R. v. M.J.W.

R. v. M.J.W.

The court held Crown did not prove beyond a reasonable doubt that the accused was in a position of trust; the offence did not meet the statutory definition of a "serious personal injury offence" under s.752; the accused was eligible for a conditional sentence and, given the factors of seriousness, offender attitude, three incidents of intercourse and mitigating assessments, an 18-month sentence served in the community under a conditional sentence was appropriate with strict conditions and ancillary orders.

Citation
2011 NSPC 33
Parties
Crown: Her Majesty the Queen; Accused: M.J.W.
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
31 May 2011
Procedural Posture
Criminal Incest / Sentencing Decision
Outcome
Accused sentenced to 18 months imprisonment to be served as a conditional sentence in the community (house arrest and supervision) with ancillary orders
Legal Topics
Incest, Conditional Sentence Eligibility, Position of Trust, Aggravating Factors, Ancillary Orders, SOIRA, DNA Order, Publication Ban
Source Language
English
Criminal Law Sentencing Incest Conditional Sentence Eligibility Position of Trust Aggravating Factors Ancillary Orders SOIRA +2 more

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Parties

Her Majesty the Queen

Crown

M.J.W.

Accused

Procedural Posture

Criminal Incest / Sentencing Decision

Legal Issues

  1. 1 Whether the offender was in a position of trust or authority toward the complainant
  2. 2 Whether the offence qualified as a "serious personal injury offence" under s.752 and was therefore excluded from conditional sentencing under s.742.1
  3. 3 Whether a conditional sentence was appropriate and, if so, its length and conditions

Ratio Decidendi

The court held Crown did not prove beyond a reasonable doubt that the accused was in a position of trust; the offence did not meet the statutory definition of a "serious personal injury offence" under s.752; the accused was eligible for a conditional sentence and, given the factors of seriousness, offender attitude, three incidents of intercourse and mitigating assessments, an 18-month sentence served in the community under a conditional sentence was appropriate with strict conditions and ancillary orders.

Court Disposition

Accused sentenced to 18 months imprisonment to be served as a conditional sentence in the community (house arrest and supervision) with ancillary orders

Orders

  • Conditional sentence of 18 months to be served in the community under s.742.1
  • House arrest (remain in residence) for one year beginning 5 p.m. May 31, 2011 to 11:59 p.m. May 30, 2012, with enumerated exceptions and requirement to carry order/permissions when outside residence