Assault by choking, suffocating or strangling, Sexual assault

R. v. H.M.

A publication ban applies. The offender is not named.

  • Below the Crown's ask
  • No jail for a violent offence

Sentence and the Crown's position

Crown asked2 years in custody1
Judge imposed12 months conditional (6 months concurrent on the choking count), then 12 months probation1
2 years less custody than the Crown asked

A conditional sentence is served in the community, usually under house arrest. It counts as no custody here.

What the law allows

Maximum10 years
Crown asked2 years in custody
Judge imposed1 year conditional sentence
For assault by choking, suffocating or strangling (CC 267(c)), the Criminal Code currently allows up to 10 years when the Crown proceeds by indictment, with no mandatory minimum. The sentence imposed is 10% of the maximum. Read the section.

A jury convicted the offender of sexual assault and assault by choking. The Crown sought two years in prison; the defence sought a conditional sentence. Justice Ross found the more serious allegations not proven beyond a reasonable doubt and imposed a 12-month conditional sentence followed by 12 months of probation.

In the judge's words

[79] I have made my findings of fact above regarding all the matters that were proven beyond a reasonable doubt. As I have noted, those facts do not accord with the version of the offences that were urged upon the jury by the Crown, or on me for sentencing. Instead, they were in line with the defence submission.

1

The record

Prior convictions
1 prior conviction1
At the time of the offence
Not stated1
Appeal
Not yet checked
Counsel
Crown: J.A. Dyck
Defence: C. Funt

Sources

  1. R. v. H.M., 2024 BCSC 448 Court decision, CanLII, March 1, 2024[2] … the defence concedes that, in the event that I make the findings of fact urged upon me by the Crown, then the two-year prison sentence proposed by the Crown is fair.[54] … He has one prior conviction for impaired driving in 2013.[79] I have made my findings of fact above regarding all the matters that were proven beyond a reasonable doubt. As I have noted, those facts do not accord with the version of the offences that were urged upon the jury by the Crown, or on me for sentencing. Instead, they were in line with the defence submission.[81] I will deal first with the charge of sexual assault. In my opinion, having regard to the circumstances of this case and the aggravating and mitigating circumstances referred above, a sentence which is proportionate to the gravity of the offence and the degree of responsibility of Mr. … is a conditional sentence of imprisonment of 12 months. [82] Turning to the conviction of assault by choking, I find that a conditional sentence of six months is appropriate for that offence, to be served concurrently. [83] I also impose a period of 12 months of probation, the provisions of which I describe below.
  2. Criminal Code, s. 271 Record, Justice Laws Website
  3. R. v. H.M., 2024 BCSC 448 Court decision, Courts of British Columbia

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