In R v Whiting, 2013 SKCA 101 the Saskatchewan Court of Appeal dealt with an appeal by the Crown from the sentence imposed on the offender, Whiting, for sexual assault. The offender, age 19, and the complainant, age 14, had an online conversation of a sexual nature. The complainant indicated she had never had sexual intercourse and was open to learning new things from an older partner. The offender convinced the complainant to meet him that evening. The offender picked the complainant up at her home and drove to a nearby parking lot where they each removed their clothes and commenced sexual intercourse. When the complainant asked the offender to stop he complied. They got dressed and the offender dropped the complainant off at her home. The complainant told her mother of the encounter and the mother contacted police. The offender pled guilty and was sentenced to six months’ imprisonment and six months’ probation. The judge balanced the offender’s lack of prior convictions and positive antecedents with the complainant’s young age and the serious psychological impact of the assault. The judge declined to make an order requiring compliance with the Sex Offender Information Registration Act (SOIRA). The Crown appealed on the basis the sentence was disproportionately low and demonstrably unfit. The Crown submitted the judge erred in failing to characterize the offence as a major sexual assault, overemphasized the proximity in the ages of the complainant and offender and erred in declining to impose an order under the SOIRA.
In allowing the appeal Justice Whitmore, for the Court, noted that this was a major sexual assault that involved full intercourse with a person incapable of providing consent due to her age. The complainant suffered significant consequences as a result of the encounter. The sentence imposed reflected a failure to appreciate the gravity of the offence. In focusing on the youth and character of the offender, the judge erred in failing to properly consider certain objectives of sentencing, particularly denunciation and deterrence. The sentence imposed was demonstrably unfit. The appropriate starting point was a three-year sentence. The offender’s positive antecedents, guilty plea and closeness in age to the complainant served to reduce the appropriate sentence to 14 months’ imprisonment.