R. v. MacKay

R. v. MacKay

Convictions entered on Counts 1 and 3 (sexual touching) with conditional stays on Counts 2 and 4 (sexual assault) under Kienapple; appropriate sentence is six years on Count 1 and six years on Count 3 to be served consecutively for a global sentence of 12 years; aggregate 12 years does not offend totality; apply enhanced pre‑sentence custody credit of 1.5:1 for 85 days custody (128 days credit) reducing the first six‑year sentence by 128 days to an effective term of five years and 237 days consecutive to the six‑year sentence; impose ancillary orders (s.109 prohibition, DNA under s.487.051, lifetime SOIRA s.490.013, lifetime employment/volunteer ban s.161(b), victim surcharge).

Citation
2017 BCSC 1146
Parties
Crown: Regina; Accused: Kurk Joshua MacKay
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
2 June 2017
Procedural Posture
Criminal Sexual Offences (sexual Assault and Sexual Touching) / Sentencing Following Jury Conviction
Outcome
Convictions entered on Counts 1 and 3; conditional stays entered on Counts 2 and 4; sentenced to 6 years on Count 1 and 6 years on Count 3 to be served consecutively; enhanced pre‑sentence custody credit of 1.5:1 applied (128 days) reducing first sentence by 128 days; ancillary orders imposed.
Legal Topics
Sexual Assault, Sexual Touching, Position of Trust, Denunciation and Deterrence, Consecutive Sentences, Totality Principle, Pre Sentence Custody Credit, Ancillary Orders (dna, SOIRA, Employment Ban)
Source Language
English
Criminal Law Sentencing Child Protection Sexual Assault Sexual Touching Position of Trust Denunciation and Deterrence Consecutive Sentences +3 more

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Parties

Regina

Crown

Kurk Joshua MacKay

Accused

Procedural Posture

Criminal Sexual Offences (sexual Assault and Sexual Touching) / Sentencing Following Jury Conviction

Legal Issues

  1. 1 Whether Kienapple duplication rule required stays on certain counts
  2. 2 Appropriate individual and global sentences for repeated sexual offences against foster children
  3. 3 Whether sentences should be consecutive or concurrent

Ratio Decidendi

Convictions entered on Counts 1 and 3 (sexual touching) with conditional stays on Counts 2 and 4 (sexual assault) under Kienapple; appropriate sentence is six years on Count 1 and six years on Count 3 to be served consecutively for a global sentence of 12 years; aggregate 12 years does not offend totality; apply enhanced pre‑sentence custody credit of 1.5:1 for 85 days custody (128 days credit) reducing the first six‑year sentence by 128 days to an effective term of five years and 237 days consecutive to the six‑year sentence; impose ancillary orders (s.109 prohibition, DNA under s.487.051, lifetime SOIRA s.490.013, lifetime employment/volunteer ban s.161(b), victim surcharge).

Court Disposition

Convictions entered on Counts 1 and 3; conditional stays entered on Counts 2 and 4; sentenced to 6 years on Count 1 and 6 years on Count 3 to be served consecutively; enhanced pre‑sentence custody credit of 1.5:1 applied (128 days) reducing first sentence by 128 days; ancillary orders imposed.

Orders

  • Conditional stays of proceedings on Counts 2 and 4 (sexual assault) under Kienapple
  • Convictions entered on Count 1 and Count 3 (sexual touching)