A Supreme Court of Newfoundland and Labrador justice went well below the mandatory minimum in court in Corner Brook on Tuesday when he sentenced a Port aux Basques man to 90 days in jail, to be served intermittently, for sexually assaulting a minor.
Russell Edward MacLean, who is in his final year of studies at Memorial University of Newfoundland in St. John’s, won’t have to start serving that sentence until Dec. 21, by which time the work term he is currently on will have ended.
MacLean, 23, was convicted by a jury last September of sexually assaulting a 12-year-old girl in 2015.
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He was 21 when he and the girl carried on a sexting relationship for a few months via the social media application Snapchat prior to meeting on June 1, 2015 to engage in sex.
The sex was consensual, but the girl was under 16, the legal age at which a young person can consent to having sexual relations with another person.
MacLean did not take all the reasonable steps to find out the age of the girl before having sex with her.
In determining sentence, Justice George Murphy had to first consider a charter application by MacLean that argued the one-year mandatory minimum term of imprisonment for the crime would constitute cruel and unusual punishment.
Murphy found the sentence did violate Section 12 of the charter and thus had to determine a fit and proportionate sentence without regard to the one-year minimum.
In determining that sentence, he said, he had to take into account that MacLean had a lower level of moral blameworthiness, and to consider his circumstances and background.
MacLean has no prior record and is due to graduate with a bachelor of engineering degree in the spring of 2019. He’s also been assessed at a low level to reoffend.
Murphy said he also had to consider the impact on the victim. The girl did not provide a victim impact statement, but in her testimony expressed regret and remorse and that she now felt it was wrong to engage in the sexual activity.
MacLean had sought a suspended sentence, but Murphy said he did not believe that would be appropriate.
Based on his observations of MacLean in court and reading of the pre-sentence report, Murphy said, he believed the goal of specific deterrence had been achieved.
But general deterrence is equally important and Murphy said he was of the view a suspended sentence would not send the appropriate message to further the goal of general deterrence.
Murphy said it was his view a sentence greater than a suspended sentence was required, but it was not necessary to impose a sentence that would result in MacLean having to discontinue his university education.
Under the Criminal Code, only a sentence of 90 days or less can be served on an intermittent basis. Murphy said such a sentence should allow MacLean to continue with his work-term placement and completion of his last semester of university.
“At the same time, I believe it will satisfy the sentencing principles of general deterrence and denunciation.”
He said such a sentence is in the best interests of society under the circumstances of the case.
MacLean will be bound by a probation order during the time that he is not serving his sentence and for two years after completion of the sentence.
He has to comply with a DNA order and will be registered as a sex offender under the Sex Offender Registry Act for a period of 20 years.
With his work term still in progress, the Crown was not opposed to a request by MacLean to start the sentence when it is over. Once he starts, he’ll serve the time every weekend from Friday at 5 p.m. to Monday at 6:30 a.m. until it has been completed.
