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The Court of Appeal allowed the appeal, finding error in admitting a child’s hearsay statement under the principled exception and ordering a new trial on Count 2.
Kienapple did not apply because the two offences contain distinct legal elements (bodily harm versus choking) such that multiple convictions were permissible; the accused failed to rebut the statutory presumption requiring SOIRA registration under s.490.012(3) given the violent nature, victim harm, relationship context and assessed risk of reoffence; balancing sentencing principles yielded a fit sentence of five years' imprisonment on each count to be served concurrently with ancillary orders (20-year SOIRA, DNA, 10-year weapons prohibition, non-communication while in custody).
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The Court of Appeal upheld a 20-year SOIRA order for a child pornography conviction, holding the appellant failed to displace the statutory presumption.
The appeal is dismissed because the trial judge conducted a proper credibility assessment: he permissibly considered lack of embellishment as a factor without using it as a makeweight, and he correctly authenticated and admitted the 2015 CAS record as a prior consistent statement (admitted for the fact the statements were made) to rebut recent fabrication; those decisions did not constitute reversible error and the convictions stand.
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Sentence for sexual assault of a 15-year-old: 10 months' imprisonment, followed by two years' probation and ancillary orders including DNA, SOIRA registration, and a firearms ban.
The court sentenced Kelly Glen Isbister to a global 27-month custodial term for child pornography possession and breaching a recognizance, with ancillary orders and custody credit.
The court sentenced William Fredric Townsend for sexual assault to a two-years-less-a-day conditional sentence, followed by 36 months’ probation, and exempted him from SOIRA.
Sentencing decision for making and transmitting child pornography. The court imposed 8 months' concurrent imprisonment, 18 months' probation, and exempted the offender from SOIRA registration.
Sentencing for sexual assault and choking: 30 months on the sexual assault, one year concurrent on choking, plus SOIRA, DNA and firearms orders.
The sentencing judge gave adequate reasons, supported by the record, for concluding that a determinate sentence followed by a long-term supervision order would not reasonably protect the public because the appellant was unlikely to comply with sex drive reducing medication, medical practitioners might not prescribe or reliably monitor such medication, and the legal system would be less able to meaningfully respond to imminent risk in the community; therefore the indeterminate sentence was justified and the appeal was dismissed.
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