At trial got 18 months. Convicted of 4 counts of indecent (sexual) assault. Between 1969 and 1972, he was 23 to 26, complainants were 13 to 16. Now he is 54, married, 2 kids, held stable job, no other criminal record. Psychologist said very low risk and not considered danger to society. He is not a pedophile. Victim impact statements were used. Showed no remorse
Would a conditional sentence have been appropriate in this case?
Did the trial judge place too must emphasis on the defendants lack of remorse?
What impact if any should be given to Victim Impact Statements?
A conditional sentence is capable of satisfying the principles of deterrence and denunciation.
Victim Impact Statements should describe the harm or loss, arising from the commission of the offence, but should not include criticisms, assertions of facts, or recommendations as to punishment.
A criminal proceeding is not a tripartite proceeding – the crime was committed against society as a whole. It is in the public interest not the private interest (R. v. Gabriel 1999)
Criteria that a court must consider before deciding to impose a conditional sentence: (From Proulx) – must have all 4:
**1. The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment.
**2. The court must impose a term of imprisonment of less then two years
**3. The safety of the community would not endangered by the offender serving the sentence in the community; and
**4. A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss.718 to 718.2.
Factors to consider when finding an exception circumstance exists (R. v. Gallacher 1991) – Factors for historical sexual assault case:
**The offenses occurred many years ago.
**There is no evidence of the offences being repeated.
**There is a finding that the appellant is not a pedophile.
**Any record of physical harm?
**Does the family support the offender?
**The events involved did not include physical violence or threats of violence
In this case a conditional sentence would be a fit sentence
Remorse is relevant but not determinative