Crown contends that six months immediate imprisonment was too lenient
Chief Justice Anthony Smellie has reserved his decision after hearing the Crown’s appeal against a Summary Court sentence for indecent assault by a father against his eight-year-old daughter.
Crown Counsel Michael Snape argued on Tuesday that the sentence of six months immediate imprisonment imposed earlier this year was unduly lenient.
He expressed frustration that the appeal was not heard earlier because the man was released in the first half of December. A court date had been set for Nov. 29, but there was a delay due to the timing of the legal aid grant, Mr. Snape reported. Then another date was set, but the judge scheduled to hear it had another matter arise.
Defense attorney Ben Tonner said the matter had to be considered in three stages: how the sentence was arrived at, whether it was unduly lenient and then, even if it was, give regard to the principle of double jeopardy [being sent to prison a second time for the same offense].
Mr. Snape pointed out that the Crown gave notice of appeal within six days of sentence, so the defendant knew about it from early on. He said it seemed that the defendant was getting the benefit of events outside the Crown’s control.
Chief Magistrate Nova Hall had sentenced the man to nine months in prison for the “most serious” of the indecent assaults. She gave separate custodial sentences for two other offenses, but ordered they run concurrently, meaning he served no additional jail time. She also suspended three months of the sentence for two years, meaning he served six months behind bars in total. Committing another offence within two years would make him liable to serve the remaining three months of his sentence.
The magistrate said she had taken into consideration the fact that the man had entered a guilty plea, had apparently been abused himself as a teenager, and was undergoing psychotherapy and taking medication to “address his situation.”
Mr. Snape cited local and U.K. sentencing guidelines for inappropriate touching of the kinds that occurred in this case. He pointed out that there were two such charges plus a common assault and an insult of modesty by making the girl watch pornography before he assaulted her.
He said it was not clear how the magistrate dealt with aggravating and mitigating features of the case, so there may have been a “double counting” of the mitigating factors.
Mr. Tonner said the magistrate did properly identify the aggravating features – the father’s position of trust and the vulnerable age of the victim – but there were some powerful mitigating features. He said the magistrate had arrived at a sentence that was entirely within her discretion.
He pointed out that the offenses had taken place a number of years before they were discovered.
The attorney submitted to the court a letter written to the defendant by the daughter and a letter to the defendant from another family member. He said the girl had visited her father in prison on two occasions entirely voluntarily and would have gone more often but there were scheduling problems. The father and daughter are currently seeing a counselor together, Mr. Tonner advised the court.
The Chief Justice inquired as to the identity of the counselor and what arrangements were in place.
He reserved his decision until next month and granted bail in the sum of $5,000 with one or two sureties. Conditions include not being in the girl’s presence without another adult present.