R. v. T.B.M.

R. v. T.B.M.

Given the extreme vulnerability of the 3‑year‑old victim, the sexual penetration causing tearing and bruising, the offender's position of trust, limited mitigating factors, prior poor compliance with court orders and risk concerns, a custodial term of four years is proportionate; with agreed two‑for‑one credit for nine months pre‑trial custody (treated as 1.5 years) the effective additional custodial term is two years six months. Ancillary orders (firearms prohibition, SOIRA 20 years, DNA order, s.161 prohibitions for 10 years) are necessary and not grossly disproportionate.

Citation
2012 BCSC 286
Parties
Crown: Regina; Accused: T.B.M.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
4 January 2012
Procedural Posture
Criminal Sexual Assault Causing Bodily Harm (child Victim) / Sentencing (post‑conviction)
Outcome
Accused convicted; sentenced to four years' custody with credit for time served applied (two‑for‑one credit for nine months custody treated as 1.5 years) resulting in an additional custodial term of two years six months; ancillary orders imposed.
Legal Topics
Sentencing Principles, Aggravating and Mitigating Factors, Credit for Time Served, Gladue Considerations, Firearms Prohibition, DNA Order, Sex Offender Information Registration Act (soira), S.161 Prohibition (parks and Child‑related Positions)
Source Language
English
Criminal Law Sentencing Sexual Offences Child Protection Aboriginal Sentencing Issues Ancillary Orders Sentencing Principles Aggravating and Mitigating Factors +6 more

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Parties

Regina

Crown

T.B.M.

Accused

Procedural Posture

Criminal Sexual Assault Causing Bodily Harm (child Victim) / Sentencing (post‑conviction)

Legal Issues

  1. 1 Appropriate length of custodial sentence for sexual assault causing bodily harm of a 3‑year‑old by a person in a position of trust
  2. 2 Whether Gladue/aboriginal background factors materially mitigate sentence
  3. 3 Appropriate credit for pre‑trial custody/time served

Ratio Decidendi

Given the extreme vulnerability of the 3‑year‑old victim, the sexual penetration causing tearing and bruising, the offender's position of trust, limited mitigating factors, prior poor compliance with court orders and risk concerns, a custodial term of four years is proportionate; with agreed two‑for‑one credit for nine months pre‑trial custody (treated as 1.5 years) the effective additional custodial term is two years six months. Ancillary orders (firearms prohibition, SOIRA 20 years, DNA order, s.161 prohibitions for 10 years) are necessary and not grossly disproportionate.

Court Disposition

Accused convicted; sentenced to four years' custody with credit for time served applied (two‑for‑one credit for nine months custody treated as 1.5 years) resulting in an additional custodial term of two years six months; ancillary orders imposed.

Orders

  • Custodial sentence of 4 years, with credit for time served of 1.5 years (two‑for‑one credit for 9 months), resulting in additional custody of 2 years 6 months
  • Mandatory firearms prohibition under s.109(2): prohibited from possessing non‑prohibited firearms and related items for 10 years after release; prohibited firearms/weapons/ammunition prohibited for life