R. v. Swain

R. v. Swain

Given the predatory opportunistic nature of the offending, the severe and likely lifelong harm to a 15 year old victim, absence of remorse and lack of Voong factors, the appropriate sentence for s.151 sexual interference is a mid-range custodial term of 15 months; apply Kienapple stay to the s.271 conviction; grant enhanced remand credit at 1.5:1 for 61 days served (92 days credit); follow with 2 years probation and ancillary orders including DNA, 20 years sex offender registration and 10 years weapons prohibition.

Citation
2020 BCSC 303
Parties
Crown: Regina; Accused: Cory Richard Swain
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
26 February 2020
Procedural Posture
Criminal / Sentencing Hearing
Outcome
Convicted of sexual interference (s.151) and sentenced to 15 months custody reduced by 92 days remand credit; Kienapple stay entered on s.271 sexual assault conviction; 2 years probation and ancillary orders imposed.
Legal Topics
Sexual Interference, Sexual Assault, Kienapple Principle, Sentencing Principles, Ancillary Orders
Source Language
English
Criminal Law Sentencing Child Sexual Offences Sexual Interference Sexual Assault Kienapple Principle Sentencing Principles Ancillary Orders

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Parties

Regina

Crown

Cory Richard Swain

Accused

Procedural Posture

Criminal / Sentencing Hearing

Legal Issues

  1. 1 Appropriate custodial sentence for sexual interference of a person under 16
  2. 2 Application of Kienapple principle to avoid multiple convictions for the same conduct
  3. 3 entitlement to enhanced remand credit for pre-sentence custody

Ratio Decidendi

Given the predatory opportunistic nature of the offending, the severe and likely lifelong harm to a 15 year old victim, absence of remorse and lack of Voong factors, the appropriate sentence for s.151 sexual interference is a mid-range custodial term of 15 months; apply Kienapple stay to the s.271 conviction; grant enhanced remand credit at 1.5:1 for 61 days served (92 days credit); follow with 2 years probation and ancillary orders including DNA, 20 years sex offender registration and 10 years weapons prohibition.

Court Disposition

Convicted of sexual interference (s.151) and sentenced to 15 months custody reduced by 92 days remand credit; Kienapple stay entered on s.271 sexual assault conviction; 2 years probation and ancillary orders imposed.

Orders

  • Custodial sentence of 15 months with credit of 92 days for 61 days pre-sentence custody applied at 1.5:1
  • Kienapple stay entered on conviction under s.271 (sexual assault)