complainant, physically, emotionally, and in her familial relationships.
[10] Nor are we persuaded that the judge’s location of the sentence within the identified range of sentence fails to give effect to the principles governing the length of custodial sentence for youthful first offenders. We also note that an error of this nature – the placement of a sentence within a range – does not constitute reversible error, absent a sentence that is demonstrably unfit. Quite simply, that is not this case.
[11] In the result, we grant leave to appeal sentence and set aside the victim surcharge imposed upon the appellant, but otherwise dismiss the appeal from sentence.”
Meaning and impact:
Even if you are a youthful first offender, if you are accused of serious crimes such as sexual assault, or sexual interference specially with a person under the age of 18, and if you are found guilty, you are looking at a long jail term. You should not be expecting clemency unless there are such mitigating factors that are over and beyond what is given above. But that would be a fact-based analysis of a particular case.
This case sends out a clear message of in custody time for this type of an offence. Normally the excuse or the request is that the offender is a young person and this is the first time that such an offence has happened. Unfortunately such an argument no longer carries the weight that it once did. This case is an example of that.
The above case focused on the sentencing of a youthful first offender. The issues of men’s rea and actus reus are still central to determine whether the person is guilty or not.