R. v. Josephson

R. v. Josephson

Because the offences involved a 10-year-old child, included anal and oral sexual acts, were committed by an adult in a parental/position-of-trust role who instructed the child to remain silent, and because the aggravating factors outweighed mitigation (no prior record, low assessed risk), a custodial sentence was required for denunciation and deterrence; the judge fixed a custodial term of two years less a day (to permit subsequent probation) with three years probation and ancillary orders (firearms prohibition, DNA, 20 years SOIRA) and recommended a conditional stay of the sexual assault count as consistent with Kienapple considerations.

Citation
2021 BCSC 1947
Parties
Crown: Regina; Accused: David Keith Josephson
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
28 June 2021
Procedural Posture
Criminal Historical Child Sexual Offences / Sentencing (post Conviction)
Outcome
Accused sentenced to 2 years less a day custody on convictions under ss.151 and 152; 3 years probation to follow; ancillary orders imposed; conditional stay of s.271 sexual assault count recommended.
Legal Topics
Sexual Interference, Invitation to Sexual Touching, Sexual Assault, Probation Conditions, Ancillary Orders, SOIRA Registration, DNA Order, Firearms Prohibition, Conditional Stay, Kienapple Principle
Source Language
English
Criminal Law Sexual Offences Child Protection Sentencing Sexual Interference Invitation to Sexual Touching Sexual Assault Probation Conditions +6 more

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Parties

Regina

Crown

David Keith Josephson

Accused

Procedural Posture

Criminal Historical Child Sexual Offences / Sentencing (post Conviction)

Legal Issues

  1. 1 Appropriate sentence for historical sexual offences against a child
  2. 2 Whether a conditional sentence is appropriate
  3. 3 Application of aggravating and mitigating factors including position of trust and denial

Ratio Decidendi

Because the offences involved a 10-year-old child, included anal and oral sexual acts, were committed by an adult in a parental/position-of-trust role who instructed the child to remain silent, and because the aggravating factors outweighed mitigation (no prior record, low assessed risk), a custodial sentence was required for denunciation and deterrence; the judge fixed a custodial term of two years less a day (to permit subsequent probation) with three years probation and ancillary orders (firearms prohibition, DNA, 20 years SOIRA) and recommended a conditional stay of the sexual assault count as consistent with Kienapple considerations.

Court Disposition

Accused sentenced to 2 years less a day custody on convictions under ss.151 and 152; 3 years probation to follow; ancillary orders imposed; conditional stay of s.271 sexual assault count recommended.

Orders

  • Custody: 2 years less a day in jail on convictions under ss.151 and 152 (concurrent)
  • Probation: 3 years commencing on release with conditions as set out in Appendix A including compulsory no contact with complainant and immediate family, residence and reporting requirements, no unsupervised contact with persons under 16, counselling as directed, and weapons prohibition