The B.C. Court of Appeals has overturned a jail sentence issued by a Prince George Provincial Court judge against a youth convicted of sexually assaulting his half sister.
The youth, who cannot be named under a court ordered publication ban, had been sentenced to 80 days in custody and 40 days supervision followed by two years probation with a concurrent intensive support and supervision order.
But in a judgment issued this week, the three justices hearing the appeal agreed that the judge erred, in part, by issuing a sentence that exceeded the two-year maximum for the offence and failing to consider whether an alternative form of sentence was possible.
The court also found the judge erred in relying on denunciation as an applicable principle in sentencing the youth and that it was not apparent the extent to which the youth's aboriginal background was taken into account.
During the appeal, the Crown submitted the sentence was appropriate notwithstanding the errors. The youth, then 16 years old at the time, forced himself on the 13-year-old girl and she became pregnant, a fact she tried to hide from her family, and now is the mother of a young child.
However, the Crown also acknowledged the youth's "intense need for support, rehabilitation and access to services, which he is unlikely to receive in an adult facility, where by reason of the appellant's age he would serve a custodial sentence," Justice David Harris said in a reasons for judgment on behalf of the court.
The youth has been diagnosed with fetal alcohol effects, attention-deficit hyperactivity disorder, oppositional defiance disorder, conduct disorder, post-traumatic stress disorder and attachment disorder.
"I accept that a fit sentence must take into account the harm done to the victim," Harris said. "The offience violated the sexual integrity of a vulnerable youth girl and has caused her serious psychological harm. It is troubling that the appellant has not adequately accepted personal responsibility for his conduct.
"Nonetheless, as the Crown acknowledges, and I accept, the circumstances of the offender, especially the tremendous challenges he faces, render an actual custodial sentence in this case unfit."
The sentence was replaced with a two-year intensive support and supervision order containing the terms imposed by the sentencing judge and supplemented by a six-month deferred custody and supervision order.
