R. v. ElGebeily

R. v. ElGebeily

Given the offence was at the lower end of the sexual assault spectrum, the accused's remorse, lack of prior record, strong family supports, significant collateral immigration and family consequences, and the need to balance denunciation and deterrence with individualized sentencing, a conditional discharge with 12 months probation and specified conditions is appropriate and not contrary to the public interest; a DNA order is mandatory under s.487.051(1) while a SOIRA order is not available where a discharge is imposed.

Citation
2021 NSSC 236
Parties
Prosecutor: Her Majesty the Queen; Accused: Hossameldin ElGebeily
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
8 July 2021
Procedural Posture
Criminal Sexual Assault / Sentencing Hearing / Disposition
Outcome
Conditional discharge under s.730(1) of the Criminal Code with 12 months probation; DNA order granted; SOIRA order denied.
Legal Topics
Sexual Assault, Sentencing, Conditional Discharge, DNA Order, Sex Offender Information Registration Act (soira), Immigration Consequences
Source Language
English
Criminal Law Immigration Law Sexual Assault Sentencing Conditional Discharge DNA Order Sex Offender Information Registration Act (soira) Immigration Consequences

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Parties

Her Majesty the Queen

Prosecutor

Hossameldin ElGebeily

Accused

Procedural Posture

Criminal Sexual Assault / Sentencing Hearing / Disposition

Legal Issues

  1. 1 Whether a conditional discharge is appropriate and not contrary to the public interest
  2. 2 Whether a DNA order is mandatory following a discharge for a primary designated offence
  3. 3 Whether a SOIRA order applies where the final disposition is a discharge

Ratio Decidendi

Given the offence was at the lower end of the sexual assault spectrum, the accused's remorse, lack of prior record, strong family supports, significant collateral immigration and family consequences, and the need to balance denunciation and deterrence with individualized sentencing, a conditional discharge with 12 months probation and specified conditions is appropriate and not contrary to the public interest; a DNA order is mandatory under s.487.051(1) while a SOIRA order is not available where a discharge is imposed.

Court Disposition

Conditional discharge under s.730(1) of the Criminal Code with 12 months probation; DNA order granted; SOIRA order denied.

Orders

  • DNA order granted pursuant to s.487.051(1) Criminal Code
  • SOIRA order denied