Overcoming resistance to commission of offence (attempting to choke, suffocate or strangle), Sexual assault
R. v. H.A.V.
A publication ban applies. The offender is not named.
- Below the Crown's ask
Sentence and the Crown's position
What the law allows
The offender was convicted after trial of sexual assault and of attempting to choke the complainant during the sexual assault, at the complainant's home. The Crown sought 35 months for the sexual assault plus six months consecutive for the choking, and the defence 30 months in total. Justice Baker imposed 31 months for the sexual assault and four months consecutive for the choking, less nine months of pre-sentence credit, citing the complainant's vulnerability and injuries while treating his lack of a criminal record as mitigating.
In the judge's words
1I find that a sentence in relation to the sexual assault, which is proportionate to the gravity of the offence and which takes into account these aggravating and mitigating factors, is 31 months.
The record
Sources
- R. v. H.A.V., 2022 BCSC 2116 Court decision, CanLII, November 21, 2022
[18] The Crown seeks a custodial term of 35 months for the assault convictions, followed by a consecutive term of six months for the attempted choking offence.
[23] The defence seeks a custodial sentence of a total of 30 months for all offences.
[11] The defendant has no prior criminal record.
[56] I find that a sentence in relation to the sexual assault, which is proportionate to the gravity of the offence and which takes into account these aggravating and mitigating factors, is 31 months.
[59] In conclusion, I am satisfied that a custodial sentence of 31 months for the sexual assault, with a further four months for the offence of attempting to choke, to be served consecutively, is appropriate and proportionate to the gravity of the offence. … Presentence time is credited at times 1.5 and is equal to nine months of credit for presentence custody. … [62] For the reasons I have expressed and taking into account credit for presentence custody, I sentence you to 26 months of incarceration from today's date.
- Criminal Code, s. 271 Record, Justice Laws Website
- R. v. H.A.V., 2022 BCSC 2116 Court decision, Courts of British Columbia